Exhibit 4
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TOP UP RIGHT AGREEMENT
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Among
FRANCE TELECOM S.A.,
DEUTSCHE TELEKOM AG,
TELE-COMMUNICATIONS, INC.,
COMCAST CORPORATION,
and
XXX COMMUNICATIONS, INC.,
MAY 26, 1998
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THIS TOP UP RIGHT AGREEMENT (the "Agreement") is
entered into as of May 26, 1998, by and among FRANCE TELECOM
S.A., a societe anonyme formed under the laws of France ("FT"),
DEUTSCHE TELEKOM AG, an Aktiengesellschaft formed under the laws
of Germany ("DT"), TELE-COMMUNICATIONS, INC., a Delaware
corporation ("TCI"), COMCAST CORPORATION, a Pennsylvania
corporation ("Comcast") and XXX COMMUNICATIONS, INC., a Delaware
corporation ("Cox", and together with TCI and Comcast, the "Cable
Parents").
WHEREAS, pursuant to a Restructuring and Merger
Agreement (the "Restructuring and Merger Agreement"), dated May
26, 1998, among Sprint, the Cable Parents and the other parties
listed therein, Cox and certain subsidiaries of the Cable Parents
(each, a "Cable Partner") will receive shares of Series 2 PCS
Stock in exchange for certain interests in Sprint PCS indirectly
owned by the Cable Parents (the "CP Exchange");
WHEREAS, such shares of Series 2 PCS Stock issued to
the Cable Partners in the CP Exchange carry 1/10th of a vote per
share;
WHEREAS, pursuant to the Articles of Incorporation of
Sprint, upon the transfer of any shares of Series 2 PCS Stock by
a Cable Partner to a Person that is not a Cable Partner or an
Affiliate or (in some circumstances) an Associate thereof, such
shares automatically convert into full voting shares of Sprint;
WHEREAS, FT and DT desire certain rights to purchase a
portion of the shares of Series 2 PCS Stock transferred by the
Cable Partners with respect to that amount of shares of Series 2
PCS Stock that results in the conversion of such shares to Series
1 PCS Stock;
WHEREAS, pursuant to a form of Amended and Restated
Stockholders' Agreement to be entered into in connection with the
CP Exchange among Sprint, FT and DT, FT and DT have certain
rights to purchase additional shares of Class A Stock (as defined
herein) so as to enable FT and DT to maintain a certain
percentage of the aggregate number of votes represented or to be
represented by the voting securities of Sprint;
WHEREAS, the Company, FT and DT entered into a Master
Restructuring and Investment Agreement dated as of May 26, 1998
(the "FT/DT Restructuring Agreement"), which contemplates, among
other things, the purchase by FT and DT of (i) shares of Series 3
PCS Stock in connection with the CP Exchange and (ii) shares of
Series 1 PCS Stock in connection with the proposed IPO (as
defined herein);
WHEREAS, unless otherwise indicated, capitalized terms
used in this Agreement but not defined in this Agreement have the
meanings given to such terms in the Restructuring and Merger
Agreement;
NOW, THEREFORE, in consideration of (i) FT and DT's
respective undertakings to purchase shares of Series 3 PCS Stock
as set forth herein and in the FT/DT Restructuring Agreement,
(ii) FT and DT entering into the Amended Registration Rights
Agreement in connection with the CP Exchange among Sprint, FT and
DT (the "Registration Rights Agreement"), and (iii) FT and DT' s
respective undertakings to vote in favor of the Recapitalization,
and the mutual covenants and obligations hereinafter set forth,
the parties hereto, intending to be legally bound, hereby agree
as follows:
ARTICLE I
DEFINITIONS
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"Associate" means, when used to indicate a
relationship with any Person, (i) a corporation or organization
of which such Person is a partner or is, directly or indirectly,
the beneficial owner of ten percent or more of any class of
equity securities and (ii) any trust or other estate in which
such Person has a substantial beneficial interest or as to which
such Person serves as trustee or in a similar capacity.
"Amended and Restated Standstill Agreement" means the
Amended and Restated Standstill Agreement to be entered into
among Sprint, FT and DT in connection with the CP Exchange as it
may be amended or supplemented from time to time.
"Business Day" means a day of the year on which banks
are not required or authorized to be closed in the State of New
York or in France or Germany.
"Class A Common Stock" means the Class A Common Stock,
par value $2.50 per share, of Sprint, as provided for in the
Current Sprint Charter.
"Class A Holders" means FT, DT and any Qualified
Subsidiary to which shares of Class A Stock or Non-Class A Common
Stock have been transferred in accordance with Section 2.2 of the
Stockholders' Agreement, and any Qualified Stock Purchaser that
acquires shares of Class A Stock pursuant to Article VI or
Section 5.1 of the Stockholders' Agreement or pursuant to Section
2.2(b) of the Amended and Restated Standstill Agreement.
"Class A Provisions" has the meaning set forth in the
Stockholders' Agreement.
"Class A Stock" means the Class A Common Stock, the
Series 3 FON Stock and the Series 3 PCS Stock.
"Closing Price" means, with respect to a security on
any day, the last sale price, regular way, or in case no such
sale takes place on such day, the average of the closing bid and
asked price, regular way, in either case as reported in the
principal consolidated transaction reporting system with respect
to securities listed of admitted to trading on The New York Stock
2
Exchange, Inc. or, if such security is not listed or admitted to
trading on such exchange as reported in the principal
consolidated transaction reporting system with respect to
securities listed on the principal national securities exchange
on which the security is listed or admitted to trading or, if the
security is not listed or admitted to trading on any national
securities exchange, the last quoted sale price or, if not so
quoted, the average of the high bid and low asked prices in the
over-the-counter market, as reported by NASDAQ or such other
system then in use, or, if on any such date such security is not
quoted by any such organization, the average of the closing bid
and asked price as furnished by a professional market maker
making a market in the security selected in good faith by the
Board of Directors. If the security is not publicly held or so
listed or publicly traded, "Closing Price" means the fair market
value of such security.
"CP Registration Rights Agreement" means the
Registration Rights Agreement in the form of Exhibit H attached
to the Restructuring and Merger Agreement to be entered into at
the Closing among Sprint, TCI, Comcast and Cox.
"Derivative Security" means any and all rights,
warrants, options, convertible securities, or exchangeable
securities or indebtedness, or other rights, exercisable for or
convertible into or exchangeable for, directly or indirectly,
shares of Sprint PCS Stock, whether at the time of issuance or
upon the passage of time or the occurrence of some future event,
but does not include shares of Sprint PCS Stock. Subject to
Section 3.05(b), the term "Derivative Security" also includes any
security whose value is determined by reference to the value of
Series 1 PCS Stock but is not otherwise within the definition of
the term "Derivative Security".
"Encumbrance" means any security interest, pledge,
mortgage, lien (including, without limitation, environmental and
tax liens), charge, encumbrance, adverse claim, preferential
arrangement or restriction of any kind, including, without
limitation, any restriction on the use, voting, transfer, receipt
of income or other exercise of any attributes of ownership.
"Exchange Act" means the Securities Exchange Act of
1933, as amended.
"FT/DT Restructuring Agreement" has the meaning set
forth in the preamble.
"Non-Class A Common Stock" means the Sprint FON Common
Stock and the Sprint PCS Common Stock.
"Person" means any individual, corporation,
partnership, limited liability company, trust, unincorporated
association or other entity.
"Qualified Stock Purchaser" shall have the meaning set
forth in the Stockholders' Agreement.
"Qualified Subsidiary" shall have the meaning set
forth in the Stockholders' Agreement.
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"Registration Rights Agreement" has the meaning set
forth in the preamble.
"Sprint PCS Stock" means the Series 1 PCS Stock, the
Series 2 PCS Stock and the Series 3 PCS Stock.
"Third Party" means any Person other than a Cable
Partner, FT, DT or any Affiliate thereof.
"Top Up Amount" means as to any Class A Holder with
respect to any Transfer, the lesser of (A) an amount of Series 2
PCS Stock such that such Class A Holder would maintain
immediately after such Transfer the percentage voting power in
Sprint equal to the percentage voting power in Sprint that such
Class A Holder held as of the immediately preceding record date
for the payment of dividends by Sprint immediately preceding such
Transfer and (B) such Class A Holder's pro rata share (allocated
on the basis of the amounts determined under clause (A) for all
Class A Holders with respect to such Transfer) of 18% of the
amount of Series 2 PCS Stock proposed to be Transferred.
"Trading Day" means, with respect to any security, a
day on which the principal national securities exchange on which
such security is listed or admitted to trading, or NASDAQ, if
such security is listed or admitted to trading thereon, is open
for the transaction of business (unless such trading shall have
been suspended for the entire day) or, if such security is not
listed or admitted to trading on any national securities exchange
or NASDAQ, any day other than a Saturday, Sunday, or a day on
which banking institutions in the State of New York are
authorized or obligated by law or executive order to close.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
SECTION 2.01. Representations and Warranties. Each
party to this Agreement represents and warrants to the other
parties that, as of the date hereof:
(a) such party has full power and authority to execute
and deliver this Agreement and the execution and delivery
by such party of this Agreement has been duly authorized by
all necessary action; and
(b) this Agreement has been duly and validly executed
and delivered by such party and constitutes the binding
obligation of such party, enforceable against such party in
accordance with its terms.
SECTION 2.02. Representation and Warranties of FT. FT
represents and warrants to the other parties that compliance with
the loi no. 94-665 du 4 aout 1994 relative a l'emploi de la
langue francaise (or any other statute or regulation having a
similar effect) is not
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required in connection with the execution, delivery or
performance of this Agreement or in order for this Agreement to
be a valid and binding obligation of FT.
ARTICLE III
TOP UP RIGHT
SECTION 3.01. Top Up Right. (a) (i) In the event of
any pending or completed transfer by any Cable Partner (the
"Selling Cable Partner") of shares of Series 2 PCS Stock which
would trigger the conversion of such shares to shares of Series 1
PCS Stock pursuant to the Articles of Incorporation of Sprint
which conversion would in turn trigger an Equity Purchase Right
pursuant to the form of Amended and Restated Stockholders'
Agreement to be entered into among FT, DT and Sprint in
connection with the CP Exchange (each, a "Transfer"), the
applicable Cable Parent shall cause its Selling Cable Partner to
provide FT and DT, with a copy to Sprint, written notice of such
pending or, if prior notice is not required by the express terms
of this Agreement, completed Transfer (a "Notice of Pending or
Completed Disposition") of such shares (or of any pending or
completed disposition of any Derivative Securities) at the time
and in the manner set forth herein. Subject to the terms and
conditions set forth below, any Notice of Pending or Completed
Disposition required hereby shall be provided as promptly as
practicable in connection with any such Transfer, taking into
account the applicable method of and circumstances surrounding
the Transfer. With respect to certain such Transfers, to the
extent and subject to the terms and conditions set forth below,
each Class A Holder shall have the right (the "Top Up Right") to
purchase from the Selling Cable Partner all or a portion of the
amount of shares of Series 2 PCS Stock equal to the applicable
Top Up Amount for such Class A Holder (the "Offered Shares");
provided, however, that such right shall be exercisable with
respect to any Transfer only to the extent FT and DT have not
otherwise exercised their Equity Purchase Rights or made open
market purchases with respect to any such Transfer. In the event
that the Class A Holders are entitled to a Top Up Right pursuant
to the terms of this Article III, the Notice of Pending or
Completed Disposition shall, to the extent practicable in light
of the proposed or completed method of disposition as described
below, set forth the number of Offered Shares being offered, the
price (to the extent determined) at which the Selling Cable
Partner proposes to or has previously effected Transfer of the
shares of Series 2 PCS Stock which triggered the Top Up Right,
the method(s) of Transfer, and any other material terms of the
pending or completed Transfer.
To the extent a particular method of Transfer of
shares of Series 2 PCS Stock by a Selling Cable Partner does not
fit within a method of Transfer described in Sections 3.02
through 3.06, the parties will in good faith apply the provisions
set forth herein (the "Comparable Provisions") which would apply
to the particular method of Transfer which most closely
approximates the method of Transfer proposed by the Selling Cable
Partner in order to provide the Class A Holders with a
corresponding Top Up Right in connection with such Transfer (but
only to the extent the Comparable Provisions provide for a Top Up
Right).
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(ii) Any Top Up Right set forth in this Article III
shall be exercisable by written notice (a "Notice of Exercise")
to each Selling Cable Partner given in the manner set forth
below. Such Notice of Exercise shall state the number of Offered
Shares or portion of the applicable Top Up Amount that the Class
A Holder elects to purchase.
(iii) Upon the consummation of any purchase and sale
pursuant to this Article III, and against delivery of the
purchase price for such Offered Shares payable in immediately
available funds by wire transfer or check, the applicable Selling
Cable Partner shall deliver or cause to be delivered, and shall
transfer the ownership of the Offered Shares to be sold, free and
clear of any Encumbrance created by the Selling Cable Partner.
SECTION 3.02. Modified Dribble Out. In the event of
any Transfer of Series 2 PCS Stock by a Selling Cable Partner
identified in any Notice of Pending or Completed Disposition as a
"dribble out" Transfer, such Selling Cable Partner may, but is
not required to, offer to the Class A Holders a Top Up Right on
the terms and subject to the conditions set forth in Section
3.03(i) below, mutatis mutandis; provided, however, that the
aggregate amount of shares so identified as "dribble out" amounts
by each Selling Cable Partner in any three-month period shall not
exceed the lesser of (i) the then applicable average weekly
trading volume of the Sprint PCS Stock (as determined pursuant to
Rule 144) and (ii) 1% of the outstanding shares of Sprint PCS
Stock (the "Dribble Out Amount"). A Selling Cable Partner making
a "dribble out" Transfer shall deliver a Notice of Pending or
Completed Disposition promptly after each such Transfer (which
notice shall identify such Transfer as a "dribble out" Transfer).
If the Selling Cable Partner so elects to offer to the Class A
Holders a Top Up Right, the price at which each Class A Holder
shall have the right to purchase the Offered Shares (the "First
Offer Price") shall be equal to the price paid or to be paid by
the transferee(s) in respect of the "dribble out" Transfer(s) (or
the blended average price in the case of a series of such
Transfers).
SECTION 3.03. Cash Sales (Other than Underwritten
Public Offerings and Derivative Securities). In the event of any
Transfer by a Selling Cable Partner of shares of Series 2 PCS
Stock for cash in excess of the Dribble Out Amount, the Selling
Cable Partner will, except as set forth in Sections 3.04 and 3.05
below, at the applicable Selling Cable Partner's election, either
(i) permit the Class A Holders to exercise a Top Up Right by
Notice of Exercise given within 30 days following delivery of a
Notice of Pending or Completed Disposition at a First Offer Price
equal to the greater of (A) the blended average price paid by the
applicable Third Party purchasers and (B) the most recent Closing
Price at the time of exercise of the applicable Top Up Right or
(ii) provide the Class A Holders reasonable advance notice of
such Transfer (which, in the case of block or at the market
trades occurring within 10 Trading Days of such notice shall be
one Business Day and in the case of all other Transfers (other
than underwritten private placements) shall be 5 Business Days),
in which event, each Class A Holder shall be entitled to elect by
Notice of Exercise given prior to the earlier to occur of (I) the
close of business on the applicable transaction date and (II) the
fifth Business Day following the date of such notice, to exercise
the applicable Top Up Right in connection with such Transfer at a
per share price equal to the applicable transaction price (or the
blended average price in the case of a
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series of at-the-market Transfers). To assure participation in
transactions described in clause (i) or clause (ii) of the
previous sentence (as well as "dribble out" Transfers as to which
the applicable Selling Cable Partner offers a Top Up Right), a
Class A Holder may provide binding standby purchase commitments
to the Selling Cable Partners which will specify price ranges,
aggregate limits and term. Any such binding standby commitment is
revocable by the applicable Class A Holder on 5 Business Days'
notice (but not following the delivery of the applicable Notice
of Pending or Completed Disposition under clause (i) or (ii)
above or such a notice as to a "dribble out" Transfer as to which
the Selling Cable Partner offers a Top Up Right). No Transfers
described in this Section 3.03 shall be made during the five
Trading Day period (each, a "Blackout Period") which (x) either
precedes the record date for stockholder meetings of Sprint or
(y) terminates on the dividend payment date for Sprint capital
stock.
SECTION 3.04. Underwritten Public Offerings or Private
Placements. (a) In the event of any Transfer of Series 2 CPS
Stock by a Selling Cable Partner in an underwritten public
offering or underwritten private placement, the Top Up Right
described in this Section 3.04 will apply. The Selling Cable
Partner will provide the Class A Holders with a Notice of Pending
or Completed Disposition in respect of any such Transfer (i) at
the same time the applicable notice is provided to Sprint under
the CP Registration Rights Agreement (but in any event not less
than 10 Business Days prior to any Transfers made pursuant to any
underwritten public offering) or (ii) 20 days prior to any
dispositions made pursuant to any underwritten private placement.
In order to exercise its Top Up Right hereunder, a Class A Holder
must deliver a Notice of Exercise to the Selling Cable Partner no
later than the commencement of any "road show" (or other
corresponding marketing efforts) in connection with any public
offering or within 10 Business Days of receipt of a Notice of
Pending or Completed Disposition in connection with an
underwritten private placement. The Notice of Exercise may
provide that the portion of the Top Up Amount to be purchased by
the applicable Class A Holder is subject to change according to
the final offering price of the shares purchased by the
applicable Third Party purchasers. The First Offer Price will be
equal to such offering price, less one half of the per share
underwriting discount.
(b) The Notice of Exercise of any Class A Holder to
purchase shares of Series 2 PCS Stock pursuant to this Section
3.04 shall represent a binding commitment of such Class A Holder
(subject to the consummation of the applicable public offering or
private placement).
(c) Sprint will provide all Class A Holders with one
copy of the registration statement, and all amendments thereto,
promptly upon filing thereof with the SEC, in connection with any
underwritten public offering by a Selling Cable Partner
hereunder.
SECTION 3.05. Sales of Derivative Securities. (a)
Subject to comparable notice provisions to those set forth in
Section 3.04 hereof, the Class A Holders will have the right to
exercise a Top Up Right by acquiring an appropriate portion of
any Derivative Security proposed to be sold by any Selling Cable
Partner in a public offering or a private placement transaction
by providing a Notice of Exercise in the manner described in
Section 3.04 above, mutatis mutandis;
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provided, however, that except as set forth in the proviso in (b)
below, the Class A Holders have no Top Up Right with respect to a
Derivative Security that does not provide for settlement by
delivery of shares of PCS Stock (e.g., settlement in cash and/or
other currency only). To the extent that the issuance of any such
Derivative Security transfers voting rights with respect to the
underlying shares to the holder of such Derivative Security, a
Class A Holder shall acquire equivalent rights with respect to
the applicable portion of such underlying shares to the extent it
exercises its Top Up Right with respect to such Derivative
Security.
(b) Class A Holders shall not have any Top Up Right
upon delivery of shares of Series 2 PCS Stock to the holders of
such Derivative Securities upon settlement, exchange or
conversion of the Derivative Security; provided, however, that in
the event the applicable Selling Cable Partner sells shares of
Series 2 PCS Stock in order to obtain cash to pay a cash
settlement price with respect to Derivative Security, the
applicable Top Up Right set forth in this Article III apply.
SECTION 3.06. Non-Cash Sales. In the case of a
proposed Transfer for consideration other than cash (a "Non-Cash
Transfer"), the applicable Selling Cable Partner will, at its
election, either (i) if the transferee would be an "Associate" of
the Selling Cable Partner following such Non-Cash Transfer,
require the applicable transferee to assume the obligations of
the applicable Selling Cable Partner under this Agreement with
respect to the applicable shares of Series 2 PCS Stock and
require the transferee to execute and deliver an equivalent Top
Up Right Agreement with FT and DT, in which case such transferee
would enter into a standstill agreement with Sprint and the
applicable shares of Series 2 PCS Stock would not, pursuant to
the terms of the Articles of Incorporation of Sprint, convert
into Series 1 PCS Stock in connection with such Non-Cash Transfer
or (ii) whether or not such transferee is or would be an
"Associate," provide a Notice of Pending or Completed Disposition
in respect of such proposed Non-Cash Transfer 20 Business Days
prior to the proposed Transfer (or, if later, the date of the
applicable agreement regarding the proposed Transfer). In the
case of a Non-Cash Transfer to which a Selling Cable Partner
elects to have clause (ii) hereof apply, the Class A Holders will
have a Top Up Right at the time of such Transfer (exercisable by
delivery of a Notice of Exercise given prior to such Transfer) at
a First Offer Price equal to a cash price per share equivalent to
the value per share of the non-cash consideration paid in
connection with such Transfer as determined by independent
investment banks selected by the applicable Class A Holder and
the Selling Cable Partner (i.e., a customary 2+1 appraisal
process, with a third appraiser appointed only if the first two
appraisals differ by more than 10%). In the case of non-cash
consideration that is received by the Selling Cable Partner on a
tax-free basis, the value of such non-cash consideration for
purposes of determining the First Offer Price shall be
"grossed-up" by an amount equal to (x) the gain recognized by the
Selling Cable Partner on a per share basis divided by (y) one
minus the highest statutory federal and state income tax rate
applicable to income of the Selling Cable Partner. Each Cable
Parent shall cause its applicable Cable Partner to not consummate
Non-Cash Transfers pursuant to clause (ii) of this Section 3.06
during the Blackout Periods.
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SECTION 3.07. Inapplicable Events. Notwithstanding
anything else set forth in this Agreement, Class A Holders shall
not have a Top Up Right and the Cable Partners shall not be
required to deliver a Notice of Pending or Completed Disposition
in connection with (i) any transfer to Sprint, (ii) an automatic
conversion of shares of Series 2 PCS Stock into shares of Series
1 PCS Stock pursuant to the Articles of Incorporation of Sprint
and (iii) Transfers by a Cable Partner of Series 2 PCS Stock to
an Affiliate of a Cable Partner; provided, however, that any such
Affiliate transferee agrees in writing to be bound by the terms
of this Agreement and shall thereafter be deemed a "Cable
Partner" of the applicable Cable Parent hereunder.
ARTICLE IV
TERMINATION
SECTION 4.01. Termination. The obligations of the
Cable Parents and the Cable Partners hereunder shall terminate
(i) at such time as the "equity purchase rights" of the Class A
Holders contained in Article V of the form of Amended and
Restated Stockholders' Agreement to be entered into in connection
with the CP Exchange would terminate, (ii) as to DT or FT,
respectively, upon any material breach of this Agreement by DT or
FT, as the case maybe, including any determination that the
representation and warranty of FT in Section 2.02 is untrue in
any material respect, or (iii), as to any Cable Parent, at such
time as such Cable Parent and its subsidiaries no longer hold any
shares of Series 2 PCS Stock.
ARTICLE V
ADDITIONAL AGREEMENTS
SECTION 5.01. Top-Up Obligation. FT and DT agree to
purchase shares of Series 3 PCS Stock in connection with the CP
Exchange and the IPO, in the manner and amounts, and subject to
the conditions specified in the FT/DT Restructuring Agreement.
SECTION 5.02. Registration Rights Agreement. FT and DT
agree to enter into the Registration Rights Agreement
simultaneously with the entering into of this Agreement.
SECTION 5.03. Agreement to Vote in Favor of CP
Exchange and Recapitalization. FT and DT agree to vote their
shares of Sprint Common Stock in favor of the CP Exchange and the
Recapitalization (including the Initial Charter Amendment and the
Subsequent Charter Amendment) and the other matters related
thereto presented for a vote of stockholders in connection
therewith.
SECTION 5.04. Other Agreements Have No Effect. FT and
DT agree that no amendment, modification or alteration of any
provision of the agreements entered into in connection herewith
or to be entered into in connection with the Master Restructuring
and Investment Agreement among FT, DT and Sprint dated as of May
26, 1998 (including the form
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of Amended and Restated Stockholders' Agreement) shall have any
effect on the rights and obligations of the parties hereunder or
otherwise affect the meaning of any term or provision hereof.
ARTICLE VI
MISCELLANEOUS
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SECTION 6.01. Notices. All notices and other
communications required or permitted by this Agreement shall be
made in writing in the English language and any such notice or
communication shall be deemed delivered when delivered in person,
transmitted by telex or telecopier, or seven days after it has
been sent by air mail, as follows:
FT: France Telecom S.A.
0 xxxxx x'Xxxxxxx
00000 Xxxxx Cedex 15
France
Attn: Group Executive Vice President
Resources
Tel: (00 0) 00 00 00 00
Fax: (00 0) 00 00 00 00
with a copy to: France Telecom S.A.
0 xxxxx x'Xxxxxxx
00000 Xxxxx Cedex 15
France
Attn: General Counsel
Tel: (00 0) 00 00 00 00
Fax: (00 0) 00 00 00 00
with a copy to: Shearman & Sterling
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
X.X.X.
Attn: Xxxxxx X. Xxxx, Xx., Esq.
Tel: (000) 000-0000
Fax: (000) 000-0000
10
DT: Deutsche Telekom X.X.
Xxxxxxxxx-Xxxxxx-Xxxxx 000
X-00000 Xxxx
Xxxxxxx
Tel: 00-000-000-0000
Fax: 00-000-000-0000
Attn: Chief Executive Officer
with a copy to: Cleary, Gottlieb, Xxxxx & Xxxxxxxx
Xxx Xxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
X.X.X.
Attn: Xxxxxx X. Xxxxx, Esq.
Tel: (000) 000-0000
Fax: (000) 000-0000
Notice to FT or DT shall be deemed to be notice to its
Qualified Subsidiaries and Qualified Stock Purchasers.
TCI: Tele-Communications, Inc.
0000 XXX Xxxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Telecopy: (000) 000-0000
Attention: President
with copies to: Tele-Communications, Inc.
0000 XXX Xxxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Telecopy: (000) 000-0000
Attention: General Counsel
Xxxxx & Xxxxx, L.L.P.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Telecopy: (000) 000-0000
Attention: Xxxx X. Xxxxxx
Xxx: Xxx Communications, Inc.
0000 Xxxx Xxxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000-0000
Telecopy: (000) 000-0000
Attention: Xxxxxx Xxxxxxx
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with a copy to: Dow, Xxxxxx & Xxxxxxxxx
0000 Xxx Xxxxxxxxx Xxxxxx, X.X.
Xxxxx 000
Xxxxxxxxxx, X.X. 00000-0000
Telecopy: (000) 000-0000
Attention: Xxxxx X. Wild
Comcast: Comcast Corporation
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000-0000
Telecopy: (000) 000-0000
Attention: General Counsel
with a copy to: Xxxxx Xxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxxxx X. Xxxxxx
The parties to this Agreement shall promptly notify each other in
the manner provided in this Section 6.01 of any change in their
respective addresses. A notice of change of address shall not be
deemed to have been given until received by the addressee.
Communications by telex or telecopies also shall be sent
concurrently by mail, but shall in any event be effective as
stated above.
SECTION 6.02. Waiver Amendment, etc. This Agreement
may not be amended or supplemented, and no waivers of or consents
to departures from the provisions hereof shall be effective,
unless set forth in a writing signed by, and delivered to, all
the parties hereto. No failure or delay or any party in
exercising any power or right under this Agreement will operate
as a waiver thereof, nor will any single or partial exercise of
any right or power, or any abandonment or discontinuance of steps
to enforce such right or power, preclude any other or further
exercise thereof or the exercise of any other right or power.
SECTION 6.03. Binding Agreement; Assignment; No Third
Party Beneficiaries. This Agreement will be binding upon and
inure to the benefit of the parties hereto and their successors
and permitted assigns. Except as set forth herein and by
operation of law, no party to this Agreement may assign or
delegate all or any portion of its rights, obligations or
liabilities under this Agreement without the prior written
consent of each other party to this Agreement. Nothing expressed
or implied herein is intended or will be construed to confer upon
or to give to any third party any rights or remedies by virtue
hereof.
SECTION 6.04. GOVERNING LAW; DISPUTE RESOLUTION;
EQUITABLE RELIEF. (a) THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN
12
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK (REGARDLESS OF
THE LAWS THAT MIGHT OTHERWISE GOVERN UNDER APPLICABLE PRINCIPLES
OF CONFLICTS OF LAW).
(b) EACH PARTY IRREVOCABLY CONSENTS AND AGREES THAT
ANY LEGAL ACTION, SUIT OR PROCEEDING BY IT AGAINST ANY OF THE
OTHER PARTIES WITH RESPECT TO ITS RIGHTS, OBLIGATIONS OR
LIABILITIES UNDER OR ARISING OUT OF OR IN CONNECTION WITH THIS
AGREEMENT SHALL BE BROUGHT BY SUCH PARTY ONLY IN THE UNITED
STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK OR,
IN THE EVENT (BUT ONLY IN THE EVENT) SUCH COURT DOES NOT HAVE
SUBJECT MATTER JURISDICTION OVER SUCH ACTION, SUIT OR PROCEEDING,
IN THE COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK CITY,
AND EACH PARTY HEREBY IRREVOCABLY ACCEPTS AND SUBMITS TO THE
JURISDICTION OF EACH OF THE AFORESAID COURTS IN PERSONAM, WITH
RESPECT TO ANY SUCH ACTION, SUIT OR PROCEEDING (INCLUDING,
WITHOUT LIMITATION, CLAIMS FOR INTERIM RELIEF, COUNTERCLAIMS,
ACTIONS WITH MULTIPLE DEFENDANTS AND ACTIONS IN WHICH SUCH PARTY
IS IMPLIED). EACH PARTY HERETO IRREVOCABLY AND UNCONDITIONALLY
WAIVES ANY RIGHT THAT IT MAY HAVE TO A JURY TRIAL IN ANY LEGAL
ACTION, SUIT OR PROCEEDING WITH RESPECT TO, OR ARISING OUT OF OR
IN CONNECTION WITH THIS AGREEMENT.
(c) EACH PARTY HERETO HEREBY IRREVOCABLY DESIGNATES CT
CORPORATION SYSTEM (IN SUCH CAPACITY, THE "PROCESS AGENT"), WITH
XX XXXXXX XX 0000 XXXXXXXX, XXX XXXX, XXX XXXX 00000, AS ITS
DESIGNEE, APPOINTEE AND AGENT TO RECEIVE, FOR AND ON ITS BEHALF
SERVICE OF PROCESS IN SUCH JURISDICTION IN ANY LEGAL ACTION OR
PROCEEDINGS WITH RESPECT TO THIS AGREEMENT, AND SUCH SERVICE
SHALL BE DEEMED COMPLETE UPON DELIVERY THEREOF TO THE PROCESS
AGENT, PROVIDED THAT IN THE CASE OF ANY SUCH SERVICE UPON THE
PROCESS AGENT, THE PARTY EFFECTING SUCH SERVICE SHALL ALSO
DELIVER TO A COPY THEREOF TO SUCH PARTY IN THE MANNER PROVIDED IN
SECTION 6.01. EACH PARTY SHALL TAKE ALL SUCH ACTION AS MAY BE
NECESSARY TO CONTINUE SAID APPOINTMENT IN FULL FORCE AND EFFECT
OR TO APPOINT ANOTHER AGENT SO THAT SUCH PARTY WILL AT ALL TIMES
HAVE AN AGENT FOR SERVICE OR PROCESS FOR THE ABOVE PURPOSES IN
NEW YORK, NEW YORK. IN THE EVENT OF THE TRANSFER OF ALL OR
SUBSTANTIALLY ALL OF THE ASSETS AND BUSINESS OF THE PROCESS AGENT
TO ANY OTHER CORPORATION BY CONSOLIDATION, MERGER, SALE OR ASSETS
OR OTHERWISE, SUCH OTHER CORPORATION SHALL BE SUBSTITUTED
HEREUNDER FOR THE PROCESS AGENT WITH THE SAME EFFECT AS IF NAMED
HEREIN IN PLACE OF CT CORPORATION SYSTEM. EACH PARTY FURTHER
IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF THE
AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE
13
MAILING OF COPIES THEREOF BY REGISTERED AIRMAIL, POSTAGE PREPAID,
TO SUCH PARTY AT ITS ADDRESS SET FORTH IN THIS AGREEMENT, SUCH
SERVICE OF PROCESS TO BE EFFECTIVE UPON ACKNOWLEDGMENT OF RECEIPT
OF SUCH REGISTERED MAIL. NOTHING HEREIN SHALL AFFECT THE RIGHT OF
ANY PARTY TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY
APPLICABLE LAW. EACH OF FT AND DT EXPRESSLY ACKNOWLEDGES THAT THE
FOREGOING WAIVER IS INTENDED TO BE IRREVOCABLE UNDER THE LAWS OF
THE STATE OF NEW YORK AND OF THE UNITED STATES OF AMERICA.
(d) EACH PARTY HERETO AGREES THAT MONEY DAMAGES WOULD
NOT BE A SUFFICIENT REMEDY FOR THE OTHER PARTIES HERETO FOR ANY
BREACH OF THIS AGREEMENT BY IT, AND THAT IN ADDITION TO ALL OTHER
REMEDIES THE OTHER PARTIES HERETO MAY HAVE, THEY SHALL BE
ENTITLED TO SPECIFIC PERFORMANCE AND TO INJUNCTIVE OR OTHER
EQUITABLE RELIEF AS A REMEDY FOR ANY SUCH BREACH. EACH PARTY
HERETO AGREES NOT TO OPPOSE THE GRANTING OF SUCH RELIEF IN THE
EVENT A COURT DETERMINES THAT SUCH A BREACH HAS OCCURRED, AND TO
WAIVE ANY REQUIREMENT FOR THE SECURING OR POSTING OF ANY BOND IN
CONNECTION WITH SUCH REMEDY.
SECTION 6.05. Severability. The invalidity or
unenforceability of any provision hereof in any jurisdiction will
not effect the validity or enforceability of the remainder hereof
in that jurisdiction or the validity or enforceability of this
Agreement, including that provision, in any other jurisdiction.
To the extent permitted by Law, each party hereto waives any
provision of Law that renders any provision hereof prohibited or
unenforceable in any respect. If any provision of this Agreement
is held to be unenforceable for any reason, it shall be adjusted
rather than voided, if possible, in order to achieve the intent
of the parties to this Agreement to the extent possible.
SECTION 6.06. Headings; Counterparts. Headings in this
Agreement are for convenience of reference only and will not
affect the construction of any provisions hereof. This Agreement
may be executed in one or more counterparts, each of which when
so executed and delivered will be deemed an original but all of
which will constitute one and the same Agreement.
SECTION 6.07. Entire Agreement. This Agreement
embodies the entire agreement and understanding of the parties
hereto in respect of the subject matter contained herein,
provided that this provision shall not abrogate any other written
agreement between the parties hereto, executed simultaneously
with this Agreement. This Agreement supersedes all prior
agreements and understandings between the parties with respect to
such subject matter, expect as so provided in the preceding
sentence.
SECTION 6.08. Waiver of Immunity. Each of FT and DT
agrees that, to the extent that it or any of its property is or
becomes entitled at any time to any immunity on the grounds of
sovereignty or otherwise based upon its status as an agency or
instrumentality of government from any legal action, suit or
proceeding or from set off or counterclaim relating to this
Agreement from the jurisdiction of any competent court described
in Section 6.04, from service of process, from attachment prior
to judgment, from attachment in aid of execution of a
14
judgment, from execution pursuant to a judgment or an arbitral
award or from any other legal process in any jurisdiction, if,
for itself and its property expressly, irrevocably and
unconditionally waives, and agrees not to plead or claim, any
such immunity with respect to such matters arising with respect
to this Agreement or the subject matter hereof or thereof
(including any obligation for the payment of money). Each of FT
and DT agrees that the waiver in this provision is irrevocable
and is not subject to withdrawal in any jurisdiction or under any
statute, including the Foreign Sovereign Immunities Act, 28
U.S.C. ss. 1602 et seq. The foregoing waiver shall constitute a
present waiver of immunity at any time any action is initiated
against FT or DT with respect to this Agreement.
15
IN WITNESS WHEREOF, the parties hereto have duly
executed this TOP UP RIGHT Agreement as of the day and
year first above written.
FRANCE TELECOM S.A.
_____________________________
By:
Title:
DEUTSCHE TELEKOM AG
_____________________________
By:
Title:
TELE-COMMUNICATIONS, INC.
_____________________________
By:
Title:
COMCAST CORPORATION
_____________________________
By:
Title:
XXX COMMUNICATIONS, INC.
_____________________________
By:
Title:
