EXHIBIT 10.3
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LIBERTY MEDIA CORPORATION
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March 9, 1999
AT&T Corp.
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Re: Intercompany Agreement
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Ladies and Gentlemen:
Reference is made to the Agreement and Plan of Restructuring and
Merger, dated as of June 23, 1998, among Tele-Communications, Inc. ("TCI"), AT&T
Corp. ("AT&T") and Italy Merger Corp., as amended or supplemented to the date
hereof (the "Merger Agreement"). Section 7.14 of the Merger Agreement
contemplates that at the Effective Time the parties will enter into an agreement
having the terms set forth in Schedule 7.14 to the Merger Agreement ("Schedule
7.14"). Capitalized terms used in this letter agreement (this "Letter
Agreement") and not otherwise defined shall have the meanings ascribed thereto
in the Merger Agreement.
This Letter Agreement sets forth the agreement between AT&T, on behalf
of itself and the members of the Common Stock Group (as defined in the Parent
Charter Amendment), and Liberty Media Corporation ("LMC"), on behalf of itself
and the members of the Liberty Media Group (as defined in the Parent Charter
Amendment), contemplated by Section 7.14 of the Merger Agreement.
In consideration of the premises and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties agree as follows:
1. Binding Agreement. The parties acknowledge and agree that
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Schedule 7.14 is hereby incorporated by reference as if completely restated
herein, and the term "Letter Agreement" as used herein shall be deemed to refer
to this letter including Schedule 7.14 as if attached hereto. This Letter
Agreement constitutes a valid, binding and enforceable agreement between the
parties, subject to the terms and conditions set forth herein, and shall
be binding upon and inure to the benefit of the parties hereto, the members of
their respective Groups (as defined in the Parent Charter Amendment) and their
respective successors and assigns. AT&T shall cause each of its Controlled
Affiliates (as defined below) immediately following the Effective Time, and each
other Person which thereafter becomes a Controlled Affiliate of AT&T, to be
bound by the terms of this Letter Agreement for so long as they remain members
of the Common Stock Group. LMC shall cause each of its Controlled Affiliates
immediately following the Effective Time, each of the Covered Entities (as such
term is defined in the Parent Charter Amendment), and each other Person which
thereafter becomes a Controlled Affiliate of LMC or of any of the Covered
Entities, to be bound by the terms of this Letter Agreement for so long as they
remain members of the Liberty Media Group. The term "Controlled Affiliate" shall
mean, as to any Person, any other Person which such first Person Controls.
2. Affiliation Documentation. The parties acknowledge that the
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transactions referred to in paragraph 2 of Schedule 7.14 and Exhibit 1 thereto
have been documented and entered into prior to the Effective Time to the mutual
satisfaction of the parties (with the affiliation arrangements between the
Company and TV Guide, Inc. being substituted for the transaction referred to in
Schedule 7.14 as "Prevue Interactive Guide").
3. Definitive Agreement. Upon the written request of either party,
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AT&T and LMC shall (a) negotiate in good faith the terms and conditions of a
definitive agreement (the "Definitive Agreement") which (i) would contain
provisions incorporating and expanding upon the agreements set forth herein,
together with other provisions customary in the case of transactions of the type
described herein, and (ii) would supersede this Letter Agreement, and (b) use
reasonable efforts to execute and deliver, subject to clause (a) of this Section
3, such Definitive Agreement; provided, however, that the foregoing shall not
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constitute an agreement to agree and (subject to the obligation to negotiate in
good faith and use reasonable efforts to enter into such Definitive Agreement)
neither party shall be obligated to enter into any Definitive Agreement.
Notwithstanding anything to the contrary set forth herein, until such Definitive
Agreement is executed by both parties, this Letter Agreement shall continue to
be a valid, binding and enforceable obligation of the parties.
4. Representations and Warranties. (a) AT&T represents and warrants
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to LMC that (i) AT&T is a corporation duly organized, validly existing and in
good standing under the laws of the State of New York and has the corporate
power and authority to enter into this Letter Agreement and to carry out its
obligations hereunder, (ii) the
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execution and delivery of this Letter Agreement by AT&T and the consummation
by AT&T of the transactions contemplated hereby have been duly authorized by all
necessary corporate action on the part of AT&T and no other corporate
proceedings on the part of AT&T are necessary to authorize this Letter Agreement
or any of the transactions contemplated hereby, (iii) this Letter Agreement has
been duly executed and delivered by AT&T and constitutes a valid and binding
obligation of AT&T, and, assuming this Letter Agreement constitutes a valid and
binding obligation of LMC, is enforceable against AT&T in accordance with its
terms, (iv) none of the execution, delivery or performance of this Letter
Agreement by AT&T constitutes a breach or violation of or conflicts with AT&T's
certificate of incorporation or by-laws or any material agreement to which AT&T
is a party or by which its properties are bound, and (v) none of such material
agreements would impair in any material respect the ability of AT&T to perform
its obligations hereunder.
(b) LMC represents and warrants to AT&T that (i) LMC is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware and has the corporate power and authority to enter into
this Letter Agreement and to carry out its obligations hereunder, (ii) the
execution and delivery of this Letter Agreement by LMC and the consummation by
LMC of the transactions contemplated hereby have been duly authorized by all
necessary action on the part of LMC and no other proceedings on the part of LMC
are necessary to authorize this Letter Agreement or any of the transactions
contemplated hereby, (iii) this Letter Agreement has been duly executed and
delivered by LMC and constitutes a valid and binding obligation of LMC, and,
assuming this Letter Agreement constitutes a valid and binding obligation of
AT&T, is enforceable against LMC in accordance with its terms, (iv) none of the
execution, delivery or performance of this Letter Agreement by LMC constitutes a
breach or violation of or conflicts with its certificate of incorporation or by-
laws or any material agreement to which LMC is a party or by which its
properties are bound, and (v) none of such material agreements would impair in
any material respect the ability of LMC to perform its obligations hereunder.
5. Governing Law. This Letter Agreement shall be governed by, and
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construed in accordance with, the laws of the State of Delaware, without regard
to principles of conflicts of laws.
6. Specific Performance. Each of AT&T and LMC acknowledges and
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agrees that money damages are not an effective remedy for violations of this
Letter Agreement and that any party may, in its sole discretion,
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apply to a court of competent jurisdiction for specific performance or
injunctive or such other relief as such court may deem just and proper in order
to enforce this Letter Agreement or prevent any violation hereof and, to the
extent permitted by applicable Law, each party waives any objection to the
imposition of such relief.
7. Counterparts. This Letter Agreement may be executed in
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counterparts, each of which shall be deemed an original and all of which shall
constitute one and the same instrument.
8. Amendments; No Waivers. This Letter Agreement shall be amended,
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changed,supplemented, waived or otherwise modified only by an instrument in
writing signed by each of AT&T and LMC.
(b) 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. Severability. In case any provision in this Letter Agreement
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shall be held invalid, illegal or unenforceable in a jurisdiction, such
provision shall be modified or deleted, as to the jurisdiction involved, only to
the extent necessary to render the same valid, legal and enforceable, and the
validity, legality and enforceability of the remaining provisions hereof shall
not in any way be affected or impaired thereby nor shall the validity, legality
or enforceability of such provision be affected thereby in any other
jurisdiction.
10. Cooperation. Each of AT&T and LMC covenants and agrees with the
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other to use its reasonable best efforts to cause each member of the Common
Stock Group and each member of the Liberty Group, respectively, to fulfill each
of its respective obligations under this Letter Agreement.
11. Interpretation. The parties acknowledge and agree that the
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language used in the Term Sheet shall be deemed to be the language chosen by the
parties to express their mutual intent and no rule of strict construction shall
be applied against either party.
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If the foregoing is acceptable to you, please confirm your agreement
by countersigning this letter and returning an executed copy to us.
Very truly yours,
LIBERTY MEDIA CORPORATION, for itself and for
each member of the Liberty Media Group
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President
ACCEPTED AND AGREED AS
OF THE DATE FIRST ABOVE WRITTEN:
AT&T CORP., for itself and for each
member of the Common Stock Group
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Executive Vice President and
Chief Financial Officer
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