EXHIBIT 10.9
CONFORMED COPY
STANDSTILL AGREEMENT
This Standstill Agreement (this "AGREEMENT") is entered into as of
January 30, 2002, among UnitedGlobalCom, Inc., a Delaware corporation (formerly
known as New UnitedGlobalCom, Inc., "UNITED"), and Liberty Media Corporation and
Liberty Global, Inc. ("LIBERTY GLOBAL"), each of which is a Delaware
corporation, and Liberty UCOMA, LLC, a Delaware limited liability company
("LIBERTY UCOMA").
BACKGROUND
Pursuant to the Amended and Restated Agreement and Plan of
Restructuring and Merger, dated as of December 31, 2001 (the "MERGER
AGREEMENT"), among United, Liberty, Liberty Media International, Inc., a
Delaware corporation ("LMI"), Liberty Global, the Founders, UGC, Inc., a
Delaware corporation formerly known as UnitedGlobalCom, Inc. ("OLD UNITED"), et
al., Liberty, Liberty Global and Liberty UCOMA (as a "Contributing Party" under
the Merger Agreement) have acquired Beneficial Ownership of shares of Class C
Stock of United. As required by the Merger Agreement, the parties hereto are
entering into this Agreement.
AGREEMENT
In consideration of the foregoing premises and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
Section 1. CERTAIN DEFINITIONS.
In this Agreement, the following terms have the following meanings.
AFFILIATE. When used with reference to a specified Person, any Person
who directly or indirectly through one or more intermediaries, Controls, is
Controlled by, or is under common Control with, the Person specified, provided
that (i) no officer or director of a Person, or any Affiliate of such officer or
director, investing for his, her or its own account or otherwise acting in his,
her or its individual capacity, and no director of a Person, or any Affiliate of
such director, acting in his, her or its capacity as an officer, director,
trustee, representative or agent of a Person that is not an Affiliate of the
specified Person, and in each case not in concert with or at the direction or
request of such specified Person, shall be deemed to be an Affiliate of such
specified Person for purposes of this Agreement; (ii) no Liberty Party shall be
deemed to be an Affiliate of United and none of United and its Controlled
Affiliates shall be deemed to be an Affiliate of a Liberty Party and (iii) any
Person in which United, directly or indirectly, Beneficially Owns 50% or more of
the equity securities, without regard to voting power in the election of
directors, shall (without limiting the generality of this definition) be deemed
to be an Affiliate of United.
AGREEMENT. As defined in the preamble.
ASSUMED OPTIONS. Class B Options (as defined in the Merger Agreement)
that were granted by Old United prior to, and were assumed by United at, the
consummation of the United/New United Merger.
BENEFICIAL OWNERSHIP AND DERIVATIVE TERMS. As determined pursuant to
Rule 13d-3 and Rule 13d-5 under the Exchange Act and any successor regulation,
except that in determining Beneficial Ownership, without duplication, (i) equity
securities that may be acquired pursuant to Rights to acquire equity securities
that are exercisable more than sixty days after a date shall nevertheless be
deemed to be Beneficially Owned, (ii) Beneficial Ownership, if any, arising
solely as a result of being a party to a Transaction Agreement or the Merger
Agreement shall be disregarded and (iii) in the case of the Liberty Parties,
Beneficial Ownership, if any, by any Liberty Party of any securities
Beneficially Owned by any Controlling Principal, arising solely from the
existence of any contract, arrangement, understanding or relationship with one
or more Controlling Principals shall be disregarded.
BOARD. The Board of Directors of United.
BUSINESS DAY. Any day other than Saturday, Sunday and a day on which
banks are required or permitted to close in Denver, Colorado or New York, New
York.
CLASS A SECURITIES. Any Class A Stock or Rights to acquire Class A
Stock issued, granted or sold by United after the execution and delivery of this
Agreement, other than shares of Class A Stock issued pursuant to the exercise of
Rights to acquire Class A Stock that were outstanding immediately prior to the
execution and delivery of this Agreement.
CLASS A STOCK. The Class A common stock, $0.01 par value per share, of
United.
CLASS B EVENT. As defined in the United Charter as in effect on the
date hereof.
CLASS B STOCK. The Class B common stock, $0.01 par value per share, of
United.
CLASS C DIRECTOR. As defined in the United Charter as in effect on the
date hereof.
CLASS C STOCK. The Class C common stock, $0.01 par value per share, of
United.
COMMON STOCK. The Class A Stock, the Class B Stock and the Class C
Stock.
CONTRACT. Any note, bond, indenture, debenture, security agreement,
trust agreement, Lien, mortgage, lease, contract, license, franchise, permit,
guaranty, joint venture agreement, or other agreement, instrument,
understanding, commitment or obligation, oral or written.
CONTROL AND DERIVATIVE TERMS. The possession directly or indirectly of
the power to direct or cause the direction of the management and policies of
another Person, whether through the ownership of voting securities, by contract
or otherwise.
CONTROL PERSON. Each of (1) the Chairman of the Board of Liberty, (2)
the President and Chief Executive Officer of Liberty, (3) the Executive Vice
President and Chief Operating Officer of Liberty, (4) each of the directors of
Liberty, and (5) the respective family members, estates
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and heirs of each of the persons referred to in clauses (1) through (4) above
and any trust or other investment vehicle for the primary benefit of any of such
persons or their respective family members or heirs. "Family members" for this
purpose means the parents, descendants, stepchildren, step grandchildren, nieces
and nephews, and spouses of the specified person.
CONTROLLED AFFILIATE. When used with reference to a specified Person,
an Affiliate of such Person that such Person directly, or through one or more
intermediaries, Controls; PROVIDED THAT, (a) none of United and its Controlled
Affiliates shall be deemed to be a Controlled Affiliate of a Liberty Party and
(b) any Person in which United, directly or indirectly, Beneficially Owns 50% or
more of the equity securities, without regard to voting power in the election of
directors, shall (without limiting the generality of this definition) be deemed
to be a Controlled Affiliate of United.
CONTROLLING PRINCIPALS. As defined in the Stockholders Agreement.
CONTROLLING PRINCIPAL DIRECTOR. As defined in Section 3(b)(i).
CONVERSION EVENT. As defined in the United Charter as in effect on the
date hereof.
DESIGNATED PURCHASER. As defined in the Stockholders Agreement.
EQUITY SECURITIES. The Common Stock and any other voting securities
issued by United (other than preferred stock with customary limited voting
rights).
EXCHANGE ACT. The Securities Exchange Act of 1934, as amended, and the
rules and regulations thereunder.
FOUNDERS. As defined in the Stockholders Agreement.
FULLY DILUTED NUMBER. As defined within the definition of "Maximum
Percentage."
GOVERNMENTAL APPROVAL. Any notice to, filing with, or approval or
consent of a Government Authority required by applicable law with respect to any
action, including without limitation, the expiration or termination of any
applicable waiting period under the HSR Act.
GOVERNMENTAL AUTHORITY. Any U.S. federal, state or local or any foreign
court, governmental department, commission, authority, board, bureau, agency or
other instrumentality.
GROUP. As defined in Section 13(d) of the Exchange Act and the rules
and regulations thereunder, but the existence of the Transaction Agreements and
the Merger Agreement shall be disregarded in determining whether a Group exists.
HSR ACT. The Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as
amended.
HIGH-VOTE SECURITIES. As defined in Section 4(b).
LAW. Any U.S. federal, state or local or any foreign statute, code,
ordinance, decree, rule, regulation or general principle of common or civil law
or equity.
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LIBERTY. Liberty Media Corporation, a Delaware corporation, and any
successor (by merger, consolidation, transfer or otherwise) to all or
substantially all of its assets; provided that in the event a Transferee Parent
becomes the Beneficial Owner of all or substantially all of the Equity
Securities then Beneficially Owned by Liberty as to which Liberty has
dispositive control, the term "Liberty" shall mean such Transferee Parent and
any successor (by merger, consolidation, transfer or otherwise) to all or
substantially all of its assets.
LIBERTY DIRECTORS. As defined in Section 3(b)(i).
LIBERTY GLOBAL. As defined in the preamble.
LIBERTY PARTY EQUITY SECURITIES. Equity Securities Beneficially Owned
(and Rights pursuant to which such Equity Securities are Beneficially Owned)
from time to time by the Liberty Parties or any of their Controlled Affiliates.
LIBERTY PARTIES. Liberty, Liberty Global and Liberty UCOMA, and any
Permitted Transferee of a Liberty Party who hereafter becomes bound by or who is
required to become bound by this Agreement for so long as such Person is or is
required to be so bound or would be required to be bound. Liberty Global,
Liberty UCOMA and any such Permitted Transferee will each cease to be a Liberty
Party at such time as such Person is no longer a Controlled Affiliate of
Liberty.
LIBERTY UCOMA. As defined in the preamble.
LIEN. Means any mortgage, pledge, lien, encumbrance, charge, or
security interest.
LMI. As defined under "Background" on the first page of this Agreement.
MAXIMUM PERCENTAGE. That percentage of the outstanding Common Stock on
a fully diluted basis (assuming the exercise, conversion or exchange, as
applicable, of all outstanding Rights) (the "FULLY DILUTED NUMBER") that is
equal to the greater of (a) the sum of (i) the percentage of the Fully Diluted
Number that the Common Stock Beneficially Owned by the Liberty Parties and their
respective Controlled Affiliates represents immediately after the closing of
each of the transactions contemplated by the Merger Agreement, plus (ii) the
percentage of the Fully Diluted Number represented by the aggregate amount of
Common Stock Beneficial Ownership of which is acquired by any of the Liberty
Parties or their respective Controlled Affiliates (x) from the other parties to
the Stockholders Agreement (specifically including shares the Beneficial
Ownership of which is acquired from United (whether pursuant to the Stockholders
Agreement or otherwise, but without duplication of amounts included pursuant to
clause (a)(i)), as well as from the Founders, their Permitted Transferees and
Designated Purchasers) as and when each such acquisition of Beneficial Ownership
occurs, and (y) pursuant to the UPC Release (specifically including any
purchases of Class A Stock held by UPC), plus (iii) the percentage of the Fully
Diluted Number represented by up to and including an additional 25 million
shares of Common Stock as and when Beneficial Ownership thereof is acquired by
any of the Liberty Parties or their respective Controlled Affiliates (such
number to be appropriately adjusted for stock splits, stock dividends and other
similar transactions); provided, that the percentage determined in accordance
with this clause (a)(iii), when added to the percentage determined in accordance
with clause (a)(i), shall not exceed 81%, and (b) the sum of
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(A) 81%, plus (B) the percentage determined in accordance with clause (a)(ii)(x)
of this definition. If prior to the closing of any transaction referred to in
clause (a)(i) of the preceding sentence or any acquisition referred to in clause
(a)(ii) or (a)(iii) of the preceding sentence, United issues, grants or sells
any Equity Securities or Rights and such action alone or together with any
preceding or succeeding action gives rise to any purchase rights of any Liberty
Party under Section 7A or Section 7B of this Agreement or paragraph (h) of
Article Fourth of the United Charter, then in calculating the percentages of the
Fully Diluted Number that the Common Stock Beneficially Owned by the Liberty
Parties represents immediately after the closing of any such transaction or
acquisition referred to in clause (a) of the preceding sentence, the Liberty
Parties shall be assumed to have exercised such purchase rights in full.
MERGER AGREEMENT. As defined under "Background" on the first page of
this Agreement.
NEW UNITED COVENANT AGREEMENT. The Agreement Regarding Additional
Covenants as of the date hereof among United and the Liberty Parties.
NO WAIVER AGREEMENT. That certain No Waiver Agreement dated as of the
date hereof among Liberty, LMI and United.
OFFER. As defined in Section 6(a).
OFFEREE. As defined in Section 6(a).
OLD UNITED. As defined under "Background" on the first page of this
Agreement.
PERMITTED OPTIONS. Options to purchase a number of shares of Class B
Stock equal to (a) three million minus (b) the number of shares of Class B Stock
underlying the Assumed Options.
PERMITTED TRANSFEREES. As defined in the Stockholders Agreement.
PERSON. Person shall mean any individual, firm, corporation,
partnership, limited liability company, trust, joint venture, or other entity,
and shall include any successor (by merger or otherwise) of such entity.
PROPOSAL. As defined in Section 6(c).
PUBLIC OFFERING ELECTION. As defined in Section 7(h).
PUBLIC OFFERING NOTICE. As defined in Section 7(h).
RIGHTS. When used with respect to a specified Person, securities of
such Person (which may include equity securities) that (contingently or
otherwise) are exercisable, convertible or exchangeable for or into equity
securities of such Person (with or without consideration) or that carry any
right to subscribe for or acquire equity securities or securities exercisable,
convertible or exchangeable for or into equity securities of such Person.
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SECURITIES ACT. The Securities Act of 1933, as amended, and the rules
and regulations thereunder.
STOCKHOLDERS AGREEMENT. The Stockholders Agreement dated as of the date
hereof among United, the Liberty Parties, and certain other stockholders of
United.
SUBSIDIARY. When used with respect to any Person, (i) a corporation in
which such Person and/or one or more Subsidiaries of such Person, directly or
indirectly, owns capital stock having a majority of the voting power of such
corporation's capital stock to elect directors under ordinary circumstances, and
(ii) any other Person (other than a corporation) in which such Person and/or one
or more Subsidiaries of such Person, directly or indirectly, has (x) a majority
ownership interest or (y) the power to elect or direct the election of a
majority of the members of the governing body of such first-named Person.
TRANSACTION AGREEMENTS. As defined in the Stockholders Agreement.
TRANSFER. Any sale, exchange, pledge (except a pledge in compliance
with this Agreement and the Stockholders Agreement) or other transfer, directly
or indirectly, of Class B Stock or Class C Stock or, when the context requires,
Class A Stock (including through relinquishment of Control of a Person holding
shares of such stock), provided, however, that none of the following shall
constitute a Transfer: (i) a conversion of Class C Stock into Class B Stock or
of Class B Stock or Class C Stock into Class A Stock, (ii) any transfer pursuant
to any tender or exchange offer approved by a majority of the Board, (iii) a
transfer by operation of law in connection with any merger, consolidation,
statutory share exchange or similar transaction involving United, (iv) a
transfer pursuant to a plan of liquidation of United that has been approved by a
majority of the Board or (v) in the case of Liberty, any transaction or series
of related transactions involving the direct or indirect transfer (or
relinquishment of Control) of a Person that holds Liberty Party Equity
Securities (a "TRANSFERRED PERSON"), if (x) immediately after giving effect to
such transaction or the last transaction in such series, voting securities
representing at least a majority of the voting power of the outstanding voting
securities of such Transferred Person or its successor in such transaction or of
any ultimate parent entity (within the meaning of the HSR Act) of such
Transferred Person or its successor (a "TRANSFEREE PARENT") are Beneficially
Owned by Persons who prior to such transaction were Beneficial Owners of a
majority of, or a majority of the voting power of, the outstanding voting
securities of Liberty (or of any publicly traded class or series of voting
securities of Liberty designed to track the economic performance of a specified
group of assets or businesses) or who are Control Persons or any combination of
the foregoing and (y) such Transferee Parent becomes a party to this Agreement
and the Stockholders Agreement with the same rights and obligations as Liberty.
TRANSFERRED PERSON. As defined in the definition of "Transfer."
TRANSFEREE PARENT. As defined in the definition of "Transfer."
UNITED. As defined in the preamble.
UNITED BYLAWS. The Bylaws of United, as such Bylaws may be amended from
time to time in accordance with the United Charter, such Bylaws and this
Agreement.
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UNITED CHARTER. The Restated Certificate of Incorporation of United as
filed with the Secretary of State of the State of Delaware on December 31, 2001,
as it may be amended from time to time.
UNITED/NEW UNITED MERGER. As defined in the Merger Agreement.
UPC. United Pan-Europe Communications, N.V., a company organized under
the laws of The Netherlands.
UPC RELEASE. Section 3 of and Exhibit A to the Release, dated as of
February 22, 2001, among UPC, Old United, Liberty and LMI (but no other
provisions of such Release).
VOTING AGREEMENT. That certain Voting Agreement dated as of the date
hereof among United and the Founders.
VOTING POWER. As of any date of determination, the aggregate number of
votes of all outstanding Equity Securities and (without duplication) Equity
Securities issuable as of such date upon the exercise, conversion or exchange of
all Rights outstanding.
Section 2. ACQUISITION OF EQUITY SECURITIES OR RIGHTS; OTHER COVENANTS.
(a) (i) Except as specifically permitted by this Agreement
(including Section 2 and Section 6), the Liberty Parties shall not, and shall
not suffer or permit any of their respective Controlled Affiliates to, acquire
Beneficial Ownership of any Common Stock if immediately after such acquisition
the Common Stock Beneficially Owned, in the aggregate, by the Liberty Parties
and their Controlled Affiliates would exceed the Maximum Percentage.
(ii) No Liberty Party shall be in breach of
Section 2(a)(i) solely because the Liberty Parties and their respective
Controlled Affiliates become the Beneficial Owners of a number of shares of
Common Stock exceeding the Maximum Percentage after and solely because of any
action taken by United or any Affiliate of United (including the repurchase or
redemption by United or any of its Affiliates of Equity Securities or Rights,
the issuance of Equity Securities or Rights, including pursuant to an offer by
United or any of its Affiliates to its security holders of rights to subscribe
for Equity Securities, the expiration of Rights, or the declaration by United of
a dividend in respect of any class of Equity Securities payable at the election
of such security holders either in cash or in Equity Securities) in respect of
which no Liberty Party or Controlled Affiliate thereof shall have taken any
action except as permitted to be taken by holders of Equity Securities or Rights
in their capacities as such (including as a result of action taken in accordance
with Section 6 hereof or an election not to tender any of such Liberty Party's
Equity Securities pursuant to any such offer to repurchase, an election to
purchase Equity Securities or Rights pursuant to any such subscription offer or
an election to be paid a dividend in respect of the Liberty Party Equity
Securities in Equity Securities or Rights instead of cash).
(b) Except as contemplated by the Stockholders Agreement or
specifically permitted by this Agreement (including Section 6), each Liberty
Party shall not, and such Liberty Party shall not permit any of its Controlled
Affiliates to:
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(i) solicit proxies with respect to Equity
Securities or become a participant in a
solicitation of proxies with respect to
Equity Securities, in either case within the
meaning of Regulation 14A under the Exchange
Act (or any successor regulation), except
that any director of United may solicit
proxies on behalf of United or be a
participant with United in a solicitation of
proxies to be voted in accordance with the
recommendation of the Board in each case;
(ii) form, join or participate in any Group with
respect to Equity Securities with any holder
of Equity Securities that is not a Liberty
Party or Controlled Affiliate thereof if the
Equity Securities Beneficially Owned by such
Group would exceed the Maximum Percentage,
unless the Controlling Principals are
members of such Group;
(iii) deposit any Liberty Party Equity Securities
in any voting trust or subject any Liberty
Party Equity Securities to a voting
agreement or other voting arrangement, in
any such case as a method of evading or
attempting to evade the requirements of this
Agreement;
(iv) solicit or encourage an Offer from a Person
other than a Liberty Party, a Founder,
United or any Controlled Affiliate of any of
the foregoing Persons; or
(v) call a meeting of United's stockholders,
make a proposal for consideration by
United's stockholders (except to the Board),
or vote or consent to an amendment of
United's bylaws without the consent of the
Board (except as permitted by Section 3).
(c) If a Controlled Affiliate of a Liberty Party that has not
previously become a party to this Agreement acquires Beneficial Ownership of any
Equity Securities after the date hereof, such Liberty Party shall promptly cause
such Controlled Affiliate to deliver to United an undertaking to be bound by all
provisions of the Stockholders Agreement and this Agreement applicable to the
Liberty Party.
Section 3. VOTING, APPRAISAL RIGHTS.
(a) Each Liberty Party shall cause all of such Liberty Party's
Equity Securities to be present at all meetings of the stockholders of United at
which such Liberty Party shall be entitled to vote and as to which notice has
been properly given in accordance with the applicable provisions of the United
Charter and United Bylaws, or shall cause proxies to be present at all such
meetings, so as to enable all of such Liberty Party's Equity Securities to be
counted for quorum purposes. Except for (A) those matters as to which a Liberty
Party or the Class C Directors or Liberty Directors have approval rights
pursuant to this Agreement, the Stockholders Agreement or the United Charter and
(B) any matter that, pursuant to the New United Covenant Agreement, is required
to be approved by Liberty, if such approval has not been obtained, or
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that, by the terms of Section 3.12 of the United Bylaws, is required to be
reviewed, voted upon and approved by the Board or a committee thereof, if such
matter has not been reviewed, voted upon and approved by the required vote of
the Board or a committee thereof, in any such case prior to the time such matter
is presented to the stockholders of United for their approval, each Liberty
Party will vote its Common Stock (i) with respect to any matter submitted for
approval of stockholders of United (other than those referred to in clauses (ii)
and (iii) below), in such Liberty Party's sole discretion, either (x) in the
manner recommended by a majority of the Board or (y) in the same proportion as
the holders of the remaining Common Stock vote with respect to such matter, (ii)
against any merger, consolidation, recapitalization, dissolution or sale of all
or substantially all of the assets of United not approved by the Board, and
(iii) with respect to the election or removal of directors (x) following the
occurrence of a Class B Event, as provided in Section 3(b) below, and (y)
otherwise, in its sole discretion. Notwithstanding the foregoing, the Liberty
Parties will be entitled to vote their Common Stock in favor of any proposal to
approve or necessary to implement the transactions expressly contemplated by the
Transaction Agreements, whether or not approval is recommended by the Board. No
Liberty Party will exercise appraisal rights as to any matter.
(b) Following the occurrence of a Class B Event,
(i) The Liberty Parties shall have the right to
nominate four members of the Board or, if
greater, such number of members of the Board
(rounded up to the next whole number) equal
to 33 1/3% of the then-authorized number of
members of the Board (each such nominee, a
"LIBERTY DIRECTOR"); pursuant to the Voting
Agreement, the Controlling Principals will
have the right to nominate four members of
the Board or, if greater, such number of
members of the Board (rounded up to the next
whole number) equal to 33 1/3% of the
then-authorized number of members of the
Board (each such nominee, a "CONTROLLING
PRINCIPAL DIRECTOR"); and the Board will
nominate the remaining members of the Board.
(ii) The Liberty Parties will vote or cause to be
voted all Equity Securities owned by them
(or with respect to which they have the
right to vote or direct the voting) that
have the right to vote generally in the
election of directors for the election to
the Board of those persons nominated in
accordance with this Section 3(b) and
Section 3(c) and will not seek the removal
of any director (other than a Liberty
Director) except for cause; provided that,
if the Controlling Principals request that
the Liberty Parties vote in favor of the
removal of any Controlling Principal
Director, the Liberty Parties will vote or
cause to be voted all Equity Securities
owned by them (or with respect to which they
have the right to vote or direct the voting)
that have the right to vote on such matter
in favor of the removal of such Controlling
Principal Director.
(iii) The approval of the Liberty Directors shall
be required for all matters set forth in
paragraph (b) of Article Fifth of the United
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Charter as in effect on the date hereof,
without regard to any limitation that would
otherwise apply as a result of the Class C
Stock ceasing to be outstanding.
(c) United shall take all necessary or desirable action
(including, without limitation, nominating the Liberty Directors) in order to
cause the Board to have the constituency provided for in Section 3(b) and to
give effect to this Section 3. In the absence of any nomination by the Liberty
Parties of a Liberty Director, the person or persons previously nominated by the
Liberty Parties and then serving shall be re-nominated if still eligible to
serve as provided herein. The Liberty Parties may request, and vote in favor of,
the removal of any Liberty Director, with or without cause. The Liberty Parties
will have the right to nominate a person to fill any vacancy on the Board
created by the resignation, removal, incapacity or death of any Liberty
Director. Pursuant to the Voting Agreement, the Controlling Principals will have
the right to nominate a person to fill any vacancy on the Board created by the
resignation, removal, incapacity or death of any Controlling Principal Director.
Section 4. CERTAIN UNITED COVENANTS.
(a) If any consents, approvals, waivers or other action by, or
notices to, filings with or applications or submissions to, any Governmental
Authority or other third party are needed for any Liberty Party or any
Controlled Affiliate of a Liberty Party to exercise any rights under this
Agreement, any other Transaction Agreement or the United Charter (including the
purchase rights and approval rights of the holders of Class C Stock set forth
therein) or for the exercise of the approval rights of the Class C Directors or
Liberty Directors under the United Charter, this Agreement and the New United
Covenant Agreement, respectively, United shall cooperate with Liberty and use
its best commercially reasonable efforts to obtain and assist Liberty in
obtaining the necessary consents, approvals, waivers and other actions, and
making the necessary notices, filings, applications and submissions.
(b) United will not issue, grant or sell any shares of Class B
Stock, any Equity Securities convertible into or exercisable or exchangeable for
Class B Stock (contingently or otherwise) or that have a greater vote per share
(on an as-converted basis or otherwise) than the Class A Stock (whether
generally, in the election of directors or generally other than in the election
of directors) (collectively, "HIGH-VOTE SECURITIES") or any Rights to acquire
any of the foregoing, other than to a Liberty Party or Controlled Affiliate
thereof, unless and until the Class C Stock has become convertible in full into
Class B Stock, except that (x) United may issue up to an aggregate of three
million shares of Class B Stock upon exercise of Assumed Options and Permitted
Options, and (y) United may, on majority vote of the Board and compliance with
applicable legal requirements, issue shares of a series of its preferred stock
convertible into Class B Stock, but with no other conversion rights, no voting
rights other than the limited voting rights customary in preferred stocks, and
no other special rights, provided that such convertible preferred stock shall
not be convertible into Class B Stock until the Class C Stock has become fully
convertible into Class B Stock, and the aggregate number of shares of Class B
Stock issuable upon conversion of all such preferred stock and the exercise of
the Assumed Options and the Permitted Options shall be less than the number of
shares that, if issued in one or more transactions following the occurrence of a
Conversion Event, would entitle the Liberty Parties to exercise the purchase
rights set forth in Section 7A (it being understood that such issuances will
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be taken into account in determining the Liberty Parties' entitlement to
exercise such purchase rights).
(c) United will not issue, grant or sell any options
exercisable for Class B Stock other than the Permitted Options without Liberty's
prior consent.
Section 5. DISPOSITIONS OF EQUITY SECURITIES.
(a) No Liberty Party shall Transfer or permit any of its
Controlled Affiliates to Transfer Beneficial Ownership of any Equity Securities,
unless the Transfer is (i) a Transfer to Liberty or a Controlled Affiliate of
Liberty that is or becomes a party to this Agreement in accordance with Section
2(c); (ii) a Transfer of Class A Stock to one or more underwriters in connection
with a bona fide public offering registered under the Securities Act; (iii) a
Transfer to a Founder or Designated Purchaser pursuant to Section 4 of the
Stockholders Agreement, provided that the transferee, if other than a Founder,
delivers to United an undertaking to be bound by all provisions of the
Stockholders Agreement and, in the case of a Designated Purchaser that is not a
Permitted Transferee, this Agreement; (iv) a Transfer pursuant to Section 7 or 8
of the Stockholders Agreement; or (v) a Transfer of Class A Stock that otherwise
complies with the terms of the Stockholders Agreement, provided that, in the
case of a Transfer pursuant to clause (ii) or this clause (v) other than to an
Affiliate, the transferring Liberty Party has no reason to believe that any
Person or Group would hold as a result of such a Transfer of Beneficial
Ownership more than ten percent of the Voting Power in the election of directors
as of the date of such Transfer.
(b) The Liberty Parties may pledge or grant a security
interest in Equity Securities to a financial institution to secure a bona fide
loan made to a Liberty Party or in connection with a hedging transaction with a
financial institution, so long as the Liberty Party complies with Section 6(b)
of the Stockholders Agreement.
(c) Any attempted Transfer in violation of this Agreement
shall be void.
Section 6. OFFERS FOR UNITED.
(a) If any Person shall make an offer (an "OFFER"): (i) to
acquire from United or from one or more stockholders thereof (by tender or
exchange offer or other public offer), or both (the "OFFEREE"), Equity
Securities of United, (ii) to acquire all, or substantially all, the assets of
United, or (iii) to effect a merger, consolidation, statutory share exchange or
similar transaction between or involving United and another Person, then United
shall give Liberty notice of such Offer promptly upon receipt by United thereof
or, if such disclosure of the existence or terms of such Offer is prohibited by
the terms thereof or if counsel for United determines that such disclosure prior
to a public announcement of such Offer may violate or result in the violation of
applicable United States securities laws, promptly after the public announcement
of such Offer. In no event will United give Liberty notice of such Offer less
than ten days prior to acceptance of such Offer.
(b) If any such Offer is made or proposed to an Offeree and
not rejected within five days, any Liberty Party or an Affiliate thereof may
propose a competing offer to the Board and the Board shall in the exercise of
its fiduciary duties consider in good faith waiving
11
any provisions of this Agreement that would restrict actions that might be taken
by a Liberty Party or its Affiliates in support of such competing offer or the
transactions contemplated thereby.
(c) If United proposes (a "PROPOSAL") to effect a sale of all
or substantially all of the assets of United or a merger, consolidation,
statutory share exchange or similar transaction between or involving United and
another Person or to issue in any transaction Class B Stock in an amount such
that the Liberty Parties' purchase rights would not apply to such issuance
(whether as a result of clause (h)(ii) of Article Fourth of the United Charter
or Section 7A(d) of this Agreement), then United shall give Liberty notice of
such Proposal and, prior to taking any action to effectuate the same, United
shall give Liberty the opportunity to propose (or to cause an Affiliate of
Liberty to propose) an alternative transaction to the Board. If Liberty or an
Affiliate thereof proposes an alternative transaction to the Proposal to the
Board, the Board shall in the exercise of its fiduciary duties consider in good
faith waiving any provisions of this Agreement that would restrict actions that
might be taken by Liberty or its Affiliates in support of such alternative
transaction.
(d) United shall not enter into any agreement or make any
covenant that would preclude it from complying with this Section 6.
Section 7A. PURCHASE RIGHTS -- HIGH-VOTE SECURITIES.
(a) If, following the occurrence of a Conversion Event, United
issues, grants or sells any High-Vote Securities (including upon conversion,
exercise or exchange of previously issued Rights) and after giving effect
thereto, together with any prior issuances of Class B Stock with respect to
which the Liberty Parties did not have any purchase rights pursuant to this
Section 7A, including any issuance of Class B Stock or other High-Vote
Securities contemplated by Section 4(b) (which issuance for purposes of this
Section 7A shall be deemed to have occurred as of the later of the actual
issuance of such Class B Stock or other High-Vote Securities and immediately
after the occurrence of a Conversion Event), the combined voting power (whether
in the election of directors or otherwise) of the Liberty Parties' Equity
Securities is equal to or less than 90% of the combined voting power thereof
immediately prior to either such issuance or the first such issuance (or deemed
issuance), the Liberty Parties will be entitled, subject to applicable legal
requirements (which United will use its best commercially reasonable efforts to
cause to be satisfied or waived), to acquire from United additional shares of
Class B Stock, in the manner provided in this Section 7A, in an amount
sufficient to restore the combined voting power of the Equity Securities owned
by the Liberty Parties to 100% of the combined voting power of the Liberty
Parties' Equity Securities immediately prior to either such issuance or the
first such issuance or deemed issuance (whichever is greater, in the case of
multiple issuances) (appropriately adjusted for other acquisitions or
dispositions of Equity Securities by the Liberty Parties following such first
issuance or deemed issuances). For purposes of this Section 7A, the voting power
of the Liberty Parties' Equity Securities shall in all cases be calculated as if
any High-Vote Securities that are convertible into, or exercisable or
exchangeable for, Class B Stock had been converted into or exercised or
exchanged for Class B Stock.
12
(b) The Liberty Parties will be entitled to restore their
voting power in United as provided above by, at their election:
(i) subject to applicable Law and listing
requirements, surrendering shares of Class A
Stock in exchange for Class B Stock on a
one-for-one basis;
(ii) purchasing from United additional shares of
Class B Stock for a purchase price per
share, payable in cash or such other form of
consideration as may be acceptable to
United, equal to (x) the issue price per
share of the Class B Stock equivalent of the
High-Vote Securities so issued (which if
paid other than in cash or shares of Class A
Stock shall be the fair market value of the
consideration so paid) or (y) with respect
to any High-Vote Securities that were issued
in exchange for shares of Class A Stock, the
average of the Closing Prices (as defined in
the United Charter as in effect on the date
hereof) per share of the Class A Stock for
the ten consecutive trading days preceding
(A) the date on which the additional shares
of Class B Stock are purchased or (B) the
date on which such High-Vote Securities were
issued, whichever yields the lower price, in
each case appropriately adjusted to reflect
the effect of any stock splits, reverse
splits, combination, stock dividends or
other events affecting the Class B Stock; or
(iii) any combination of the foregoing.
(c) If the Liberty Parties become entitled to acquire
additional Class B Stock by purchase or exchange pursuant to the purchase rights
contemplated by this Section 7A, United shall provide notice of such entitlement
to Liberty within five Business Days after the issuance of any High-Vote
Securities that alone or together with any prior issuances has reduced the
voting power of the Liberty Parties' Equity Securities by ten percent or more.
The right of the Liberty Parties to acquire additional Class B Stock shall then
be contingent upon Liberty's (i) delivering a notice to United within ten days
after receipt of United's notice, in which notice Liberty states that it or one
or more other Liberty Parties or Controlled Affiliates will acquire additional
Class B Stock pursuant to its purchase rights, and (ii) tendering the applicable
consideration for such additional Class B Stock within 30 days after the later
of receipt by Liberty of United's notice and the date of the issuance of
High-Vote Securities that has reduced the voting power of the Liberty Parties'
Equity Securities by ten percent or more (subject to extension for up to 60
additional days if required to obtain Governmental Approval or for any
applicable waiting periods to expire or terminate).
(d) Notwithstanding the foregoing, if United issues Class B
Stock in any transaction in an amount such that, immediately following such
issuance, the Persons who were holders of outstanding Equity Securities
immediately prior to such issuance of Class B Stock then hold in the aggregate
less than 30 percent of the voting power of United's outstanding Equity
Securities in the election of directors generally, then the Liberty Parties will
not have a right to restore or maintain their voting power in United pursuant to
such purchase rights.
13
Section 7B. PREEMPTIVE RIGHTS -- CLASS A SECURITIES.
(a) If at any time after the execution and delivery of this
Agreement United issues, grants or sells any Class A Securities, the Liberty
Parties shall have the right, subject to applicable legal requirements (which
United will use its best commercially reasonable efforts to cause to be
satisfied or waived), but not the obligation, to acquire from United a portion
of such Class A Securities up to an amount sufficient to permit the Liberty
Parties to maintain the percentage of the total outstanding Common Stock
represented by the Liberty Parties' Equity Securities immediately prior to the
issuance of such Class A Securities, assuming for purposes of calculating such
percentage that all Rights, if any, constituting Class A Securities held by the
Liberty Parties or to be issued, granted or sold in such transaction have been
duly converted, exchanged or exercised in full (whether or not then convertible,
exchangeable or exercisable). If United desires to issue any Class A Securities,
it will first give written notice (an "ISSUANCE NOTICE") thereof to the Liberty
Parties stating the number of Class A Securities proposed to be issued, granted
or sold, the date such Class A Securities are proposed to be issued, granted or
sold (which date shall be no more than 60 days nor less than 20 days after the
date such Issuance Notice is delivered to Liberty), the total per share
consideration to be received by United upon issue, grant or sale of such Class A
Securities (which consideration may, in the case of an underwritten public
offering for cash of Class A Stock or Rights convertible into or exchangeable or
exercisable for Class A Stock, may be expressed as a range of per share prices
(provided that such range shall be no more than the lesser of (A) 50% of the
lowest price in such range and (B) $5 per share)) and any other material terms
of the proposed transaction. Within 20 days following receipt of an Issuance
Notice, any Liberty Party may exercise its rights under this Section 7B by
giving written notice (a "PREEMPTION NOTICE") to that effect to United, which
notice shall specify the maximum number of Class A Securities that such Liberty
Party elects to purchase. Failure to deliver a Preemption Notice within such
20-day period will constitute a waiver of the rights granted by this Section 7B
as to the particular issuance of Class A Securities specified in the Issuance
Notice.
(b) The per share price to be paid upon exercise of the rights
granted under this Section 7B with respect to any issuance, grant or sale of
Class A Securities shall be the lower of the lowest per share consideration at
which Class A Securities are issued, granted or sold in such issuance and the
consideration per share specified in the applicable Issuance Notice. The
consideration for which Class A Securities are offered or proposed to be offered
will be determined as follows: (i) in case of the proposed issuance of Class A
Securities for cash, the consideration per share will be the amount of cash per
share to be received by United after any underwriting discounts and (ii) in the
case of a proposed issuance of Class A Securities in whole or in part for
consideration other than cash, the value of the consideration other than cash
will be the fair market value of that consideration. The purchase price shall be
payable in cash or such other form of consideration as may be reasonably
acceptable to United, in an amount equal to the price per share of the Class A
Securities so issued (which if paid other than in cash shall be the fair market
value of the consideration so paid).
(c) Upon delivery of a Preemption Notice in accordance with
Section 7B(a), United and the Liberty Parties delivering such Preemption Notice
will enter into a purchase and sale agreement pursuant to which United will be
obligated to sell and such Liberty Parties will be obligated to buy the Class A
Securities specified in such Preemption Notice for the consideration
14
per share determined in accordance with Section 7B(b). The parties will make
representations and warranties customary for similar stock purchase
transactions, including, in the case of United, representations that all filings
made by it pursuant to the Exchange Act and the Securities Act are complete and
accurate in all material respects, that the most recent financial statements
provided by United to Liberty pursuant to Section 2(e) of the New United
Covenant Agreement fairly present the financial condition and results of
operations of United and its subsidiaries as of the dates and for the periods
covered thereby and that United has no material undisclosed liabilities. There
shall be no conditions to the parties' obligation to close such purchase and
sale other than (1) the closing of the issuance, grant or sale of the balance of
the Class A Securities covered by the Issuance Notice, (2) the absence of any
material breach of any of the representations and warranties described above,
assuming such representations and warranties had been made both on the date of
the Issuance Notice and on the closing date of such purchase and sale agreement,
and (3) in the case of the Liberty Parties' obligation to close, (A) the
issuance, grant or sale of the balance of the Class A Securities specified in
the Issuance Notice being on the terms specified therein (including, in the case
of an underwritten public offering for cash of Class A Stock or Rights, the
final price of such public offering being within the range set forth in the
Issuance Notice) and (B) the issuance, grant or sale of such Class A Securities
occurring within 20 days before or after the date specified therefor in the
Issuance Notice.
(d) Each issuance of Class A Securities to a Liberty Party
must be on terms not less favorable to such Liberty Party than the most
favorable terms on which United issues or proposes to issue in the transaction
in connection with which the preemptive right is being exercised Class A
Securities to any other Person (without discrimination based on differences in
the number or amount of Class A Securities to be acquired). Without limiting the
generality of the immediately preceding sentence, (i) each Liberty Party must be
given the same options and rights of election, if any, as to the kind(s) or
amount(s) of consideration to be paid or delivered for Class A Securities as any
other purchaser is given or was proposed to be given in the Issuance Notice and
(ii) the purchase price to be paid by each Liberty Party upon exercise of its
rights under this Section 7B will be paid upon terms which are not less
favorable than those on which the Class A Securities are sold to any other
purchaser, unless those terms provide for payment in a manner which could not
reasonably be duplicated by any Liberty Party, such as the transfer of specific
property to United, in which event such payment will be in cash or such other
form of consideration as may be reasonably acceptable to United, equal to the
price per share of the Class A Securities so issued (which if paid other than in
cash shall be the fair market value of the consideration so paid). The giving of
an Issuance Notice shall constitute the representation and warranty by United to
each Liberty Party that (A) the proposed issuance is not subject to conditions,
contingencies or material terms not disclosed in the Issuance Notice or in the
accompanying documents delivered therewith; and (B) neither the amount or kind
of consideration offered by any other purchaser of the Class A Securities nor
any other terms of the proposed issuance or of any other transaction or proposed
transaction with such purchaser or any of its Affiliates have been established
for the purpose of circumventing, increasing the cost of exercising or otherwise
impairing the Liberty Parties' preemptive rights under this Section 7B.
(e) Notwithstanding the foregoing, the Liberty Parties will
not be entitled to acquire Class A Securities pursuant to this Section 7B with
respect to (i) any issuance or sale of Class A Securities in connection with the
acquisition of a business (A) from a third party that is not an Affiliate of
United or of any Founder and (B) that is directly related to the then existing
15
businesses conducted by United and its Controlled Affiliates, (ii) any issuance
or grant of options to purchase shares of Class A Stock to employees of United
pursuant to an employee benefit plan approved by the Board, but only to the
extent that the percentage of the total outstanding Class A Stock issued and
issuable pursuant to all options to purchase shares of Common Stock granted
pursuant to all such employee benefit plans (irrespective of when such options
were issued) does not exceed 10% of the total outstanding Common Stock of
United, (iii) Equity Securities issued as a dividend to all holders of Equity
Securities or upon any subdivision or combination of all shares of Equity
Securities, or (iv) any issuance of Class A Stock pursuant to the exercise of
Rights as to which the Liberty Parties shall have been afforded the opportunity
to exercise their preemptive rights pursuant to this Section 7B.
(f) If the Liberty Parties waive or are deemed to have waived
the preemptive rights granted under this Section 7B with respect to any proposed
issuance of Class A Securities specified in an Issuance Notice, then United
shall be free to issue, sell or grant the Class A Securities described in such
Issuance Notice without the participation of any Liberty Party; provided that
such issuance, sale or grant closes within 60 days after the date of the
applicable Issuance Notice and is on terms no more favorable to any purchaser
than the terms proposed in such Issuance Notice. United shall not issue, sell or
grant any Class A Securities after any such 60 day period without again
complying with this Section 7B. The provisions of this Section 7B shall apply
successively to each and every issuance of Class A Securities.
Section 8. REPRESENTATIONS AND WARRANTIES.
Each of the Liberty Parties, severally and not jointly, on the one
hand, and United, on the other, represent and warrant to each other as of the
date of this Agreement as follows:
(a) Such party has the right, power, legal capacity and
authority to enter into and perform its obligations under this Agreement, and
this Agreement constitutes such party's valid and binding obligation,
enforceable in accordance with its terms, subject, as to enforceability, to
applicable bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and similar laws affecting creditors' rights and remedies generally,
and to general principles of equity, including principles of commercial
reasonableness, good faith and fair dealing (regardless of whether enforcement
is sought in a proceeding at law or in equity).
(b) Such party has obtained all authorizations, permits,
approvals or consents of any Persons, including all authorizations, permits,
approvals or consents of any Governmental Authorities, necessary to enter into
and perform its obligations under this Agreement, except as would not,
individually or in the aggregate, adversely affect such party's ability to
perform its obligations under this Agreement.
(c) This Agreement and the transactions it contemplates do not
conflict with any applicable Law or any agreement to which it is a party or
constitute a default under any such agreement, except as would not, individually
or in the aggregate, adversely affect such party's ability to perform its
obligations under this Agreement.
16
Section 9. LEGEND.
(a) United shall cause a legend substantially similar to the
following effect to be placed on each certificate representing any Equity
Securities or Rights issued to each Liberty Party or its Affiliates:
"The securities represented by this certificate are subject to
a Stockholders Agreement and a Standstill Agreement, each
dated as of January 30, 2002, copies of which are available
from UnitedGlobalCom, Inc. upon request, and any sale, pledge,
hypothecation, transfer, assignment or other disposition of
such securities is subject to such Stockholders Agreement and
Standstill Agreement."
(b) Upon surrender to United of any certificate representing
any Equity Securities or Rights disposed of by a Liberty Party in a transaction
described in Section 5(a)(ii) or (v), or in clauses (ii), (iii) or (iv) of the
definition of Transfer in Section 1, United shall promptly cause to be issued
(i) to the transferee or transferees of such Equity Securities or Rights one or
more certificates without the legend set forth in Section 9(a) and (ii) to the
holder of Equity Securities or Rights represented by such certificates so
surrendered one or more certificates representing such Equity Securities or
Rights, if any, as shall not have been so disposed of, with the legend set forth
in Section 9(a). Upon termination of this Agreement pursuant to Section 11 below
and the surrender to United of any certificate representing Equity Securities or
Rights, United shall cause to be issued to the holder of such Equity Securities
or Rights one or more certificates without the legend set forth in Section 9(a).
Section 10. REMEDIES. Each of the parties acknowledges and agrees that
in the event of any breach of this Agreement, the nonbreaching party would be
irreparably harmed and could not be made whole by monetary damages. Accordingly,
the parties to this Agreement, in addition to any other remedy to which they may
be entitled hereunder or at law or in equity, shall be entitled to compel
specific performance of this Agreement.
Section 11. TERMINATION. The provisions of this Agreement other than
Sections 4, 7A and 7B will expire on June 25, 2010, provided that this Agreement
will terminate in its entirety (except as provided in the following sentence) at
such time (whether earlier or later) as the Stockholders Agreement terminates in
accordance with its terms or by the mutual consent of the Controlling Principals
and Liberty. United's obligations under Section 9(b) shall survive the
termination of this Agreement.
Section 12. NOTICES. All notices, requests, demands and other
communications required or permitted hereunder shall be in writing, shall be
deemed to have been duly given when delivered personally or, sent by telecopy,
or recognized service providing for guaranteed delivery, addressed as follows:
17
(a) If to United, to it at:
UnitedGlobalCom, Inc.
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Attention: President
Fax: (000) 000-0000
with copies to:
UnitedGlobalCom, Inc.
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Attention: General Counsel
Fax: (000) 000-0000
and to
Holme Xxxxxxx & Xxxx LLP
0000 Xxxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Attention: W. Xxxx Xxxxxx, Esq.
Fax: (000) 000-0000
(b) If to the Liberty Parties, to:
Liberty Media Corporation
00000 Xxxxxxx Xxxx.
Xxxxxxxxx, Xxxxxxxx 00000
Attention: President
Fax: (000) 000-0000
with copies to:
Liberty Media Corporation
00000 Xxxxxxx Xxxx.
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxxxx X. Xxxxxxxxx, Esq.
Fax: (000) 000-0000
18
and to
Xxxxx Xxxxx L.L.P.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxx, Esq.
Fax: (000) 000-0000
or to such other person or address or addresses as Liberty or United shall
specify by notice in accordance with this Section 12. Liberty shall be
responsible for distributing any notices it receives to the Liberty Parties, as
necessary. All notices, requests, demands, waivers and communications shall be
deemed to have been received on the date of delivery or on the first Business
Day after delivery was guaranteed by a recognized delivery service, except that
any change of address shall be effective only upon actual receipt. Written
notice given by telecopy shall be deemed effective when confirmation is received
by the sending party. Delivery shall be deemed to have been made to each Liberty
Party on the date that delivery is made to Liberty at the address specified
above (as it may be changed as provided herein).
Section 13. ENTIRE AGREEMENT. This Agreement, together with the other
Transaction Agreements and the Merger Agreement, contains all the terms and
conditions agreed upon by the parties hereto, and no other agreements (except to
the extent referenced hereby), oral or otherwise, regarding the subject matter
hereof shall have any effect unless in writing and executed by the parties after
the date of this Agreement.
Section 14. APPLICABLE LAW, JURISDICTION; WAIVER OF JURY TRIAL. This
Agreement shall be governed by Colorado law without regard to conflict of law
rules. The parties hereby irrevocably submit to the jurisdiction of any Colorado
State or United States Federal court sitting in Colorado, and only a State or
Federal court sitting in Colorado will have any jurisdiction over any action or
proceeding arising out of or relating to this Agreement or any agreement
contemplated hereby, and the undersigned hereby irrevocably agree that all
claims in respect of such action or proceeding shall be heard and determined in
such a State or Federal court. The undersigned further waive any objection to
venue in such State and any objection to any action or proceeding in such State
on the basis of a non-convenient forum. Each party hereby IRREVOCABLY WAIVES ANY
RIGHT TO A TRIAL BY JURY in any proceeding brought with respect to this
Agreement or the transactions contemplated hereby.
Section 15. HEADINGS. The headings in this Agreement are for
convenience only and are not to be considered in interpreting this Agreement.
Section 16. COUNTERPART EXECUTION. This Agreement may be executed in
any number of counterparts, each of which shall be deemed an original but all of
which will constitute a single agreement.
Section 17. PARTIES IN INTEREST. Nothing in this Agreement, express or
implied, is intended to confer upon any Person other than the parties hereto,
their Permitted Transferees, in the case of the Liberty Parties, and their
permitted successors and assigns any benefits, rights or remedies. Except as
contemplated by the definitions of "Liberty" and "Transfer" neither this
19
Agreement nor the rights or obligations of any party may be assigned or
delegated (other than, in the case of a Liberty Party, to a Permitted
Transferee), by operation of law or otherwise without the prior written consent
of Liberty and United.
Section 18. SEVERABILITY. The invalidity or unenforceability of any
provision of this Agreement in any application shall not affect the validity or
enforceability of such provision in any other application or the validity or
enforceability of any other provision.
Section 19. WAIVERS AND AMENDMENTS. No waiver of any provision of this
Agreement shall be deemed a further or continuing waiver of that provision or a
waiver of any other provision of this Agreement. This Agreement may not be
amended except in a writing signed by United and Liberty. The Board, by majority
vote, may in it sole discretion waive any provision of this Agreement that
imposes obligations on or restricts the rights of or actions by the Liberty
Parties.
Section 20. INTERPRETATION. As used herein, except as otherwise
indicated herein or as the context may otherwise require, the words "include,"
"includes" and "including" are deemed to be followed by "without limitation"
whether or not they are in fact followed by such words or words of like import;
the words "hereof," "herein," "hereunder" and comparable terms refer to the
entirety of this Agreement and not to any particular article, section or other
subdivision hereof; any pronoun shall include the corresponding masculine,
feminine and neuter forms; the singular includes the plural and vice versa;
references to any agreement or other document are to such agreement or document
as amended and supplemented from time to time; references to any statute or
regulation are to it as amended and supplemented from time to time, and to any
corresponding provisions of successor statutes or regulations; references to
"Article," "Section" or another subdivision are to an article, section or
subdivision hereof; and all references to "the date hereof," "the date of this
Agreement" or similar terms (but excluding references to the date of execution
hereof) refer to the date first above written, notwithstanding that the parties
may have executed this Agreement on a later date. Any reference herein to a
"day" or number of "days" (without the explicit qualification of "Business")
shall be deemed to refer to a calendar day or number of calendar days. If any
action or notice is to be taken or given on or by a particular calendar day, and
such calendar day is not a Business Day, then such action or notice may be taken
or given on the next succeeding Business Day.
Section 21. RULES OF CONSTRUCTION. The parties hereto agree that they
have been represented by counsel during the negotiation, preparation and
execution of this Agreement and, therefore, waive the application of any law,
regulation, holding or rule of construction providing that ambiguities in an
agreement or other document will be construed against the party drafting such
agreement or document.
[signature page follows]
20
Executed as of the date first set forth above.
UNITEDGLOBALCOM, INC.,
a Delaware corporation
By: /s/ XXXXXXX X. XXXXX
-------------------------------------
Xxxxxxx X. Xxxxx
President
LIBERTY MEDIA CORPORATION,
a Delaware corporation
By: /s/ XXXXXXXXX X. XXXXXXXXX
-------------------------------------
Xxxxxxxxx X. Xxxxxxxxx
Senior Vice President
LIBERTY GLOBAL, INC.,
a Delaware corporation
By: /s/ XXXXXXXXX X. XXXXXXXXX
-------------------------------------
Xxxxxxxxx X. Xxxxxxxxx
Senior Vice President
LIBERTY UCOMA, LLC,
a Delaware limited liability company
By: /s/ XXXXXXXXX X. XXXXXXXXX
-------------------------------------
Xxxxxxxxx X. Xxxxxxxxx
Senior Vice President
