EXHIBIT 4
EXECUTION COPY
AMENDMENT NO. 1 TO OPTION AGREEMENTS
This AMENDMENT to each of those certain Option Agreements described more
fully herein is entered into as of this 12 day of August 1998, by and among
▇▇▇▇▇ International, Ltd. ("International"), ▇▇▇▇▇ ▇▇▇▇▇ Grantor Business Trust
(the "▇▇▇▇▇ Trust"), ▇▇▇▇▇ International Grantor Business Trust (the "JI Trust",
and together with the ▇▇▇▇▇ Trust, the "Trusts"), ▇▇▇▇▇ Space Segment, Inc.
("Space"), ▇▇▇▇▇ Global Group, Inc. ("Global"), ▇▇▇▇▇ Interdigital, Inc.
("Interdigital"), ▇▇▇▇▇ Entertainment Group, Ltd. ("Entertainment" and together
with International, the Trusts, Space, Global and Interdigital, the "▇▇▇▇▇
Entities") and The Bank of New York (as successor agent to ▇▇▇▇▇▇ Guaranty Trust
Company of New York) (the "Purchaser"), as agent for, in the case of a Section
3.1(a)(vi) Exercise (as defined herein), Comcast Corporation, a Pennsylvania
corporation ("Comcast"), and in all other cases BTH (Intercable) Limited, a
British Virgin Islands corporation f/k/a ▇▇▇▇ Canada International BVI VI
Limited ("BTH Intercable") as assignee of BCI Telecom Holdings Inc., a Canadian
corporation, f/k/a ▇▇▇▇ Canada International, Inc. ("BTH").
WHEREAS, the ▇▇▇▇▇ Entities have entered into those certain Option
Agreements, each dated as of December 20, 1994 (the "Option Agreements"),
pursuant to which BTH Intercable, as assignee of BTH and through its agent, has
the option (the "Control Option") to purchase the shares of Common Stock, par
value $.01 per share (the "Common Stock"), of ▇▇▇▇▇ Intercable, Inc. (the
"Company") owned beneficially or of record by the ▇▇▇▇▇ Entities (the "Control
Shares");
WHEREAS, BTH, BTH Intercable and BTH (US Cable) Limited, a British Virgin
Islands corporation f/k/a ▇▇▇▇ Canada International BVI III, Limited ("US
Cable") have entered into a Purchase and Sale Agreement with Comcast, dated as
of May 22, 1998, and amended and restated as of the date hereof (the
"Comcast/BTH Agreement") in connection with the transactions contemplated by the
▇▇▇▇▇/Comcast Agreement (as defined herein), including the exercise of the
Control Option pursuant to the Option Agreements. BTH, BTH Intercable and US
Cable are sometimes referred to herein as the "Bell Entities."
WHEREAS, the ▇▇▇▇▇ Entities have entered into an Agreement with Comcast,
dated August 12, 1998 (the "▇▇▇▇▇/Comcast Agreement"), concerning the exercise
of the Control Option;
WHEREAS, in connection with the execution and delivery of the Comcast/BTH
Agreement as so amended and restated and the ▇▇▇▇▇/Comcast Agreement and in
light of the transactions contemplated thereby, the parties hereto desire to
amend each of the Option Agreements as described herein to provide for, among
other things, a new Exercise Period (as
defined in the Option Agreements) which will cause the Control Option to become
currently exercisable;
THEREFORE, in consideration of the mutual covenants contained herein, and
intending to be legally bound hereby, the parties agree as follows.
1. Definitions. All terms used but not otherwise defined herein shall
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have the same meanings as ascribed to them in the Option Agreements.
2. Amendment of Preamble. The preamble to the Option Agreements is hereby
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amended by:
(a) inserting after the date "December 20, 1994" the phrase "and
amended as of August 12, 1998" and
(b) inserting after the word "between" the phrase "The Bank of New York
(as successor agent to ▇▇▇▇▇▇ Guaranty Trust Company of New York) (the
"Purchaser"), as agent for, in the case of a Section 3.1(a)(vi) Exercise (as
defined herein), Comcast Corporation, a Pennsylvania corporation and in all
other cases BTH (Intercable) Limited, a British Virgin Islands corporation f/k/a
▇▇▇▇ Canada International BVI VI Limited ("BTH Intercable") as assignee of BCI
Telecom Holdings Inc., a Canadian corporation, f/k/a ▇▇▇▇ Canada International,
Inc. ("BTH")".
3. Substitution of the term "BCI". All instances of the term "BCI" in the
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Option Agreements are hereby deleted and replaced with the term "BTH".
4. Amendment to Section 1.1(a). Section 1.1(a) is amended by:
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(a) deleting the definition of "BCI" and inserting in lieu thereof the
following definition:
""BTH" means BCI Telecom Holding Inc. f/k/a ▇▇▇▇ Canada International
Inc., a corporation organized under the Canada Business Corporations Act."
(b) deleting the definition of "Shareholders Agreement" and inserting
in lieu thereof the following definition:
""SHAREHOLDERS AGREEMENT" means the Shareholders Agreement dated as of
December 20, 1994 among BTH, the Company, ▇▇▇▇▇ and ▇▇▇▇▇ International, as
amended on August 12, 1998."
(c) and adding thereto the following definitions:
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""BTH/COMCAST AGREEMENT" means that certain Purchase and Sale Agreement,
dated May 22, 1998, and amended and restated as of August 12, 1998 by and among
Comcast, BTH, BTH (US Cable) Limited, a British Virgin Islands corporation f/k/a
▇▇▇▇ Canada International BVI III Limited, and BTH Intercable.
"Comcast" means Comcast Corporation, a Pennsylvania corporation.
"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)).
"▇▇▇▇▇/COMCAST AGREEMENT" means that certain Agreement dated August 12,
1998 by and among Comcast and the ▇▇▇▇▇ Entities (as defined therein).
"▇▇▇▇▇/COMCAST CLOSING" means the "Closing" as defined in the
▇▇▇▇▇/Comcast Agreement.
"▇▇▇▇▇/COMCAST CLOSING DATE" means the "Closing Date" as defined in the
▇▇▇▇▇/Comcast Agreement.
"SECTION 3.1(A)(VI) EXERCISE" shall refer to the exercise of the Control
Option in accordance with Article III hereof pursuant to Section 3.1(a)(vi).
"SIMULTANEOUS CLOSING" means the Simultaneous Closing as such term is
defined in the BTH/Comcast Agreement."
5. Amendment to Section 1.1(b). Section 1.1(b) is hereby amended by
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inserting the following:
"Other Transactions 3.2(b)"
6. Amendment of Section 3.1. Section 3.1 is hereby deleted in its
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entirety and the following is substituted in lieu thereof:
"SECTION 3.1 EXERCISE PERIODS. (a) The Control Option may be exercised
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either as provided in Section 7.2(c), or by Purchaser at any time during any of
the following periods (each, an "EXERCISE PERIOD"):
(i) the period commencing on the day of an Event and ending 270 days
after Purchaser receives written notice from or on behalf of any Optionor
of the occurrence of an Event;
(ii) the period commencing on the day of a Resignation Event and ending
90 days after Purchaser receives a written notice from (or on behalf of)
any Optionor of the occurrence of a Resignation Event;
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(iii) the period commencing on the day that Purchaser receives a written
notice from (or on behalf of ) Grantor requesting that Purchaser exercise
the Control Option (the "GRANTOR'S NOTICE"), which notice may be delivered
only on or after the fifth anniversary of the SPA Closing, and ending 180
days after such day;
(iv) the period commencing on the seventh anniversary of the SPA
Closing and ending on the eighth anniversary of the SPA Closing;
(v) the period commencing on the day of a ▇▇▇▇▇ Bankruptcy Event and
ending 30 days after Purchaser receives written notice of the occurrence of
a ▇▇▇▇▇ Bankruptcy Event; and
(vi) the period commencing on August 12, 1998, which period shall only
apply to the exercise of the Control Option pursuant to the ▇▇▇▇▇/Comcast
Agreement; provided, that upon the occurrence of the Initial Closing as
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defined in the BTH/Comcast Agreement the Exercise Period described in this
Section 3.1(a)(vi) shall automatically terminate.
provided that no Exercise Period will expire if immediately preceding such
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expiration there is in effect a law, regulation or order that stays or otherwise
prohibits Purchaser from delivering an Exercise Notice after (or as a result of)
the occurrence of a ▇▇▇▇▇ Bankruptcy Event; provided further however, that the
commencement of any Exercise Period described in Sections 3.1(a)(i) through (v)
inclusive shall be postponed until such time, if ever, on the earlier to occur
of the date the ▇▇▇▇▇/Comcast Agreement shall have expired or been terminated or
the date of the Initial Closing under the BTH/Comcast Agreement, but in no event
shall such Exercise Periods described in Sections 3.1(a)(i) - 3.1(a)(v) end
later than December 20, 2002.
(b) The notices delivered pursuant to clauses (i), (ii), (iii) and (v)
will be in the form attached hereto as Exhibit A. A Grantor's Notice delivered
pursuant to clause (iii) will be effective only if a similar notice is
simultaneously delivered to Purchaser under the Related Option Agreements. Once
delivered to Purchaser, a Grantor's Notice will be irrevocable.
(c) Subject to the termination provisions of Section 3.6, the parties
acknowledge that at any given time there may be more than one Exercise Period in
effect at such time.
(d) Grantor acknowledges and agrees that the delivery of an Exercise
Notice pursuant to a Section 3.1(a)(vi) Exercise is being made for the account
of Comcast. BTH shall not be liable to Grantor under this Agreement if the
closing of the Section 3.1(a)(vi) Exercise shall not occur for any reason
provided that this Section 3.1(d) shall not be deemed to be a waiver by Grantor
of any claim which it may have against BTH due to a breach by BTH of its
obligations
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hereunder or preserved pursuant to the second sentence of Section 1.6 of the
Agreement and Amendment No. 1 to Shareholders Agreement of even date herewith."
7. Amendment of Section 3.2. Section 3.2 is hereby deleted in its
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entirety and the following is substituted in lieu thereof:
"SECTION 3.2 EXERCISE OF CONTROL OPTION . (a) Purchaser may exercise
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the Control Option at any time during an Exercise Period by delivery to Grantor
of an irrevocable written notice in the form attached hereto as Exhibit B (the
"EXERCISE NOTICE"). The execution and delivery of this Agreement as amended on
August 12, 1998 shall be deemed to be delivery by Purchaser of a valid Exercise
Notice as of such date pursuant to a Section 3.1(a)(vi) Exercise. Purchaser has
no obligation to deliver an Exercise Notice pursuant to Section 3.1(a)(i)
through (v) and may allow the Control Option to expire and terminate without
purchasing the Optioned Shares. The Control Option may only be exercised
simultaneously with the exercise of the option granted under the Related Option
Agreements and the Closing hereunder will only take place simultaneously with
the closing of the exercise of the option granted under the Related Option
Agreements; provided that the Closing pursuant to a Section 3.1(a)(vi) Exercise
will also only take place on the same date as the ▇▇▇▇▇/Comcast Closing and the
Simultaneous Closing.
(b) The closing for the exercise of the Control Option (the "CLOSING")
(1) in the case of any exercise of the Control Option other than a Section
3.1(a)(vi) Exercise, will take place not more than 20 Business Days after the
date that the Exercise Notice is delivered to Grantor, provided that (x) if it
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is necessary to determine Market Value pursuant to Section 3.4(b), the Closing
will be postponed as provided in Section 3.4(c) and (y) so long as Purchaser is
using its reasonable efforts to consummate the Closing promptly, and subject to
Section 3.6 hereof, Purchaser may postpone the Closing until such time as the
following conditions have been satisfied or waived by Purchaser and (2) in the
case of a Section 3.1(a)(vi) Exercise, will take place on the same date as the
▇▇▇▇▇/Comcast Closing and the Simultaneous Closing at such time as the following
conditions have been satisfied or waived by Purchaser:
(i) The waiting period (including any extension thereof resulting from
additional inquiries, if any) under the HSR Act applicable to (x) the
purchase of the Optioned Shares by Purchaser and (y) in the case of a
Section 3.1(a)(vi) Exercise, the consummation of the transactions
contemplated by the ▇▇▇▇▇/Comcast Agreement and the BTH/Comcast Agreement
including the sale of the Optioned Shares from Purchaser to Comcast (the
"Other Transactions") shall have expired or been earlier terminated.
(ii) All other actions by, in respect of or filings with any Governmental
Authority in the United States, England or Spain, or any other country
where the Intercable Group conducts material business, required to permit
(x) the consummation of the Closing and (y) in the case of a Section
3.1(a)(vi) Exercise, the consummation of the Other Transactions, shall have
been taken or obtained, as the case may be, and shall be in
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full force and effect; provided that, in the case of a Section 3.1(a)(vi)
Exercise, if all authorizations, consents and approvals from applicable
Franchise Authorities necessary to effect the change of control of the
Franchises (A) relating to the Franchises in Systems (whether Owned Systems
or Managed Systems) set forth on Schedule F hereto, (B) relating to
Franchises in Managed Systems which as of the date of Closing are subject
to a letter of intent or agreement of sale providing for the sale or other
disposition of such Managed Systems to a person other than the Company (or
its wholly owned Subsidiaries), and (C) 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 (ii) 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.
(iii) 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 (a), (b) or (c) of the following
paragraph (iv), provided that (x) if after the date hereof BTH or any of
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its Affiliates and (y) in the case of a Section 3.1(a)(vi) Exercise, if
after August 12, 1998 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 clause (iii) will not apply to any such law, rule or regulation.
(iv) 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 Closing or, in the case of a Section 3.1(a)(vi) Exercise, the Other
Transactions or seeking to (a) prevent BTH (or its agent) or, in the case
of a Section 3.1(a)(vi) Exercise, Comcast (or its agent) from exercising
the Control Option, (b) require BTH (or its agent) or, in the case of a
Section 3.1(a)(vi) Exercise, Comcast (or its agent) to divest, or otherwise
limit BTH's, Comcast's (or their respective agent's) ability to exercise
full rights of ownership over, the shares of Capital Stock owned by BTH and
its Affiliates, Comcast and its Affiliates, the Control Option or the
Optioned Shares or (c) require, after the exercise of the Control Option,
the Intercable Group or, in the case of a Section 3.1(a)(vi) Exercise the
Intercable Group or Comcast to divest any material business or assets or
would impose a material limitation on the conduct of Intercable Group's or
Comcast's business, provided that (A)
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if after the date hereof BTH or any of its Affiliates, or, in the case of
a Section 3.1(a)(vi) Exercise, if after August 12, 1998 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 (iv) will not apply
to actions or proceedings that seek to enforce such law, rule or regulation
and (B) any actions or proceedings described in clause (a) or (b) will be
based on the business or assets of BTH and Comcast or their respective
Affiliates and not the Purchaser.
(v) The Intercable Group Entities shall have received all material
third party consents required to be obtained in connection with the
Closing, and, in the case of a Section 3.1(a)(vi) Exercise, the
consummation of the Other Transactions in each case in form and substance
reasonably satisfactory to Purchaser.
(vi) The representations and warranties of Grantor contained in
Article V shall be true at and as of the date of the Closing, as if made at
and as of such date.
(vii) In the case of a Section 3.1(a)(vi) Exercise only, the
▇▇▇▇▇/Comcast Closing and the Simultaneous Closing shall have occurred on
the same date as the Closing hereunder."
8. Amendment of Section 3.3. Section 3.3 is hereby deleted in its
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entirety and the following is substituted in lieu thereof:
"SECTION 3.3 PURCHASE PRICE FOR THE OPTIONED SHARES. (a) The purchase
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price per Optioned Share will be calculated as follows:
(i) (A) if the Trigger Date occurs prior to or on June 18, 1995, 200%
of the Market Value of a share of Class A Common Stock on the applicable
Trigger Date, or (B) except in the case of a Section 3.1(a)(vi) Exercise,
if the Trigger Date occurs after June 18, 1995, the sum of (x) two-thirds
of the Option Price on the applicable Trigger Date and (y) one-third of
120% of the Market Value of a share of Class A Common Stock on the
applicable Trigger Date /1/ or (C) in the case of a Section 3.1(a)(vi)
Exercise, $69.4891 per Optioned Share, in each case reduced by
(ii) (A) the amount (or in the case of property other than cash, fair
market value) of any dividends and distributions other than stock dividends
paid, declared or
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1. As an example of the calculation described in clause (i) (B), if on the
applicable Trigger Date the Option Price were $50 per Share and the Market
Value of a share of Class A Common Stock were $60 per share, the purchase
price would be 2/3 of $50 ($33.3333) plus 1/3 of 120% of $60 ($24), or
$57.3333 (computed to four decimal places).
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otherwise distributed by the Company in respect of the Optioned Shares
between the date hereof and the date of Closing and (B) in the case of a
Section 3.1(a)(vi) Exercise, the amount of any Initial Consideration (as
such term is used in the ▇▇▇▇▇/Comcast Agreement) which has been paid to
▇▇▇▇▇, Grantor or any party to the Related Option Agreements (or their
respective Affiliates) in respect of the Optioned Shares plus interest
accrued at the Applicable Rate (as such term is used in the ▇▇▇▇▇/Comcast
Agreement) from the date such Initial Consideration was paid by Comcast to
and including the date of Closing; provided that the amount of such Initial
Consideration (plus interest) deemed to have been paid in respect of each
Optioned Share shall be equal to the total amount of such Initial
Consideration (plus interest) paid (and accrued) under the ▇▇▇▇▇/Comcast
Agreement divided by the sum of the aggregate number of Optioned Shares
actually acquired by Purchaser on the date of Closing under this Option
Agreement plus the aggregate number of Optioned Shares (as such term is
used in the Related Option Agreements) actually acquired by Purchaser on
the date of Closing under the Related Option Agreements./2/ In the event
any such dividends or distributions are made in property other than cash,
the fair market value of such dividends or distributions will be determined
pursuant to the valuation procedures described in Section 3.4(b).
(b) The applicable "TRIGGER DATE" will depend on the Exercise Period under
which Purchaser is delivering an Exercise Notice and will be earliest of the
following days:
(i) in the case of an Exercise Period described in clauses (i) or
(ii) of Section 3.1(a), the day of an Event or Resignation Event, as the
case may be;
(ii) in the case of an Exercise Period described in clause (iii) of
Section 3.1(a), the day immediately preceding the day on which Grantor
delivers a Grantor's Notice;
(iii) in the case of an Exercise Period described in clause (iv) of
Section 3.1(a), the day immediately preceding day on which Purchaser
delivers an Exercise Notice;
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/2/ As an example of the calculation described in clause (ii)(B), if on the
date of Closing the total amount of the Initial Consideration (plus
interest) paid (and accrued) under the ▇▇▇▇▇/Comcast Agreement is equal to
$51,000,000 and the sum of the aggregate number of Optioned Shares actually
acquired by Purchaser on the date of Closing under this Option Agreement
plus the aggregate number of Optioned Shares (as such term is used in the
Related Option Agreements) actually acquired by Purchaser on the date of
Closing under the Related Option Agreements is equal to 2,700,000 Optioned
Shares, the amount of the reduction per Optioned Share would be $51,000,000
divided by 2,700,000, or $18.8889 (computed to four decimal places).
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(iv) in the case of an Exercise Period described in clause (v) of
Section 3.1(a), the day immediately preceding the day of a ▇▇▇▇▇ Bankruptcy
Event; or
(v) in the case of a Section 3.1(a)(vi) Exercise, the date hereof."
9. Amendment of Section 3.5. Section 3.5 is amended by adding a new
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subsection (c) thereto as follows:
"(c) In the case of a Section 3.1(a)(vi) Exercise, the transactions
described in paragraphs (a) and (b) of this Section 3.5 shall occur on the same
date as the ▇▇▇▇▇/Comcast Closing and the Simultaneous Closing. If the
Simultaneous Closing and the ▇▇▇▇▇/Comcast Closing shall not have occurred on
the same date as the Closing, then the transactions described in paragraphs (a)
and (b) of Section 3.5 shall be rescinded and deemed not to have occurred. In
the case of a Section 3.1(a)(vi) Exercise, the procedures at the Closing shall
be as follows:
(i) the directors of the Company other than the Joint Nominees (as
such term is defined in the Shareholders Agreement) shall resign seriatim
and the remaining directors shall appoint individuals designated by Comcast
to fill the vacancies created thereby, all as more fully described in the
▇▇▇▇▇/Comcast Agreement and the BTH/Comcast Agreement.
(ii) the transactions described in paragraphs (a) and (b) of Section
3.5 of this Agreement and of the Related Option Agreements shall occur; and
(iii) the transactions to be effected at the Simultaneous Closing shall
occur."
10. Amendment of Section 3.6 Section 3.6 is hereby deleted in its
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entirety and the following is substituted in lieu thereof:
"SECTION 3.6 TERMINATION OF CONTROL OPTION. (a) The Control Option shall
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terminate at 5:00 p.m. Denver time when the first Exercise Period described in
clauses (i), (iii) or (iv) of Section 3.1 expires (the "TERMINATION TIME"),
provided that, subject to the following paragraph (b), the Control Option will
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not terminate if Purchaser has previously delivered to Grantor an Exercise
Notice. The Control Option shall also terminate (A) at such time as Purchaser
withdraws an Exercise Notice pursuant to Section 3.4(c), or (B) if the
Closing has been postponed pursuant to Section 3.2(b)(1), ten Business Days
after Grantor has delivered written notice to Purchaser stating that it believes
Purchaser is not using its reasonable efforts to consummate the Closing promptly
(which notice will set forth the basis for such claim) and Purchaser has failed
to use its reasonable efforts prior to the expiration of such period to cure the
problem identified by Grantor. The Control Option will not terminate solely
because of the expiration of the Exercise Periods described in clauses (ii) and
(v) of Section 3.1, or in the case
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of a Section 3.1(a)(vi) Exercise, upon the termination of the ▇▇▇▇▇/Comcast
Agreement and the failure of the Closing hereunder to occur.
(b) Notwithstanding anything in this Agreement to the contrary, (i) if an
Exercise Period is extended pursuant to the proviso in Section 3.1(a), the
Termination Time will occur twenty Business Days after such stay or prohibition
has been lifted and Purchaser has received notice of such action and (ii) each
Exercise Notice other than a Section 3.1(a)(vi) Exercise Notice shall terminate,
and be of no further force or effect, 18 months after its delivery, unless a
Closing shall have occurred by such time.
(c) Notwithstanding the foregoing provisions of this Section 3.6, in no
event shall the Control Option expire or terminate prior to the termination of
the ▇▇▇▇▇/Comcast Agreement."
11. Amendment of Section 4.1. Section 4.1 is hereby deleted in its
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entirety and the following is substituted in lieu thereof:
"SECTION 4.1 NO PROXIES FOR OR ENCUMBRANCES ON OPTIONED SHARES. Except
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as contemplated by this Agreement, until the termination of this Agreement
pursuant to Section 10.1, Grantor shall not, directly or indirectly, (i) grant
any proxies (other than a revocable proxy granted in connection with a meeting
of stockholders) or enter into any voting trust or other agreement or
arrangement with respect to the voting of any Optioned Shares, (ii) sell,
assign, transfer, encumber or otherwise dispose of, or enter into any contract,
option or other arrangement or understanding with respect to the direct or
indirect sale, assignment, transfer, encumbrance or other disposition of, any
Optioned Shares or (iii) seek or solicit any transaction or arrangement
described in clauses (i) and (ii). Grantor will notify Purchaser promptly (and
provide all details reasonably requested by Purchaser) if Grantor is approached
or solicited, directly or indirectly, by any person with respect to any of the
foregoing. Nothing herein shall be deemed to prevent or restrict (x) Grantor or
its Affiliates from voting its shares in its sole discretion on all matters,
except as otherwise agreed to between Grantor, its Affiliates, and BTH in the
Shareholders Agreement or otherwise, or between Grantor, its Affiliates and
Comcast in the ▇▇▇▇▇/Comcast Agreement or otherwise or (y) any Affiliate of
Grantor from taking or refraining from taking any other action not provided
herein or otherwise agreed to between Grantor, its Affiliates and BTH in the
Shareholders Agreement, the ▇▇▇▇▇/Comcast Agreement or otherwise or between
Grantor, its Affiliates and Comcast in the ▇▇▇▇▇/Comcast Agreement."
12. Amendment of Section 4.2. Section 4.2 is hereby deleted in its
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entirety and the following is substituted in lieu thereof:
"SECTION 4.2 FURTHER ASSURANCES. BTH (and its agent) and Grantor will
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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 all such further action as may be reasonably necessary in
order to consummate the transactions contemplated hereby or to
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enable Purchaser and BTH or Comcast, as applicable, to enjoy all benefits and
rights of the Optioned Shares."
13. Amendment of Section 6.1. Section 6.1 is hereby deleted in its
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entirety and the following is substituted in lieu thereof:
"SECTION 6.1 ACQUISITION FOR PURCHASER'S ACCOUNT'. Purchaser represents
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and warrants to Grantor that as of the date hereof and the date of the Closing
the Optioned Shares to be acquired upon exercise of the Control Option will be
acquired by Purchaser as the agent for, in the case of a Section 3.1(a)(vi)
Exercise, Comcast's, and in all other instances BTH's own account and not with a
view to the public distribution thereof and will not be transferred except in
compliance with the Securities Act."
14. Amendment of Section 9.3(c). Section 9.3(c) is hereby deleted in its
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entirety and the following is substituted in lieu thereof:
"(c) In connection with an exercise of rights pursuant to Section 9.1(d),
Purchaser may cause any or all of the Optioned Shares to be transferred of
record into the name of Purchaser, in the case of a Section 3.1(a)(vi) Exercise,
to Comcast and in the case of any other exercise, to BTH, or in any event, to
any of their respective nominees. After notice thereof, Grantor will promptly
give to the Purchaser (or its designee) copies of any notices or other
communications received by it with respect to the Optioned Shares registered in
the name of Grantor, and Purchaser will promptly give to Grantor copies of any
notices and communications received by Purchaser, to the extent the same have
been delivered to Purchaser (or Comcast, BTH or a nominee) with respect to any
Optioned Shares registered in the name of Purchaser (or Comcast, BTH or a
nominee)."
15. Amendment of Section 10.2(a). Section 10.2(a) is hereby deleted in
----------------------------
its entirety and the following is substituted in lieu thereof:
"SECTION 10.2 SUCCESSORS AND ASSIGNS. (a) 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 (i) Purchaser may
--------
assign its rights, but not its obligations, hereunder to any Eligible Assignee
(or an agent of such Eligible Assignee), (ii) Purchaser may assign its rights
and obligations hereunder as provided in Article VII, (iii) Purchaser may assign
its rights (but not its obligations) hereunder at any time after the delivery by
it of an Exercise Notice to Grantor if at the time of any such assignment
pursuant to this clause (iii) the assignee purchases the Optioned Shares
pursuant to Section 3.5(a) and (b) and (iv) Purchaser may, at the Closing of a
Section 3.1(a)(vi) Exercise and the consummation of the ▇▇▇▇▇/Comcast Closing,
assign all its rights and obligations hereunder to Comcast."
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16. Amendment of Section 10.4. Section 10.4 is hereby amended by (a)
-------------------------
deleting the address of ▇▇▇▇ Canada International, Inc. in its entirety and
substituting in lieu thereof the following:
"BCI Telecom Holding Inc.
▇▇▇▇, ▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Attention: Corporate Secretary
with copies to (unless the Initial Closing (as defined in the
BTH/Comcast Agreement) shall have occurred or the ▇▇▇▇▇/Comcast
Agreement shall have terminated):
Comcast Corporation
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇"
and (b) deleting the name and address of the Purchaser and substituting in lieu
thereof:
"The Bank of New York, as successor agent to
▇▇▇▇▇▇ Guaranty Trust Company of New York
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇, Assistant Vice President"
17. Amendment to Section 10.10. Section 10.10 is hereby deleted in its
--------------------------
entirety and the following is substituted in lieu thereof:
"SECTION 10.10 ENTIRE AGREEMENT. This Agreement, together with the
----------------
▇▇▇▇▇/Comcast Agreement, the Shareholders Agreement (including the Agreement and
Amendment No. 1 to Shareholders Agreement) and the BTH/Comcast Agreement
constitutes 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."
18. Amendment to Section 10.12. Section 10.12 is hereby deleted in its
--------------------------
entirety and the following is substituted in lieu thereof:
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"SECTION 10.12 AGENCY CAPACITY OF PURCHASER. Grantor expressly
----------------------------
acknowledges and agrees that Purchaser is acting solely as agent on behalf of,
in the case of a Section 3.1(a)(vi) Exercise, Comcast, and in all other
instances, BTH and not in a principal capacity. Grantor further acknowledges
and agrees that in executing and delivering this Agreement, making any payment,
delivering any notice or instruction, making any determination or taking any
other action provided for or contemplated herein, Purchaser is acting and shall
act solely upon the instruction and at the direction of, in the case of a
Section 3.1(a)(vi) Exercise, Comcast, and in all other instances, BTH."
19. Addition of Section 10.13. Immediately following Section 10.12, a new
-------------------------
Section 10.13 is hereby added as follows:
"SECTION 10.13 Termination of ▇▇▇▇▇/Comcast Agreement. All references to
--------------------------------------
the ▇▇▇▇▇/Comcast Agreement, the BTH/Comcast Agreement, the ▇▇▇▇▇/Comcast
Closing and Closing Date, Comcast and the Section 3.1(a)(vi) Exercise shall be
deemed deleted and of no force or effect if and at such time as the earlier to
occur of the Initial Closing under the BTH/Comcast Agreement and the date the
▇▇▇▇▇/Comcast Agreement shall have been terminated."
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IN WITNESS WHEREOF, the parties have caused this Amendment to be
executed by their duly authorized representatives as of the day and year first
above written.
▇▇▇▇▇ ▇▇▇▇▇ GRANTOR BUSINESS TRUST
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Marocco
---------------------------
▇▇▇▇▇ INTERNATIONAL GRANTOR BUSINESS TRUST
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Marocco
---------------------------
▇▇▇▇▇ INTERNATIONAL, LTD.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------
▇▇▇▇▇ SPACE SEGMENT, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------
▇▇▇▇▇ GLOBAL GROUP, INC..
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------
▇▇▇▇▇ INTERDIGITAL, INC..
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------
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▇▇▇▇▇ ENTERTAINMENT GROUP, LTD.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------
THE BANK OF NEW YORK, as successor agent to ▇▇▇▇▇▇
GUARANTY TRUST COMPANY OF NEW YORK, as agent for
BTH Telecom Holding Inc. f/k/a ▇▇▇▇ Canada
International Inc. and
Comcast Corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
------------------
Assistant Vice President
This Amendment is consented to and approved of by the following:
BCI TELECOM HOLDING, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------
Director
BTH (INTERCABLE) LIMITED
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------
Director/President
COMCAST CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. Block
-------------------
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