EXHIBIT 99.9
[X.X. XXXX & CO., INC. LETTERHEAD]
[Form of Information Agent Agreement]
October ___ , 2002
Xx. Xxxxx Xxxxxxxxxx
Manager of Corporate Communications
Liberty Media Corporation
00000 Xxxxxxx Xxxxxxxxx
Xxxxxxxxx, XX 00000
Dear Xxxxx:
This Letter Agreement sets forth the terms and conditions pursuant to
which Liberty Media Corporation (the "Company") has retained X. X. Xxxx & Co.,
Inc. ("King") in connection with a proposed rights offering.
Pursuant to the rights offering, holders of rights will be entitled to
purchase shares of Series A common stock, par value $0.01 (the "Series A Common
Stock"), of the Company. The rights offering to purchase Series A Common Stock
is herein referred to as the "Rights Offer."
1. The Company hereby retains King as Information Agent for advisory and
consulting services in connection with the Rights Offer and requests
and authorizes King to contact, and to provide information with respect
to the Rights Offer to, holders of Series A Common Stock and Series B
Common Stock, par value $0.01 (the "Series B Common Stock" and together
with the Series A Common Stock, the "Common Stock"), of the Company.
For this purpose, King is authorized to use, and will be supplied by
the Company with as many copies as King may reasonably request of, the
following materials filed with the Securities and Exchange Commission
(the "Commission") or publicly released (or to be filed or publicly
released) by the Company in connection with the Rights Offer
(collectively, the "Rights Offer Materials"): (i) Prospectus; (ii)
Rights Certificates; (iii) instructions for use of Rights Certificates;
(iv) press releases and newspaper advertisements; (v) letter to
securities dealers, banks and trust companies, and letter from
securities dealers, banks and trust companies to their customers; (vi)
any other ancillary materials that the Company deems to be necessary
and appropriate; and (vii) any and all amendments or supplements to any
of the foregoing.
Xx. Xxxxx Xxxxxxxxxx
Liberty Media Corporation
October ___ , 2002
Page 2
2. The Company agrees to pay King as compensation for its services a fee
of $10,000, which is due upon the completion, expiration or
termination, as the case may be, of the Rights Offer. In the event the
Company extends the term of the Rights Offer, the Company agrees to pay
King an additional fee of $750 for each such extension. Further, the
Company agrees to pay King $5.00 for each completed telephone contact
(incoming or outgoing) in connection with the Rights Offer. In the
event the Company requests King to provide additional services, the
Company agrees to pay King reasonable and customary compensation, in an
amount, if any, to be mutually agreed upon. The Company further agrees
to reimburse King for all reasonable out-of-pocket expenses (including
reasonable counsel's fees and disbursements) incurred by King in
retention hereunder. The Company agrees and acknowledges that its
obligation under this paragraph 2 is not in any way conditional upon
the successful consummation of the Rights Offer.
3. The Company agrees that King shall have the right to pass upon and
approve any and all references to King in the Rights Offer Materials.
The Company shall not file with the Commission, any other governmental
or regulatory authority or body or any court, or otherwise make public,
any document containing any reference to King unless and until King
shall have approved such reference, which approval shall not be
unreasonably withheld or delayed.
4. The Company represents and warrants to King that:
(i) this letter agreement is a valid and binding agreement on the
Company's part;
(ii) all necessary corporate action will be duly taken by the
Company prior to the commencement of the Rights Offer to
authorize the Rights Offer and the purchase of Series A Common
Stock in connection with the Rights Offer;
(iii) all Rights Offer Materials will comply, in all material
respects, with the Securities Exchange Act of 1933, as
amended, and the rules and regulations of the Commission
thereunder, and none of the Rights Offer Materials, and no
other report, filing, document, release or communication
published or filed by the Company in connection with the
Rights Offer, will contain any untrue or misleading statement
of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements made
therein not misleading;
(iv) the Rights Offer, and the purchase of Series A Common Stock in
connection with the Rights Offer, will comply, in all material
respects, with all applicable
Xx. Xxxxx Xxxxxxxxxx
Liberty Media Corporation
October ___ , 2002
Page 3
requirements of law including the applicable rules or
regulations of any governmental or regulatory authority or
body, and no material consent or approval of, or filing with,
any governmental or regulatory authority or body (other than
any required filings under the Securities Exchange Act of
1933, as amended, and the rules and regulations of the
Commission promulgated thereunder) is required in connection
with the making or consummation of the Rights Offer (or, if
any such material consent, approval or filing is required it
will be duly obtained or made prior to the commencement of the
Rights Offer); and
(v) the Rights Offer, and the issuance of Series A Common Stock in
connection with the Rights Offer, and or execution, delivery
and performance of this letter agreement, will not conflict
with or result in a breach of or constitute a default under
the Company's restated certificate of incorporation or bylaws,
or any material agreement, indenture, mortgage, note or other
instrument by which the Company is bound.
5. The Company will advise King promptly of the occurrence of any event
which will cause it not to proceed with or to withdraw or abandon the
Rights Offer. The Company will also advise King promptly of any
amendment or supplement to any of the Rights Offer Materials.
6. King hereby agrees that in performing its services hereunder it will
comply, in all material respects, with all applicable requirements of
law.
7. The Company hereby agrees to indemnify and hold harmless King, King's
controlling persons, officers, directors, employees, agents and
representatives (collectively, the "Indemnified Persons") from and
against any and all losses, claims, damages, liabilities and expenses
whatsoever (including but not limited to, all reasonable counsel fees,
disbursements and other out-of-pocket expenses) incurred by such
Indemnified Persons in investigating, preparing to defend or defending
(or appearing or preparing for appearance as a witness in connection
with) any claim, litigation, proceeding, investigation, or governmental
or stock exchange inquiry, commenced or threatened or any claim
whatsoever: (i) arising out of or based upon any facts or circumstances
constituting a violation of, or in conflict with, any of the
representations and warranties set forth in paragraph 4 above; or (ii)
arising out of, relating to or in connection with the Rights Offer
except for bad faith, willful misconduct or gross negligence of any
Indemnified Person. The Company shall reimburse such Indemnified
Persons for such reasonable counsel fees and disbursements and other
out-of-pocket expenses at such time as they are paid or incurred by
such Indemnified
Xx. Xxxxx Xxxxxxxxxx
Liberty Media Corporation
October ___ , 2002
Page 4
Persons. The foregoing indemnity shall be in addition to any liability
which the Company might otherwise have to the Indemnified Persons.
8. King agrees to notify the Company promptly of the assertion of any
claim against any of the Indemnified Persons in connection with the
Rights Offer; and the Company agrees to notify King promptly of the
assertion of any claim against the Company or any of its officers,
directors, employees or agents in connection with the Rights Offer. At
the Company's election, unless there is a conflict of interest, the
defense of the Indemnified Persons shall be conducted by the Company's
counsel who shall be reasonably satisfactory to King and the
Indemnified Persons who are defendants in the action or proceeding.
Notwithstanding the Company's election to assume the defense of such
action or proceeding, an Indemnified Person may employ separate counsel
to represent it or defend it in such action or proceeding and the
Company will pay the reasonable fees and expenses of such counsel as
set forth above if such Indemnified Person reasonably determines that
there are defenses available to such Indemnified Person which are
different from, or in addition to, those available to the Company, or
if a conflict of interest exists which makes representation by counsel
chosen by the Company not advisable; provided, however, unless there
are actual or potential conflicts of interest among the Indemnified
Persons, the Company will not be required to pay the fees and expenses
of more than one separate counsel for all Indemnified Persons in any
jurisdiction in any single action or proceeding. In any action or
proceeding the defense of which the Company assumes, the Indemnified
Persons shall nevertheless be entitled to participate in such action or
proceeding and retain its own counsel at such Indemnified Person's own
expense. The Company shall not settle or compromise any such action or
proceeding without the Indemnified Person's prior written consent,
unless the terms of the settlement or compromise include an
unconditional release of any such Indemnified Person from all liability
or loss arising out of such action or proceeding.
9. King shall be responsible for and shall indemnify and hold the Company
harmless from and against any and all losses, damages, costs, charges,
reasonable counsel fees, payments, expenses and liability arising out
of or attributable to King's refusal or failure to comply with the
terms of this agreement or which arise out of Agent's bad faith, gross
negligence or willful misconduct; provided, however that King's
liability under this paragraph 8 shall not exceed two times the fee
payable to King pursuant to paragraph 2 of this agreement.
10. The representations and warranties contained in paragraph 4 above and
the indemnity agreement contained in paragraphs 7, 8 and 9 above shall
remain operative and in full
Xx. Xxxxx Xxxxxxxxxx
Liberty Media Corporation
October ___ , 2002
Page 5
force and effect regardless of: (i) the termination, expiration or
consummation of the Rights Offer; and (ii) any investigation made by or
on behalf of any party.
11. This agreement shall be construed and enforced in accordance with the
laws of the State of New York. It is agreed that any action, suit or
proceeding arising out of or based upon this agreement may be brought
in the United States District Court for the Southern District of New
York or any court of the State of New York of competent jurisdiction
located in such District, and the parties hereto hereby consent to the
in personam jurisdiction and venue of any such court and to service of
process by certified mail, return receipt requested.
If any provision of this agreement shall be held illegal or invalid by
any court, this agreement shall be construed and enforced as if such provision
had not been contained herein and shall be deemed an agreement between the
parties hereto to the fullest extent permitted by law.
If the foregoing correctly sets forth the understanding between the
Company and King, please indicate acceptance thereof in the space provided below
for the purpose, whereupon this letter and the Company's acceptance shall
constitute a binding agreement between the parties hereto.
X.X. XXXX & CO., INC.
By:
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Xxxxxx X. Xxxxxx
Senior Vice President
Accepted as of the date first above written:
LIBERTY MEDIA CORPORATION
By:
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Name:
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Title:
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