EXHIBIT 2.9
Xxxx X. Xxxxxx
0000 XXX Xxxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
February 6, 1998
To the Parties to the Restructuring
Agreement (as hereinafter defined)
Gentlemen:
This letter confirms our agreement concerning certain matters
relating to the transactions contemplated by the Merger and Contribution
Agreement dated as of February 6, 1998 (the "Restructuring Agreement"), among
TCI Satellite Entertainment, Inc. ("TSAT"), PRIMESTAR, Inc. (the "Company"),
Time Warner Entertainment Company L.P., Advance/Xxxxxxxx Partnership, Comcast
Corporation, Cox Communications, Inc., MediaOne of Delaware, Inc. and GE
American Communications, Inc. Terms used and not defined herein have the
meanings ascribed to them in the Restructuring Agreement.
Accordingly, in consideration of the premises, and to induce
you to enter into the Restructuring Agreement and the other agreements
contemplated thereby, and to perform your obligations thereunder, I hereby agree
with you as follows:
1. If the Restructuring Transaction is consummated in
accordance with the Restructuring Agreement, at the Closing, I will execute and
deliver counterparts of the Stockholders Agreement and the Registration Rights
Agreement to each of the other parties signatory thereto.
2. I will cooperate in good faith in the preparation of the
Proxy Statement to be provided to the stockholders of TSAT in connection with
the Restructuring Transaction and the TSAT Merger and the registration statement
on Form S-4 of which the Proxy Statement is a part, and all pre- and
post-effective amendments thereto, and the filing thereof with the Securities
and Exchange Commission (the "SEC"). Such cooperation shall include, without
limitation, (i) providing TSAT and the Company with any information relating to
me that is required to be included in such filings and (ii) responding to any
comments relating to me that are received from the staff of the SEC in respect
of such filings promptly after receipt thereof.
3. I will use commercially reasonable efforts to respond to
any requests for information relating to the Restructuring Transaction or the
TSAT Merger from the Department of Justice, the Federal Trade Commission, the
FCC and any other Governmental Entity, to the extent any such requests are
addressed to me, and will use commercially reasonable efforts to assist TSAT,
the Company and PRIMESTAR Partners L.P. in responding to any such requests for
information addressed to them.
Letter dated February 6, 1998
Page 2 of 3
4. I understand that irreparable damage could occur if I were
not to perform the above actions in accordance with their specific terms. I
accordingly agree that the affected parties shall be entitled to an injunction
or injunctions to prevent breaches of this letter agreement, and to enforce
specifically the terms and provisions of this letter agreement, in any court of
the State of New York or the State of Delaware and any court of the United
States located in the Borough of Manhattan in New York City or the State of
Delaware (collectively, the "Courts"). This letter agreement shall be governed
by the substantive laws of the State of New York without regard to any
applicable conflicts of law principles.
5. With respect to any suit, action or proceeding relating to
this letter agreement, I hereby consent and submit myself to the jurisdiction of
each of the Courts and agree not to bring any such suit, action or proceeding in
any other court. I also hereby waive any objection that I may have at any time
to the laying of venue of any proceeding relating to the breach of this letter
agreement brought in any of the Courts, waive any claim that any such proceeding
has been brought in an inconvenient forum, and waive the right to object, with
respect to any such suit, action or proceeding only, that such Court does not
have jurisdiction over me.
6. I hereby represent and warrant to each of you as follows:
(a) I have the legal power and authority to execute and
deliver this letter agreement and to perform my obligations hereunder.
I have duly executed and delivered this letter agreement, and this
letter agreement is my valid and binding obligation, enforceable
against me in accordance with its terms. The execution and delivery of
this letter agreement by me does not violate any agreement or
government order by which I am bound.
(b) I am not a party to any lawsuit or other legal
proceeding, and to my knowledge I have not received written notice
threatening to make me a party to any such lawsuit or proceeding, that,
if successful, would prohibit me from performing my obligations under
this letter agreement.
7. I will give prompt written notice to each of you if (i) any
representation or warranty made by me in this letter agreement shall become
untrue or inaccurate in any material respect or (ii) I shall fail to comply in
all material respects with the covenants and agreement made by me herein.
Upon your execution of this letter in the place indicated
below, this letter agreement shall be binding and shall remain in effect until
the earlier to occur of (i) the consummation of the Restructuring Transaction at
the Closing, including the execution and delivery by all parties thereto of the
Stockholders Agreement and the Registration Rights Agreement and (ii) the
termination of the Restructuring Agreement in accordance with its terms (except
to the extent that such termination
Letter dated February 6, 1998
Page 3 of 3
results from any wilful and material breach by me of any of the representations,
warranties, covenants and agreements made by me in this letter agreement), at
which time all my obligations hereunder shall terminate.
Sincerely,
/s/ Xxxx X. Xxxxxx
-------------------------
XXXX X. XXXXXX
Agreed and accepted:
TCI SATELLITE ENTERTAINMENT, COMCAST CORPORATION,
INC.,
by /s/ Xxxx Xxxxxxx
by /s/ Xxxxxxx X. Xxxxxxx ---------------------
------------------------ Name: Xxxx Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx Title: Vice President
Title: Senior Vice President/CFO
COX COMMUNICATIONS, INC.,
PRIMESTAR, INC.,
by /s/ Xxxx X. Xxxxx
by /s/ Xxxxxxx X. Xxxxxxx ---------------------
------------------------ Name: Xxxx X. Xxxxx
Name: Xxxxxxx X. Xxxxxxx Title: Senior Vice
Title: President President
MEDIAONE OF DELAWARE, INC.,
TIME WARNER ENTERTAINMENT
COMPANY, L.P., by AMERICAN by /s/ Xxxxxxx X. Xxxxxx
TELEVISION AND COMMUNICATIONS ---------------------
CORPORATION, as general partner Name: Xxxxxxx X. Xxxxxx
Title: EVP - Finance &
Strategy
by /s/ Xxxxx X. X'Xxxxx
------------------------- GE AMERICAN COMMUNICATIONS,
Name: Xxxxx X. X'Xxxxx INC.,
Title: Vice President
by /s/ Xxxx X. Xxxxxxxx
ADVANCE/XXXXXXXX PARTNERSHIP, ---------------------
by ADVANCE COMMUNICATION Name: Xxxx X. Xxxxxxxx
CORP., as general partner Title: Chairman and CEO
by /s/ Xxxxxx Xxxxx
---------------------
Name: Xxxxxx Xxxxx
Title: President
