EXHIBIT 99.8
REGISTRATION RIGHTS AGREEMENT ("Agreement"), dated as of
_____________, 1995, by and among TELE-COMMUNICATIONS, INC., a Delaware
corporation (the "Company"), and Xxxxxxxx Xxxxx, Xx. (the "Seller").
WHEREAS, TCI Merger Sub, Inc. ("Merger Sub"), the Company and United
Video Satellite Group, Inc. ("UV") are parties to an Agreement and Plan of
Merger, dated as of July ___, 1995 (the "Transaction Agreement"), providing for
the merger of Merger Sub with and into UV (the "Merger");
WHEREAS, in connection with the transactions contemplated by the
Transaction Agreement, the Seller received shares of (i) the Company's
Redeemable Convertible TCI Group Preferred Stock, Series G, par value $.01 per
share (the "TCI Group Preferred Stock"), convertible into an aggregate of
________ shares of the Company's Tele-Communications, Inc. Series A TCI Group
Common Stock, par value $1.00 per share (the "TCI Group Common Stock"), and (ii)
the Company's Redeemable Convertible Liberty Media Group Preferred Stock, Series
H, par value $.01 per share (the "LMG Preferred Stock" and, together with the
TCI Group Preferred Stock, the "TCI Preferred Stock"), convertible into an
aggregate of ________ shares of the Company's Tele-Communications, Inc. Series A
Liberty Media Group Common Stock, par value $1.00 per share (the "Liberty Media
Group Common Stock" and, together with the TCI Group Common Stock, the "Common
Stock"), which shares of Common Stock are "restricted securities" (as defined in
Rule 144 under the Securities Act of 1933, as amended), and the Company has
agreed to provide the Seller with the registration rights set forth herein.
NOW THEREFORE, in consideration of the premises and of the mutual
agreements and covenants hereinafter set forth, the parties hereto agree as
follows:
1. Certain Definitions.
Business Day: Any day other than a Saturday, Sunday or holiday on
which banking institutions in Denver, Colorado or New York, New York are closed.
Commission: The Securities and Exchange Commission, or any other
Federal agency at the time administering the Securities Act or the Exchange Act.
Company Indemnified Parties: As defined in Section 6(b).
Demand Registration: As defined Section 2(a).
Exchange Act: The Securities and Exchange Act of 1934, as amended, or
any successor Federal statute, and the rules and regulations of the Commission
promulgated thereunder, as they each may, from time to time, be in effect.
Losses: As defined in Section 6(a).
Market Value: As to each Registrable Share at any date, the average
of the daily closing prices for shares of the Common Stock for the 10
consecutive trading days before the day in question. The closing price for such
shares for each day shall be the last reported sale price or, in case no such
reported sale takes place on such day, the average of the reported closing bid
and asked prices, in either case on the principal United States securities
exchange registered under the Exchange Act on which such shares are listed or
admitted to trading, or if they are not listed or admitted to trading on any
such exchange, the last reported sale price (or the average of the quoted
closing bid and asked prices if no sale is reported) as reported on the Nasdaq
Stock Market, or any comparable system, or if such shares are not quoted on the
Nasdaq Stock Market, or any comparable system, the average of the closing bid
and asked prices as furnished by any market maker in such shares who is a member
of the National Association of Securities Dealers, Inc.
Prospectus: The prospectus included in the Registration Statement as
of the date it becomes effective under the Securities Act and, in the case of
references to the Prospectus as of a date subsequent to the effective date of
the Registration Statement, as amended or supplemented as of such date,
including all documents incorporated by reference therein, as amended, and each
prospectus supplement relating to the offering and sale of any of the
Registrable Shares.
Registrable Shares: Shares of Common Stock acquired by the Seller
upon conversion of the TCI Preferred Stock and any other shares of capital stock
of the Company issued in respect of such shares as a result of stock splits,
stock dividends, reclassification, recapitalizations, mergers, consolidations or
similar events. References in this Agreement to amounts or percentages of
Registrable Shares as of or on any particular date shall be deemed to refer to
amounts or percentages after giving effect to any applicable events contemplated
by the preceding sentence. Any Registrable Share will cease to be a Registrable
Share when (i) a registration statement covering such Registrable Share has been
declared effective by the Commission and such Registrable Shares has been
disposed of pursuant to such effective registration statement, (ii) such
Registrable Share may be publicly resold without registration under the
Securities Act or (iii) such Registrable Share is no longer held by the Seller,
members of his family and trusts, partnerships and other entities primarily for
their benefit and that of the Seller.
Registration Statement: A registration statement of the Company on
any form (to be selected by the Company) for which the Company then qualifies
and which permits the secondary resale thereunder of the number of Registrable
Shares required pursuant to this Agreement to be included therein. The term
"Registration Statement" shall also include all exhibits and financial
statements and schedules and documents incorporated by reference in such
Registration Statement when it becomes effective under the Securities Act, and
in the case of the references to the Registration Statement as of a date
subsequent to the effective date, as amended or supplemented as of such date.
Sale Period: Each fifteen (15) day period commencing on the fifth day
following the dates upon which the Company files with the Commission its
Quarterly Report on Form 10-Q or its Annual Report on Form 10-K.
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Securities Act: The Securities Act of 1933, as amended, or any
successor Federal statute, and the rules and regulations of the Commission
promulgated thereunder, as they each may, from time to time, be in effect.
Shelf Registration Statement: As defined in Section 2(d).
2. Demand Registration.
(a) At any time after issuance of the Registrable Shares, the Seller
shall have the right to request registration (a "Demand Registration")
under the Securities Act of the Seller's Registrable Shares upon the terms
and subject to the terms, conditions and limitations set forth herein.
(b) The Seller may elect to exercise the right to request a Demand
Registration pursuant to this Section 2 by furnishing the Company with
written notice thereof (a "Demand Notice") which sets forth the number of
Registrable Shares requested to be registered and the Seller's preferred
method of distribution of such Registrable Shares. The Company shall as
soon as practicable after the date on which it receives the Demand Notice,
file with the Commission and use its commercially reasonable efforts to
cause to become effective a Registration Statement which shall cover the
Registrable Shares specified in the Demand Notice.
(c) Notwithstanding the preference of the Seller as to the method of
distribution of any Registrable Shares that may be set forth in a Demand
Notice, the Company, in its sole discretion, may determine that the sale of
Registrable Shares pursuant to any Demand Registration be pursuant to a
firm commitment underwriting, the managing underwriter of which shall be a
nationally recognized investment banking firm selected by the Company. If
the lead managing underwriter of any such underwritten public offering
determines in good faith that the aggregate number of Registrable Shares to
be offered exceeds the number of shares that could be sold without having
an adverse effect on such offering (including the price at which the
Registrable Shares may be sold), then, subject to Section 3(a)(v), the
number of Registrable Shares to be offered shall be reduced to the amount
recommended by such lead managing underwriter. The Company shall enter
into the same underwriting agreement as shall the Seller, containing
representations, warranties, indemnities, and agreements reasonably
acceptable to the Company and not substantially different from those
customarily made by an issuer in underwriting agreements with respect to
secondary distributions.
(d) In response to any Demand Notice, the Company may, in its sole
discretion, prepare and file with the Commission a Registration Statement
covering all of the Registrable Shares for offering and sale on a delayed
or continuous basis pursuant to Rule 415 under the Securities Act (a "Shelf
Registration Statement"). The section of the Shelf Registration Statement
entitled "Plan of Distribution" shall be prepared in accordance with the
requirements of Item 508 of Regulation S-K promulgated by the Commission
under the Securities Act ("Regulation S-K") and, notwithstanding anything
to the contrary contained herein, shall provide that the Seller may
distribute the Registrable Shares pursuant to such Registration Statement
only during a Sale Period and solely in the manner set forth on Exhibit A
hereto.
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(e) The Company shall be entitled to postpone, for a reasonable period
of time not in excess of 120 days after its receipt of a Demand Notice, the
filing of any Registration Statement, if (i) at any time prior to the
filing of such Registration Statement the Company determines, in its
reasonable business judgment, that such registration and offering could
interfere with or otherwise adversely affect any financing, acquisition,
corporate reorganization, or other material transaction or development
involving the Company or any of its affiliates or require the Company to
disclose matters that otherwise would not be required to be disclosed at
such time and (ii) the Company gives the Seller written notice of such
postponement. Any such notice need not specify the reasons for such
postponement if the Company determines, in its reasonable business
judgment, that doing so would interfere with or adversely affect such
transaction or development or would result in the disclosure of material
non-public information. In the event of such postponement, the Company
shall file such Registration Statement as soon as practicable after it
shall determine, in its reasonable business judgment, that such
registration and offering will not interfere with the matters described in
the first sentence of this Section 2(e). If the Company shall postpone the
filing of any Registration Statement, the Seller shall have the right to
withdraw his request for such registration by giving notice to the Company
within 15 days of the notice of postponement. In the event that the Seller
withdraws his request in the foregoing manner, such request shall not be
counted for purposes of determining the number of registrations to which
the Seller is entitled pursuant to Section 3(a)(i) or Section 3(a)(ii)
hereof.
(f) The Seller may, before any underwriting agreement relating to his
Registrable Shares is signed or before any Registration Statement becomes
effective, withdraw his Registrable Shares from inclusion therein, should
the terms of sale not be satisfactory to him, provided, however, that such
registration shall be deemed to have occurred for the purposes of Section
3(a)(i) and Section 3(a)(ii) hereof, unless the Seller pays, within 20 days
after any such withdrawal, all of the out-of-pocket expenses of the Company
incurred in connection with such registration.
3. Limitations on Registration Rights.
(a) Notwithstanding the provisions of Section 2 hereof, the Company
shall not be required to effect or maintain any registration if (i) the
Company has previously filed with the Commission two Registration
Statements pursuant to Section 2 of this Agreement; (ii) the Company has
previously filed a Registration Statement under the Securities Act pursuant
to Section 2 within the six-month period preceding the receipt of a Demand
Notice; (iii) the Company has previously filed and the Commission has
declared effective under the Securities Act a Shelf Registration Statement
and such Shelf Registration Statement is effective or remained effective
for the two-year period referred to in Section 4(a)(i) hereof; (iv) the
Company, in order to comply with such request, would be required to undergo
a special interim audit or prepare and file with the Commission sooner than
would otherwise be required, pro forma or other financial statements
relating to any proposed or probable transaction; (v) the total number of
Registrable Shares requested to be registered on any Registration Statement
shall be less than two million (2,000,000); (vi) the Common Stock is not
registered under Section 12(b) or 12(g) of the Exchange Act; or (vii) there
shall have been a material breach of a representation, warranty, covenant
or agreement contained in the Transaction Agreement
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or an unsatisfied claim under any indemnity arrangement relating thereto by
a party other than the Company or any of its affiliates, which breach
continues after the expiration of any applicable notice or cure periods.
(b) Notwithstanding anything to the contrary contained herein, in the
event the Company is required to file a Registration Statement pursuant to
a Demand Notice, the Company shall have the option, in lieu of effecting
any registration hereunder, of purchasing or causing one or more of its
designees to purchase all of the Registrable Shares otherwise required to
be included in such Registration Statement at a price equal to the Market
Value thereof (reduced by an amount per share equal to the anticipated
underwriter or brokerage discounts and commissions or other items
constituting compensation to the anticipated underwriter, agent or broker-
dealer), if any, upon such registered offering and any other expenses that
would be payable by the Seller pursuant to Section 5(b)) on the day
immediately preceding the date on which the Demand Notice has been given to
the Company. Notice of the Company's election to exercise its option
hereunder shall be furnished in writing by the Company to the Seller within
five Business Days after receipt by the Company of the Demand Notice.
Payment for any Registrable Shares purchased by the Company hereunder shall
be made to the Seller in next day funds on a Business Day to be determined
by the Company, which shall be within 20 days of the date the Seller
receives notice from the Company of the Company's decision to exercise the
option provided for in this Section 3(b). Upon any such sale, the Seller
shall be deemed to have made the same representations and warranties
concerning his title to and ownership of his Registrable Shares that are
being so purchased and his power and authority to effect such sale as would
customarily be made by a selling stockholder to an underwriter in an
underwriting agreement with respect to a secondary distribution.
4. Obligations with Respect to Registration.
(a) If and whenever the Company is obligated by the provisions of this
Agreement to effect the registration of any Registrable Shares under the
Securities Act, the Company shall:
(i) subject to Section 4(b), use its diligent efforts to cause
the Registration Statement to remain effective, and prepare and file
with the Commission any amendments and supplements to the Registration
Statement and to the Prospectus used in connection therewith as may be
necessary to keep the Prospectus current and in compliance in all
material respects with the provisions of the Securities Act, until (A)
in the case of a Shelf Registration Statement, the sooner to occur of
the expiration of a two-year period following the date of this
Agreement and the sale of all of the Registrable Shares covered by
such Shelf Registration Statement, and (B) in the case of any other
Registration Statement, the sooner to occur of the sale of all of the
Registrable Shares covered by such Registration Statement or the 90th
day following the effective date of such Registration Statement;
(ii) notify the Seller, (A) when a Registration Statement becomes
effective, (B) when the filing of a post-effective amendment to a
Registration Statement or supplement to the Prospectus is required,
when the same is filed, and
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in the case of a post-effective amendment, when the same becomes
effective, (C) of any request by the Commission for any amendment of
or supplement to a Registration Statement or any Prospectus relating
thereto or for additional information and (D) of the entry of any stop
order suspending the effectiveness of such Registration Statement or
of the initiation of any proceedings for that purpose;
(iii) furnish to the Seller a conformed copy of the Registration
Statement as declared effective by the Commission and of each post-
effective amendment thereto, and such number of copies of the final
Prospectus and of each supplement thereto as may reasonably be
required to facilitate the distribution of the Registrable Shares
included in such Registration Statement;
(iv) register or qualify the Registrable Shares covered by a
Registration Statement under the securities or blue sky laws of such
jurisdictions in the United States as the Seller shall reasonably
request, and do any and all other acts and things which may be
necessary to enable the Seller to consummate the disposition in such
jurisdictions of such Registrable Shares in accordance with a method
of distribution described in such Registration Statement; provided,
however, that the Company shall in no event be required to qualify to
do business as a foreign corporation or as a dealer in any
jurisdiction where it is not so qualified, to conform its
capitalization or the composition of its assets at the time to the
securities or blue sky laws of such jurisdiction, to execute or file
any general consent to service of process under the laws of any
jurisdiction, to take any action that would subject it to service of
process in suits other than those arising out of the offer and sale of
the Registrable Shares covered by such Registration Statement, or to
subject itself to taxation in any jurisdiction where it has not
theretofore done so; and
(v) cause such Registrable Shares covered by a Registration
Statement to be listed on the principal exchange or exchanges or
qualified for trading on the principal over-the-counter market on
which the Common Stock is then listed or traded upon the sale of such
Registrable Shares pursuant to such Registration Statement.
(b) Notwithstanding anything to the contrary contained herein, if at
any time after the filing of a Registration Statement or after it is
declared effective by the Commission, the Company determines, in its
reasonable business judgment, that such registration and offering could
interfere with or otherwise adversely affect any financing, acquisition,
corporate reorganization, or other material transaction or development
involving the Company or any of its affiliates or require the Company to
disclose matters that otherwise would not be required to be disclosed at
such time, then the Company may require the suspension by the Seller of the
distribution of any of the Registrable Shares by giving notice to the
Seller. Any such notice need not specify the reasons for such suspension
if the Company determines, in its reasonable business judgment, that doing
so would interfere with or adversely affect such transaction or development
or would result in the disclosure of material non-public information. In
the event that such notice is given, then until the Company has determined,
in its reasonable business judgment, that such registration and offering
would no longer interfere with the matters described in the
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preceding sentence and has given notice thereof to the Seller, the
Company's obligations under Section 2(b), if the Registration Statement has
not become effective, or under Section 4(a)(i), if the Registration
Statement has become effective, will be suspended. In the event of a
suspension pursuant to this Section 4(b) after a Registration Statement has
been declared effective, the ninety-day period of effectiveness of such
Registration Statement referred to in Section 4(a)(i) will be extended by a
number of days equal to the total number of days for which the distribution
of Registrable Shares included in such Registration Statement has been
suspended under this Section 4(b). In the case of an effective Shelf
Registration Statement, in the event of a suspension pursuant to this
Section 4(b) during any Sale Period, then upon notice from the Company that
such suspension is no longer in effect, the Seller may recommence
distribution of Registrable Shares for a number of days equal to the number
of days during such Sale Period in which such suspension was in effect.
(c) The Company's obligations under this Agreement shall be
conditioned upon the Seller's compliance with the following:
(i) the Seller shall cooperate with the Company in connection
with the preparation of the Registration Statement, and for so long as
the Company is obligated to keep the Registration Statement effective,
the Seller will provide to the Company, in writing, for use in the
Registration Statement, all information regarding the Seller and such
other information as may be necessary to enable the Company to prepare
the Registration and Prospectus covering the Registrable Shares and to
maintain the currency and effectiveness thereof;
(ii) the Seller shall permit the Company, the proposed
underwriters, agents or broker-dealers of the offering or other
distribution and their respective representatives and agents to
examine such documents and records and shall supply any information as
they may reasonably request in connection with the offering or other
distribution in which the Seller proposes to participate;
(iii) the Seller shall enter into such agreements with the
Company and any underwriter, broker-dealer or similar securities
industry professional containing representations, warranties,
indemnities and agreements as are in each case customarily entered
into and made by selling stockholders, and will cause its counsel to
give any legal opinions customarily given, in secondary distributions
under similar circumstances;
(iv) during such time as the Seller may be engaged in a
distribution of the Registrable Shares, the Seller will comply with
all applicable laws including but not limited to Rules 10b-6 and 10b-7
promulgated under the Exchange Act and pursuant thereto will, among
other things: (A) not engage in any stabilization activity in
connection with the securities of the Company in contravention of such
rules; (B) distribute the Shares owned by the Seller solely in the
manner described in the Registration Statement; (C) cause to be
furnished to each underwriter, agent or broker-dealer to or through
whom the Registrable Shares may be offered, or to the offeree if an
offer is made directly by the Seller, such copies of the Prospectus
(as amended and supplemented to such date) and documents incorporated
by reference therein as may be required by such underwriter, agent,
broker-dealer or
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offeree; and (D) not bid for or purchase any securities of the Company
or attempt to induce any person to purchase any securities of the
Company other than as permitted under the Exchange Act;
(v) other than in the case of an underwritten public offering, at
least ten (10) days prior to any distribution of Registrable Shares,
the Seller will advise the Company in writing of the dates on which
the distribution will commence and terminate, the number of the
Registrable Shares to be sold, the terms and the manner of sale
(including, to the extent applicable, the purchase price, the name of
any underwriter, agent or broker-dealer to or through whom such
distribution is being made, and the amount of any selling commissions
or other items constituting compensation to such underwriter, agent or
broker-dealer) and the number of shares of Common Stock that will be
owned beneficially by the Seller after giving effect to such sale; and
(vi) on notice from the Company of the happening of any of the
events specified in clauses (B), (C) or (D) of Section 4(a)(ii), or
that, as set forth in Section 4(b), it requires the suspension by the
Seller of the distribution of any of the Registrable Shares, then the
Seller shall cease offering or distributing the Registrable Shares
until such time as the Company notifies the Seller that offering and
distribution of the Registrable Shares may recommence.
5. Expenses of Registration.
Subject to Section 2(f), all expenses in connection with any
Registration Statement, any qualification or compliance with federal or state
laws required in connection therewith, and the distribution of the Registrable
Shares shall, as between the Seller and the Company, be borne as follows:
(a) The Company shall pay and be responsible for the registration fee
payable under the Securities Act, blue sky fees and expenses, if applicable
(subject to the limitations set forth in Section 4(a)(iv)), printing fees
and all fees and disbursements of the Company's counsel and accountants.
Solely at its discretion, the Company may, in lieu of engaging the services
of a financial printing company with respect to the Registration Statement
or the Prospectus, arrange for the photocopying thereof, in which event the
Company will bear the applicable photocopying costs.
(b) The Seller shall pay all fees and disbursements of his own counsel
and advisers, all stock transfer fees (including the cost of all transfer
tax stamps) or expenses, if any, and all other expenses (including
underwriting or brokerage discounts, commissions and fees) related to the
distribution of the Shares that have not expressly been assumed by the
Company as set forth above.
6. Indemnification.
(a) The Company agrees to indemnify and hold harmless the Seller from
and against any losses, claims, damages or liabilities (collectively
"Losses") to which the
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Seller may become subject, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) are based upon any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement or the Prospectus, or any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading; and, subject to Section 6(c),
the Company will reimburse the Seller for any legal or other expenses
reasonably incurred by him in connection with investigating or defending
any such Losses; provided, however, that the Company will not indemnify or
hold harmless the Seller from or against any such Losses (i) that arise out
of or are based upon any violation of any federal or state securities laws,
rules or regulations committed by the Seller (or any agent, broker-dealer
or underwriter engaged by him) or in the case of a non-underwritten
offering, any failure by the Seller to give any purchaser of Registrable
Shares at or prior to the written confirmation of such sale, a copy of the
most recent Prospectus or (ii) if the untrue statement, omission or
allegation thereof upon which such Losses or expenses are based (x) was
made in reliance upon and in conformity with the information provided by or
on behalf of the Seller specifically for use or inclusion in the
Registration Statement or any Prospectus, or (y) was made in any Prospectus
used after such time as the Company advised the Seller that the filing of a
post-effective amendment or supplement thereto was required, except the
Prospectus as so amended or supplemented, or (z) was made in any Prospectus
used after such time as the obligation of the Company hereunder to keep the
Registration Statement effective and current has expired or been suspended
hereunder.
(b) The Seller agrees to indemnify and hold harmless the Company, its
directors and officers and each person, if any, who controls the Company
within the meaning of either the Securities Act or the Exchange Act (the
"Company Indemnified Parties"), from and against any Losses, joint or
several, to which the Company Indemnified Parties may become subject,
insofar as such Losses (or actions in respect thereof) arise out of or are
based upon (i) any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or the Prospectus, or
any omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein, in light
of the circumstances under which they were made, not misleading, if the
statement or omission was made in reliance upon and in conformity with the
information provided by or on behalf of the Seller specifically for use or
inclusion in the Registration Statement or any Prospectus, or (ii) the use
of any Prospectus after such time as the Company has advised the Seller
that the filing of a post-effective amendment or supplement thereto is
required, except the Prospectus as so amended or supplemented, or (iii) the
use of any Prospectus after such time as the obligation of the Company
hereunder to keep the Registration Statement effective and current has
expired or been suspended hereunder, or (iv) any violation by the Seller
(or any agent, broker-dealer or underwriter engaged by the Seller) of any
federal or state securities law or rule or regulation thereunder or in the
case of a non-underwritten offering, any failure by the Seller to give any
purchaser of Registrable Shares at or prior to the written confirmation of
such sale, a copy of the most recent Prospectus; and, subject to Section
6(c), the Seller will reimburse such Company Indemnified Parties for any
legal or other expenses reasonably incurred by them in connection with
investigating or defending any such Losses. For purposes of clause (i) of
the preceding sentence and clause (ii) of the last sentence of Section
6(a), but without limiting the generality thereof, any information
concerning the Seller or plan of distribution included in any Registration
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Statement or Prospectus which is provided to the Seller for his review
within a reasonable period before filing or use thereof and to which
information the Seller has not promptly provided written notice of
objection to the Company shall be deemed to have been provided by the
Seller specifically for use in such Registration Statement or Prospectus.
(c) Each party entitled to indemnification under this Section 6 (the
"Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified
Party has actual knowledge of any claim as to which indemnity may be
sought, and the Indemnifying Party may participate at its own expense in
the defense, or if it so elects, to assume the defense of any such claim
and any action or proceeding resulting therefrom, including the employment
of counsel and the payment of all expenses. The failure of any Indemnified
Party to give notice as provided herein shall not relieve the Indemnifying
Party from its obligations to indemnify such Indemnified Party, except to
the extent the Indemnified Party's failure to so notify actually prejudices
the Indemnifying Party's ability to defend against such claim, action or
proceeding. In the event that the Indemnifying Party elects to assume the
defense in any action or proceeding, the Indemnified Party shall have the
right to employ separate counsel in any such action or proceeding and to
participate in the defense thereof, but the fees and expenses of such
separate counsel shall be such Indemnified Party's expense unless (i) the
Indemnifying Party has agreed to pay such fees and expenses or (ii) the
named parties to any such action or proceeding (including any impleaded
parties) include an Indemnified Party and the Indemnifying Party, and such
Indemnified Party shall have been advised by counsel that there may be a
conflict of interest between such Indemnified Party and the Indemnifying
Party in the conduct of the defense of such action (in which case, if such
Indemnified Party notifies the Indemnifying Party in writing that it elects
to employ separate counsel at the expense of the Indemnifying Party, the
Indemnifying Party shall not assume the defense of such action or
proceeding on such Indemnified Party's behalf, it being understood,
however, that the Indemnifying Party shall not, in connection with any one
such action or proceeding or separate but substantially similar or related
actions or proceedings arising out of the same general allegations or
circumstances, be liable for the reasonable fees and expenses of more than
one separate firm of attorneys at any time for all Indemnified Parties,
which firm shall be designated in writing by the Seller or the Company as
the case may be). No Indemnifying Party, in the defense of any such claim
or litigation, shall, except with the consent of the Indemnified Party,
consent to entry of any judgment or enter into any settlement which does
not include as an unconditional term thereof the giving by the claimant or
plaintiff to such Indemnified Party of a release from all liability in
respect to such claim or litigation. The Indemnifying Party shall not be
liable for any settlement of any such action or proceeding effected without
its written consent, but if settled with its written consent, or if there
be a final judgment for the plaintiff in any such action or proceeding, the
Indemnifying Party shall indemnify and hold harmless the Indemnified Party
from and against any loss or liability by reason of such settlement or
judgment.
(d) If the indemnification provided for under this Section 6 is
unavailable to or insufficient to hold the Indemnified Party harmless under
subparagraphs (a) or (b) above in respect of any Losses referred to therein
for any reason other than as specified therein, then the Indemnifying Party
shall contribute to the amount paid or payable by such Indemnified Party as
a result of such losses, claims, damages or liabilities (i) in such
proportion as is appropriate to reflect the relative benefits received by
the Indemnifying
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Party on the one hand and such Indemnified Party on the other from the
subject offering or distribution or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such proportion as
is appropriate to reflect not only the relative benefits referred to in
clause (i) above but also the relative fault of the Indemnifying Party on
the one hand and such Indemnified Party on the other in connection with the
statements or omissions which resulted in such Losses as well as any other
relevant equitable considerations. The relative benefits received by the
Indemnifying Party on the one hand and the Indemnified Party on the other
hand shall be deemed to be in the same proportion as the net proceeds of
the offering or other distribution (after deducting expenses) received by
the Indemnifying Party bears to the net proceeds of the offering or other
distribution (after deducting expenses) received by the Indemnified Party.
The relative fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to
information supplied by (or omitted to be supplied by) the Company or the
Seller, the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission, the relative
benefits received by each party from the sale of the Registrable Shares and
any other equitable considerations appropriate under the circumstances.
The amount paid or payable by an Indemnified Party as a result of the
Losses referred to above in this subsection (d) shall be deemed to include
any legal or other expenses reasonably incurred by such Indemnified Party
in connection with investigating or defending any such action or claim. No
person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
7. Notices. All notices, requests, demands, waivers and other
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 telex, telegram or telecopier, as follows:
(a) if to the Company:
Tele-Communications, Inc.
0000 XXX Xxxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention:Xxxxxxx X. Xxxxx, Esq.
Facsimile:(000) 000-0000
(b) if to Seller:
Xxxxxxxx Xxxxx, Xx.
000 Xxxxx Xxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Facsimile:000-000-0000
or to such other person or address as any party shall specify by notice in
writing to the other party. All notices and other communications given to a
party in accordance with the provisions
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of this Agreement shall be deemed to have been given (i) three Business Days
after the same are sent by certified or registered mail, postage prepaid, return
receipt requested, (ii) when delivered by hand or transmitted by telecopy
(answer back received) or (iii) one Business Day after the same are sent by a
reliable overnight courier service, with acknowledgement of receipt requested.
Notwithstanding the preceding sentence, notice of change of address shall be
effective only upon actual receipt thereof.
8. Amendment. Any provision of this Agreement may be amended or
modified in whole or in part at any time by an agreement in writing among the
Company and the Seller, executed in the same manner as this Agreement. No
consent, waiver or similar act shall be effective unless in writing.
9. 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.
10. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
11. Governing Law. This Agreement shall be governed by and interpreted
in accordance with the internal laws of the State of Colorado, without giving
effect to principles of conflicts of laws.
12. Assignment. The Seller may not assign his rights under this
Agreement without the prior written consent of the Company, except to members of
Seller's family and trusts, partnerships and other entities primarily for their
benefit and that of the Seller. Subject to the foregoing, this Agreement shall
be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
TELE-COMMUNICATIONS, INC.
By:
------------------------------------
---------------------------------------
XXXXXXXX XXXXX, XX.
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EXHIBIT A
The Registrable Shares may be sold by the Seller directly or through agents
designated from time to time or to or through broker-dealers designated from
time to time. To the extent required, any such agent or broker-dealer involved
in the offer and sale of the Registrable Shares and any applicable commissions,
discounts or other items constituting compensation to such agents or broker-
dealers will be set forth in a Prospectus Supplement.
The distribution of the Registrable Shares may be effected from time to
time in one or more transactions at a fixed price or prices, which may be
changed, at market prices prevailing at the time of sale, at prices related to
such prevailing market prices or at prices determined on a negotiated or
competitive bid basis. Registrable Shares may be sold through a broker-dealer
acting as agent or broker for the Seller, or to a broker-dealer acting as
principal. In the latter case, the broker-dealer may then resell such
Registrable Shares to the public at varying prices to be determined by such
broker-dealer at the time of resale.
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