EXHIBIT 99.8
(Subscription Agent)
[FORM OF SUBSCRIPTION AGENT AGREEMENT]
This Subscription Agent Agreement (the "Agreement") is made as of
__________________, 2002 between Liberty Media Corporation, a Delaware
corporation (the "Company"), and EquiServe Trust Company, N.A. as subscription
agent (the "Agent").
WHEREAS, the Company proposes to make a subscription offer by issuing
certificates in the form designated by the Company (the "Subscription
Certificates") to shareholders of record (the "Shareholders") of its common
stock ("Common Stock"), without regard to series, as of a record date specified
by the Company (the "Record Date"), pursuant to which each Shareholder will have
certain rights ("Rights") to subscribe at a subscription price to be determined
by the Special Pricing Committee of the Board of Directors of the Company (the
"Subscription Price") for shares of the Company's Series A common stock, par
value $.01 (the "Series A Common Stock"), as described in and upon such terms as
are set forth in the prospectus (the "Prospectus") forming a part of the
Company's Registration Statement on Form S-3, File No. 333-99277 (as previously
filed with the Securities and Exchange Commission and as may be hereinafter
amended or supplemented (the "Registration Statement")). A final copy of the
Prospectus, upon availability, will promptly be delivered to the Agent.
WHEREAS, the Company wishes the Agent to perform certain acts on behalf
of the Company, and the Agent is willing to so act, in connection with the
distribution of the Subscription Certificates and the issuance and exercise
and/or sale of the Rights represented thereby, all upon the terms and conditions
set forth herein.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
agreements set forth herein, the parties agree as follows:
1. Appointment. The Company hereby appoints the Agent to act as subscription
agent in connection with the distribution of Subscription Certificates and the
issuance and exercise and/or sale of the Rights in accordance with the terms set
forth in this Agreement, and the Agent hereby accepts such appointment.
2. Form of Subscription Certificates; Registry.
(a) The form of Subscription Certificate shall be designated by the
Company.
(b) The Agent shall, in its capacity as Transfer Agent of the Company,
maintain a register of Subscription Certificates and the holders of record
thereof (each such holder, a "Rightsholder").
3. Rights; Issuance of Subscription Certificates.
(a) Each Subscription Certificate shall evidence the Rights of the
Rightsholder therein named to purchase Series A Common Stock upon the terms and
conditions set forth therein and in the Prospectus.
(b) Upon the written advice of the Company, signed by any of its duly
authorized officers, as to the Record Date, the Agent shall, from a list of the
Company's Shareholders as of the Record Date ("Record Date Shareholders") to be
prepared by the Agent in its capacity as Transfer Agent of the Company, prepare
and record Subscription Certificates in the names of the Record Date
Shareholders, setting forth the number of Rights each such Record Date
Shareholder is entitled to receive, which number shall be calculated on the
basis of 0.04 Rights for each share of Common Stock held of record in the name
of each such Record Date Shareholder as the same is reflected on the books of
the Transfer Agent. The number of Rights that are issued to each Record Date
Shareholder will be rounded up by the Agent to the nearest number of whole
Rights. No fractional Rights will be issued. Each Subscription Certificate shall
be dated as of the Record Date. Upon the written advice of the Company, signed
by any of its duly authorized officers, as to the effective date of the
Registration Statement and the authorization by the Company to distribute the
same, the Agent shall promptly deliver the fully executed Subscription
Certificates, together with a copy of the Prospectus, instruction letter and any
other documents the Company deems necessary or appropriate (collectively, the
"Subscription Materials"), to all Record Date Shareholders with record addresses
in the United States (including its territories and possessions and the District
of Columbia). Delivery shall be by first class mail (without registration or
insurance), except as set forth in paragraph (c) below.
(c) No Subscription Materials shall be delivered to Record Date
Shareholders having a registered address outside the United States ("Foreign
Shareholders"). Rather the Agent shall hold the Subscription Materials for the
Foreign Shareholders and take such further actions with respect thereto as the
Foreign Shareholders so instruct in accordance with the terms and procedures set
forth in the Prospectus. If
the Agent does not receive contrary instructions from a Foreign Shareholder by
11:00 a.m., New York City time, on November 26, 2002, the Agent will attempt to
sell, if feasible, such Foreign Shareholder's Rights.
4. Exercise.
(a) Rightsholders may acquire Series A Common Stock pursuant to their
basic subscription privilege and their oversubscription privilege by delivery to
the Agent as specified in the Prospectus (i) the Subscription Certificate, duly
executed by such Rightsholders in accordance with and as provided by the terms
and conditions of the Subscription Certificate, together with (ii) the estimated
purchase price, as disclosed in the Prospectus, for each share of Series A
Common Stock subscribed for by exercise of such Rights, in U.S. dollars by check
or bank draft drawn upon a United States bank or postal, telegraphic or express
money order, in each case payable to the order of the Agent.
(b) Rights may be exercised at any time after the distribution date of
the Subscription Certificates but no later than 5:00 P.M. New York time on
December 2, 2002 (the "Expiration Time"). For the purpose of determining the
time of the exercise of any Rights, delivery of any material to the Agent shall
be deemed to occur when such materials are received at the Shareholder Services
Division of the Agent specified in the Prospectus.
(c) Notwithstanding the provisions of Sections 4(a) and 4(b) regarding
delivery of an executed Subscription Certificate to the Agent prior to the
Expiration Time, if prior to such time the Agent receives a Notice of Guaranteed
Delivery by facsimile (telecopy) or otherwise from a bank, a trust company or a
New York Stock Exchange member guaranteeing delivery of (i) payment of the full
Subscription Price for the shares of Common Stock subscribed for pursuant to the
basic subscription privilege and any additional shares of Common Stock
subscribed for pursuant to the oversubscription privilege, and (ii) a properly
completed and executed Subscription Certificate, then such exercise of Rights
shall be regarded as timely, subject, however, to receipt of the duly executed
Subscription Certificate and full payment for the Common Stock by the Agent
within three Business Days (as defined below) after the Expiration Time (the
"Protect Period"). For the purposes of the Prospectus and this Agreement,
"Business Day" shall mean any day on which trading is conducted on the New York
Stock Exchange.
5. Validity of Subscriptions. Irregular subscriptions not otherwise covered by
specific instructions herein shall be submitted to the Company's Vice President
- Investor Relations, and handled in accordance
with his instructions. Such instructions will be documented by the Agent
indicating the instructing officer and the date thereof.
6. Oversubscription. If, after allocation of shares of Common Stock to Record
Date Shareholders exercising their basic subscription privileges, there remain
unexercised Rights, then the Agent shall allot the shares remaining for
subscription in accordance with the proration allocation provisions set forth in
the Prospectus. All shares delivered as a result of such allocation shall be
rounded up to result in delivery of whole shares of Common Stock. The Agent
shall advise the Company immediately upon the completion of such allocation
procedures as to the total number of shares distributable in accordance
therewith.
7. Delivery of Certificates. The Agent will deliver certificates representing
shares of Common Stock purchased in the Rights Offering as soon as practicable
after the Expiration Time and after all allocations have been effected
("Delivery").
8. Holding Proceeds of Rights Offering.
(a) All proceeds received by the Agent from Rightsholders in respect of
the exercise of Rights shall be held by the Agent, on behalf of the Company, in
a segregated account (the "Account"). Interest shall accrue on funds held in the
Account pending disbursement in accordance with this Agreement and the
Prospectus at a rate of [___%]. All accrued interest thereon shall be payable to
the Company promptly following Delivery.
(b) The Agent shall deliver all proceeds received in respect of the
exercise of Rights to the Company as promptly as practicable, but in no event
later than ten business days after the end of the Protect Period.
9. Transfers and Sales. Under the circumstances, in the manner and subject to
the terms and conditions set forth in the Subscription Certificates and the
Prospectus, the Agent shall (i) effect transfers, divisions and combinations of
Subscription Certificates at the request of the Rightsholders; (ii) issue new
Subscription Certificates; (iii) sell Rights represented by the Subscription
Certificates for the account of the holders thereof pursuant to instructions
received from the applicable Rightsholder; and (iv) determine the amount of net
proceeds from the sale of the Rights to be distributed to each selling
Rightsholders.
10. Reports. Daily, during the period commencing with the mailing of
Subscription Certificates until the end of the Protect Period, the Agent will
report by telephone or telecopier, confirmed by letter, to the Company's Vice
President - Investor Relations, data regarding number of Rights exercised, the
total number of shares of Common Stock subscribed for, payments received
therefor and number of Rights being offered for sale for the account of
Rightsholders, bringing forward the figures from the previous day's report in
each case so as to show the cumulative totals and any such other information as
may be mutually determined by the Company and the Agent.
11. Substitute Certificates. If any Subscription Certificate is lost, stolen,
mutilated or destroyed, the Agent may, on such terms which will indemnify and
protect the Company and the Agent as the Agent may in its discretion impose
(which shall, in the case of a mutilated Subscription Certificate, include the
surrender and cancellation thereof), issue a new Subscription Certificate of
like denomination in substitution for the Subscription Certificate so lost,
stolen, mutilated or destroyed.
12. Compensation for Services. The Company agrees to pay to the Agent
compensation for its services as Agent in accordance with the Fee Schedule,
dated October [__], 2002, and attached hereto as Exhibit A. The Company further
agrees that it will reimburse the Agent for its reasonable out-of-pocket
expenses incurred in the performance of its duties as such, as more fully
described in Exhibit A.
13. Instructions and Indemnification. The Agent undertakes the duties and
obligations imposed by this Agreement upon the following terms and conditions:
(a) The Agent shall be entitled to rely upon any instructions or
directions furnished to it by an appropriate officer of the Company, whether in
conformity with the provisions of this Agreement or constituting a modification
hereof or a supplement hereto; provided, however, that any such instruction or
direction that constitutes a modification or supplement hereto shall be in
writing, duly signed by such officer. Without limiting the generality of the
foregoing or any other provision of this Agreement, the Agent, in connection
with its duties hereunder, shall not be under any duty or obligation to inquire
into the validity or invalidity or authority or lack thereof of any instruction
or direction from an officer of the Company which conforms to the applicable
requirements of this Agreement and which the Agent reasonably believes to be
genuine and shall not be liable for any delays, errors or loss of data occurring
by reason of circumstances beyond the Agent's control.
(b) The Company will indemnify the Agent and its nominees against, and
hold it harmless from, all liability and expense which may arise out of or in
connection with the services described in this Agreement or the instructions or
directions furnished to the Agent relating to this Agreement by an appropriate
officer of the Company, except for any liability or expense which shall arise
out of the gross negligence, bad faith or willful misconduct of the Agent or
such nominees.
14. Agent Liability. The Agent shall be responsible for and shall indemnify and
hold the Company harmless from and against any and all losses, damages, costs,
charges, counsel fees, payments, expenses and liability arising out of or
attributable to Agent's refusal or failure to comply with the terms of this
Agreement, or which arise out of Agent's bad faith, gross negligence or willful
misconduct or which arise out of the breach of any representation or warranty of
Agent hereunder, for which Agent is not entitled to indemnification under this
Agreement; provided, however, that Agent's aggregate liability during the term
of this Agreement with respect to or arising from this Agreement or any services
provided or omitted to be provided hereunder, whether in contract, in tort or
otherwise is limited to, and shall not exceed, the amounts paid by the Company
to Agent (in any capacity) as fees and charges, but not including reimbursable
expenses, during the twelve (12) calendar months immediately preceding the event
for which recovery from the Agent is being sought.
15. Changes in Subscription Certificate. The Agent may, without the consent or
concurrence of the Rightsholders in whose names Subscription Certificates are
registered, by supplemental agreement or otherwise, concur with the Company in
making any changes or corrections in a Subscription Certificate that it shall
have been advised by counsel (who may be counsel for the Company) is appropriate
to cure any ambiguity or to correct any defective or inconsistent provision or
clerical omission or mistake or manifest error therein or herein contained, and
which shall not be inconsistent with the applicable provision of the
Subscription Certificate except insofar as any such change may confer additional
rights upon the Rightsholders.
16. Assignment, Delegation.
(a) Except as provided in Section 16(c) below, neither this Agreement
nor any rights or obligations hereunder may be assigned or delegated by either
party without the written consent of the other party.
(b) This Agreement shall inure to the benefit of and be binding upon
the parties and their respective permitted successors and assigns. Nothing in
this Agreement is intended or shall be construed to confer upon any other person
any right, remedy or claim or to impose upon any other person any duty,
liability or obligation.
(c) The Agent may, without further consent on the part of the Company,
(i) subcontract for the performance hereof with EquiServe Limited Partnership or
(ii) subcontract with other subcontractors for systems, processing, telephone
and mailing services, and related clean up activities, as may be required from
time to time; provided, however, that the Agent shall be as fully responsible to
the Company for the acts and omissions of any subcontractor as it is for its own
acts and omissions.
17. Governing Law. The validity, interpretation and performance of this
Agreement shall be governed by the law of the State of New York.
18. Third Party Beneficiaries. This Agreement does not constitute an agreement
for a partnership or joint venture between the Agent and the Company. Neither
party shall make any commitments with third parties that are binding on the
other party without the other party's prior written consent.
19. Force Majeure. In the event either party is unable to perform its
obligations under the terms of this Agreement because of acts of God, strikes,
equipment or transmission failure or damage reasonably beyond its control, or
other cause reasonably beyond its control, such party shall not be liable for
damages to the other for any damages resulting from such failure to perform or
otherwise from such causes. Performance under this Agreement shall resume when
the affected party or parties are able to perform substantially that party's
duties.
20. Damages. Neither party to this Agreement shall be liable to the other party
for any consequential, indirect, special or incidental damages under any
provisions of this Agreement or for any consequential, indirect, penal, special
or incidental damages arising out of any act or failure to act hereunder even if
that party has been advised of or has foreseen the possibility of such damages.
21. Severability. If any provision of this Agreement shall be held invalid,
unlawful or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired.
22. Counterparts. This Agreement may be executed in one or more counterparts,
each of which shall be deemed an original and all of which together shall be
considered one and the same agreement.
23. Captions. The captions and descriptive headings herein are for the
convenience of the parties only. They do not in any way modify, amplify, alter
or give full notice of the provisions hereof.
24. Confidentiality. The Agent and the Company agree that all books, records,
information and data pertaining to the business of the other party which are
exchanged or received pursuant to the negotiation or the carrying out of this
Agreement including the fees for services set forth in Exhibit A shall remain
confidential, and shall not be voluntarily disclosed to any other person, except
(i) to employees, counsel and other representatives who need to know such
confidential information and are informed of the obligations contained in this
Section 24 or (ii) as may be required by law.
25. Term. This Agreement shall remain in effect until 30 days' written notice
has been provided by either party to the other; provided, however, that this
Agreement shall not be terminable prior to Delivery except upon earlier
termination of the Rights Offering by the Company. Upon termination of the
Agreement, the Agent shall retain all canceled certificates and related
documentation as required by applicable law.
26. Notices. Until further notice in writing by either party hereto to the other
party, all written reports, notices and other communications between the Agent
and the Company required or permitted hereunder shall be delivered or mailed by
first class mail, postage prepaid, addressed as follows:
If to the Company, to:
Investor Relations
Liberty Media Corporation
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
With a copy to:
▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
▇▇▇▇▇ ▇▇▇▇▇ LLP
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
If to the Agent, to:
EquiServe Trust Company, N.A.
c/o EquiServe Limited Partnership
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Reorganization Department
27. Survival. The provisions of Paragraphs 13, 14, 17, 19 - 21 and 24 - 27 shall
survive any termination, for any reason, of this Agreement.
28. Merger of Agreement. This Agreement constitutes the entire agreement between
the parties hereto and supercedes any prior agreement with respect to the
subject matter hereof whether oral or written.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their respective officers, hereunto duly authorized, as of the day and year
first above written.
EQUISERVE TRUST COMPANY, NA. LIBERTY MEDIA CORPORATION
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Signature Signature
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Title Title
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Date Date