EXHIBIT 10.10
CONFORMED COPY
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REGISTRATION RIGHTS AGREEMENT
AMONG
NEW UNITEDGLOBALCOM, INC.,
LIBERTY MEDIA CORPORATION,
LIBERTY GLOBAL, INC.
AND
LIBERTY UCOMA, LLC
DATED AS OF JANUARY 30, 2002
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TABLE OF CONTENTS
ARTICLE I DEFINITIONS......................................................................1
1.1 Definitions.....................................................................1
1.2 Internal References.............................................................3
ARTICLE II REGISTRATION RIGHTS.............................................................3
2.1 Demand Registration.............................................................3
2.2 Piggyback Registration..........................................................5
ARTICLE III REGISTRATION PROCEDURES........................................................7
3.1 Filings; Information............................................................7
3.2 Registration Expenses..........................................................10
ARTICLE IV INDEMNIFICATION AND CONTRIBUTION...............................................11
4.1 Indemnification by the Company.................................................11
4.2 Indemnification by Selling Holders.............................................11
4.3 Conduct of Indemnification Proceedings.........................................12
4.4 Contribution...................................................................13
ARTICLE V MISCELLANEOUS...................................................................13
5.1 Participation in Underwritten Registrations....................................13
5.2 Rule 144.......................................................................14
5.3 Holdback Agreements............................................................14
5.4 Termination....................................................................14
5.5 Amendments, Waivers, Etc.......................................................15
5.6 Counterparts...................................................................15
5.7 Entire Agreement...............................................................15
5.8 Governing Law..................................................................15
5.9 Assignment of Registration Rights..............................................15
5.10 Notices........................................................................15
5.11 Interpretation.................................................................17
REGISTRATION RIGHTS AGREEMENT
This
REGISTRATION RIGHTS AGREEMENT (this "AGREEMENT"), is
entered into as of January 30, 2002, by and among New UnitedGlobalCom, Inc., a
Delaware corporation (the "COMPANY"), Liberty Media Corporation, a Delaware
corporation, Liberty Global, Inc. a Delaware corporation ("LIBERTY GLOBAL"), and
Liberty UCOMA, LLC, a Delaware limited liability company ("LIBERTY UCOMA").
WHEREAS, the Company, UnitedGlobalCom, Inc., a Delaware
corporation ("UNITED"), United/New United Merger Sub, Inc., a Delaware
corporation ("MERGER SUB"), Liberty Global, Liberty Media International, Inc., a
Delaware corporation ("LMINT"), Liberty Media and certain stockholders of United
(the "FOUNDERS") are parties to an Amended and Restated Agreement and Plan of
Reorganization and Merger, dated as of December 31, 2001 (the "MERGER
AGREEMENT"), pursuant to which the parties thereto will effect a transaction in
which, among other things, (a) the Founders and Liberty Global will contribute
or cause to be contributed all of the shares of Class B Common Stock, par value
$0.01 per share, of United held by them and Liberty Media will contribute or
cause to be contributed certain shares of Class A Common Stock, par value $0.01
per share, of United held, directly or indirectly, by it to the Company in
exchange for an equal number of shares of the Company's Class B Common Stock,
par value $0.01 per share ("CLASS B STOCK") (in the case of the Founders), or
Class C Common Stock, par value $0.01 per share ("CLASS C STOCK") (in the case
of Liberty Global), (b) the Company will acquire United by means of a merger of
Merger Sub with and into United, and (c) Liberty Media will contribute, or cause
to be contributed, cash and certain debt securities to the Company in exchange
for additional shares of Class C Stock; and
WHEREAS, Liberty UCOMA is a "Contributing Party" for purposes
of the Merger Agreement; and
WHEREAS, it is a condition precedent to the closing of the
transactions contemplated by the Merger Agreement that the parties hereto
execute and deliver this Agreement;
NOW THEREFORE, in consideration of the premises, mutual
promises and covenants contained in this Agreement and intending to be legally
bound, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
1.1 DEFINITIONS.
Terms defined in the Merger Agreement are used herein as therein
defined except as otherwise indicated below. In addition, the following terms,
as used herein, have the following meanings:
"AGREEMENT" has the meaning set forth in the preamble hereof.
"CLASS A STOCK" means the Company's Class A Common Stock, par
value $0.01 per share.
"CLASS B STOCK" has the meaning set forth in the recitals
hereof.
"CLASS C STOCK" has the meaning set forth in the recitals
hereof.
"COMPANY" has the meaning set forth in the preamble hereof.
"DEMAND REGISTRATION" means a registration under the
Securities Act requested in accordance with Section 2.1.
"FOUNDERS" has the meaning set forth in the recitals hereof.
"INITIAL AMOUNT" means the number of shares of Class A Stock
beneficially owned (within the meaning of Rule 13d-3 promulgated under the
Exchange Act) by the Liberty Holders, calculated without giving effect to any
conditions to or restrictions on the conversion of any securities of the
Company, immediately following the Closing (as adjusted for stock splits,
reverse splits, stock dividends, reclassifications, recapitalizations and
similar events affecting the Class A Stock).
"LIBERTY GLOBAL" has the meaning set forth in the preamble
hereof.
"LIBERTY HOLDERS" means each of Liberty Media, Liberty Global,
Liberty UCOMA, their respective Affiliates and any direct or indirect transferee
of any Registrable Securities held by any of such Persons.
"LIBERTY MEDIA" means Liberty Media Corporation, a Delaware
corporation, and any successor (by merger, consolidation, transfer or otherwise)
to all or substantially all of its assets.
"LIBERTY UCOMA" has the meaning set forth in the preamble
hereof.
"LMINT" has the meaning set forth in the recitals hereof.
"MERGER AGREEMENT" has the meaning set forth in the recitals
hereof.
"MERGER SUB" has the meaning set forth in the recitals hereof.
"PIGGYBACK REGISTRATION" has the meaning set forth in
Section 2.2.
"REGISTRABLE SECURITIES" means all securities of the Company
or of any successor to the Company (by reason of merger, share exchange, sale of
all or substantially all the assets of the Company or otherwise) now owned or
hereafter acquired by any Liberty Holder. As to any particular Registrable
Securities, such securities shall cease to be Registrable Securities when (i)
such securities shall have been transferred or disposed of pursuant to an
effective registration statement under the Securities Act or an exemption from
the registration requirements of the Securities Act, new certificates therefor
not bearing a legend restricting further transfer shall
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have been delivered by the Company and the subsequent transfer or disposition of
such securities shall not require their registration or qualification under the
Securities Act or any similar state law then in force or (ii) such securities
shall have ceased to be outstanding.
"REQUESTING HOLDERS" means the Liberty Holders requesting a
Demand Registration and shall include Liberty Holders deemed "Requesting
Holders" pursuant to Section 2.1(c).
"RULE 144" means Rule 144 (or any successor rule of similar
effect) promulgated under the Securities Act.
"SELLING HOLDER" means any Liberty Holder that is selling
Registrable Securities pursuant to a public offering registered hereunder.
"SHELF REGISTRATION" means a registration of shares to be sold
on a continuous or delayed basis pursuant to Rule 415 under the Securities Act
(or any successor provision thereto).
"UNDERWRITER" means a securities dealer that purchases any
Registrable Securities as principal and not as part of such dealer's
market-making activities.
"UNITED" has the meaning set forth in the recitals hereof.
1.2 INTERNAL REFERENCES
Unless the context indicates otherwise, references to Articles,
Sections and paragraphs shall refer to the corresponding articles, sections and
paragraphs in this Agreement, and references to the parties shall mean the
parties to this Agreement.
ARTICLE II
REGISTRATION RIGHTS
2.1 DEMAND REGISTRATION.
(a) Liberty Media or its designee, on behalf of the Liberty
Holders, shall be entitled to make written requests from time to time for Demand
Registration of all or any part of the Registrable Securities held by the
Liberty Holders, provided that each such Demand Registration must be in respect
of Registrable Securities representing not less than the lower of (A) 10% of the
Initial Amount or, with respect to Registrable Securities other than shares of
Class A Stock, a number of such other securities having a fair market value
(based on the average of the closing prices of such securities on the principal
stock exchange or interdealer quotation system on which such securities are
traded for the five consecutive trading days immediately preceding the date of
the written request for such Demand Registration or, if such securities are not
publicly traded, as determined in good faith by the Company's Board of
Directors) equal to at least 10% of the product of (x) the Initial Amount,
MULTIPLIED BY (y) the average of the closing prices of the Class A Stock on the
principal stock exchange or interdealer quotation system on which the Class A
Stock is traded for the same five trading day period or (B) all of the
Registrable Securities held by the Liberty Holders. Notwithstanding the
foregoing,
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the Company shall not be obligated to effect more than a total of five (5)
Demand Registrations and Liberty Media and any designee of Liberty Media may
make no more than two requests for a Demand Registration in any 12-month period.
(b) Any request for a Demand Registration will specify the aggregate
number and kind of Registrable Securities proposed to be sold and will also
specify the intended method of disposition thereof. A registration will not
count as a Demand Registration until it has become effective and at least 90% of
the Registrable Securities requested to be included in such Demand Registration
have been registered and sold.
(c) Upon receipt of any request for a Demand Registration by Liberty
Media or its designee, the Company shall promptly (but in any event within ten
days) give written notice of such proposed Demand Registration to each of the
Liberty Holders that, according to the stock transfer book of the Company, holds
Registrable Securities, and all such Liberty Holders (including their respective
direct or indirect transferees) shall have the right, exercisable by written
notice to the Company within 20 days of their receipt of the Company's notice,
to elect to include in such Demand Registration such portion of their
Registrable Securities as they may request. All such Persons requesting to have
their Registrable Securities included in a Demand Registration in accordance
with the preceding sentence shall be deemed to be "Requesting Holders" for
purposes of this Section 2.1.
(d) If Liberty Media or its designee so elects, the offering of such
Registrable Securities pursuant to such Demand Registration shall be in the form
of a "firm commitment" underwritten offering. The Company shall have the right
to select the Underwriters to be used in connection with any offering under this
Section 2.1, provided that such Underwriters, including the managing
Underwriters, shall be reasonably satisfactory to the Requesting Holders that
hold a majority of the Registrable Securities requested to be included in such
Demand Registration. Any request for Demand Registration may specify that
Registrable Securities are to be sold pursuant to a Shelf Registration.
(e) The Company will have the right to preempt any Demand Registration
with a primary registration by giving written notice, within ten Business Days
after the request for such Demand Registration was given, of such intention to
Liberty Media indicating that the Company has identified a specific business
need and use for the proceeds of the sale of such securities and had
contemplated such sale of securities prior to the date such written request was
given, and the Company shall use commercially reasonable efforts to effect a
primary registration within 90 days of such notice. In the ensuing primary
registration, the Liberty Holders will have the Piggyback Registration rights
set forth in Section 2.2 hereof. If the Company thereafter decides to abandon
its intention to pursue such sale of securities, it shall give notice thereof to
Liberty Media within two Business Days following the Company's decision. The
Company may exercise the right to preempt a Demand Registration only once in
each 360-day period; provided, that during each 360-day period the Company shall
use its reasonable best efforts to permit a period of at least 180 consecutive
days during which the Liberty Holders may effect a Demand Registration.
(f) If a Demand Registration involves an underwritten offering and the
managing Underwriter(s) advise the Company and the Requesting Holders in writing
that, in its
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opinion, the number of securities requested to be included in such registration
(including securities of the Company that are not Registrable Securities)
exceeds the number that can be sold in such offering without adversely affecting
the price of the offering, the Company will include in such registration the
Registrable Securities requested to be included in such registration. If the
number of Registrable Securities requested to be included in such registration
exceeds the number that, in the opinion of such managing underwriter, can be
sold in such offering, the number of such Registrable Securities to be included
in such Demand Registration shall be allocated pro rata among all Requesting
Holders on the basis of the relative number of Registrable Securities then held
by each such Requesting Holder (provided that the number of Registrable
Securities thereby allocated to any Requesting Holder for inclusion in such
Demand Registration that exceeds such Requesting Holder's request shall be
reallocated among the remaining Requesting Holders in like manner) or in such
other manner as the Requesting Holders may agree. If the number of Registrable
Securities requested to be included in such Demand Registration is less than the
number that, in the opinion of the managing Underwriter(s), can be sold in such
offering without adversely affecting the price of the offering, the Company may
include in such registration the securities the Company proposes to sell up to
the number of securities that, in the opinion of the managing Underwriter(s),
can be so sold in such offering. If the number of Registrable Securities
requested to be included in such Demand Registration plus the number of
securities proposed to be included in such Demand Registration by the Company is
less than the number that, in the opinion of the managing Underwriter(s), can be
sold in such offering without adversely affecting the price of the offering, the
securities requested to be included in such Demand Registration by other Persons
whose requests have been approved by the Company may be included in such Demand
Registration up to the number of securities that, in the opinion of the managing
Underwriter(s), can be so sold. If any Registrable Securities requested to be
registered pursuant to a Demand Registration under this Section 2.1 are excluded
from registration hereunder, then the Liberty Holder(s) having Registrable
Securities excluded shall have the right to withdraw all, or any part, of their
Registrable Securities from such registration prior to its effectiveness.
2.2 PIGGYBACK REGISTRATION
(a) If the Company proposes to file a registration statement under the
Securities Act with respect to an offering of securities for the account of any
Person other than a Liberty Holder or for its own account (other than a
registration statement on Form S-4 or S-8 (or any substitute form that may be
adopted by the Commission)), the Company shall give written notice of such
proposed filing to the Liberty Holders as soon as reasonably practicable (but in
no event less than 15 days before the anticipated filing date), undertaking to
provide each Liberty Holder the opportunity to register on the same terms and
conditions such number of Registrable Securities as such Liberty Holder may
request (a "PIGGYBACK REGISTRATION"). Each Liberty Holder will have five
Business Days after any such notice is given to notify the Company as to whether
it wishes to participate in a Piggyback Registration (which notice shall not be
deemed to be a request for a Demand Registration); provided that should a
Liberty Holder fail to provide timely notice to the Company, such Holder will
forfeit any rights to participate in the Piggyback Registration with respect to
such proposed offering. If the registration statement is filed on behalf of a
Person other than the Company, the Company will use its best efforts to have the
amount of Registrable Securities that the Liberty Holders wish to sell included
in the registration statement. If the Company or the Person for whose account
such offering is being made shall
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determine in its sole discretion not to register or to delay the proposed
offering, the Company may, at its election, provide written notice of such
determination to the Liberty Holders and (i) in the case of a determination not
to effect the proposed offering, shall thereupon be relieved of the obligation
to register such Registrable Securities in connection therewith, and (ii) in the
case of a determination to delay a proposed offering, shall thereupon be
permitted to delay registering such Registrable Securities for the same period
as the delay in respect of the proposed offering. If the Piggyback Registration
involves an underwritten public offering, any Liberty Holder that requested that
Registrable Securities be included therein may elect, by written notice given to
the Company prior to the effective date of the registration statement therefor,
not to register such Registrable Securities in connection with such Piggyback
Registration. As between the Company and the Selling Holders, the Company shall
be entitled to select the Underwriters in connection with any Piggyback
Registration.
(b) If a Piggyback Registration involves an underwritten offering and
the managing Underwriter(s) advise the Company in writing that, in its opinion,
the amount of securities requested to be included in such registration by all
selling securityholders and the Company, if applicable, exceeds the amount which
can be sold in such offering without adversely affecting the price of such
offering, then the Company will include in such Piggyback Registration (A) if
such Piggyback Registration relates to a primary offering initiated by the
Company, (i) first, the securities proposed to be sold by the Company, (ii)
second, to the extent the number of securities proposed to be included in such
Piggyback Registration by the Company is less than the number of securities
which the Company has been advised by the managing Underwriter(s) can be sold
in such offering without having the adverse effect referred to above, the
Registrable Securities requested to be included in such Piggyback
Registration by the Liberty Holders (provided that if the number of such
Registrable Securities, in combination with the number of securities proposed
to be included in such Piggyback Registration by the Company, exceeds the
number which the Company has been advised can be sold in such offering
without having the adverse effect referred to above, the number of such
Registrable Securities included in such Piggyback Registration shall be
allocated pro rata among all such Liberty Holders on the basis of the
relative number of Registrable Securities that each of the Liberty Holders
has requested to be included in such Piggy Registration or in such other
manner as such Liberty Holders may agree); and (B) if such Piggyback
Registration relates to a secondary offering initiated by any Person other
than a Liberty Holder, (i) first, the securities requested to be included in
such registration by such other Person (to the extent that the number of such
securities does not exceed the number of securities which the Company has
been advised by the managing Underwriter(s) can be sold in such offering
without having the adverse effect described above), (ii) second, to the
extent the number of securities requested to be included in such registration
by such other Person is less than the number of securities which the Company
has been advised by the managing Underwriter(s) can be sold in such offering
without having the adverse effect referred to above, the Registrable
Securities requested to be included in such Piggyback Registration by the
Liberty Holders (provided that if the number of such Registrable Securities,
in combination with the securities of such other Person to be included in
such Piggyback Registration, exceeds the number which the Company has been
advised by the managing Underwriter(s) can be sold in such offering without
having the adverse effect referred to above, the number of such Registrable
Securities of the Liberty Holders included in such Piggyback Registration
shall be allocated pro rata among all such Liberty Holders on the basis of
the relative number of Registrable Securities each such Liberty Holder has
requested to be
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included in such Piggyback Registration or in such other manner as such
Liberty Holders may agree) and (iii) third, to the extent the sum of the
number of securities requested to be included in such Piggyback Registration
by such other Person plus the number of Registrable Securities proposed to be
included in such Piggyback Registration by the Liberty Holders is less than
the number of securities which the Company has been advised by the managing
Underwriter(s) can be sold in such offering without having the adverse effect
referred to above, the securities proposed to be sold by the Company (to the
extent that the number of such securities does not exceed, in combination
with the securities of such other Person and the Liberty Holders to be
included in such Piggyback Registration, the number of securities which the
Company has been advised by the managing Underwriter(s) can be sold in such
offering without having the adverse effect described above). If as a result
of the provisions of this Section 2.2(b) any Liberty Holder is not entitled
to include all Registrable Securities in a Piggyback Registration that such
Liberty Holder has requested to be so included, such Liberty Holder may
withdraw such Liberty Holder's request to include Registrable Securities in
such Piggyback Registration prior to its effectiveness.
(c) The Company shall not grant any piggyback registration or
similar rights to any Person that would provide such Person with piggyback
registration or similar rights that are senior to or pari passu with the rights
granted to the Liberty Holders hereunder.
ARTICLE III
REGISTRATION PROCEDURES
3.1 FILINGS; INFORMATION
In connection with the registration and offering of Registrable
Securities pursuant to Sections 2.1 and 2.2 hereof, the Company will use its
reasonable best efforts to effect the registration and offering of such
Registrable Securities as promptly as is reasonably practicable, and in
connection with any such request:
(a) The Company will expeditiously prepare and file with the
Commission a registration statement on any form for which the Company then
qualifies and that counsel for the Company shall deem appropriate and available
for the sale of the Registrable Securities to be registered thereunder in
accordance with the intended method of distribution thereof, and use its
reasonable best efforts to cause such filed registration statement to become and
remain effective for such period, not to exceed 180 days (or two years, in the
case of a Shelf Registration), as may be reasonably necessary to effect the sale
of the Registrable Securities registered thereunder; PROVIDED that if the
Company shall furnish to the Selling Holders a certificate signed by the
Company's Chairman, President or any Executive Vice-President or Vice-President
stating that the Company's Board of Directors has determined in good faith that
it would be detrimental or otherwise disadvantageous to the Company or its
stockholders for such a registration statement to be filed as expeditiously as
possible or for Registrable Securities to be offered pursuant to an effective
Shelf Registration, because the disclosure of information in any related
prospectus or prospectus supplement would materially interfere with any
acquisition, financing or other material event or transaction which is then
intended and the public disclosure of which at the time would be materially
prejudicial to the Company, the Company may postpone the filing or
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effectiveness of a registration statement or any offering of Registrable
Securities pursuant to an effective Shelf Registration for a period of not more
than 90 days; PROVIDED that during each 360-day period the Company shall use its
reasonable best efforts to permit a period of at least 180 consecutive days
during which the Company will effect the registration of Registrable Securities
or any offering of Registrable Securities pursuant to an effective Shelf
Registration in accordance with this Agreement; and PROVIDED, FURTHER, that if
(i) the effective date of any registration statement filed pursuant to a Demand
Registration would otherwise be at least 45 calendar days, but fewer than 90
calendar days, after the end of the Company's fiscal year, and (ii) the
Securities Act requires the Company to include audited financials as of the end
of such fiscal year, the Company may delay the effectiveness of such
registration statement for such period as is reasonably necessary to include
therein its audited financial statements for such fiscal year.
(b) The Company will, if requested, prior to filing such
registration statement or any amendment or supplement thereto, furnish to the
Selling Holders, and each applicable managing Underwriter, if any, copies
thereof, and thereafter furnish to the Selling Holders and each such
Underwriter, if any, such number of copies of such registration statement,
amendment and supplement thereto (in each case including all exhibits thereto
and documents incorporated by reference therein) and the prospectus included in
such registration statement (including each preliminary prospectus) as the
Selling Holders or each such Underwriter may reasonably request in order to
facilitate the sale of the Registrable Securities by the Selling Holders.
(c) After the filing of the registration statement, the
Company will promptly notify the Selling Holders of any stop order issued or, to
the Company's knowledge, threatened to be issued by the Commission and take all
reasonable actions required to prevent the entry of such stop order or to remove
it if entered.
(d) The Company will use its commercially reasonable efforts
to qualify the Registrable Securities for offer and sale under such other
securities or blue sky laws of the appropriate jurisdictions in the United
States; keep each such registration or qualification (or exemption therefrom)
effective during the period in which such registration statement is required to
be kept effective; and do any and all other acts and things which may be
reasonably necessary or advisable to enable each Selling Holder to consummate
the disposition of the Registrable Securities owned by such Selling Holder in
such jurisdictions; provided that the Company will not be required to (i)
qualify generally to do business in any jurisdiction where it would not
otherwise be required to qualify but for this paragraph 3.1(d), (ii) subject
itself to taxation in any such jurisdiction or (iii) consent to general service
of process in any such jurisdiction.
(e) The Company will as promptly as is practicable notify the
Selling Holders, at any time when a prospectus relating to the sale of the
Registrable Securities is required by law to be delivered in connection with
sales by an Underwriter or dealer, of the occurrence of any event requiring the
preparation of a supplement or amendment to such prospectus so that, as
thereafter delivered to the purchasers of such Registrable Securities, such
prospectus will not contain an untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading and promptly make available to the Selling Holders and to
the Underwriters any such supplement or amendment. Upon receipt of any notice of
the
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occurrence of any event of the kind described in the preceding sentence, Selling
Holders will forthwith discontinue the offer and sale of Registrable Securities
pursuant to the registration statement covering such Registrable Securities
until receipt by the Selling Holders and the Underwriters of the copies of such
supplemented or amended prospectus and, if so directed by the Company, the
Selling Holders will deliver to the Company all copies, other than permanent
file copies then in the possession of Selling Holders, of the most recent
prospectus covering such Registrable Securities at the time of receipt of such
notice. If the Company shall give such notice, the Company shall extend the
period during which such registration statement shall be maintained effective as
provided in Section 3.1(a) hereof by the number of days during the period from
and including the date of the giving of such notice to the date when the Company
shall make available to the Selling Holders such supplemented or amended
prospectus.
(f) The Company will enter into customary agreements
(including an underwriting agreement in customary form) and take such other
actions (including, without limitation, participation in road shows and investor
conference calls) as are required in order to expedite or facilitate the sale of
such Registrable Securities.
(g) At the request of any Underwriter in connection with an
underwritten offering the Company will furnish (i) an opinion of counsel,
addressed to the Underwriters, covering such customary matters as the managing
Underwriter may reasonably request and (ii) a comfort letter or comfort letters
from the Company's independent public accountants covering such customary
matters as the managing Underwriter may reasonably request.
(h) If requested by the managing Underwriter or any Selling
Holder, the Company shall promptly incorporate in a prospectus supplement or
post-effective amendment such information concerning the Underwriters or Selling
Holders as the managing Underwriter or any Selling Holder reasonably requests to
be included therein, including without limitation, with respect to the
Registrable Securities being sold by such Selling Holder, the purchase price
being paid therefor by the Underwriters and with respect to any other terms of
the underwritten offering of the Registrable Securities to be sold in such
offering, and promptly make all required filings of such prospectus supplement
or post effective amendment.
(i) The Company shall promptly make available for inspection
by any Selling Holder or Underwriter participating in any disposition pursuant
to any registration statement, and any attorney, accountant or other agent or
representative retained by any such Selling Holder or Underwriter (collectively,
the "INSPECTORS"), all financial and other records, pertinent corporate
documents and properties of the Company (collectively, the "RECORDS"), as shall
be reasonably necessary to enable them to exercise their due diligence
responsibility, and cause the Company's officers, directors and employees to
supply all information requested by any such Inspector in connection with such
registration statement; provided, however, that unless the disclosure of such
Records is necessary to avoid or correct a misstatement or omission in the
registration statement or the release of such Records is ordered pursuant to a
subpoena or other order from a court of competent jurisdiction, the Company
shall not be required to provide any information under this subparagraph (i) if
(A) the Company believes, after consultation with counsel for the Company, that
to do so would cause the Company to forfeit an attorney-client privilege that
was applicable to such information or (B) if either (1) the Company has
requested and been granted from the Commission confidential treatment of such
information contained in any filing with the
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Commission or documents provided supplementally or otherwise or (2) the Company
reasonably determines in good faith that such Records are confidential and so
notifies the Inspectors in writing, unless prior to furnishing any such
information with respect to (A) or (B) such Holder of Registrable Securities
requesting such information agrees to enter into a confidentiality agreement in
customary form and subject to customary exceptions; provided further, however,
that each Holder of Registrable Securities agrees that it will, upon learning
that disclosure of such Records is sought in a court of competent jurisdiction,
give notice to the Company and allow the Company, at its expense, to undertake
appropriate action to prevent disclosure of the Records deemed confidential.
(j) The Company shall cause the Registrable Securities
included in any registration statement to be (i) listed on each securities
exchange, if any, on which similar securities issued by the Company are then
listed, or (ii) authorized to be quoted and/or listed (to the extent applicable)
on the Nasdaq National Market if the Registrable Securities so qualify.
(k) The Company shall provide a CUSIP number (if one has not
already been provided) for the Registrable Securities included in any
registration statement not later than the effective date of such registration
statement.
(l) The Company shall cooperate with each Selling Holder and
each Underwriter participating in the disposition of such Registrable Securities
and their respective counsel in connection with any filings required to be made
with the National Association of Securities Dealers, Inc.
(m) The Company shall during the period when the prospectus is
required to be delivered under the Securities Act, promptly file all documents
required to be filed with the Commission pursuant to Sections 13(a), 13(c), 14
or 15(d) of the Exchange Act.
(n) The Company will make generally available to its security
holders, as soon as reasonably practicable, an earnings statement covering a
period of 12 months, beginning within three months after the effective date of
the registration statement, which earnings statement shall satisfy the
provisions of Section 11(a) of the Securities Act and the rules and regulations
of the Commission thereunder.
The Company may require Selling Holders promptly to furnish in writing
to the Company such information regarding such Selling Holders, the plan of
distribution of the Registrable Securities and other information as the Company
may from time to time reasonably request or as may be legally required in
connection with such registration.
3.2 REGISTRATION EXPENSES
In connection with any registration effected hereunder, the Company
shall pay all expenses incurred in connection with such registration (the
"REGISTRATION EXPENSES") including the following: (i) registration and filing
fees with the Commission and the National Association of Securities Dealers,
Inc., (ii) fees and expenses of compliance with securities or blue sky laws
(including reasonable fees and disbursements of counsel in connection with blue
sky qualifications of the Registrable Securities), (iii) printing expenses, (iv)
fees and expenses incurred in connection with the listing or quotation of the
Registrable Securities, (v) fees and
10
expenses of counsel to the Company and the reasonable fees and expenses of
independent certified public accountants for the Company (including fees and
expenses associated with the special audits or the delivery of comfort letters),
(vi) the reasonable fees and expenses of any additional experts retained by the
Company in connection with such registration, (vii) all roadshow costs and
expenses not paid by the Underwriters and (viii) the reasonable fees and
expenses of counsel for the Selling Holders. The Company shall not be
responsible for any underwriting discounts, selling commissions or stock
transfer taxes applicable to the sale of Registrable Securities.
ARTICLE IV
INDEMNIFICATION AND CONTRIBUTION
4.1 INDEMNIFICATION BY THE COMPANY
The Company agrees to indemnify and hold harmless each Selling Holder
and its Affiliates and their respective officers, directors, partners,
stockholders, members, employees, agents and representatives and each Person (if
any) that controls a Selling Holder within the meaning of either Section 15 of
the Securities Act or Section 20 of the Exchange Act, from and against any and
all losses, claims, damages, liabilities, costs and expenses (including
reasonable attorneys' fees) caused by, arising out of, resulting from or related
to any untrue statement or alleged untrue statement of a material fact contained
or incorporated by reference in any registration statement or prospectus
relating to the Registrable Securities (as amended or supplemented if the
Company shall have furnished any amendments or supplements thereto) or any
preliminary prospectus, or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such losses, claims,
damages or liabilities are caused by or based upon any information furnished in
writing to the Company by or on behalf of such Selling Holder expressly for use
therein or by the Selling Holder's failure to deliver a copy of the final
prospectus after the Company has furnished the Selling Holder with copies of the
same and such final prospectus corrected errors or omissions in a preliminary
prospectus that are the basis of such losses, claims, damages or liabilities.
Such indemnity shall remain in full force and effect regardless of any
investigation made by or on behalf of any Selling Holder or its Affiliates and
shall survive the transfer of the Registrable Securities by such Selling Holder.
4.2 INDEMNIFICATION BY SELLING HOLDERS
Each Selling Holder agrees to indemnify and hold harmless the Company,
its officers and directors, and each Person, if any, that controls the Company
within the meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act to the same extent as the foregoing indemnity from the Company
to each Selling Holder, but only with reference to information furnished in
writing by or on behalf of such Selling Holder expressly for use in any
registration statement or prospectus relating to the Registrable Securities, or
any amendment or supplement thereto, or any preliminary prospectus. Each such
Selling Holder's liability under this Section 4.2 shall be limited to an amount
equal to the net proceeds (after deducting the underwriting discount and
expenses) received by such Selling Holder from the sale of such
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Registrable Securities by such Selling Holder. The obligation of each Selling
Holder shall be several and not joint.
4.3 CONDUCT OF INDEMNIFICATION PROCEEDINGS
In case any proceeding (including any governmental investigation) shall
be instituted involving any Person in respect of which indemnity may be sought
pursuant to Section 4.1 or Section 4.2, such Person (the "INDEMNIFIED PARTY")
shall promptly so notify the Person against whom such indemnity may be sought
(the "INDEMNIFYING PARTY") in writing; PROVIDED that the failure of the
Indemnified Party to give notice as provided herein shall not relieve the
Indemnifying Party of its obligations under this Article IV with respect to such
proceeding except to the extent that the Indemnifying Party is actually and
materially prejudiced by such failure to give notice. The Indemnifying Party
shall be entitled to participate in such proceeding and, subject to the
following sentence, assume the defense thereof with counsel retained by the
Indemnifying Party (the fees and expenses of which counsel shall be paid by the
Indemnifying Party) provided that such counsel is reasonably satisfactory to the
Indemnified Party. In any such proceeding, any Indemnified Party shall have the
right to retain its own counsel, but, after notice from the Indemnifying Party
of its election to assume the defense of such proceeding and of its retention of
counsel reasonably satisfactory to the Indemnified Party whose representation of
the Indemnified Party would not present such counsel with a conflict of
interest, the Indemnifying Party shall not be liable for the fees and expenses
of separate counsel retained by the Indemnified Party subsequently incurred in
connection with the defense of such proceeding (other than reasonable costs of
investigation), unless (i) the Indemnifying Party and the Indemnified Party
shall have mutually agreed to the retention of such separate counsel or (ii) the
named parties to or targets of any such proceeding (including any impleaded
parties) include both the Indemnified Party and the Indemnifying Party and the
Indemnified Party shall have reasonably concluded that there may be legal
defenses available to it which are different from or additional to those
available to the Indemnifying Party (in which case the Indemnifying Party shall
not be entitled to assume the defense of such proceeding on the Indemnified
Party's behalf). It is understood that the Indemnifying Party shall not, in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for the fees and expenses of more than one separate firm of attorneys
(in addition to any local counsel) at any time for all such Indemnified Parties,
and that all such fees and expenses shall be reimbursed as they are incurred. In
the case of any such separate firm for the Indemnified Parties, such firm shall
be designated in writing by the Indemnified Parties. The Indemnifying Party
shall not be liable for any settlement of any proceeding effected without its
written consent, but if settled with such consent (not to be unreasonably
withheld), or if there be a final judgment for the plaintiff, the Indemnifying
Party shall indemnify and hold harmless such Indemnified Parties from and
against any loss or liability (to the extent stated above) by reason of such
settlement or judgment. No Indemnifying Party will consent to entry of any
judgment or enter into any settlement which does not include as an unconditional
term thereof the giving by the claimant or plaintiff to the Indemnified Party of
a release from all liability in respect of such claim or proceeding.
4.4 CONTRIBUTION
If the indemnification provided for in this Article IV is unavailable
to an Indemnified Party in respect of any losses, claims, damages or liabilities
in respect of which indemnity is to
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be provided hereunder, then each such Indemnifying Party, in lieu of
indemnifying such Indemnified Party, shall to the fullest extent permitted by
law contribute to the amount paid or payable by such Indemnified Party as a
result of such losses, claims, damages or liabilities in such proportion as is
appropriate to reflect the relative fault of such party in connection with the
statements or omissions that resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
relative fault of the Company and a Selling Holder shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by such party and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The Company and each Selling Holder agree that it would not be just and
equitable if contribution pursuant to this Section 4.4 were determined by pro
rata allocation or by any other method of allocation that does not take account
of the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an Indemnified Party as a result of the
losses, claims, damages or liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such Indemnified Party
in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Article IV, no Selling Holder shall be
required to contribute any amount in excess of the amount by which the net
proceeds of the offering (after deducting the underwriting discount and
expenses) received by such Selling Holder exceeds the amount of any damages
which such Selling Holder has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any Person who was
not guilty of such fraudulent misrepresentation.
ARTICLE V
MISCELLANEOUS
5.1 PARTICIPATION IN UNDERWRITTEN REGISTRATIONS
No Person may participate in any underwritten registered offering
contemplated hereunder unless such Person (a) agrees to sell its securities on
the basis provided in any underwriting arrangements approved by the Persons
entitled hereunder to approve such arrangements, (b) completes and executes all
questionnaires, powers of attorney, custody arrangements, indemnities,
underwriting agreements and other documents reasonably required under the terms
of such underwriting arrangements and this Agreement and (c) furnishes in
writing to the Company such information regarding such Person, the plan of
distribution of the Registrable Securities and other information as the Company
may from time to time request or as may be legally required in connection with
such registration; provided, however, that no such Person shall be required to
make any representations or warranties in connection with any such registration
other than representations and warranties as to (i) such Person's ownership of
his or its Registrable Securities to be sold or transferred free and clear of
all liens, claims and encumbrances, (ii) such Person's power and authority to
effect such transfer and (iii) such matters pertaining to compliance with
securities laws as may be reasonably requested; provided
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further, however, that the obligation of such Person to indemnify pursuant to
any such underwriting agreements shall be several, not joint and several, among
such Persons selling Registrable Securities, and the liability of each such
Person will be in proportion to, and provided further that such liability will
be limited to, the net amount received by such Person from the sale of such
Person's Registrable Securities pursuant to such registration.
5.2 RULE 144
The Company covenants that it will file any reports required to be
filed by it under the Securities Act and the Exchange Act and that it will take
such further action as the Liberty Holders may reasonably request to the extent
required from time to time to enable the Liberty Holders to sell Registrable
Securities without registration under the Securities Act within the limitation
of the exemptions provided by Rule 144 under the Securities Act, as such Rule
may be amended from time to time, or any similar rule or regulation hereafter
adopted by the Commission. Upon the request of any Liberty Holder, the Company
will deliver to such Liberty Holder a written statement as to whether it has
complied with such reporting requirements.
5.3 HOLDBACK AGREEMENTS
For so long as the Liberty Holders own 10% or more of any class of
capital stock of the Company, subject to their rights pursuant to Sections 2.1
and 2.2 hereof, each Liberty Holder and the Company agrees that if requested by
the managing Underwriters in an underwritten public offering of equity
securities of the Company (including debt securities convertible or exchangeable
for such equity securities), whether for the account of the Company or another
Person, it will not effect any public offer to sell, sale or distribution,
including pursuant to Rule 144 under the Securities Act, of any equity security
of the Company (or any such convertible or exchangeable debt security), in each
case other than as part of such underwritten public offering and subject to
other customary exceptions, during the seven days prior to, and during the
180-day period (or such lesser period as the managing Underwriters may require)
beginning on the effective date of the registration statement for such
underwritten offering (or, in the case of an offering pursuant to a Shelf
Registration, the pricing date for such underwritten offering), provided that in
connection with such underwritten offering each officer and director of the
Company and each Founder is subject to restrictions identical to those imposed
on the Liberty Holders.
5.4 TERMINATION
The registration rights granted under this Agreement will terminate at
such time as there shall no longer be any Registrable Securities.
5.5 AMENDMENTS, WAIVERS, ETC.
This Agreement may not be amended, waived or otherwise modified or
terminated except by an instrument in writing signed by the Company and the
holders of at least 50% of the Registrable Securities then held by all the
Liberty Holders.
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5.6 COUNTERPARTS
This Agreement may be executed in one or more counterparts, all of
which shall be considered one and the same agreement. Each party need not sign
the same counterpart.
5.7 ENTIRE AGREEMENT
This Agreement constitutes the entire agreement and supersedes all
prior agreements and understandings, both written and oral, among the parties
with respect to the subject matter hereof.
5.8 GOVERNING LAW
This Agreement shall be governed by, and construed in accordance with,
the internal laws of the State of
Colorado regardless of the laws that might
otherwise govern under applicable principles of conflicts of law thereof.
5.9 ASSIGNMENT OF REGISTRATION RIGHTS
Each Liberty Holder may assign all or any part of its rights under this
Agreement to any Person to whom such Liberty Holder sells, transfers, assigns or
pledges Registrable Securities. If a Liberty Holder shall assign its rights
pursuant to this Agreement in connection with the transfer of less than all its
Registrable Securities, such Liberty Holder shall also retain its rights with
respect to its remaining Registrable Securities.
5.10 NOTICES
All notices, demands, requests, consents, approvals or other
communications (collectively, "Notices") required or permitted to be given
hereunder or that are given with respect to this Agreement shall be in writing
and shall be delivered personally, telecopied (if receipt thereof is confirmed
to the Person to whom sent), sent by nationally recognized overnight delivery
service with charges prepaid or mailed by registered or certified mail with
charges prepaid (if return receipt is requested), addressed (a) as set forth
below, (b) to such other address as a party shall have specified most recently
by written notice to other parties or (c) in the case of Notice to a Liberty
Holder for whom an address has not been provided pursuant to this Section 5.10,
to the address of such Liberty Holder as shown on the stock transfer books of
the Company on the date of such Notice. Notice shall be deemed given on the date
of transmission if transmitted by facsimile (with oral confirmation of receipt).
Notice otherwise sent as provided herein shall be deemed given when actually
delivered (or when delivery is refused) by hand, by certified mail or by
overnight courier service.
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TO THE COMPANY:
--------------
UnitedGlobalCom, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: General Counsel
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
WITH A COPY TO:
--------------
Holme ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: W. ▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
TO THE LIBERTY HOLDERS:
----------------------
Liberty Media Corporation
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: General Counsel
Telephone:(▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
WITH A COPY TO:
▇▇▇▇▇ ▇▇▇▇▇ L.L.P.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
and
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇
633 17th Street, suite 3000
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇. ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
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5.11 INTERPRETATION
As used herein, except as otherwise indicated herein or as the context
may otherwise require, the words "include," "includes" and "including" are
deemed to be followed by "without limitation" whether or not they are in fact
followed by such words or words of like import; the words "hereof," "herein,"
"hereunder" and comparable terms refer to the entirety hereof and not to any
particular article, section or other subdivision hereof or attachment hereto;
any pronoun shall include the corresponding masculine, feminine and neuter
forms; the singular includes the plural and vice versa; references to any
agreement or other document are to such agreement or document as amended and
supplemented from time to time; references to any statute or regulation are to
it as amended and supplemented from time to time, and to any corresponding
provisions of successor statutes or regulations; references to "Article,"
"Section" or another subdivision are to an article, section or subdivision
hereof; and all references to "the date hereof," "the date of this Agreement" or
similar terms (but excluding references to the date of execution hereof) refer
to the date first above written, notwithstanding that the parties may have
executed this Agreement on a later date. Any reference herein to a "day" or
number of "days" (without the explicit qualification of "Business") shall be
deemed to refer 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 may be taken or
given on the next succeeding Business Day.
17
IN WITNESS WHEREOF, each of the parties has caused this
Agreement to be signed on its behalf by its officer thereunto duly authorized as
of the date first written above.
NEW UNITEDGLOBALCOM, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
President
LIBERTY MEDIA CORPORATION
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-------------------------------
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Senior Vice President
LIBERTY GLOBAL, INC.
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-------------------------------
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Senior Vice President
LIBERTY UCOMA, LLC
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-------------------------------
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Senior Vice President