EXHIBIT 4.2
SUPPLEMENTAL INDENTURE
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TELE-COMMUNICATIONS INTERNATIONAL, INC.
And
THE BANK OF NEW YORK, Trustee
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FIRST SUPPLEMENTAL INDENTURE
Dated as of November 19, 1998
Supplement to Indenture
Dated as of February 7, 1996
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4 1/2% Convertible Subordinated Debentures due 2006
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FIRST SUPPLEMENTAL INDENTURE (this "Supplemental Indenture") dated as of
November 19, 1998 between TELE-COMMUNICATIONS INTERNATIONAL, INC., a Delaware
corporation (the "Company" or "TINTA"), and THE BANK OF NEW YORK, a New York
banking corporation (the "Trustee"), as Trustee under the indenture of TINTA
(the "Indenture") dated as of February 7, 1996. Capitalized terms used herein
without definition shall have the respective meanings ascribed to such terms in
the Indenture.
RECITALS
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WHEREAS, TINTA and the Trustee have entered into the Indenture, pursuant to
which TINTA has issued $345,000,000 aggregate principal amount of its 4 1/2%
Convertible Subordinated Debentures due 2006 (the "Securities"), which are
convertible into TINTA's Series A Common Stock, $1.00 par value per share
("TINTA Series A Stock");
WHEREAS, TINTA, Tele-Communications, Inc., a Delaware corporation ("TCI"),
and Liberty Group Acquisition Co., a wholly-owned subsidiary of TCI ("Merger
Sub") have entered into the Agreement and Plan of Merger, dated as of August 24,
1998 (the "Merger Agreement"), pursuant to which TCI will acquire the entire
equity interest in TINTA not already beneficially owned by TCI by means of a
merger (the "Merger") of Merger Sub with and into TINTA. In the Merger, each
outstanding share of TINTA Series A Stock and each outstanding share of TINTA's
Series B Common Stock, $1.00 par value per share ("TINTA Series B Stock" and
together with the TINTA Series A Stock, "TINTA Common Stock") (other than any
such shares held by TINTA in its treasury or owned of record by TCI or any
subsidiary of TCI, all of which will be canceled), will be converted into the
right to receive 0.58 of a share of Tele-Communications, Inc. Series A Liberty
Media Group Common Stock, $1.00 par value per share ("LMG Series A Stock"), in
accordance with the terms of the Merger Agreement;
WHEREAS, Section 10.16 of the Indenture provides that if TINTA is a party
to a transaction described therein, TINTA shall enter into a supplemental
indenture providing for the conversion of the Securities after such transaction
into the kind and amount of securities the Holders would have owned immediately
after such transaction had they converted their securities immediately before
such transaction and providing for adjustments to such conversion privilege;
WHEREAS, Section 9.01 of the Indenture authorizes TINTA and the Trustee to
enter into a supplemental indenture to comply with Section 10.16 of the
Indenture without notice to or the consent of any Holder;
WHEREAS, TINTA desires to execute this Supplemental Indenture in connection
with the Merger in accordance with the foregoing provisions of the Indenture;
WHEREAS, TINTA has furnished the Trustee with (i) a copy of the resolutions
duly adopted by the Board of Directors authorizing the entering into of this
Supplemental Indenture, certified by
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the Secretary of the Company, (ii) an Officers' Certificate, pursuant to
Sections 12.04 and 12.05 of the Indenture, and (iii) an Opinion of Counsel,
pursuant to Sections 9.06, 12.04 and 12.05 of the Indenture; and
WHEREAS, all things necessary to make this Supplemental Indenture a valid
supplement to the Indenture have been satisfied.
NOW, THEREFORE, each party hereto, for the benefit of the other party
hereto and the equal and proportionate benefit of the Holders, is executing and
delivering this Supplemental Indenture and hereby agrees as follows:
ARTICLE ONE
AMENDMENTS TO THE INDENTURE
SECTION 1. The following terms are hereby added to Section 1.01 of
Indenture in their respective appropriate alphabetical places:
"Company Common Stock" means the common stock, par value $1.00 per
share, of the Company immediately following the Effective Time.
"Effective Time" means November 19, 1998.
SECTION 2. Each of the definitions of the following terms in Section 1.01
of the Indenture is hereby amended in its entirety to read as follows:
"Series A Stock" means the Tele-Communications, Inc. Series A Liberty
Media Group Common Stock, par value $1.00 per share, of the Parent, which
term shall include, where appropriate, in the case of any reclassification,
recapitalization or other change in the Series A Stock, or in the case of a
consolidation or merger of Parent with or into another person affecting the
Series A Stock, such capital stock to which a holder of Series A Stock
shall be entitled upon the occurrence of such event.
"Series B Stock" means the Tele-Communications, Inc. Series B Liberty
Media Group Common Stock, par value $1.00 per share, of the Parent, which
term shall include, where appropriate, in the case of any reclassification,
recapitalization or other change in the Series B Stock, or in the case of a
consolidation or merger of Parent with or into another person affecting the
Series B Stock, such capital stock to which a holder of Series B Stock
shall be entitled upon the occurrence of such event.
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SECTION 3. Section 4.02 of the Indenture is hereby amended by deleting all
references to the capitalized term "Common Stock" and inserting in lieu thereof
"Company Common Stock".
SECTION 4. The fifth paragraph of Section 10.03 of the Indenture is hereby
amended to read in its entirety: "The Company will not be required to deliver
certificates for shares of Series A Stock upon conversion while the Parent's
stock transfer books are closed for a meeting of stockholders or for the payment
of dividends or for any other purpose, but certificates for shares of Series A
Stock shall be delivered as soon as the stock transfer books shall again be
opened."
SECTION 5. Section 10.06 of the Indenture is hereby amended to read in its
entirety:
"SECTION 10.06 Parent to Provide Stock.
The Parent has separately agreed to at all times reserve out of its
authorized but unissued Series A Stock or Series A Stock held in treasury
enough shares of Series A Stock to permit the conversion of all outstanding
Securities.
All shares of Series A Stock which may be delivered upon conversion of
the Securities shall be validly issued, fully paid and non-assessable and
shall be free from any preemptive rights.
In order that the Company may deliver shares of Series A Stock upon
conversion of the Securities, the Parent has separately agreed to endeavor
to comply with all applicable Federal and State securities laws and to
endeavor to cause such shares to be listed on each national securities
exchange or other national trading market on which the Series A Stock is
listed."
SECTION 6. Section 10.07 of the Indenture is hereby amended by deleting
the references to the "Company" and inserting in lieu thereof the "Parent".
SECTION 7. Section 10.08 of the Indenture is hereby amended by deleting
the references to the "Company" and inserting in lieu thereof the "Parent".
SECTION 8. Section 10.09 of the Indenture is hereby amended by deleting
the references to the "Company" and inserting in lieu thereof the "Parent".
SECTION 9. Section 10.13 of the Indenture is hereby amended by deleting
the references to the "Company" and inserting in lieu thereof the "Parent".
SECTION 10. Section 10.15 is hereby amended to read in its entirety:
"SECTION 10.15 Notice of Certain Transactions.
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If:
(1) the Parent takes any action which would require an adjustment in
the conversion price or conversion rate;
(2) the Parent consolidates or merges with, or transfers all or
substantially all of its assets to, another corporation, and
stockholders of the Parent must approve the transaction; or
(3) there is a dissolution or liquidation of the Parent,
a Holder of a Security may want to convert it into shares of Series A
Stock prior to the record date for, or the effective date of, the
transaction so that he may receive the rights, warrants, securities or
assets which a holder of shares of Series A Stock on the date may
receive. Therefore, the Company shall give to the Securityholders and
the Trustee in accordance with Section 12.02 a notice stating the
proposed record or effective date, as the case may be. Failure to
give the notice or any defect in it shall not affect the validity of
any transaction referred to in clause (1), (2) or (3) of this
Section."
SECTION 11. Section 10.16 is hereby amended by:
(a) deleting the title of such Section and inserting in lieu thereof
"Consolidation, Merger or Sale of the Parent; Special Distributions.";
(b) deleting the first sentence of the first paragraph and inserting
in lieu thereof the words "If the Parent is a party to a merger which
reclassifies or changes its outstanding Series A Stock, the Company shall
enter into a supplemental indenture." and
(c) deleting the reference to in the last paragraph to the "Company"
and inserting in lieu thereof the "Parent".
ARTICLE TWO
MISCELLANEOUS
SECTION 1. Holders' Rights under Section 10.16 of the Indenture. On and
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after the Effective Time and during the period the Securities shall be
convertible pursuant to the terms of such Securities, a Holder of a Security may
convert it into the amount of LMG Series A Stock which he would have owned
immediately after the Merger if he had converted the Security immediately before
the Effective Time, subject to adjustment after the Effective Time in accordance
with the provisions of Article Ten of the Indenture.
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SECTION 2. Construction with Indenture. All of the covenants, agreements
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and provisions of this Supplemental Indenture shall be deemed to be and
construed as part of the Indenture to the same extent as if fully set forth
therein and shall be fully enforceable in the manner provided in the Indenture.
Except as provided in this Supplemental Indenture, the Indenture shall remain in
full force and effect and the terms and conditions thereof are hereby confirmed.
SECTION 3. Conflict with the TIA. If any provision of this Supplemental
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Indenture modifies or excludes any provision of the TIA that is required under
such act to be part of and govern the Indenture or this Supplemental Indenture,
the latter provision shall control. If any provision hereof modifies or
excludes any provision of the TIA that may be so modified or excluded, the
latter provision shall be deemed to apply to this Supplemental Indenture as so
modified or excluded, as the case may be.
SECTION 4. Date of Effectiveness. This Supplemental Indenture shall
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become a legally effective and binding instrument upon the later of (i) the
execution and delivery hereof by all parties hereto or (ii) the Effective Time.
SECTION 5. Securities Deemed Conformed. Beginning at the effective time
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of this Supplemental Indenture, the provisions of each Security then outstanding
shall be deemed to be conformed, without the necessity for reissuance or
exchange of Securities or any other action on the part of any Holder, the
Company or the Trustee, so as to reflect this Supplemental Indenture.
SECTION 6. Successors. All agreements of the Company and the Trustee in
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this Supplemental Indenture and in the Indenture as amended and supplemented
hereby shall bind their respective successors.
SECTION 7. Benefits of Supplemental Indenture. Nothing in this
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Supplemental Indenture, express or implied, shall give to any person, other than
the parties hereto and their successors hereunder, any Agent and the Holders,
any benefit or any legal or equitable right, remedy or claim under this
Supplemental Indenture or the Indenture as amended or supplemented hereby.
SECTION 8. Separability. In case any provision in this Supplemental
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Indenture, or in the Indenture as amended and supplemented hereby, shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby,
it being intended that all of the provisions hereof shall be enforceable to the
full extent permitted by law.
SECTION 9. Trustee Responsibility. The Trustee assumes no duties,
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responsibilities or liabilities by reason of this Supplemental Indenture other
than as set forth in the Indenture. The Trustee assumes no responsibility for
the correctness of the statements herein contained, which shall be taken as
statements of the Company. This Supplemental Indenture is executed and accepted
by
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the Trustee subject to all of the terms and conditions of its acceptance of
the trust under the Indenture, as fully as if said terms and conditions were
herein set forth in full.
SECTION 10. Counterparts. This Supplemental Indenture may be executed in
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counterparts, each of such counterparts shall for all purposes be deemed to be
an original, and all such counterparts shall together constitute but one and the
same instrument.
SECTION 11. Governing Law. The laws of the State of New York shall govern
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this Supplemental Indenture without regard to principles of conflicts of law.
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above written.
TELE-COMMUNICATIONS INTERNATIONAL, INC.
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President and
Chief Financial Officer
(Seal)
Attest: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Assistant Secretary
THE BANK OF NEW YORK
By: /s/ Xxxx X. Xxxxx
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Name: Xxxx X. Xxxxx
Title: Assistant Vice President
(Seal)
Attest: /s/ Xxxx Xx Xxxxxx
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Name: Xxxx Xx Xxxxxx
Title: Assistant Vice President
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