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EXHIBIT 99.2
SECOND AMENDED AND RESTATED
JOINT VENTURE FORMATION AGREEMENT
dated as of January 31, 1996
by and between
SPRINT CORPORATION
TELE-COMMUNICATIONS, INC.
COMCAST CORPORATION
and
▇▇▇ COMMUNICATIONS, INC.
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TABLE OF CONTENTS
SECTION 1. DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.1 Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.2 Additional Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
1.3 Terms Generally. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
SECTION 2. FORMATION OF PIONEERCO; CERTAIN AGREEMENTS OF THE PARTIES . . . . . . . . . . . . . . . . . . 5
2.1 Formation of PioneerCo. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
2.2 Effectuation of Agreements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
2.3 Exclusivity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
SECTION 3. CERTAIN AGREEMENTS OF COX . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
3.1 Maintenance of LA Pioneer Preference License. . . . . . . . . . . . . . . . . . . . . . . . . . . 7
3.2 Advice of Changes; Government Filings; Petitions to Deny. . . . . . . . . . . . . . . . . . . . . 8
SECTION 4. CONDITIONS TO THE PIONEERCO CLOSING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
SECTION 5. THE PIONEERCO CLOSING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
5.1 PioneerCo Closing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
5.2 Bring-Down Certificates. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
5.3 Costs and Expenses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 6. TERMINATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 7. REPRESENTATIONS AND WARRANTIES REGARDING THE PARTIES . . . . . . . . . . . . . . . . . . . . 10
7.1 Due Incorporation or Formation; Authorization of Agreements. . . . . . . . . . . . . . . . . . 10
7.2 No Conflict; No Default. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
7.3 Litigation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
7.4 Finders Fees. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 8. REPRESENTATIONS AND WARRANTIES OF COX REGARDING THE LAW PIONEER PREFERENCE LICENSE . . . . . 11
8.1 LA Pioneer Preference License. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
8.2 Compliance with Laws. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
8.3 Litigation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
8.4 Title to the LA Pioneer Preference License. . . . . . . . . . . . . . . . . . . . . . . . . . . 12
8.5 ▇▇▇ Enterprises. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 9. EFFECT OF REPRESENTATIONS, WARRANTIES AND COVENANTS . . . . . . . . . . . . . . . . . . . . 13
SECTION 10. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
10.1 Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
10.2 Construction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
10.3 Time. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
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10.4 Table of Contents; Headings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
10.5 Severability. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
10.6 Incorporation by Reference. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
10.7 Further Action. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
10.8 Governing Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
10.9 Counterpart Execution. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
10.10 Specific Performance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
10.11 Entire Agreement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
10.12 Parties in Interest; Limitation on Rights of
Others. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
10.13 Waivers; Remedies. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
10.14 Jurisdiction; Consent to Service of Process. . . . . . . . . . . . . . . . . . . . . . . . . 15
10.15 Waiver of Jury Trial. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
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EXHIBITS
Exhibit 1.1(a) PioneerCo Affiliation Agreement Term Sheet
Exhibit 1.1(b) PioneerCo Term Sheet
SCHEDULES
Schedule 8.3 Litigation
Schedule 10.1 Addresses of the Parties for Notices
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This exhibit was not presented to ▇▇▇▇▇ in electronic format (word
processing file, etc.), so we are proceeding as if it were filed in paper form.
This will show you the document header and form type construction of a typical
exhibit.
This SECOND AMENDED AND RESTATED JOINT VENTURE FORMATION AGREEMENT
(the "Agreement") is entered into as of the 31st day of January, 1996, among
SPRINT CORPORATION, a Kansas corporation ("Sprint"), TELE-COMMUNICATIONS, INC.,
a Delaware corporation ("TCI"), COMCAST CORPORATION, a Pennsylvania corporation
("Comcast"), and ▇▇▇ COMMUNICATIONS, INC. (formerly known as ▇▇▇ Cable
Communications, Inc.), a Delaware corporation ("Cox").
W I T N E S S E T H:
WHEREAS, Sprint, TCI, Comcast and Cox entered into that certain Joint
Venture Formation Agreement, dated as of October 24, 1994 (as amended by that
certain Amended and Restated Joint Venture Formation Agreement, dated as of
March 28, 1995, the "Prior Agreement"), pursuant to which the parties agreed to
form certain entities to (i) provide national wireless telecommunications
services, including the acquisition and development of PCS licenses, (ii)
provide nationwide competitive local telecommunications services and (iii)
develop a PCS wireless system in the Los Angeles MTA through a separate
partnership, and to take certain actions relating to the foregoing;
WHEREAS, as a result of the formation of WirelessCo, L.P., a Delaware
limited partnership ("WirelessCo"), on October 24, 1994, and the formation of
MajorCo, L.P., a Delaware limited partnership ("MajorCo"), and NewTelco, L.P.,
a Delaware limited partnership ("NewTelco"), on March 28, 1995, and subsequent
agreements among the parties, the parties have satisfied or determined to
terminate and/or waive certain of their obligations under the Prior Agreement;
and
WHEREAS, in connection with the execution and delivery of that certain
Amended and Restated Agreement of Limited Partnership of MajorCo, L.P. of even
date herewith (the "MajorCo Partnership Agreement") the parties desire to amend
and restate the Prior Agreement in order to affirm and memorialize their
respective remaining obligations under the Prior Agreement that have not been
terminated and/or waived as a result of the execution of this Agreement;
NOW, THEREFORE, in consideration of the premises and mutual covenants
and agreements herein contained, and in order to set forth the respective
rights, obligations and interests of the Parties and their Affiliates to one
another, the Parties, intending to be bound, agree as follows:
SECTION 1. DEFINITIONS
1.1 Definitions.
Capitalized words and phrases used in this Agreement have the
following meanings:
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"Affiliate" means, with respect to any Person, any other
Person that directly or indirectly through one or more intermediaries controls,
is controlled by, or is under common control with such Person. For purposes of
this definition, the terms "controls," "is controlled by" or "is under common
control with" shall mean the possession, direct or indirect, of the power to
direct or cause the direction of the management and policies of a person or
entity, whether through the ownership of voting securities, by contract or
otherwise.
"Agreement" means this Second Amended and Restated Joint
Venture Formation Agreement.
"Code" means the Internal Revenue Code of 1986, as amended
from time to time.
"Comcast" means Comcast Corporation, a Pennsylvania
corporation.
"Cox" means ▇▇▇ Communications, Inc. (formerly known as ▇▇▇
Cable Communications, Inc.), a Delaware corporation.
"Cox Pioneer Partner" means Cox Pioneer Partnership, a general
partnership to be formed by a Subsidiary of Cox and a Subsidiary of ▇▇▇
Enterprises.
"Entity" means any firm, corporation, company, partnership,
group, trust, joint venture, association, Governmental Authority or other legal
entity or organization.
"FCC" means the Federal Communications Commission or any
successor agency or entity performing substantially the same functions.
"Governmental Authority" means any foreign, federal, state or
local court, administrative agency, board, bureau or commission or other
governmental department, authority or instrumentality.
"LA Pioneer Preference License" means the ▇▇ ▇▇▇ "▇" ▇▇▇▇▇ PCS
license granted to Cox on December 14, 1994, for the MTA encompassing Los
Angeles and San Diego, California, which MTA is identified in the FCC Public
Notice regarding the PCS Auction as Market No. M-2 (Report No. AUC-94-04,
Auction No. 4).
"License" means any license, ordinance, authorization, permit,
certificate, variance, exemption, order, franchise or approval, issued or
granted by a Governmental Authority, domestic or foreign.
"Lien" means any lien, pledge, claim, encumbrance, mortgage or
security interest in real or personal property.
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"MajorCo" has the meaning set forth in the preamble to this
Agreement.
"MajorCo Partnership Agreement" has the meaning set forth in
the preamble to this Agreement.
"Material Adverse Effect" means, with respect to any Person, a
material adverse effect on the business, assets, liabilities, results of
operations or condition (financial or otherwise) of such Person and its
Subsidiaries, taken as a whole, or, with respect to a Party only, on the
ability of such Party to perform its obligations in any material respect under
this Agreement.
"NewTelco" has the meaning set forth in the preamble to this
Agreement.
"Parties" means Comcast, Cox, Sprint and TCI, and "Party"
means Comcast, Cox, Sprint or TCI, as the context may require.
"PCS Auction" means the series of simultaneous multiple round
auctions for broadband PCS licenses to be conducted by the FCC under the
authority of Section 309(j) of the Communications Act, 47 U.S.C. Section
309(j) (1993), in accordance with the rules promulgated thereunder by the FCC.
"Permitted Lien" means (a) a statutory Lien not yet due or
payable or (b) a Lien that does not materially detract from the value, or
interfere with the use of, the assets subject thereto or affected thereby or
otherwise materially impair the business operations being conducted or proposed
to be conducted with such assets.
"Person" means any individual or Entity.
"PioneerCo" means a Delaware limited partnership proposed to
be formed by WirelessCo and Cox Pioneer Partner for the purpose of holding and
developing a PCS system using the LA Pioneer Preference License.
"PioneerCo Affiliation Agreement Term Sheet" means the term
sheet attached hereto as Exhibit 1.1(a).
"PioneerCo Partnership Agreement" means the agreement of
limited partnership of PioneerCo contemplated by the PioneerCo Term Sheet.
"PioneerCo Term Sheet" means the term sheet attached hereto as
Exhibit 1.1(b).
"Sprint" means Sprint Corporation, a Kansas corporation.
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"Sprint Brand" means the trademark "Sprint" together with the
related "Diamond" logo.
"Strategic Venture" means any Entity or alliance, joint
arrangements, undertakings, investments or other understandings.
"Subsidiary" of any Person means an Entity (i) of which more
than fifty percent (50%) of the outstanding shares or securities are owned or
controlled, directly or indirectly through one or more Subsidiaries, by such
Person, and the shares or securities so owned entitle such Person and/or
Subsidiaries to elect at least a majority of the members of the board of
directors or other managing authority of such Entity or (ii) which does not
have outstanding shares or securities, as may be the case in a partnership,
joint venture or unincorporated association, but of which more than fifty
percent (50%) (by value) of the ownership interest is owned or controlled,
directly or indirectly through one or more Subsidiaries, by such Person, and in
which the ownership interest so owned entitles such Person and/or Subsidiaries
to make the decisions for such Entity, provided, in each case, that such Entity
shall be deemed to be a Subsidiary only so long as such ownership or control
exists.
"TCI" means Tele-Communications, Inc., a Delaware corporation.
"Wireless Business" has the meaning given such term in the
MajorCo Partnership Agreement.
"WirelessCo" has the meaning set forth in the preamble to this
Agreement.
1.2 Additional Definitions.
Defined Term Defined in
------------ ----------
"Adverse Proceedings" Section 3.1
"Agents" Section 2.3(a)
"Closing Dates" Section 5.3
"▇▇▇ Enterprises" Section 3.1
"PioneerCo Closing" Section 5.1
"PioneerCo Closing Date" Section 5.1
"PioneerCo Termination Date" Section 6
"Proposal" Section 2.3(a)
"Representatives" Section 2.3(a)
1.3 Terms Generally.
The definitions in Section 1.1 and those contained elsewhere in this
Agreement shall apply equally to both the singular and plural forms of the
terms defined. Whenever the context may require, any pronoun shall include the
corresponding masculine, feminine and neuter forms. The words "include",
"includes" and "including" shall be deemed to be followed by the phrase
"without
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limitation". Any reference to "this Agreement" shall include the Exhibits and
Schedules hereto. The words "herein", "hereof" and "hereunder" and words of
similar import refer to this Agreement (including the Exhibits and Schedules)
in its entirety and not to any part hereof unless the context shall otherwise
require. All references herein to Sections, Exhibits and Schedules shall be
deemed references to Sections of, and Exhibits and Schedules to, this Agreement
unless the context shall otherwise require. Unless the context shall otherwise
require, any references to any agreement or other instrument or statute or
regulation are to it as amended and supplemented from time to time (and, in the
case of a statute or regulation, to any corresponding provisions of successor
statutes or regulations). Any reference in this Agreement to a "day" or number
of "days" shall be interpreted as a reference to a calendar day or number of
calendar days. If any action or notice is to be taken or given on or by a
particular calendar day, and such calendar day is not a business day then such
action or notice shall be deferred until, or may be taken or given on, the next
business day.
SECTION 2. FORMATION OF PIONEERCO;
CERTAIN AGREEMENTS OF THE PARTIES
2.1 Formation of PioneerCo.
Subject to the satisfaction of the conditions set forth in Section 4
hereof and to the Parties' mutual agreement as to the definitive terms and
conditions of the applicable agreements as provided in this Agreement, the
Parties agree to cause PioneerCo to be formed by the execution and delivery by
the applicable parties of the PioneerCo Partnership Agreement and the other
agreements contemplated by the PioneerCo Term Sheet and the PioneerCo
Affiliation Agreement Term Sheet to be executed and delivered in connection
therewith and the consummation of the transactions contemplated thereby to
occur on the PioneerCo Closing Date.
2.2 Effectuation of Agreements.
For a period commencing on the date of this Agreement and ending on
the earlier to occur of the PioneerCo Termination Date or the PioneerCo Closing
Date, except as expressly contemplated or permitted hereby (or by the PioneerCo
Term Sheet) or to the extent that all other Parties shall otherwise consent in
writing, which consent shall not be unreasonably withheld, each of the Parties
agrees to negotiate in good faith and, subject to the Parties' mutual agreement
as to the definitive terms and conditions thereof and to the other applicable
conditions set forth in Section 4, to cause Cox Pioneer Partner (in the case of
Cox) or WirelessCo (in the case of each Party) to enter into the PioneerCo
Partnership Agreement, which shall incorporate terms substantially similar to
those contemplated by the PioneerCo Term Sheet and each of the other agreements
contemplated in such term sheet, in each case
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with such modifications and additions as the Parties may mutually agree, and,
subject to the execution and delivery of the PioneerCo Partnership Agreement by
each of WirelessCo and Cox Pioneer Partner, Cox will cause the LA Pioneer
Preference License to be contributed to PioneerCo in accordance with the terms
and conditions set forth in the PioneerCo Partnership Agreement and the MajorCo
Partnership Agreement. The Parties acknowledge that the term sheets attached
hereto are not exhaustive and that additional provisions which are not
inconsistent with the terms set forth in such term sheets will be required, and
the Parties agree to negotiate in good faith with respect to such additional
provisions. In addition, subject to the foregoing and to applicable fiduciary
duties, each of the Parties otherwise will use all commercially reasonable
efforts to take, or cause to be taken, all other actions, and to do, or cause
to be done, all other things necessary, proper or advisable to carry out its
obligations under this Agreement and to consummate and make effective the
transactions contemplated hereby, including the following:
(i) as soon as practicable following the
execution of this Agreement, to make all applications and filings and
to use all commercially reasonable efforts to obtain all other
authorizations and consents required to be obtained by the Parties on
or before the PioneerCo Closing Date to enable the Parties to
consummate the transactions contemplated by this Agreement;
(ii) in the event any changes in the structure or
the terms of the transactions contemplated by this Agreement are
required in order to facilitate obtaining the authorizations and
consents required in connection with the consummation of such
transactions, to take all commercially reasonable steps necessary to
accommodate such changes to the extent they would not adversely affect
the Parties' rights or obligations hereunder or have an adverse effect
on the proposed business or prospects of PioneerCo or such Party's
proposed investment therein; and
(iii) in the event any claim, action, suit,
investigation or other proceeding by any Governmental Authority or
other Person is commenced which questions the validity or legality of
any of the transactions contemplated hereby or any injunction or other
order is issued in any such proceeding, to cooperate with the other
Parties regarding the defense of such proceedings and the removal of
any such impediment to the consummation of such transactions and to
use all commercially reasonable efforts to have such injunction or
other order dissolved.
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2.3 Exclusivity.
(a) General. For a period commencing on the date of this
Agreement and ending on the earlier to occur of the PioneerCo Termination Date
or the PioneerCo Closing Date:
(i) Each of the Parties agrees to, shall cause
its Subsidiaries and the officers, directors and employees of such
Party and its Subsidiaries (collectively, the "Agents") to, and shall
use its best efforts to cause its attorneys, accountants, investment
bankers and other representatives acting on its behalf (collectively,
the "Representatives") to, refrain from participating in any
discussions with any other Person or group with a view toward the
creation of any Strategic Venture (other than PioneerCo), which would
interfere with or be inconsistent with the ability of WirelessCo and
Cox Pioneer Partner to enter into the PioneerCo Partnership Agreement,
or the ability of the Parties to cause the consummation of the
transactions contemplated by the PioneerCo Term Sheet on a basis
consistent with the intent and purpose of this Agreement and the
discussions among the Parties (a "Proposal"); and
(ii) Each of the Parties hereto will not, will
cause its Subsidiaries and Agents not to, and will use its best
efforts to cause its Representatives not to, directly or indirectly,
(i) solicit, initiate or knowingly encourage the initiation of
inquiries or proposals or offers from any Person or group as defined
in Section 13(d)(3) of the Securities Exchange Act of 1934, concerning
a Proposal, or (ii) provide any confidential information to, or
otherwise cooperate with or assist or participate in any effort by,
any such Person or group relating to a Proposal.
(b) Third Party Discussions. Nothing contained herein
shall limit or restrict the rights of any Party (or its respective Affiliates,
Agents and Representatives) to continue to engage in discussions or
negotiations relating to the transactions contemplated by this Agreement or the
PioneerCo Term Sheet.
SECTION 3. CERTAIN AGREEMENTS OF COX
Cox hereby covenants and agrees that from the date hereof until the
earlier to occur of the PioneerCo Termination Date or the PioneerCo Closing
(except as expressly contemplated or permitted by this Agreement or to the
extent that the other Parties shall otherwise consent in writing, which consent
shall not be unreasonably withheld):
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3.1 Maintenance of LA Pioneer Preference License.
Cox shall take or cause to be taken and do or cause to be done all
commercially reasonable actions necessary, proper or advisable under applicable
law to maintain the LA Pioneer Preference Licence and shall cooperate fully
with the FCC in connection with any conditions or obligations on the part of
Cox to retain the LA Pioneer Preference License; provided, however, that Cox
shall not be required to accept a condition that imposes any undue burden or
restriction or take any action that would have a Material Adverse Effect on Cox
or ▇▇▇ Enterprises, Inc., a Delaware corporation ("▇▇▇ Enterprises"). Such
actions shall include preparing and pursuing all necessary regulatory filings,
submissions, approvals and waivers. In the event that any claim, action, suit,
investigation or other proceeding by any Governmental Authority or other Person
is commenced that questions the validity or legality of the right of Cox to
hold and utilize the LA Pioneer Preference License or that limits in any way
the rights of Cox under the LA Pioneer Preference License or seeks damages in
conjunction therewith (collectively, "Adverse Proceedings"), and, if an
injunction or other order is issued in any such Adverse Proceeding, Cox shall
use all commercially reasonable efforts to have such injunction or other order
dissolved, and to cooperate regarding the removal of any such other impediment
to the right of Cox to hold and utilize the LA Pioneer Preference License;
provided, however, that Cox shall not be required to take any action that would
have a Material Adverse Effect on Cox or ▇▇▇ Enterprises.
3.2 Advice of Changes; Government Filings; Petitions to Deny.
Cox shall promptly advise MajorCo orally and in writing of any change
or event known to Cox having, or which insofar as can reasonably be foreseen,
could have a material adverse effect on the ability of Cox to retain the LA
Pioneer Preference License. Cox shall promptly provide MajorCo with copies of
all filings made by it or any Affiliate of Cox with any Governmental Authority
in connection with the LA Pioneer Preference License. Cox shall promptly
provide MajorCo with copies of all petitions to deny or similar petitions filed
with the FCC or any other Governmental Authority by any Person challenging or
questioning the right of Cox or any Affiliate of Cox to hold or utilize the LA
Pioneer Preference License or otherwise in connection with this Agreement and
the transactions contemplated hereby.
SECTION 4. CONDITIONS TO THE PIONEERCO CLOSING
The obligations of each of the Parties under this Agreement to be
performed or complied with at the PioneerCo Closing are subject to the
satisfaction, on or prior to the PioneerCo Closing Date, of the following
conditions, compliance with which or the
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occurrence of which may be waived in whole or in part in writing by each of the
Parties:
(a) PioneerCo Partnership Agreement and Related
Agreements. (i) The Parties shall have mutually agreed as to the definitive
terms of the PioneerCo Partnership Agreement and each of the other agreements
contemplated thereby to be executed and delivered in connection therewith, and
(ii) each of the parties to the PioneerCo Partnership Agreement shall have
entered into the PioneerCo Partnership Agreement and each of the parties to the
other agreements contemplated thereby to be executed and delivered in
connection therewith shall have entered into such other agreements.
(b) Representations and Warranties. The representations
and warranties of each of the Parties contained in Sections 7 and 8 of this
Agreement shall be true and correct in all material respects as of the
PioneerCo Closing Date as if made as of such date.
(c) Covenants. Each of the Parties shall have performed
and satisfied in all material respects the agreements, covenants and conditions
of this Agreement to be performed or satisfied by it at or prior to the
PioneerCo Closing.
(d) Approvals. The Parties shall have received all
material consents, approvals and Licenses of any Governmental Authority
required in connection with the consummation of the transactions to be effected
at the PioneerCo Closing.
(e) Absence of Injunctions. No preliminary or permanent
injunction or other order, decree or ruling issued by a Governmental Authority,
nor any statute, rule, regulation or executive order promulgated or enacted by
any Governmental Authority shall be in effect, in any case that enjoins or
delays in any material respect the consummation of the transactions to be
effected at the PioneerCo Closing or imposes any material restrictions or
requirements thereon or on any of the Parties in connection therewith.
(f) Holder of the LA Pioneer Preference License. Cox
shall be the authorized legal holder of the LA Pioneer Preference License, free
and clear of all Liens (except for any Liens relating to ▇▇▇'▇ deferred payment
obligations).
(g) Legal Opinion. WirelessCo shall have received an
opinion from Dow, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, or other recognized legal counsel
acceptable to WirelessCo, that the LA Pioneer Preference License will
constitute an "amortizable section 197 intangible" amortizable by PioneerCo for
federal income tax purposes pursuant to section 197(a) of the Code.
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SECTION 5. THE PIONEERCO CLOSING
5.1 PioneerCo Closing.
The execution of the PioneerCo Partnership Agreement (and of each of
the agreements contemplated thereby to be executed in connection therewith) and
the consummation of the transactions contemplated thereby to occur at the time
of such execution (the "PioneerCo Closing"), shall take place at the offices of
King & Spalding, 191 Peachtree Street, Atlanta, Georgia, or such other location
as the Parties may agree, within five (5) days following the satisfaction of
the conditions contained in clause (i) of Section 4(a) and in Section 4(d) (the
"PioneerCo Closing Date"), assuming that the other conditions to closing set
forth in Section 4 are satisfied or are effectively waived as of the PioneerCo
Closing Date.
5.2 Bring-Down Certificates.
(a) Closing. On the PioneerCo Closing Date, Cox shall
provide to each other Party a certificate dated the PioneerCo Closing Date
certifying that the representations and warranties made by Cox contained in
Section 8 are true and correct in all material respects as of the PioneerCo
Closing Date and that the covenants and conditions to be performed or satisfied
by Cox contained in Sections 3 and 4, respectively, at or prior to the
PioneerCo Closing Date have been so performed or satisfied in all material
respects.
(b) No Effect. The delivery of the certificates required
by this Section 5.2 shall in no way diminish the representations, warranties
and covenants made in this Agreement.
5.3 Costs and Expenses.
Each Party shall pay all costs and expenses incurred by it in
connection with the negotiation, preparation, execution and delivery of this
Agreement and the PioneerCo Partnership Agreement, and of each of the
agreements contemplated to be executed in connection therewith, including all
fees and out-of-pocket expenses of counsel for such Party with respect thereto.
SECTION 6. TERMINATION
The obligations of the Parties hereunder with respect to the PioneerCo
Closing shall terminate as of the date (the "PioneerCo Termination Date") of
the earlier to occur of (i) the unanimous written consent of the Parties or
(ii) the dissolution of MajorCo in accordance with Section 14.1 of the MajorCo
Partnership Agreement.
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SECTION 7. REPRESENTATIONS AND WARRANTIES
REGARDING THE PARTIES
Each Party hereby represents and warrants to the other Parties that:
7.1 Due Incorporation or Formation; Authorization of Agreements.
Such Party is a corporation duly organized, validly existing and in
good standing under the laws of the jurisdiction of its incorporation and has
the corporate power and authority to own its property and carry on its business
as owned and carried on at the date hereof. Such Party is duly licensed or
qualified to do business and in good standing in each jurisdiction in which the
failure to be so licensed or qualified would have a Material Adverse Effect on
such Party. Such Party has the corporate power and authority to execute and
deliver this Agreement, to perform its obligations hereunder and to consummate
the transactions contemplated hereby. The execution, delivery and performance
of this Agreement by such Party have been duly authorized by all necessary
corporate action. This Agreement constitutes the legal, valid and binding
obligation of such Party, enforceable in accordance with its terms, subject as
to enforceability to limits imposed by bankruptcy, insolvency or similar laws
affecting creditors' rights generally and the availability of equitable
remedies.
7.2 No Conflict; No Default.
Neither the execution, delivery and performance of this Agreement nor
the consummation by such Party of the transactions contemplated hereby (i) will
conflict with, violate or result in a breach of any of the terms, conditions or
provisions of any law, regulation, order, writ, injunction, decree,
determination or award of any Governmental Authority or any arbitrator,
applicable to such Party or any of its Subsidiaries, (ii) will conflict with,
violate, result in a breach of or constitute a default under any of the terms,
conditions or provisions of the certificate or articles of incorporation or
bylaws of such Party or any of its Subsidiaries or of any material agreement or
instrument to which such Party or any of its Subsidiaries is a party or by
which such Party or any of its Subsidiaries is or may be bound or to which any
of its material properties or assets is subject, (iii) will conflict with,
violate, result in a breach of, constitute a default under (whether with notice
or lapse of time or both), accelerate or permit the acceleration of the
performance required by, give to others any interests or rights or require any
consent, authorization or approval under any indenture, mortgage, lease
agreement or instrument to which such Party or any of its Subsidiaries is a
party or by which such Party or any of its Subsidiaries is or may be bound or
(iv) will result in the creation or imposition of any Lien upon any of the
material properties or assets of such Party or any of its Subsidiaries,
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other than Permitted Liens, which in any such case could reasonably be expected
to have a Material Adverse Effect on such Party.
7.3 Litigation.
There are no actions, suits, proceedings or investigations pending or,
to the knowledge of such Party, threatened against or affecting such Party or
any of its properties, assets or businesses in any court or before or by any
Governmental Authority, or any arbitrator which could, if adversely determined
(or, in the case of an investigation, could lead to any action, suit or
proceeding, which if adversely determined could) reasonably be expected to have
a Material Adverse Effect on such Party, and such Party has not received any
currently effective notice of any default, and such Party is not in default
under any applicable order, writ, injunction, decree, permit, determination or
award of any Governmental Authority or any arbitrator which could reasonably be
expected to have a Material Adverse Effect on such Party.
7.4 Finders Fees.
There is no investment banker, broker or finder that has been retained
by or is authorized to act on behalf of such Party who might be entitled to any
fee or commission from any other Party, MajorCo or any of its Subsidiaries, or
PioneerCo upon consummation of the transactions contemplated by this Agreement.
SECTION 8. REPRESENTATIONS AND WARRANTIES OF
COX REGARDING THE LA PIONEER PREFERENCE LICENSE
Cox hereby represents and warrants to each of the other Parties as
follows:
8.1 LA Pioneer Preference License.
Cox has satisfied all terms and conditions required to be satisfied on
or before the date hereof imposed by the FCC, by any other Governmental
Authority, or by federal law as of the date hereof as a condition of the award
of the LA Pioneer Preference License, including the FCC's pioneers' preference
rules as codified at 47 C.F.R. Sections 1.402, 1.403 and 5.207 (1993); orders
issued in Federal Communications Commission dockets ET Docket ▇▇. ▇▇-▇▇▇, ▇▇▇
▇▇▇▇▇▇ ▇▇. ▇▇-▇▇▇ and GEN Docket No. 90-217; and conditions imposed as of the
date hereof in response to ▇▇▇'▇ application for authority to provide broadband
PCS service on frequency block "A" of the Los Angeles-San Diego MTA.
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8.2 Compliance with Laws.
Cox has not made any untrue statement of fact, or omitted to disclose
any facts, to the FCC or any other Governmental Authority or taken or failed to
take any action, which misstatements, omissions, actions or failures to act,
individually or in the aggregate, subject or could reasonably be expected to
subject Cox to the forfeiture of its right to hold and utilize the LA Pioneer
Preference License.
8.3 Litigation.
Except as set forth on Schedule 8.3, there are no actions, suits,
proceedings or investigations pending or, to the knowledge of Cox, threatened
against or affecting Cox in, before or by any Governmental Authority or any
arbitrator which could, if adversely determined (or, in the case of an
investigation could lead to any action, suit or proceeding, which if adversely
determined could) reasonably be expected to affect the right of Cox to hold and
utilize the LA Pioneer Preference License; and Cox has not received any
currently effective notice of any default, and Cox is not in default, under any
applicable order, writ, injunction, decree, permit, determination or award of
any Governmental Authority or any arbitrator which could reasonably be expected
to affect the right of Cox to hold and utilize the LA Pioneer Preference
License.
8.4 Title to the LA Pioneer Preference License.
Subject to the outcome of the proceedings described in Schedule 8.3,
the LA Pioneer Preference License has been issued to ▇▇▇ and ▇▇▇ is the
authorized legal holder thereof, free and clear of all Liens (except for any
Liens relating to ▇▇▇'▇ deferred payment obligations), and, subject to receipt
of any required regulatory approvals, Cox is entitled to transfer or assign the
LA Pioneer Preference License to PioneerCo as contemplated under the PioneerCo
Term Sheet.
8.5 ▇▇▇ Enterprises.
Cox is a Subsidiary of ▇▇▇ Enterprises.
SECTION 9. EFFECT OF REPRESENTATIONS,
WARRANTIES AND COVENANTS
All representations and warranties made in this Agreement and all
statements contained in any Exhibit, Schedule or certificate or other agreement
or instrument delivered or to be delivered by or on behalf of the Parties in
connection with the transactions contemplated hereby (including pursuant to
Section 5.2) shall be deemed representations and warranties hereunder. All
such representations and warranties shall survive until the earlier to
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occur of the PioneerCo Termination Date or the PioneerCo Closing Date, but not
thereafter.
SECTION 10. MISCELLANEOUS
10.1 Notices.
Any notice, payment, demand, or communication required or permitted to
be given by any provision of this Agreement shall be in writing and mailed
(certified or registered mail, postage prepaid, return receipt requested) or
sent by hand or overnight courier, or by facsimile (with acknowledgment
received by overnight courier), charges prepaid and addressed to the address
set forth on Schedule 10.1, or to such other address as such Person may from
time to time specify by notice to the Parties. Any Party may from time to time
specify a different address by notice to the other Parties. Any such notice
shall be deemed to be delivered, given, and received for all purposes as of the
date so delivered.
10.2 Construction.
This Agreement shall be construed simply according to its fair meaning
and not strictly for or against any Party.
10.3 Time.
Time is of the essence with respect to this Agreement.
10.4 Table of Contents; Headings.
The table of contents and section and other headings contained in this
Agreement are for reference purposes only and are not intended to describe,
interpret, define, or limit the scope, extent, or intent of this Agreement or
any provision hereof.
10.5 Severability.
Every provision of this Agreement is intended to be severable. If any
term or provision hereof is illegal, invalid or unenforceable for any reason
whatsoever, that term or provision will be enforced to the maximum extent
permissible so as to effect the intent of the Parties, and such illegality,
invalidity or unenforceability shall not affect the validity or legality of the
remainder of this Agreement. If necessary to effect the intent of the Parties,
the Parties will negotiate in good faith to amend this Agreement to replace the
unenforceable language with enforceable language which as closely as possible
reflects such intent.
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10.6 Incorporation by Reference.
Every Exhibit and Schedule attached to this Agreement and referred to
herein is not incorporated in this Agreement by reference unless this Agreement
expressly otherwise provides.
10.7 Further Action.
Each Party, upon the reasonable request of any other Party, agrees to
perform all further acts and execute, acknowledge, and deliver any documents
which may be reasonably necessary, appropriate, or desirable to carry out the
intent and purposes of this Agreement.
10.8 Governing Law.
The internal laws of the State of New York (without regard to
principles of conflict of law) shall govern the validity of this Agreement, the
construction of its terms, and the interpretation of the rights and duties of
the Parties.
10.9 Counterpart Execution.
This Agreement may be executed in any number of counterparts with the
same effect as if all the Parties had signed the same document. All
counterparts shall be construed together and shall constitute one agreement.
10.10 Specific Performance.
Each Party agrees with the other Parties that the other Parties would
be irreparably damaged if any of the provisions of this Agreement are not
performed in accordance with their specific terms and that monetary damages
would not provide an adequate remedy in such event. Accordingly, it is agreed
that, in addition to any other remedy to which the nonbreaching Parties may be
entitled, at law or in equity, the nonbreaching Parties shall be entitled to
injunctive relief to prevent breaches of the provisions of this Agreement and
specifically to enforce the terms and provisions hereof in any action
instituted in any court of the United States or any state thereof having
subject matter jurisdiction thereof.
10.11 Entire Agreement.
The provisions of this Agreement, including the Exhibits and Schedules
hereto, set forth the entire agreement and understanding between the Parties as
to the subject matter hereof and supersede all prior agreements, oral or
written, and other communications between the Parties relating to the subject
matter hereof. All obligations of the Parties under the Prior Agreement that
are not expressly set forth in this Agreement are hereby terminated, and no
Party shall have any liability or obligation to any other Party with respect
thereto.
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10.12 Parties in Interest; Limitation on Rights of Others.
Except as otherwise provided herein, the terms of this Agreement shall
be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns. Nothing in this Agreement, whether express
or implied, shall be construed to give any Person other than the Parties any
legal or equitable right, remedy or claim under or in respect of this Agreement
or any covenants, conditions or provisions contained herein. No Party may
assign any of its rights and obligations hereunder to any person without the
prior written consent of the other Parties, except to the transferee of such
Party's Subsidiary's entire interest in MajorCo in connection with a Permitted
Transaction (as defined in the MajorCo Partnership Agreement).
10.13 Waivers; Remedies.
The observance of any term of this Agreement may be waived (either
generally or in a particular instance and either retroactively or
prospectively) by the Party or Parties entitled to enforce such term, but any
such waiver shall be effective only if in a writing signed by the Party or
Parties against which such waiver is to be asserted. Except as otherwise
provided herein, no failure or delay of any Party in exercising any power or
right under this Agreement shall operate as a waiver thereof, nor shall any
single or partial exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such right or power, preclude any other or
further exercise thereof or the exercise of any other right or power.
10.14 Jurisdiction; Consent to Service of Process.
(a) Each Party hereby irrevocably and unconditionally
submits, for itself and its property, to the nonexclusive jurisdiction of any
New York State court sitting in the County of New York or any Federal court of
the United States of America sitting in the Southern District of New York, and
any appellate court from any such court, in any suit, action or proceeding
arising out of or relating to this Agreement, or for recognition or enforcement
of any judgment, and each Party hereby irrevocably and unconditionally agrees
that all claims in respect of any such suit, action or proceeding may be heard
and determined in such New York State court or, to the extent permitted by law,
in such Federal court.
(b) Each Party hereby irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection which it may now or hereafter have to the laying of venue of any
suit, action or proceeding arising out of or relating to this Agreement in any
New York State court sitting in the County of New York or any Federal court
sitting in the Southern District of New York. Each Party hereby irrevocably
waives, to the fullest extent permitted by law, the defense of an
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inconvenient forum to the maintenance of such suit, action or proceeding in any
such court and further waives the right to object, with respect to such suit,
action or proceeding, that such court does not have jurisdiction over such
Party.
(c) Each Party irrevocably consents to service of process
in the manner provided for the giving of notices pursuant to this Agreement.
Nothing in this Agreement shall affect the right of a Party to serve process in
any other manner permitted by law.
10.15 Waiver of Jury Trial.
Each Party waives, to the fullest extent permitted by applicable law,
any right it may have to a trial by jury in respect of any action, suit or
proceeding arising out of or relating to this Agreement.
[SIGNATURES FOLLOW ON A SEPARATE PAGE]
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IN WITNESS WHEREOF, the Parties have entered into this Second Amended
and Restated Joint Venture Formation Agreement as of the date first above set
forth.
SPRINT CORPORATION
By:
-----------------------------------
Title:
--------------------------------
TELE-COMMUNICATIONS, INC.
By:
-----------------------------------
Title:
--------------------------------
COMCAST CORPORATION
By:
-----------------------------------
Title:
--------------------------------
▇▇▇ COMMUNICATIONS, INC.
By:
-----------------------------------
Title:
--------------------------------
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