Exhibit 4.3
-----------------------------
Registration Rights Agreement
dated as of March 8, 2001
between
Liberty Media Corporation
and
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
-----------------------------
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is made and entered
into this 8th day of March, 2001, between Liberty Media Corporation, a Delaware
corporation (the "Company"), and ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc. (the "Initial
Purchaser").
This Agreement is made pursuant to the Purchase Agreement, dated March 1,
2001, between the Company and the Initial Purchaser (the "Purchase Agreement"),
which provides for the sale by the Company to the Initial Purchaser of an
aggregate of $817,729,000 original principal amount of the Company's 3 1/4%
Senior Exchangeable Debentures due 2031 (the "Debentures"). In order to induce
the Initial Purchaser to enter into the Purchase Agreement, the Company has
agreed to provide to the Initial Purchaser and its 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 1934, 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.
1
"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 Purchaser, for so long as it owns any
Debentures, and each of its 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 Sixth Supplemental Indenture, dated as of March 8, 2001,
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 PURCHASER" 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 "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
2
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 ▇▇▇▇▇
& ▇▇▇▇ 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.
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 180 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 reasonable best efforts to cause
the Shelf Registration Statement to be declared effective under the 1933 Act
within 270 days of the Closing Date, (C) use its reasonable best efforts to keep
the Shelf Registration Statement continuously effective in order to permit the
Prospectus forming part thereof to be
3
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 reasonable best 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
reasonable best efforts to cause the Shelf Registration Statement to become, or
to remain, effective during the requisite period if the Company voluntarily
takes any 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
4
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 180th 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 270th 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 ("Debentures") 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 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
5
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 the 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) 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;
6
(d) use its reasonable best 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;
(f) furnish ▇▇▇▇▇ & Wood LLP, as special counsel for the Holders of
Debentures (or, if ▇▇▇▇▇ & ▇▇▇▇ 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;
7
(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 reasonable best
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
reasonable best efforts to cause the Trustee to execute, all documents as may be
required to effect such changes, and all 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;
8
(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
(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
9
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 Purchaser;
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 Purchaser, 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 Purchaser, 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 Purchaser 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 Purchaser 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 Purchaser 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
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
10
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
Purchaser, 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 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
11
(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.
(b) Each beneficial owner severally, but not jointly, agrees to indemnify
and hold harmless the Company, the Initial Purchaser, 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
Purchaser, 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
12
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 of 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 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
13
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 Purchaser 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 Purchaser 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 Purchaser 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 Purchaser, 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 Purchaser on the other hand shall be determined by
reference to, among other 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 Purchaser 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 Purchaser 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 Purchaser
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
14
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 Purchaser
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 Purchaser 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 ▇▇▇▇ ▇▇▇) 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 Purchaser 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 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.
15
5.3 AMENDMENTS AND WAIVERS. The provisions of this Ageement, 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 Purchaser; 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 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 Purchaser 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 Purchaser, 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 Purchaser and the beneficial owners, the Company acknowledges that any
failure by the
16
Company to comply with its obligations under Sections 2.1 through 2.3 hereof
may result in material irreparable injury to the Initial Purchaser 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 Purchaser 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 anyone 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:
-----------------------------------
Name: ▇▇▇▇▇ ▇.▇. ▇▇▇▇▇▇▇
Title: Vice President and Treasurer
Confirmed and accepted as
of the date first above
written:
▇▇▇▇▇▇▇ ▇▇▇▇▇ BARNEY INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Authorized Signatory