Exhibit 2.01
AGREEMENT AND PLAN OF REORGANIZATION
among
LIBERTY MEDIA CORPORATION,
LMC CAPITAL LLC
LIBERTY PROGRAMMING COMPANY LLC,
LIBERTY DMX, INC.,
LMC MUSIC, INC. and
LDIG MERGER SUB, INC.
Dated as of February 5, 2002
TABLE OF CONTENTS
Page
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ARTICLE I CONVERSION OF LIBERTY DIGITAL SERIES C CONVERTIBLE
PREFERRED STOCK................................................................. 1
ARTICLE II CONTRIBUTION TO CAPITAL OF LMC CAPITAL BY LIBERTY MEDIA......................... 2
ARTICLE III CONTRIBUTION TO CAPITAL OF LIBERTY PROGRAMMING BY LMC
CAPITAL......................................................................... 2
ARTICLE IV CONTRIBUTION TO CAPITAL OF LIBERTY DMX BY LIBERTY PROGRAMMING .................. 2
ARTICLE V CONTRIBUTION TO CAPITAL OF MERGER SUB BY LIBERTY DMX AND
LMC MUSIC....................................................................... 2
Section 5.1 Contribution of Liberty DMX................................................ 2
Section 5.2 Contribution of LMC Music.................................................. 3
ARTICLE VI THE MERGER...................................................................... 3
Section 6.1 The Merger................................................................. 3
Section 6.2 Effective Time of the Merger............................................... 3
Section 6.3 Effect of The Merger....................................................... 3
Section 6.4 Certificate of Incorporation and Bylaws.................................... 4
Section 6.5 Conversion of Securities................................................... 4
Section 6.6 Payment in Lieu of Fractional Shares....................................... 4
Section 6.7 Treatment of Outstanding Options and Stock Appreciation Rights............. 5
Section 6.8 Exchange of Shares......................................................... 6
ARTICLE VII IRS CLASSIFICATION.............................................................. 7
ARTICLE VIII APPRAISAL RIGHTS................................................................ 7
ARTICLE IX CLOSING......................................................................... 7
Section 9.1 Closing.................................................................... 7
Section 9.2 Conditions to Closing...................................................... 8
Section 9.3 Deliveries at Closing...................................................... 8
ARTICLE X TERMINATION..................................................................... 9
Section 10.1 Termination................................................................ 9
Section 10.2 Effect of Termination...................................................... 9
ARTICLE XI MISCELLANEOUS................................................................... 10
Section 11.1 No Third-Party Rights...................................................... 10
Section 11.2 Notices.................................................................... 10
Section 11.3 Entire Agreement........................................................... 10
Section 11.4 Amendment, Modification or Waiver.......................................... 10
Section 11.5 Binding Effect; Benefit; Successors And Assigns............................ 10
Section 11.6 Severability............................................................... 11
Section 11.7 Specific Performance....................................................... 11
Section 11.8 Further Assurances......................................................... 11
Section 11.9 Miscellaneous.............................................................. 11
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AGREEMENT AND PLAN OF REORGANIZATION
Agreement and Plan of Reorganization (the "Agreement"), dated
as of February 5, 2002, among Liberty Media Corporation, a Delaware corporation
("Liberty Media"), LMC Capital LLC, a Delaware limited liability company ("LMC
Capital"), Liberty Programming Company LLC, a Delaware limited liability company
("Liberty Programming"), Liberty DMX, Inc., a Delaware corporation ("Liberty
DMX"), LMC Music, Inc., a Delaware corporation ("LMC Music") and LDIG Merger
Sub, Inc., a Delaware corporation ("Merger Sub").
RECITALS
A. Each of the parties to this agreement other than Liberty
Media is a direct or indirect subsidiary of Liberty Media. The parties desire to
effect the transactions set forth in this Agreement in connection with Liberty
Media's acquisition of the minority publicly-held interest in Liberty Digital,
Inc., a Delaware corporation and majority owned subsidiary of Liberty Media
("Liberty Digital"), which acquisition was approved by Liberty Media's Board of
Directors on October 11, 2001.
B. Liberty Media beneficially owns more than 90% of the
outstanding voting stock of Liberty Digital.
C. LMC Capital is a direct wholly-owned subsidiary of Liberty
Media.
D. Liberty Programming is a direct wholly-owned subsidiary of
LMC Capital.
E. Liberty DMX is a direct wholly-owned subsidiary of Liberty
Programming.
F. Merger Sub is a direct, wholly-owned subsidiary of Liberty
DMX, and shall be owned, immediately following the contributions contemplated by
Article V of this Agreement, 96.7077% by Liberty DMX and 3.2923% by LMC Music.
NOW, THEREFORE, in consideration of the foregoing and the
mutual promises contained herein, the parties hereto agree as follows:
ARTICLE I
CONVERSION OF LIBERTY DIGITAL SERIES C
CONVERTIBLE PREFERRED STOCK
Pursuant to Paragraph 5(m) of the Certificate of Designations
of the Liberty Digital Series C Convertible Preferred Stock, par value $0.01 per
share (the "Liberty Digital Series C Convertible Preferred Stock"), prior to the
Closing Date (as hereinafter defined in Section 9.1) Liberty DMX shall convert
150,000 shares of Liberty Digital Series C Convertible Preferred Stock held of
record by Liberty DMX into an aggregate of 25,751,072.96 shares of Series B
common stock of Liberty Digital, par value $0.01 per share (the "Liberty Digital
Series
B Common Stock"), at a conversion rate of 171.67382 fully paid and
non-assessable shares of Liberty Digital Series B Common Stock for one share of
Liberty Digital Series C Convertible Preferred Stock.
ARTICLE II
CONTRIBUTION TO CAPITAL OF LMC CAPITAL BY LIBERTY MEDIA
Liberty Media hereby agrees to grant, assign, transfer,
deliver and convey to LMC Capital at the Closing Date, effective immediately
prior to the Effective Time (as hereinafter defined in Section 6.2) of the
Merger, as a contribution to capital and without further consideration, up to
5,331,000 shares (the "Liberty Media Shares") of the Series A common stock, par
value $0.01 per share, of Liberty Media (the "Liberty Media Series A Common
Stock"). LMC Capital hereby agrees to acquire, accept and receive all of Liberty
Media's rights, title and interests in and to the Liberty Media Shares.
ARTICLE III
CONTRIBUTION TO CAPITAL OF LIBERTY PROGRAMMING
BY LMC CAPITAL
LMC Capital hereby agrees to grant, assign, transfer, deliver
and convey to Liberty Programming at the Closing, effective immediately prior to
the Effective Time of the Merger, as a contribution to capital and without
further consideration, the Liberty Media Shares. Liberty Programming hereby
agrees to acquire, accept and receive all of LMC Capital's rights, title and
interests in and to the Liberty Media Shares.
ARTICLE IV
CONTRIBUTION TO CAPITAL OF LIBERTY DMX
BY LIBERTY PROGRAMMING
Liberty Programming hereby agrees to grant, assign, transfer,
deliver and convey to Liberty DMX at the Closing, effective immediately prior to
the Effective Time of the Merger, as a contribution to capital and without
further consideration, the Liberty Media Shares. Liberty DMX hereby agrees to
acquire, accept and receive all of Liberty Programming's rights, title and
interests in and to the Liberty Media Shares.
ARTICLE V
CONTRIBUTION TO CAPITAL OF MERGER SUB BY LIBERTY DMX AND LMC MUSIC
SECTION 5.1 CONTRIBUTION OF LIBERTY DMX.
At the Closing, effective immediately prior to the Effective
Time of the Merger, Liberty DMX shall grant, assign, transfer, deliver and
convey to Merger Sub as a contribution to capital: (i) all shares of Series A
common stock, par value $0.01 per share of Liberty Digital (the
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"Liberty Digital Series A Common Stock") owned by Liberty DMX, (ii) all shares
of Liberty Digital Series B Common Stock owned by Liberty DMX and (iii) the
Liberty Media Shares (all such securities referenced in clauses (i), (ii) and
(iii) are collectively referred to herein as the "Assets"), in exchange for
96.7077% of the issued and outstanding common stock, par value $0.01 per share
of Merger Sub ("Merger Sub Common Stock"). Merger Sub hereby agrees to acquire,
accept and receive all of Liberty DMX's rights, title and interests in and to
the Assets as provided herein.
SECTION 5.2 CONTRIBUTION OF LMC MUSIC.
At the Closing, effective immediately prior to the Effective
Time of the Merger, LMC Music shall grant, assign, transfer, deliver and convey
to Merger Sub as a contribution to capital, all shares of Liberty Digital Series
A Common Stock owned by Liberty Music, in exchange for 3.2923% of the issued and
outstanding Merger Sub Common Stock. Merger Sub hereby agrees to acquire, accept
and receive all of Liberty Music's rights, title and interests in and to such
shares of Liberty Digital Series A Common Stock as provided herein.
ARTICLE VI
THE MERGER
SECTION 6.1 THE MERGER.
In accordance with and subject to the provisions of this
Agreement, at the Effective Time (as defined below), Merger Sub shall be merged
with and into Liberty Digital pursuant to Section 253 of the General Corporation
Law of the State of Delaware (the "DGCL"), and the separate existence of Merger
Sub shall cease, and Liberty Digital shall continue as the surviving corporation
(sometimes referred to herein as the "Surviving Corporation") under the laws of
the State of Delaware (the "Merger").
SECTION 6.2 EFFECTIVE TIME OF THE MERGER.
Subject to the provisions of this Agreement, as soon as
practicable on or after the Closing Date, Merger Sub shall cause to be filed a
certificate of ownership and merger or other appropriate documents (in any case,
the "Certificate of Merger") executed in accordance with the relevant provisions
of the DGCL, as shall be necessary or desirable in connection with the Merger.
The Merger shall become effective at the time specified in the Certificate of
Merger, or if no time is specified, then upon filing the Certificate of Merger
with the Secretary of State of the State of Delaware (the time the Merger
becomes effective being the "Effective Time").
SECTION 6.3 EFFECT OF THE MERGER.
From and after the Effective Time, the Merger will have the
effects set forth in Section 259 of the DGCL. If, at any time after the
Effective Time of the Merger, the Surviving Corporation determines that any
deeds, bills of sale, assignments, assurances or any other actions or things are
necessary or desirable to vest, perfect or confirm of record or otherwise in the
Surviving Corporation its rights, title and interests in, to or under any of the
rights, properties or assets of either of Merger Sub or Liberty Digital, or
otherwise to carry out the intent and purposes of the Merger, the officers and
directors of the Surviving Corporation shall be
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authorized to execute and deliver, in the name and on behalf of each of Merger
Sub and Liberty Digital, all such deeds, bills of sale, assignments and
assurances, and to take and do, in the name and on behalf of each of Merger Sub
and Liberty Digital, all such other actions and things, as may be necessary or
desirable to vest, perfect or confirm any and all rights, title and interests
in, to and under such rights, properties or assets in the Surviving Corporation
or otherwise to carry out the intent and purposes of the Merger.
SECTION 6.4 CERTIFICATE OF INCORPORATION AND BYLAWS.
At the Effective Time of the Merger, the certificate of
incorporation of Liberty Digital, as in effect immediately prior to such time,
shall be the certificate of incorporation of the Surviving Corporation until
thereafter altered, amended or repealed as provided therein or in the DGCL. The
bylaws of Liberty Digital, as in effect at the Effective Time of the Merger,
shall be the bylaws of the Surviving Corporation until thereafter altered,
amended or repealed as provided therein or in the DGCL or in the certificate of
incorporation of the Surviving Corporation.
SECTION 6.5 CONVERSION OF SECURITIES.
At the Effective Time of the Merger, subject and pursuant to
the terms of this Agreement and the DGCL, by virtue of the Merger and without
any action on the part of Liberty Digital, Merger Sub, Liberty Media or any
other person (i) each issued and outstanding share of Liberty Digital Series A
Common Stock (other than the shares of Liberty Digital Series A common stock
owned of record by Merger Sub as of immediately prior to the Effective Time or
by a holder who validly exercises appraisal rights pursuant to Section 262 of
the DGCL), shall be converted into 0.25 shares of Liberty Media Series A Common
Stock, (ii) each issued and outstanding stock option and stock appreciation
right with respect to underlying shares of Liberty Digital Series A Common Stock
shall be assumed by Liberty Media and adjusted so as to be exercisable with
respect to Liberty Media Series A Common Stock as set forth in Section 6.8
herein, (iii) each issued and outstanding or treasury share of Liberty Digital
Series A Common Stock not converted into Liberty Media Series A Common Stock
pursuant to clause (i) of this Section 6.5 shall be canceled and retired, (iv)
each issued and outstanding or treasury share of Liberty Digital Series B Common
Stock shall be canceled and retired, (v) each issued and outstanding or treasury
share of Series D preferred stock, par value $0.01 per share, of Liberty Digital
(the "Liberty Digital Series D Preferred Stock") shall remain issued and
outstanding or in treasury, as the case may be, and shall continue as one share
of Series D preferred stock, par value $0.01 per share, of the Surviving
Corporation; and (vi) each issued and outstanding share of Merger Sub Common
Stock shall be converted into one share of Series A common stock, par value
$0.01 per share, of the Surviving Corporation.
SECTION 6.6 PAYMENT IN LIEU OF FRACTIONAL SHARES.
Anything contained herein to the contrary notwithstanding,
Liberty Media will not issue fractional shares of Liberty Media Series A Common
Stock in the Merger. A holder of shares of Liberty Digital Series A Common Stock
(other than Merger Sub and other than a holder who validly exercises appraisal
rights pursuant to Section 262 of the DGCL) shall be entitled to receive the
number of shares of Liberty Media Series A Common Stock determined by
multiplying such holder's aggregate number of shares of Liberty Digital Series A
Common
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Stock by the exchange ratio of 0.25. The total number of shares of Liberty Media
Series A Common Stock issuable to each such holder shall be rounded down to the
nearest whole number.
Each holder of shares of Liberty Digital Series A Common Stock
who would otherwise have been entitled to a fraction of a share of Liberty Media
Series A Common Stock upon surrender of certificates formerly evidencing shares
of Liberty Digital Series A Common Stock for exchange pursuant to this Article
VI will be paid an amount in cash (without interest) equal to such holder's
proportionate interest in the net proceeds from the sale or sales in the open
market by EquiServe Trust Company, N.A., or another exchange agent selected by
Liberty Media (the "Exchange Agent"), on behalf of all such holders, of the
aggregate fractional shares of Liberty Media Series A Common Stock issued
pursuant to this Article VI. As soon as practicable following the Effective
Time, the Exchange Agent shall determine the excess of (i) the number of full
shares of Liberty Media Series A Common Stock delivered to the Exchange Agent by
the Surviving Corporation over (ii) the aggregate number of full Liberty Media
Series A Common Stock to be distributed to holders of Liberty Digital Series A
Common Stock (such excess being herein called the "Excess Liberty Media
Shares"). The Exchange Agent, as agent for the former holders of shares of
Liberty Digital Series A Common Stock, shall sell the Excess Liberty Media
Shares at the prevailing prices on the New York Stock Exchange ("NYSE"). The
sales of the Excess Liberty Media Shares by the Exchange Agent shall be executed
on the NYSE through one or more member firms of the NYSE and shall be executed
in round lots to the extent practicable. All commissions, transfer taxes and
other out-of-pocket transaction costs, including the expenses and compensation
of the Exchange Agent, incurred in connection with such sale of Excess Liberty
Media Shares shall be deducted from the proceeds otherwise distributable to the
former holders of Liberty Digital Series A Common Stock. Until the net proceeds
of such sale have been distributed to the former holders of Liberty Digital
Series A Common Stock, the Exchange Agent will hold such proceeds in trust for
such former holders. As soon as practicable after the determination of the
amount of cash to be paid to former holders of Liberty Digital Series A Common
Stock in lieu of any fractional interests, the Exchange Agent shall make
available in accordance with this Agreement such amounts to such former holders.
SECTION 6.7 TREATMENT OF OUTSTANDING OPTIONS AND STOCK APPRECIATION
RIGHTS.
(a) At the Effective Time, each of the then outstanding
options to purchase shares of Liberty Digital Series A Common Stock (each, a
"Liberty Digital Option") issued by Liberty Digital pursuant to any stock plans
of Liberty Digital and any non-plan options to acquire share of Liberty Digital
Series A Common Stock issued by Liberty Digital pursuant to any option agreement
shall be assumed by Liberty Media and adjusted so as to be exercisable for the
number of shares of Liberty Media Series A Common Stock determined by
multiplying the number of underlying shares of Liberty Digital Series A Common
Stock on the Closing Date by the 0.25 exchange ratio, rounded down to the
nearest whole share. The exercise price per share of Liberty Media Series A
common stock issuable under each assumed stock option will be calculated by
dividing the exercise price per share of the Liberty Digital Option before the
Merger by the exchange ratio, rounded to the nearest whole cent. All other terms
of each assumed stock option shall in all material respects be the same as the
Liberty Digital Option immediately prior to the Closing Date, except that
references therein to Liberty Digital shall generally refer to the Surviving
Corporation.
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(b) At the Effective Time, each of the then outstanding stock
appreciation rights with respect to shares of Liberty Digital Series A Common
Stock (each, a "Liberty Digital SAR") issued by Liberty Digital pursuant to any
stock plans of Liberty Digital and any non-plan Liberty Digital SAR issued by
Liberty Digital pursuant to any agreement shall be assumed by Liberty Media and
adjusted so as to be exercisable with respect to shares of Liberty Media Series
A Common Stock. All other terms of each assumed Liberty Digital SAR shall in all
material respects be the same as the Liberty Digital SAR immediately prior to
the Closing Date, except that references therein to Liberty Digital shall
generally refer to the Surviving Corporation.
(c) The obligations with respect to all Liberty Digital
Options and Liberty Digital SARs shall be obligations assumed by Liberty Media
at the Effective Time. The issuance of shares of Liberty Media Series A Common
Stock underlying assumed Liberty Digital Options and Liberty Digital SARs will
have been registered, along with the issuance of the Liberty Media Shares, with
the Securities and Exchange Commission (the "SEC") by an effective registration
statement as a condition to the Closing as set forth in Section 9.2 herein.
SECTION 6.8 EXCHANGE OF SHARES.
(a) As soon as reasonably practicable after the Effective
Time, the Exchange Agent shall mail to each holder of record of a certificate or
certificates that, prior to the Merger, represented issued and outstanding
shares of Liberty Digital Series A Common Stock ("Certificates"): (i) a notice
of the effectiveness of the Merger and (ii) a letter of transmittal (which shall
state that delivery shall be effected, and risk of loss and title to the
Certificates shall pass, only upon delivery of the Certificates to the Exchange
Agent) with instructions for use in effecting the surrender and exchange of the
Certificates.
(b) Promptly following the surrender in accordance with such
instructions of a Certificate to the Exchange Agent, together with such letter
of transmittal (duly executed) and any other documents required by such
instructions or letter of transmittal, the Exchange Agent shall, subject to this
Section 6.8(c), cause to be distributed to the person in whose name such
Certificate shall have been issued (or, subject to this Section 6.8(c), such
person's designee):
(i) a certificate registered in the name of such
person (or, subject to this Section 6.8(c), such person's designee) representing
the number of whole shares of Liberty Media Series A Common Stock into which the
shares of Liberty Digital Series A Common Stock previously represented by the
surrendered Certificate shall have been converted in the Merger at the Effective
Time pursuant to this Article VI; and
(ii) payment (which shall be made by check) of any
cash payable in lieu of fractional shares of Liberty Media Series A Common Stock
pursuant to Section 6.6 herein. Each Certificate so surrendered shall forthwith
be canceled.
(c) In the event of a transfer of ownership of Liberty Digital
Series A Common Stock which is not registered in the transfer records of Liberty
Digital, certificates representing the proper number of whole shares of Liberty
Media Series A Common Stock may be issued (and cash in lieu of fractional shares
of Liberty Media Series A Common Stock may be paid) to the transferee if the
Certificate representing such shares surrendered to the Exchange
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Agent in accordance with this Section 6.8(b) is properly endorsed for transfer
or is accompanied by appropriate and properly endorsed stock powers and is
otherwise in proper form to effect such transfer, if the person requesting such
transfer pays to the Exchange Agent any transfer or other taxes payable by
reason of such transfer or establishes to the satisfaction of the Exchange Agent
that such taxes have been paid or are not required to be paid and if such person
establishes to the satisfaction of Liberty Media that such transfer would not
violate applicable federal or state securities laws.
(d) If any Certificate shall have been lost, stolen or
destroyed, upon the making of an affidavit of that fact by the person claiming
such Certificate to be lost, stolen or destroyed satisfactory to the Surviving
Corporation and complying with any other reasonable requirements imposed by the
Surviving Corporation, the Exchange Agent will cause to be delivered to such
person in respect of such lost, stolen or destroyed Certificate the number of
whole shares of Liberty Media Series A Common Stock and any cash in lieu of
fractional shares of Liberty Media Series A Common Stock to which such person is
entitled in respect thereof as determined in accordance with this Article VI.
The Surviving Corporation may, in its discretion, require the owner of such
lost, stolen or destroyed Certificate to give it a bond in such reasonable sum
as it may direct as indemnity against any claim that may be made against Liberty
Media or the Surviving Corporation with respect to the Certificate alleged to
have been lost, stolen or destroyed.
ARTICLE VII
IRS CLASSIFICATION
This Agreement is intended to constitute a "plan of
reorganization" within the meaning of Treasury Regulation Section 1.368-3(a).
The transactions contemplated by this Agreement are intended to qualify as a
tax-free reorganization pursuant to Section 368(a)(1)(B) of the Internal Revenue
Code of 1986, as amended.
ARTICLE VIII
APPRAISAL RIGHTS
Holders of Liberty Digital Series A Common Stock are entitled
to appraisal rights in the Merger under Section 262 of the DGCL. Any payment to
a holder of Liberty Digital Common Stock ordered by the Delaware Court of
Chancery pursuant to Section 262 of the DGCL shall be made by the Surviving
Corporation out of its own funds.
ARTICLE IX
CLOSING
SECTION 9.1 CLOSING.
Unless this Agreement shall have been terminated and the
transactions contemplated by this Agreement abandoned pursuant to the provisions
of Article X hereto, and subject to the satisfaction of all conditions set forth
in Section 9.2 (or waiver of such conditions
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to the extent such conditions may be waived), the closing of the transactions
contemplated by this Agreement (the "Closing") shall take place at the offices
of Liberty Media, 00000 Xxxxxxx Xxxxxxxxx, Xxxxxxxxx, Xxxxxxxx 00000, at a
mutually acceptable time and date (the "Closing Date").
SECTION 9.2 CONDITIONS TO CLOSING.
The obligations of the parties hereto to complete the
transactions provided for herein are conditioned upon each of the following:
(i) at the Closing and at the time of filing the
Certificate of Merger, Merger Sub shall own directly of record at least 90% of
the combined Liberty Digital Series A Common Stock and Liberty Digital Series B
Common Stock outstanding;
(ii) Liberty Media's registration statement relating
to the Merger shall be effective and shall not be subject to any stop order or
proceedings seeking a stop order;
(iii) the Closing shall not occur prior to the 20th
business day following the mailing of the notice/prospectus relating to the
Merger to holders of Liberty Digital Series A Common Stock;
(iv) Liberty Media shall have received all state
securities laws or blue sky permits and authorizations necessary, if any, to
issue the Liberty Media Shares;
(v) the Liberty Media Shares shall be authorized for
listing on the New York Stock Exchange, subject to official notice of issuance;
(vi) Liberty Media shall have obtained all required
consents and approvals from government authorities, if any; and
(vii) Liberty Media shall have received an opinion
from Xxxxx Xxxxx L.L.P. that the Merger will qualify for U.S. federal income tax
purposes as a reorganization under Section 368(a) of the Internal Revenue Code.
SECTION 9.3 DELIVERIES AT CLOSING.
(a) Liberty Media. At the Closing, Liberty Media shall deliver
to the appropriate party or parties stock certificates evidencing the Liberty
Media Shares, duly endorsed in blank or accompanied by stock powers duly
executed in blank, all in proper form for transfer pursuant to this Agreement.
(b) LMC Capital. At the Closing, LMC Capital shall deliver to
the appropriate party or parties stock powers duly executed in blank and in
proper form for transfer of the Liberty Media Shares pursuant to this Agreement.
(c) Liberty Programming. At the Closing, Liberty Programming
shall deliver to the appropriate party or parties stock powers duly executed in
blank and in proper form for transfer of the Liberty Media Shares pursuant to
this Agreement.
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(d) Liberty DMX. At the Closing, Liberty DMX shall deliver to
the appropriate party or parties:
(i) stock powers duly executed in blank and in proper
form for transfer of the Liberty Media Shares pursuant to this Agreement;
(ii) stock certificates evidencing all the shares of
Liberty Digital Series C Convertible Preferred Stock owned by Liberty DMX, all
in proper form for surrender and conversion into Liberty Digital Series B Common
Stock pursuant to this Agreement; and
(iii) stock powers duly executed in blank and in
proper form for transfer of all the shares of Liberty Digital Series A Common
Stock and Liberty Digital Series B Common Stock owned by Liberty DMX (including
the shares of Liberty Digital Series B Common Stock issued to Liberty DMX upon
conversion of the Liberty Digital Series C Convertible Preferred Stock as
provided in clause (ii) above), accompanied by stock powers duly executed in
blank, all in proper form for transfer of such shares pursuant to this
Agreement.
(e) LMC Music. At the Closing, LMC Music shall deliver to the
appropriate party or parties stock powers duly executed in blank and in proper
form for transfer of all the shares of Liberty Digital Series A Common Stock
owned by LMC Music, accompanied by stock powers duly executed in blank, all in
proper form for transfer of such shares pursuant to this Agreement.
(f) Merger Sub. At the Closing, Merger Sub shall deliver to
the appropriate party or parties stock certificates evidencing the shares of
capital stock of Merger Sub to be issued to Liberty DMX and LMC Music, pursuant
to this Agreement.
ARTICLE X
TERMINATION
SECTION 10.1 TERMINATION.
This Agreement may be terminated and the transactions
contemplated by this Agreement may be abandoned at any time prior to the
Effective Time (and whether before or after approval of the Board of Directors
or stockholders of Merger Sub) by Liberty Media for any reason.
SECTION 10.2 EFFECT OF TERMINATION.
In the event of termination of this Agreement as provided by
Section 10.1, this Agreement shall forthwith become void and the parties hereto
shall have no obligation or liability to each other with respect to the
transactions contemplated hereby.
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ARTICLE XI
MISCELLANEOUS
SECTION 11.1 NO THIRD-PARTY RIGHTS.
Nothing expressed or referred to in this Agreement is intended
or shall be construed to give any person or entity (including, without
limitation, any holder of a Liberty Digital Option or a Liberty Digital SAR)
other than the parties hereto any legal or equitable right, remedy or claim
under or with respect to this Agreement, or any provision hereof, it being the
intention of the parties hereto that this Agreement and all of its provisions
and conditions are for the sole and exclusive benefit of the parties to this
Agreement and for the benefit of no other person or entity.
SECTION 11.2 NOTICES.
All notices and communications hereunder shall be in writing
and shall be deemed to have been duly given if delivered personally or mailed,
certified or registered mail with postage prepaid, or sent by telegram or
confirmed facsimile, addressed to such party, c/o Liberty Media Corporation,
00000 Xxxxxxx Xxxxxxxxx, Xxxxxxxxx, Xxxxxxxx 00000 or to such other address (or
to the attention of such other person) as the parties may hereafter designate in
writing. All such notices and communications shall be deemed to have been
received on the date of delivery or the third business day after the mailing
thereof, except that any notice of a change of address shall be effective only
upon actual receipt thereof.
SECTION 11.3 ENTIRE AGREEMENT.
This Agreement constitutes the entire agreement among the
parties hereto and supersedes all prior agreements and understandings, oral and
written, among the parties hereto with respect to the subject matter hereof.
SECTION 11.4 AMENDMENT, MODIFICATION OR WAIVER.
Neither this Agreement nor any term hereof may be changed,
waived, discharged or terminated other than by agreement in writing signed by
the parties hereto. No waiver of any term, provision or condition of this
Agreement, whether by conduct or otherwise, in any one or more instance shall be
deemed or construed as a further or continuing waiver of any such term,
provision or condition of this Agreement or any other term, provision or
condition of this Agreement; but any party hereto may waive its rights in any
particular instance by written instrument of waiver.
SECTION 11.5 BINDING EFFECT; BENEFIT; SUCCESSORS AND ASSIGNS.
This Agreement shall inure to the benefit of and be binding
upon the parties hereto and their respective successors and assigns, provided
that this Agreement may not be assigned by any of the parties hereto without the
prior written consent of the other parties hereto.
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SECTION 11.6 SEVERABILITY.
It is the intention of the parties hereto that the provisions
of this Agreement shall be enforced to the fullest extent permissible under all
applicable laws and public policies, but that the unenforceability of any
provision hereof (or the modification of any provision hereof to conform with
such laws or public policies, as provided in the next sentence) shall not render
unenforceable or impair the remainder of this Agreement. Accordingly, if any
provision shall be determined to be invalid or unenforceable either in whole or
in part, this Agreement shall be deemed amended to delete or modify, as
necessary, the invalid or unenforceable provisions and to alter the balance of
this Agreement in order to render the same valid and enforceable, consistent (to
the fullest extent possible) with the intent and purposes hereof.
SECTION 11.7 SPECIFIC PERFORMANCE.
Each of the parties hereto hereby acknowledges that the
benefits to the other parties of the performance by such party of its
obligations to be performed under this Agreement at and after the Closing are
unique, that the other parties hereto are willing to enter into this Agreement
only upon performance by such party of such obligations and that monetary
damages may not afford adequate remedy for failure to perform any of such
obligations. Accordingly, each of the parties hereto hereby consents to specific
performance of its obligations hereunder to be performed at or after the Closing
and waives any requirement for securing or posting of any bond in connection
with the obtaining by the other party or parties of any injunctive or other
equitable relief to enforce its or their rights hereunder.
SECTION 11.8 FURTHER ASSURANCES.
Each of the parties hereto covenants and agrees to make,
execute, acknowledge and deliver such instruments, agreements, consents,
assurances and documents, and take all such actions, as any other party may
reasonably request and as may reasonably be required in order to effectuate the
purposes and intents of this Agreement and to carry out the terms hereof,
including, without limitation, to vest in Merger Sub, prior to the Effective
Time, the record ownership of all of the capital stock of Liberty Digital, other
than Liberty Digital Series D Preferred Stock, beneficially owned by the parties
hereto as of the Closing Date.
SECTION 11.9 MISCELLANEOUS.
The headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement. This Agreement constitutes the entire agreement, and supersedes
all prior agreements and understandings, both written and oral, between the
parties with respect to the subject matter hereof. This Agreement may be
executed in counterparts, each of which will be deemed an original, and all of
which together shall constitute one and the same instrument. This Agreement and
the legal relations among the parties hereto shall be governed in all respects,
including validity, interpretation and effect, by the laws of the State of
Delaware, without regard to the conflict of laws rules thereof.
[Signature page immediately follows.]
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and year first above written.
LIBERTY MEDIA CORPORATION
By: /s/ Xxxxxxxxx X. Xxxxxxxxx
--------------------------------------
Xxxxxxxxx X. Xxxxxxxxx
Senior Vice President
LMC CAPITAL LLC
By: /s/ Xxxxxxxxx X. Xxxxxxxxx
--------------------------------------
Xxxxxxxxx X. Xxxxxxxxx
Senior Vice President
LIBERTY PROGRAMMING COMPANY LLC
By LMC Capital LLC, its sole member
By: /s/ Xxxxxxxxx X. Xxxxxxxxx
---------------------------------------
Xxxxxxxxx X. Xxxxxxxxx
Senior Vice President
LIBERTY DMX, INC.
By: /s/ Xxxxxxxxx X. Xxxxxxxxx
---------------------------------------
Xxxxxxxxx X. Xxxxxxxxx
Senior Vice President
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LMC MUSIC, INC.
By: /s/ Xxxxxxxxx X. Xxxxxxxxx
-----------------------------------
Xxxxxxxxx X. Xxxxxxxxx
Senior Vice President
LDIG MERGER SUB, INC.
By: /s/ Xxxxxxxxx X. Xxxxxxxxx
-----------------------------------
Xxxxxxxxx X. Xxxxxxxxx
Senior Vice President
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