EXHIBIT 10.10
FORM OF
REGISTRATION RIGHTS AGREEMENT
AMONG
NEW UNITEDGLOBALCOM, INC.,
LIBERTY MEDIA CORPORATION
AND
LIBERTY GLOBAL, INC.
Dated as of [ ], 2002
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this "Agreement"), is entered into as of
[ ], 2002, by and among New UnitedGlobalCom, Inc., a Delaware
corporation (the "Company"), Liberty Media Corporation, a Delaware corporation
("Liberty Media"), and Liberty Global, Inc. a Delaware corporation ("Liberty
Global").
The Company, UnitedGlobalCom, Inc., a Delaware corporation ("United"),
United/New United Merger Sub, Inc., a Delaware corporation ("MergerSub"),
Liberty Global, Liberty Media International, Inc., a Delaware corporation
("LMINT"), Liberty Media and certain stockholders of United (the "Founders") are
parties to an Amended and Restated Agreement and Plan of Reorganization and
Merger, dated as of December 31, 2001 (the "Merger Agreement"), pursuant to
which the parties thereto will effect a transaction in which, among other
things, (a) the Founders and Liberty Global will contribute or cause to be
contributed all of the shares of Class B Common Stock, par value $0.01 per
share, of United held by them and Liberty Media will contribute or cause to be
contributed certain shares of Class A Common Stock, par value $0.01 per share,
of United held, directly or indirectly, by it to the Company in exchange for an
equal number of shares of the Company's Class B Common Stock, par value $0.01
per share ("Class B Stock") (in the case of the Founders), or Class C Common
Stock, par value $0.01 per share ("Class C Stock") (in the case of Liberty
Global), (b) the Company will acquire United by means of a merger of Merger Sub
with and into United, and (c) Liberty Media will contribute, or cause to be
contributed, cash and certain debt securities to the Company in exchange for
additional shares of Class C Stock; and
WHEREAS, it is a condition precedent to the closing of the transactions
contemplated by the Merger Agreement that the parties hereto execute and deliver
this Agreement;
NOW THEREFORE, in consideration of the premises, mutual promises and covenants
contained in this Agreement and intending to be legally bound, the parties
hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
1.1 DEFINITIONS
Terms defined in the Merger Agreement are used herein as therein defined except
as otherwise indicated below. In addition, the following terms, as used herein,
have the following meanings:
"Class A Stock" means the Company's Class A Common Stock, par value $0.01 per
share.
"Class B Stock" has the meaning set forth in the recitals hereof.
"Class C Stock" has the meaning set forth in the recitals hereof.
"Demand Registration" means a registration under the Securities Act requested in
accordance with Section 2.1.
"Initial Amount" means the number of shares of Class A Stock beneficially owned
(within the meaning of Rule 13d-3 promulgated under the Exchange Act) by the
Liberty Holders, calculated without giving effect to any conditions to or
restrictions on the conversion of any securities of the Company, immediately
following the Closing (as adjusted for stock splits, reverse splits, stock
dividends, reclassifications, recapitalizations and similar events affecting the
Class A Stock).
"Liberty Holders" means each of Liberty Media, Liberty Global, their respective
Affiliates and any direct or indirect transferee of any Registrable Securities
held by any of such Persons.
"Liberty Media" means Liberty Media Corporation, a Delaware corporation.
"Piggyback Registration" has the meaning set forth in Section 2.2.
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"Registrable Securities" means all securities of the Company or of any successor
to the Company (by reason of merger, share exchange, sale of all or
substantially all the assets of the Company or otherwise) now owned or hereafter
acquired by any Liberty Holder. As to any particular Registrable Securities,
such securities shall cease to be Registrable Securities when (i) such
securities shall have been transferred or disposed of pursuant to an effective
registration statement under the Securities Act or an exemption from the
registration requirements of the Securities Act, new certificates therefor not
bearing a legend restricting further transfer shall have been delivered by the
Company and the subsequent transfer or disposition of such securities shall not
require their registration or qualification under the Securities Act or any
similar state law then in force or (ii) such securities shall have ceased to be
outstanding.
"Requesting Holders" means the Liberty Holders requesting a Demand Registration
and shall include Liberty Holders deemed "Requesting Holders" pursuant to
Section 2.1(c).
"Rule 144" means Rule 144 (or any successor rule of similar effect) promulgated
under the Securities Act.
"Selling Holder" means any Liberty Holder that is selling Registrable Securities
pursuant to a public offering registered hereunder.
"Shelf Registration" means a registration of shares to be sold on a continuous
or delayed basis pursuant to Rule 415 under the Securities Act (or any successor
provision thereto).
"Underwriter" means a securities dealer that purchases any Registrable
Securities as principal and not as part of such dealer's market-making
activities.
1.2 INTERNAL REFERENCES
Unless the context indicates otherwise, references to Articles, Sections and
paragraphs shall refer to the corresponding articles, sections and paragraphs in
this Agreement, and references to the parties shall mean the parties to this
Agreement.
ARTICLE II
REGISTRATION RIGHTS
2.1 DEMAND REGISTRATION
(a) Liberty Media or its designee, on behalf of the Liberty Holders, shall be
entitled to make written requests from time to time for Demand Registration of
all or any part of the Registrable Securities held by the Liberty Holders,
provided that each such Demand Registration must be in respect of Registrable
Securities representing not less than the lower of (A) 10% of the Initial Amount
or, with respect to Registrable Securities other than shares of Class A Stock, a
number of such other securities having a fair market value (based on the average
of the closing prices of such securities on the principal stock exchange or
interdealer quotation system on which such securities are traded for the five
consecutive trading days immediately preceding the date of the written request
for such Demand Registration or, if such securities are not publicly traded, as
determined in good faith by the Company's Board of Directors) equal to at least
10% of the product of (x) the Initial Amount, multiplied by (y) the average of
the closing prices of the Class A Stock on the principal stock exchange or
interdealer quotation system on which the Class A Stock is traded for the same
five trading day period or (B) all of the Registrable Securities held by the
Liberty Holders. Notwithstanding the foregoing, the Company shall not be
obligated to effect more than a total of five (5) Demand Registrations and
Liberty Media and any designee of Liberty Media may make no more than two
requests for a Demand Registration in any 12-month period.
(b) Any request for a Demand Registration will specify the aggregate number and
kind of Registrable Securities proposed to be sold and will also specify the
intended method of disposition thereof. A registration will not count as a
Demand Registration until it has become effective and at least 90% of the
Registrable Securities requested to be included in such Demand Registration have
been registered and sold.
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(c) Upon receipt of any request for a Demand Registration by Liberty Media or
its designee, the Company shall promptly (but in any event within ten days) give
written notice of such proposed Demand Registration to each of the Liberty
Holders that, according to the stock transfer book of the Company, holds
Registrable Securities, and all such Liberty Holders (including their respective
direct or indirect transferees) shall have the right, exercisable by written
notice to the Company within 20 days of their receipt of the Company's notice,
to elect to include in such Demand Registration such portion of their
Registrable Securities as they may request. All such Persons requesting to have
their Registrable Securities included in a Demand Registration in accordance
with the preceding sentence shall be deemed to be "Requesting Holders" for
purposes of this Section 2.1.
(d) If Liberty Media or its designee so elects, the offering of such
Registrable Securities pursuant to such Demand Registration shall be in the form
of a "firm commitment" underwritten offering. The Company shall have the right
to select the Underwriters to be used in connection with any offering under this
Section 2.1, provided that such Underwriters, including the managing
Underwriters, shall be reasonably satisfactory to the Requesting Holders that
hold a majority of the Registrable Securities requested to be included in such
Demand Registration. Any request for Demand Registration may specify that
Registrable Securities are to be sold pursuant to a Shelf Registration.
(e) The Company will have the right to preempt any Demand Registration with a
primary registration by giving written notice, within ten Business Days after
the request for such Demand Registration was given, of such intention to Liberty
Media indicating that the Company has identified a specific business need and
use for the proceeds of the sale of such securities and had contemplated such
sale of securities prior to the date such written request was given, and the
Company shall use commercially reasonable efforts to effect a primary
registration within 90 days of such notice. In the ensuing primary registration,
the Liberty Holders will have the Piggyback Registration rights set forth in
Section 2.2 hereof. If the Company thereafter decides to abandon its intention
to pursue such sale of securities, it shall give notice thereof to Liberty Media
within two Business Days following the Company's decision. The Company may
exercise the right to preempt a Demand Registration only once in each 360-day
period; provided, that during each 360-day period the Company shall use its
reasonable best efforts to permit a period of at least 180 consecutive days
during which the Liberty Holders may effect a Demand Registration.
(f) If a Demand Registration involves an underwritten offering and the managing
Underwriter(s) advise the Company and the Requesting Holders in writing that, in
its opinion, the number of securities requested to be included in such
registration (including securities of the Company that are not Registrable
Securities) exceeds the number that can be sold in such offering without
adversely affecting the price of the offering, the Company will include in such
registration the Registrable Securities requested to be included in such
registration. If the number of Registrable Securities requested to be included
in such registration exceeds the number that, in the opinion of such managing
underwriter, can be sold in such offering, the number of such Registrable
Securities to be included in such Demand Registration shall be allocated pro
rata among all Requesting Holders on the basis of the relative number of
Registrable Securities then held by each such Requesting Holder (provided that
the number of Registrable Securities thereby allocated to any Requesting Holder
for inclusion in such Demand Registration that exceeds such Requesting Holder's
request shall be reallocated among the remaining Requesting Holders in like
manner) or in such other manner as the Requesting Holders may agree. If the
number of Registrable Securities requested to be included in such Demand
Registration is less than the number that, in the opinion of the managing
Underwriter(s), can be sold in such offering without adversely affecting the
price of the offering, the Company may include in such registration the
securities the Company proposes to sell up to the number of securities that, in
the opinion of the managing Underwriter(s), can be so sold in such offering. If
the number of Registrable Securities requested to be included in such Demand
Registration plus the number of securities proposed to be included in such
Demand Registration by the Company is less than the number that, in the opinion
of the managing Underwriter(s), can be sold in such offering without adversely
affecting the price of the offering, the securities requested to be included in
such Demand Registration by other Persons whose requests have been approved by
the Company may be included in such Demand Registration up to the number of
securities that, in the opinion of the managing Underwriter(s), can be so sold.
If any Registrable Securities requested to be
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registered pursuant to a Demand Registration under this Section 2.1 are excluded
from registration hereunder, then the Liberty Holder(s) having Registrable
Securities excluded shall have the right to withdraw all, or any part, of their
Registrable Securities from such registration prior to its effectiveness.
2.2 PIGGYBACK REGISTRATION
(a) If the Company proposes to file a registration statement under the
Securities Act with respect to an offering of securities for the account of any
Person other than a Liberty Holder or for its own account (other than a
registration statement on Form S-4 or S-8 (or any substitute form that may be
adopted by the Commission)), the Company shall give written notice of such
proposed filing to the Liberty Holders as soon as reasonably practicable (but in
no event less than 15 days before the anticipated filing date), undertaking to
provide each Liberty Holder the opportunity to register on the same terms and
conditions such number of Registrable Securities as such Liberty Holder may
request (a "Piggyback Registration"). Each Liberty Holder will have five
Business Days after any such notice is given to notify the Company as to whether
it wishes to participate in a Piggyback Registration (which notice shall not be
deemed to be a request for a Demand Registration); provided that should a
Liberty Holder fail to provide timely notice to the Company, such Holder will
forfeit any rights to participate in the Piggyback Registration with respect to
such proposed offering. If the registration statement is filed on behalf of a
Person other than the Company, the Company will use its best efforts to have the
amount of Registrable Securities that the Liberty Holders wish to sell included
in the registration statement. If the Company or the Person for whose account
such offering is being made shall determine in its sole discretion not to
register or to delay the proposed offering, the Company may, at its election,
provide written notice of such determination to the Liberty Holders and (i) in
the case of a determination not to effect the proposed offering, shall thereupon
be relieved of the obligation to register such Registrable Securities in
connection therewith, and (ii) in the case of a determination to delay a
proposed offering, shall thereupon be permitted to delay registering such
Registrable Securities for the same period as the delay in respect of the
proposed offering. If the Piggyback Registration involves an underwritten public
offering, any Liberty Holder that requested that Registrable Securities be
included therein may elect, by written notice given to the Company prior to the
effective date of the registration statement therefor, not to register such
Registrable Securities in connection with such Piggyback Registration. As
between the Company and the Selling Holders, the Company shall be entitled to
select the Underwriters in connection with any Piggyback Registration.
(b) If a Piggyback Registration involves an underwritten offering and the
managing Underwriter(s) advise the Company in writing that, in its opinion, the
amount of securities requested to be included in such registration by all
selling securityholders and the Company, if applicable, exceeds the amount which
can be sold in such offering without adversely affecting the price of such
offering, then the Company will include in such Piggyback Registration (A) if
such Piggyback Registration relates to a primary offering initiated by the
Company, (i) first, the securities proposed to be sold by the Company, (ii)
second, to the extent the number of securities proposed to be included in such
Piggyback Registration by the Company is less than the number of securities
which the Company has been advised by the managing Underwriter(s) can be sold in
such offering without having the adverse effect referred to above, the
Registrable Securities requested to be included in such Piggyback Registration
by the Liberty Holders (provided that if the number of such Registrable
Securities, in combination with the number of securities proposed to be included
in such Piggyback Registration by the Company, exceeds the number which the
Company has been advised can be sold in such offering without having the adverse
effect referred to above, the number of such Registrable Securities included in
such Piggyback Registration shall be allocated pro rata among all such Liberty
Holders on the basis of the relative number of Registrable Securities that each
of the Liberty Holders has requested to be included in such Piggy Registration
or in such other manner as such Liberty Holders may agree); and (B) if such
Piggyback Registration relates to a secondary offering initiated by any Person
other than a Liberty Holder, (i) first, the securities requested to be included
in such registration by such other Person (to the extent that the number of such
securities does not exceed the number of securities which the Company has been
advised by the managing Underwriter(s) can be sold in such offering without
having the adverse effect described above), (ii) second, to the extent the
number of securities requested to be included in such
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registration by such other Person is less than the number of securities which
the Company has been advised by the managing Underwriter(s) can be sold in such
offering without having the adverse effect referred to above, the Registrable
Securities requested to be included in such Piggyback Registration by the
Liberty Holders (provided that if the number of such Registrable Securities, in
combination with the securities of such other Person to be included in such
Piggyback Registration, exceeds the number which the Company has been advised by
the managing Underwriter(s) can be sold in such offering without having the
adverse effect referred to above, the number of such Registrable Securities of
the Liberty Holders included in such Piggyback Registration shall be allocated
pro rata among all such Liberty Holders on the basis of the relative number of
Registrable Securities each such Liberty Holder has requested to be included in
such Piggyback Registration or in such other manner as such Liberty Holders may
agree) and (iii) third, to the extent the sum of the number of securities
requested to be included in such Piggyback Registration by such other Person
plus the number of Registrable Securities proposed to be included in such
Piggyback Registration by the Liberty Holders is less than the number of
securities which the Company has been advised by the managing Underwriter(s) can
be sold in such offering without having the adverse effect referred to above,
the securities proposed to be sold by the Company (to the extent that the number
of such securities does not exceed, in combination with the securities of such
other Person and the Liberty Holders to be included in such Piggyback
Registration, the number of securities which the Company has been advised by the
managing Underwriter(s) can be sold in such offering without having the adverse
effect described above). If as a result of the provisions of this Section 2.2(b)
any Liberty Holder is not entitled to include all Registrable Securities in a
Piggyback Registration that such Liberty Holder has requested to be so included,
such Liberty Holder may withdraw such Liberty Holder's request to include
Registrable Securities in such Piggyback Registration prior to its
effectiveness.
(c) The Company shall not grant any piggyback registration or similar rights to
any Person that would provide such Person with piggyback registration or similar
rights that are senior to or pari passu with the rights granted to the Liberty
Holders hereunder.
ARTICLE III
REGISTRATION PROCEDURES
3.1 FILINGS; INFORMATION
In connection with the registration and offering of Registrable Securities
pursuant to Sections 2.1 and 2.2 hereof, the Company will use its reasonable
best efforts to effect the registration and offering of such Registrable
Securities as promptly as is reasonably practicable, and in connection with any
such request:
(a) The Company will expeditiously prepare and file with the Commission a
registration statement on any form for which the Company then qualifies and
that counsel for the Company shall deem appropriate and available for the
sale of the Registrable Securities to be registered thereunder in
accordance with the intended method of distribution thereof, and use its
reasonable best efforts to cause such filed registration statement to
become and remain effective for such period, not to exceed 180 days (or two
years, in the case of a Shelf Registration), as may be reasonably necessary
to effect the sale of the Registrable Securities registered thereunder;
provided that if the Company shall furnish to the Selling Holders a
certificate signed by the Company's Chairman, President or any Executive
Vice-President or Vice-President stating that the Company's Board of
Directors has determined in good faith that it would be detrimental or
otherwise disadvantageous to the Company or its stockholders for such a
registration statement to be filed as expeditiously as possible or for
Registrable Securities to be offered pursuant to an effective Shelf
Registration, because the disclosure of information in any related
prospectus or prospectus supplement would materially interfere with any
acquisition, financing or other material event or transaction which is then
intended and the public disclosure of which at the time would be materially
prejudicial to the Company, the Company may postpone the filing or
effectiveness of a registration statement or any offering of Registrable
Securities pursuant to an effective Shelf Registration for a period of not
more than 90 days; provided that during each 360-day period the Company
shall use its reasonable
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best efforts to permit a period of at least 180 consecutive days during
which the Company will effect the registration of Registrable Securities or
any offering of Registrable Securities pursuant to an effective Shelf
Registration in accordance with this Agreement; and provided, further, that
if (i) the effective date of any registration statement filed pursuant to a
Demand Registration would otherwise be at least 45 calendar days, but fewer
than 90 calendar days, after the end of the Company's fiscal year, and (ii)
the Securities Act requires the Company to include audited financials as of
the end of such fiscal year, the Company may delay the effectiveness of
such registration statement for such period as is reasonably necessary to
include therein its audited financial statements for such fiscal year.
(b) The Company will, if requested, prior to filing such registration
statement or any amendment or supplement thereto, furnish to the Selling
Holders, and each applicable managing Underwriter, if any, copies thereof,
and thereafter furnish to the Selling Holders and each such Underwriter, if
any, such number of copies of such registration statement, amendment and
supplement thereto (in each case including all exhibits thereto and
documents incorporated by reference therein) and the prospectus included in
such registration statement (including each preliminary prospectus) as the
Selling Holders or each such Underwriter may reasonably request in order to
facilitate the sale of the Registrable Securities by the Selling Holders.
(c) After the filing of the registration statement, the Company will
promptly notify the Selling Holders of any stop order issued or, to the
Company's knowledge, threatened to be issued by the Commission and take all
reasonable actions required to prevent the entry of such stop order or to
remove it if entered.
(d) The Company will use its commercially reasonable efforts to qualify
the Registrable Securities for offer and sale under such other securities
or blue sky laws of the appropriate jurisdictions in the United States;
keep each such registration or qualification (or exemption therefrom)
effective during the period in which such registration statement is
required to be kept effective; and do any and all other acts and things
which may be reasonably necessary or advisable to enable each Selling
Holder to consummate the disposition of the Registrable Securities owned by
such Selling Holder in such jurisdictions; provided that the Company will
not be required to (i) qualify generally to do business in any jurisdiction
where it would not otherwise be required to qualify but for this paragraph
3.1(d), (ii) subject itself to taxation in any such jurisdiction or (iii)
consent to general service of process in any such jurisdiction.
(e) The Company will as promptly as is practicable notify the Selling
Holders, at any time when a prospectus relating to the sale of the
Registrable Securities is required by law to be delivered in connection
with sales by an Underwriter or dealer, of the occurrence of any event
requiring the preparation of a supplement or amendment to such prospectus
so that, as thereafter delivered to the purchasers of such Registrable
Securities, such prospectus will not contain an untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading and promptly make
available to the Selling Holders and to the Underwriters any such
supplement or amendment. Upon receipt of any notice of the occurrence of
any event of the kind described in the preceding sentence, Selling Holders
will forthwith discontinue the offer and sale of Registrable Securities
pursuant to the registration statement covering such Registrable Securities
until receipt by the Selling Holders and the Underwriters of the copies of
such supplemented or amended prospectus and, if so directed by the Company,
the Selling Holders will deliver to the Company all copies, other than
permanent file copies then in the possession of Selling Holders, of the
most recent prospectus covering such Registrable Securities at the time of
receipt of such notice. If the Company shall give such notice, the Company
shall extend the period during which such registration statement shall be
maintained effective as provided in Section 3.1(a) hereof by the number of
days during the period from and including the date of the giving of such
notice to the date when the Company shall make available to the Selling
Holders such supplemented or amended prospectus.
(f) The Company will enter into customary agreements (including an
underwriting agreement in customary form) and take such other actions
(including, without limitation, participation in road shows
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and investor conference calls) as are required in order to expedite or
facilitate the sale of such Registrable Securities.
(g) At the request of any Underwriter in connection with an underwritten
offering the Company will furnish (i) an opinion of counsel, addressed to
the Underwriters, covering such customary matters as the managing
Underwriter may reasonably request and (ii) a comfort letter or comfort
letters from the Company's independent public accountants covering such
customary matters as the managing Underwriter may reasonably request.
(h) If requested by the managing Underwriter or any Selling Holder, the
Company shall promptly incorporate in a prospectus supplement or
post-effective amendment such information concerning the Underwriters or
Selling Holders as the managing Underwriter or any Selling Holder
reasonably requests to be included therein, including without limitation,
with respect to the Registrable Securities being sold by such Selling
Holder, the purchase price being paid therefor by the Underwriters and with
respect to any other terms of the underwritten offering of the Registrable
Securities to be sold in such offering, and promptly make all required
filings of such prospectus supplement or post effective amendment.
(i) The Company shall promptly make available for inspection by any
Selling Holder or Underwriter participating in any disposition pursuant to
any registration statement, and any attorney, accountant or other agent or
representative retained by any such Selling Holder or Underwriter
(collectively, the "Inspectors"), all financial and other records,
pertinent corporate documents and properties of the Company (collectively,
the "Records"), as shall be reasonably necessary to enable them to exercise
their due diligence responsibility, and cause the Company's officers,
directors and employees to supply all information requested by any such
Inspector in connection with such registration statement; provided,
however, that unless the disclosure of such Records is necessary to avoid
or correct a misstatement or omission in the registration statement or the
release of such Records is ordered pursuant to a subpoena or other order
from a court of competent jurisdiction, the Company shall not be required
to provide any information under this subparagraph (i) if (A) the Company
believes, after consultation with counsel for the Company, that to do so
would cause the Company to forfeit an attorney-client privilege that was
applicable to such information or (B) if either (1) the Company has
requested and been granted from the Commission confidential treatment of
such information contained in any filing with the Commission or documents
provided supplementally or otherwise or (2) the Company reasonably
determines in good faith that such Records are confidential and so notifies
the Inspectors in writing, unless prior to furnishing any such information
with respect to (A) or (B) such Holder of Registrable Securities requesting
such information agrees to enter into a confidentiality agreement in
customary form and subject to customary exceptions; provided further,
however, that each Holder of Registrable Securities agrees that it will,
upon learning that disclosure of such Records is sought in a court of
competent jurisdiction, give notice to the Company and allow the Company,
at its expense, to undertake appropriate action to prevent disclosure of
the Records deemed confidential.
(j) The Company shall cause the Registrable Securities included in any
registration statement to be (i) listed on each securities exchange, if
any, on which similar securities issued by the Company are then listed, or
(ii) authorized to be quoted and/or listed (to the extent applicable) on
the Nasdaq National Market if the Registrable Securities so qualify.
(k) The Company shall provide a CUSIP number (if one has not already been
provided) for the Registrable Securities included in any registration
statement not later than the effective date of such registration statement.
(l) The Company shall cooperate with each Selling Holder and each
Underwriter participating in the disposition of such Registrable Securities
and their respective counsel in connection with any filings required to be
made with the National Association of Securities Dealers, Inc.
(m) The Company shall during the period when the prospectus is required to
be delivered under the Securities Act, promptly file all documents required
to be filed with the Commission pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Exchange Act.
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(n) The Company will make generally available to its security holders, as
soon as reasonably practicable, an earnings statement covering a period of
12 months, beginning within three months after the effective date of the
registration statement, which earnings statement shall satisfy the
provisions of Section 11(a) of the Securities Act and the rules and
regulations of the Commission thereunder.
The Company may require Selling Holders promptly to furnish in writing to the
Company such information regarding such Selling Holders, the plan of
distribution of the Registrable Securities and other information as the Company
may from time to time reasonably request or as may be legally required in
connection with such registration.
3.2 REGISTRATION EXPENSES
In connection with any registration effected hereunder, the Company shall pay
all expenses incurred in connection with such registration (the "Registration
Expenses") including the following: (i) registration and filing fees with the
Commission and the National Association of Securities Dealers, Inc., (ii) fees
and expenses of compliance with securities or blue sky laws (including
reasonable fees and disbursements of counsel in connection with blue sky
qualifications of the Registrable Securities), (iii) printing expenses, (iv)
fees and expenses incurred in connection with the listing or quotation of the
Registrable Securities, (v) fees and expenses of counsel to the Company and the
reasonable fees and expenses of independent certified public accountants for the
Company (including fees and expenses associated with the special audits or the
delivery of comfort letters), (vi) the reasonable fees and expenses of any
additional experts retained by the Company in connection with such registration,
(vii) all roadshow costs and expenses not paid by the Underwriters and (viii)
the reasonable fees and expenses of counsel for the Selling Holders. The Company
shall not be responsible for any underwriting discounts, selling commissions or
stock transfer taxes applicable to the sale of Registrable Securities.
ARTICLE IV
INDEMNIFICATION AND CONTRIBUTION
4.1 INDEMNIFICATION BY THE COMPANY
The Company agrees to indemnify and hold harmless each Selling Holder and its
Affiliates and their respective officers, directors, partners, stockholders,
members, employees, agents and representatives and each Person (if any) that
controls a Selling Holder within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act, from and against any and all
losses, claims, damages, liabilities, costs and expenses (including reasonable
attorneys' fees) caused by, arising out of, resulting from or related to any
untrue statement or alleged untrue statement of a material fact contained or
incorporated by reference in any registration statement or prospectus relating
to the Registrable Securities (as amended or supplemented if the Company shall
have furnished any amendments or supplements thereto) or any preliminary
prospectus, or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, except insofar as such losses, claims, damages or
liabilities are caused by or based upon any information furnished in writing to
the Company by or on behalf of such Selling Holder expressly for use therein or
by the Selling Holder's failure to deliver a copy of the final prospectus after
the Company has furnished the Selling Holder with copies of the same and such
final prospectus corrected errors or omissions in a preliminary prospectus that
are the basis of such losses, claims, damages or liabilities. Such indemnity
shall remain in full force and effect regardless of any investigation made by or
on behalf of any Selling Holder or its Affiliates and shall survive the transfer
of the Registrable Securities by such Selling Holder.
4.2 INDEMNIFICATION BY SELLING HOLDERS
Each Selling Holder agrees to indemnify and hold harmless the Company, its
officers and directors, and each Person, if any, that controls the Company
within the meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act to the same extent as the foregoing indemnity from the Company
to each
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Selling Holder, but only with reference to information furnished in writing by
or on behalf of such Selling Holder expressly for use in any registration
statement or prospectus relating to the Registrable Securities, or any amendment
or supplement thereto, or any preliminary prospectus. Each such Selling Holder's
liability under this Section 4.2 shall be limited to an amount equal to the net
proceeds (after deducting the underwriting discount and expenses) received by
such Selling Holder from the sale of such Registrable Securities by such Selling
Holder. The obligation of each Selling Holder shall be several and not joint.
4.3 CONDUCT OF INDEMNIFICATION PROCEEDINGS
In case any proceeding (including any governmental investigation) shall be
instituted involving any Person in respect of which indemnity may be sought
pursuant to Section 4.1 or Section 4.2, such Person (the "Indemnified Party")
shall promptly so notify the Person against whom such indemnity may be sought
(the "Indemnifying Party") in writing; provided that the failure of the
Indemnified Party to give notice as provided herein shall not relieve the
Indemnifying Party of its obligations under this Article IV with respect to such
proceeding except to the extent that the Indemnifying Party is actually and
materially prejudiced by such failure to give notice. The Indemnifying Party
shall be entitled to participate in such proceeding and, subject to the
following sentence, assume the defense thereof with counsel retained by the
Indemnifying Party (the fees and expenses of which counsel shall be paid by the
Indemnifying Party) provided that such counsel is reasonably satisfactory to the
Indemnified Party. In any such proceeding, any Indemnified Party shall have the
right to retain its own counsel, but, after notice from the Indemnifying Party
of its election to assume the defense of such proceeding and of its retention of
counsel reasonably satisfactory to the Indemnified Party whose representation of
the Indemnified Party would not present such counsel with a conflict of
interest, the Indemnifying Party shall not be liable for the fees and expenses
of separate counsel retained by the Indemnified Party subsequently incurred in
connection with the defense of such proceeding (other than reasonable costs of
investigation), unless (i) the Indemnifying Party and the Indemnified Party
shall have mutually agreed to the retention of such separate counsel or (ii) the
named parties to or targets of any such proceeding (including any impleaded
parties) include both the Indemnified Party and the Indemnifying Party and the
Indemnified Party shall have reasonably concluded that there may be legal
defenses available to it which are different from or additional to those
available to the Indemnifying Party (in which case the Indemnifying Party shall
not be entitled to assume the defense of such proceeding on the Indemnified
Party's behalf). It is understood that the Indemnifying Party shall not, in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for the fees and expenses of more than one separate firm of attorneys
(in addition to any local counsel) at any time for all such Indemnified Parties,
and that all such fees and expenses shall be reimbursed as they are incurred. In
the case of any such separate firm for the Indemnified Parties, such firm shall
be designated in writing by the Indemnified Parties. The Indemnifying Party
shall not be liable for any settlement of any proceeding effected without its
written consent, but if settled with such consent (not to be unreasonably
withheld), or if there be a final judgment for the plaintiff, the Indemnifying
Party shall indemnify and hold harmless such Indemnified Parties from and
against any loss or liability (to the extent stated above) by reason of such
settlement or judgment. No Indemnifying Party will 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 the Indemnified Party of
a release from all liability in respect of such claim or proceeding.
4.4 CONTRIBUTION
If the indemnification provided for in this Article IV is unavailable to an
Indemnified Party in respect of any losses, claims, damages or liabilities in
respect of which indemnity is to be provided hereunder, then each such
Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall to the
fullest extent permitted by law contribute to the amount paid or payable by such
Indemnified Party as a result of such losses, claims, damages or liabilities in
such proportion as is appropriate to reflect the relative fault of such party in
connection with the statements or omissions that resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative fault of the Company and a Selling Holder 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 such party
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and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
The Company and each Selling Holder agree that it would not be just and
equitable if contribution pursuant to this Section 4.4 were determined by pro
rata allocation or by any other method of allocation that does not take account
of the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an Indemnified Party as a result of the
losses, claims, damages or liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such Indemnified Party
in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Article IV, no Selling Holder shall be
required to contribute any amount in excess of the amount by which the net
proceeds of the offering (after deducting the underwriting discount and
expenses) received by such Selling Holder exceeds the amount of any damages
which such Selling Holder has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. 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.
ARTICLE V
MISCELLANEOUS
5.1 PARTICIPATION IN UNDERWRITTEN REGISTRATIONS
No Person may participate in any underwritten registered offering contemplated
hereunder unless such Person (a) agrees to sell its securities on the basis
provided in any underwriting arrangements approved by the Persons entitled
hereunder to approve such arrangements, (b) completes and executes all
questionnaires, powers of attorney, custody arrangements, indemnities,
underwriting agreements and other documents reasonably required under the terms
of such underwriting arrangements and this Agreement and (c) furnishes in
writing to the Company such information regarding such Person, the plan of
distribution of the Registrable Securities and other information as the Company
may from time to time request or as may be legally required in connection with
such registration; provided, however, that no such Person shall be required to
make any representations or warranties in connection with any such registration
other than representations and warranties as to (i) such Person's ownership of
his or its Registrable Securities to be sold or transferred free and clear of
all liens, claims and encumbrances, (ii) such Person's power and authority to
effect such transfer and (iii) such matters pertaining to compliance with
securities laws as may be reasonably requested; provided further, however, that
the obligation of such Person to indemnify pursuant to any such underwriting
agreements shall be several, not joint and several, among such Persons selling
Registrable Securities, and the liability of each such Person will be in
proportion to, and provided further that such liability will be limited to, the
net amount received by such Person from the sale of such Person's Registrable
Securities pursuant to such registration.
5.2 RULE 144
The Company covenants that it will file any reports required to be filed by it
under the Securities Act and the Exchange Act and that it will take such further
action as the Liberty Holders may reasonably request to the extent required from
time to time to enable the Liberty Holders to sell Registrable Securities
without registration under the Securities Act within the limitation of the
exemptions provided by Rule 144 under the Securities Act, as such Rule may be
amended from time to time, or any similar rule or regulation hereafter adopted
by the Commission. Upon the request of any Liberty Holder, the Company will
deliver to such Liberty Holder a written statement as to whether it has complied
with such reporting requirements.
5.3 HOLDBACK AGREEMENTS
For so long as the Liberty Holders own 10% or more of any class of capital stock
of the Company, subject to their rights pursuant to Sections 2.1 and 2.2 hereof,
each Liberty Holder and the Company agrees that if
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requested by the managing Underwriters in an underwritten public offering of
equity securities of the Company (including debt securities convertible or
exchangeable for such equity securities), whether for the account of the Company
or another Person, it will not effect any public offer to sell, sale or
distribution, including pursuant to Rule 144 under the Securities Act, of any
equity security of the Company (or any such convertible or exchangeable debt
security), in each case other than as part of such underwritten public offering
and subject to other customary exceptions, during the seven days prior to, and
during the 180-day period (or such lesser period as the managing Underwriters
may require) beginning on the effective date of the registration statement for
such underwritten offering (or, in the case of an offering pursuant to a Shelf
Registration, the pricing date for such underwritten offering), provided that in
connection with such underwritten offering each officer and director of the
Company and each Founder is subject to restrictions identical to those imposed
on the Liberty Holders.
5.4 TERMINATION
The registration rights granted under this Agreement will terminate at such time
as there shall no longer be any Registrable Securities.
5.5 AMENDMENTS, WAIVERS, ETC.
This Agreement may not be amended, waived or otherwise modified or terminated
except by an instrument in writing signed by the Company and the holders of at
least 50% of the Registrable Securities then held by all the Liberty Holders.
5.6 COUNTERPARTS
This Agreement may be executed in one or more counterparts, all of which shall
be considered one and the same agreement. Each party need not sign the same
counterpart.
5.7 ENTIRE AGREEMENT
This Agreement constitutes the entire agreement and supersedes all prior
agreements and understandings, both written and oral, among the parties with
respect to the subject matter hereof.
5.8 GOVERNING LAW
This Agreement shall be governed by, and construed in accordance with, the
internal laws of the State of Colorado regardless of the laws that might
otherwise govern under applicable principles of conflicts of law thereof.
5.9 ASSIGNMENT OF REGISTRATION RIGHTS
Each Liberty Holder may assign all or any part of its rights under this
Agreement to any Person to whom such Liberty Holder sells, transfers, assigns or
pledges Registrable Securities. If a Liberty Holder shall assign its rights
pursuant to this Agreement in connection with the transfer of less than all its
Registrable Securities, such Liberty Holder shall also retain its rights with
respect to its remaining Registrable Securities.
5.10 NOTICES
All notices, demands, requests, consents, approvals or other communications
(collectively, "Notices") required or permitted to be given hereunder or that
are given with respect to this Agreement shall be in writing and shall be
delivered personally, telecopied (if receipt thereof is confirmed to the Person
to whom sent), sent by nationally recognized overnight delivery service with
charges prepaid or mailed by registered or certified mail with charges prepaid
(if return receipt is requested), addressed (a) as set forth below, (b) to such
other address as a party shall have specified most recently by written notice to
other parties or (c) in the case of Notice to a Liberty Holder for whom an
address has not been provided pursuant to this Section 5.10, to the address of
such Liberty Holder as shown on the stock transfer books of the Company on the
date of such
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Notice. Notice shall be deemed given on the date of transmission if transmitted
by facsimile (with oral confirmation of receipt). Notice otherwise sent as
provided herein shall be deemed given when actually delivered (or when delivery
is refused) by hand, by certified mail or by overnight courier service.
To the Company:
UnitedGlobalCom, Inc.
0000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Attn: General Counsel
Telephone: (000) 000-0000
Fax: (000) 000-0000
with a copy to:
Holme Xxxxxxx & Xxxx LLP
0000 Xxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Attn: W. Xxxx Xxxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
To Liberty Media or Liberty:
Liberty Media Corporation
00000 Xxxxxxx Xxxxxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attn: General Counsel
Telephone:(000) 000-0000
Fax: (000) 000-0000
with a copy to:
Xxxxx Xxxxx L.L.P.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxxxx Xx.
Telephone: (000) 000-0000
Fax: (000) 000-0000
and
Xxxxxxx & Xxxxxx
633 17th Street, suite 3000
Xxxxxx, Xxxxxxxx 00000
Attn: Xxx X. Xxxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
5.11 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 hereof and not to any particular
article, section or other subdivision hereof or attachment hereto; 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
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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.
IN WITNESS WHEREOF, each of the parties has caused this Agreement to be signed
on its behalf by its officer thereunto duly authorized as of the date first
written above.
NEW UNITEDGLOBALCOM, INC.
By:
------------------------------------
Name:
Title:
LIBERTY MEDIA CORPORATION
By:
------------------------------------
Name:
Title:
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