EXHIBIT 4.7
_____________________
Registration Rights Agreement
Dated As of November 16, 1999
among
Liberty Media Corporation
and
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Securities Corporation,
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated,
▇▇▇▇▇▇▇, Sachs & Co.,
and
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
_____________________
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is made and entered
into this 16th day of November, 1999, among Liberty Media Corporation, a
Delaware corporation (the "Company"), and ▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇
Securities Corporation, ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
("▇▇▇▇▇▇▇ ▇▇▇▇▇"), ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. and ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc.
(collectively, the "Initial Purchasers").
This Agreement is made pursuant to the Purchase Agreement, dated November
10, 1999, among 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 $750,000,000 principal amount of the Company's 4%
Senior Exchangeable Debentures due 2029 (the "Debentures") (or $900,000,000
aggregate principal amount of such Debentures if the Initial Purchasers'
overallotment option is exercised in full). 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 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.
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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
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time.
"1934 Act" shall mean the Securities Exchange Act of l934, as amended from
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time to time.
"Business Day" shall mean a day that is not a Saturday, a Sunday, or a day
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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
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Agreement.
"Company" shall have the meaning set forth in the preamble and shall also
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include the Company's successors.
"Debentures" shall have the meaning set forth in the second paragraph of
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this Agreement.
"Depositary" shall mean The Depository Trust Company, or any other
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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.
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"Holder" shall mean an Initial Purchaser, for so long as it owns any
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Debentures, and each of its successors, assigns and direct and indirect
transferees who become registered owners of Debentures under the Indenture.
"Indenture" shall mean the Indenture relating to the Debentures, dated as
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of July 7, 1999, between the Company and The Bank of New York, as trustee, as
supplemented by the Second Supplemental Indenture, dated as of November 16,
1999, 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" or "Initial Purchasers" shall have the meaning set
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forth in the preamble.
"Majority Holders" shall mean the Holders of a majority of the aggregate
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principal amount of Outstanding (as defined in the Indenture) Debentures;
provided that whenever the consent or approval of Holders of a specified
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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),
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corporation, limited liability company, trust or unincorporated organization, or
a government or agency or political subdivision thereof.
"Prospectus" shall mean the prospectus included in a Shelf Registration
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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 a 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 preamble.
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"Registration Expenses" shall mean any and all expenses incident to
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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 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
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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.
"Registration Statement" shall mean any registration statement of the
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Company which covers any of the Debentures pursuant to the provisions of this
Agreement, and all amendments and supplements to any such Shelf Registration
Statement, including post-effective amendments, in each case including the
Prospectus contained therein, all exhibits thereto and all material incorporated
by reference therein.
"SEC" shall mean the Securities and Exchange Commission or any successor
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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
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2.1 hereof.
"Shelf Registration Statement" shall mean a "shelf" registration statement
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of the Company pursuant to the provisions of Section 2.1 of this Agreement which
covers all of the Debentures, and all amendments and supplements 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).
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"Trustee" shall mean the trustee with respect to the Debentures under the
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Indenture.
2. Registration Under the 1933 Act.
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2.1 Shelf Registration. The Company shall, for the benefit of the
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Holders, 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 reasonable best efforts to cause the
Shelf Registration Statement to be declared effective under the 1933 Act within
180 days of the
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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 usable by Holders 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, as required
by Section 3(b) below, and to furnish to the Holders of Debentures copies of any
such supplement or amendment promptly as reasonably practicable after its being
used or filed with the SEC.
2.2 Expenses. The Company shall pay all Registration Expenses in
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connection with the registration pursuant to Section 2.1. Each Holder shall pay
all underwriting expenses, discounts and commissions and transfer taxes, if any,
relating to the sale or disposition of such Holder's Debentures pursuant to the
Shelf Registration Statement.
2.3 Effectiveness. (a) The Company will be deemed not to have used its
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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 Holders 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.
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(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, such Shelf Registration Statement will be deemed not to have
become effective during the period of such interference, until the offering of
Debentures pursuant to such Shelf Registration Statement may legally resume.
2.4 Interest. The Indenture executed in connection with the Debentures
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will provide 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 such 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 date that such 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
depositing with the Trustee, in trust, for the
6
benefit of the Holders of Debentures, on or before the applicable semiannual
interest payment date, immediately available funds in sums sufficient to pay the
Additional Interest then due. The Additional Interest due shall be payable on
each interest payment date to the record 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.
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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, 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 Holders 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 such Shelf Registration Statement effective for the
applicable 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 securities
covered by such Shelf Registration Statement during the applicable period in
accordance with the intended method or methods of distribution by the selling
Holders thereof;
(c) (i) notify each Holder 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 Holders 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 Holder 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 Holder or underwriter may reasonably request, including
financial statements and schedules and, if the Holder 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 Holders 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 reasonable best efforts to register or qualify the
Debentures under all applicable state securities or "blue sky" laws of such
jurisdictions as any Holder of
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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 Holder and underwriter to consummate the disposition in each
such jurisdiction of such Debentures owned by such Holder; 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 Holder 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 such Shelf Registration Statement or the related
Prospectus untrue in any material respect or which requires the making of any
changes in such 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 such 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 Holders of a
majority in principal amount of such Debentures ("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 Holder of Debentures, and each underwriter, if
any, without charge, at least one conformed copy of the Shelf Registration
Statement and any post-
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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 and not bearing any restrictive legends;
(j) upon the occurrence of any event or the discovery of any facts,
each as contemplated by Sections 3(e)(v) and 3(e)(vi) 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 Holder of such determination and to furnish each Holder
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, 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 Holders of such
Debentures 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 and updates thereof
(which counsel and opinions (in form, scope and substance) shall be
reasonably satisfactory to
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the managing underwriters, if any, and the holders of a majority in
principal amount of the Debentures being sold) addressed to each selling
Holder 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 selling Holders of Debentures
(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 Holders and an
agent of the Holders providing for, among other things, the appointment of
such agent for the selling Holders 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
Holders 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 Holders
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;
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(o) a reasonable time prior to filing the Shelf Registration
Statement, any Prospectus forming a part thereof, any amendment to such Shelf
Registration Statement or amendment or supplement to such Prospectus, provide
copies of such document to the Holders 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 Holders 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 on behalf of the Holders 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 Holders of Debentures, the Initial Purchasers on behalf of such
Holders, 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 such Holder's participation in the Shelf
Registration) require each Holder of Debentures to furnish to the Company such
information regarding the Holder and the proposed distribution by such Holder of
such 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 Holder 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 Holder will forthwith discontinue disposition of
Debentures pursuant to a Registration Statement until such Holder'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 Holder will deliver to the
Company (at its expense) all copies in such Holder'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 Holder of Debentures
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may participate in any underwritten registration hereunder unless such Holder
(a) agrees to sell such Holder'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.
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(a) The Company agrees to indemnify and hold harmless the Initial
Purchasers, each Holder, each Person who participates as an underwriter (any
such Person being an "Underwriter") and each Person, if any, who controls any
Holder 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
(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,
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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
Holder or Underwriter expressly for use in the Shelf Registration Statement (or
any amendment thereto) or any Prospectus (or any amendment or
12
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 Holder severally, but not jointly, agrees to indemnify and
hold harmless the Company, the Initial Purchasers, each Underwriter and the
other selling Holders, 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 Holder 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 Holder furnished to the Company by such Holder
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 Holder shall be liable for any claims hereunder in excess of the
amount of net proceeds received by such Holder from the sale of Debentures
pursuant to such 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
13
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 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) 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)) 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 Holders 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
14
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 Holders 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
Holders 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 Holders and the
Initial Purchasers 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 Holders 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 Holders 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, no Initial Purchaser
shall 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 such 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 Holder 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 Holder, and each Person, if any, who controls the Company
within the meaning of Section 15 of the 1933 Act or Section 20 of the
15
1934 Act shall have the same rights to contribution as the Company. The Initial
Purchasers' respective obligations to contribute pursuant to this Section 4 are
several in proportion to the principal amount of Debentures set forth opposite
their respective names in Schedule A to the Purchase Agreement and not joint.
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 Holder 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 Holder 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 Holder 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
Holder of Debentures, the Company will deliver to such Holder 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 Holders of Debentures in this
Agreement or otherwise conflicts with the provisions hereof. The rights granted
to the Holders 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 Holders 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 Holder, at the most current address given by such Holder 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
16
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, subsequent Holders; 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
any Holder 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 Initial Purchasers (even if the Initial
-------------------------
Purchasers are not Holders of Debentures) shall be third party beneficiaries to
the agreements made hereunder between the Company, on the one hand, and the
Holders, 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 or the rights of Holders hereunder. Each Holder of
Debentures shall be a third party beneficiary 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
it deems such enforcement necessary or advisable to protect its rights
hereunder.
5.7 Specific Enforcement. Without limiting the remedies available to the
--------------------
Initial Purchasers and the Holders, 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
Holders 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 Holder 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
17
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.
18
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
LIBERTY MEDIA CORPORATION
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President and Treasurer
Confirmed and accepted as
of the date first above
written:
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ SECURITIES CORPORATION
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
▇▇▇▇▇▇▇, SACHS & CO.
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ INC.
BY: ▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Authorized Signatory
Each for itself and as Representative of the
other Initial Purchasers set forth above