EXHIBIT 10.18
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FIFTH SUPPLEMENT TO
INTER-GROUP AGREEMENT
between and among
AT&T CORP.,
on the one hand,
and
LIBERTY MEDIA CORPORATION,
LIBERTY MEDIA GROUP LLC
and each Covered Entity listed on the
signature pages hereof,
on the other hand,
dated as of December 10, 1999
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FIFTH SUPPLEMENT TO
INTER-GROUP AGREEMENT
Agreement dated as of December 10, 1999 (this "Agreement") between
AT&T Corp., a New York corporation ("AT&T"), for itself and on behalf of the
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members of the Common Stock Group, on the one hand, and Liberty Media
Corporation, a Delaware corporation ("LMC"), Liberty Media Group LLC, a Delaware
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limited liability company, and for so long as such Covered Entity remains a
Covered Entity under the applicable provisions of the AT&T Charter Amendment,
each Covered Entity listed on the signature pages hereof (collectively, the
"Liberty Media Parties"), for themselves and, in the case of LMC, on behalf of
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the other members of the Liberty Media Group, on the other hand.
WHEREAS, AT&T and the Liberty Media Parties are parties to that
certain Inter-Group Agreement, dated as of March 9, 1999 (the "Inter-Group
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Agreement"), as supplemented and modified by (i) the First Supplement to Inter-
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Group Agreement, dated as of May 28, 1999, as such First Supplement has been
amended (the "First Supplement"), (ii) the Second Supplement to Inter-Group
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Agreement, dated as of September 24, 1999 (the "Second Supplement"), (iii) the
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Third Supplement to Inter-Group Agreement, dated as of October 20, 1999 (the
"Third Supplement") and (iv) the Fourth Supplement to Intergroup Agreement,
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dated as of December 6, 1999 (the "Fourth Supplement"), which establishes
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certain terms and conditions concerning the responsibilities and obligations of
each Group to the other as well as certain additional provisions concerning the
Groups' relationships with each other;
WHEREAS, AT&T, B-Group Merger Corp., a Delaware corporation ("Merger
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Sub B"), LMC and The Xxxx-XX Corporation, a Delaware corporation ("Xxxx"),
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intend to enter into an Agreement and Plan of Merger, dated as of December 10,
1999 (the "Xxxx Merger Agreement"), pursuant to which, among other things,
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subject to the terms and conditions contained in the Xxxx Merger Agreement,
Merger Sub B will be merged with and into Xxxx, and a controlling interest in
Xxxx, as the surviving entity of such merger, initially will be acquired
directly by AT&T (the "Xxxx Merger");
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WHEREAS, in connection herewith AT&T, LMC and certain of their
respective affiliates are also entering into a Sixth Amendment to Tax Sharing
Agreement (the "Sixth Tax Sharing Amendment"), dated as of the date hereof,
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which amends that certain Tax Sharing Agreement, dated as of March 9, 1999, as
amended, (as so amended, the "Tax Sharing Agreement"), to which AT&T, LMC and
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certain of their respective affiliates are parties;
WHEREAS, LMC has requested in writing that AT&T enter into the Xxxx
Merger Agreement, this Agreement and the Sixth Tax Sharing Agreement and
consummate the transactions contemplated thereby;
WHEREAS, as a condition to the willingness of each of AT&T and LMC to
enter into the Xxxx Merger Agreement, AT&T and the Liberty Media Parties have
determined to enter into this Agreement and the Sixth Tax Sharing Amendment;
WHEREAS, AT&T and the Liberty Media Parties desire to supplement and
modify the Inter-Group Agreement in the manner set forth in this Agreement and
to establish in this Agreement certain terms and conditions concerning the
responsibilities and obligations of each
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Group to the other as well as certain additional provisions concerning each
Group's relationship with each other as the same may relate to the Xxxx Merger,
and certain related transactions;
WHEREAS, in connection herewith, the Capital Stock Committee has
adopted the resolutions attached as Exhibit A.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements contained herein, and intending to be legally bound
hereby, AT&T and the Liberty Media Parties hereby agree as follows:
ARTICLE I
OBLIGATIONS RELATING TO THE XXXX MERGER
SECTION 1.1. Post-Closing Contribution. As soon as reasonably
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practicable following the effectiveness of the Xxxx Merger, each of LMC and AT&T
shall use all reasonable efforts to engage in the Post-Merger Restructuring
Transactions, in each case, to the extent then permitted by law. Each of AT&T
and LMC shall take, and AT&T shall cause each of its Subsidiaries to take, any
and all required actions (whether as a stockholder (or other interest holder) or
through its respective representatives on the board of directors (or comparable
governing body) of the applicable entity), to give effect to the previous
sentence.
SECTION 1.2. Certain Liabilities Relating to the Xxxx Merger.
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(a) Subject to the last sentence of this subsection (a), as between
the Common Stock Group and the Liberty Media Group, all of the following
Liabilities shall be Liabilities of the Liberty Media Group:
(i) all Liabilities of Xxxx and any of its subsidiaries and
affiliates (and, in each case, any predecessor or successor
thereto);
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(ii) all Liabilities arising out of or related to the Xxxx Merger
Agreement and the transactions contemplated thereby, including
(A) all Liabilities arising out of or relating to any breach of
the Xxxx Merger Agreement by LMC or Xxxx (whether such breach is
of a representation, warranty, agreement or obligation made to
AT&T, LMC or otherwise, and without reference to any
qualification of any such representation, warranty, agreement or
obligation by reference to materiality, any Company SEC Reports
or the Disclosure Schedule, and without reference to any
limitation on survival of such representation, warranty, covenant
or obligation set forth in the Xxxx Merger Agreement, (B) any
Liabilities to third parties contemplated by Section 4.10 of the
Xxxx Merger Agreement, (C) all Liabilities required to carry out
the provisions of Sections 2.2, 2.3, 2.4 and 2.5 (in each case
subject to Section 2.10) of the Xxxx Merger Agreement, (D) all
Liabilities under Section 3.7 of the Xxxx Merger Agreement, (E)
all Liabilities arising out of or related to any registration
rights granted by Xxxx (it being agreed that AT&T is not
responsible for and is not assuming any such obligation and shall
not be required to register any AT&T Liberty Tracking Shares or
shares of Parent Common Stock pursuant to any registration rights
agreement related to Xxxx or the holders of any securities of
Xxxx, other than the registration of the Merger Consideration
pursuant to the S-4 Registration Statement, as provided in the
Xxxx Merger Agreement), (F) all Liabilities arising out of or
related to any lawsuit brought, proposed or threatened against
AT&T or Merger Sub B
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in connection with the execution, delivery or performance of the
Xxxx Merger Agreement or this Agreement by AT&T or Merger Sub B,
by any third party other than Xxxx, it being understood that all
Liabilities arising out of or related to any such lawsuit
brought, proposed or threatened by Xxxx shall be the Liabilities
of the Liberty Media Group if such lawsuit relates to any action
or omission that (1) is not (or under this Agreement would be
deemed not to be) a violation of the Xxxx Merger Agreement or
this Agreement or (2) otherwise was taken, or omitted to be
taken, at the request or direction of any member of the Liberty
Media Group, including any issuance of or failure to issue Class
A Liberty Group Stock (regardless of whether any such issuance
would be in excess of the number of shares of Class A Liberty
Group Stock that are authorized but not issued or reserved for
issuance), and (G) any Liabilities required to be incurred to
relieve AT&T and any member of the Common Stock Group of any
Liability or obligation that binds or is enforceable against AT&T
or such member of the Common Stock Group as a result of any
agreement between Xxxx and/or any of its Subsidiaries, on the one
hand, and any other person, on the other hand (other than any
such agreement executed by AT&T or a member of the Common Stock
Group);
(iii) all Liabilities arising out of the consummation of the Xxxx
Merger or any of the transactions contemplated thereby, including
the Post-Merger Restructuring Transactions, the Reclassification,
and any other transaction
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contemplated by this Agreement or the Xxxx Merger Agreement,
notwithstanding the failure to receive any consent, approval or
authorization, or any failure to make any filing or notification,
from or to any Person that may be required in connection
therewith;
(iv) all Liabilities arising out of the consummation of, or failure to
consummate, the Post-Merger Restructuring Transactions or the
Reclassification;
(v) all Liabilities relating to current or former employees,
officers, directors, consultants and other agents of Xxxx or any
of its current or former Subsidiaries and Affiliates, including
all Company Stock Options assumed by AT&T; and
(vi) except to the extent resulting from any breach of this Agreement
or the Xxxx Merger Agreement by AT&T that does not arise out of
or relate to actions taken by AT&T at the request of LMC (as
contemplated by Section 1.2(d) hereof or otherwise in writing),
all Liabilities arising out of the execution, delivery or
performance of this Agreement.
Notwithstanding the foregoing, as between the Common Stock Group and the Liberty
Media Group, the Common Stock Group shall be responsible for (i) any Liabilities
(other than any Liability arising from or relating to a Xxxx Tax Item (as
defined in the Sixth Tax Sharing Amendment)) to the extent arising out of or
relating to any breach by AT&T or Merger Sub B of the Xxxx Merger Agreement or
this Agreement, that do not arise out of or relate to actions taken or omitted
to be taken by AT&T or Merger Sub B at the request of LMC (as contemplated by
Section 1.2(d) hereof or otherwise in writing), whether incurred by a member of
the Common Stock Group or by a member of the Liberty
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Media Group, and (ii) any Xxxx Tax Item to the extent set forth in Sections
3(d)(xiv) and 3(d)(xv) of the Tax Sharing Agreement.
(b) The Liberty Media Group shall be responsible for, and shall
reimburse the Common Stock Group for, any and all reasonable costs, fees and
expenses incurred by AT&T or any member of the Common Stock Group in connection
with: (i) the negotiation, review, execution and delivery of the Xxxx Merger
Agreement, this Agreement and the Sixth Tax Sharing Amendment; (ii) the
consummation of the transactions contemplated by the Xxxx Merger Agreement and
this Agreement; (iii) the preparation, review and filing of the Registration
Statement contemplated by the Xxxx Merger Agreement (and the Proxy Statement
that will be a part thereof); (iv) the consummation of the Post-Merger
Restructuring Transactions; (v) making any filings with any governmental entity
and otherwise assisting in obtaining approvals, consents and clearances required
in connection with the transactions contemplated by the Xxxx Merger Agreement
and this Agreement, if any; and (vi) all other fees and expenses related
thereto, including in each case any internal costs, fees and expenses (which
shall be determined in any reasonable manner developed by AT&T for tracking such
internal costs, fees and expenses), and in each case such costs, fees and
expenses to be reimbursed promptly upon receipt of a statement therefor.
(c) LMC shall indemnify and hold harmless AT&T and each member of the
Common Stock Group from and against, and pay and reimburse AT&T and each member
of the Common Stock Group for, any and all Liabilities (including reasonable
attorneys' fees and expenses) for which the Liberty Media Group is responsible
pursuant to this Section 1.2 in each case in accordance with Section 1.4(c) of
the Inter-Group Agreement.
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(d) Notwithstanding any provision of the Xxxx Merger Agreement, AT&T
and Merger Sub B shall not waive any condition to their respective obligations
to consummate the Xxxx Merger set forth in Article VIII of the Xxxx Merger
Agreement (the "Parent Closing Conditions") without LMC's prior written consent;
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provided, however, that consummation of the Xxxx Merger by Parent based on the
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reasonable belief that all of the Parent Closing Conditions applicable to such
merger have been satisfied shall not be deemed a breach of this Agreement unless
(and to the extent) AT&T receives a written request referred to in the next
sentence at least 24 hours prior to the then scheduled Closing of such merger.
To the extent so requested in writing by LMC, each of AT&T and Merger Sub B
shall (i) assert that one or more of the Parent Closing Conditions applicable to
the Xxxx Merger have not been satisfied and decline to consummate the
transactions contemplated by the Xxxx Merger Agreement or (ii) to the extent
lawful, waive one or more of the Parent Closing Conditions (other than those set
forth in Section 8.1 or Section 8.3(h) of the Xxxx Merger Agreement). The
Liberty Media Group agrees to indemnify AT&T for any Liabilities incurred by
AT&T or any member of the Common Stock Group as a result of the taking of an
action by AT&T or Merger Sub B at the request of LMC as contemplated by the
previous sentence (but without regard to whether such action constitutes a
breach of the Xxxx Merger Agreement). Notwithstanding clause (ii) of the second
sentence of this paragraph, AT&T shall not be obligated to waive any Parent
Closing Condition and consummate the Xxxx Merger if AT&T, in its reasonable
judgment, determines that the foregoing agreement of LMC to indemnify AT&T from
and against any Liability incurred as a result of such action is not adequate to
fully protect AT&T and the Common Stock Group from and against any Liability
that could reasonably be expected to result from such waiver and the
consummation of the Xxxx Merger in connection therewith (it being understood
that no such
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indemnification would be adequate if such Liability relates to, without
limitation, any injunction applicable to AT&T or any of its Subsidiaries, any
restriction on the operation of any business or assets of AT&T or any of its
Subsidiaries or the relationship of AT&T or any of its Subsidiaries with any
governmental entity that has jurisdiction over AT&T or such Subsidiary or any of
their assets or businesses). Except as set forth in this paragraph, nothing
herein shall prohibit AT&T or Merger Sub B from exercising any of its rights
under the Xxxx Merger Agreement. AT&T shall reasonably consider any amendments
to, or any waiver of any other provision of, the Xxxx Merger Agreement proposed
by LMC. If so requested by AT&T, in connection with the closing of any Livewire
Merger, LMC shall acknowledge in writing to AT&T that the consummation of such
merger would not be inconsistent with AT&T's obligations under this paragraph,
and the failure of AT&T to consummate such merger in the absence of such
acknowledgment shall be deemed, for all purposes of this Agreement, not to be a
violation of this Agreement or the Xxxx Merger Agreement.
(e) All employees, officers, directors, consultants and other agents
of Xxxx and its Subsidiaries shall be deemed to be employees, officers,
directors, consultants and other agents of the Liberty Media Group, and all
Rollover Options and Rollover Debentures (including any obligations pursuant to
Sections 2.6(a), 2.6(b) and 2.7 of the Xxxx Merger Agreement) that are created
as a result of the Xxxx Merger shall be the responsibility of the Liberty Media
Group.
(f) For purposes of Section 1.16 of the Inter-Group Agreement, the
Rollover Options to be assumed at the Effective Time of the Xxxx Merger, the
obligation to issue Class A Liberty Group Stock to shareholders and debenture
holders of Xxxx pursuant to the Xxxx Merger Agreement, and any other obligation
to issue or sell any Class A Liberty Group Stock pursuant to or in connection
with the Xxxx Merger, the Xxxx Merger Agreement, and any agreement referred
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to in the Xxxx Merger Agreement or executed in connection therewith (the "Xxxx-
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Issuance Obligations") shall be deemed to be Tracking Stock Obligations (as
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defined in the Inter-Group Agreement) incurred with a Liberty Approval (as
defined in the Inter-Group Agreement), and the incurrence of such obligations
shall not constitute a breach of the second sentence of Section 1.16 of the
Inter-Group Agreement. The issuance of Class A Liberty Group Stock pursuant to
the Xxxx Merger and any other transaction contemplated by the Xxxx Merger
Agreement shall be deemed to have occurred with a Liberty Approval for purposes
of Section 1.11(a) of the Inter-Group Agreement and shall not be a breach of
Section 1.11(b) or (c) of the Inter-Group Agreement. Subject to the requirements
set forth in Section 1.16 of the Inter-Group Agreement that apply following a
Tax Law Change, any action taken by AT&T to implement the terms of this
paragraph (f) or otherwise to satisfy the Xxxx Issuance Obligations shall not
constitute a breach of any provision of the Inter-Group Agreement.
(g) At all times from the date of its formation until the Effective
Time of the Xxxx Merger, Merger Sub B shall be a direct, wholly owned Subsidiary
of AT&T.
SECTION 1.3. Allocation of Proceeds. For purposes of Sections 1.6(b)
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and 1.11 of the Inter-Group Agreement and the definition of the term "Liberty
Media Group" in the AT&T Charter Amendment, the net proceeds of the issuance of
the Class A Liberty Group Stock to be issued in the Xxxx Merger shall consist of
the entire interest of AT&T in Xxxx and each of its respective Subsidiaries
other than any interest in AT&T Liberty Tracking Shares (the "Excluded Shares")
and shares of Class A common stock of the Surviving Corporation received in
respect of any shares of common stock of Xxxx owned by AT&T or any of its
Subsidiaries immediately prior to the Effective Time. Following the Effective
Time, Xxxx and its Subsidiaries shall be members
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of the Liberty Media Group. For purposes of Section 1.6(b) of the Inter-Group
Agreement, all proceeds received by Xxxx upon exercise or conversion of any
options, warrants, debentures or other securities that may be exercised,
converted or exchanged in whole or in part for Class A Liberty Group Stock shall
be deemed to have been received by or contributed to LMC, without any further
action by Parent or any other Person. Notwithstanding anything to the contrary
in the Inter-Group Agreement, there shall be no restriction on the Transfer of
any Excluded Shares and there shall be no obligation to contribute to LMC the
net proceeds from any such Transfer(s).
In furtherance of the foregoing, any contract right or other similar
right associated with any asset that is attributed to a Group (as defined in the
Inter-Group Agreement) in accordance with the preceding paragraph shall be the
right of the Group (as defined in the Inter-Group Agreement) to which such
related asset is so attributed.
SECTION 1.4 Certain Obligations.
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(a) AT&T agrees to reasonably consider any actions that it may be
requested by LMC to take in accordance with consummation of the Xxxx Merger.
(b) LMC represents and warrants that true and complete copies of all
documents referred to in the Xxxx Merger Agreement that have been delivered to
LMC by or on behalf of Xxxx on or prior to the date hereof have been delivered
to AT&T on or prior to the date hereof and agrees that true and complete copies
of all such documents delivered to LMC from and after the date hereof until
consummation of the transactions contemplated hereby will be delivered promptly
to AT&T.
(c) To the fullest extent possible, LMC will perform all obligations
of AT&T under Sections 3.2 and 3.5 of the Xxxx Merger Agreement, such as (to the
extent, if any, required of Parent thereby) preparation of documents and
filings, and seeking necessary consents. In
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connection with the foregoing, LMC will not make any filing or take any action
in the name of or on behalf of AT&T without receiving the prior written consent
of AT&T.
(d) AT&T acknowledges that its covenants in this Agreement and the
Xxxx Merger Agreement are subject to the fiduciary duties of its board of
directors to all of its stockholders, including the holders of Parent Common
Stock and the holders of AT&T Liberty Tracking Shares, in each case in
accordance with the Parent Charter and the AT&T board of directors' Policy
Statement regarding Liberty Media Group Tracking Stock Matters.
ARTICLE II
DEFINITIONS
SECTION 2.1. Certain Definitional Provisions. Capitalized terms used
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herein without definition have the meanings ascribed to such terms in (i) the
Xxxx Merger Agreement or (ii) if not otherwise defined herein or in the Xxxx
Merger Agreement, the Inter-Group Agreement. The language used in this Agreement
shall be deemed to be the language chosen by the parties to express their mutual
intent, and no rule of strict construction shall be applied against any party.
Any references to any statute or law shall also refer to all rules and
regulations promulgated thereunder, unless the context requires otherwise.
Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words "include," "includes," and
"including" shall be deemed to be followed by the phrase "without limitation".
The words "hereof," "herein" and "hereunder" and words of similar import when
used in this Agreement shall refer to this Agreement as a whole and not to any
particular provision of this Agreement, and Article and Section references are
to this Agreement unless otherwise specified. The meanings given to terms
defined herein shall be equally applicable to both the singular and plural forms
of such terms.
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Unless the context shall otherwise require, any references to any agreement or
other instrument or statute or regulation are to it as amended and supplemented
from time to time (and, in the case of a statute or regulation, to any successor
provisions). Any reference in this Agreement to a "day" or number of "days"
(without the explicit qualification of "business") shall be interpreted as a
reference to a calendar day or number of calendar days. If any action or notice
is to be taken or given on or by a particular calendar day, and such calendar
day is not a business day, then such action or notice shall be deferred until,
or may be taken or given on, the next business day.
ARTICLE III
MISCELLANEOUS
SECTION 3.1. Notices. All notices, requests, demands or other
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communications required by or otherwise with respect to this Agreement shall be
in writing and shall be deemed to have been given to any party when delivered
personally (by courier service or otherwise), when delivered by telecopy and
confirmed by return telecopy, or upon the receipt after being mailed by first-
class mail, postage prepaid and return receipt requested in each case to the
applicable addresses set forth below:
If to AT&T or any member of the Common Stock Group:
AT&T Corp.
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxx Xxxxx, Xxx Xxxxxx 00000
Attention: Vice President-Law
and Corporate Secretary
Facsimile: (000) 000-0000
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with a copy to:
Wachtell, Lipton, Xxxxx & Xxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
Xxxxxx X. Xxxxxxxxx, Esq.
Xxxxx X. Silk, Esq.
Facsimile: (000) 000-0000
If to LMC or any member of the Liberty Media Group:
Liberty Media Corporation
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
Facsimile: (000) 000-0000
with a copy to:
Xxxxx & Xxxxx, L.L.P.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxxx X. Xxxxxxxxx, Esq.
Xxxx X. Leaf, Esq.
Facsimile: (000) 000-0000
or such address as such party shall have designated by notice so given to each
other party.
SECTION 3.2. Amendments; No Waivers. (a) This Agreement shall be
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amended, changed, supplemented, waived or otherwise modified only by an
instrument in writing signed by each of AT&T and LMC (and following a Triggering
Event (as defined in the Inter-Group Agreement), Liberty Media Group LLC).
(b) No failure or delay by any party in exercising any right, power
or privilege hereunder shall operate as a waiver thereof nor shall any single or
partial exercise thereof preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. The rights
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and remedies herein provided shall be cumulative and not exclusive of any rights
or remedies provided by law.
SECTION 3.3. Successors and Assigns. Neither this Agreement nor any
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of the rights or obligations under this Agreement shall be assigned, in whole or
in part, by any party without the prior written consent of the other parties
hereto; provided, however, that the assignment of its rights and obligations
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under this Agreement by LMC or any Covered Entity (as defined in the Inter-Group
Agreement) to Liberty Media Group LLC in connection with the transactions
contemplated by the Contribution Agreement shall not require the consent of
AT&T. Subject to the foregoing, the provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns.
SECTION 3.4. Governing Law; Consent to Jurisdiction. This Agreement
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and all disputes hereunder shall be governed by and construed and enforced in
accordance with the internal laws of the State of Delaware, without regard to
the principles of conflicts of laws. Each party hereto irrevocably and
unconditionally consents to submit to the exclusive jurisdiction of the United
States District Court for the District of Delaware or the Chancery Court of the
State of Delaware in any action, suit or proceeding arising in connection with
this Agreement, and agrees that any such action, suit or proceeding shall be
brought only in such court (and waives any objection based on forum non
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coveniens or any other objection to venue therein); provided, however, that such
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consent to jurisdiction is solely for the purpose referred to in this Section
3.4 and shall not be deemed to be a general submission to the jurisdiction of
said courts or of the State of Delaware other than for such purpose. AT&T and
LMC each hereby waive any right to a trial by jury in connection with any such
action, suit or proceeding.
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SECTION 3.5 Counterparts; Effectiveness. This Agreement may be
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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. This
Agreement shall become effective when each party hereto shall have received
counterparts thereof signed by the other party hereto.
SECTION 3.6. Specific Performance. Each of AT&T and LMC acknowledges
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and agrees that money damages are not an effective remedy for violations of this
Agreement and that any party may, in its sole discretion, apply to a court of
competent jurisdiction for specific performance or injunctive or such other
relief as such court may deem just and proper in order to enforce this Agreement
or prevent any violation hereof and, to the extent permitted by applicable Law,
each party waives any objection to the imposition of such relief.
SECTION 3.7. Remedies Cumulative. All rights, powers and remedies
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provided under this Agreement or otherwise available in respect hereof at law or
in equity shall be cumulative and not alternative, and the exercise or beginning
of the exercise of any thereof by any party shall not preclude the simultaneous
or later exercise of any other such right, power or remedy by such party.
SECTION 3.8. Termination. This Agreement shall remain in full force
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and effect until the earlier to occur of (i) such time as no Class A Liberty
Group Stock or Class B Liberty Group Stock are outstanding and (ii) the
termination prior to the Effective Time of the Xxxx Merger Agreement, at which
time this Agreement shall terminate and upon termination, no party shall have
any liability or further obligation to the other under this Agreement, except
that the provisions of Section 1.2(a) (other than subsections 1.2 (a) (i), (v)
and (vi), Section 1.2 (b), Section 1.2(c) (to the extent of any Liabilities
described therein that arose at or prior to the termination of this Agreement
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or under any provision of this Agreement that survives such termination) and
this Section 3.8 shall survive the termination of this Agreement; provided,
however, that such termination shall not relieve any party hereto of any
liability for any breach of this Agreement or the Xxxx Merger Agreement. No
termination of this Agreement shall limit or otherwise affect the rights or
obligations of the parties to the Inter-Group Agreement.
SECTION 3.9. Severability. In case any provision in this Agreement
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shall be held invalid, illegal or unenforceable in a jurisdiction, such
provision shall be modified or deleted, as to the jurisdiction involved, only to
the extent necessary to render the same valid, legal and enforceable, and the
validity, legality and enforceability of the remaining provisions hereof shall
not in any way be affected or impaired thereby nor shall the validity, legality
or enforceability of such provision be affected thereby in any other
jurisdiction.
SECTION 3.10. Cooperation. Each of AT&T and LMC covenants and agrees
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with the other to use its reasonable best efforts to cause each member of the
Common Stock Group and each member of the Liberty Media Group, respectively, to
fulfill each of its respective obligations under this Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the day and year first above written.
AT&T CORP.
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Vice President - Law and Secretary
LIBERTY MEDIA CORPORATION
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President
LIBERTY MEDIA GROUP LLC
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Vice President
Each of the following Covered Entities hereby
executes this Agreement as a member of the
Liberty Media Group to become a party to this
Agreement for so long as it remains a Covered
Entity under the applicable provisions of the
AT&T Charter Amendment:
LIBERTY SP, INC.
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President
LIBERTY AGI, INC.
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President
LMC INTERACTIVE, INC.
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President
