STRATEGIC INVESTOR AGREEMENT
Exhibit 99.4
THIS STRATEGIC INVESTOR AGREEMENT (this “Agreement”) dated as of November 28, 2008 by and
among (i) Comcast Wireless Investment I, Inc., a Delaware corporation (“Comcast I”), Comcast
Wireless Investment II, Inc., a Delaware corporation (“Comcast II”), Comcast Wireless Investment
III, Inc., a Delaware corporation (“Comcast III”), Comcast Wireless Investment IV, Inc., a Delaware
corporation (“Comcast IV”), Comcast Wireless Investment V, Inc., a Delaware corporation (“Comcast
V” and together with Comcast I, Comcast II, Comcast III and Comcast IV, “Comcast”); (ii) TWC
Wireless Holdings I LLC, a Delaware limited liability company (“TWC I”), TWC Wireless Holdings II
LLC, a Delaware limited liability company (“TWC II”), TWC Wireless Holdings III LLC, a Delaware
limited liability company (“TWC III” and together with TWC I and TWC II, “TWC”); (iii) BHN Spectrum
Investments, LLC, a Delaware limited liability company (“BHN”); (iv) Google Inc., a Delaware
corporation (“Google”) (each of Comcast, TWC, BHN and Google, together with its Permitted
Transferees and Permitted Designees (each as hereinafter defined), an “Investor”, and collectively,
the “Investors”); (v) solely for purposes of Sections 7 through 19, Comcast Corporation, a
Pennsylvania corporation (“Comcast Parent”); and (vi) solely for purposes of Sections 8 through 19,
Time Warner Cable Inc., a Delaware corporation (“TWC Parent”), and Bright House Networks, LLC, a
Delaware limited liability company (“BHN Parent”).
W I T N E S S E T H :
WHEREAS, Clearwire Sub LLC, a Delaware limited liability company and successor by merger to
Clearwire Corporation (“Clearwire Sub”), Clearwire Corporation, a newly formed Delaware corporation
and indirect parent of Clearwire Sub (“NewCo”), Clearwire Communications LLC, a Delaware limited
liability company (“NewCo LLC”), Sprint Nextel Corporation, a Kansas corporation, Intel
Corporation, a Delaware corporation, Comcast Parent, TWC Parent, BHN Parent and Google are parties
to that certain Transaction Agreement dated as of May 7, 2008 (as amended from time to time, the
“Transaction Agreement”);
WHEREAS, pursuant to the Transaction Agreement, on the date hereof, the following documents
and agreements (inter alia) have been executed and delivered by the parties thereto and have become
effective: (i) an Equityholders’ Agreement (as amended from time to time, the “Equityholders’
Agreement”); (ii) a Registration Rights Agreement (as amended from time to time, the “Registration
Rights Agreement”); (iii) an Amended and Restated Operating Agreement of NewCo LLC (as amended from
time to time, the “Operating Agreement”); (iv) a Restated Certificate of Incorporation of NewCo (as
amended from time to time, the “Charter”); and (v) Bylaws of NewCo (as amended from time to time,
the “Bylaws”; and, together with the Transaction Agreement, the Equityholders’ Agreement, the
Registration Rights Agreement, the Operating Agreement and the Charter, collectively, the
“Transaction Documents”); and
WHEREAS, the parties hereto desire to enter into this Agreement in order to further define
their respective rights and obligations under the Transaction Documents and in connection with the
transactions contemplated thereby.
NOW, THEREFORE, in consideration of the mutual agreements contained herein, and for other good
and valuable consideration (the receipt and sufficiency of which is hereby acknowledged), the
parties agree as follows:
1. Defined Terms. Capitalized terms used but not defined herein shall have the meanings set
forth in the Equityholders’ Agreement or the Operating Agreement; provided that any term defined in
both the Equityholders’ Agreement and the Operating Agreement shall have the meaning set forth in
the Equityholders’ Agreement. In addition, for purposes of this Agreement, the following terms
shall have the following meanings:
“Approving Investors” means (i) the Primary Investors and (ii) if Comcast is not a
Primary Investor, Comcast for so long as it has a Percentage Interest that is greater than
or equal to at least one of the remaining Primary Investors, if any.
“Original Shares” means the number of shares of Common Stock acquired by an Investor
on the Effective Date in connection with the transactions contemplated by the Transaction
Agreement, as adjusted pursuant to Section 4.3 of the Transaction Agreement and for
Recapitalization Events.
“Permitted Transferee” shall have the meaning set forth in the Equityholders’
Agreement; provided that for purposes of this Agreement clause (ii) of such definition
shall be disregarded.
“Primary Investor” means each of Comcast, TWC and Google; provided that if, at any
time after the Effective Date, such Investor ceases to hold at least 50% of its Original
Shares, such Investor shall no longer be a Primary Investor.
“Relative Percentage Interest” means, with respect to an Investor, the Percentage
Interest of such Investor (expressed as an absolute number) divided by the sum of the
Percentage Interests (expressed as an absolute number) of all of the Investors.
“Relative Primary Percentage Interest” means, with respect to any Primary Investor,
the Percentage Interest of such Primary Investor (expressed as an absolute number) divided
by the sum of the Percentage Interests (expressed as an absolute number) of all of the
Primary Investors.
“Requisite Approval” means the approval of (i) for so long as Comcast is a Primary
Investor and has the highest Relative Primary
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Percentage Interest, Comcast plus one other Primary Investor, (ii) if Comcast is no
longer a Primary Investor or no longer has the highest Relative Primary Percentage
Interest, Approving Investors having Percentage Interests representing, in the aggregate,
greater than 50% of the Percentage Interests of all Approving Investors and (iii) if no
Investor is a Primary Investor, Investors having Percentage Interests representing, in the
aggregate, greater than 50% of the Percentage Interests of all Investors.
“Strategic Investor Representative” means the Initial Strategic Investor
Representative or any successor Strategic Investor Representative appointed pursuant to
Section 7 hereof.
2. Strategic Investor Designees. (a) Subject to the remaining provisions of this Section 2,
for so long as the Strategic Investor Group has the right to designate two Strategic Investor
Designees to the Board of Directors of the Company pursuant to the terms of the Equityholders’
Agreement, (i) for so long as Comcast is a Primary Investor and has the highest Relative Primary
Percentage Interest, (x) one Strategic Investor Designee shall be designated by Comcast and (y) the
right to designate the second Strategic Investor Designee shall rotate between Google and TWC every
two years, the first such rotation (which shall end immediately prior to the second annual meeting
of stockholders of the Company following the Effective Date) being allocated to TWC and (ii) if
Comcast is no longer a Primary Investor or no longer has the highest Relative Primary Percentage
Interest, one Strategic Investor Designee shall be designated, as applicable, by each of the two
Approving Investors with the highest Relative Percentage Interests as among all Approving Investors
(or if there is only one Approving Investor, by such Approving Investor). The initial Strategic
Investor Designees shall be:
For Comcast: Xxxxxx X. Xxxxxx
For TWC: TWC will have until February 27, 2009 to identify and nominate the remaining
initial Strategic Investor Designee (the “Initial TWC Designee”) and will use its
Reasonable Best Efforts to identify and nominate such person prior to January 14, 2009.
(b) For so long as the Strategic Investor Group has the right to designate a Strategic
Investor Observer under Section 2.1(a)(iv)(D) of the Equityholders’ Agreement, the Strategic
Investor Observer shall be designated by the Approving Investor who has not designated one of the
Strategic Investor Designees then serving on the Board or, if there is more than one Approving
Investor who has not designated one of the Strategic Investor Designees then serving on the Board,
by such Approving Investor with the then-highest Relative Percentage Interest as among such
Approving Investors (or, if there is only one remaining Approving Investor, by such Approving
Investor). In the event that all Approving Investors have designated a Strategic Investor Designee
then serving on the Board, the Strategic Investor Observer shall be designated by Approving
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Investors having Percentage Interests representing, in the aggregate, greater than 50% of the
Percentage Interests of all Approving Investors.
(c) If the Strategic Investor Group loses the right to designate one or more Strategic
Investor Designees pursuant to Section 2.1 or Section 3.8 of the Equityholders’ Agreement, (i) for
so long as Comcast is a Primary Investor and has the highest Relative Primary Percentage Interest,
each of the other Primary Investors shall lose the right to designate a Strategic Investor Designee
pursuant to Section 2(a)(i) above and (ii) if Comcast is no longer a
Primary Investor or no longer has the highest Relative Primary Percentage Interest, the Approving
Investor with the then-lowest Percentage Interest of all Approving Investors then having the right
to designate a Strategic Investor Designee shall lose the right to designate a Strategic Investor
Designee pursuant to Section 2(a)(ii) above.
(d) If the Strategic Investor Group gains the right to designate additional Strategic Investor
Designees (“Undesignated Directors”) pursuant to Section 2.1 or Section 3.8 of the Equityholders’
Agreement, then the Undesignated Director(s) shall be designated in the following manner:
(A) first, any Primary Investor who holds at least 75% of its
Original Shares and has previously lost the right (either individually
or jointly) to designate a Director shall have the right to designate
one of the Undesignated Directors at such time; provided that if, at
such time, there is only one Undesignated Director and more than one
such Primary Investor, such Primary Investor with the then-highest
Relative Primary Percentage Interest as among such Primary Investors
shall designate such Undesignated Director;
(B) second, the Approving Investor who is currently designating
the Strategic Investor Observer shall have the right to designate one
of the remaining Undesignated Directors, if any; and
(C) third, each Approving Investor shall have the right to
designate a number of the remaining Undesignated Directors, if any, at
such time equal to (x) the Percentage Interest of such Approving
Investor relative to the Percentage Interests of all Approving
Investors multiplied by (y) the number of such remaining Undesignated
Directors, rounded to the nearest whole number; provided that if the
foregoing calculation results in the Approving Investors being
entitled, in the aggregate, to designate more Undesignated Directors
than there are available seats, then the Approving Investor(s) with
the
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then-highest Relative Percentage Interest(s) shall have priority
with respect to the designation of the remaining Undesignated
Directors.
By way of example, and assuming (A) and (B) are not applicable, if Comcast,
Google and TWC have Relative Primary Percentage Interests of 40%, 33% and 27%,
respectively, and there are two Undesignated Directors, (i) Comcast shall be
entitled to designate one Undesignated Director (0.40 x 2 = 0.80, rounded up
to 1), (ii) Google shall have the right to designate one Undesignated Director
(0.33 x 2 = 0.66, rounded up to 1) and (iii) TWC shall have the right to
designate one Undesignated Director (0.27 x 2 = 0.54, rounded up to 1; however,
since there are only two Undesignated Directors, Comcast and Google have
priority and TWC will not have the right to designate an Undesignated Director).
(e) For purposes of this Section 2, if (i) two or more Investors have equal Percentage
Interests, and (ii) but for the fact that such Investors have equal Percentage Interests, each such
Investor would have the right to designate a Strategic Investor Designee, Strategic Investor
Observer or an Undesignated Director hereunder, then such right shall rotate among such Investors
on an annual basis, with the first such rotation being determined by coin flip.
(f) For the avoidance of doubt, any Investor that nominates any Strategic Investor Designee or
Strategic Investor Observer shall have the right to direct the Strategic Investor Representative to
remove and replace such Strategic Investor Designee or Strategic Investor Observer as set forth in
Section 2.1(g) of the Equityholders’ Agreement.
(g) Each Investor acknowledges that for so long as an Investor is entitled to appoint a
Strategic Investor Designee pursuant to this Section 2, if such Investor is a Subject Equityholder,
such Investor shall have the right to direct the Strategic Investor Representative to exercise any
rights available to such Investor as a Subject Equityholder under Section 2.16 of the
Equityholders’ Agreement.
3. Committees. (a) For so long as the Strategic Investor Group has the right to designate a
member of the Company’s Nominating and Compensation Committees pursuant to Sections 2.3(b) and
2.3(c), respectively, of the Equityholders’ Agreement, or of any other standing committee of the
Board, the Primary Investor with the then-highest Relative Primary Percentage Interest shall
determine which of the Strategic Investor Designees shall sit on such committees (it being agreed
and understood that such Primary Investor may not designate one of such Strategic Investor
Designees to sit on both the Nominating and Compensation Committees unless there is only one
Strategic Investor Designee). For the avoidance of doubt, upon nomination of the Initial TWC
Designee, the
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Primary Investor with the then-highest Relative Primary Percentage Interest shall promptly
remove or cause the removal of the Strategic Investor Designee from either the Nominating Committee
or the Compensation Committee, as determined in its discretion, and the other parties shall cause
the Strategic Investor Representative to designate the Initial TWC Designee to serve on such
committee.
(b) In the event that the Board forms any special committee pursuant to Section 2.3(e) of the
Equityholders’ Agreement, and the Strategic Investor Group has the right to designate a member of
such special committee, the Primary Investor with the then-highest Relative Primary Percentage
Interest excluding those Primary Investors whose participation on such special committee has been
determined by the Independent Directors to be inappropriate pursuant to Section 2.3(e) of the
Equityholders’ Agreement) shall have the right to designate such special committee member.
(c) For purposes of this Section 3, if (i) two or more Investors have equal Percentage
Interests, and (ii) but for the fact that such Investors have equal Percentage Interests, each such
Investor would have the right to designate committee members hereunder, then such right shall
rotate among such Investors on an annual basis, with the first such rotation being determined by
coin flip.
4. Stockholder/Member Approval. Whenever any matter arising under any Transaction Document
(other than the Transaction Agreement or as otherwise specified herein) requires the approval or
consent of, or any action taken by, the Strategic Investor Group or the Strategic Investor
Representative on behalf of the Strategic Investor Group, such matter shall be approved, consented
to or taken by Requisite Approval; provided that (A) if the approval of an amendment to or waiver
of any provision of any Transaction Document (other than the Transaction Agreement or as otherwise
specified herein) would adversely and disproportionately impact any one Investor (as compared to
the other Investors), in addition to the Requisite Approval, such amendment or waiver shall also
require the approval of such disproportionately-impacted Investor, (B) any consent or approval
pursuant to Section 2.7(a)(i) of the Equityholders’ Agreement involving an amendment to Section 5.1
of the Charter shall require the consent, approval or determination, as applicable, of each of
Comcast and TWC but not Google, and (C) the unanimous consent of each of Comcast, TWC and Google
shall be required to select the Investor Independent Designee. For the avoidance of doubt, for
purposes of Sections 2.7(c) and 3.6 of the Equityholders’ Agreement, each Investor agrees that the
consummation of any transaction in which Microsoft Corporation is a Restricted Entity would
adversely and disproportionately impact Google (as compared to the other Investors) only for so
long as Google is a Primary Investor and therefore shall require, in addition to the Requisite
Approval, the approval of Google only for so long as Google is a Primary Investor. If the
Requisite Approval is obtained, each Investor or the Strategic Investor Representative, as
applicable, shall be obligated to vote for or consent to, or take the requisite action with respect
to, such matter under the applicable Transaction Document. If the Requisite Approval is not
obtained, none of the Investors or the
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Strategic Investor Representative shall vote for or consent to, or take any other action in
further of, such matter; provided that, notwithstanding anything to the contrary contained herein,
the Approving Investor with the then-highest Relative Percentage Interest as among all Approving
Investors may deliver a notice of objection pursuant to Section 2.7(e) of the Equityholders’
Agreement without the consent or approval of any other Investor following good faith consultation
and negotiation among the Investors with respect to the subject matter thereof. For the avoidance
of doubt, this Section 4 shall not apply to any matters requiring the approval, consent or waiver
of, or any action by, the Investors under the Transaction Agreement.
5. Right of First Offer. (a) Prior to sending any Interest Notice pursuant to Section 3.3 of
the Equityholders’ Agreement or Section 8.8 of the Operating Agreement with respect to all or any
portion of its Equity Securities or Units, respectively, an Investor (an “Offering Investor”) shall
be obligated to offer such Equity Securities and/or Units (the “Offered Securities”) to each other
Investor pursuant to this Section 5(a). Such offer shall be made in
accordance with the procedures set forth in Section 3.3 of the Equityholders’ Agreement or Section
8.8 of the Operating Agreement, as applicable, in each case, mutatis mutandis; provided that (i)
each Investor shall have 15 days (or five Business Days in respect of a proposed Open Market
Transfer) to respond to any written offer delivered pursuant to this Section 5(a) and (ii) unless the Investors elect to purchase all of the Offered Securities,
the closing of any purchase by the Investors of Offered Securities shall be contingent upon, and
shall occur at the same time as, the closing of the purchase of the remaining Offered Securities by
the Non-Selling Equityholders or Non-Selling Members pursuant to Section 3.3 of the Equityholders’
Agreement and/or Section 8.8 of the Operating Agreement, as applicable.
(b) If the other Investors fail to purchase all of the Offered Securities pursuant to
Section 5(a) above, the Offering Investor may send an Interest Notice
with respect to the remaining Offered Securities to the Non-Selling Equityholders or the
Non-Selling Members, as applicable, pursuant to Section 3.3 of the Equityholders’ Agreement or
Section 8.8 of the Operating Agreement. The failure of any Non-Selling Equityholder or Non-Selling
Member, as applicable, to exercise its right of first offer pursuant to Section 5(a) above shall not constitute a waiver of its rights under Section 3.3 of the
Equityholders’ Agreement or Section 8.8 of the Operating Agreement.
6. Transfers; Additional Purchases. (a) Without limiting the generality of the obligations of
the Investors under Section 7(d), in the event that any action is required by the Strategic Investor
Representative under (x) Sections 3.3 (Right of First Offer), 3.4 (Tag-Along Rights), 3.5
(Preemptive Rights) or 3.8 (Joint Purchase Rights) of the Equityholders’ Agreement or (y)
Sections 7.10 (Preemptive Rights), 8.8 (Right of First Offer) or 8.9 (Tag-Along Rights) under the
Operating Agreement, each Investor will provide the Strategic Investor Representative with any
elections, notices and other documents or information
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required in order to exercise the rights and fulfill the obligations of the Strategic Investor
Group and the Strategic Investor Representative thereunder at least three Business Days prior to
the date upon which the Strategic Investor Representative is required to deliver any elections,
notices and other documents or information related to such Transfer under the Equityholders’
Agreement and/or the Operating Agreement. Any election to purchase Equity Securities or Units
delivered by an Investor pursuant to this Section 6(a) shall constitute a binding and irrevocable
election by such Investor to purchase the Equity Securities or Units specified therein.
(b) In the event that the Strategic Investor Group is entitled to purchase (x) Equity
Securities pursuant to Sections 3.3, 3.4, 3.5 or 3.8 of the Equityholders’ Agreement or (y) Units
pursuant to Sections 7.10, 8.8 or 8.9 of the Operating Agreement, each Investor shall be entitled
to purchase a number of Equity Securities or Units, as applicable, equal to the number of Equity
Securities or Units that the Strategic Investor Group is entitled to purchase as a whole multiplied
by the Relative Percentage Interest of such Investor. If one or more Investors elects not to or is
deemed to have waived the right to participate in a purchase, the number of Equity Securities or
Units otherwise available to such non-purchasing Investor may be purchased by the remaining
Investors in accordance with the Relative Percentage Interests of such remaining Investors.
7. Strategic Investor Representative.
(a) By its execution and delivery of this Agreement, each Investor hereby irrevocably appoints
the Strategic Investor Representative to take all actions that are designated by the Equityholders’
Agreement or other Transaction Documents to be performed by the Strategic Investor Group, as a
group, and to do or refrain from doing all further acts and things, and to execute all documents,
as the Strategic Investor Representative deems necessary or appropriate in furtherance of any of
the foregoing, including:
(i) to receive and deliver all notices, communications and deliveries on
behalf of the Strategic Investor Group under the Transaction Documents;
(ii) to provide consent, on behalf of the Strategic Investor Group, for any
matter that requires the consent of the Strategic Investor Group under the
Transaction Documents; and
(iii) to exercise any right or election on behalf of the Strategic Investor
Group under the Transaction Documents.
Comcast Parent (the “Initial Strategic Investor Representative”) is hereby appointed as the
Strategic Investor Representative unless and until the Initial Strategic Investor Representative is
removed or resigns pursuant to this Section 7. The Strategic Investor Representative hereby
accepts such appointment and
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agrees to fulfill its obligations hereunder and under the Transaction Documents in accordance with
the terms hereof and thereof and, without limiting the generality of the foregoing, will take (or
refrain from taking) actions on behalf of the Strategic Investor Group in a manner so as to give
effect to the provisions of this Agreement.
(b) The Primary Investors may remove and replace the Strategic Investor Representative at any
time, subject to receipt of the Requisite Approval; provided, however that the consent of the
Strategic Investor Representative if such Person is a Primary Investor shall not be required to
remove itself as the Strategic Investor Representative if the other Primary Investors unanimously
and reasonably determine in good faith, after written notice thereof and a reasonable opportunity
to cure, that the Strategic Investor Representative has committed more than one material breach of
its obligations under this Agreement or the Transaction Documents.
(c) The Strategic Investor Representative may resign at any time and the Initial Strategic
Investor Representative shall resign if Comcast ceases to be an Approving Investor. Upon any
resignation of the Strategic Investor Representative, the Approving Investors will appoint a new
Strategic Investor Representative, subject to receipt of the Requisite Approval; provided that any
Strategic Investor Representative shall agree to be bound (unless already bound hereby) by the
provisions of this Section 7 and Section 8 hereof.
(d) Each Investor will deliver any elections, notices and other information or documents that
are required to be delivered under the Transaction Documents by the Strategic Investor
Representative on behalf of such Investor or the Strategic Investor Group (x), except as otherwise
provided herein, at least two Business Days prior to the date upon which the Strategic Investor
Representative is required to deliver such elections, notices or other documents or information
under the applicable Transaction Agreement or (y) if no date certain is specified for such
delivery, as promptly as practicable. If any Investor fails to comply with such delivery
obligations, such Investor shall be deemed to have waived its rights under the applicable Section
of the applicable Transaction Document (but only with respect to such specific instance).
(e) The Strategic Investor Representative will promptly forward to each Investor all
communications and information (including financial information) that it receives under the
Transaction Documents. The Strategic Investor Representative will provide to each Investor a copy
of any written communication, notice or other information delivered by the Strategic Investor
Representative to the Company or any other party pursuant to any of the Transaction Documents. The
provisions of Section 4.6 of the Equityholders’ Agreement are hereby incorporated herein by
reference.
8. Exculpation; Indemnification.
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(a) The Strategic Investor Representative will not be responsible to any Investor for
any liability, loss, cost, damage or expense (including attorneys’ fees) (“Losses”) any
Investor may suffer, and shall have no liability to any Investor, by reason of the
performance by the Strategic Investor Representative of its duties under any of the
Transaction Documents, other than any Losses arising from willful misconduct, bad faith or
gross negligence of the Strategic Investor Representative in the performance of such
duties.
(b) Each of Comcast Parent, TWC Parent, BHN Parent and Google, severally on the basis
of the Relative Percentage Interests of Comcast, TWC, BHN and Google, respectively, but
not jointly, hereby agree to indemnify and hold the Strategic Investor Representative and
its Affiliates harmless from and against any and all Losses reasonably incurred or
suffered by the Strategic Investor Representative or its Affiliates as a result of the
performance of the Strategic Investor Representative’s duties under the Transaction
Documents, except to the extent that such Losses resulted from the willful misconduct, bad
faith or gross negligence of the Strategic Investor Representative in the performance of
such duties.
(c) The Strategic Investor Representative hereby agrees to indemnify and hold each
Investor and its Affiliates harmless from and against any and all Losses reasonably
incurred or suffered by such Investor or its Affiliates to the extent that such Losses
resulted from the willful misconduct, bad faith or gross negligence of the Strategic
Investor Representative in the performance of its duties under the Transaction Documents.
9. Notices.
(a) All notices and other communications required or permitted under this Agreement
will be in writing and will be deemed effectively given:
(i) when personally delivered to the party to be notified;
(ii) when sent by confirmed facsimile if sent during normal business hours
of the recipient or, if not, then on the next Business Day, as long as a copy of
the notice is also sent via nationally recognized overnight courier, specifying
next day delivery, with written verification of receipt;
(iii) five days after having been sent by registered or certified mail,
return receipt requested, postage prepaid; or
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(iv) one Business Day after deposit with a nationally recognized overnight
courier, specifying next day delivery, with written verification of receipt.
(b) All communications will be sent to the party’s address as set forth below or at
another address that the party has furnished to each other party in writing in accordance
with this provision:
To Comcast:
|
c/o Comcast Corporation | |
| One Comcast Center | ||
| 0000 Xxxx X. Xxxxxxx Xxxxxxxxx | ||
| Xxxxxxxxxxxx, XX 00000 | ||
| Attn: Chief Financial Officer | ||
| Facsimile No.: (000) 000-0000 | ||
| with a copy to: | ||
| c/o Comcast Corporation | ||
| One Comcast Center | ||
| 0000 Xxxx X. Xxxxxxx Xxxxxxxxx | ||
| Xxxxxxxxxxxx, XX 00000 | ||
| Attn: General Counsel | ||
| Facsimile No.: (000) 000-0000 | ||
| with a copy to (which shall not constitute notice): | ||
| Xxxxx Xxxx & Xxxxxxxx | ||
| 000 Xxxxxxxxx Xxxxxx | ||
| Xxx Xxxx, XX 00000 | ||
| Attn: Xxxxx X. Xxxxxx | ||
| Facsimile No.: (000) 000-0000 | ||
To Comcast Parent:
|
Comcast Corporation | |
| One Comcast Center | ||
| 0000 Xxxx X. Xxxxxxx Xxxxxxxxx | ||
| Xxxxxxxxxxxx, XX 00000 | ||
| Attn: Chief Financial Officer | ||
| Facsimile No.: (000) 000-0000 | ||
| with a copy to: | ||
| Comcast Corporation | ||
| One Comcast Center | ||
| 0000 Xxxx X. Xxxxxxx Xxxxxxxxx | ||
| Xxxxxxxxxxxx, XX 00000 | ||
| Attn: General Counsel | ||
| Facsimile No.: (000) 000-0000 |
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| with a copy to (which shall not constitute notice): | ||
| Xxxxx Xxxx & Xxxxxxxx | ||
| 000 Xxxxxxxxx Xxxxxx | ||
| Xxx Xxxx, XX 00000 | ||
| Attn: Xxxxx X. Xxxxxx | ||
| Facsimile No.: (000) 000-0000 | ||
To TWC:
|
c/o Time Warner Cable Inc. | |
| One Time Xxxxxx Xxxxxx | ||
| Xxxxx Xxxxx | ||
| Xxx Xxxx, XX 00000 | ||
| Attn: General Counsel | ||
| Facsimile No.: (000) 000-0000 | ||
| with a copy to (which shall not constitute notice): | ||
| Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP | ||
| 0000 Xxxxxx xx xxx Xxxxxxxx | ||
| Xxx Xxxx, XX 00000-0000 | ||
| Attn: Xxxxxxx X. Xxxxxx | ||
| Xxxxxx X. Xxxxxxx | ||
| Facsimile No.: (000) 000-0000 | ||
To TWC Parent:
|
Time Warner Cable Inc. | |
| One Time Xxxxxx Xxxxxx | ||
| Xxxxx Xxxxx | ||
| Xxx Xxxx, XX 00000 | ||
| Attn: General Counsel | ||
| Facsimile No.: (000) 000-0000 | ||
| with a copy to (which shall not constitute notice): | ||
| Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP | ||
| 0000 Xxxxxx xx xxx Xxxxxxxx | ||
| Xxx Xxxx, XX 00000-0000 | ||
| Attn: Xxxxxxx X. Xxxxxx | ||
| Xxxxxx X. Xxxxxxx | ||
| Facsimile No.: (000) 000-0000 | ||
To BHN:
|
x/x Xxxxxx Xxxxx Xxxxxxxx, LLC | |
| c/o Advance/Xxxxxxxx Partnership | ||
| 0000 Xxxxxxxxxx Xxxxx | ||
| Xxxx Xxxxxxxx, XX 00000 | ||
| Attn: Xxx Xxxxxxxx | ||
| Facsimile No.: (000) 000-0000 |
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| with a copy to (which shall not constitute notice): | ||
| Xxxxx, Bermant & Xxxxx LLP | ||
| Xxxx Xxxxx Xxxxxx | ||
| Xxx Xxxx, XX 00000 | ||
| Attn: Xxxxxx X. Xxxxxxxxxx, Esq. | ||
| Facsimile No.: (000) 000-0000 | ||
To BHN Parent:
|
Bright House Networks, LLC | |
| c/o Advance/Xxxxxxxx Partnership | ||
| 0000 Xxxxxxxxxx Xxxxx | ||
| Xxxx Xxxxxxxx, XX 00000 | ||
| Attn: Xxx Xxxxxxxx | ||
| Facsimile No.: (000) 000-0000 | ||
| with a copy to (which shall not constitute notice): | ||
| Xxxxx, Xxxxxxx & Xxxxx LLP | ||
| Xxxx Xxxxx Xxxxxx | ||
| Xxx Xxxx, XX 00000 | ||
| Attn: Xxxxxx X. Xxxxxxxxxx, Esq. | ||
| Facsimile No.: (000) 000-0000 | ||
To Google:
|
Google Inc. | |
| 0000 Xxxxxxxxxxxx Xxxxxxx | ||
| Xxxxxxxx Xxxx, XX 00000 | ||
| Attn: General Counsel | ||
| Facsimile No.: (000) 000-0000 | ||
| with a copy to (which shall not constitute notice): | ||
| Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, P.C. | ||
| 000 Xxxx Xxxx Xxxx | ||
| Xxxx Xxxx, XX 00000 | ||
| Attn: Xxxxx Xxxxx, Esq. | ||
| Facsimile No.: (000) 000-0000 |
10. Definitive Agreement. For the avoidance of doubt, this Agreement constitutes the
Definitive Agreement (as such term is defined in the Investor Agreement dated as of May 7, 2008
among Comcast Parent, TWC Parent, BHN Parent and Google (the “Investor Agreement”)). Each of
Comcast Parent, TWC Parent, BHN Parent and Google agrees that the Investor Agreement shall
terminate pursuant to Section 4 thereof concurrently with the execution of this Agreement by the
parties hereto.
11. Amendments and Waivers. No modification, amendment or waiver of any provision of this
Agreement will be effective without the written approval
13
of each Investor, except that any Investor may waive (in writing) the benefit of any provision
of this Agreement with respect to itself for any purpose. Notwithstanding the foregoing, no
modification, amendment or waiver of Section 8 of this Agreement will be effective without the
written approval of each Investor, Comcast Parent, TWC Parent, BHN Parent and Google. No failure
or delay by any party in exercising any right, power or privilege hereunder (other than a failure
or delay beyond a period of time specified in this Agreement) will operate as a waiver of that
right, power or privilege, nor will any single or partial exercise of any right, power or privilege
preclude any other or further exercise of the right, power or privilege, or the exercise of any
other right, power or privilege. The rights and remedies provided in this Agreement will be
cumulative and not exclusive of any rights or remedies provided by law.
12. Survival. Notwithstanding anything herein to the contrary, (x) paragraphs 8, 12, 14, 15 and
18 shall survive any termination of this Agreement and (y) each party shall remain liable to the
other parties for any breach of its obligations hereunder existing at the time of such termination.
13. Binding Effect; Assignment. This Agreement shall be binding upon and inure to the benefit
of the parties hereto and their respective successors and permitted assigns. Neither this
Agreement nor the rights or obligations of any party hereto may be assigned or transferred by any
party, pursuant to any Transfer of Equity Securities or Units or otherwise, other than to a
Permitted Transferee or a Permitted Designee of an Investor; provided that each Investor will cause
each Permitted Transferee or Permitted Designee of such Investor acquiring Equity Securities or
Units in accordance with the terms of the Equityholders’ Agreement or the Operating Agreement, as
applicable, to (unless already bound hereby) execute and deliver to each other Investor an
acknowledgment and agreement to be bound by this Agreement in the form of Exhibit A hereto.
14. Governing Law; Jurisdiction. This Agreement will be governed in all respects by the laws
of the State of Delaware. No suit, action or proceeding with respect to this Agreement may be
brought in any court or before any similar authority other than in a court of competent
jurisdiction in the State of Delaware, and the parties to this Agreement submit to the exclusive
jurisdiction of those courts for the purpose of a suit, proceeding or judgment. Each party to this
Agreement irrevocably waives any right it may have had to bring an action in any other court,
domestic or foreign, or before any similar domestic or foreign authority.
15. Waiver of Jury Trial. EACH OF THE PARTIES IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL
BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
16. Severability. When possible, each provision of this Agreement will be interpreted so as
to be effective and valid under law, but if any provision of
14
this Agreement is held to be invalid, illegal or unenforceable in any respect under any law in
any jurisdiction, that invalidity, illegality or unenforceability will not affect any other
provision or any other jurisdiction, but this Agreement will be reformed, construed and enforced in
that jurisdiction as if the invalid, illegal or unenforceable provision had never been contained in
this Agreement and the parties to this Agreement will use their reasonable best efforts to find and
employ an alternative means to achieve the same or substantially the same result as that
contemplated by that provision.
17. Entire Agreement. This Agreement, together with the other Transaction Documents and
Ancillary Agreements, constitutes the entire agreement among the parties hereto and supersedes all
prior agreements and understandings, oral and written, among the parties hereto with respect to the
subject matter hereof.
18. No Third Party Beneficiaries. Nothing expressed or implied in this Agreement is intended,
or will be construed, to confer on or give any Person other than the parties hereto, and their
respective successors and permitted assigns, any right, remedy, obligation or liability under or by
reason of this Agreement, or result in such Person being deemed a third party beneficiary of this
Agreement.
19. Counterparts. This Agreement may be signed in any number of counterparts, each of which
shall be an original, with the same effect as if the signatures thereto and hereto were upon the
same instrument.
[Remainder of this page intentionally left blank]
15
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their
respective authorized officers as of the day and year first above written.
| COMCAST WIRELESS INVESTMENT I, INC. |
||||
| By: | /s/ Xxxxxx X. Pick | |||
| Name: | Xxxxxx X. Pick | |||
| Title: | Senior Vice President | |||
| COMCAST WIRELESS INVESTMENT II, INC. |
||||
| By: | /s/ Xxxxxx X. Pick | |||
| Name: | Xxxxxx X. Pick | |||
| Title: | Senior Vice President | |||
| COMCAST WIRELESS INVESTMENT III, INC. |
||||
| By: | /s/ Xxxxxx X. Pick | |||
| Name: | Xxxxxx X. Pick | |||
| Title: | Senior Vice President | |||
| COMCAST WIRELESS INVESTMENT IV, INC. |
||||
| By: | /s/ Xxxxxx X. Pick | |||
| Name: | Xxxxxx X. Pick | |||
| Title: | Senior Vice President | |||
| COMCAST WIRELESS INVESTMENT V, INC. |
||||
| By: | /s/ Xxxxxx X. Pick | |||
| Name: | Xxxxxx X. Pick | |||
| Title: | Senior Vice President | |||
[Signature Page to the Strategic Investor Agreement]
| Solely for purposes of
Sections 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, and 19: COMCAST CORPORATION |
||||
| By: | /s/ Xxxxxx X. Pick | |||
| Name: | Xxxxxx X. Pick | |||
| Title: | Senior Vice President | |||
[Signature Page to the Strategic Investor Agreement]
| TWC WIRELESS HOLDINGS I LLC |
||||
| By: | /s/ Satish Adige | |||
| Name: | Satish Adige | |||
| Title: | Senior Vice President, Investments | |||
| TWC WIRELESS HOLDINGS II LLC |
||||
| By: | /s/ Satish Adige | |||
| Name: | Satish Adige | |||
| Title: | Senior Vice President, Investments | |||
| TWC WIRELESS HOLDINGS III LLC |
||||
| By: | /s/ Satish Adige | |||
| Name: | Satish Adige | |||
| Title: | Senior Vice President, Investments | |||
| Solely for purposes of Sections 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, and 19: TIME WARNER CABLE INC. |
||||
| By: | /s/ Satish Adige | |||
| Name: | Satish Adige | |||
| Title: | Senior Vice President, Investments | |||
[Signature Page to the Strategic Investor Agreement]
| BHN SPECTRUM INVESTMENTS, LLC |
||||
| By: | /s/ Xxx Xxxxxxxx | |||
| Name: | Xxx Xxxxxxxx | |||
| Title: | Senior Vice
President, Strategy and Business Development |
|||
| Solely for purposes of Sections 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, and 19: BRIGHT HOUSE NETWORKS, LLC |
||||
| By: | /s/ Xxx Xxxxxxxx | |||
| Name: | Xxx Xxxxxxxx | |||
| Title: | Senior Vice President,
Strategy and Business Development |
|||
[Signature Page to the Strategic Investor Agreement]
| GOOGLE INC. |
||||
| By: | /s/ Xxxx Xxxxxx | |||
| Name: | Xxxx Xxxxxx | |||
| Title: | Vice President and General Counsel | |||
[Signature Page to the Strategic Investor Agreement]
EXHIBIT A
Joinder to Strategic Investor Agreement
This Joinder Agreement (this “Joinder Agreement”) is made as of the date written below by the
undersigned (the “Joining Party”) in accordance with that certain Strategic Investor Agreement
dated as of November 28, 2008 (as amended from time to time, the “Agreement”) among Comcast
Wireless Investment I, Inc., Comcast Wireless Investment II, Inc., Comcast Wireless Investment III,
Inc., Comcast Wireless Investment IV, Inc., Comcast Wireless Investment V, Inc., Comcast
Corporation, TWC Wireless Holdings I LLC, TWC Wireless Holdings II LLC, TWC Wireless Holdings III
LLC, Time Warner Cable Inc., BHN Spectrum Investments, LLC, Bright House Networks, LLC and Google
Inc. Capitalized terms used but not defined herein shall have the meaning ascribed to such terms
in the Agreement.
The Joining Party hereby acknowledges, agrees and confirms that, by its execution of this
Joinder Agreement, the Joining Party shall be deemed to be a party to the Agreement and shall have
all of the rights and obligations as if it were an original party thereto and shall be deemed,
together with one or more of its Permitted Transferees or Permitted Designees then party to the
Agreement, an “Investor” and [“Comcast”] [“TWC”] [“BHN”] [“Google”] for all purposes thereof and
shall have all rights and obligations incidental thereto. The Joining Party hereby ratifies, as of
the date hereof, and agrees to be bound by, all of the terms, provisions and conditions contained
in the Agreement.
IN WITNESS WHEREOF, the undersigned has executed this Joinder Agreement as of the date written
below.
Date: ,
| [NAME OF JOINING PARTY] |
||||
| By: | ||||
| Name: Title: |
||||
Address for Notices: |
||||
