EXHIBIT 99.2
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REGISTRATION RIGHTS AGREEMENT
DATED AS OF MARCH 26, 2003
BETWEEN
LIBERTY MEDIA CORPORATION
AND
BANC OF AMERICA SECURITIES LLC AND
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
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REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is made and entered
into this 26th day of March, 2003, between Liberty Media Corporation, a Delaware
corporation (the "Company"), and Banc of America Securities LLC and ▇.▇. ▇▇▇▇▇▇
Securities Inc. (the "Initial Purchasers").
This Agreement is made pursuant to the Purchase Agreement, dated March 21,
2003, between the Company and the Initial Purchasers (the "Purchase Agreement"),
which provides for the sale by the Company to the Initial Purchasers of an
aggregate of $1,500,000,000 original principal amount ($1,750,000,000 if the
Initial Purchasers exercise their over-allotment option in full) of the
Company's .75% Exchangeable Senior Debentures due 2023 (the "Debentures"). In
order to induce the Initial Purchasers to enter into the Purchase Agreement, the
Company has agreed to provide to the Initial Purchasers and their respective
direct and indirect transferees the registration rights set forth in this
Agreement. The execution of this Agreement is a condition to the closing under
the Purchase Agreement.
In consideration of the foregoing, the parties hereto agree as follows:
1. DEFINITIONS.
As used in this Agreement, the following capitalized defined terms shall
have the following meanings:
"1933 ACT" shall mean the Securities Act of 1933, as amended from time to
time.
"1934 ACT" shall mean the Securities Exchange Act of l934, as amended from
time to time.
"AGREEMENT" shall have the meaning set forth in the preamble.
"BENEFICIAL OWNER" shall mean (i), in the case of a Debenture held in
certificated form, the Holder of such Debenture and (ii), in the case of a
Debenture held through the Depositary, the Person identified in the records of
the Depositary's direct or indirect participants as the owner of such Debenture;
provided, however, that in the case of a beneficial owner described in clause
(ii), such beneficial owner is identified to the Company.
"BUSINESS DAY" shall mean a day that is not a Saturday, a Sunday, or a day
on which banking institutions in New York, New York are authorized or required
to be closed.
"CLOSING DATE" shall mean the Closing Time as defined in the Purchase
Agreement.
"COMPANY" shall have the meaning set forth in the preamble and shall also
include the Company's successors.
"DEBENTURES" shall have the meaning set forth in the second paragraph of
this Agreement.
"DEPOSITARY" shall mean The Depository Trust Company, or any other
depositary appointed by the Company; provided, however, that such depositary
must have an address in the Borough of Manhattan, in The City of New York.
"HOLDER" shall mean the Initial Purchasers, for so long as they own any
Debentures, and each of their respective successors, assigns and direct and
indirect transferees who become beneficial owners of Debentures under the
Indenture.
"INDENTURE" shall mean the Indenture relating to the Debentures, dated as
of July 7, 1999, between the Company and The Bank of New York, as trustee, as
supplemented by the Tenth Supplemental Indenture, dated as of March 26, 2003,
between the Company and The Bank of New York, as trustee, as the same may be
amended, supplemented, waived or otherwise modified from time to time in
accordance with the terms thereof.
"INITIAL PURCHASERS" shall have the meaning set forth in the preamble.
"MAJORITY HOLDERS" shall mean the Holders of a majority of the aggregate
principal amount of Outstanding (as defined in the Indenture) Debentures;
provided that whenever the consent or approval of Holders of a specified
percentage of Debentures is required hereunder, Debentures held by the Company
and other obligors on the Debentures or any Affiliate (as defined in the
Indenture) of the Company shall be disregarded in determining whether such
consent or approval was given by the Holders of such required percentage amount.
"PERSON" shall mean an individual, partnership (general or limited),
corporation, limited liability company, trust or unincorporated organization, or
a government or agency or political subdivision thereof.
"PROSPECTUS" shall mean the prospectus included in the Shelf Registration
Statement, including any preliminary prospectus, and any such prospectus as
amended or supplemented by any prospectus supplement, including any such
prospectus supplement with respect to the terms of the offering of any portion
of the Debentures covered by the Shelf Registration Statement, and by all other
amendments and supplements to a prospectus, including post-effective amendments,
and in each case including all material incorporated by reference therein.
"PURCHASE AGREEMENT" shall have the meaning set forth in the second
paragraph of this Agreement.
"REGISTRATION EXPENSES" shall mean any and all expenses incident to
performance of or compliance by the Company with this Agreement, including
without limitation: (i) all SEC, stock exchange or National Association of
Securities Dealers, Inc. (the
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"NASD") registration and filing fees, including, if applicable, the fees and
expenses of any "qualified independent underwriter" (and its counsel) that is
required to be retained by any holder of Debentures in accordance with the rules
and regulations of the NASD, (ii) all fees and expenses incurred in connection
with compliance with state securities or blue sky laws and compliance with the
rules of the NASD (including reasonable fees and disbursements of counsel for
any underwriters or Holders in connection with blue sky qualification of any of
the Debentures and any filings with the NASD), (iii) all expenses of any Persons
in preparing or assisting in preparing, word processing, printing and
distributing any Shelf Registration Statement, any Prospectus, any amendments or
supplements thereto, any underwriting agreements, securities sales agreements
and other documents relating to the performance of and compliance with this
Agreement, (iv) all fees and expenses incurred in connection with the listing,
if any, of any of the Debentures on any securities exchange or exchanges, (v)
all rating agency fees, (vi) the fees and disbursements of counsel for the
Company and of the independent public accountants of the Company, including the
expenses of any special audits or "cold comfort" letters required by or incident
to such performance and compliance, (vii) the fees and expenses of the Trustee,
and any escrow agent or custodian, (viii) the reasonable fees and disbursements
of Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP, counsel representing the Holders of
Debentures in connection with preparing and filing the initial Shelf
Registration Statement or any amendments or supplements thereto, but not in
connection with any underwritten offering under the Shelf Registration
Statement, and (ix) the reasonable fees and disbursements of the underwriters
customarily required to be paid by issuers of securities in connection with
secondary offerings of securities and the fees and expenses of any special
experts retained by the Company in connection with any Shelf Registration
Statement, but excluding underwriting discounts and commissions and transfer
taxes, if any, relating to the sale or disposition of Debentures by a Holder.
"SEC" shall mean the Securities and Exchange Commission or any successor
agency or government body performing the functions currently performed by the
United States Securities and Exchange Commission.
"SHELF REGISTRATION" shall mean a registration effected pursuant to Section
2.1 hereof.
"SHELF REGISTRATION STATEMENT" shall mean a "shelf" registration statement
of the Company pursuant to the provisions of Section 2.1 hereof, which covers
the resale of all of the Debentures, and all amendments to such registration
statement, including post-effective amendments, in each case including the
Prospectus contained therein, all exhibits thereto and all material incorporated
by reference therein.
"SPECIAL COUNSEL" shall have the meaning set forth in Section 3(f).
"TRUSTEE" shall mean the trustee with respect to the Debentures under the
Indenture.
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2. REGISTRATION UNDER THE 1933 ACT.
2.1 SHELF REGISTRATION. The Company shall, for the benefit of the
beneficial owners, at the Company's cost, (A) prepare and, as soon as
practicable but not later than 90 days following the Closing Date, file with the
SEC a Shelf Registration Statement on an appropriate form under the 1933 Act
covering resales of the Debentures, (B) use its commercially reasonable efforts
to cause the Shelf Registration Statement to be declared effective under the
1933 Act within 180 days of the Closing Date, (C) use its commercially
reasonable efforts to keep the Shelf Registration Statement continuously
effective in order to permit the Prospectus forming part thereof to be usable by
the beneficial owners for a period of two years from the original issue of the
Debentures, or for such shorter period that will terminate when all Debentures
covered by the Shelf Registration Statement have been sold pursuant to the Shelf
Registration Statement, exchanged or redeemed in accordance with their terms or
otherwise cease to be outstanding or become saleable pursuant to Rule 144(k)
under the 1933 Act (the "Effectiveness Period"); provided, however, that the
Effectiveness Period in respect of the Shelf Registration Statement shall be
extended up to a maximum of 90 days if necessary to permit dealers to comply
with the applicable prospectus delivery requirements of Rule 174 under the 1933
Act and as otherwise provided herein, and (D) notwithstanding any other
provisions hereof, use its commercially reasonable efforts to ensure that (i)
the Shelf Registration Statement and any amendment thereto and any Prospectus
forming part thereof and any supplement thereto complies in all material
respects with the 1933 Act and the rules and regulations thereunder, (ii) the
Shelf Registration Statement and any amendment thereto does not, when it becomes
effective, contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading and (iii) any Prospectus forming part of the Shelf
Registration Statement, and any supplement to such Prospectus (as amended or
supplemented from time to time), does not include an untrue statement of a
material fact or omit to state a material fact necessary in order to make the
statements, in light of the circumstances under which they were made, not
misleading.
The Company shall not permit any securities other than Debentures to be
included in the Shelf Registration Statement. The Company further agrees, if
necessary, to supplement or amend the Shelf Registration Statement and the
Prospectus, as required by Section 3(b) below, and to furnish to the Holders of
Debentures copies of any such supplement or amendment as promptly as reasonably
practicable after filing with the SEC.
2.2 EXPENSES. The Company shall pay all Registration Expenses in
connection with the registration pursuant to Section 2.1 hereof. Each beneficial
owner shall pay all underwriting expenses, discounts and commissions and
transfer taxes, if any, relating to the sale or disposition of such beneficial
owner's Debentures pursuant to the Shelf Registration Statement.
2.3 EFFECTIVENESS. (a) The Company will be deemed not to have used its
commercially reasonable efforts to cause the Shelf Registration Statement to
become, or to remain, effective during the requisite period if the Company
voluntarily takes any
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action that would, or omits to take any action which omission would, result in
any Shelf Registration Statement not being declared effective or in the
beneficial owners of Debentures covered thereby not being able to offer and sell
such Debentures during that period as and to the extent contemplated hereby,
unless (i) such action is required by applicable law, or (ii) such action is
taken by the Company in good faith and for valid business reasons (not including
avoidance of the Company's obligations hereunder), including the acquisition or
divestiture of assets, so long as the Company promptly thereafter complies with
the requirements of Section 3(j) hereof, if applicable.
(b) A Shelf Registration Statement will not be deemed to have
become effective unless it has been declared effective by the SEC; provided,
however, that if, after it has been declared effective, the offering of
Debentures pursuant to a Shelf Registration Statement is interfered with by any
stop order, injunction or other order or requirement of the SEC or any other
governmental agency or court, the Shelf Registration Statement will be deemed
not to have become effective during the period of such interference, until the
offering of Debentures pursuant to the Shelf Registration Statement may legally
resume.
2.4 INTEREST. The Indenture executed in connection with the Debentures
provides that in the event that either (a) the Shelf Registration Statement is
not filed with the Commission on or prior to the 90th calendar day following the
date of original issue of the Debentures or (b) the Shelf Registration Statement
has not been declared effective on or prior to the 180th calendar day following
the date of original issue of the Debentures (each such event referred to in
clauses (a) and (b) above, a "Registration Default"), the interest rate borne by
the Debentures shall be increased ("Additional Interest") by one quarter of one
percent (0.25%) per annum upon the occurrence of each Registration Default,
which rate will increase by one quarter of one percent at the beginning of each
90-day period (or portion thereof) that such Additional Interest continues to
accrue under any such circumstance, provided that the maximum aggregate increase
in the interest rate will in no event exceed one percent (1%) per annum.
Immediately following the cure of a Registration Default, the accrual of
Additional Interest with respect to that particular Registration Default will
cease. Immediately following the cure of all Registration Defaults or the date
on which the Debentures are saleable pursuant to Rule 144(k) under the 1933 Act
or any successor provision, the accrual of Additional Interest will cease and
the interest rate will revert to the original rate.
If the Shelf Registration Statement is declared effective but becomes
unusable by the Holders of Debentures covered by the Shelf Registration
Statement for any reason, and the aggregate number of days in any consecutive
twelve-month period for which the Shelf Registration Statement shall not be
usable exceeds 30 days in the aggregate, then the interest rate borne by the
Debentures will be increased by 0.25% per annum of the principal amount of the
Debentures for the first 90-day period (or portion thereof) beginning on the
31st such day that the Shelf Registration Statement ceases to be usable, which
rate shall be increased by an additional 0.25% per annum of the principal amount
of the Debentures at the beginning of each subsequent 90-day period, provided
that the maximum aggregate increase in the interest rate as a result of a Shelf
Registration Statement being unusable (inclusive of any interest that accrues on
such Debentures
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pursuant to the first paragraph of this Section 2.4) will in no event exceed one
percent (1%) per annum. Upon the Shelf Registration Statement once again
becoming usable, the interest rate borne by the Debentures will be reduced to
the original interest rate. Additional Interest shall be computed based on the
actual number of days elapsed in each 90-day period in which the Shelf
Registration Statement is unusable.
The Company shall notify the Trustee within three business days after each
and every date on which an event occurs in respect of which Additional Interest
is required to be paid (an "Event Date"). Additional Interest shall be paid by
the Company by depositing with the Trustee, in trust, for the benefit of the
Holders of Debentures, on or before the applicable semiannual interest payment
date, immediately available funds in an amount sufficient to pay the Additional
Interest then due. The Additional Interest due shall be payable on each interest
payment date to the Holder of Debentures entitled to receive the interest
payment to be paid on such date as set forth in the Indenture. Each obligation
to pay Additional Interest shall be deemed to accrue from and including the day
following the applicable Event Date.
3. REGISTRATION PROCEDURES.
In connection with the obligations of the Company with respect to the Shelf
Registration Statement, the Company shall:
(a) prepare and file with the SEC a Shelf Registration Statement,
within the relevant time period specified in Section 2 hereof, on an appropriate
form under the 1933 Act, which form (i) shall be selected by the Company, (ii)
shall be available for the sale of the Debentures by the selling beneficial
owners thereof, (iii) shall comply as to form in all material respects with the
requirements of the applicable form and include or incorporate by reference all
financial statements required by the SEC to be filed therewith or incorporated
by reference therein, and (iv) shall comply in all respects with the
requirements of Regulation S-T under the 1933 Act;
(b) prepare and file with the SEC such amendments and
post-effective amendments to the Shelf Registration Statement as may be
necessary under applicable law to keep the Shelf Registration Statement
effective for the Effectiveness Period; and cause each Prospectus to be
supplemented by any required prospectus supplement, and as so supplemented to be
filed pursuant to Rule 424 (or any similar provision then in force) under the
1933 Act and comply with the provisions of the 1933 Act, the 1934 Act and the
rules and regulations thereunder applicable to them with respect to the
disposition of all Debentures covered by the Shelf Registration Statement during
the Effectiveness Period in accordance with the plan of distribution included in
the Prospectus;
(c) (i) notify each beneficial owner (or, in the case of
Debentures held through the Depositary, the participant in the Depositary
through whom such beneficial owner holds) of Debentures, at least five Business
Days prior to filing, that a Shelf Registration Statement with respect to the
Debentures is being filed and advising such beneficial owners that the
distribution of Debentures will be made in accordance with the method selected
by the Majority Holders participating in the Shelf Registration; (ii)
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furnish to each beneficial owner of Debentures and to each underwriter of an
underwritten offering of Debentures, if any, without charge, as many copies of
each Prospectus, including each preliminary Prospectus, and any amendment or
supplement thereto and such other documents as such beneficial owner or
underwriter may reasonably request, including financial statements and schedules
and, if the beneficial owner so requests, all exhibits in order to facilitate
the public sale or other disposition of the Debentures; and (iii) hereby consent
to the use of the Prospectus or any amendment or supplement thereto by each of
the selling beneficial owner of Debentures in connection with the offering and
sale of the Debentures covered by the Prospectus or any amendment or supplement
thereto;
(d) use its commercially reasonable efforts to register or
qualify the Debentures under all applicable state securities or "blue sky" laws
of such jurisdictions as any beneficial owner of Debentures covered by any Shelf
Registration Statement and each underwriter of an underwritten offering of
Debentures shall reasonably request by the time the Shelf Registration Statement
is declared effective by the SEC, and do any and all other acts and things which
may be reasonably necessary or advisable to enable each such beneficial owner
and underwriter to consummate the disposition in each such jurisdiction of such
Debentures owned by such beneficial owner; provided, however, that the Company
shall not be required to (i) qualify as a foreign corporation or as a dealer in
securities in any jurisdiction where it would not otherwise be required to
qualify but for this Section 3(d), (ii) take any action which would subject it
to general service of process or taxation in any such jurisdiction where it is
not then so subject, or (iii) conform its capitalization or the composition of
its assets at the time to the securities or blue sky laws of such jurisdiction;
(e) notify promptly each beneficial owner of Debentures (i) when
the Shelf Registration Statement has become effective and when any
post-effective amendments and supplements thereto become effective, (ii) of any
request by the SEC or any state securities authority for post-effective
amendments and supplements to the Shelf Registration Statement and Prospectus or
for additional information after the Registration Statement has become
effective, (iii) of the issuance by the SEC or any state securities authority of
any stop order suspending the effectiveness of the Shelf Registration Statement
or the initiation of any proceedings for that purpose, (iv) if, between the
effective date of the Shelf Registration Statement and the closing of any sale
of Debentures covered thereby, the representations and warranties of the Company
contained in any underwriting agreement, securities sales agreement or other
similar agreement, if any, relating to the offering cease to be true and correct
in all material respects, (v) of the happening of any event or the discovery of
any facts during the period the Shelf Registration Statement is effective which
makes any statement made in the Shelf Registration Statement or the related
Prospectus untrue in any material respect or which requires the making of any
changes in the Shelf Registration Statement or Prospectus in order to make the
statements therein not misleading, (vi) of the receipt by the Company of any
notification with respect to the suspension of the qualification of the
Debentures for sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose and (vii) of any determination by the Company that a
post-effective amendment to the Shelf Registration Statement would be
appropriate;
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(f) furnish Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP, as special counsel
for the Holders of Debentures (or, if Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP is unable
or unwilling to serve), such other special counsel (but not more than one) as
may be selected by the Majority Holders ("Special Counsel"), copies of any
comment letters received from the SEC or any other request by the SEC or any
state securities authority for amendments or supplements to a Shelf Registration
Statement and Prospectus or for additional information;
(g) make every reasonable effort to obtain the withdrawal of any
order suspending the effectiveness of the Shelf Registration Statement at the
earliest possible moment;
(h) furnish to each beneficial owner of Debentures, and each
underwriter, if any, without charge, at least one conformed copy of the Shelf
Registration Statement and any post-effective amendment thereto, including
financial statements and schedules (without documents incorporated therein by
reference and all exhibits thereto, unless requested);
(i) facilitate the timely preparation and delivery of a new
global certificate representing Debentures which have been sold through the
Registration Statement that does not bear any restrictive legends;
(j) upon the occurrence of any event or the discovery of any
facts, such as contemplated by Sections 3(e)(v) and 3(e)(vii) hereof, as
promptly as practicable after the occurrence of such an event, use its
commercially reasonable efforts to prepare a supplement or post-effective
amendment to the Shelf Registration Statement or the related Prospectus or any
document incorporated therein by reference or file any other required document
so that, as thereafter delivered to the purchasers of the Debentures, such
Prospectus will not contain at the time of such delivery any untrue statement of
a material fact or omit to state a material fact necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading. At such time as such public disclosure is otherwise made or the
Company determines that such disclosure is not necessary, in each case to
correct any misstatement of a material fact or to include any omitted material
fact, the Company agrees promptly to notify each beneficial owner of such
determination and to furnish each beneficial owner such number of copies of the
Prospectus as amended or supplemented, as such Holder may reasonably request;
(k) obtain a CUSIP number for the new global certificate referred
to in Section 3(i) above, not later than the effective date of the Shelf
Registration Statement;
(l) (i) cause the Indenture to be qualified under the Trust
Indenture Act of 1939, as amended, (the "TIA") in connection with the
registration of the Debentures, (ii) cooperate with the Trustee and the Holders
to effect such changes to the Indenture as may be required for the Indenture to
be so qualified in accordance with the terms of the TIA, and (iii) execute, and
use its commecially reasonable efforts to cause the Trustee to execute, all
documents as may be required to effect such changes, and all
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other forms and documents required to be filed with the SEC to enable the
Indenture to be so qualified in a timely manner;
(m) enter into agreements (including underwriting agreements
containing usual and customary terms) and take all other customary and
appropriate actions in order to expedite or facilitate the disposition of such
Debentures and in such connection whether or not an underwriting agreement is
entered into and whether or not the registration is an underwritten
registration:
(i) make such representations and warranties to the beneficial
owners of Debentures named as selling security holders in the Prospectus
and the underwriters, if any, in form, substance and scope as are
customarily made by issuers to underwriters in similar underwritten
offerings as may be reasonably requested by them;
(ii) obtain opinions of counsel to the Company (which counsel and
opinions (in form, scope and substance) shall be reasonably satisfactory to
the managing underwriters, if any, and the beneficial owners of a majority
in principal amount of the Debentures being sold) addressed to beneficial
owners of Debentures named as selling security holders in the Prospectus
and the underwriters, if any, covering the matters customarily covered in
opinions requested in sales of securities or underwritten offerings and
such other matters as may be reasonably requested by such Holders and
underwriters;
(iii) obtain "cold comfort" letters and updates thereof from the
Company's independent certified public accountants (and, if necessary, any
other independent certified public accountants of any subsidiary of the
Company or of any business acquired by the Company for which financial
statements are, or are required to be, included in the Shelf Registration
Statement) addressed to the underwriters, if any, and use reasonable
efforts to have such letter addressed to the beneficial owners of
Debentures named as selling security holders in the Prospectus (to the
extent consistent with SAS 72), such letters to be in customary form and
covering matters of the type customarily covered in "cold comfort" letters
to underwriters in connection with similar underwritten offerings;
(iv) enter into a securities sales agreement with the beneficial
owners and an agent of the beneficial owners providing for, among other
things, the appointment of such agent for the selling beneficial owners for
the purpose of soliciting purchases of Debentures, which agreement shall be
in form, substance and scope customary for similar offerings;
(v) if an underwriting agreement is entered into, cause the same
to set forth indemnification provisions and procedures substantially
equivalent to the indemnification provisions and procedures set forth in
Section 4 hereof with respect to the underwriters and all other parties to
be indemnified pursuant to said Section or, at the request of any
underwriters, in the form customarily provided to such underwriters in
similar types of transactions; and
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(vi) deliver such documents and certificates as may be reasonably
requested and as are customarily delivered in similar offerings to the
beneficial owners of a majority in principal amount of the Debentures being
sold and the managing underwriters, if any.
The above shall be done at (i) the effectiveness of the Shelf Registration
Statement (and each post-effective amendment thereto) and (ii) each closing
under any underwriting or similar agreement as and to the extent required
thereunder;
(n) make available for inspection by representatives of the
beneficial owners of the Debentures, any underwriters participating in any
disposition pursuant to the Shelf Registration Statement, any Special Counsel or
any accountant retained by any of the foregoing, all financial and other
records, pertinent corporate documents and properties of the Company reasonably
requested by any such persons, and cause the respective officers, directors,
employees, and any other agents of the Company to supply all information
reasonably requested by any such representative, underwriter, Special Counsel or
accountant in connection with the Shelf Registration Statement, and make such
representatives of the Company available for discussion of such documents as
shall be reasonably requested by the Initial Purchasers; provided, however, that
the Company shall be entitled to first obtain a customary confidentiality
agreement from any such Person;
(o) at least five Business Days prior to filing the Shelf
Registration Statement or any amendment to the Shelf Registration Statement,
provide copies of such document to each beneficial owner (or, in the case of
Debentures held through the Depositary, the participant in the Depositary
through whom such beneficial owner holds) of Debentures, to the Initial
Purchasers, to Special Counsel and to the underwriter or underwriters of an
underwritten offering of Debentures, if any, make such changes in any such
document prior to the filing thereof as the Initial Purchasers, Special Counsel
or the underwriter or underwriters reasonably request and not file any such
document in a form to which the Majority Holders of Debentures, the Initial
Purchasers on behalf of the beneficial owners of Debentures, Special Counsel or
any underwriter shall not have previously been advised and furnished a copy of
or to which such Majority Holders, the Initial Purchasers of behalf of the
beneficial owners of Debentures, Special Counsel or any underwriter shall
reasonably object, and make the representatives of the Company available for
discussion of such document as shall be reasonably requested by the beneficial
owners of Debentures, the Initial Purchasers on behalf of such beneficial
owners, Special Counsel or any underwriter;
(p) otherwise comply with all applicable rules and regulations of
the SEC and make available to its security holders, as soon as reasonably
practicable, an earnings statement covering at least 12 months which shall
satisfy the provisions of Section 11(a) of the 1933 Act and Rule 158 thereunder;
and
(q) cooperate and assist in any filings required to be made with
the NASD and in the performance of any due diligence investigation by any
underwriter and
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its counsel (including any "qualified independent underwriter" that is required
to be retained in accordance with the rules and regulations of the NASD); and
The Company may (as a condition to any beneficial owner's participation in
the Shelf Registration) require each beneficial owner of Debentures to furnish
to the Company such information regarding the beneficial owner and the proposed
distribution by such beneficial owner of its Debentures as the Company may from
time to time reasonably request in writing for use in connection with the Shelf
Registration Statement or Prospectus included therein, including without
limitation, information specified in Item 507 of Regulation S-K under the 1933
Act.
Each beneficial owner agrees that, upon receipt of any notice from the
Company of the happening of any event or the discovery of any facts, each of the
kind described in Section 3(e)(v) hereof, such beneficial owner will forthwith
discontinue disposition of Debentures pursuant to the Shelf Registration
Statement until such beneficial owner's receipt of the copies of the
supplemented or amended Prospectus contemplated by Section 3(j) hereof, and, if
so directed by the Company, such beneficial owner will deliver to the Company
(at its expense) all copies in such beneficial owner's possession, other than
permanent file copies then in such Holder's possession, of the Prospectus
covering such Debentures current at the time of receipt of such notice.
If any of the Debentures covered by any Shelf Registration Statement are to
be sold in an underwritten offering, the underwriter or underwriters and manager
or managers that will manage such offering will be selected by the Majority
Holders of such Debentures included in such offering, provided such selection is
acceptable to the Company. No beneficial owner of Debentures may participate in
any underwritten registration hereunder unless such beneficial owner (a) agrees
to sell such beneficial owner's Debentures on the basis provided in any
underwriting arrangements approved by the persons entitled hereunder to approve
such arrangements and (b) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents required
under the terms of such underwriting arrangements.
4. INDEMNIFICATION; CONTRIBUTION.
(a) The Company agrees to indemnify and hold harmless the Initial
Purchasers, each beneficial owner named as a selling security holder in the
Prospectus, each Person who participates as an underwriter (any such Person
being an "Underwriter") and each Person, if any, who controls any beneficial
owner named as a selling security holder in the Prospectus or Underwriter within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act as
follows:
(i) against any and all loss, liability, claim, damage and
expense, as incurred, arising out of any untrue statement or alleged untrue
statement of a material fact contained in the Shelf Registration Statement
(or any amendment or supplement thereto) pursuant to which Debentures were
registered under the 1933 Act, including all documents incorporated therein
by reference, or the omission or alleged omission therefrom of a material
fact required to be stated therein or
11
necessary to make the statements therein not misleading, or arising out of
any untrue statement or alleged untrue statement of a material fact
contained in any Prospectus (or any amendment or supplement thereto) or the
omission or alleged omission therefrom of a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and
expense, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim based
upon any such untrue statement or omission, or any such alleged untrue
statement or omission; provided that (subject to Section 4(d) below) any
such settlement is effected with the written consent of the Company; and
(iii) against any and all expense, as incurred (including the fees
and disbursements of counsel chosen by any indemnified party as provided
therein), reasonably incurred in investigating or defending against any
litigation, or any investigation or proceeding by any governmental agency
or body, commenced or threatened, or any claim based upon any such untrue
statement or omission, or any such alleged untrue statement or omission, to
the extent that any such expense is not paid under subparagraph (i) or (ii)
above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by the
beneficial owner or Underwriter expressly for use in the Shelf Registration
Statement (or any amendment thereto) or any Prospectus (or any amendment or
supplement thereto), and provided further, that the Company shall not indemnify
any Underwriter or any person who controls such Underwriter from any loss,
liability, claim or damage (or expense incurred in connection therewith) alleged
by any person who purchased Debentures from such Underwriter if the untrue
statement, omission or allegation thereof upon which such loss, liability, claim
or damage is based was made in (i) any preliminary prospectus, if a copy of the
Prospectus (as then amended or supplemented if the Company shall have furnished
any amendments or supplements thereto) was not sent or given by or on behalf of
such Underwriter to such person at or prior to the written confirmation of the
sale of Debentures to such person, and if the Prospectus (as so amended or
supplemented) corrected the untrue statement or omission giving rise to such
loss, claim, damage or liability; (ii) any Prospectus used by such Underwriter
or any Person who controls such Underwriter, after such time as the Company
advised the Underwriters that the filing of a post-effective amendment or
supplement thereto was required, except the Prospectus as so amended or
supplemented, if the Prospectus as amended or supplemented by such
post-effective amendment or supplement would not have given rise to such loss,
liability, claim or damage; or (iii) any Prospectus used after such time as the
obligation of the Company to keep the same current and effective has expired.
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(b) Each beneficial owner severally, but not jointly, agrees to
indemnify and hold harmless the Company, the Initial Purchasers, each
Underwriter and the other selling beneficial owners, and each of their
respective directors and officers, and each Person, if any, who controls the
Company, the Initial Purchasers, any Underwriter or any other selling beneficial
owner within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934
Act, against any and all loss, liability, claim, damage and expense described in
the indemnity contained in Section 4(a) hereof, as incurred, but only with
respect to untrue statements or omissions, or alleged untrue statements or
omissions, made in the Shelf Registration Statement (or any amendment thereto)
or any Prospectus included therein (or any amendment or supplement thereto) in
reliance upon and in conformity with written information with respect to such
beneficial owner furnished to the Company by such beneficial owner expressly for
use in the Shelf Registration Statement (or any amendment thereto) or such
Prospectus (or any amendment or supplement thereto); provided, however, that no
such beneficial owner shall be liable for any claims hereunder in excess of the
amount of net proceeds received by such beneficial owner from the sale of
Debentures pursuant to the Shelf Registration Statement.
(c) Each indemnified party shall give written notice as promptly
as reasonably practicable to each indemnifying party of any action or proceeding
commenced against it in respect of which indemnity may be sought hereunder, and
the indemnifying party shall assume the defense thereof, including the
employment of counsel satisfactory to the indemnified party, and the payment of
all expenses. Any omission to so notify an indemnifying party shall not relieve
such indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. Any such indemnified party shall have the right to employ separate
counsel in any such action or proceeding and to participate in the defense
thereof, but the fees and expenses of such separate counsel shall be paid by
such indemnified party unless (a) the indemnifying party has agreed to pay such
fees and expenses or (b) the indemnifying party shall have failed to assume the
defense of such action or proceeding and employ counsel reasonably satisfactory
to the indemnified party in any such action or proceeding or (c) the named
parties to any such action or proceeding (including any impleaded parties)
include both such indemnified party and indemnifying party, and the indemnified
party shall have been advised by its counsel that there may be a conflict of
interest between such indemnified party and indemnifying party in the conduct of
the defense of such action (in which case, if such indemnified party notifies
the indemnifying party in writing that it elects to employ separate counsel at
the expense of the indemnifying party, the indemnifying party shall not have the
right to assume the defense of such action or proceeding on behalf of such
indemnified party), it being understood, however, that the indemnifying party
shall not, in connection with any one such action or proceeding or separate but
substantially similar or related actions or proceedings arising out of the same
general allegations or circumstances, be liable for the reasonable fees and
expenses of more than one separate firm of attorneys (unless the members of such
firm are not admitted to practice in a jurisdiction where an action is pending,
in which case the indemnifying party shall pay the reasonable fees and expenses
of one additional firm of attorneys to act as local counsel in such
jurisdiction, provided the services of such counsel are substantially limited to
that of appearing as attorneys of
13
record) at any time for all indemnified parties, which firm shall be designated
in writing by the indemnified party. No indemnifying party shall, without the
prior written consent of the indemnified parties, settle or compromise or
consent to the entry of any judgment with respect to any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever in respect of which indemnification or
contribution could be sought under this Section 4 (whether or not the
indemnified parties are actual or potential parties thereto), unless such
settlement, compromise or consent (i) includes an unconditional release of each
indemnified party from all liability arising out of such litigation,
investigation, proceeding or claim and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act by or on behalf of any
indemnified party.
(d) If at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel, such indemnifying party agrees that it shall be liable for any
settlement of the nature contemplated by Section 4(a)(ii) hereof effected
without its written consent if (i) such settlement is entered into more than 45
days after receipt by such indemnifying party of the aforesaid request, (ii)
such indemnifying party shall have received notice of the terms of such
settlement at least 30 days prior to such settlement being entered into, and
(iii) such indemnifying party shall not have reimbursed such indemnified party
in accordance with such request prior to the date of such settlement.
(e) If the indemnification provided for in this Section 4 is for
any reason unavailable to hold harmless an indemnified party (other than by
reason of the first sentence of Section 4(c) hereof) in respect of any losses,
liabilities, claims, damages or expenses referred to therein, then each
indemnifying party shall contribute to the aggregate amount of such losses,
liabilities, claims, damages and expenses incurred by such indemnified party, as
incurred, (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the beneficial owners and
the Initial Purchasers on the other hand from the offering of the Debentures
included in such offering or (ii) if the allocation provided by clause (i) is
not permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) above but also the
relative fault of the Company on the one hand and the beneficial owners and the
Initial Purchasers on the other hand in connection with the statements or
omissions which resulted in such losses, liabilities, claims, damages or
expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company on the one hand and the
beneficial owners and the Initial Purchasers on the other hand in connection
with the offering of the Debentures included in such offering shall be deemed to
be in the same respective proportions as the total net proceeds from the
offering of the Debentures pursuant to the Purchase Agreement (before deducting
expenses) received by the Company and the total underwriting discount received
by the Initial Purchasers, bear to the aggregate initial offering price of the
Debentures.
The relative fault of the Company on the one hand and the beneficial owners
and the Initial Purchasers on the other hand shall be determined by reference
to, among other
14
things, whether any such untrue or alleged untrue statement of a material fact
or omission or alleged omission to state a material fact relates to information
supplied by the Company, the beneficial owners or the Initial Purchasers and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
The Company, the beneficial owners and the Initial Purchasers agree that it
would not be just and equitable if contribution pursuant to this Section 4 were
determined by pro rata allocation (even if the Holders and the Initial
Purchasers were treated as one entity for such purpose) or by any other method
of allocation which does not take account of the equitable considerations
referred to above in this Section 4. The aggregate amount of losses,
liabilities, claims, damages and expenses incurred by an indemnified party and
referred to above in this Section 4 shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in investigating,
preparing or defending against any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened, or any
claim whatsoever based upon any such untrue or alleged untrue statement or
omission or alleged omission.
Notwithstanding the provisions of this Section 4, the Initial Purchasers
shall not be required to contribute any amount in excess of the amount by which
the total price at which the Debentures purchased and sold by it were offered
exceeds the amount of any damages which the Initial Purchasers have 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 ▇▇▇▇ ▇▇▇) shall be entitled to contribution from any Person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 4, each Person, if any, who controls an
Initial Purchaser or beneficial owner within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act shall have the same rights to
contribution as such Initial Purchasers or beneficial owner, and each Person, if
any, who controls the Company within the meaning of Section 15 of the 1933 Act
or Section 20 of the 1934 Act shall have the same rights to contribution as the
Company.
5. MISCELLANEOUS.
5.1 RULE 144 AND RULE 144A. For so long as the Company is subject to the
reporting requirements of Section 13 or 15 of the 1934 Act, the Company
covenants that it will file the reports required to be filed by it under the
1933 Act and Section 13(a) or 15(d) of the 1934 Act and the rules and
regulations adopted by the SEC thereunder. If the Company ceases to be so
required to file such reports, the Company covenants that it will upon the
request of any beneficial owner of Debentures (a) deliver to a prospective
purchaser such information as is necessary to permit sales pursuant to Rule 144A
under the 1933 Act and it will take such further action as any beneficial owner
of Debentures may reasonably request, and (b) take such further action that is
reasonable in the circumstances, in each case, to the extent required from time
to time to enable such
15
beneficial owner to sell its Debentures without registration under the 1933 Act
within the limitation of the exemptions provided by (i) Rule 144 under the 1933
Act, as such Rule may be amended from time to time, (ii) Rule 144A under the
1933 Act, as such Rule may be amended from time to time, or (iii) any similar
rules or regulations hereafter adopted by the SEC. Upon the request of any
beneficial owner of Debentures, the Company will deliver to such beneficial
owner a written statement as to whether it has complied with such requirements.
The Company's obligations under this Section 5.1 shall terminate upon the
consummation of the Effectiveness Period.
5.2 NO INCONSISTENT AGREEMENTS. The Company has not entered into and the
Company will not after the date of this Agreement enter into any agreement which
is inconsistent with the rights granted to the beneficial owners of Debentures
in this Agreement or otherwise conflicts with the provisions hereof. The rights
granted to the beneficial owners hereunder do not and will not for the term of
this Agreement in any way conflict with the rights granted to the holders of the
Company's other issued and outstanding securities under any such agreements.
5.3 AMENDMENTS AND WAIVERS. The provisions of this Agreement, including
the provisions of this sentence, may not be amended, modified or supplemented,
and waivers or consents to departures from the provisions hereof may not be
given unless the Company has obtained the written consent of beneficial owners
of at least a majority in aggregate principal amount of the outstanding
Debentures affected by such amendment, modification, supplement, waiver or
departure.
5.4 NOTICES. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand delivery, registered
first-class mail, telecopier, or any courier guaranteeing overnight delivery (a)
if to a beneficial owner, at the most current address given by such beneficial
owner to the Company by means of a notice given in accordance with the
provisions of this Section 5.4, which address initially is the address set forth
in the Purchase Agreement with respect to the Initial Purchasers; and (b) if to
the Company, initially at the Company's address set forth in the Purchase
Agreement, and thereafter at such other address of which notice is given in
accordance with the provisions of this Section 5.4.
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; two Business Days
after being deposited in the mail, postage prepaid, if mailed; when receipt is
acknowledged, if telecopied; and on the next Business Day if timely delivered to
an air courier guaranteeing overnight delivery.
Copies of all such notices, demands, or other communications shall be
concurrently delivered by the person giving the same to the Trustee under the
Indenture, at the address specified in such Indenture.
5.5 SUCCESSOR AND ASSIGNS. This Agreement shall inure to the benefit of
and be binding upon the successors, assigns and transferees of each of the
parties, including, without limitation and without the need for an express
assignment, beneficial owners of
16
the Debentures; provided that nothing herein shall be deemed to permit any
assignment, transfer or other disposition of Debentures in violation of the
terms of the Purchase Agreement or the Indenture. If any transferee of the
Initial Purchasers or any other beneficial owner shall acquire Debentures, in
any manner, whether by operation of law or otherwise, such Debentures shall be
held subject to all of the terms of this Agreement, and by taking and holding
such Debentures such Person shall be conclusively deemed to have agreed to be
bound by and to perform all of the terms and provisions of this Agreement,
including the restrictions on resale set forth in this Agreement and, if
applicable, the Purchase Agreement, and such Person shall be entitled to receive
the benefits hereof.
5.6 THIRD PARTY BENEFICIARIES. The beneficial owners of the Debentures
shall be third party beneficiaries to the agreements made hereunder between the
Company, on the one hand, and the Initial Purchasers, on the other hand, and
shall have the right to enforce such agreements directly to the extent they deem
such enforcement necessary or advisable to protect their rights.
5.7 SPECIFIC ENFORCEMENT. Without limiting the remedies available to the
Initial Purchasers and the beneficial owners, the Company acknowledges that any
failure by the Company to comply with its obligations under Sections 2.1 through
2.3 hereof may result in material irreparable injury to the Initial Purchasers
or the beneficial owners for which there is no adequate remedy at law, that it
would not be possible to measure damages for such injuries precisely and that,
in the event of any such failure, the Initial Purchasers or any beneficial owner
may obtain such relief as may be required to specifically enforce the Company's
obligations under Sections 2.1 through 2.3 hereof.
5.8 COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
5.9 HEADINGS. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
5.10 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK WITHOUT REGARD TO THE
PRINCIPLES OF CONFLICT OF LAWS THEREOF.
5.11 SEVERABILITY. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
17
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
LIBERTY MEDIA CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President, General
Counsel and Secretary
Confirmed and accepted as
of the date first above
written:
Banc of America Securities LLC
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Managing Director
▇.▇. ▇▇▇▇▇▇ Securities Inc.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
18