EXHIBIT 3
Execution Copy
AGREEMENT
This AGREEMENT is entered into as of August 12, 1998, by and among Comcast
Corporation, a Pennsylvania corporation ("Comcast") and Xx. Xxxxx X. Xxxxx
("Xxxxx"), Xxxxx International, Ltd. ("International"), Xxxxx Xxxxx Grantor
Business Trust (the "Xxxxx Trust"), Xxxxx International Grantor Business Trust
(the "JI Trust", and together with the Xxxxx Trust, the "Trusts"), Xxxxx Space
Segment, Inc. ("Space"), Xxxxx Global Group, Inc. ("Global"), Xxxxx
Interdigital, Inc. ("Interdigital"), Xxxxx Entertainment Group, Ltd.
("Entertainment" and together with Xxxxx, International, the Trusts, Space,
Global and Interdigital, the "Xxxxx Entities").
WHEREAS, certain of the Xxxxx Entities and The Bank of New York, as
successor agent to Xxxxxx Guaranty Trust Company of New York, as agent for BCI
Telecom Holding Inc., a Canadian corporation f/k/a/ Xxxx Canada International
Inc. ("BTH") and BTH (Intercable) Limited, a British Virgin Islands corporation
f/k/a Xxxx Canada International BVI VI Limited ("BTH Intercable"), as assignee
of BTH, have entered into certain option agreements each dated as of December
20, 1994 and amended as of the date hereof (the "Option Agreements"), granting
an option (the "Control Option") to purchase the shares of Common Stock, par
value $.01 per share (the "Common Stock"), of Xxxxx Intercable, Inc. (the
"Company") owned beneficially or of record by the Xxxxx Entities (the "Control
Shares");
WHEREAS, the Company, Xxxxx, International and BTH are parties to a certain
Shareholders Agreement originally dated as of December 20, 1994 providing for
certain rights and obligations regarding their relationships (the "Original
Shareholders Agreement");
WHEREAS, Comcast, BTH, BTH Intercable and BTH (US Cable) Limited, a British
Virgin Islands corporation f/k/a Xxxx Canada International BVI III Limited ("US
Cable" and together with BTH and BTH Intercable the "BTH Entities") have
entered into a Purchase and Sale Agreement, dated as of May 22, 1998, providing,
among other things, for the acquisition by Comcast of the Control Shares at such
time that certain of the BTH Entities (or their agents) are entitled to
acquire the Control Shares pursuant to the Control Option (the "Original
Comcast/BTH Agreement");
WHEREAS, conditioned on the terms hereof, the Xxxxx Entities and Comcast
desire to expedite the consummation of the transactions contemplated by the
Option Agreements;
WHEREAS, contemporaneously with the execution and delivery of this
Agreement, the Xxxxx Entities and certain of the BTH Entities are amending the
Option Agreements which amendments provide for the immediate acceleration of
the exercise of the Control Option and the ultimate acquisition of the Control
Shares by Comcast;
WHEREAS, contemporaneously with the execution and delivery of this
Agreement, the Company, Xxxxx, International and BTH have entered into an
agreement of even date herewith providing for the amendment of certain rights
and obligations of the parties under the Original Shareholders Agreement (the
Original Shareholders Agreement as so amended, the "Shareholders Agreement"),
and the other Xxxxx Entities and BTH Entities have also entered into such
agreement of even date herewith to provide for the mutual release, effective as
of the Closing Date, of certain claims each of the Xxxxx Entities, the Company
and the BTH Entities may have against each other.
WHEREAS, contemporaneously with the execution and delivery of this
Agreement, Comcast and the BTH Entities have entered into an amendment to the
Original Comcast/BTH Agreement amending, among other things, the timing of the
"Initial Closing" and "Final Closing" and providing for the "Simultaneous
Closing" (as such terms are defined in the Comcast/BTH Agreement) of the
transactions contemplated by the Comcast/BTH Agreement, which Simultaneous
Closing shall occur on the same date as the Closing (as defined below) (the
Original Comcast/BTH Agreement as so amended, the "Comcast/BTH Agreement"); and
WHEREAS, Comcast and the Xxxxx Entities desire to set forth their agreement
regarding certain matters relating to the transactions contemplated by the
amendments to the Option Agreements, the Comcast/BTH Agreement and the
Shareholders Agreement;
THEREFORE, in consideration of the mutual covenants contained herein and
intending to be legally bound hereby, the parties agree as follows.
1. CLOSING.
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(a) The closing of the transactions contemplated hereby (the
"Closing") shall take place on the same date as the Simultaneous Closing at
the offices of Dechert Price & Xxxxxx, 4000 Xxxx Atlantic Tower, 0000 Xxxx
Xxxxxx, Xxxxxxxxxxxx, XX 00000 as soon as is reasonably practicable after
the date on which the conditions specified in Sections 3 and 4 shall be
fulfilled or waived. The date on which the Closing occurs is sometimes
referred to herein as the "Closing Date". Comcast shall notify to the
extent possible the Xxxxx Entities of the expected Closing Date no less
than three days prior to the Closing Date.
(b) At the Closing, the parties agree that the following events
shall occur in the following sequence:
(i) The directors of the Company other than the Joint
Nominees (as defined in the Shareholders Agreement) shall resign seriatim
and the remaining directors shall appoint individuals designated by Comcast
to fill the vacancies created thereby.
(ii) The purchase and sale of the Control Shares shall occur
(the "Option Closing").
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(iii) The Simultaneous Closing shall occur.
(c) If the Option Closing and the Simultaneous Closing under the
Comcast/BTH Agreement shall not have occurred on the Closing Date, then all
of the transactions and agreements to be effected at the Closing shall be
rescinded and deemed not to have occurred.
2. INITIAL CONSIDERATION.
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(a) In consideration for the Xxxxx Entities entering into this
Agreement, Comcast agrees that, on the date that the Xxxxx Entities pledge
the Pledged Shares (as defined herein) pursuant to Section 9(e) hereof, it
will deposit with International $50,000,000 in cash (the "Initial
Consideration") by wire transfer of immediately available funds to a bank
account designated by International. The parties acknowledge and agree that
the Initial Consideration, together with interest thereon, shall be a
credit against the aggregate Purchase Price (as such term is defined in the
Option Agreements) required to be paid upon the closing of the purchase and
sale of all of the Optioned Shares, as more fully described in the Option
Agreements.
(b) In the event that this Agreement is terminated for any reason
other than pursuant to Section 16(c) hereof or the Closing fails to occur
on the Closing Date for any reason other than as set forth in Section
16(c), the Xxxxx Entities agree to pay to Comcast, upon delivery by any
Xxxxx Entity of any notice of termination or upon demand by Comcast, an
amount equal to the Initial Consideration plus interest calculated at the
Applicable Rate from the date the Initial Consideration is deposited with
the Xxxxx Entities to and including the date the Xxxxx Entities repay such
Initial Consideration. "Applicable Rate" means an interest rate per annum
at which deposits in United States dollars appears on page 3750 (or any
successor page thereto) of the Dow Xxxxx Telerate Screen for a ninety day
period, plus 1/2%. The Applicable Rate for any period shall be determined
as of the date the Initial Consideration is deposited with the Xxxxx
Entities, and shall be adjusted quarterly on the first business day of each
January, April, July and October through the date the Xxxxx Entities repay
the Initial Consideration (or the Initial Consideration is credited against
the Purchase Price payable in respect of the Optioned Shares pursuant to
the Option Agreements).
(c) In the event that this Agreement is validly terminated by the
Xxxxx Entities pursuant to Section 16(c) hereof or the Closing fails to
occur on the Closing Date for the reason set forth in Section 16(c), the
parties agree that the damages suffered by the Xxxxx Entities would be
speculative and difficult to measure and, therefore, the Xxxxx Entities
shall be entitled to retain the Initial Consideration (together with any
interest earned thereon by the Xxxxx Entities) as liquidated damages and a
sole remedy for Comcast's breach of its obligations under this Agreement;
provided however, that nothing contained in this clause (c) shall preclude
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the Xxxxx Entities from seeking specific performance of Comcast's
obligations hereunder prior to the termination of this Agreement.
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(d) The Xxxxx Entities shall be entitled to retain the Initial
Consideration (together with any interest earned thereon by the Xxxxx
Entities) upon consummation of the purchase and sale of the Optioned
Shares.
3. CONDITIONS TO THE OBLIGATIONS OF COMCAST. The obligation of
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Comcast to take any action required to be taken by Comcast at or following the
Closing shall be subject to the fulfillment or waiver of each of the following
conditions:
(a) The waiting period (including any extension thereof resulting
from additional inquiries, if any) under the Xxxx-Xxxxx-Xxxxxx Antitrust
Improvements Act of 1976, as amended (the "HSR Act") applicable to the
consummation of the transactions contemplated hereby (including the
consummation of the exercise of the Control Option and the Simultaneous
Closing under the Comcast/BTH Agreement) shall have expired or been earlier
terminated.
(b) All authorizations, consents, approvals or other actions by,
in respect of or filings with any Governmental Authority in the United
States, England or Spain, or any other country where any Intercable Group
Entity conducts material business required (including the obtaining of any
approvals from Franchise Authorities) to permit the consummation of the
transactions contemplated hereby shall have been taken or obtained, as the
case may be, and shall be in full force and effect; provided that if all
authorizations, consents and approvals from applicable Franchise
Authorities necessary to effect the change of control of the Franchises (i)
relating to the Franchises (whether in Owned Systems or Managed Systems)
set forth on Schedule F, (ii) relating to Franchises in Managed Systems
which, as of the Closing Date, are subject to a letter of intent or
agreement of sale providing for the sale or other disposition of such
Managed System to a Person other than the Company (or its wholly owned
Subsidiaries), and (iii) relating to Franchises with not less than 10,000
basic subscribers in Systems (whether Owned Systems or Managed Systems)
acquired by any Intercable Group Entity (except for Managed Systems which,
as of the Closing Date, are subject to a letter of intent or agreement of
sale providing for the sale or other disposition of such Managed System to
the Company or one of its wholly owned Subsidiaries) after the date hereof
(the "Required Franchise Approvals") shall have been so obtained, be in
effect and not be subject to withdrawal or appeal then the condition
contained in this paragraph (b) shall be deemed to be fulfilled as it
relates to authorizations, consents or approvals from applicable Franchise
AUTHORITIES ON THE DATE ON WHICH ALL OF THE REQUIRED FRANCHISE APPROVALS
ARE SO OBTAINED AND ARE IN EFFECT AND NOT SUBJECT TO WITHDRAWAL OR APPEAL
AND PROVIDED FURTHER THAT THIS CONDITION SHALL NOT BE SATISFIED IF ANY
REQUIRED FRANCHISE APPROVAL SHALL NOT HAVE BEEN OBTAINED.
(c) There shall not then be in effect any applicable law, rule or
regulation or any judgment, injunction, order or decree that has one or
more of the effects described in clauses (i), (ii) or (iii) of the
following paragraph (d); provided that if after the date hereof Comcast or
any of its Affiliates enters into a new line of business and at such time
there is a law, rule or regulation that has, or is reasonably expected to
have, one or more of such effects, then this paragraph (c) will not apply
to any such law, rule or regulation.
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(d) There shall not then be instituted or pending any action or
proceeding before any federal or state court or other Governmental
Authority brought by a Governmental Authority challenging the consummation
of the transactions contemplated hereby or seeking to (i) prevent Comcast
from consummating the transactions contemplated hereby, including
exercising (or directing BTH Intercable (or its Affiliates and agents) to
exercise) the Control Option or prevent BTH Intercable (or its Affiliates
and agents) from exercising the Control Option, (ii) require Comcast to
divest, or otherwise limit Comcast's ability to exercise full rights of
ownership over the Control Option or the Optioned Shares or any shares of
capital stock of the Company owned by Comcast, BTH, BTH Intercable or their
respective Affiliates, or (iii) require, after the exercise of the Control
Option, Comcast or the Intercable Group to divest any material business or
assets or which would impose a material limitation on the conduct of
Comcast's or the Intercable Group's business; provided that if after the
date hereof Comcast or any of its Affiliates enters into a new line of
business and at such time there is a law, rule or regulation that has, or
is reasonably expected to have, one or more of the foregoing effects, then
this paragraph (d) will not apply to actions or proceedings that seek to
enforce such law, rule or regulation.
(e) The Intercable Group Entities shall have received all
material third party consents required to be obtained in connection with
the Closing (including all consents required under any loan or security
agreement, indenture or other agreement in respect of borrowed funds to
which any Intercable Group Entity is a party and waivers of all purchase
rights or rights of first offer or rights of first refusal triggered by the
execution and delivery of this Agreement or the consummation of the
transactions contemplated hereby held by any Franchise Authority, or other
third party in respect of any Franchise of the Intercable Group Entities
but excluding consents from Franchise Authorities necessary to effect the
change of control of the Franchises held by Intercable Group Entities), in
each case in form and substance reasonably satisfactory to Comcast.
(f) Each of the covenants and agreements to be performed by the
Xxxxx Entities under this Agreement at or prior to the Closing shall have
been duly performed in all material respects.
(g) Each of the representations and warranties of the Xxxxx
Entities contained in this Agreement shall, in the case of those
representations and warranties that are not qualified by materiality, be
true, complete and correct in all material respects, and in the case of
those representations and warranties that are qualified by materiality
shall be true, complete and correct in all respects, as of each of (i) the
date of this Agreement and (ii) unless otherwise specified as having been
made as of a specific date, the Closing Date, in each case as though newly
made at such time.
(h) Within forty-five (45) days of the date hereof, the Company
shall have amended the Severance Plan adopted by the Board of Directors on
August 11, 1998, so that such Severance Plan conforms to the requirements
of Schedule B.
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(i) The Simultaneous Closing shall have occurred on the Closing
Date.
4. CONDITIONS TO THE OBLIGATIONS OF THE XXXXX ENTITIES. The
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obligations of the Xxxxx Entities to take any action required by them at or
following the Closing shall be subject to the fulfillment or waiver of each of
the following conditions:
(a) The waiting period (including any extension thereof resulting
from additional inquiries, if any) under the HSR Act applicable to the
consummation of the transactions contemplated hereby (including the
consummation of the exercise of the Control Option and the Simultaneous
Closing under the Comcast/BTH Agreement) shall have expired or been earlier
terminated.
(b) There shall not then be in effect any applicable law, rule or
regulation or any judgment, injunction, order or decree that would prevent
the Xxxxx Entities from consummating the transactions contemplated hereby.
(c) Each of the covenants and agreements to be performed by
Comcast hereunder at or prior to the Closing shall have been duly performed
in all material respects.
(d) Each of the representations and warranties of Comcast
contained in this Agreement shall, in the case of those representations and
warranties that are not qualified by materiality, be true, complete and
correct in all material respects, and in the case of those representations
and warranties that are qualified by materiality shall be true, complete
and correct in all respects, as of each of (i) the date of this Agreement
and (ii) unless otherwise specified as having been made as of a specific
date, the Closing Date, in each case as though newly made at such time.
(e) The Simultaneous Closing shall have occurred on the Closing
Date.
5. REPRESENTATIONS AND WARRANTIES OF THE XXXXX ENTITIES. Each
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Xxxxx Entity jointly and severally represents and warrants to Comcast that, as
of the date hereof and the Closing Date (except for the representations
contained in Section 5(d) and clause (ii) of Section 5(e) which representation
is made only as of the date hereof):
(a) Such Xxxxx Entity is the sole record and beneficial owner of
the Optioned Shares and the shares of Class A Stock, par value $.01 per
share of the Company (the "Class A Shares") set forth opposite its name on
Schedule A free and clear of any mortgage, lien, pledge, charge, security
interest, encumbrance or other adverse claim of any kind ("Liens") (other
than the Option Agreements and the Shareholders Agreement) and any other
limitation or restriction (including any limitation or restriction on the
right to vote, sell or otherwise dispose of or transfer any Optioned Share
or Class A Share), other than offer and sale restrictions imposed
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by securities laws and the Shareholders Agreement. At the Closing, each
Xxxxx Entity will convey good and valid title to the Optioned Shares set
forth opposite its name on Schedule A free and clear of any Lien and any
such limitation or restriction (other than offer and sale restrictions
imposed by securities laws).
(b) Such Xxxxx Entity has been duly organized, and is validly
existing and in good standing under the laws of the jurisdiction of its
incorporation and has all powers and all material governmental licenses,
authorizations, permits, consents and approvals required to carry on its
business as now conducted.
(c) The execution, delivery and performance by each Xxxxx Entity
of this Agreement are within such Xxxxx Entity's power and have been duly
authorized by all necessary action on the part of such Xxxxx Entity. This
Agreement has been duly executed and delivered by each Xxxxx Entity, and
assuming the accuracy of Comcast's representations and warranties contained
herein, is a valid and binding agreement of such Xxxxx Entity.
(d) Assuming the accuracy of Comcast's representations and
warranties contained herein, the execution, delivery and performance by
each Xxxxx Entity of this Agreement requires no action by any Xxxxx Entity
or any Intercable Group Entity in respect of, or filing by any Xxxxx Entity
or any Intercable Group Entity with, any Governmental Authority other than
(i) compliance with any applicable requirements of the HSR Act and (ii)
actions or filings with Franchise Authorities and the Federal
Communications Commission and (iii) any such action or filing as to which
the failure to make or obtain would not reasonably be expected to have,
individually or in the aggregate, a material adverse effect on the
business, assets, results of operations, properties or condition (financial
or otherwise) of any Intercable Group Entities taken as a whole or the
ability of such Xxxxx Entity to consummate the transactions contemplated
hereby or perform its obligations hereunder.
(e) The execution, delivery and performance by each Xxxxx Entity
of this Agreement do not: (i) violate its articles of incorporation or
trust, bylaws or similar organizational documents, (ii) assuming the
accuracy of Comcast's representations and warranties herein violate any
applicable law, rule, regulation, judgment, injunction, order or decree
binding on such Xxxxx Entity or any Intercable Group Entity, (iii) assuming
the accuracy of Comcast's representations and warranties herein, require
any consent or other action by any Person under, or constitute a default
under, any material agreement or other instrument binding upon such Xxxxx
Entity or any Intercable Group Entity, (iv) result in the creation or
imposition of any Lien on any material asset of such Xxxxx Entity or any
Intercable Group Entity, or (v) require any consent or other action by any
Person under, or constitute a default under, (x) any agreement or other
instrument binding upon any Intercable Group Entity providing for the sale
of a Managed System to a Person other than the Company or its wholly owned
Subsidiaries or (y) any Partnership Agreement or similar organizational
document of any Cable Partnership, except in the case of clauses (ii),
(iii) and (iv), to the that any such violation, failure to obtain any such
consent or other action, default, right, loss or Lien would not reasonably
be
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expected to have, individually or in the aggregate, a material adverse
effect on the business, assets, results of operations, properties or
financial condition of such Intercable Group Entities taken as a whole or
the ability of such Xxxxx Entity to consummate the transactions
contemplated hereby or perform its obligations hereunder and except in the
case of clauses (ii) and (iii), actions and consents required under the HSR
Act and the Communications Act of 1934, as amended, and in respect of
Franchises, loan and lease agreements and other agreements and instruments
customarily entered into by cable operators in the ordinary course of
business, including agreements with utilities, programming agreements and
retransmission consent agreements.
(f) There is no investment banker, broker, finder or other
intermediary which has been retained by or is authorized to act on behalf
of any Xxxxx Entity or its Affiliates who might be entitled to any fee or
commission from Comcast or any Intercable Group Entity in connection with
the transactions contemplated by this Agreement.
(g) Options to purchase no more than 1,353,083 shares of Class A
Common Stock of the Company are outstanding and there are no options
outstanding to purchase any shares of Common Stock of the Company. The
Company has not granted any options to purchase either Class A Common Stock
or Common Stock since July 28, 1997.
6. REPRESENTATIONS AND WARRANTIES OF COMCAST. Comcast represents
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and warrants to the Xxxxx Entities that, as of the date hereof and the Closing
Date (except for the representation contained in Section 6(c) and clause (ii) of
Section 6(d) which representation is made only as of the date hereof):
(a) Comcast has been duly organized, and is validly existing and
in good standing under the laws of the jurisdiction of its incorporation
and has all powers and all material governmental licenses, authorizations,
permits, consents and approvals required to carry on its business as now
conducted.
(b) The execution, delivery and performance by Comcast of this
Agreement are within Comcast's power and have been duly authorized by all
necessary action on the part of Comcast. This Agreement has been duly
executed and delivered by Comcast, and assuming the accuracy of the
representations and warranties of the Xxxxx Entities contained herein, is a
valid and binding agreement of Comcast.
(c) Assuming the accuracy of the Xxxxx Entities' representations
and warranties contained herein, the execution, delivery and performance by
Comcast of this Agreement requires no action by Comcast in respect of, or
filing by Comcast with, any Governmental Authority other than (i)
compliance with any applicable requirements of the HSR Act, (ii) filings
with respect to franchises of the intercable group entities and (iii) any
such action or filing as to which the failure to make or obtain would not
reasonably be expected to have, individually or in the aggregate, a
material adverse effect on the ability of comcast to consummate the
transactions contemplated hereby or perform its obligations hereunder.
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(d) The execution, delivery and performance by Comcast of this
Agreement does not: (i) violate its articles of incorporation or bylaws,
(ii) assuming the accuracy of the representations and warranties of the
Xxxxx Entities contained herein, violate any applicable law, rule,
regulation, judgment, injunction, order or decree binding on Comcast, (iii)
assuming the accuracy of the representations and warranties of the Xxxxx
Entities contained herein, and assuming that the Intercable Group Entities
have all powers, licenses, authorizations, permits, consents and approvals
required to carry on their businesses as now conducted, require any consent
or other action by any Person under, or constitute a default under, any
material agreement or other instrument binding upon Comcast, or (iv) result
in the creation or imposition of any Lien on any material asset of Comcast,
except in the case of clauses (ii), (iii) and (iv), to the extent that any
such violation, failure to obtain any such consent or other action,
default, right, loss or Lien would not reasonably be expected to have,
individually or in the aggregate, a material adverse effect on the ability
of Comcast to consummate the transactions contemplated hereby or perform
its obligations hereunder.
(e) There is no investment banker, broker, finder or other
intermediary which has been retained by or is authorized to act on behalf
of Comcast or its Affiliates who might be entitled to any fee or commission
from any Xxxxx Entity or any Intercable Group Entity in connection with the
transactions contemplated by this Agreement.
7. REASONABLE BEST EFFORTS; FURTHER ASSURANCES. Comcast and the
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Xxxxx Entities will each execute and deliver or cause to be executed and
delivered all further documents and instruments and use their reasonable best
efforts to secure such consents and take, or cause to be taken, all such further
action and to do, or cause to be done, all things as may be reasonably necessary
in order to consummate the transactions contemplated hereby or to enable Comcast
to enjoy all of the benefits and rights incident to the ownership of the Control
Shares. Comcast and the Xxxxx Entities shall each use their reasonable best
efforts to, and the Xxxxx Entities shall use their reasonable best efforts to
cause the Intercable Group Entities to, cooperate with one another (a) in
determining whether any action by or in respect of, or filing with, any
Governmental Authority is required, or any actions, consents, approvals or
waivers are required to be obtained from any third party, in connection with the
consummation of the transactions contemplated by this Agreement and (b) in
taking such actions or making any such filings, furnishing information required
in connection therewith and seeking timely to obtain any such actions, consents,
approvals or waivers, including making such filings on FCC Form 394 ("394
Filings") as may be necessary to obtain the required authorizations, consents
and approvals from the applicable Franchise Authorities relating to the
Franchises held by the Intercable Group Entities; provided that no such 394
Filings shall be required to be filed prior to November 1, 1998 with respect to
Franchises relating to Managed Systems, which, on the date hereof, are and
thereafter remain subject to a letter of intent or agreement of sale providing
for the sale or other disposition of such Managed System to a Person other than
the Company (or its wholly-owned Subsidiaries). In connection with the
foregoing, Comcast may also seek that any such actions, consents, approvals or
waivers include the immediate transfer on the Closing Date of the Control Shares
by Comcast
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to Comcast Cable Communications, Inc., a wholly-owned subsidiary of
Comcast and the parent company of Comcast's cable division. Comcast and the
Xxxxx Entities shall use their reasonable best efforts to, and the Xxxxx
Entities shall use their reasonable best efforts to cause the Intercable Group
Entities to, each make an appropriate filing of a Notification and Report Form
pursuant to the HSR Act no later than ten business days from the date hereof;
and each such filing shall request early termination of the waiting period
imposed by the HSR Act. Comcast and the Xxxxx Entities shall not be required to
agree to any consent decree or order in connection with any objections of the
Department of Justice or the Federal Trade Commission to the transactions
contemplated by this Agreement.
8. COVENANTS AND AGREEMENTS OF COMCAST.
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(a) (i) On the Closing Date, Comcast agrees to enter into, or
cause one or more of its appropriate Affiliates to enter into an agreement
with Knowledge TV, Inc. ("KTV") in the form of Exhibit D attached hereto.
(ii) On the Closing Date, Comcast agrees to enter into, or
cause one or more of its appropriate Affiliates to enter into (x) an amendment
to that certain Affiliate Agreement dated December 10, 1997, between Comcast and
Great American Country, Inc. ("GAC"), which amendment shall be in the form of
Exhibit A attached hereto, and shall provide for the elimination of the current
incremental service subscriber launch commitment and (y) an agreement with GAC
in the form of Exhibit E attached hereto.
(b) Comcast acknowledges effective as of and conditioned upon the
consummation of the Closing, the Option Closing and the Simultaneous
Closing the existence of (i) that certain lease (the "Lease"), dated
November 30, 1989, by and between the Company and Xxxxx Properties, Inc.
(the "Landlord"), together with that certain Sublease, dated December 1,
1994 between the Company and Xxxxx International, Ltd., (ii) that certain
Services Agreement, dated June 9, 1994, by and between the Company and
Xxxxx Interactive, Inc., (iii) that certain Amended and Restated Xxxxx
Infomercial Networks, Inc. Affiliate Agreement, dated as of August 1, 1994,
by and between Xxxxx Infomercial Networks, Inc. and the Company, (iv) that
certain Galactic Radio Affiliate Agreement, dated as of May 1, 1990, by and
between Galactic Radio, Inc. and Xxxxx Programming Services, Inc., (v) the
KTV and GAC Agreements (as defined herein), and (vi) the transactions,
agreements and/or arrangements as described in the Company's Form 10-K for
the year ended December 31, 1997 (the "1997 Form 10-K") (the matters listed
in clauses (i) through (vi), the "Existing Related Party Agreements") and
that such Existing Related Party Agreements are binding obligations of the
Company except as enforceability may be limited by applicable bankruptcy,
insolvency, moratorium, reorganization, fraudulent transfer or similar laws
affecting the enforcement of creditor's rights generally and by the effect
of general principles of equity (regardless of whether asserted in a
proceeding at law or in equity). Comcast agrees effective as of and
conditioned upon the consummation of the Closing, the Option Closing and
the Simultaneous Closing that it shall not assert directly or
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indirectly in any claim, suit or action or otherwise, the invalidity or
unenforceability, in whole or in part, of any Existing Related Party
Agreement.
(c) Comcast, on behalf of itself and its Affiliates, effective as
of and conditioned upon the consummation of the Closing, the Option Closing
and the Simultaneous Closing, (i) waives and releases the Xxxxx Entities,
their Affiliates and their Affiliates' employees, officers, directors,
shareholders and their predecessors, successors and assigns from any
obligations, actions, causes of action, demands, damages, costs, expenses
and liabilities whatsoever at law or in equity known or unknown, fixed or
contingent ("Claims") which Comcast and its Affiliates ever had, now has or
which their successors or assigns can, shall or may have against them and
(ii) agrees not to cause any Intercable Group Entity to assert any Claims
against them, in the case of both (i) and (ii) arising from (x) the
adoption of the proposed resolutions set forth on Schedules B or C, (y) any
transaction or agreement between any Xxxxx Entity or an Affiliate thereof
and any Intercable Group Entity consummated or terminated prior to and no
longer in effect as of the date hereof and (z) arising from the Existing
Related Party Agreements. In the event this Agreement is terminated the
execution and delivery of this Agreement including this Section 8(c) shall
not be deemed a waiver by Comcast of each Claim which it may have against
any of the Xxxxx Entities.
(d) Comcast agrees that, for six years after the Closing, it
shall use its reasonable best efforts to cause the Company not to amend,
repeal or otherwise modify any rights to indemnification by the Company
which exist as of the Closing Date in favor of each present and former
director, officer, employee or agent of the Company under the Company's
articles of incorporation or bylaws, in each case as in effect on the date
of this Agreement, in any manner that would adversely affect the rights of
individuals who, at any time prior to the Closing, were directors, officers
or employees of the Company to receive indemnification under the Company's
articles of incorporation and bylaws for actions occurring prior to the
Closing. Comcast shall use its reasonable best efforts to cause the Company
to maintain in effect for six years from the Closing Date, if available,
the current directors' and officers' liability insurance policies
maintained by the Company covering those persons and positions who are
currently covered by such policies (provided that the Company may
substitute therefor policies of at least the same coverage containing terms
and conditions which are not less favorable) with respect to matters
occurring prior to the Closing Date; provided, however, that in no event
shall Comcast be required to use its reasonable best efforts to cause the
Company to expend pursuant to this paragraph (e) more than an amount per
year equal to one hundred fifty percent (150%) of current annual premiums
paid by the Company for such insurance. In the event that, but for the
proviso to the immediately preceding sentence, the Company would be
required to expend more than one hundred fifty percent (150%) of current
annual premiums, Comcast shall use its reasonable best efforts to cause the
Company to obtain the maximum amount of such insurance obtainable by
payment of annual premiums equal to one hundred fifty percent (150%) of
current annual premiums.
-11-
(e) Comcast agrees that (i) it shall perform its obligations
under the Comcast/BTH Agreement; (ii) it shall not, without the written
consent of the Xxxxx Entities, amend the Comcast/BTH Agreement to add any
additional conditions to the obligations of the parties to the Comcast/BTH
Agreement to consummate the Simultaneous Closing or otherwise adversely
affect in a material way the right or ability of any party thereto to
consummate the Closing or the Simultaneous Closing; and (iii) it shall
enforce vigorously any rights it may have against the BTH Entities in
respect of any breach by them of their obligations under the Comcast/BTH
Agreement, including seeking specific performance by the BTH Entities of
their obligations thereunder.
(f) Comcast agrees that it shall pay to International, at the
Closing, a fee of $1,500,000 on account of financial advisory, brokerage
and consulting services performed by International for the Company.
9. COVENANTS AND AGREEMENTS OF THE XXXXX ENTITIES.
-----------------------------------------------
(a) At the Closing (but in any event prior to the closing of the
purchase and sale of the Optioned Shares, Xxxxx agrees to resign as a
director, and Xxxxx and International agree to cause each of the other
Xxxxx Nominees (as such term is defined in the Shareholders Agreement) to
resign, seriatim from the Company's board of directors and to designate as
Xxxxx Nominees such persons as may be selected by Comcast and the Xxxxx
Entities agree to vote in favor of and Xxxxx and International agree to
cause the other Xxxxx Nominees, subject to their fiduciary duties as
provided in Section 2.4(b) of the Shareholders Agreement, to vote in favor
of electing such individuals designated by Comcast to fill the vacancies
created by such resignations and by the resignations of the Investor
Nominees (as such term is defined in the Shareholders Agreement) pursuant
to the Comcast/BTH Agreement. The Xxxxx Entities agree to follow Comcast's
direction with respect to the sequence of such resignations and the filling
of such vacancies.
(b) The Xxxxx Entities agree that to the extent the Company does
not adopt any of the proposed resolutions set forth on Schedule C hereto
prior to the Closing, then following the Closing, the Xxxxx Entities may
offer the Company the opportunity to enter into (and Comcast agrees to use
its reasonable best efforts after the Closing to cause the Company to
consider promptly and in any event within 30 days after receipt of such
offer) the same transactions with the Xxxxx Entities as are authorized by
such proposed resolution; provided that the Xxxxx Entities shall, following
the Closing, offer such opportunity to the Company with respect to those
resolutions so indicated on Schedule C. The Xxxxx Entities agree that any
such offer shall remain open for at least 30 days following the Closing.
(c) Each of the Xxxxx Entities on behalf of itself and each of
its Affiliates (the "Releasing Parties"), effective as of and conditioned
upon the consummation of the Closing, the Option Closing and the
Simultaneous Closing, releases and forever holds harmless, and waives and
relinquishes from and against all obligations, actions, causes of action,
-12-
claims, demands, damages, costs, expenses and liabilities whatsoever, at
law or in equity, known and unknown, fixed or contingent which the
Releasing Parties ever had, now have or which their predecessors,
successors, assigns, heirs, executors and administrators hereafter can,
shall or may have against (i) each of the BTH Entities and (ii) Comcast
and, in the case of both (i) and (ii), their Affiliates, and their (and
their Affiliates') officers, directors, employees, shareholders and their
predecessors, successors or assigns on account of or arising out of (A) any
matter, cause or thing whatsoever relating to the execution and delivery of
the Comcast/BTH Agreement and the consummation of the transactions
contemplated thereby; and (B) the BTH Entities having provided to Comcast
any information received by them or the Investor Nominees. In the event
that this Agreement is terminated the execution and delivery of this
Agreement including this Section 9(c) shall not be deemed to be a waiver by
the Xxxxx Entities of any claim they may have against Comcast arising out
of or related to the execution, delivery or performance of the Comcast/BTH
Agreement.
(d) In consideration of Comcast's execution and delivery of this
Agreement and the Comcast/BTH Agreement, the Xxxxx Entities agree to take
any and all actions and refrain from taking any and all actions and to use
their reasonable best efforts to cause the Company to take any and all
actions and refrain from taking any and all actions necessary or advisable
to seek a stay any proceedings relating to that certain lawsuit brought by
BTH against Xxxxx Intercable, Inc., Xxxxx International, Ltd., Xxxxx
Internet Channel, Inc. and Xxxxx X. Xxxxx, which was brought before the
U.S. District Court for the District of Colorado (the "Litigation"),
including, without limitation, any hearings or proceedings relating to any
damage claims relating to the subject matter of the Litigation and the
appeal of the order entered on May 5, 1998 until the first to occur of (i)
the date on which both the Closing and the Simultaneous Closing shall have
occurred or (ii) the termination of this Agreement as provided in Section
16 hereof and, effective as of the Closing Date, to release any and all
claims which they may have against the BTH Entities and their Affiliates in
respect of the Litigation on the terms and conditions set forth in the
Agreement and Amendment No. 1 to Shareholders Agreement of even date
herewith.
(e) The Xxxxx Entities agree, as a condition to Comcast's
obligation to deliver the Initial Consideration, to pledge 2,000,000 Class
A Shares owned by the Xxxxx Entities as of the date hereof (the "Pledged
Shares") to Comcast to secure the repayment of the Initial Consideration
pursuant to Section 2(b). The Xxxxx Entities shall pledge the Pledged
Shares by delivering them to Comcast and executing and delivering to
Comcast a pledge agreement containing the same terms as are contained in
the pledge agreement in the form attached as Exhibit C (the "Pledge
Agreement"). Comcast agrees to terminate its security interest in and
release the Pledged Shares to the Xxxxx Entities upon the earliest to occur
of (i) the Closing, (ii) the valid termination of this Agreement pursuant
to Section 16(c) hereof or (iii) repayment to Comcast of the Initial
Consideration plus interest as provided in Section 2(b). In the event that
the Xxxxx Entities breach their obligations to repay the Initial
Consideration plus interest as provided in Section 2(b), Comcast shall be
entitled to exercise its rights under the Pledge Agreement; provided that
Comcast shall remain entitled to all other remedies available to it at
-13-
law or in equity in respect of such breach and the exercise by Comcast of
its rights under the Pledge Agreement shall not relieve the Xxxxx Entities
of any liability they may have in respect of any breach of this Agreement.
(f) The Xxxxx Entities agree that they shall cause GAC to enter
into an amendment, effective as of and conditioned upon the consummation of
the Closing, the Option Closing and the Simultaneous Closing, to the GAC
Programming Agreement substantially in the form of Exhibit A hereto.
(g) The Xxxxx Entities agree that they shall cause KTV, formerly
known as Mind Extension University, Inc. and GAC to amend, effective as of
and conditioned upon the consummation of the Closing, the Option Closing
and the Simultaneous Closing, those certain Affiliate Agreements with the
Company, dated December 28, 1993, and January 1, 1996, with KTV and GAC,
respectively (the "KTV/GAC Agreements") to provide that the term of such
KTV/GAC Agreements shall expire no later than June 9, 2009.
(h) Effective as of and conditioned upon the consummation of the
Closing, the Option Closing and the Simultaneous Closing, the Xxxxx
Entities and Landlord each agree that any extension of the Lease beyond its
stated term is required to be approved by the Company.
(i) The Xxxxx Entities agree that they waive, effective as of and
conditioned upon the Closing, the Option Closing and the Simultaneous
Closing and conditioned further upon an amount equal to $50,000,000 of the
Purchase Price (as defined in the Comcast/BTH Agreement) being allocated to
the Affiliate Stock in the amounts previously disclosed to the Xxxxx
Entities, any rights they may have under the Education and Entertainment
Shareholders Agreements (including Section 4.5 thereof) with respect to the
sale of the Affiliate Stock (as such term is defined in the Comcast/BTH
Agreement) to Comcast at the Simultaneous Closing pursuant to the
Comcast/BTH Agreement. In addition, the Xxxxx Entities consent to the
assignment, effective as of and conditioned upon the consummation of the
Closing, the Option Closing and the Simultaneous Closing, of all of the
rights and obligations of BTH under the Education and Entertainment
Shareholders Agreements and the related Registration Rights Agreements.
"Education and Entertainment Shareholders Agreements" means that certain
Shareholders Agreement dated as of December 20, 0000 xxxxx Xxxxx,
Xxxxxxxxxxxxx, Xxxx Xxxxxx International Inc. and Xxxxx Entertainment
Group, Ltd. and that certain Shareholders Agreement dated as of December
20, 0000 xxxxx Xxxxx, Xxxxxxxxxxxxx, Xxxx Xxxxxx International Inc. and
Xxxxx Education Networks, Inc.
(j) The Xxxxx Entities agree that prior to the Closing without
the prior written consent of Comcast they and their Affiliates shall not
enter into any contract, agreement, understanding or transaction (including
the amendment, modification or renewal of any existing contract, agreement,
arrangement or understanding) with any Intercable Group Entity other than
those transactions specifically authorized by the resolutions listed on
Schedule B.
-14-
(k) The Xxxxx Entities agree that (i) they shall perform their
obligations under the Option Agreements and the Shareholders Agreement
(including the Agreement and Amendment No.1 to Shareholders Agreement of
even date herewith); (ii) they shall not, without the written consent of
Comcast, amend any of their rights under the Shareholders Agreement
(including the Agreement and Amendment No. 1 to Shareholders Agreement of
even date herewith); and (iii) they shall enforce vigorously any rights
they may have against the BTH Entities in respect of any breach by them of
their obligations under the Shareholder's Agreement (including the
Agreement and Amendment No. 1 to Shareholders Agreement), including seeking
specific performance by the BTH Entities of their obligations thereunder.
10. ADDITIONAL COVENANTS OF THE XXXXX ENTITIES WITH RESPECT TO THE
---------------------------------------------------------------
COMPANY.
-------
(a) The Xxxxx Entities agree that they shall use their reasonable
best efforts to cause the Company not to take or agree to take, and not to
permit any Subsidiary of the Company to take or agree to take, directly or
indirectly, any of the following actions prior to the Closing without the
prior written consent of Comcast or except pursuant to the procedures
described in paragraph (b) below:
(i) authorize, sell, distribute or otherwise issue, or grant
rights with respect to, any shares of capital stock or securities
convertible into or exchangeable for shares of capital stock of the Company
or its Subsidiaries (or any stock appreciation or similar interests or
rights with respect to such securities) except for (A) any issuances of
capital stock pursuant to the terms of stock options issued and outstanding
as of the date hereof, (B) authorizations, sales, distributions or other
issuances of capital stock of a Subsidiary of the Company to Persons that
are wholly-owned Intercable Group Entities (except in connection with sales
of capital stock of a Subsidiary of the Company permitted by subparagraphs
(v) and (vi) of Section 2.6(a) of the Shareholders Agreement and Section
10(a)(ii) of this Agreement), and (C) Permitted Equity Issuances as such
term is defined in the Shareholders Agreement.
(ii) any action described in Section 2.6(a)(ii) through
(vii), inclusive, and Section 2.6(a)(ix) and (xi) of the Shareholders
Agreement.
(iii) enter into any contract, agreement, arrangement,
understanding or transaction (including the amendment, modification or renewal
of any existing contract, agreement, arrangement or understanding) with any
Xxxxx Entity or BTH Entity or any Affiliate of any Xxxxx Entity or BTH Entity
other than those transactions specifically identified by the resolutions listed
on Schedule B. For purposes of this clause (iii) only no Intercable Group Entity
shall be deemed an Affiliate of any Xxxxx Entity or any BTH Entity.
(iv) any action that would reasonably be expected to, as a
result of a law, rule or regulation of a Governmental Authority organized
within the United States of
-15-
America, England or any other jurisdiction where the Intercable Group
conducts a material portion of its business, (A) prevent Comcast, BTH or
their Affiliates from consummating the transactions contemplated hereby or
from otherwise obtaining control of the Company, (B) require Comcast, BTH
or their Affiliates to divest or otherwise limit Comcast's ability to
exercise full rights of ownership over the Control Option or any shares of
capital stock of the Company (whether acquired upon exercise of the Control
Option or otherwise) or (C) require, after the exercise of the Control
Option, Comcast, BTH or their Affiliates or the Intercable Group to divest
any material business or assets or impose a material limitation on the
conduct of Comcast's or the Intercable Group's business; provided that (1)
if on the date hereof the activities conducted by Comcast or BTH are
subject to any such law, rule or regulation (based on interpretations in
effect on the date hereof) that has, or would reasonably be expected to
have, one or more of the effects described in clauses (A), (B) or (C), or
if after the date hereof Comcast or BTH enters into a new line of business
and at such time there is a law, rule or regulation that has, or would
reasonably be expected to have, one or more of the effects described in
clauses (A), (B) or (C), then in each case this subparagraph (iv) will not
apply to actions of the Intercable Group that would reasonably be expected
to have such effects under such law, rule or regulation, (2) the Xxxxx
Entities shall not be in breach of this clause (iv) in matters relating to
Franchise agreements and material contracts if the Company is in compliance
with its obligations under Section 5.2 of the Shareholders Agreement
concerning such matters and if the Company is in compliance with the
obligations it would have under Section 5.2 of the Shareholders Agreement
if Comcast were "Investor" as such term is used in the Shareholders
Agreement, and (3) in the case of clauses (A) and (B) the effect of any
such action must be due to the business or assets of Comcast or BTH (and
not an agent thereof).
(v) declare or make any provision for payment of, or the
setting aside of assets with respect to, any dividend or other distribution
of any property by the Company with respect to any shares of capital stock
of the Company.
(b) If the Company wishes to take an action described in
paragraph (a) of this Section 10, the Xxxxx Entities shall cause the
Company to deliver to Comcast a written notice describing in reasonable
detail the action proposed to be taken and expressly requesting Comcast's
consent to such action pursuant to this Section 10. Such notice shall be
accompanied by such additional information as is reasonably required to
enable Comcast to evaluate such proposed action. Upon receipt of such
notice and of any additional information as may be reasonably requested by
Comcast, Comcast will have ten Business Days to exercise its right not to
consent to such proposed action. If no response is received by the Xxxxx
Entities from Comcast prior to the expiration of such time period, the
proposed action will be deemed to have been approved by Comcast. The Xxxxx
Entities shall not be in breach of this Section 10 if such action is taken
in compliance with the procedure set forth in this paragraph.
11. PRESERVATION OF BUSINESS. Between the date hereof and the
------------------------
earlier of the Closing Date and the date this Agreement is terminated, the Xxxxx
Entities will use their reasonable best efforts to preserve, and to cause the
Company to preserve, the business
-16-
organization of the Company intact and to preserve the goodwill of the
Company's (and its Subsidiaries') suppliers, clients and others having
business relationships with the Company (or its Subsidiaries) and to
operate their respective businesses in the ordinary course, consistent with
past practices.
12. ACCESS.
------
(a) Immediately upon execution of this Agreement, the Xxxxx
Entities shall use their best efforts to cause the Company to provide
Comcast and its representatives complete access to the books, records,
agreements, employees, accountants and the offices of the Company and its
Subsidiaries for the purposes of making such investigation of the business
of the Company and its Subsidiaries as Comcast shall deem necessary;
provided, however, that such investigation shall not unreasonably interfere
with the operations of the Company. Between the date hereof and the
termination of this Agreement, Xxxxx agrees to provide to Comcast copies of
all information delivered to BTH or any Investor Nominee in accordance with
the Shareholders Agreement. In addition, the parties agree that the BTH
Entities shall be permitted to provide to Comcast all information regarding
the Company received by them or any Investor Nominee after the date hereof;
provided that any such information provided to Comcast shall be subject to
paragraph (b) below.
(b) From the date hereof to the earlier of the Closing Date or
the date which is one year after the termination of this Agreement, Comcast
and its officers, directors, employees, representatives and Affiliates will
use reasonable care to avoid disclosure to third parties of proprietary
information (whether received by Comcast from the Company, the Xxxxx
Entities or the BTH Entities) relating to the Company, except as
specifically (and only to the extent) required to be disclosed by
applicable law or administrative or legal process. For purposes of
Comcast's obligations under this Section 12, reasonable care means the same
degree of care that Comcast exercises with respect to similar types of its
own proprietary information. It is understood and agreed that: (i) Comcast
will (to the extent reasonably possible) notify the Xxxxx Entities in
writing prior to any proposed disclosure of such nonpublic information in
response to the requirements of applicable law or administrative or legal
process in order to enable the Xxxxx Entities to seek an appropriate
protective order; (ii) Comcast may disclose any information which (x) is or
becomes publicly available other than as a result of a disclosure of
Comcast in breach of this Agreement, (y) was known to the party receiving
such information prior to the receipt thereof other than as a result of a
disclosure by Comcast in breach of this Agreement, or (z) was previously
independently developed by the party receiving such information without the
assistance of Comcast. In the event that the transactions contemplated
hereby do not take place, all original documents shall be returned by
Comcast if requested by the providing party within thirty (30) days of the
termination of this Agreement; otherwise, Comcast shall dispose of any such
original documents in the normal course of Comcast's business.
13. COSTS AND EXPENSES. Whether or not the transactions
------------------
contemplated hereby are consummated, each party shall bear its own costs and
expenses. The Xxxxx Entities
-17-
agree to indemnify, defend and hold harmless Comcast and its Affiliates
and each of their respective directors, officers, employees, agents,
contractors, successors and assigns from any claims by or liabilities to any
third party with whom the Xxxxx Entities or their agents had discussions
regarding the disposition of their interests in the Company arising from the
consummation of the transactions contemplated hereby.
14. PUBLICITY. The parties agree to keep the transactions
---------
contemplated hereby confidential until mutual agreement is reached in writing
regarding publicity or until otherwise required by law (and as to the latter the
parties will make reasonable efforts to consult with each other).
15. STANDSTILL. From the date of the execution of this Agreement
----------
until the Closing or termination of this Agreement, the Xxxxx Entities, on
behalf of themselves and each of their Affiliates, agents, officers,
consultants, and representatives, agree not to solicit, encourage or negotiate
with any other party relating to or enter into any contract, agreement,
understanding or arrangement with respect to the sale of the Common Stock of the
Company owned beneficially or of record by the Xxxxx Entities or a transaction
involving the merger, consolidation or sale of the Company or substantially all
of the Company's assets.
16. TERMINATION. This Agreement may be terminated as follows:
-----------
(a) by mutual written consent of Comcast and the Xxxxx Entities; (b) by Comcast
upon written notice to the other parties hereto of such termination if (x) the
Xxxxx Entities have materially breached any of their obligations contained
herein and the Xxxxx Entities have failed to cure such breach within fifteen
(15) calendar days of receipt of written notice of such breach from Comcast, (y)
all of the conditions to closing set forth in Sections 3 and 4 hereof shall have
been fulfilled or waived at the time of such termination except for the
condition which has not been fulfilled or waived because of the Xxxxx Entities'
breach of this Agreement and (z) Comcast shall not be in material breach of its
obligations contained herein or in the BTH/Comcast Agreement; (c) by the Xxxxx
Entities upon written notice to Comcast of such termination if (x) Comcast has
materially breached any of its obligations contained herein and Comcast has
failed to cure such breach within fifteen (15) calendar days of receipt of
written notice of such breach from the Xxxxx Entities, (y) all of the conditions
to closing set forth in Sections 3 and 4 hereof shall have been fulfilled or
waived at the time of such termination except for the condition which has not
been fulfilled or waived because of Comcast's breach of this Agreement and (z)
the Xxxxx Entities shall not be in material breach of their obligations
contained herein or in the Agreement and Amendment No. 1 to Shareholders
Agreement of even date herewith; (d) if the Closing shall not have occurred on
or prior to June 30, 1999, by Comcast upon written notice of such termination to
the other parties hereto, provided that no such notice of termination shall be
effective if at the time of such
-18-
purported termination, Comcast is in material breach of any of its obligations
contained herein or in the Comcast/BTH Agreement; or (e) if the Closing shall
not have occurred on or prior to June 30, 1999, by the Xxxxx Entities upon
written notice of such termination to Comcast and repayment to Comcast of the
Initial Consideration as provided in Section 2(b) hereof, provided that no such
notice of termination shall be effective if at the time of such purported
termination, any Xxxxx Entity shall be in material breach of any of its
obligations contained herein or in the Agreement and Amendment No. 1 to
Shareholders Agreement of even date herewith. This Agreement and the rights and
obligations of the parties hereunder shall cease upon any termination pursuant
to this Section; provided that (x) the provisions of this Section and Section
2(b), 12(b) and 13 shall survive any termination of this Agreement and (y)
nothing herein shall relieve any party from any liability for any prior breach
of this Agreement.
17. MISCELLANEOUS.
-------------
(a) Successors and Assigns. The provisions of this Agreement
----------------------
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors. No party may assign, delegate or otherwise transfer any
of its rights or obligations under this Agreement without the written consent of
the other parties hereto, provided that Comcast may assign its rights, but not
its obligations, hereunder to any SUBSIDIARY OF COMCAST.
(b) Specific Performance. The parties agree that (i) Comcast
--------------------
would be irreparably damaged if for any reason any Xxxxx Entity failed to sell
the Optioned Shares upon exercise of the Control Option or to perform any of
such Xxxxx Entity's other obligations under this Agreement, and that Comcast
would not have on adequate remedy at law for money damages in such event and
(ii) the Xxxxx Entities would be irreparably damaged if for any reason Comcast
failed to perform any of Comcast's obligations under this Agreement, and that
the Xxxxx Entities would not have an adequate remedy at law for money damages in
such event. Accordingly, each party shall be entitled to specific performance
and injunctive and other equitable relief to enforce the performance of this
Agreement by the other party. This provision is without prejudice to any other
rights that each party may have against the other party for any failure to
perform their obligations under this Agreement.
(c) Notices. All notices, requests, claims, demands and other
-------
communications hereunder shall be deemed to have been duly given when delivered
in person, by facsimile transmission, nationally-recognized overnight courier
service or by registered or certified mail (postage prepaid, return receipt
requested):
if to the Xxxxx Entities,
c/o Xxxxx X. Xxxxx
Xxxxx International, Ltd.
0000 Xxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
-19-
if to Comcast:
Comcast Corporation
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000-0000
Attn: General Counsel
Any notice delivered after business hours or on any day which is not a Business
Day shall be deemed for purposes of computing any time period hereunder to have
been delivered on the succeeding Business Day.
(d) Amendments and Waivers. (i) Any provision of this
----------------------
Agreement may be amended or waived if, but only if, such amendment or waiver is
in writing and is signed, in the case of an amendment, by each party to this
Agreement, or in the case of a waiver, by the party against whom the waiver is
to be effective.
(ii) No failure or delay by any party in exercising any right,
power or privilege hereunder shall operate as a waiver thereof nor shall any
single or partial exercise thereof preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. The rights and
remedies herein provided shall be cumulative and not exclusive of any rights or
remedies provided by law.
(e) Governing Law. This Agreement shall be construed in
-------------
accordance with and governed by the law of the State of Delaware, without regard
to the conflicts of law rules of such state.
(f) Counterparts; Effectiveness: 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.
This Agreement shall become effective when each party hereto shall have received
counterparts hereof signed by all of the other parties hereto.
(g) Entire Agreement. This Agreement, the Shareholders
----------------
Agreement (including Agreement and Amendment No.1 to Shareholders Agreement),
the Option Agreements, the Comcast/BTH Agreement and the agreements attached as
exhibits hereto, together with their respective schedules and exhibits,
constitute the entire agreement between the parties with respect to the subject
matter of this Agreement and supersedes all prior agreements and understandings,
both oral and written, between the parties with respect to the subject matter of
this Agreement.
(h) Separability. In case any provision of this Agreement
------------
shall be held to be invalid, illegal or unenforceable, the validity, legality
and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
-20-
(i) No Third Party Beneficiaries. This Agreement is for the
----------------------------
sole benefit of the parties hereto and their permitted assigns and nothing
herein expressed or implied shall give or be construed to give to any
person or entity, other than the parties hereto and such assigns, any legal
or equitable rights hereunder.
(j) Tax Matters. The parties hereto covenant and agree to
-----------
consult with one another and cooperate in good faith to determine mutually
advantageous allocations and tax structures to effect the transactions
contemplated by this Agreement.
18. DEFINITIONS.
-----------
"Affiliate" shall have the same meaning as in Rule 12b-2 under the
Securities Exchange Act of 1934, as amended.
"Business Day" means any day except a Saturday, Sunday or other day on
which commercial banks are authorized to close in New York, New York.
"Cable Partnership" means, at any time, any partnership that is an
Intercable Group Entity at such time.
"Franchise" means written "franchise" within the meaning of Section
602(8) of the Cable Communications Policy Act of 1984 (47 U.S.C. (S)522(9)).
"Franchise Authority" has the meaning that term is given by Section
602(9) of the Cable Communications Act of 1984 (47 U.S.C. (S)522(10)).
"Governmental Authority" means any local, county, state, commonwealth,
federal or foreign court, judicial, executive or legislative instrumentality, or
any agency, authority, commission, board or official thereof, including, without
limitation, any Franchise Authority.
"Intercable Group" means, at any time, the Company and each person
that is a Subsidiary of Xxxxx Intercable, Inc., a Colorado corporation at such
time.
"Intercable Group Entity" means, at any time, each Person included in
the Intercable Group at such time.
"Xxxxx" means Xxxxx X. Xxxxx, a resident of Colorado, or in the event
he is not then alive or legally competent, his executor, the administrator of
his estate or his legal representative (including, without limitation, his
guardian, conservator or other similar fiduciary).
"Managed System" means any System that is owned and operated by a
Cable Partnership.
-21-
"Option Closing" shall mean the consummation of the purchase and sale
of the Control Shares.
"Owned System" means any System that is owned and operated by an
Intercable Group Entity other than a Cable Partnership.
"Person" means an individual, corporation, partnership, association,
trust or other entity or organization, including a government or political
subdivision or an agency or instrumentality thereof.
"Securities Act" means the Securities Act of 1933, as amended, and
rules and regulations promulgated thereunder.
"Subsidiary" means, as to any Person, (i) any entity of which
securities or other ownership interests having ordinary voting power to elect a
majority of the board of directors or other persons performing similar functions
are, directly or indirectly, owned or controlled by such person, (ii) any
partnership of which such Person is, directly or indirectly, a general or
managing partner or (iii) any other entity that is, directly or indirectly,
controlled by such Person.
"System" means a cable television or SMATV system owned or operated by
an Intercable Group Entity serving subscribers within a geographical area
covered by one or more Franchise agreements from the same head end facility (or
two or more related head end facilities).
-22-
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their duly authorized representatives as of the day and year first above
written.
COMCAST CORPORATION
By: /s/ Xxxxxx X. Block
-------------------
/s/ Xxxxx X. Xxxxx
------------------
Xxxxx X. Xxxxx
XXXXX XXXXX GRANTOR BUSINESS TRUST
By: /s/ Xxxxxxxxx Xxxxx Marocco
---------------------------
XXXXX INTERNATIONAL GRANTOR BUSINESS TRUST
By: /s/ Xxxxxxxxx Xxxxx Marocco
---------------------------
XXXXX INTERNATIONAL, LTD.
By: /s/ Xxxxx X. Xxxxx
------------------
XXXXX SPACE SEGMENT, INC.
By: /s/ Xxxxx X. Xxxxx
------------------
-23-
XXXXX GLOBAL GROUP, INC.
By: /s/ Xxxxx X. Xxxxx
------------------
XXXXX INTERDIGITAL, INC.
By: /s/ Xxxxx X. Xxxxx
------------------
XXXXX ENTERTAINMENT GROUP, LTD.
By: /s/ Xxxxx X. Xxxxx
------------------
The undersigned hereby joins in this Agreement as a party hereto
solely for purposes of Sections 9(h) and 17 hereof.
XXXXX PROPERTIES, INC.
By: /s/ Xxxxx X. Xxxxx
------------------
The undersigned hereby consent to the execution of this Agreement
pursuant to Section 5.4 of the Shareholders Agreement and Section 4.1 of each of
the Option Agreements.
BCI TELECOM HOLDING INC.
By: /s/ Xxxx Xxxxxxxxx
------------------
Director
BTH (INTERCABLE) LTD.
By: /s/ Xxxxxxxxxxx X. XxXxxxxx
---------------------------
Director/President
-24-
BTH (US CABLE) LTD.
By: /s/ Xxxxxxxxxxx X. XxXxxxxx
---------------------------
Director/President
-25-
Schedule A
Beneficial Ownership of Optioned Shares held by the Xxxxx Entities
------------------------------------------------------------------
Optioned Shares
(Common Stock)
Xxxxx International Grantor Business Trust 2,239,416
Xxxxx Xxxxx Grantor Business Trust 474,400
Xxxxx Space Segment, Inc. 35,707
Xxxxx Global Group, Inc. 27,585
Xxxxx Interdigital, Inc. 643
Xxxxx Entertainment Group, Ltd. 100,400
---------
2,878,151
=========
Class A Shares
Xxxxx International Ltd. 1,497,373
Xxxxx X. Xxxxx 526,893
---------
2,024,266
=========
-26-
Schedule B
Permitted Affiliate Transactions
--------------------------------
1. The purchase of the following assets by Xxxxx or a Xxxxx Entity at a price
equal to the fair market value (determined by appraisal) of such assets:
(a) that certain real estate located on Lot 1, Xxxxx Intercable's
headquarters according to the recorded plot thereof, County of Arapahoe, State
of Colorado and the Panorama Falls Office Building.
(b) the Company's equity interest in each of Xxxxx Futurex, Inc.,
Xxxxx Global Group and Xxxxx Customer Service Management LLC
(c) all of the Company's interest in the "Xxxxx Spacelink"
tradename.
2. The assumption by the Xxxxx Entities of the Company's rights and obligations
under that certain lease dated, December 23, 1997, by and between the Company
and PNC Leasing Corp. ("Lessor") relating to the aircraft presently leased by
the Company and the release by the Lessor of the Company from such lease.
3. The amendment of (i) that certain lease, dated November 30, 1989, by and
between the Company and Xxxxx Properties, Inc. (the "Lease") (a) providing the
Company with a right to terminate the Lease upon (x) vacating the entire
premises which are subject to the Lease and occupied by the Company with the
intention not to re-occupy such leased premises and (y) the payment by the
Company to Xxxxx Properties, Inc. of an amount determined pursuant to section
27(a)(v) of such Lease (without the offset for fair market rental value of such
premises provided in such section calculated until the end of the stated term of
such lease, June 30, 2000, and (b) prohibiting the Company from subleasing the
premises to any person other than Xxxxx, through the stated term of such lease,
and (ii) any subleases relating to the premises providing that such subleases
automatically terminate upon the termination of the Lease and relieving the
Company of any further obligations under such sublease following such
termination.
4. The adoption of a Severance Plan for certain associates of the Intercable
Group Entities located in Denver, Colorado, and Lanham, Maryland. Amounts
payable under the plan shall be in cash and shall not exceed $33,000,000 in the
aggregate, of which not more than $15,000,000 shall be non-deductible by the
Company from its income under Section 280G of the Internal Revenue Code of 1986,
as amended (the "Code").
-27-
Such Severance Plan may also include the provision of COBRA benefits for the
number of weeks used to calculate a covered employee's severance payment but in
any case not to exceed one year.
All such severance payments shall, as a condition to payment, require that the
recipient be an employee of the Company at all times from the date hereof to the
date which is 90 days after the Closing Date unless such employee is terminated
without cause prior to the expiration of such 90-day period. Xxxxx shall not be
a recipient of any such severance payments.
5. The termination of the Services Agreement on the terms set forth on Schedule
C-1.
-28-
Schedule C
Transactions Offered to the Company Post-Closing
------------------------------------------------
1. The purchase of the following assets by Xxxxx or a Xxxxx Entity at a price
equal to the fair market value (determined by appraisal) of such assets:
(a) that certain real estate located on Lot 1, Xxxxx Intercable
headquarters according to the recorded plot thereof, County of Arapahoe, State
of Colorado and the Panorama Falls Office Building.
(b) the Company's equity interest in each of Xxxxx Futurex, Inc.,
Xxxxx Global Group and Xxxxx Customer Service Management LLC
(c) all of the Company's interest in the "Xxxxx Spacelink" tradename.
*2. The assumption by the Xxxxx Entities of the Company's rights and
obligations under that certain lease dated, December 23, 1997, by and between
the Company and PNC Leasing Corp. ("Lessor") relating to the aircraft presently
leased by the Company and the release by the Lessor of the Company from such
lease.
*3. The termination of the Services Agreement on the terms set forth on
Schedule C-1.
*4. The amendment of (i) that certain lease, dated November 30, 1989, by and
between the Company and Xxxxx Properties, Inc. (the "Lease") (a) providing the
Company with a right to terminate the Lease upon (x) vacating the entire
premises which are subject to the Lease and occupied by the Company with the
intention not to re-occupy such leased premises and (y) the payment by the
Company to Xxxxx Properties, Inc. of an amount determined pursuant to section
27(a)(v) of such Lease (without the offset for fair market rental value of such
premises provided in such section calculated until the end of the stated term of
such lease, June 30, 2000 and (b) prohibiting the Company from subleasing the
premises to any person other than Xxxxx, through the stated term of such lease,
and (ii) any subleases relating to the premises providing that such subleases
automatically terminate upon the termination of the Lease and relieving the
Company of any further obligations under such sublease following such
termination.
* Indicates transactions which Xxxxx Entities shall offer the Company following
the Closing as provided in Section 9(b).
-29-
Schedule C-1
The Services Agreement dated as of December 9, 1994 (the "Services
Agreement") between Xxxxx Intercable, Inc. ("Intercable") and Xxxxx Interactive,
Inc. ("Interactive") may be terminated by Intercable, prior to the end of the
term stated in the Services Agreement (an "Early Termination"), on sixty (60)
days prior written notice to Interactive (an "Early Termination Notice"),
subject to the following termination payment:
In connection with an Early Termination, Intercable shall pay to
Interactive on the termination date (x) the net present value discounted at a
rate of 6.25% of the greater of (i) $50,000 or (ii) the average Management Fee
(as such term is defined in the Services Agreement) which was payable during the
three (3) months immediately preceding the date of the Early Termination Notice,
in either case times the number of months remaining in the term of the Services
Agreement; plus (y) an amount equal to the severance costs associated with the
termination of employment of employees of Interactive in connection with the
termination of the Services Agreement, which severance payments shall be
calculated based on the formulas contained in the severance plan adopted by
Intercable in connection with the change in control of Intercable from Xxxxx X.
Xxxxx and Xxxxx International, Ltd. to Comcast Corporation; plus (z) any lease
termination costs associated with early termination of leases of equipment that
will no longer be required or used as a result of the Early Termination and
which the Company has decided not to assume.
-30-
SCHEDULE F
----------
Owned Systems
-------------
FRANCHISES HELD BY
XXXXX INTERCABLE, INC.
----------------------
Panama City Beach, Florida System
---------------------------------
City of Panama City Beach
Oxnard, California System
-------------------------
City of Oxnard
FRANCHISES HELD BY
XXXXX COMMUNICATIONS OF MARYLAND, INC.
--------------------------------------
Prince George's County System:
------------------------------
North Prince George's County
South Prince George's County
City of Bowie
Chesapeake Bay Group (including Annapolis),
-------------------------------------------
Xxxx Arundel County and
-----------------------
Xxxxxxx County Systems):
-----------------------
Xxxx Arundel County
City of Annapolis
FRANCHISES HELD BY
XXXXX COMMUNICATIONS OF
GEORGIA/SOUTH CAROLINA, INC.
----------------------------
Savannah System:
---------------
Chatham County
City of Savannah
FRANCHISES HELD BY
XXXXX COMMUNICATIONS OF VIRGINIA, INC.
--------------------------------------
Alexandria System:
-----------------
City of Alexandria
Prince Xxxxxxx Group (including
-------------------------------
Xxxx City, Reston and
---------------------
Manassas Systems):
----------------
Fairfax County (Reston)
City of Manassas
FRANCHISES HELD BY
XXXXX COMMUNICATIONS OF ARIZONA, INC.
-------------------------------------
Pima County System:
------------------
Town of Oro Valley
FRANCHISES HELD BY
XXXXX COMMUNICATIONS OF MISSOURI, INC.
--------------------------------------
Independence System:
-------------------
City of Olathe, KS
City of Raytown
-32-
FRANCHISES HELD BY
XXXXX COMMUNICATIONS OF NEW MEXICO, INC.
----------------------------------------
Albuquerque System:
------------------
City of Albuquerque
FRANCHISES HELD BY
XXXXX OF WISCONSIN, INC.
------------------------
Manitowoc System:
----------------
City of Manitowoc
MANAGED SYSTEMS
---------------
FRANCHISES HELD BY
CABLE TV FUND 14-A, Ltd.
------------------------
Xxxxxxx County System:
---------------------
Xxxxxxx County
Naperville System
-----------------
City of Naperville
FRANCHISES HELD BY
XXXXX GROWTH PARTNERS, L.P.
---------------------------
Wheaton System
--------------
City of Wheaton
Village of Addison
-3-
FRANCHISES HELD BY
IDS/XXXXX JOINT VENTURE PARTNERS
--------------------------------
Aurora System
-------------
City of Aurora
FRANCHISES HELD BY
CABLE TV FUND 12-BCD VENTURE
-----------------------------
Palmdale and Littlerock Systems:
-------------------------------
Los Angeles County
City of Lancaster
City of Palmdale
FRANCHISES HELD BY
XXXXX CABLE INCOME FUND 1-A, LTD.
---------------------------------
Owatonna/Glencoe System
-----------------------
City of Owatonna
FRANCHISES HELD BY
CABLE TV FUND 12-A, LTD.
------------------------
Xxxx County/Orland Park System
------------------------------
Village of Mundelein
FRANCHISES HELD BY
CABLE TV FUND 15-A, LTD.
------------------------
South Suburban System
---------------------
Village of Lansing
-4-
EXHIBIT C
PLEDGE AGREEMENT
This PLEDGE AGREEMENT is entered into as of the 12 day of August 1998, by
and among Xxxxx X. Xxxxx ("Xxxxx"), Xxxxx International, Ltd. ("International")
and Comcast Corporation ("Comcast").
WHEREAS, Comcast, Xxxxx, International, Xxxxx Xxxxx Grantor Business
Trust, Xxxxx International Grantor Business Trust, Xxxxx Space Segment, Inc.,
Xxxxx Global Group, Inc., Xxxxx Interdigital, Inc., and Xxxxx Entertainment
Group, Ltd. have entered into that certain Agreement, dated as of August __,
1998 (the "Xxxxx/Comcast Agreement");
WHEREAS, Section 2 of the Xxxxx/Comcast agreement provides for Comcast
to deposit $50,000,000 with International (the "Initial Consideration");
WHEREAS, Section 2 of the Xxxxx/Comcast Agreement further provides
that under certain circumstances described therein, the Xxxxx Entities, as
defined therein, are obligated to repay the Initial Consideration to Comcast
plus interest as described in such Section 2 (the "Secured Obligations");
WHEREAS, Comcast's obligation to deposit the Initial Consideration
with International is conditioned upon Xxxxx and International pledging
2,000,000 shares (the "Class A Stock") of Class A Common Stock, par value $.01
per share, of Xxxxx Intercable, Inc. (the "Company") with Comcast to secure the
Secured Obligations; and
WHEREAS, contemporaneously with the execution and delivery hereof
Comcast is depositing the Initial Consideration with International;
THEREFORE, in consideration of the mutual covenants contained herein
and intending to be legally bound hereby, the parties agree as follows.
1. The Security Interest. In order to secure the performance of the
---------------------
Secured Obligations in accordance with the terms thereof,
(a) Xxxxx and International each hereby assign and pledge to Comcast and grant
to Comcast a security interest in the Class A Shares, and all of their
rights and privileges with respect to the Class A Shares, and all income
and profits thereon (other than dividends paid by the Company in respect of
the Class A Shares prior to any exercise by Comcast of its remedies
hereunder, which will be paid over to Xxxxx and International as provided
in Section 4)
and all proceeds of the foregoing, and any and all property referred to in
Section 1(b) (the "Collateral").
(b) In the event any change in the Company's capital stock shall occur,
Xxxxx and International will immediately pledge with Comcast any securities (and
any share certificates or other instruments evidencing such securities) issued
by the Company in respect of the Class A Shares, and all income and profits
thereon (other than dividends paid by the Company in respect of the Class A
Shares prior to any exercise by Comcast of its remedies hereunder), as
additional security for the Secured Obligations. All such securities, share
certificates, instruments and other property constitute Collateral and are
subject to all provisions of this Agreement.
(c) The Security Interest is granted as security only and shall not
subject Comcast to, or transfer or in any way affect or modify, any obligation
or liability of Xxxxx and International with respect to any of the Collateral or
any transaction in connection therewith.
(d) In the event Xxxxx and International fail to perform any Secured
Obligation, Comcast shall be entitled to exercise all rights of a secured party
under the Uniform Commercial Code (whether or not in effect in the jurisdiction
where the rights are exercised) and such other rights as may otherwise be
provided to a secured party under applicable law.
2. Delivery of Collateral. All certificates representing the Class A
----------------------
Shares (or securities described in Section 1(b)) delivered to Comcast by Xxxxx
and International pursuant hereto shall be in suitable form for transfer by
delivery, or shall be accompanied by duly executed instruments of transfer or
assignment in blank, with signatures appropriately guaranteed, and accompanied
by any required transfer tax stamps, all in form and substance satisfactory to
Comcast.
3. Further Assurances. (a) Xxxxx and International agrees that they
------------------
will, at Comcast's expense and in such manner and form as Comcast may reasonably
require, execute, deliver, file and record any financing statement, specific
assignment or other paper and take any other action that may be necessary or
desirable that Comcast may request, in order to create, preserve, perfect or
validate the Security Interest or to enable Comcast to exercise and enforce its
rights hereunder with respect to any of the Collateral. To the extent permitted
by applicable law, Xxxxx and International hereby authorize Comcast to execute
and file, in the name of Xxxxx and International or otherwise, Uniform
Commercial Code financing statements (which may be carbon, photographic,
photostatic or other reproductions of this Pledge Agreement or of a financing
statement relating to this Pledge Agreement) which Comcast in its reasonable
discretion may deem necessary or appropriate to further perfect the Security
Interest.
(b) Xxxxx and International agree that they will not change (i) their
name, identity or structure in any manner or (ii) the location of their chief
executive office or domicile unless they shall have given Comcast not less than
30 days' prior notice thereof.
(c) In connection with an exercise of rights pursuant to Section 1(d),
Comcast may cause any or all of the Class A Shares to be transferred of record
into the name of Comcast or its designee. After notice thereof, Xxxxx and
International will promptly give to Comcast (or its designee) copies of any
notices or other communications received by them with respect to the Class A
Shares registered in the name of Xxxxx and International, and Comcast will
promptly give Xxxxx and International copies of any notices and communications
received by Comcast with respect to any Class A Shares registered in the name of
Comcast.
4. Right to Vote and Receive Dividends on Collateral. (a) Until such
-------------------------------------------------
time (if ever) that Comcast shall have exercised, pursuant to Section 1(d), any
of its remedies in respect of the Collateral, Xxxxx and International shall
retain all voting rights with respect to the Class A Shares and shall have the
right to receive all dividends paid by the Company in respect of the Collateral
and Comcast shall take all such action as Xxxxx and International may deem
necessary or appropriate to give effect to such right. All such dividends which
are received by Comcast shall be received in trust for the benefit of Xxxxx and
International and shall promptly be paid over to Xxxxx and International.
(b) In the event Comcast exercises, pursuant to Section 1(d), any of its
remedies in respect of the Collateral, Comcast shall thereafter be entitled to
receive all dividends paid by the Company in respect of the Collateral.
5. Limitation on Duty of Comcast in Respect of Collateral. Beyond the
------------------------------------------------------
exercise of reasonable care in the custody thereof, Comcast shall have no duty
as to any Collateral in its possession or control or in the possession or
control of any agent or bailee or any income thereon or as to the preservation
of rights against prior parties or any other rights pertaining thereto. Comcast
shall be deemed to have exercised reasonable care in the custody and
preservation of the Collateral in its possession if the Collateral is accorded
treatment substantially equal to that which it accords its own property, and
shall not be liable or responsible for any loss or damage to any of the
Collateral, or for any diminution in the value thereof, by reason of the act or
omission of any agent or bailee selected by Comcast in good faith.
6. Termination of Security Interest; Release of Collateral. The
-------------------------------------------------------
Security Interest granted hereunder shall terminate, and all rights to the
Collateral shall revert to Xxxxx and International at such time as the Xxxxx
Entities shall have no further obligation to repay the Initial Consideration.
Upon any such termination of the Security Interests or release of Collateral,
Comcast will deliver the Collateral to Xxxxx and International and will execute
and deliver to Xxxxx and International such documents as Xxxxx and International
shall reasonably request to evidence the termination of the Security Interest or
the release of such Collateral, as the case may be.
7. Notices. All notices, requests, claims, demands and other
-------
communications hereunder shall be deemed to have been duly given when delivered
in person, by facsimile transmission, nationally-recognized overnight courier
service or by registered or certified mail (postage prepaid, return receipt
requested):
if to Xxxxx or International,
c/o Xxxxx X. Xxxxx
Xxxxx International, Ltd.
0000 Xxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
if to Comcast:
Comcast Corporation
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000-0000
Attn: General Counsel
Any notice delivered after business hours or on any day which is not a business
day shall be deemed for purposes of computing any time period hereunder to have
been delivered on the succeeding business day.
8. Amendments and Waivers. (i) Any provision of this Pledge
----------------------
Agreement may be amended or waived if, but only if, such amendment or waiver is
in writing and is signed, in the case of an amendment, by each party to this
Pledge Agreement, or in the case of a waiver, by the party against whom the
waiver is to be effective. No failure or delay by any party in exercising any
right, power or privilege hereunder shall operate as a waiver thereof nor shall
any single or partial exercise thereof preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. The rights and
remedies herein provided shall be cumulative and not exclusive of any rights or
remedies provided by law.
9. Governing Law. This Agreement shall be construed in accordance
-------------
with and governed by the law of the State of Delaware, without regard to the
conflicts of law rules of such state.
10. Counterparts; Effectiveness: 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. This
Agreement shall become
effective when each party hereto shall have received counterparts hereof signed
by all of the other parties hereto.
11. Entire Agreement. This Pledge Agreement and the Xxxxx/Comcast
----------------
Agreement together with its respective schedules and exhibits, constitute the
entire agreement between the parties with respect to the subject matter of this
Pledge Agreement and supersedes all prior agreements and understandings, both
oral and written, between the parties with respect to the subject matter of this
Pledge Agreement.
12. Separability. In case any provision of this Pledge Agreement
------------
shall be held to be invalid, illegal or unenforceable, the validity, legality
and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
13. Successors and Assigns. The provisions of this Pledge Agreement
----------------------
are for the benefit of Comcast and Xxxxx and International and their respective
successors and assigns.
IN WITNESS WHEREOF, the parties hereto have caused this Pledge
Agreement to be executed as of the date set forth above by their duly authorized
representatives.
COMCAST CORPORATION
By:________________________________
___________________________________
Xxxxx X. Xxxxx
XXXXX INTERNATIONAL, LTD.
By:________________________________
