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EXHIBIT 4.3
[FORM OF]
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of ___, 200_ (this
"Agreement"), among:
A. Sumitomo Corporation, a company incorporated in Japan
whose principal place of business is at 0-0-0 Xxxxxxxxxxxx, Xxxxxxx-xx,
Xxxxx 000-0000, Xxxxx ("SC");
B. Liberty Jupiter, Inc., a company incorporated in the
State of Delaware, United States of America, whose principal place of
business is at 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx 00000
("LJ");
C. Liberty Japan, Inc., a company incorporated in the
State of Delaware, United States of America, whose principal place of
business is at 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx 00000
("Liberty Japan");
D. Microsoft Holdings V, Inc., a company incorporated in
the State of Nevada whose principal place of business is at Xxx Xxxxxxxxx
Xxx, Xxxxxxx, Xxxxxxxxxx 00000-0000 ("MS Holdings");
E. Jupiter Telecommunications Co., Ltd., a company
incorporated in Japan, whose principal place of business is at
Higashi-Ikebukuro Building, 4-41-24, Higashi Ikebukuro, Toshima-ku, Tokyo
170-0013 (the "Company").
WHEREAS, each party hereto other than the Company currently
owns Equity Securities of the Company;
WHEREAS, the Company is proposing to undertake an IPO of its
Equity Securities in Japan and the United States;
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WHEREAS, concurrently with the execution and delivery of this
Agreement SC, LJ, Liberty Japan and MS Holdings are entering into a Shareholders
Agreement, dated ___, 200_ (the "Major Shareholders Agreement"), which contains
certain agreements among the parties concerning the Company after the IPO;
WHEREAS, in consideration for their consent to, and support
of, the IPO and other good and valuable consideration the receipt and
sufficiency of which is hereby acknowledged by the Company, the Company has
agreed to grant to the Shareholders the registration and other rights specified
in this Agreement;
NOW, THEREFORE, the parties hereto agree as follows:
1. Definitions
1.1. Defined Terms from Major Shareholders Agreement. All terms not
defined herein that are defined in the Major Shareholders Agreement shall have
the meanings assigned to such terms in the Major Shareholders Agreement.
1.2. Other Defined Terms. In addition to the capitalized terms defined
elsewhere in this Agreement, the following defined terms shall have the meanings
set forth below:
(a) "Affiliate" shall have the meaning assigned to such term in
Rule 405 promulgated by the Commission under the Securities Act.
(b) "Board of Directors" shall mean the Board of Directors of the
Company.
(c) "Commission" shall mean the U.S. Securities and Exchange
Commission.
(d) "Exchange Act" shall mean the U.S. Securities Exchange Act of
1934, as amended.
(e) "Prospectus" shall mean the prospectus included in any
Registration Statement, as amended or supplemented by any prospectus supplement
with respect to the terms of the offering of any portion of the Registrable
Securities covered by such Registration Statement and by all other amendments
and supplements to the prospectus, including post-effective amendments and all
material incorporated by reference in such prospectus.
(f) "Registrable Securities" shall mean (a) any Equity Securities
of the Company or any of its Associates owned by any Shareholder or which such
Shareholder has the right to acquire upon conversion, exchange or exercise of
any other securities of the Company or any of its Associates, (b) any other
securities
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issued or distributed with respect to, or in exchange for, such Equity
Securities or other securities pursuant to any reclassification, merger,
consolidation, reorganization or other transaction and (c) any American
Depositary Shares ("ADSs") representing any of the foregoing and evidenced by
American Depositary Receipts ("ADRs"), in each case other than Unrestricted
Securities.
(g) "Registration" shall mean a Demand Registration or a Piggyback
Registration.
(h) "Registration Expenses" means all expenses incident to the
Company's performance of or compliance with any Registration of Registrable
Securities pursuant to this Agreement, including without limitation (i) all
registration and filing fees and other expenses associated with filings required
to be made with the Commission or the National Association of Securities
Dealers, Inc. (the "NASD") (including, if applicable, the fees and expenses of
any "qualified independent underwriter" and its counsel as may be required by
the rules and regulations of the NASD), (ii) all fees and expenses of listing
the Registrable Securities on any stock exchange or quoting them on any
inter-dealer quotation system upon which the Registrable Securities are listed
or quoted, (iii) any deposit or other fees required to exchange Registrable
Securities for ADRs, (iv) all fees and expenses of complying with state
securities or blue sky laws (including fees and disbursements of the counsel
responsible for effecting such compliance and determining the eligibility of the
Registrable Securities for investment under the laws of the states in which they
will be offered and sold), (v) all word processing, duplicating and printing
expenses, messenger and delivery expenses (including expenses for printing
certificates for the Registrable Securities in a form eligible for deposit with
The Depository Trust Company and of the printing of prospectuses), (vi) the fees
and disbursements of counsel for the Company and of its independent public
accountants, including the expenses of any due diligence, legal opinions,
special audits or "comfort" letters required by or incident to such performance
and compliance, (vii) premiums and other costs of policies of insurance obtained
by the Company against liabilities arising out of the public offering of
Registrable Securities being registered, (viii) all internal expenses of the
Company (including but not limited to all salaries and expenses of its
directors, officers and employees) and (ix) any fees and disbursements of
underwriters customarily paid by issuers for United States registered offerings;
provided, however, that Registration Expenses shall not include (A) any fees and
disbursements of counsel retained by any Shareholder, (B) any premiums and other
costs of policies of insurance obtained by any Shareholder or their agents or
underwriter against liabilities arising out of the public offering of the
Registrable Securities being registered, (C) any fees and disbursements of
underwriters customarily paid by sellers of securities who are not the issuers
of such securities and (D) all underwriting discounts and commissions, if any,
relating to Registrable Securities.
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(i) "Registration Statement" shall mean any registration statement
of the Company relating to any Registration, including the Prospectus,
amendments and supplements to such Registration Statement, including
post-effective amendments, all exhibits and all material incorporated by
reference in such Registration Statement.
(j) "Securities Act" shall mean the U.S. Securities Act of 1933,
as amended.
(k) "Shareholder" means each Original Shareholder and each of
Itochu and Toshiba.
(l) "underwritten registration" or "underwritten offering" shall
mean a sale of securities of the Company to an underwriter for reoffering to the
public.
(m) "Unrestricted Security" means any Registrable Security that
(i) has been registered under the Securities Act or transferred in compliance
with Rule 144 under the Securities Act (or any successor provision), in each
case in circumstances under which such Registrable Securities may thereafter be
freely offered and sold in the United States without registration or restriction
under the Securities Act or (ii) is transferable pursuant to paragraph (k) of
Rule 144 under the Securities Act (or any successor provision thereto).
2. Registration Rights
2.1. Demand Registrations.
(a) Subject to the terms and conditions of this Section 2.1, each
Original Shareholder shall have the right to require the Company to register
under the Securities Act the offer and sale of all or a portion of such Original
Shareholder's Registrable Securities (each such registration of such Registrable
Securities and any other securities registered together therewith, a "Demand
Registration") by delivering to the Company a written demand therefor (each, a
"Demand Notice"); provided, however, that (i) no Original Shareholder shall be
entitled to effect any Demand Registration unless its Combined Percentage
Entitlement is at least 5% as of the date on which it delivers the Demand Notice
to the Company, (ii) no Original Shareholder shall be entitled to effect more
than four Demand Registrations, (iii) each Demand Notice must relate to
Registrable Securities with a fair market value of at least US$25 million as of
the date on which the Demand Notice is delivered to the Company, and (iv) once a
Demand Notice has been delivered, no other Demand Notice may be delivered by any
Original Shareholder or be effective until the delivered Demand Notice has been
withdrawn or the distribution of the Registered Securities covered thereby has
been completed. The Original Shareholder who delivers the Demand Notice in
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respect of any Demand Registration is referred to herein as the "Demanding
Shareholder".
Each Demand Notice shall specify the kind and aggregate amount of
Registrable Securities to be registered and the intended methods of distribution
thereof [, which must be reasonably likely to result in a wide distribution of
the Registrable Securities being offered]. The Company shall be deemed to
have effected a Demand Registration if (i) the Registration Statement relating
to such Demand Registration is declared effective by the Commission and remains
effective for at least 180 days (or such shorter period ending on the first date
on which all the Registrable Securities covered by such Registration Statement
have been sold or such Registration Statement is withdrawn by the Demanding
Shareholder); provided, however, that no Demand Registration shall be deemed to
have been effected if (x) such Demand Registration, after it has become
effective, is interfered with by any stop order, injunction or other order or
requirement of the Commission or other governmental agency or court or (y) the
conditions to closing specified in the purchase agreement or underwriting
agreement entered into in connection with such registration are not satisfied or
(ii) at any time after the delivery of a Demand Notice and prior to the
effectiveness of the related Registration Statement, the preparation of such
Registration Statement is discontinued or such Registration Statement is
withdrawn or abandoned at the request of the Demanding Shareholder unless either
(x) the Demanding Shareholder has elected to pay and has paid to the Company in
full the Registration Expenses in connection with such Registration Statement or
(y) such discontinuation, withdrawal or abandonment is requested by the
Demanding Shareholder because of the occurrence of a significant negative change
in market conditions or Jupiter's business, financial condition, results of
operations or prospects since the date on which the Demand Notice was delivered.
(b) Participation and Priority in Demand Registrations. Promptly
(and in no event later than five Business Days) after it shall have received a
Demand Notice, the Company shall provide a copy thereof to each Shareholder
other than the Demanding Shareholder (the "Other Shareholders") and each Other
Shareholder shall be entitled to include all or any portion of its Registrable
Securities in the Demand Registration by written notice delivered to the Company
within ten Business Days after it shall have received the Demand Notice;
provided, however, that (i) no Other Shareholder may include in any Demand
Registration Registrable Securities having an aggregate fair market value of
less than US$5 million as of the date on which the Demand Notice was delivered
to the Company, (ii)
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in order to participate in any Demand Registration, all of the Registrable
Securities of the Other Shareholders to be included therein must be offered and
sold in the manner described in the related Demand Notice and pursuant to the
same underwriting agreement or other selling arrangements entered into or
approved by the Demanding Shareholder and each participating Other Shareholder
must promptly complete and/or execute and [return] all questionnaires, powers of
attorney, lock-up agreements, custody agreements and other documents that the
Demanding Shareholder and/or the managing underwriter or agent appointed by it
may reasonably require in connection with such offers and sales and otherwise
comply with the registration procedures applicable to such Registration and
distribution and (iii) if the managing underwriter or agent appointed by the
Demanding Shareholder for the offering pursuant to a Demand Registration (or, if
no such managing underwriter or agent is being used, the Demanding Shareholder),
advises the Other Shareholders in writing that in its opinion the number of
Registrable Securities requested to be included in such Demand Registration by
such Other Shareholders exceeds the number of Registrable Securities of the
Other Shareholder which can be included without materially adversely effecting
the pricing, timing or likelihood of success of the distribution of the
Registrable Securities by the Demanding Shareholder pursuant to such Demand
Registration (the "Maximum Other Shareholder Amount"), then the number of
Registrable Securities registered in the Demand Registration shall be (i) all
the Registrable Securities of the Demanding Shareholder specified in the Demand
Notice and (ii) the Maximum Other Shareholder Amount of the Registrable
Securities requested to be included therein by the Other Shareholders, allocated
pro rata among such Other Shareholders based on the respective amounts they
sought to have included in such Demand Registration. The inclusion of
Registrable Securities of any Other Shareholder in a Demand Registration shall
not be deemed to constitute a Demand Registration effected by such Other
Shareholder.
(c) The Company's Right to Defer Demand Registration. If the
Company is asked to effect a Demand Registration and it furnishes to the
Demanding Shareholder a copy of a resolution of the Board of Directors certified
by the Secretary of the Company stating that in the good faith judgment of the
Board of Directors it would be adverse to the Company and its shareholders for
such Registration Statement to be filed or declared effective on or before the
date such filing or effectiveness would otherwise be required hereunder because
such registration would require the disclosure of material non-public
information concerning the Company or any possible acquisition, corporate
reorganization or other material business transaction involving the Company or
any of its
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Associates (excluding in each case financing transactions with respect to which
actions have not been completed prior to the delivery of a Demand Notice), the
Company shall have the right to postpone such filing or effectiveness for a
reasonable period not to exceed 90 days after receipt of the Demand Notice;
provided, however, that (i) the Company may not effect any such postponements
for more than 120 days in the aggregate during any consecutive 12 month period
and (ii) if within 60 days after the date on which it receives such resolution
the Demanding Shareholder advises the Company in writing that the Demanding
Shareholder has decided to withdraw its Demand Notice, then such Demand
Registration shall be deemed to be withdrawn by it and shall not constitute one
of the four Demand Registrations to which such Demanding Shareholder is entitled
under this Section 2.1. The Company will notify the Demanding Shareholder when
it elects to terminate any such postponement.
(d) Registration Statement Form. Registrations under this Section
2.1 shall be on such appropriate registration form of the Commission as shall be
reasonably selected by the Demanding Shareholder and as shall permit the
disposition of the Demanding Shareholder's Registrable Securities in accordance
with the intended method or methods of disposition specified in its Demand
Notice.
(e) Selection of Underwriters or Agents. If any offering pursuant
to a Demand Registration involves underwriters or other selling agents, the
Demanding Shareholder shall have the right to select such underwriters or
agents, subject to the consent of the Company, which consent shall not be
unreasonably withheld or delayed.
2.2. Piggyback Registrations.
(a) Participation. Subject to Section 2.2(b) hereof, if at any
time and from time to time after the date hereof, the Company proposes to file a
Registration Statement under the Securities Act with respect to any offering of
any equity securities by the Company for its own account or for the account of
any of its securityholders (other than (i) a Demand Registration, (ii) a
registration on Form X-0, X-0 or S-8 or any successor form to such forms, (iii)
any registration of securities that relates to an offering and sale to
management of the Company or its Associates pursuant to any employee stock plan
or other employee benefit plan arrangement and (iv) a registration relating to a
rights offering or dividend reinvestment plan) (each, a "Piggyback
Registration") then, as soon as practicable (but in no event less than 15
Business Days prior to filing such Registration Statement), the Company shall
give written notice of such proposed filing (a "Piggyback Notice") to each
Original Shareholder which shall offer to each Original Shareholder the
opportunity to register the offer and sale of all or any portion of its
Registrable Securities under such Registration Statement and shall specify
whether the offering is to be underwritten or is to be distributed on another
basis.
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Subject to the foregoing and Section 2.2(b), the Company shall include in such
Registration Statement all Registrable Securities as to which any Original
Shareholder requests Piggyback Registration by written notice delivered to the
Company within ten Business Days after the date on which it received the
Piggyback Notice; provided, however, that if, at any time after the Piggyback
Notice has been given and prior to the effective date of the Registration
Statement filed in connection with such Registration, the Company determines for
any reason not to register or to delay registration of such securities, the
Company may, at its election, give written notice of such determination to the
Shareholders and, thereupon, (i) in the case of a determination not to register,
the Company shall be relieved of its obligation to register any Registrable
Securities in connection with such Piggyback Registration (but not from its
obligation to pay the Registration Expenses in connection therewith and without
any prejudice to any rights of the Original Shareholders to request a Demand
Registration under Section 2.1), and (ii) in the case of a determination to
delay registering, shall be permitted to delay registering any Registrable
Securities, for the same period as the delay in registering such other
securities. If the offering pursuant to such Registration Statement is to be
underwritten, then the Original Shareholders must participate in such
underwritten offering and shall not be permitted to make any other offering in
connection with such Registration. If the offering pursuant to such Registration
Statement is to be on any other basis, then, if any Original Shareholder makes a
request for a Piggyback Registration pursuant to this Section 2.2(a), it must
participate in such offering on such basis and it shall not be permitted to make
any other offering in connection with such Registration. Any Original
Shareholder shall be permitted to withdraw all or part of its Registrable
Securities from a Piggyback Registration at any time prior to the effective date
of the Registration Statement relating thereto.
(b) Priority. The Company shall use its commercially reasonable
efforts to cause the managing underwriter or underwriters of a proposed
underwritten offering to permit the Registrable Securities requested to be
included in the Registration for such offering under Section 2.2(a) ("Piggyback
Securities") to be included on the same terms and conditions as any similar
securities included therein. Notwithstanding the foregoing, if the managing
underwriter or underwriters of any such proposed underwritten offerings informs
the Company and each Original Shareholder who has requested that its Registrable
Securities be included in the Piggyback Registration in writing that the total
amount or kind of securities, including Piggyback Securities, which the Company,
the Original Shareholders and any other persons or entities intend to include in
such offering exceeds the number which can be sold without a material adverse
effect
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on the pricing, timing or likelihood of success of the distribution of the
securities being offered and sold pursuant to such Registration (the "Maximum
Number"), then the securities to be included in such Registration shall be
reduced to the Maximum Number and included based on the following priority (i)
in the case of a Piggyback Registration initiated by the Company for sales of
securities for its own account (A) first, the securities that the Company
proposes to sell, (B) second, the Registrable Securities the Original
Shareholders have requested be included in the Piggyback Registration allocated
pro rata based on the respective amounts so requested, and (C) third, the
securities of any other holders seeking to participate in such Registration
pursuant to a contractual rights of registration and (ii) in the case of a
registration initiated by a holder of securities of the Company for its own
account (A) first, the securities that such holder requesting registration
proposes to sell, (B) second, the Registrable Securities the Original
Shareholders have requested be included in the Piggyback Registration allocated
pro rata based on the respective amounts so requested, (C) third, any securities
that the Company proposes to sell for its own account and (D) fourth, the
securities of any other holders seeking to participate in such Registration
pursuant to a contractual rights of registration.
(c) No Effect on Demand Registrations. No Registration of
Registrable Securities effected pursuant to a request under this Section 2.2
shall be deemed to be a Demand Registration or shall relieve the Company of its
obligation to effect any Demand Registration under Section 2.1 hereof.
2.3. Hold-Back Agreements.
(a) Restrictions on Public Sale by the Shareholders. In connection
with any Piggyback Registration by the Company of the offering of securities for
its own account, each Original Shareholder agrees until the time its Combined
Percentage Entitlement is no longer equal to 5% or more, if requested by (i) the
Company, or (ii) the managing underwriters for such offering, not to effect any
public sale or distribution of securities of the Company the same as or similar
to those being registered in such Piggyback Registration, or any securities
convertible into or exchangeable or exercisable for such securities, including a
sale pursuant to Rule 144 under the Securities Act, (except as part of such
Piggyback Registration) during the seven day period prior to, and during the 90
day period beginning on, the effective date of any Registration Statement or, if
later, the commencement of the public distribution of securities as notified to
the Shareholders in writing by the Company or the managing underwriters.
(b) Restrictions on Public Sale by the Company and Others. The
Company agrees not to file a Registration Statement in connection with a
Piggyback Registration after it has received a Demand Notice and prior to the
withdrawal thereof or completion of the distribution of the Registrable
Securities covered thereby without the prior written consent of the Demanding
Shareholder. In addition, the Company agrees, if requested by the Demanding
Shareholder or
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the managing underwriter in an underwritten offering, not to effect any public
sale or distribution of any securities the same as or similar to those being
registered by the Company, or any securities convertible into or exchangeable or
exercisable for such securities, during the seven day period prior to, and
during the 90-day period beginning on, the effective date of the Registration
Statement filed under Section 2.1 or, if later, the commencement of the public
distribution of securities as timely notified to the Company in writing by the
Demanding Shareholder or the managing underwriters. The Company agrees to use
reasonable efforts to obtain from each holder of restricted securities of the
Company the same as or similar to those being registered by the Company in such
Demand Registration, or any restricted securities convertible into or
exchangeable or exercisable for any of its securities, an agreement not to
effect any public sale or distribution of such securities during such period.
(c) Other Registration Rights Agreements. The Company may enter
into any other registration rights agreement; provided, however, that the rights
and benefits of a securityholder with respect to registration of the Company's
securities as contained in any such other agreement shall not be inconsistent
with, and shall be no more favorable to such securityholders than, the rights
and benefits of holders of Registrable Securities as contained in this
Agreement.
2.4. Registration Procedures. In connection with the Company's
Registration obligations pursuant to Sections 2.1 and 2.2 hereof, the Company
will use its commercially reasonable efforts to effect such registration to
permit the sale of such Registrable Securities in accordance with the intended
method or methods of distribution thereof, and pursuant thereto the Company will
as expeditiously as possible:
(a) prepare and, in the case of a Demand Registration not later
than 45 days after receipt of any Demand Notice, file with the Commission a
Registration Statement or Registration Statements relating to the applicable
Demand Registration or Piggyback Registration including all exhibits and
financial statements required by the Commission to be filed therewith, and use
its commercially reasonable efforts to cause such Registration Statement to
become effective under the Securities Act as soon as practicable; provided,
however, that the Company may discontinue any Registration of its securities
that are not Registrable Securities (and, under the circumstances specified in
Section 2.1(c), may postpone and, under the circumstances specified in Section
2.2(a), may postpone or discontinue Registration of its securities which are
Registrable Securities) at any time prior to the effective date of the
Registration Statement relating thereto;
(b) prepare and file with the Commission such amendments and
post-effective amendments to the Registration Statement as may reasonably be
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requested by any Demanding Shareholder or as may be necessary to keep the
Registration Statement effective for a period of not less than 180 days (or such
shorter period ending on the first date on which all Registrable Securities
covered by such Registration Statement have been sold or such Registration
Statement is withdrawn), or, if such Registration Statement relates to an
underwritten offering, such longer period as in the opinion of counsel for the
underwriters a Prospectus is required by law to be delivered in connection with
sales of Registrable Securities by an underwriter or dealer; cause the
Prospectus to be supplemented by any required Prospectus supplement, and as so
supplemented to be filed pursuant to Rule 424 under the Securities Act; and
comply with the provisions of the Securities Act, the Exchange Act, and the
rules and regulations promulgated thereunder with respect to the disposition of
all securities covered by such Registration Statement during the applicable
period in accordance with the intended method or methods of distribution set
forth in such Registration Statement or supplement to the Prospectus;
(c) notify each Original Shareholder participating in the
Registration (each, a "Participating Shareholder") and the managing
underwriters, if any, and (if requested) confirm such advice in writing, as soon
as practicable after notice thereof is received by the Company (i) when the
Registration Statement or any amendment thereto has been filed or becomes
effective, the Prospectus or any amendment or supplement to the Prospectus has
been filed, and, to furnish to each Participating Shareholder and the managing
underwriters, if any, with copies thereof, (ii) of any request by the Commission
or any other federal or state governmental authority for amendments or
supplements to the Registration Statement or the Prospectus or for additional
information, (iii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or any order
preventing or suspending the use of any preliminary prospectus or Prospectus or
the initiation or threatening of any proceedings for such purposes, (iv) if at
any time the representations and warranties of the Company contemplated by
paragraph (m) below cease to be true and correct and (v) of the receipt by the
Company of any notification with respect to the suspension of the qualification
of the Registrable Securities for offering or sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose;
(d) promptly notify each Participating Shareholder and the
managing underwriters, if any, when the Company becomes aware of the happening
of any event as a result of which the Registration Statement or the Prospectus
included in such Registration Statement (as then in effect) contains any untrue
statement of a material fact or omits to state a material fact required to be
stated therein or necessary to make the statements therein (in the case of the
Prospectus and any preliminary prospectus, in the light of the circumstances
under which they were made) not misleading or, if for any other reason it shall
be necessary during such time period to amend or supplement the Registration
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Statement or the Prospectus in order to comply with the Securities Act and, in
either case as promptly as practicable thereafter, prepare and file with the
Commission, and furnish without charge to the Participating Shareholders and the
managing underwriters, if any, a supplement or amendment to such Registration
Statement or Prospectus which will correct such untrue statement or omission or
effect such compliance;
(e) make every reasonable effort to prevent the issuance or to
obtain the withdrawal of any stop order or other order suspending the use of any
preliminary prospectus or Prospectus or suspending any registration or
qualification of the Registrable Securities;
(f) if requested by the managing underwriter or underwriters or a
Demanding Shareholder, promptly incorporate in a Prospectus supplement or
post-effective amendment such information as the managing underwriters or such
Demanding Shareholder agree should be included therein relating to the plan of
distribution with respect to such Registrable Securities, including, without
limitation, information with respect to the number of Registrable Securities
being sold to such underwriters, the purchase price being paid therefor by such
underwriters and with respect to any other terms of the offering of the
Registrable Securities to be sold in such offering; and make all required
filings of such Prospectus supplement or post-effective amendment as soon as
practicable after being notified of the matters to be incorporated in such
Prospectus supplement or post-effective amendment;
(g) furnish to each Participating Shareholder and each managing
underwriter, without charge, one executed copy and as many conformed copies as
they may reasonably request, of the Registration Statement and any amendment or
post-effective amendment thereto, including financial statements and schedules,
all documents incorporated therein by reference and all exhibits (including
those incorporated by reference);
(h) deliver to each Participating Shareholder and the
underwriters, if any, without charge, as many copies of the Prospectus
(including each preliminary prospectus) and any amendment or supplement thereto
as they may reasonably request (it being understood that the Company consents to
the use of the Prospectus or any amendment or supplement thereto by a
Participating Shareholder and the underwriters, if any, in connection with the
offering and sale of the Registrable Securities covered by the Prospectus or any
amendment or supplement thereto) and such other documents as a Participating
Shareholder may reasonably request in order to facilitate the disposition of the
Registrable Securities by such Participating Shareholder;
(i) on or prior to the date on which the Registration Statement is
declared effective, use its best efforts to register or qualify, and cooperate
with
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the Participating Shareholders, the managing underwriter or agent, if any, and
their respective counsel in connection with the registration or qualification of
such Registrable Securities for offer and sale under the securities or blue sky
laws of each state and other jurisdiction of the United States as the
Participating Shareholders, any such underwriter or agent reasonably requests in
writing and do any and all other acts or things reasonably necessary or
advisable to keep such registration or qualification in effect for so long as
such Registration Statement remains in effect and so as to permit the
continuance of sales and dealings therein for as long as may be necessary to
complete the distribution of the Registrable Securities covered by the
Registration Statement; provided, however, that the Company will not be required
to qualify generally to do business in any jurisdiction where it is not then so
qualified or to take any action which would subject it to taxation or general
service of process in any such jurisdiction where it is not then so subject;
(j) cooperate with the Participating Shareholders and the managing
underwriter or agent, if any, to facilitate the timely preparation and delivery
of certificates representing Registrable Securities to be sold and not bearing
any restrictive legends; and enable such Registrable Securities to be in such
denominations and registered in such names as the Participating Shareholders or
any managing underwriters may request at least two business days prior to any
sale of Registrable Securities;
(k) use its commercially reasonable efforts to cause the
Registrable Securities covered by the applicable Registration Statement to be
registered with or approved by such other governmental agencies or authorities
as may be necessary to enable the seller or sellers thereof or the underwriters,
if any, to consummate the disposition of such Registrable Securities;
(l) not later than the effective date of the applicable
Registration Statement, provide a CUSIP number for all Registrable Securities
and provide the applicable transfer agent with printed certificates for the
Registrable Securities which are in a form eligible for deposit with The
Depository Trust Company;
(m) make such representations and warranties to the Participating
Shareholders and the underwriters or agents, if any, in form, substance and
scope as are customarily made by issuers in primary underwritten public
offerings;
(n) enter into such customary agreements (including a purchase
agreement or underwriting agreement) and take all such other actions as the
Participating Shareholders or the managing underwriter or agent, if any,
reasonably request in order to expedite or facilitate the registration and
disposition of such Registrable Securities;
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(o) obtain for delivery to the Participating Shareholders and to
the underwriter or agent an opinion or opinions from counsel for the Company,
upon consummation of the sale of such Registrable Securities to the underwriters
(the "Closing Date") in customary form and in form, substance and scope
reasonably satisfactory to the Participating Shareholders, such underwriters or
agents and their counsel;
(p) obtain for delivery to the Company, the Participating
Shareholders and the underwriter or agent or agents, if any, a "comfort letter"
from the Company's independent public accountants in customary form and covering
such matters of the type customarily covered by cold comfort letters as any
managing underwriter or any Participating Shareholder reasonably requests, dated
the effective date of the Registration Statement and Closing Date;
(q) cooperate with each Participating Shareholder and each
underwriter or agent participating in the disposition of such Registrable
Securities and their respective counsel in connection with any filings required
to be made with the NASD;
(r) use its commercially reasonable efforts to comply with all
applicable rules and regulations of the Commission and make generally available
to its security holders, as soon as reasonably practicable (but not more than
fifteen months) after the effective date of the Registration Statement, an
earnings statement satisfying the provisions of Section 11(a) of the Securities
Act and the rules and regulations promulgated thereunder;
(s) as promptly as practicable after filing with the Commission of
any document which is incorporated by reference into the Registration Statement
or the Prospectus, provide copies of such document to counsel for the
Participating Shareholders and to the managing underwriters or agents, if any;
(t) provide and cause to be maintained a transfer agent and
registrar for all Registrable Securities covered by such Registration Statement
from and after a date not later than the effective date of such Registration
Statement;
(u) use its commercially reasonable efforts to cause all
Registrable Securities covered by the Registration Statement to be listed on
each securities exchange on which any of the Company's securities are then
listed or quoted on each inter-dealer quotation system on which any of the
Company's securities are then quoted; and
(v) use its commercially reasonable efforts to assist the
Participating Shareholders and the managing underwriters or agents, if any, in
marketing the Registrable Securities that are included in any Registration,
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including causing its officers and employees to participate in such "roadshow"
and other investor presentations.
The Company may require a Participating Shareholder to furnish in
writing to the Company such information regarding distribution of such
securities and such other information relating to such Participating Shareholder
and its ownership of Registrable Securities as the Company may from time to time
reasonably request in writing (including, without limitation, all information
required by Item 507 of Regulation S-K promulgated by the United States
Securities and Exchange Commission). Each Participating Shareholder agrees to
furnish such information in writing to the Company and to cooperate with the
Company as reasonably necessary to enable the Company to comply with the
provisions of the Securities Act, the Exchange Act, the rules and regulations
under such acts and this Agreement.
Each Participating Shareholder agrees that, upon receipt of any
notice from the Company of the happening of any event of the kind described in
Section 2.4(d) hereof, such Participating Shareholder will forthwith discontinue
disposition of Registrable Securities pursuant to such Registration Statement
until it receives copies of the supplemented or amended Prospectus contemplated
by Section 2.4(d) hereof, any additional or supplemental filings which are
incorporated by reference in the Prospectus, or until it is advised in writing
by the Company that the use of the Prospectus may be resumed, and, if so
directed by the Company, such Participating Shareholder will deliver to the
Company (at the Company's expense) all copies, other than permanent file copies
then in such Participating Shareholder's possession, of the Prospectus covering
such Registrable Securities current at the time of receipt of such notice. In
the event the Company shall give any such notice, the time periods during which
such Registration Statement shall be maintained effective (including the period
referred to in Section 2.4(b) hereof) shall be extended by the number of days
during the period from and including the date of the giving of such notice to
and including the date when such Participating Shareholder either receives the
copies of the supplemented or amended Prospectus contemplated by Section 2.4(d)
hereof or is advised in writing by the Company that the use of the Prospectus
may be resumed.
2.5. Underwritten Offerings.
(a) Demand Registrations. If requested by the underwriters for any
underwritten offering by a Demanding Shareholder pursuant to a Registration
requested under Section 2.1, the Company will enter into an underwriting
agreement with such underwriters for such offering, such agreement to be in the
form reasonably required by the underwriters and the Demanding Shareholder and
to contain such representations and warranties by the Company and such other
terms as are generally prevailing in agreements of that type, including without
limitation indemnities to the effect and to the extent provided in Section 2.8
hereof. The Demanding Shareholder will cooperate with the Company in the
negotiation of the underwriting agreement and will give consideration to the
reasonable suggestion of the Company regarding the form thereof. The
Participating Shareholders shall be parties to
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such underwriting agreement and may, at their option, require that any or all of
the representations and warranties by, and the other agreements on the part of,
the Company to and for the benefit of such underwriters shall also be made to
and for the benefit of the Participating Shareholders and that any or all of the
conditions precedent to the obligations of such underwriters under such
underwriting agreement be conditions precedent to the obligations of the
Participating Shareholders. No Participating Shareholder shall be required to
make any representations or warranties to or agreements with the Company or the
underwriters other than representations, warranties or agreements relating to
such Participating Shareholder, information provided by such Shareholder, its
Registrable Securities and its intended method of distribution.
(b) Piggyback Registrations. If the Company proposes to register
any of its securities under the Securities Act as contemplated by Section 2.2
and such securities are to be distributed by or through one or more
underwriters, the Company will, if requested by any Participating Shareholders
pursuant to Section 2.2 but subject to the limitations contained in such
Section, use its commercially reasonable efforts to arrange for such
underwriters to include all the Registrable Securities to be offered and sold by
such Participating Shareholders among the securities of the Company to be
distributed by such underwriters. Such Participating Shareholders shall be
parties to the underwriting agreement between the Company and such underwriters
and may, at its option, require that any or all of the representations and
warranties by, and the other agreements on the part of, the Company to and for
the benefit of such underwriters shall also be made to and for the benefit of
such Participating Shareholder and that any or all of the conditions precedent
to the obligations of such underwriters under such underwriting agreement be
conditions precedent to the obligations of such Participating Shareholder. No
Participating Shareholder shall be required to make any representations or
warranties to or agreements with the Company or the underwriters other than
representations, warranties or agreements regarding such Participating
Shareholder, information provided by such Shareholder, its Registrable
Securities and its intended method of distribution.
(c) Participation in Underwritten Registration. No person may
participate in any underwritten registration hereunder unless such person (i)
agrees to sell such person's securities on the basis provided in any
underwriting arrangements approved by the persons entitled to approve such
arrangements and (ii) completes and executes all questionnaires, powers of
attorney, lock-up agreements, custody agreements, indemnities, underwriting
agreements and other documents required under the terms of such underwriting
arrangements.
2.6. Preparation; Reasonable Investigation. In connection with the
preparation and filing of each Registration Statement, the Company will give the
Participating Shareholders, the managing underwriters or agents, if any, and
their respective counsel and accountants the opportunity to participate in the
preparation of such Registration Statement, each Prospectus included therein or
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filed with Commission, and, to the extent practicable, each amendment thereof or
supplement thereto, and give each of them such access to its books and records
(to the extent customarily given to underwriters of an issuer's securities) and
such opportunities to discuss the business, affairs and operations of the
Company and its Associates with their directors, officers and employees and the
independent public accountants who have certified its financial statements as
shall be necessary or desirable, in the opinion of the Participating
Shareholders' and such underwriters' or agents' respective counsel, to conduct a
reasonable investigation within the meaning of the Securities Act; provided,
however, that any books, records, information or documents that are designated
by the Company in writing as confidential shall be kept confidential by such
persons unless disclosure thereof is required by law.
2.7. Registration Expenses. The Company will pay all the Registration
Expenses in connection with each Registration.
2.8. Indemnification.
(a) Indemnification by the Company. The Company agrees to
indemnify and hold harmless, to the full extent permitted by law, each
Participating Shareholder, its officers, directors, employees, partners,
shareholders and agents and each person who controls such Participating
Shareholder (within the meaning of the Securities Act or the Exchange Act)
(each, a "Shareholder Indemnified Person") from and against all losses, claims,
damages, liabilities and expenses (including reasonable costs of investigation
and legal expenses) arising out of or based upon any untrue or alleged untrue
statement of a material fact contained in any Registration Statement, Prospectus
or preliminary 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 not misleading, except to the extent, but only to the extent, that they
relate to information furnished in writing to the Company by such Participating
Shareholder expressly for use therein. This indemnity shall be in addition to
any liability the Company may otherwise have, shall remain in full force and
effect regardless of any investigation made by or on behalf of any Shareholder
Indemnified Person and shall survive termination of this Agreement and the
transfer of Registrable Securities by the Participating Shareholders. If
requested, the Company will also indemnify the underwriters, agents, brokers,
dealer managers and similar securities industry professionals participating in
the distribution, their officers, directors, employees partners, shareholders
and agents and each person who controls such persons (within the meaning of the
Securities Act and the Exchange Act) to the same extent as provided above with
respect to the indemnification of the holders of Registrable Securities.
(b) Indemnification by the Participating Shareholders. Each
Participating Shareholder agrees to indemnify and hold harmless, to the full
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extent permitted by law, the Company, its directors, officers and employees and
each person who controls the Company (within the meaning of the Securities Act
or the Exchange Act) (each, a "Company Indemnified Person") from and against any
losses, claims, damages, liabilities and expenses resulting from any untrue
statement of a material fact or any omission of a material fact required to be
stated in the Registration Statement, Prospectus or preliminary prospectus or
necessary to make the statements therein not misleading, to the extent, but only
to the extent, that such untrue statement or omission relates to any information
furnished in writing by such Participating Shareholder to the Company
specifically for inclusion in such Registration Statement or Prospectus and has
not been corrected in a subsequent writing prior to or concurrently with the
sale of the Registrable Securities to the person asserting such loss, claim,
damage, liability or expense. This indemnity shall be in addition to any
liability the Participating Shareholders may otherwise have, shall remain in
full force and effect regardless of any investigation made by or on behalf of
any Company Indemnified Person and shall survive termination of this Agreement
and the transfer of Registrable Securities by the Participating Shareholders.
The Company shall be entitled to receive indemnities from underwriters, agents,
brokers, dealer managers and similar securities industry professionals
participating in the distribution, to the same extent as provided above with
respect to information so furnished in writing to the Company by such persons
specifically for inclusion in any Prospectus or Registration Statement.
(c) Conduct of Indemnification Proceedings. Any Shareholder
Indemnified Person or Company Indemnified Person entitled to indemnification
hereunder (each, an "Indemnified Person") will (i) give prompt written notice to
the party or parties from whom such indemnification may be sought (each, an
"Indemnifying Person") of any claim with respect to which it intends to seek
indemnification hereunder and (ii) permit such Indemnifying Person to assume the
defense of such claim with counsel reasonably satisfactory to the Indemnified
Person; provided, however, that any delay or failure to so notify the
Indemnifying Person shall relieve the Indemnifying Person of its obligations
hereunder only to the extent, if at all, that it is actually prejudiced by
reason of such delay or failure; and provided, further, that from and after any
such assumption any Indemnified Person shall have the right to select and employ
separate counsel and to participate in the defense of such claim, but the fees
and expenses of such counsel shall be at the expense of such Indemnified Person
unless (i) the Indemnifying Person has agreed in writing to pay such fees or
expenses, (ii) the Indemnifying Person shall have failed to assume the defense
of such claim within ten Business Days after the date on which it received of
notice of such claim from the Indemnified Person and employ counsel reasonably
satisfactory to such Indemnified Person, or (iii) in the reasonable judgment of
such Indemnified Person, based upon advice of its counsel, an actual or
potential conflict of interest may exist between such Indemnified Person and the
Indemnifying Person
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with respect to such claims or if there are material defenses available to the
Indemnified Parties that are not available to the Indemnifying Party (in which
case, if the Indemnified Person notifies the Indemnifying Person in writing that
such Indemnified Person elects to employ separate counsel at the expense of the
Indemnifying Person, the Indemnifying Person shall not have the right to assume
the defense of such claim on behalf of such Indemnified Person). If such defense
is not assumed by the Indemnifying Person, no Indemnified Person shall be
entitled to indemnity hereunder in respect of the entry of any judgement made
with its consent or any settlement by it of any claim or action, in each case
without the prior written consent of the Indemnifying Person. No Indemnifying
Person shall consent to entry of any judgment or enter into any settlement which
admits or assigns fault or guilt to any Indemnified Person or which does not
include as an unconditional term thereof the giving by the claimant or plaintiff
to each Indemnifying Person of a release from all liability in respect to such
claim or litigation.
(d) Contribution. If for any reason the indemnification provided
for in the preceding paragraphs (a) and (b) is unavailable to an Indemnified
Person or insufficient to hold it harmless as contemplated by the preceding
paragraphs (a) and (b), then the Indemnifying Person shall contribute to the
amount paid or payable by the Indemnified Person as a result of such loss,
claim, damage or liability in such proportion as is appropriate to reflect the
relative fault of the Indemnified Person and the Indemnifying Person, as well as
any other relevant equitable considerations. 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.
2.9. Rules 144 and 144A. The Company covenants that it will file
the reports required to be filed by it under the Securities Act and the Exchange
Act and the rules and regulations adopted by the Commission thereunder (or, if
the Company is not required to file such reports, it will, upon the request of
any Original Shareholder make publicly available other information so long as
necessary to permit sales pursuant to Rule 144 or 144A under the Securities
Act), and it will take such further action as any Original Shareholder may
reasonably request, all to the extent required from time to time to enable the
Original Shareholder to sell Registrable Securities in the United States without
registration under the Securities Act within the limitation of the exemptions
provided by (i) Rules 144 or 144A under the Securities Act, as such Rules may be
amended from time to time, or (ii) any similar rule or regulation hereafter
adopted by the Commission.
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2.10 ADR Facility. At any time that any of the Registrable Securities
owned by any Original Shareholder are listed on a United States securities
exchange or quoted on an inter-dealer quotation system in the United States in
the form of ADRs, the Company shall ensure that there are available for
issuance a sufficient number of such ADRs to represent all such Registrable
Securities issuance upon the deposit therefore under the applicable ADR
facilities and such ADRs are registered under the Securities Act.
3. Miscellaneous.
3.1. Injunctive Relief. Remedies for breach by the Company of its
obligations to register the Registrable Securities shall be as otherwise set
forth herein. It is hereby agreed and acknowledged that it will be difficult to
measure in money the damages that would be suffered if the parties fail to
comply with any of the obligations herein imposed on them and that in the event
of any such failure, an aggrieved Person will be irreparably damaged and will
not have an adequate remedy at law. Any such Person shall, therefore, be
entitled to injunctive relief, including specific performance, to enforce such
obligations, and if any action should be brought in equity to enforce any of the
provisions of this Agreement, none of the parties hereto shall raise the defense
that there is an adequate remedy at law.
3.2. Notices. All notices, other communications or documents
provided for or permitted to be given hereunder, shall be made in writing and
shall be given either personally by hand-delivery, by facsimile transmission, by
mailing the same in a sealed envelope, registered first-class mail, postage
prepaid, return receipt requested, or by air courier guaranteeing overnight
delivery:
(a) If to the Company:
Jupiter Telecommunication Co., Ltd.
Higashi-Ikebukuro Building
4-41-24, Higashi Xxxxxxxxx
Xxxxxxx-Xx, Xxxxx 000-0000
Xxxxx
with copies to:
Xxxxxx & Xxxxxxx
00 Xxxxxxxxxx
Xxxxxx, XX0X 0XX
Xxxxxx Xxxxxxx
Telephone: 00(00) 0000 0000
Fax: 00(00) 0000 0000
(b) If to Sumitomo Corporation:
Sumitomo Corporation
0-0-0 Xxxxxxxxxxxx
Xxxxxxx-xx, Xxxxx 000-0000
Xxxxx
Attention: Tsuguhito Aoki
General Manager of CATV
And Satellite Business Department
Fax: 00 0 0000 0000
with copies to:
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Attention: Xxxxx Xxxxx
Deputy General Manager
Of Legal Department
(c) If to LJ or Liberty Japan, Inc.
c/o Liberty Media International
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
XXX
Telephone x0 000 0000000
Fax: x0 000 0000000
Attention: Xxxxxx Xxxxxx
with copies to:
Liberty Media International, Inc.
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
XXX
Telephone: x0 000 000 0000
Fax: x0 000 000 0000
Attention: Xxxxx Xxxxxxxx
(d) If to MS Holdings:
Microsoft Corporation
Xxx Xxxxxxxxx Xxx
Xxxxxxx, Xxxxxxxxxx 00000-0000
XXX
Telephone: (000) 000-0000
Fax: (000) 000-0000
Attention: Chief Financial Officer
with copies to:
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Xxxxxxxx & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
XXX
Telephone: (000) 000-0000
Fax: (000) 000-0000
Attention: Xxxxxx X. XxXxxxxxx
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Each party hereto, by written notice given to the other parties
hereto in accordance with this Section 3.2 may change the address to which
notices, other communications or documents are to be sent to such party. All
notices, other communications or documents shall be deemed to have been duly
given: (i) at the time delivered by hand, if personally delivered; (ii) when
receipt is acknowledged by electronic confirmation, if by facsimile
transmission; (iii) four business days after being deposited in the mail,
postage prepaid, if mailed; and (iv) on the next business day, if timely
delivered to a courier guaranteeing overnight delivery; provided, however, that
notices of a change of address shall be effective only upon receipt.
3.3. Successors and Assigns.
(a) This Agreement shall inure to the benefit of and be binding
upon the parties, and successors and assigns of each of the parties. Each
Original Shareholder may assign all or any portion of its rights and obligations
hereunder but only in connection with a transfer by it of Registrable Securities
pursuant to the major Shareholders Agreement and only with respect to those
Registrable Securities.
(b) Except as expressly provided in Section 2.8, all of the terms,
covenants and agreements contained in this Agreement are solely for the benefit
of the parties hereto and their respective successors and assigns as provided in
Section 3.3(a), and no other parties (including, without limitation, any other
stockholder or creditor of the Company, or any director, officer or employee of
the Company) are intended to be benefited by, or entitled to enforce, this
Agreement.
3.4. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York without reference
to the conflict of law principles thereof.
3.5. Headings. The headings in this Agreement are inserted herein
for convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
3.6. Severability. The provisions of this Agreement shall be
deemed severable and the invalidity or unenforceability of any provision shall
not affect the validity or enforceability of the other provisions hereof. If any
provision of this Agreement, or the application thereof to any person or any
circumstance, is
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invalid or unenforceable, (a) a suitable and equitable provision shall be
substituted therefor in order to carry out, so far as may be valid and
enforceable, the intent and purpose of such invalid or unenforceable provision
and (b) the remainder of this Agreement and the application of such provision to
other persons, entities or circumstances shall not be affected by such
invalidity or unenforceability, nor shall such invalidity or unenforceability
affect the validity or enforceability of such provision, or the application
thereof, in any other jurisdiction.
3.7. Entire Agreement; Amendment. This Agreement and the Major
Shareholders Agreement (with respect to the parties thereto) contains the entire
agreement among the parties hereto with respect to the subject matter contained
herein and supersedes all prior agreements, negotiations and understandings,
whether written or oral, with respect to the subject matter hereof. This
Agreement may not be amended, modified or supplemented, and waivers and consents
to departures from the provisions hereof may not be given, except by an
instrument in writing signed by the Company and the Shareholder(s) adversely
affected thereby.
3.8. Waiver. No action taken pursuant to this Agreement shall be
deemed to constitute a waiver by the party taking such action of compliance with
any covenants or agreements contained herein. No failure to exercise and no
delay in exercising any right, power or privilege of a party hereunder shall
operate as a waiver nor a consent to the modification of the terms hereof unless
given by that party in writing. The waiver by any party hereto of a breach of
any provision of this Agreement shall not operate or be construed as a waiver of
any preceding or succeeding breach.
3.9. Inspection. So long as this Agreement shall be in effect, this
Agreement shall be made available for inspection by a stockholder of the Company
at the principal offices of the Company.
3.10. Counterparts. This Agreement may be executed in any number
of counterparts and by the parties hereto in separate counterparts each of which
when so executed shall be deemed to be an original and of all which together
shall constitute one and the same agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this
instrument to be duly executed as of the date first written above.
JUPITER TELECOMMUNICATIONS CO., LTD.
By: ____________________________________
Name: _____________________________
Title: ____________________________
SUMITOMO CORPORATION
By: ____________________________________
Name: _____________________________
Title: ____________________________
LIBERTY JUPITER, INC.
By: ____________________________________
Name: _____________________________
Title: ____________________________
LIBERTY JAPAN, INC.
By: ____________________________________
Name: _____________________________
Title: ____________________________
MICROSOFT HOLDINGS V, INC.
By: ____________________________________
Name: _____________________________
Title: ____________________________
25
