EXHIBIT 2.1.1
PRIMESTAR PARTNERS L.P.
0 Xxxx Xxxxx Xxxx
Xxxx Xxxxxx, XX 00000
PRIMESTAR Partners Roll-Up
--------------------------
June 11, 1997
Gentlemen and Ladies:
This Letter and the attached Summary of Business Terms for the
PRIMESTAR Partners Roll-Up set forth the principal terms and conditions upon
which the undersigned parties (collectively, the "Parties" and each
individually, a "Party") agree to exchange their respective indirectly owned
partnership interests in PRIMESTAR Partners L.P. ("PRIMESTAR") and certain
related assets, as applicable, of each of Time Warner Cable, Advance/Xxxxxxxx
Partnership, Xxx Communications, Inc., Comcast Corporation, MediaOne of
Delaware, Inc. and GE American Communications, Inc., in each case, for (i) an
amount of cash (or the assumption of debt by TCI Satellite Entertainment, Inc.
("TSAT") or a public company ("NewCo") that will be the ultimate parent entity
of or otherwise hold the assets of TSAT) and (ii) shares of NewCo Common Stock
and certain voting rights in connection therewith (the "Transaction").
The Parties hereby agree to enter into good faith negotiations and to
negotiate in good faith definitive agreements with respect to the Transaction.
The Parties agree that such definitive agreements shall contain terms and
conditions that are consistent with the attached Summary of Business Terms. The
Parties hereto intend to prepare, negotiate and execute such definitive
agreements by July 15, 1997. The Parties acknowledge and agree that this Letter
and attached Summary of Business Terms contain all the principal terms of the
Transaction and, upon the execution of this Letter by all Parties as provided
herein, shall be binding and shall remain in effect until the execution by the
Parties of the definitive agreements contemplated herein. In the event that the
Parties shall fail to enter into such definitive agreements, this Letter and
attached Summary of Terms shall continue to be binding and in effect, and the
Parties shall be obligated to consummate the Transaction on the basis of and as
contemplated in this Letter and attached Summary of Business Terms.
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Each Party hereby agrees, and agrees to cause its agents, to keep the
terms of and the transactions contemplated in this Letter and the attached
Summary of Business Terms strictly confidential; provided, however, that upon
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the execution of this Letter, such Party may disclose any of such terms or
transactions only to those of its directors, officers, employees, agents or
advisors that need to know such information for the sole purpose of evaluating
the transactions described in the attached Summary of Business Terms. In
addition, upon prior notice to all other Parties and with the prior consent of
such other Parties, a Party shall have the right to disclose copies of this
Letter and attached Summary of Business Terms to The News Corporation Limited
("News Corp") or any officer or director thereof; provided that, prior to such
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disclosure, News Corp and PRIMESTAR shall have entered into a Confidentiality
Agreement reasonably acceptable to each Party, prohibiting the disclosure by
News Corp of any information contained in this Letter or attached Summary of
Business Terms or otherwise relating to the Transaction.
Notwithstanding anything to the contrary in the immediately preceding
paragraph, each Party may disclose any of the terms of or transactions
contemplated in this Letter or the attached Summary of Business Terms to
regulatory authorities upon a specific request thereof or, if required by
applicable law or securities exchange rules or regulations to undertake
disclosure of such information, to regulatory authorities or to the general
public; provided, however, that prior to any disclosure of such information to
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the general public, each Party shall be consulted as to the contents of such
disclosure.
Each Party hereby covenants and agrees to use its best efforts to
complete the actions set forth in clauses (a) and (b) below by the respective
dates set forth therein, and TSAT hereby covenants and agrees to use its best
efforts to complete all actions set forth in clauses (c) through (e) below by
the respective dates set forth therein:
(a) a premerger notification and report form under the Xxxx-Xxxxx-
Xxxxxx Antitrust Improvements Act of 0000 (xxx "XXX Xxx") shall have been
filed on behalf of each Party with respect to the Transaction within 15
calendar days after the date hereof;
(b) definitive agreements with respect to the Transaction and
consistent with this Letter and attached Summary of Business Terms shall
have been
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executed by the applicable Parties within 45 calendar days after the date
hereof;
(c) TSAT shall have filed with the Securities and Exchange Commission
(the "SEC") on or before the later of (x) 90 calendar days after the date
hereof and (y) five business days after receipt by TSAT of the financial
statements and financial and other information provided for in clauses (i)
and (ii) of the first full paragraph below:
(i) a proxy statement relating to the approval by TSAT's
stockholders of the Transaction (the "Proxy Statement") which complies
as to form in all material respects with the requirements of the
Securities and Exchange Act of 1934, as amended, and the rules and
regulations thereunder (the "Exchange Act"); and
(ii) a registration statement on Form S-4 relating to the
issuance of NewCo common stock in the Transaction (the "Form S-4")
which complies as to form in all material respects with the
requirements of the Securities Act of 1933 (the "Securities Act"), in
which the Proxy Statement will be included as a prospectus (it being
understood that the requirements of this clause (ii) shall be
satisfied if the Form S-4 shall have been filed as part of the Proxy
Statement in accordance with the Exchange Act);
(d) TSAT shall have mailed the Proxy Statement to the TSAT
stockholders within 30 calendar days after the date the Form S-4 is
declared effective under the Securities Act; and
(e) the TSAT stockholders shall have voted upon the Transaction at a
meeting of the TSAT stockholders held within 30 days after the date the
Proxy Statement is mailed to such stockholders and the requisite approval
of the Transaction by such stockholders shall have been obtained at such
meeting.
Each Party agrees to cooperate in the preparation of the Proxy
Statement and the Form S-4 and all pre- and post-effective amendments thereto
and the filing thereof with the SEC. Such cooperation shall include, without
limitation, (i) preparation of historical and pro forma financial statements
relating to such Party required to be included in such filings, (ii) provision
of financial and other information relating to such Party required to be
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included in such filings, (iii) engagement of accountants to report on and
provide comfort letters in customary form in respect of financial information
provided by such Party for inclusion in such filings (which comfort letters will
be received by TSAT in accordance with customary practice) and (iv) responding
to comments relating to such Party received from the staff of the SEC in respect
of such filings promptly after receipt thereof. TSAT agrees, for itself and on
behalf of NewCo, to use its best efforts to have the Form S-4 declared effective
under the Securities Act as promptly as practicable after the filing thereof
with the SEC, and to take any commercially reasonable action (other than
qualifying to do business in any jurisdiction in which TSAT is not now so
qualified) required to be taken under any applicable state securities laws in
connection with the issuance of NewCo common stock in the Transaction.
Concurrently with the execution of this Letter, certain affiliates of
the Parties and PRIMESTAR are entering into an Asset Acquisition Agreement with
News Corp, MCI Telecommunications Corporation and American Sky Broadcasting LLC
to purchase certain assets (the "Asset Acquisition"). The Parties hereto
acknowledge and agree that the intent and desire of the Parties is to close both
the Transaction and the Asset Acquisition as promptly as possible and
simultaneously if feasible. The Parties hereto agree that the closing of the
Transaction is not contingent on the closing of the Asset Acquisition. The
Parties hereto agree that separate premerger notification and report forms under
the HSR Act shall be filed with respect to the Transaction and the Asset
Acquisition and that if all conditions to the closing of the Transaction are
satisfied (or otherwise waived) prior to the satisfaction (or waiver) of all
conditions to the closing of the Asset Acquisition, the Parties hereto agree
promptly to close the Transaction.
The Parties shall cooperate with each other in good faith to
consummate the Asset Acquisition. Subject to the preceding paragraph, the
Parties shall also use commercially reasonable efforts to prepare and file a
Notification and Report Form with respect to the Asset Acquisition under the HSR
Act and the rules and regulations promulgated thereunder; to respond to requests
for information from the Department of Justice, the Federal Trade Commission and
any other government agency relating to the Asset Acquisition; to prepare and
make such other filings as may be reasonably required to apply for any
governmental approvals, authorizations and consents regarding the Asset
Acquisition as may be required by
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applicable law or regulation; and to prepare and provide each other Party with
the financial information regarding such Party and its PRIMESTAR related
business and assets (subject to appropriate confidentiality safeguards) as may
be reasonably required to comply with the requirements of such laws and
regulations, including the requirements of the Federal securities laws relating
to any filings to be made by TSAT or NewCo in connection with the Asset
Acquisition; in each case on as prompt a basis as reasonably practicable.
This Letter and the attached Summary of Business Terms may be
terminated at any time prior to the closing of the Transaction by any Party if:
(i) any judgment, decree, injunction, rule or order of any court,
governmental department, commission, agency, instrumentality or arbitrator
which prohibits, restricts or delays consummation of the Transaction shall
have been issued and shall have become final and nonappealable; or
(ii) if the waiting period under the HSR Act shall not have expired
or been terminated on or before August 31, 1998;
provided, however, that the Party seeking termination is not in breach in any
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material respect of any of its representations, warranties, covenants or
agreements contained herein, and upon such termination this Letter and the
attached Summary of Business Terms shall become null and void and of no further
force and effect.
This Letter and the attached Summary of Business Terms shall be
governed by the substantive laws of the State of New York without regard to any
applicable conflicts of law principles.
No Party may assign any of its rights or obligations pursuant to this
Letter or the attached Summary of Business Terms to any person.
This Letter may not be amended except by a written instrument signed
by an authorized representative of each Party.
This Letter may be executed in one or more original counterparts, each
of which shall be an original and all of which together shall constitute one and
the same instrument.
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If this Letter and the attached Summary of Business Terms are
acceptable, please sign at the appropriate space provided below.
Sincerely,
PRIMESTAR PARTNERS L.P., a
Delaware limited partnership,
by /s/ Xxxxx X. Xxxx
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Name: Xxxxx X. Xxxx
Title: Chief Executive
Officer
ACCEPTED AND AGREED BY:
TIME WARNER CABLE, a division
of Time Warner Entertainment
Company, L.P., a Delaware
limited partnership,
by /s/ Xxxxx X. Xxxxx
----------------------------
Name: Xxxxx X. Xxxxx
Title: Senior Vice
President, Marketing
ACCEPTED AND AGREED BY:
COMCAST CORPORATION, a
Pennsylvania corporation,
by /s/ Xxxxxx X. Xxxxxxx
----------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice Chairman
ACCEPTED AND AGREED BY:
TCI SATELLITE ENTERTAINMENT,
INC., a Delaware corporation,
by /s/ Xxxx X. Xxxxxx
----------------------------
Name: Xxxx X. Xxxxxx
Title: President
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ACCEPTED AND AGREED BY:
XXX COMMUNICATIONS, INC.,
a Delaware corporation,
by /s/ Xxxx X. Xxxxx
----------------------------
Name: Xxxx X. Xxxxx
Title: Senior Vice
President
ACCEPTED AND AGREED BY:
MEDIAONE OF DELAWARE INC.,
a Delaware corporation,
by /s/ Xxxx Xxxxxx
----------------------------
Name: Xxxx Xxxxxx
Title: Executive Vice
President, Finance
and Strategy
ACCEPTED AND AGREED BY:
ADVANCE/XXXXXXXX PARTNERSHIP,
a New York general
partnership,
by ADVANCE COMMUNICATION
CORP., a New York
corporation and a
general partner,
by /s/ Xxxxxx Xxxxx
----------------------------
Name: Xxxxxx Xxxxx
Title: President
ACCEPTED AND AGREED BY:
GE AMERICAN COMMUNICATIONS,
INC., a Delaware corporation,
by /s/ Xxxx Xxxxxxxx
----------------------------
Name: Xxxx Xxxxxxxx
Title: Chairman and
Chief Executive
Officer
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ACCEPTED AND AGREED BY:
/s/ Xxxx X. Xxxxxx
----------------------------
XXXX X. XXXXXX
