EXHIBIT 99.1
LIBERTY MEDIA CORPORATION
and
THE BANK OF NEW YORK
Trustee
----------
TENTH SUPPLEMENTAL INDENTURE
dated March 26, 2003
----------
Supplementing the Indenture
dated as of July 7, 1999
----------
.75% Exchangeable Senior Debentures due 2023
TENTH SUPPLEMENTAL INDENTURE, dated the 26th day of March, 2003, between
LIBERTY MEDIA CORPORATION, a corporation existing under the laws of the State of
Delaware (the "Company"), and THE BANK OF NEW YORK, a New York banking
corporation, having its principal corporate trust office in The City of New
York, New York, as trustee (the "Trustee").
WHEREAS, the Company has heretofore executed and delivered to the Trustee
an Indenture dated as of July 7, 1999 (the "Original Indenture" and, as
supplemented to the date hereof, the "Indenture"), providing for the issuance by
the Company from time to time of its senior debt securities to be issued in one
or more series (in the Original Indenture and herein called the "Securities");
WHEREAS, the Company, in the exercise of the power and authority conferred
upon and reserved to it under the provisions of the Original Indenture and
pursuant to appropriate resolutions of the Board of Directors, has duly
determined to make, execute and deliver to the Trustee this Tenth Supplemental
Indenture to the Original Indenture in order to establish the form and terms of,
and to provide for the creation and issue of, a series of Securities designated
as the ".75% Exchangeable Senior Debentures due 2023" under the Original
Indenture in an aggregate principal amount of $1,500,000,000 (or up to
$1,750,000,000 if the Initial Purchasers exercise their overallotment option in
full) (the "Debentures");
WHEREAS, Section 901 of the Original Indenture provides, among other
things, that the Company, when authorized by a Board Resolution, and the
Trustee, at any time and from time to time, without the consent of any Holders,
may enter into an indenture supplemental to the Original Indenture to establish
the terms of Securities of any series as permitted by Sections 201 and 301 of
the Original Indenture; and
WHEREAS, all things necessary to make the Securities, when executed by the
Company and authenticated and delivered by the Trustee or any Authenticating
Agent and issued upon the terms and subject to the conditions hereinafter and in
the Indenture set forth against payment therefor, the valid, binding and legal
obligations of the Company and to make this Tenth Supplemental Indenture a
valid, binding and legal agreement of the Company, have been done.
NOW, THEREFORE, THIS TENTH SUPPLEMENTAL INDENTURE WITNESSETH that, in order
to establish the terms of the series of Securities designated as the ".75%
Exchangeable Senior Debentures due 2023," and for and in consideration of the
premises and of the covenants contained in the Original Indenture and in this
Tenth Supplemental Indenture and for other good and valuable consideration the
receipt and sufficiency of which are hereby acknowledged, it is mutually
covenanted and agreed as follows:
ARTICLE ONE
DEFINITIONS AND OTHER
PROVISIONS OF GENERAL APPLICATION
SECTION 101. DEFINITIONS.
Each capitalized term that is used herein and is defined in the Original
Indenture shall have the meaning specified in the Original Indenture unless such
term is otherwise defined herein, in which case such term shall have the meaning
specified herein.
"AOL TIME WARNER INC." shall mean AOL Time Warner Inc., a Delaware
corporation.
"AOL STOCK" shall mean the common stock of AOL Time Warner Inc., par value
$0.01 per share.
"ADDITIONAL DISTRIBUTION" shall mean any distribution to Holders of the
Debentures made pursuant to Section 206 in respect of a Reference Share
Distribution.
"ADJUSTED PRINCIPAL AMOUNT" shall mean, for each $1,000 Original Principal
Amount of the Debentures, $1,000, minus any and all Extraordinary Additional
Distributions and any Yield Adjustments made in respect of such Original
Principal Amount of Debentures pursuant to Section 204.
"AVERAGE TRANSACTION CONSIDERATION" shall mean, with respect to a holder of
one Reference Share subject to a Reference Share Offer, the quotient derived by
dividing (a) the aggregate amount of consideration actually paid or distributed
to all holders of Reference Shares that participated in such Reference Share
Offer, by (b) the total number of Reference Shares outstanding immediately prior
to the expiration of the Reference Share Offer of the type entitled to
participate in such Reference Share Offer.
"BUSINESS DAY" shall mean any day that is not a Saturday, Sunday or legal
holiday, on which banking institutions or trust companies in The City of New
York are authorized or obligated by law or regulation to close.
"CLOSING PRICE" shall mean, with respect to any security on any date of
determination, the closing sale price (or, if no closing sale price is reported,
the last reported sale price) of such security on such date as reported in the
composite transactions (or comparable system) for the principal United States
national or regional securities exchange on which such security is listed or a
recognized international securities exchange, or, if such security is not listed
on a principal United States national or regional securities exchange or on a
recognized international securities exchange, as reported by the Nasdaq National
Market, or, if such security is not so reported, the last quoted bid price for
the security in the over-the-counter market as reported by the National
Quotation Bureau or a similar organization. In the event that no such quotation
is available for that day, the Company shall cause the Board of Directors to
determine the Closing Price on the basis of those quotations that it, in good
faith, considers appropriate,
1
unless "Closing Price" is to be determined for purposes of valuing securities to
be distributed pursuant to a Reference Share Distribution and such securities
are expected to have an aggregate value in excess of $100,000,000, in which
event the Company shall cause the Closing Price to be determined by a nationally
recognized investment banking or appraisal firm appointed by the Company for
such purpose. If an "ex-dividend" date for a security occurs during the period
used in determining the security's Closing Price, the Closing Price of the
security on any day prior to such "ex-dividend" date shall be reduced by the
amount of the dividend. For this purpose, the amount of a non-cash dividend will
be equal to the value of that dividend, as of the record date therefor, as
determined by a nationally recognized investment banking firm retained by the
Company for this purpose.
"COMMON EQUITY SECURITIES" shall mean any securities (i) that are common
stock or participate without limitation in earnings and dividends in parity with
common stock and (ii) that are Marketable Securities. For greater certainty, the
term "Common Equity Securities" does not mean warrants, options or other rights
to purchase, or securities exchangeable or convertible into, Common Equity
Securities.
"COMPANY" shall mean the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of the Indenture, and thereafter "Company"
shall mean such successor Person, and any other obligor upon the Debentures.
"COMPANY COMMON STOCK" shall mean the Series A Common Stock par value $0.01
per share of the Company as it exists on the date hereof or any other Common
Equity Securities of the Company into which such Series A Common Stock may be
converted, changed or exchanged pursuant to any merger, consolidation,
reclassification, combination, subdivision, statutory share exchange or similar
transaction.
"CURRENT MARKET PRICE" shall mean the average of the daily volume weighted
average price ("VWAP") of the relevant security on the principal United States
national or regional securities exchange on which such security is listed or, if
not so listed, on the Nasdaq Stock Market during the period of trading days
prescribed herein for purposes of making such determination as reported by the
BLOOMBERG PROFESSIONAL Service provided by BLOOMBERG L.P. or, if such service is
no longer providing such information, such other comparable service as the
Company shall specify. To the extent that a relevant security is listed on the
New York Stock Exchange, the VWAP of the relevant security shall be determined
based on the Bloomberg function: "TICKER UN EQUITY AQR" or a successor function
on such service. If for whatever reason VWAP is unavailable for a Trading Day,
then the Closing Price of the relevant security on that Trading Day shall be
used in lieu of VWAP for purposes of determining the Current Market Price of the
relevant security. If an "ex-dividend" date for a security occurs during the
period used in determining the security's Current Market Price, the VWAP of the
security on any day prior to such "ex-dividend" date shall be reduced by the
amount of the dividend. For this purpose, the amount of a non-cash dividend will
be equal to the value of that dividend, as of the record date therefor, as
determined by a nationally recognized investment banking firm retained by the
Company for this purpose.
2
"DEBENTURE" shall mean $1,000 Original Principal Amount of the Debentures.
"DEBENTURES" shall mean the Company's .75% Exchangeable Senior Debentures
due 2023.
"DEPOSITORY" shall have the meaning assigned to it in the Original
Indenture.
"DTC" shall mean The Depository Trust Company.
"EXCHANGE AGENT" shall mean any Person authorized by the Company to act as
Exchange Agent under the Indenture. The Company initially authorizes the Trustee
to act as Exchange Agent for the Debentures on its behalf. The Company may at
any time and from time to time authorize one or more Persons (including the
Company) to act as Exchange Agent in addition to or in place of the Trustee with
respect to the Debentures.
"EXCHANGE DATE" shall mean, with respect to any Notice of Exchange, the
date on which the Notice of Exchange and all documents, instruments and payments
required to be tendered in connection with the related exchange have been
received by the Exchange Agent.
"EXCHANGE MARKET VALUE" shall mean, for each Reference Share attributable
to the Debentures at the date of determination, the Current Market Price of the
Reference Shares for the 15 scheduled Trading Day period commencing on the
fourth scheduled Trading Day following the Exchange Date. If there are fewer
than 15 Trading Days during such 15 scheduled Trading Day period, then the
Exchange Market Value shall be determined on the basis of the actual number of
Trading Days during such period. The aggregate Exchange Market Value of the
Reference Shares attributable to any Debenture for which a Notice of Exchange is
delivered to the Trustee shall equal the sum of the Exchange Market Values of
the Reference Shares attributable to such Debenture.
"EXTRAORDINARY ADDITIONAL DISTRIBUTION" shall mean any Additional
Distribution other than a Regular Additional Distribution, whether of cash,
securities or property; PROVIDED that in the event of a Reference Share Offer,
the amount of the Extraordinary Additional Distribution on each Debenture in
respect of such Reference Share Offer shall equal the portion of the Average
Transaction Consideration deemed to be received on the Reference Shares of the
class or series subject to the Reference Share Offer attributable to such
Debenture (immediately prior to giving effect to the Reference Share
Proportionate Reduction relating to that Reference Share Offer) other than the
portion of the Average Transaction Consideration that consists of Common Equity
Securities, which themselves become part of the Reference Shares as a result of
the Reference Share Offer Adjustment.
"EXTRAORDINARY DISTRIBUTION" shall mean any Reference Share Distribution
other than a Regular Cash Dividend.
"FINAL PERIOD DISTRIBUTION" shall mean, for each Debenture, (a) all Regular
Cash Dividends on any Reference Shares attributable to such Debenture for which
the ex-
3
dividend date has occurred but which, at the date of determination, have not
been received by the holders of such Reference Shares and (b) all Extraordinary
Distributions on any Reference Shares attributable to such Debenture for which
the ex-dividend date has occurred but which, at the date of determination, have
not been received by the holders of such Reference Shares, but only to the
extent that the value of such Extraordinary Distributions (determined in
accordance with Section 206(e) or (f)) exceeds the Adjusted Principal Amount of
such Debenture.
"INITIAL PURCHASERS" shall mean Banc of America Securities LLC and
X.X. Xxxxxx Securities Inc.
"INTEREST PAYMENT DATE" shall have the meaning assigned to it in Section
205.
"INTEREST PERIOD" shall mean each period from and including the most recent
Interest Payment Date or, if no interest has been paid on the Debentures, from
and including the issue date of the Debentures, to but excluding the next
applicable Interest Payment Date or the Stated Maturity of the principal of the
Debentures.
"MATURITY REPAYMENT AMOUNT" shall mean the Original Principal Amount or, if
the Original Principal Amount of the Debentures has been reduced pursuant to
Section 204(c), the Adjusted Principal Amount of the Debentures in effect on the
Stated Maturity for the principal of the Debentures.
"NOTICE OF EXCHANGE" shall mean the notice of exchange given to the
Exchange Agent by a Holder of its request to exchange Debentures pursuant to
Section 209(c).
"OPTIONAL REDEMPTION" shall mean any redemption of the Debentures, in whole
or in part, at the option of the Company pursuant to Section 208(a).
"ORIGINAL PRINCIPAL AMOUNT" shall mean the face value of $1,000 principal
amount per Debenture.
"PURCHASE PRICE" shall have the meaning set forth in Section 210(a).
"PURCHASE REPAYMENT AMOUNT" shall mean the Original Principal Amount or, if
the Original Principal Amount of the Debentures has been reduced pursuant to
Section 204(c), the Adjusted Principal Amount of the Debentures in effect on the
applicable Purchase Date.
"PUT NOTICE" shall have the meaning set forth in Section 210(f).
"PUT NOTICE DATE" shall have the meaning set forth in Section 210(f).
"REDEMPTION REPAYMENT AMOUNT" shall mean the Original Principal Amount or,
if the Original Principal Amount of the Debentures has been reduced pursuant to
Section 204(c), the Adjusted Principal Amount of the Debentures in effect on the
Redemption Date.
4
"REFERENCE COMPANY" shall mean AOL Time Warner Inc., for so long as any
Reference Shares are AOL Stock, and any other issuer of a Reference Share.
"REFERENCE SHARE" shall initially mean one share of AOL Stock; and after
the date hereof shall mean and include each share or fraction of a share of
Common Equity Securities received by a holder of a Reference Share in respect of
that Reference Share and, to the extent the Reference Share remains outstanding
after any of the following events but without duplication, including the
Reference Share outstanding immediately prior thereto, in each case directly or
as the result of successive applications of this paragraph upon any of the
following events: (i) a dividend or distribution on or in respect of a Reference
Share, made in Reference Shares; (ii) the combination of a Reference Share into
a smaller number of shares or other units; (iii) the subdivision of outstanding
shares or other units of a Reference Share; (iv) the conversion or
reclassification of Reference Shares by issuance or exchange of other Common
Equity Securities; (v) any Common Equity Securities issued for a Reference Share
in any consolidation or merger of a Reference Company, or any surviving entity
or subsequent surviving entity of a Reference Company (referred to herein as a
"Reference Company Successor"), with or into another entity (other than any
Common Equity Securities issued in connection with (A) a Reference Share Offer
or (B) a merger or consolidation in which (x) the Reference Company is the
continuing corporation and in which the Reference Shares outstanding immediately
prior to the merger or consolidation are not exchanged for cash, securities or
other property of the Reference Company or another corporation or (y) an
election is given as to the consideration to be received by a holder of
Reference Shares); (vi) any Common Equity Securities issued in exchange for a
Reference Share in any statutory exchange of securities of a Reference Company
or any Reference Company Successor with another corporation (other than any
Common Equity Securities issued in connection with (A) a Reference Share Offer
or (B) a statutory exchange of securities in which (x) the Reference Company is
the continuing corporation and in which the Reference Shares outstanding
immediately prior to the statutory exchange are not exchanged for cash,
securities or other property of the Reference Company or another corporation or
(y) an election is given as to the consideration to be received by a holder of
Reference Shares); (vii) any Common Equity Securities issued with respect to a
Reference Share in connection with any liquidation, dissolution or winding up of
the Reference Company or any Reference Company Successor; and (viii) any Common
Equity Securities received in exchange for a Reference Share as part of the
Average Transaction Consideration deemed received in any Reference Share Offer.
"REFERENCE SHARE DISTRIBUTION" shall mean any dividend or distribution on
or in respect of the Reference Shares of a Reference Company, including payments
and distributions in connection with (i) the consolidation or merger of such
Reference Company or a Reference Company Successor, a statutory exchange of
securities of such Reference Company or a Reference Company Successor or a
liquidation or dissolution of such Reference Company or a Reference Company
Successor or (ii) any Reference Share Offer with respect to such Reference
Shares, but shall not include any dividend or distribution made in the form of
additional Reference Shares.
5
"REFERENCE SHARE OFFER" shall mean any tender offer or exchange offer made
for 30% or more of the outstanding shares of a class or series of Reference
Shares of a Reference Company or any consolidation, merger or statutory exchange
involving a class or series of Reference Shares of a Reference Company in which
an election is given to holders of such Reference Shares as to the consideration
to be received in the transaction.
"REFERENCE SHARE OFFER ADJUSTMENT" shall mean (a) an adjustment to the
Reference Shares attributable to each Debenture involved in a Reference Share
Offer to include, immediately after the closing of the Reference Share Offer,
the portion of the Average Transaction Consideration received in such Reference
Share Offer that consists of Reference Shares, and (b) a reduction in the number
of Reference Shares attributable to each Debenture involved in a Reference Share
Offer immediately prior to such Reference Share Offer by the Reference Share
Proportionate Reduction.
"REFERENCE SHARE PROPORTIONATE REDUCTION" shall mean a proportionate
reduction in the number of Reference Shares which are the subject of the
applicable Reference Share Offer and attributable to each Debenture, calculated
in accordance with the following formula:
X
R = ---
N
where:
R = the fraction by which the number of Reference Shares of the class or
series of Reference Shares subject to the Reference Share Offer and
attributable to each Debenture will be reduced;
X = the aggregate number of Reference Shares of the class or series of
Reference Shares that are surrendered and accepted in the Reference
Share Offer; and
N = the aggregate number of Reference Shares of the class or series of
Reference Shares subject to the Reference Share Offer outstanding
immediately prior to the closing of the Reference Share Offer.
"REGISTRATION DEFAULT" shall mean either (a) the Shelf Registration
Statement is not filed with the Securities and Exchange Commission on or prior
to the 90th calendar day following the date of original issuance of the
Debentures or (b) such Shelf Registration Statement has not been declared
effective on or prior to the 180th calendar day following the date of original
issuance of the Debentures.
"REGISTRATION RIGHTS AGREEMENT" shall mean the Registration Rights
Agreement, dated as of March 26, 2003, between the Company and the Initial
Purchasers.
"REGISTRATION SUSPENSION" shall mean any period of more than an aggregate
of 30 calendar days in any consecutive twelve-month period, occurring after the
Shelf
6
Registration Statement has been declared effective, during which such Shelf
Registration Statement is not usable as contemplated by the Registration Rights
Agreement.
"REGULAR ADDITIONAL DISTRIBUTION" shall mean any Additional Distribution as
a result of a Reference Share Distribution that consists of a Regular Cash
Dividend.
"REGULAR CASH DIVIDEND" shall mean any cash dividend declared and paid or
payable by a Reference Company on its Reference Shares in accordance with such
Reference Company's publicly announced regular common equity dividend policy.
"RULE 144A" shall mean Rule 144A under the Securities Act, as such rule may
be amended from time to time.
"SECURITIES ACT" shall mean the United States Securities Act of 1933, as
amended.
"SECURITIES EXCHANGE ACT" shall mean the United States Securities Exchange
Act of 1934, as amended.
"SHELF REGISTRATION STATEMENT" shall mean the registration statement
required to be filed by the Company pursuant to the Registration Rights
Agreement.
"TAX ORIGINAL ISSUE DISCOUNT" means the amount of ordinary interest income
on a Debenture that must be accrued as original issue discount for United States
Federal income tax purposes pursuant to U.S. Treasury Regulation Section
1.1275-4.
"TRADING DAY" shall mean (i) where the Current Market Price or Closing
Price of a security is to be determined, a day on which such security (a) is not
suspended from trading or quotation at the close of business on the national or
regional securities exchange, recognized international securities exchange, the
National Market System or over-the-counter market that is the primary market for
the trading or quotation of that security and (b) has traded or been quoted at
least once on the national or regional securities exchange, recognized
international securities exchange, the National Market System or
over-the-counter market that is the primary market for the trading or quotation
of that security and (ii), for any other purpose under this Tenth Supplemental
Indenture, any day on which the Nasdaq National Market and the New York Stock
Exchange are normally open for the transaction of business.
"YIELD ADJUSTMENT" shall mean any adjustment required to be made to the
Adjusted Principal Amount on any Interest Payment Date following any
Extraordinary Additional Distribution (except for the Interest Payment Date
immediately following such Extraordinary Additional Distribution) so that the
interest payment on such Interest Payment Date does not represent an annualized
yield in excess of .75% on the Adjusted Principal Amount of the Debentures
during the semi-annual period immediately preceding such Interest Payment Date.
7
SECTION 102. SECTION REFERENCES.
Each reference to a particular section set forth in this Tenth Supplemental
Indenture shall, unless the context otherwise requires, refer to this Tenth
Supplemental Indenture.
SECTION 103. CONFLICT WITH ORIGINAL INDENTURE.
To the extent that any of the terms set forth in this Tenth Supplemental
Indenture or the certificates representing the Debentures shall conflict with
any of the terms of the Original Indenture, the terms of this Tenth Supplemental
Indenture and the certificates representing the Debentures shall be controlling
with respect to the Debentures.
ARTICLE TWO
TITLE AND TERMS OF THE SECURITIES
SECTION 201. TITLE OF THE SECURITIES.
The title of the Securities of the series established hereby is the ".75%
Exchangeable Senior Debentures due 2023".
SECTION 202. AMOUNT AND DENOMINATIONS.
The aggregate Original Principal Amount of the Debentures which may be
authenticated and delivered under the Indenture is initially limited to
$1,500,000,000 (or up to $1,750,000,000 if the Initial Purchasers exercise their
overallotment option in full) except for Debentures authenticated and delivered
upon registration of transfer of, or in exchange for, or in lieu of, other
Debentures pursuant to Section 304, 305, 306, 904 or 1107 of the Original
Indenture; PROVIDED, HOWEVER, that the series of Securities established hereby
may be reopened, without the consent of the Holders of Outstanding Debentures,
for issuance of additional Debentures.
SECTION 203. REGISTERED SECURITIES.
The certificates for the Debentures shall be Registered Securities and
shall be in substantially the forms attached hereto as Exhibit A and shall bear
the legends as are inscribed thereon.
SECTION 204. STATED MATURITY; CHANGES TO ORIGINAL PRINCIPAL AMOUNT OR
ADJUSTED PRINCIPAL AMOUNT.
(a) The Stated Maturity of the principal of the Debentures shall be
March 30, 2023. On the Stated Maturity of the principal of the Debentures, an
amount shall become due and payable in respect of each Debenture by the Company
equal to the sum of (1) the Adjusted Principal Amount of such Debenture, (2) any
accrued and unpaid interest on such Debenture to such Stated Maturity and (3)
subject to Section 213, any Final Period Distribution on such Debenture.
8
(b) (i) Not less than 22 scheduled Trading Days prior to the Stated
Maturity of the principal of the Debentures, the Company shall provide notice to
the Holders at their addresses shown in the Security Register, and to beneficial
owners of interests in the Debentures to the extent required by law, as to
whether it will pay the Maturity Repayment Amount in cash, Reference Shares or
any combination of cash and Reference Shares. Such notice shall specify the
percentages or dollar amounts of each form of consideration to be paid by the
Company per Debenture in respect of the Maturity Repayment Amount. The notice by
the Company pursuant to this Section 204(b) shall be irrevocable.
(ii) If the Company elects to pay all or a percentage or a dollar amount of
the Maturity Repayment Amount in Reference Shares, the Company shall deliver a
number of Reference Shares equal to the Maturity Repayment Amount or percentage
or appropriate dollar amount thereof to be paid in Reference Shares divided by
the Current Market Price of the Reference Shares. The Current Market Price of
the Reference Shares for this purpose shall be calculated by the Company for the
15 scheduled Trading Day period ending on the fourth scheduled Trading Day
preceding the Stated Maturity of the principal of the Debentures. If there are
fewer than 15 Trading Days during such 15 scheduled Trading Day period, then the
Current Market Price for the Reference Shares shall be calculated by the Company
based upon the actual number of Trading Days during such period.
(c) The principal amount of each Debenture shall initially equal the
Original Principal Amount. Thereafter, the principal amount of each Debenture,
as of any date of determination, shall equal the Adjusted Principal Amount. In
calculating the Adjusted Principal Amount, (i) the value of any Extraordinary
Additional Distribution shall be subtracted as of the date it is distributed to
holders of the Debentures, and (ii) the amount of each Yield Adjustment shall be
subtracted on the Interest Payment Date to which such Yield Adjustment relates.
In no event will the Adjusted Principal Amount be less than zero. The Company
shall issue a press release upon the occurrence of each reduction to the
Adjusted Principal Amount, and provide it to DTC for dissemination through the
DTC broadcast facility for so long as the Debentures are in global form.
(d) At least five Business Days prior to the Stated Maturity of the
principal of Debentures, the Company shall deliver an Officers' Certificate to
the Trustee which: (i) sets forth the dollar amount and/or number of Reference
Shares to be paid in accordance with Section 204(b) at such Stated Maturity of
the principal for each Debenture and for all Debentures then Outstanding, (ii)
sets forth a reasonably detailed calculation of such amounts, and (iii) directs
the Trustee to adjust its records accordingly and to request the Depository to
adjust its records accordingly. At or prior to 10:00 a.m., New York City time,
on the date of Stated Maturity of the principal of the Debentures, the Company
shall deposit with the Trustee or with a Paying Agent (or, if the Company is
acting as its own Paying Agent, segregate and hold in trust as provided in
Section 1003 of the Original Indenture) an amount in cash and/or a number of
Reference Shares sufficient to pay, in accordance with Section 204(b), the
amount due on all Debentures that are Outstanding at 5:00 p.m., New York City
time, on the date of such Stated Maturity (including the
9
amount of any interest payable pursuant to Section 205 on the Interest Payment
Date coinciding with such Stated Maturity).
(e) In the event of an acceleration of maturity of the Debentures pursuant
to Section 502 of the Original Indenture, there shall become immediately due and
payable an amount equal to the sum of (1) the Adjusted Principal Amount of the
Debentures then Outstanding, (2) any accrued and unpaid interest on the
Debentures and (3), subject to Section 213, any Final Period Distribution on the
Debentures, determined as if (i) in the case of an Event of Default specified in
clause (8) or (9) of Section 501 of the Original Indenture (as supplemented by
Section 223(c) hereof), the date of such Event of Default were the Stated
Maturity of the principal of the Debentures and (ii) in the case of any other
Event of Default, the date of declaration of acceleration were the Stated
Maturity of the principal of the Debentures.
SECTION 205. INTEREST.
(a) The Debentures shall bear interest from March 26, 2003 or from the
most recent Interest Payment Date to which interest has been paid or provided
for, payable semiannually on March 30 and September 30 of each year (each, an
"Interest Payment Date"), commencing September 30, 2003, to the Persons in whose
names the Debentures (or one or more Predecessor Securities) are registered at
the close of business on the March 15 or September 15 immediately preceding such
Interest Payment Date. Calculations of interest on each Debenture shall be based
on the Original Principal Amount, without regard to changes in the Adjusted
Principal Amount. Interest on the Debentures shall be computed on the basis of a
360-day year of twelve 30-day months. The amount of interest payable on the
Debentures on the initial Interest Payment Date shall be computed on the basis
of six 30-day months and an additional five days.
(b) Interest on the Debentures will accrue at the rate of .75% per annum
until the principal thereof is paid or made available for payment; PROVIDED,
HOWEVER, that such interest rate shall be subject to increase as follows:
(i) the interest rate shall be increased ("Additional Interest") by
one quarter of one percent (0.25%) per annum upon the occurrence of each
Registration Default or Registration Suspension, which rate will increase
by one quarter of one percent (0.25%) at the beginning of each 90-day
period (or portion thereof) that such Additional Interest continues to
accrue under any such circumstance, provided that the maximum amount of
Additional Interest will in no event exceed one percent (1%) per annum.
Immediately following the cure of a Registration Default or Registration
Suspension, the accrual of Additional Interest with respect to such
Registration Default or Registration Suspension will cease;
(ii) accrual of Additional Interest will cease and the interest rate
will revert to the original rate, in the case of a Registration Default,
upon the earlier to occur of (A) the cure of all Registration Defaults or
(B) the date on which the Debentures are saleable pursuant to Rule 144(k)
under the Securities Act or any
10
successor provision; and in the case of a Registration Suspension, upon the
Shelf Registration Statement once again becoming usable as contemplated
under the Registration Rights Agreement;
(iii) Additional Interest shall accrue from and including the day
following the applicable Event Date (as defined below), and shall be
computed based on the actual number of days elapsed in each 90-day period;
and
(iv) the Company shall deliver to the Trustee an Officers'
Certificate within three Business Days after each and every date on which
an event occurs in respect of which Additional Interest is required to be
paid (an "Event Date").
(c) At least five Business Days prior to each Interest Payment Date, the
Company shall deliver an Officers' Certificate to the Trustee setting forth: (i)
the amount of interest per Debenture due for that Interest Period, (ii) the
amount of any Regular Additional Distribution required to be made under Section
206(b) and (iii) the total payment due for that period on all Debentures
outstanding.
SECTION 206. ADDITIONAL DISTRIBUTIONS.
(a) The Company shall distribute, or cause to be distributed, as an
Additional Distribution to each Holder of a Debenture, any Reference Share
Distribution received by holders of Reference Shares, or the cash value thereof,
in accordance with this Section 206.
(b) In the case of any Regular Cash Dividend, the Company shall pay, to
the Holder of each Debenture, as a Regular Additional Distribution, the amount
of cash received by a holder of the number of Reference Shares attributable to
such Debenture in respect of such Regular Cash Dividend in any Interest Period.
Such payment shall be made by the Company on the next Interest Payment Date to
Holders of Debentures as of 5:00 p.m., New York City time, on the Regular Record
Date for such Interest Payment Date, unless the Regular Cash Dividend is paid
after the Regular Record Date for such interest payment, in which case the
Regular Additional Distribution will be payable on the next subsequent Interest
Payment Date.
(c) In the case of any Extraordinary Distribution, the Company shall
deliver, to the Holder of each Debenture, as an Extraordinary Additional
Distribution, all dividends and distributions, or the fair market value thereof
(determined in accordance with Section 206(e) or (f)), received by a holder of
the number of Reference Shares attributable to such Debenture in respect of such
Extraordinary Distribution. Any distribution pursuant to this subsection (c)
shall be made by the Company to Holders of Debentures as of a special record
date which shall be the 10th Business Day after the date of the payment of the
Extraordinary Distribution by the applicable Reference Company, and shall be
distributed to such Holders on the 10th Business Day following such special
record date.
(d) If an Extraordinary Distribution consists of securities or units that
are Marketable Securities (other than securities which are, or become, Reference
Shares),
11
such securities or units will be distributed by the Company to Holders of the
Debentures in accordance with Section 206(c); provided, that the Company shall
not distribute fractional securities or units. In lieu of fractional securities
or units, the Company shall pay the Holders of Debentures an amount in cash
equal to such fractional interest times the Closing Price of the security or
unit to be distributed determined in accordance with Section 206(e). For
purposes of determining the existence of fractional interests, all Debentures
held by a Holder shall be considered together (no matter how many separate
certificates such Holder may have).
(e) Notwithstanding the foregoing, the Company may, distribute, in lieu of
the securities or units referred to in Section 206(d), cash in an amount equal
to the average of the Closing Prices of the securities or units that would
otherwise have been distributed on the 15 scheduled Trading Days commencing on
the Trading Day immediately following the date on which such Extraordinary
Distribution is paid by the applicable Reference Company.
(f) If an Extraordinary Distribution consists of cash, assets or property
other than securities or units that are Marketable Securities, the Company shall
pay to Holders of the Debentures an amount of cash equal to the fair market
value thereof; such fair market value to be determined as of the date such
Extraordinary Distribution is made or paid to holders of the applicable
Reference Shares. Such fair market value shall be equal to the amount determined
in good faith by the Board of Directors, unless the Board of Directors
determines in good faith that there is a substantial likelihood that the
aggregate fair market value will be in excess of $100,000,000, in which case
such fair market value shall be determined by a nationally recognized investment
banking or appraisal firm retained by the Company for this purpose. The fair
market value so determined shall be set forth in a Board Resolution or, in the
case of a determination by an investment banking or appraisal firm, an Officers'
Certificate.
(g) At least five Business Days prior to the payment or delivery of an
Extraordinary Additional Distribution by the Company pursuant to Section 206(c),
the Company shall deliver to the Trustee a Board Resolution setting a special
record date for such Extraordinary Additional Distribution and an Officers'
Certificate setting forth: (i) the exact amount of Marketable Securities or cash
to be distributed on or with respect to the Reference Shares attributable to
each Debenture, and (ii) the total amount of Marketable Securities or cash to be
distributed on or with respect to the Reference Shares attributable to all
Debentures that are Outstanding as of such special record date. If any
distribution relates to any assets or other property that is not publicly
traded, then at least five Business Days prior to such distribution, the Company
shall deliver to the Trustee: (i) a Board Resolution establishing the fair
market value of the assets or other property, unless such fair market value is
determined by a nationally recognized investment banking or appraisal firm, in
which case the Company shall deliver to the Trustee the report of such firm and
(ii) an Officers' Certificate setting forth (a) the exact amount of cash to be
distributed on or with respect to the Reference Shares attributable to each
Debenture and (b) the total amount of cash to be distributed on or with respect
to the Reference Shares attributable to all Debentures that are Outstanding as
of such special record date in respect of any assets or other property that is
not publicly traded. The
12
Trustee is only responsible for distributing Marketable Securities in the form
of global book-entry securities that are DTC eligible. At or prior to
10:00 a.m., New York City time, on the date an Extraordinary Additional
Distribution is to be made pursuant to Section 206(c), the Company shall (i) in
the case of an Extraordinary Additional Distribution consisting of cash or
Marketable Securities where the Company has elected pursuant to Section 206(d)
to deliver cash in lieu of the Marketable Securities, deposit with the Trustee
or with a Paying Agent an amount of cash equal to the Extraordinary Additional
Distribution to be paid on such date and (ii) in the case of an Extraordinary
Additional Distribution consisting of Marketable Securities where the Company
has not elected to deliver cash in lieu of Marketable Securities, transfer by
book-entry to the account of the Trustee or a Paying Agent at DTC (or any
successor Depository) the amount of Marketable Securities to be distributed in
such Extraordinary Additional Distribution on such date. The Company shall act
as its own Paying Agent for any Marketable Securities to be delivered other than
through book-entry. The Company shall issue a press release setting forth the
amount and composition, per Debenture, of any Extraordinary Additional
Distribution, and shall deliver such press release to DTC for dissemination
through the DTC broadcast facility for so long as the Debentures are in global
form.
SECTION 207. REGISTRATION, TRANSFER AND EXCHANGE.
The principal of and interest and Additional Distributions on the
Debentures shall be payable and the Debentures may be surrendered or presented
for payment, the Debentures may be surrendered for registration of transfer or
exchange, and notices and demands to or upon the Company in respect of the
Debentures and the Indenture may be served, at the office or agency of the
Company maintained for such purposes in The City of New York, State of New York
from time to time, and the Company hereby appoints the Trustee, acting through
its office or agency in The City of New York designated from time to time for
such purpose, as its agent for the foregoing purposes; PROVIDED, HOWEVER, that
at the option of the Company payment of interest and Additional Distributions on
the Debentures may be made by check mailed to the address of the Persons
entitled thereto, as such addresses shall appear in the Security Register; and
PROVIDED, FURTHER, that (subject to Section 1002 of the Original Indenture) the
Company may at any time remove the Trustee as its office or agency in The City
of New York designated for the foregoing purposes and may from time to time
designate one or more other offices or agencies for the foregoing purposes and
may from time to time rescind such designations. Notwithstanding the foregoing,
a Holder of $10 million or more in aggregate Original Principal Amount of
Debentures on a Regular Record Date shall be entitled to receive interest
payments on the next succeeding Interest Payment Date, other than an Interest
Payment Date that is also the date of Maturity, by wire transfer of immediately
available funds if appropriate wire transfer instructions have been received in
writing by the Trustee not less than 15 calendar days prior to the applicable
Interest Payment Date. Any wire transfer instructions received by the Trustee
will remain in effect until revoked by the Holder.
13
SECTION 208. REDEMPTION OF THE DEBENTURES.
(a) OPTIONAL REDEMPTION. The Debentures will be redeemable at the option
of the Company, in whole or in part (provided that immediately after any partial
redemption at least $100,000,000 Original Principal Amount of Debentures would
remain outstanding) at any time or from time to time on or after April 5, 2008,
on at least 22 Trading Days (but not more than 60 days) prior notice to Holders
of the Debentures. The Redemption Price of each Debenture shall be equal to the
sum of (1) the Redemption Repayment Amount of such Debenture, (2) any accrued
and unpaid interest on such Debenture to the Redemption Date, and (3) subject to
Section 213, any Final Period Distribution on such Debenture.
The redemption notice provided pursuant to this Section 208 shall state
whether the Company will pay the Redemption Repayment Amount in cash or
Reference Shares or any combination thereof and, if a combination, the
percentages of each form of consideration to be paid by the Company in respect
of the Redemption Payment Amount.
If the Company elects to pay all or a percentage of the Redemption
Repayment Amount in Reference Shares, the Company shall deliver a number of
Reference Shares equal to the Redemption Repayment Amount or percentage thereof
to be paid in Reference Shares divided by the Current Market Price of the
Reference Shares. The Current Market Price of the Reference Shares for this
purpose shall be calculated by the Company for the 15 scheduled Trading Day
period ending on the fourth scheduled Trading Day preceding the Redemption Date.
If there are fewer than 15 Trading Days during such 15 scheduled Trading Day
period, then the Current Market Price for the Reference Shares shall be
calculated by the Company based upon the actual number of Trading Days during
such period.
Debentures called for redemption may be surrendered for exchange in
accordance with Section 209 until 5:00 p.m., New York City time, on the fourth
Trading Day preceding the Redemption Date. Any Debenture in respect of which an
Exchange Notice is submitted that is subsequently withdrawn shall remain subject
to redemption.
(b) NOTICES. In case of any redemption, the Company shall deliver an
Officers' Certificate to the Trustee not less than five Business Days prior to
the Redemption Date which sets forth (i) the Redemption Price to be paid for
each Debenture called for redemption on such Redemption Date, (ii) the
percentages of each form of consideration to be paid in respect of the
Redemption Repayment Amount, and (iii) the aggregate amount payable for all
Debentures called for redemption on such Redemption Date.
(c) INTEREST ACCRUAL TO CEASE. Once notice of redemption has been given
and Reference Shares and/or funds are irrevocably deposited with the Paying
Agent, interest on the Debentures will cease to accrue on and after the
Redemption Date and all rights of the Holders of the Debentures called for
redemption will cease, except for the right of Holders to receive the Redemption
Price (but without interest on such Redemption Price) and any right to receive
payment pursuant to Section 213.
14
(d) PAYMENT FAILURE. In the event that the Company fails to pay any amount
due on redemption of the Debentures on a Redemption Date, interest on the
Debentures called for redemption shall continue to accrue at an annual rate of
..75% of the Original Principal Amount thereof from the date originally set for
redemption to the actual date of payment, and such actual date of payment shall
be deemed to be the Redemption Date for purposes of calculating the amount to be
paid to the Holders of Debentures on redemption, except that the amount of the
Final Period Distribution shall be determined as of the date originally set for
redemption.
(e) COMPANY NOTICE. Section 1102 of the Original Indenture is hereby
deleted, solely with respect to the Debentures, and in lieu thereof the
following shall be applicable to the Debentures:
"The election of the Company to optionally redeem any Debentures shall
be evidenced by or pursuant to a Board Resolution. In the case of any
optional redemption by the Company that involves less than all of the
Debentures, the Company shall, at least 60 days prior to the Redemption
Date fixed by the Company (unless a shorter period shall be acceptable to
the Trustee), notify the Trustee of such Redemption Date and of the
Original Principal Amount of Debentures to be redeemed."
SECTION 209. EXCHANGE OF THE DEBENTURES.
(a) Each Debenture will be exchangeable at the option of the Holder at any
time for the Exchange Market Value of the Reference Shares attributable to that
Debenture except as otherwise provided in subsection (f) below and except
following a Holder's irrevocable election pursuant to Section 210 to tender such
Debenture for purchase by the Company. The number of Reference Shares
attributable to each Debenture shall initially be 57.4079, subject to adjustment
as a result of any Reference Share Proportionate Reduction or any other
adjustment contemplated by the definition of "Reference Shares."
(b) The Company may, at its option, (i) pay 100% of the Exchange Market
Value of the Reference Shares attributable to each Debenture in cash; (ii)
deliver the Reference Shares attributable to such Debenture in payment of such
Exchange Market Value; (iii) deliver shares of Company Common Stock in payment
of such Exchange Market Value; or (iv) deliver a combination of Reference
Shares, Company Common Stock and cash in payment of such Exchange Market Value.
Such payment or delivery will be made as promptly as practicable, but in any
event within four Trading Days after the date of determination of the Exchange
Market Value. The Company shall notify the Exchange Agent of its election to pay
cash, deliver Reference Shares, deliver shares of Company Common Stock, or a
combination of the foregoing, which shall be irrevocable, and the Exchange Agent
shall notify DTC of such election, by no later than 9:30 a.m., New York City
time, on the second Trading Day next following the applicable Exchange Date. The
Exchange Agent shall notify an exchanging Holder (if other than DTC) of the
Company's election under this Section 209(b) prior to 2:00 p.m., New York City
time, on such second Trading Day. If the Company fails to timely notify the
Exchange Agent,
15
then the Company will be deemed to have elected to pay the Exchange Market Value
solely in Reference Shares.
If the Company elects to pay all or a percentage of the Exchange Market
Value in Reference Shares, the Company shall deliver, for each Debenture, a
number of Reference Shares equal to the number of Reference Shares attributable
to each Debenture multiplied by the percentage of each Debenture to which the
Company's election to deliver Reference Shares relates.
If the Company elects to pay all or a percentage of the Exchange Market
Value in cash, the Company shall pay all or such percentage of the Exchange
Market Value to which such election relates in cash.
If the Company elects to pay or all or a percentage of the Exchange Market
Value in shares of Company Common Stock, the Company shall deliver a number of
shares of Company Common Stock equal to the Exchange Market Value or percentage
thereof to be paid in Company Common Stock divided by the Current Market Price
of the Company Common Stock. The Current Market Price of the Company Common
Stock for this purpose shall be calculated by the Company for the 15 scheduled
Trading Day period commencing on the fourth scheduled Trading Day following the
Exchange Date. If there are fewer than 15 Trading Days during such 15 scheduled
Trading Day period, then the Current Market Price for the Company Common Stock
shall be calculated by the Company based upon the actual number of Trading Days
during such period.
(c) To exchange a Debenture a Holder must (a) in the case of a Debenture
held through the Depository, surrender such Debenture for exchange through
book-entry transfer into the account of the Exchange Agent, transmit an agent's
message requesting such exchange and comply with such other procedures of the
Depository as may be applicable in the case of an exchange and (b) in the case
of a Debenture held in certificated form, (i) complete and manually sign the
Notice of Exchange attached to the Debenture (or complete and sign a facsimile
of the Notice of Exchange) and deliver such Notice of Exchange to the Exchange
Agent, (ii) surrender the Debenture to the Exchange Agent, (iii) furnish
appropriate endorsements and transfer documents, if required by the Exchange
Agent, the Company or the Trustee and (iv) pay any transfer or similar tax, if
required. An exchange shall be deemed to have been effected at 5:00 p.m., New
York City time, on the Exchange Date.
A Holder may exchange a portion of its Debentures only if the portion is
$1,000 Original Principal Amount or an integral multiple thereof. Following the
Exchange Date for an exchange of Debentures, all rights of the Holder with
respect to such Debentures shall cease, except for the right of such Holder to
receive 100% of the Exchange Market Value of the Reference Shares attributable
to such Debentures.
(d) By 10:00 a.m., New York City time, on each Trading Day following
receipt by the Exchange Agent of notification from DTC that DTC has received an
agent's message from a DTC participant electing to exercise its exchange option
with respect to its Debentures, and delivery of such Debentures into the
Exchange Agent's
16
DTC participant account, or following receipt of a complete manually signed
Notice of Exchange and receipt of certificated Debentures from a Holder, the
Exchange Agent shall notify the Company of the principal amount of Debentures
which has been tendered. When the Exchange Market Value has been determined, the
Company shall deliver an Officers' Certificate to the Trustee setting forth the
exact amount to be paid or the amount of Reference Shares or shares of Company
Common Stock, as the case may be, to be delivered to the tendering Holder and
shall deposit such amount with the Exchange Agent (except that if the Company
elects to deliver Reference Shares or shares of Company Common Stock, as the
case may be, in certificated form, the Company shall act as its own Paying Agent
as to such shares). Upon receipt of such payment or delivery from the Company,
the Exchange Agent shall pay DTC as soon as practicable or, in the cases of
Debentures that are held in certificated form, as directed by the tendering
Holder. Where the Company acts as its own Paying Agent with respect to
certificated Reference Shares and/or Company Common Stock, it shall deliver them
(i) as directed by the relevant participants of the Depositary, as identified by
the Depositary, or (ii) to or at the direction of tendering Holders of
Debentures.
(e) In the case of any exchange made during the period from (but
excluding) a Regular Record Date for any Interest Payment Date to (but
excluding) such Interest Payment Date, the Holder shall tender funds equal to
the interest and any Additional Distribution payable on such Interest Payment
Date.
(f) The right to exchange Debentures pursuant to this Section 209 shall
terminate at 5:00 p.m., New York City time, (i) in the case of Stated Maturity
of the principal of the Debentures, on the fourth Trading Day immediately
preceding such Stated Maturity, (ii) in the case of an optional redemption, on
the fourth Trading Day immediately preceding the Redemption Date and (iii) in
the case of a purchase under Section 210, on the date of the Purchase Notice.
(g) A Holder may withdraw a properly delivered Notice of Exchange by
providing a written notice of withdrawal to the Exchange Agent by the close of
business on the Trading Day next following the date on which the Exchange Agent
provides notice to Holders pursuant to Section 209(b) as to the form of
consideration to be provided upon exchange. The Holder's withdrawal notice shall
state the Original Principal Amount of the Debentures being withdrawn, the
certificate numbers of the Debentures being withdrawn and the Original Principal
Amount, if any, of the Debentures that remain subject to the Notice of Exchange.
(h) Upon an exchange of a Debenture, that portion of accrued and unpaid
interest, if any, on the exchanged Debenture attributable to the period from the
most recent Interest Payment Date (or, if no Interest Payment Date has occurred,
from the issue date of the Debentures) through the Exchange Date and Tax
Original Issue Discount accrued through the Exchange Date with respect to the
exchanged Debenture shall not be cancelled, extinguished or forfeited, but
rather shall be deemed to be paid in full to the Holder thereof through delivery
of Reference Shares or shares of Company Common Stock (together with any cash
payment in lieu of fractional shares) or cash, or a combination of cash,
Reference Shares and/or shares of Company Common Stock, in
17
exchange for the Debenture being exchanged pursuant to the provisions hereof,
and the fair market value of such Reference Shares or shares of Company Common
Stock (together with any such cash payment in lieu of fractional shares), or
cash, or a combination of cash, Reference Shares and/or shares of Company Common
Stock, shall be treated as issued, to the extent thereof, first in exchange for
accrued and unpaid interest and Tax Original Issue Discount accrued through the
Exchange Date and the balance, if any, of such fair market value of such
Reference Shares or shares of Company Common Stock (and any such cash payment),
or cash, shall be treated as issued in exchange for the Principal Amount of the
Debenture being exchanged pursuant to the provisions hereof.
SECTION 210. PURCHASE OF SECURITIES AT OPTION OF THE HOLDER.
(a) Debentures shall be purchased by the Company on March 30, 2008,
March 30, 2013 or March 30, 2018 (each, a "Purchase Date"), for a purchase price
per Debenture equal to the sum of (1) the Purchase Repayment Amount of the
Debenture, (2) any accrued and unpaid interest on such Debenture to the Purchase
Date and (3) subject to Section 213, any Final Period Distribution on such
Debenture (the "Purchase Price"), at the option of the Holder thereof, upon:
(1) delivery to the Paying Agent, by the Holder, of a written
notice of purchase (a "Purchase Notice"), which shall be irrevocable, at
any time from the opening of business on the date that is 20 Business Days
prior to a Purchase Date until the close of business on the fifth Business
Day immediately preceding such Purchase Date stating:
(A) the certificate number of the Debenture which the Holder will
deliver to be purchased;
(B) the portion of the Original Principal Amount of the Debentures
which the Holder will deliver to be purchased, which portion must be
in an Original Principal Amount of $1,000 or any integral multiple
thereof; and
(C) that such Debenture shall be purchased as of the Purchase Date
pursuant to the terms and conditions specified in the Debenture and
the Indenture.
(2) delivery of such Debenture to the Paying Agent prior to, on or
after the Purchase Date (together with all necessary endorsements) at the
offices of the Paying Agent, such delivery being a condition to receipt by
the Holder of the Purchase Price therefor; provided, however, that such
Purchase Price shall be so paid pursuant to this Section 210 only if the
Debenture so delivered to the Paying Agent shall conform in all respects to
the description thereof in the related Purchase Notice, as determined by
the Company.
The Company shall purchase from the Holder thereof, pursuant to this
Section 210, a portion of a Debenture if the Original Principal Amount of such
portion is $1,000
18
or any integral multiple of $1,000. Provisions of the Indenture that apply to
the purchase of all of a Debenture also apply to the purchase of such portion of
a Debenture.
Any purchase by the Company contemplated pursuant to the provisions of this
Section 210 shall be consummated by the delivery of the consideration to be
received by the Holder promptly following the later of the Purchase Date and the
time of delivery of the Debenture.
The Paying Agent shall promptly notify the Company of the receipt by it of
any Purchase Notice.
(b) The Debentures to be purchased pursuant to Section 210(a) may be paid
for, at the election of the Company, in cash, Reference Shares or shares of
Company Common Stock, or in any combination thereof. For any repurchase pursuant
to this Section 210, the Company shall designate, in the Put Notice delivered
pursuant to Section 210(f), whether the Company will purchase the Debentures for
cash, Reference Shares or shares of Company Common Stock, or, if a combination
thereof, the percentages of the Purchase Price of Debentures in respect of which
it will pay in cash, Reference Shares or shares of Company Common Stock;
provided that the Company will pay cash for fractional interests in Reference
Shares or shares of Company Common Stock, as the case may be. All Holders whose
Debentures are purchased on a Purchase Date pursuant to this Section 210 shall
receive the same percentage of cash or Reference Shares or shares of Company
Common Stock paid by the Company on such Payment Date in payment of the Purchase
Price for such Debentures, except with regard to the payment of cash in lieu of
fractional shares of Reference Shares or Company Common Stock, as the case may
be. The Company may not change its election with respect to the consideration
(or components or percentages of components thereof) to be paid once the Company
has given its Put Notice to Holders.
(c) On each Purchase Date, at the option of the Company, the Purchase
Price of Debentures in respect of which a Purchase Notice pursuant to Section
210(a) has been given, or a specified percentage thereof, may be paid by the
Company with cash; provided that any portion of the Purchase Price which is not
paid in Reference Shares or Company Common Stock shall be paid in cash.
(d) On each Purchase Date, at the option of the Company, the Purchase
Price of Debentures in respect of which a Purchase Notice pursuant to Section
210(a) has been given, or a specified percentage thereof, may be paid by the
Company by the issuance of a number of shares of Company Common Stock equal to
the number obtained by dividing the Purchase Price or such specified percentage
thereof, as the case may be, by the Current Market Price of the Company Common
Stock. The Current Market Price of the Company Common Stock for this purpose
shall be calculated by the Company for the 15 scheduled Trading Day period
ending on the fourth scheduled Trading Day preceding the Purchase Date. If there
are fewer than 15 Trading Days during such 15 scheduled Trading Day period, then
the Current Market Price for the Company Common Stock shall be calculated by the
Company based upon the actual number of Trading Days during such period.
19
(e) On each Purchase Date, at the option of the Company, the Purchase
Price of Debentures in respect of which a Purchase Notice pursuant to Section
210(a) has been given, or a specified percentage thereof, may be paid by the
Company by the delivery of a number of Reference Shares equal to the number
obtained by dividing the Purchase Price or such specified percentage thereof, as
the case may be, by the Current Market Price of the Reference Shares. The
Current Market Price of the Reference Shares for this purpose shall be
calculated by the Company for the 15 scheduled Trading Day period ending on the
fourth scheduled Trading Day preceding the Purchase Date. If there are fewer
than 15 Trading Days during such 15 scheduled Trading Day period, then the
Current Market Price for the Reference Shares shall be calculated by the Company
based upon the actual number of Trading Days during such period.
(f) The Company's notice of election to purchase with cash, Reference
Shares or shares of Company Common Stock or any combination thereof (the "Put
Notice") shall be sent to the Holders (and to beneficial owners as required by
applicable law) not less than 22 scheduled Trading Days prior to the applicable
Purchase Date (the "Put Notice Date"). Any such Put Notice shall state the
manner of payment elected and shall contain the following information:
Each Put Notice shall include a form of Purchase Notice to be completed by
a Holder and shall state:
(i) the Purchase Price per Debenture;
(ii) the name and address of the Paying Agent;
(iii) that Debentures must be surrendered to the Paying Agent to
collect payment of the Purchase Price;
(iv) that the Purchase Price for any Debenture as to which a
Purchase Notice has been given, will be paid promptly following the later
of the Purchase Date and the time of surrender of such Debenture;
(v) the procedures the Holder must follow to exercise rights under
Section 210 and a brief description of those rights;
(vi) that the tender of a Purchase Notice to the Company shall be
irrevocable; and
(vii) that, unless the Company defaults in making payment of such
Purchase Price, Debentures surrendered for purchase will cease to accrue
interest on and after the Purchase Date.
(g) [reserved]
(h) Prior to 10:00 a.m. New York City time on the Purchase Date, the
Company shall deposit with the Paying Agent cash or Reference Shares or shares
of Company Common Stock, or a combination thereof, as applicable, sufficient to
pay the
20
aggregate Purchase Price of all Debentures to be purchased on a Purchase Date
pursuant to this Section 210, provided that the Company shall act as its own
Paying Agent to the extent that the Reference Shares or Company Common Stock are
in certificated form. As soon as practicable after the Purchase Date, the
Company shall deliver to each Holder entitled to receive Reference Shares or
shares of Company Common Stock, as the case may be, through the Paying Agent, a
certificate (or other evidence of ownership) for the number of full shares of
Reference Shares or shares of Company Common Stock, as the case may be, issuable
in payment of the Purchase Price. The person in whose name the certificate (or
other evidence of ownership) for Reference Shares or shares of Company Common
Stock is registered shall be treated as a holder of record of such Reference
Shares or shares of shares of Company Common Stock, as the case may be, on the
Business Day following the Purchase Date.
(i) There shall be no purchase of any Debentures pursuant to Section 210
if there has occurred (prior to, on or after, as the case may be, the giving, by
the Holders of such Debentures, of the required Purchase Notice) and is
continuing an Event of Default (other than a default in the payment of the
Purchase Price). The Paying Agent will promptly return to the respective Holders
thereof any Debentures held by it during the continuance of an Event of Default
(other than a default in the payment of the Purchase Price) in which case, upon
such return, the Purchase Notice with respect thereto shall be deemed to have
never been given.
(j) In connection with any offer to purchase or purchase of Debentures
under Section 210 (provided that such offer or purchase constitutes an "issuer
tender offer" for purposes of Rule 13e-4 (which term, as used herein, includes
any successor provision thereto) under the Exchange Act at the time of such
offer or purchase), the Company shall comply with Rule 13e-4 and Rule 14e-1
under the Exchange Act and any other then applicable tender offer rules and
otherwise, if required, comply with all federal and state securities laws so as
to permit the rights and obligations under Section 210 to be exercised in the
time and in the manner specified in Section 210.
SECTION 211. SPECIAL PROVISIONS RELATING TO PAYMENT IN REFERENCE SHARES
AND/OR COMPANY COMMON STOCK.
(a) The Company will not issue a fractional Reference Share or fractional
share of Company Common Stock. Instead, the Company will pay cash for the
Current Market Price of any fractional share. The Current Market Price of a
fraction of a share shall be determined by multiplying the Current Market Price
of the Reference Share or Company Common Stock determined for purposes of
calculating the number of shares to be delivered in respect of the applicable
payment by such fraction and rounding the product to the nearest whole cent. It
is understood that if more than one Debenture is to be exchanged, redeemed,
purchased or paid pursuant to Section 204, 208, 209 or 210 in Reference Shares
or shares of Company Common Stock, the number of Reference Shares or shares of
Company Common Stock shall be based on the aggregate amount of Debentures to be
exchanged, redeemed, purchased or paid.
21
(b) The Company's right to issue Company Common Stock in satisfaction of
its obligations hereunder to exchange or purchase Debentures shall be
conditioned upon:
(i) the Company's having given a timely notice specifying the
percentage of the Debentures or the Exchange Market Value to be paid in
Company Common Stock;
(ii) the shares of Company Common Stock having been admitted for
listing or admitted for listing subject to notice of issuance on the
principal United States national or regional securities exchange on which
the shares of Company Common Stock are then listed or, if the shares of
Company Common Stock are not then listed on a national or regional
securities exchange, then admitted for trading in the Nasdaq Stock Market;
(iii) the registration of the shares of Company Common Stock to be
issued under the Securities Act of 1933, as amended (the "Securities Act"),
if required;
(iv) any necessary qualification or registration under applicable
state securities laws or the availability of an exemption from such
qualification and registration; and
(v) the receipt by the Trustee of an Officers' Certificate and an
Opinion of Counsel each stating that (A) the terms of the issuance of the
Company Common Stock are in conformity with the Indenture and (B) the
shares of Company Common Stock to be issued by the Company in payment of
the Purchase Price or Exchange Market Value has been duly authorized and,
when issued and delivered pursuant to the terms of the Indenture in payment
of the Purchase Price or the Exchange Market Value in respect of the
Debentures, will be validly issued, fully paid and non-assessable and, in
the case of such Officers' Certificate, stating that conditions (i), (ii),
(iii) and (iv) above have been satisfied and, in the case of such Opinion
of Counsel, stating that conditions (ii), (iii) and (iv) above have been
satisfied.
(c) The Company covenants that all shares of Company Common Stock
delivered in accordance with the provisions hereof shall be duly authorized,
validly issued, fully paid and nonassessable, and shall be free from preemptive
rights and free of any lien or adverse claim.
Prior to the time the Company delivers Company Common Stock in payment of
any amount pursuant to the Debentures, the Company shall deliver to the Trustee
an Officers' Certificate which certifies that the Company Common Stock
deliverable by the Company hereunder will be freely transferable without
registration under federal or state securities laws, subject to any restrictions
imposed on a holder of Debentures which is an Affiliate of the Company.
(d) Prior to the time the Company delivers Reference Shares in payment of
any amount pursuant to the Debentures, the Company shall deliver to the Trustee
an
22
Officers' Certificate which certifies that the AOL Stock (or any other Reference
Shares) deliverable by the Company hereunder may be so delivered without
registration under federal or state securities laws and will be freely
transferable without registration under federal or state securities laws,
subject to any restrictions imposed on a holder of Debentures which is an
Affiliate of the Company.
SECTION 212. DISTRIBUTIONS OF REFERENCE SHARES OR OTHER SECURITIES.
(a) The Company will pay any and all documentary, stamp, transfer or
similar taxes that may be payable in respect of the transfer and delivery of
Reference Shares, shares of Company Common stock or in connection with an
Extraordinary Additional Distribution pursuant hereto; PROVIDED, HOWEVER, that
the Company shall not be required to pay any such tax which may be payable in
respect of any transfer involved in delivery of such property to a name other
than that in which the Debentures were registered, and no such transfer or
delivery shall be made unless and until the Person requesting such transfer has
paid to the Company the amount of any such tax, or has established, to the
satisfaction of the Company, that such tax has been paid.
(b) The Company hereby warrants that upon delivery of any Reference Shares
or any securities in connection with any Extraordinary Additional Distribution
pursuant to this Supplemental Indenture, the Holder of a Debenture shall receive
all rights held by the Company in the securities to be delivered, free and clear
of any and all liens, claims, charges and encumbrances, other than any liens,
claims, charges and encumbrances which may have been placed thereon by the prior
owner thereof prior to the time acquired by the Company.
SECTION 213. FINAL PERIOD DISTRIBUTION PAYMENT.
(a) In the case of a Final Period Distribution within the meaning of
clause (b) of the definition of "Final Period Distribution," the Company shall
pay such Final Period Distribution to the Holders of Debentures that have been
repaid in accordance with the first sentence of Section 204(b), redeemed in
accordance with Section 208(a) or purchased in accordance with Section 210(a) as
of a special record date which shall be the 10th Business Day after the date of
the payment of the relevant Extraordinary Distribution by the applicable
Reference Company; and such payment shall be distributed on the 10th Business
Day following such special record date. The Company shall give notice regarding
such distribution to the Trustee in accordance with the provisions of Section
206(g).
(b) In the case of a Final Period Distribution within the meaning of
clause (a) of the definition of "Final Period Distribution," the Company shall
pay such Final Period Distribution to the Holders of Debentures that have been
repaid in accordance with the first sentence of Section 204(b), redeemed in
accordance with Section 208(a) or purchased in accordance with Section 210(a) on
the fifth Business Day following the payment of the Regular Cash Dividend by the
applicable Reference Company, to the persons to whom the Original Principal
Amount or the Adjusted Principal Amount, as the
23
case may be, shall have been paid. The Company shall give notice regarding such
distribution to the Trustee in accordance with the provisions of Section 206(g).
(c) In the event that the applicable Reference Company fails to make the
Extraordinary Distribution referred to in subsection (a) or (b) above at the
time or in the amount expected, the Company shall pursue any claim it has
against such Reference Company, whether as a security holder or otherwise, on
behalf of the Holders of Debentures. Reasonable costs of such actions by the
Company may be deducted from the amount of any Extraordinary Distribution before
any distribution is made to Holders of Debentures pursuant to Section 206.
SECTION 214. DENOMINATIONS.
The Debentures shall be issued in denominations of $1,000 and integral
multiples in excess thereof.
SECTION 215. APPLICABILITY OF CERTAIN ORIGINAL INDENTURE PROVISIONS.
Section 402 of the Original Indenture, relating to defeasance and covenant
defeasance, shall not be applicable to the Debentures.
SECTION 216. SECURITY REGISTRAR AND PAYING AGENT.
The Trustee shall be the initial Paying Agent and initial transfer agent
for the Debentures (subject to the Company's right (subject to Section 1002 of
the Original Indenture) to remove the Trustee as such Paying Agent and/or
transfer agent and, from time to time, to designate one or more co-registrars
and one or more other Paying Agents and transfer agents and to rescind from time
to time any such designations), and The City of New York is designated as a
Place of Payment for the Debentures.
SECTION 217. GLOBAL DEBENTURES.
(a) The Debentures shall be issued in the form of one or more global
Debentures. The initial Depository for the global Debentures shall be DTC, and
the depositary arrangements shall be those employed by whoever shall be the
Depositary with respect to the Debentures from time to time. Debentures shall be
offered and sold by the Initial Purchasers in reliance on Rule 144A to Qualified
Institutional Buyers (as such term is defined in Rule 144A), and shall be issued
in the form of global Debentures in definitive fully registered form without
interest coupons, substantially in the form of Exhibit A. Each global Debenture
shall be deposited on behalf of the purchasers of the Debentures represented
thereby with the custodian for the Depositary, and registered in the name of a
nominee of the Depositary, duly executed by the Company and authenticated by the
Trustee as provided in the Original Indenture. The aggregate Original Principal
Amount of a global Debenture may from time to time be decreased as a result of
partial redemptions, exchanges and purchases, by adjustments made on the records
of the custodian for the Depositary or the Depositary or its nominee, as the
case may be.
24
(b) Debentures issued in global form will be exchangeable for certificated
Debentures of like tenor and terms and of differing authorized denominations
aggregating a like principal amount, only if (i) the Depository notifies the
Company that it is unwilling or unable to continue as Depository for the
Debentures, (ii) the Depository ceases to be a clearing agency under the
Securities Exchange Act, (iii) the Company in its sole discretion determines
that the global Debentures shall be exchangeable for certificated securities, or
(iv) there shall have occurred and be continuing an Event of Default under the
Indenture with respect to the Debentures. Upon such exchange, the certificated
Debentures shall be registered in the names of the beneficial owners of the
global Debentures which they have replaced; such names shall be provided to the
Trustee by the relevant participants of the Depository, as identified by the
Depository.
SECTION 218. SINKING FUND.
The Debentures shall not be subject to any sinking fund or similar
provision.
SECTION 219. AMENDMENTS TO CERTAIN SECTIONS OF THE ORIGINAL INDENTURE.
(a) The amendments to the Original Indenture contained in this Section 223
shall apply only to the series of Debentures established pursuant to this Tenth
Supplemental Indenture.
(b) Clause (1) of Section 501 of the Original Indenture is hereby amended
by adding the words "or distributions" following the word "interest" on the
first and third lines.
(c) A new clause (3) is hereby added to Section 501 of the Original
Indenture, to read as follows, and existing clauses (3) through (9) are
renumbered accordingly and all references in the Original Indenture to existing
clauses (3) through (9) are renumbered accordingly:
(3) failure of the Company to comply with its obligations to
deliver cash, Reference Shares or shares of the Company Common Stock,
if applicable, in exchange for Debentures pursuant to Sections 204,
208 or 209 of this Tenth Supplemental Indenture.
(d) Clauses (1) and (2) of the second paragraph of Section 502 of the
Original Indenture are hereby amended by adding the words "and distributions"
following the word "interest" in the second line of each such clause.
(e) Clause (1) of Section 902 of the Original Indenture is hereby amended
by adding the words "or distributions" following the word "interest" on the
second line.
(f) Section 902 of the Original Indenture is hereby further amended by
adding a new clause (5), to read as follows:
(5) reduce the amount of cash, Reference Shares or Company
Common Stock deliverable upon exchange of the Debentures.
25
(g) Unless the context otherwise requires, all references to payment of
principal in the Original Indenture shall include the payment of the Maturity
Repayment Amount, and all references to payment of interest shall include
Additional Distributions.
SECTION 220. BUSINESS DAY
If any date specified herein for the taking of any action (including a date
for giving notice) is not a Business Day, the action shall be taken on the next
succeeding day that is a Business Day, and, if the action to be taken on such
date is a payment in respect of the Debentures, no interest shall accrue for the
intervening period.
SECTION 221. CALCULATION OF TAX ORIGINAL ISSUE DISCOUNT.
The Company agrees, and each Holder and any beneficial owner of a
Debenture by its purchase thereof shall be deemed to agree, to treat, for United
States federal income tax purposes, the Debentures as debt instruments that are
subject to U.S. Treasury Regulation Section 1.1275-4(b). For United States
federal income tax purposes, the Company agrees, and each Holder and any
beneficial owner of a Debenture by its purchase thereof shall be deemed to
agree, to treat the fair market value of any Reference Shares or any shares of
Company Common Stock received upon an exchange of a Debenture, upon a redemption
of a Debenture, or upon a purchase of a Debenture at the Holder's option
(together with any cash payment in lieu of fractional shares) or cash, or a
combination of cash, Reference Shares and/or shares of Company Common Stock as a
contingent payment on the Debenture for purposes of U.S. Treasury Regulation
Section 1.1275-4(b) and to accrue interest with respect to outstanding
Debentures as original issue discount for United States federal income tax
purposes (i.e., Tax Original Issue Discount) according to the "noncontingent
bond method," set forth in Section 1.1275-4(b) of the U.S. Treasury Regulations,
using the comparable yield set forth in Exhibit A to this Tenth Supplemental
Indenture compounded semiannually and the projected payment schedule set forth
in Exhibit A to this Tenth Supplemental Indenture.
The Company acknowledges and agrees, and each Holder and any beneficial
owner of a Debenture by its purchase thereof shall be deemed to acknowledge and
agree, that (i) the comparable yield means the annual yield the Company would
pay, as of the issue date, on a fixed-rate debt security with no exchange right
or other contingent payments but with terms and conditions otherwise comparable
to those of the Debentures, (ii) the schedule of projected payments is not
determined for any purpose other than for the determination of interest accruals
and adjustments thereof in respect of the Debentures for United States federal
income tax purposes and (iii) the comparable yield and the schedule of projected
payments do not constitute a projection or representation regarding the amounts
payable on the Debentures.
26
ARTICLE THREE
MISCELLANEOUS PROVISIONS
The Trustee makes no undertaking or representations in respect of, and
shall not be responsible in any manner whatsoever for and in respect of, the
validity or sufficiency of this Tenth Supplemental Indenture or the proper
authorization or the due execution hereof by the Company or for or in respect of
the recitals and statements contained herein, all of which recitals and
statements are made solely by the Company.
Except as expressly amended hereby, the Original Indenture shall continue
in full force and effect in accordance with the provisions thereof and the
Original Indenture is in all respects hereby ratified and confirmed. This Tenth
Supplemental Indenture and all its provisions shall be deemed a part of the
Original Indenture in the manner and to the extent herein and therein provided.
This Tenth Supplemental Indenture shall be governed by, and construed in
accordance with, the laws of the State of New York, without regard to conflicts
of laws principles thereof.
This Tenth Supplemental Indenture may be executed in any number of
counterparts, each of which so executed shall be deemed to be an original, but
all such counterparts shall together constitute but one and the same instrument.
27
IN WITNESS WHEREOF, the parties hereto have caused this Tenth Supplemental
Indenture to be duly executed as of the day and year first above written.
LIBERTY MEDIA CORPORATION
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President, General
Counsel and Secretary
THE BANK OF NEW YORK, as Trustee
By: /s/ Xxxx X. Xxxxx
-----------------------------------
Name: Xxxx X. Xxxxx
Title: Vice President
28
EXHIBIT A
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF IS DEEMED TO HAVE AGREED TO
BE BOUND BY THE PROVISIONS OF A REGISTRATION RIGHTS AGREEMENT BETWEEN LIBERTY
MEDIA CORPORATION ("LIBERTY") AND THE INITIAL PURCHASERS NAMED THEREIN, DATED
MARCH 26, 2003 (THE "REGISTRATION RIGHTS AGREEMENT"). LIBERTY WILL PROVIDE A
COPY OF THE REGISTRATION RIGHTS AGREEMENT TO A HOLDER WITHOUT CHARGE UPON
WRITTEN REQUEST TO LIBERTY AT ITS PRINCIPAL PLACE OF BUSINESS.
FOR PURPOSES OF SECTIONS 1272, 1273 AND 1275 OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED, THIS SECURITY IS BEING ISSUED WITH ORIGINAL ISSUE DISCOUNT AND
THE ISSUE DATE OF THIS SECURITY IS MARCH 26, 2003. IN ADDITION, THIS SECURITY IS
SUBJECT TO UNITED STATES FEDERAL INCOME TAX REGULATIONS GOVERNING CONTINGENT
PAYMENT DEBT INSTRUMENTS. FOR PURPOSES OF SECTIONS 1272, 1273 AND 1275 OF THE
INTERNAL REVENUE CODE, THE ISSUE PRICE OF EACH SECURITY IS $985 PER $1,000 OF
PRINCIPAL AMOUNT AND THE COMPARABLE YIELD IS 5.6%, COMPOUNDED SEMI-ANNUALLY
(WHICH WILL BE TREATED AS THE YIELD TO MATURITY FOR UNITED STATES FEDERAL INCOME
TAX PURPOSES). MOREOVER, THE PROJECTED PAYMENT SCHEDULE WITH RESPECT TO THE
SECURITIES (ASSUMING A PRINCIPAL AMOUNT OF $1,000 AND AN ISSUE PRICE OF $985 OR
WITH RESPECT TO EACH INTEGRAL MULTIPLE THEREOF) CONSISTS OF (A) A PAYMENT OF
STATED INTEREST EQUAL TO $3.85 ON SEPTEMBER 30, 2003, (B) PAYMENTS OF STATED
INTEREST EQUAL TO $3.75 ON ALL SUBSEQUENT SEMI-ANNUAL INTEREST PAYMENT DATES
(EXCLUDING THE STATED SEMI-ANNUAL INTEREST ON THE SECURITIES PAYABLE ON THE
MATURITY DATE), AND (C) A PAYMENT OF A PROJECTED AMOUNT UPON A HYPOTHETICAL
EXCHANGE OF THE SECURITIES ON THE LATEST DATE ON WHICH AN EXCHANGE COULD BE
PERMITTED (EXCLUDING THE STATED SEMI-ANNUAL INTEREST ON THE SECURITIES PAYABLE
ON THE MATURITY DATE) EQUAL TO $2,708.19.
LIBERTY AGREES, AND BY ACCEPTING A BENEFICIAL OWNERSHIP INTEREST IN THIS
SECURITY EACH HOLDER OF THIS SECURITY WILL BE DEEMED TO HAVE AGREED, FOR UNITED
STATES FEDERAL INCOME TAX PURPOSES (1) TO TREAT THIS SECURITY AS A DEBT
INSTRUMENT THAT IS SUBJECT TO U.S. TREAS. REG. SEC. 1.1275-4 (THE "CONTINGENT
PAYMENT REGULATIONS"), (2) TO TREAT THE FAIR MARKET VALUE OF ANY REFERENCE
SHARES OR ANY SHARES OF COMPANY COMMON STOCK RECEIVED UPON AN EXCHANGE OF THIS
SECURITY, UPON A REDEMPTION OF THIS SECURITY, OR UPON A PURCHASE OF THIS
SECURITY AT THE HOLDER'S OPTION (TOGETHER WITH ANY CASH PAYMENT IN LIEU OF
FRACTIONAL SHARES) OR CASH, OR A COMBINATION OF CASH, REFERENCE SHARES, AND/OR
COMPANY COMMON STOCK AS A CONTINGENT PAYMENT FOR PURPOSES OF THE CONTINGENT
PAYMENT REGULATIONS, AND (3) TO ACCRUE INTEREST WITH RESPECT TO THE SECURITY AS
ORIGINAL ISSUE DISCOUNT FOR UNITED STATES FEDERAL INCOME TAX PURPOSES ACCORDING
TO THE "NONCONTINGENT BOND METHOD," SET FORTH IN THE CONTINGENT PAYMENT
REGULATIONS, AND TO BE BOUND BY LIBERTY'S DETERMINATION OF THE "COMPARABLE
YIELD" AND "PROJECTED PAYMENT SCHEDULE," WITHIN THE MEANING OF THE CONTINGENT
PAYMENT REGULATIONS, WITH RESPECT TO THIS SECURITY.
THE SECURITY EVIDENCED HEREBY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE OR OTHER SECURITIES
LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR
A-1
PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED,
ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR
UNLESS THE TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT. THE HOLDER OF THIS SECURITY BY ITS
ACCEPTANCE HEREOF (1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL
BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR (B) IT IS AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF SUBPARAGRAPH (a)(1),
(2), (3) OR (7) OF RULE 501 UNDER THE SECURITIES ACT, (2) AGREES THAT IT WILL
NOT PRIOR TO (X) THE DATE WHICH IS TWO YEARS (OR SUCH SHORTER PERIOD OF TIME AS
PERMITTED BY RULE 144(k) UNDER THE SECURITIES ACT OR ANY SUCCESSOR PROVISION
THEREUNDER) AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF (OR OF ANY
PREDECESSOR OF THIS SECURITY) OR THE LAST DAY ON WHICH LIBERTY OR ANY AFFILIATE
OF LIBERTY WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF THIS SECURITY)
AND (Y) SUCH LATER DATE, IF ANY, AS MAY BE REQUIRED BY APPLICABLE LAWS (THE
"RESALE RESTRICTION TERMINATION DATE"), OFFER, SELL OR OTHERWISE TRANSFER THIS
SECURITY EXCEPT (A) TO LIBERTY OR ANY SUBSIDIARY THEREOF, (B) PURSUANT TO A
REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES
ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE
144A, TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT
OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN
THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF SUBPARAGRAPH (a)(1),
(2), (3) OR (7) OF RULE 501 UNDER THE SECURITIES ACT THAT, PRIOR TO SUCH
TRANSFER, FURNISHES (OR HAS FURNISHED ON ITS BEHALF BY A U.S. BROKER-DEALER) TO
THE TRUSTEE OR TRANSFER AGENT FOR THIS SECURITY A SIGNED LETTER CONTAINING
CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER
OF THIS SECURITY (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM THE TRUSTEE OR
TRANSFER AGENT FOR THIS SECURITY OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, AND (3) AGREES THAT IT
WILL GIVE TO EACH PERSON TO WHOM THIS SECURITY IS TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND; PROVIDED THAT LIBERTY, THE TRUSTEE
AND THE TRANSFER AGENT AND REGISTRAR RESERVE THE RIGHT PRIOR TO ANY OFFER, SALE
OR OTHER TRANSFER PURSUANT TO CLAUSES (D) OR (E) ABOVE TO REQUIRE DELIVERY OF AN
OPINION OF COUNSEL, CERTIFICATIONS AND OTHER INFORMATION SATISFACTORY TO
LIBERTY, THE TRUSTEE AND THE TRANSFER AGENT AND REGISTRAR. THIS LEGEND WILL BE
REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION
DATE.
UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO LIBERTY OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY
2
OR TO ANY PERSON IS WRONGFUL, INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE &
CO., HAS AN INTEREST HEREIN.
No. [-] Original Principal Amount: $[-]
CUSIP No. 530718 AB 1
LIBERTY MEDIA CORPORATION
.75% Exchangeable Senior Debentures due 2023
Liberty Media Corporation, a Delaware corporation (hereinafter called the
"Company", which term includes any successor corporation under the Indenture
referred to below), for value received, hereby promises to pay to Cede & Co., or
registered assigns, the amount provided in Section 204 of the Tenth Supplemental
Indenture referred to herein (such amount being referred to herein as the
"Maturity Repayment Amount") on March 30, 2023, and to pay interest on the
Original Principal Amount of this Debenture from March 26, 2023 or from the most
recent date to which interest has been paid or provided for, semiannually on
March 30 and September 30 in each year (each, an "Interest Payment Date"),
commencing September 30, 2003, at the rate of .75% per annum, until the Maturity
Repayment Amount is paid or made available for payment. Interest on this
Debenture shall be calculated on the basis of a 360-day year consisting of
twelve 30-day months. The interest so payable and paid or provided for on any
Interest Payment Date will, as provided in such Indenture, be paid to the Person
in whose name this Debenture (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest, which shall be the March 15 or September 15 (whether or not a Business
Day), as the case may be, immediately preceding such Interest Payment Date. Any
such interest which is payable, but is not paid or provided for, on any Interest
Payment Date shall forthwith cease to be payable to the registered Holder hereof
on the relevant Regular Record Date by virtue of having been such Holder, and
may be paid to the Person in whose name this Debenture (or one or more
Predecessor Securities) is registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest to be fixed by the
Company, notice whereof shall be given to the Holders of Debentures not less
than 10 days prior to such Special Record Date, or may be paid at any time in
any other lawful manner not inconsistent with the requirements of any securities
exchange on which the Debentures may be listed, and upon such notice as may be
required by such exchange, all as more fully provided in such Indenture.
Payment of the Maturity Repayment Amount and the interest on this Debenture
will be made at the office or agency of the Company maintained for that purpose
in The Borough of Manhattan, The City of New York, in such coin or currency of
the United States of America as at the time of payment is legal tender for
payment of public and private debts; PROVIDED, HOWEVER, that, at the option of
the Company, interest may be paid by check mailed to the address of the Person
entitled thereto as such address shall appear in the Security Register;
PROVIDED, FURTHER, that payment to DTC or any successor Depository may be made
by wire transfer to the account designated by DTC or such successor Depository
in writing. Payment of the Maturity Repayment Amount may also be made in
Reference Shares in accordance with Section 204 of the Tenth Supplemental
Indenture.
3
The Company shall distribute, or cause to be distributed, Additional
Distributions to Holders in accordance with Section 206 of the Tenth
Supplemental Indenture, between the Company and The Bank of New York, as Trustee
(herein called the "Trustee", which term includes any successor trustee under
the Indenture), dated as of March 26, 2003, establishing the terms of the
Debentures pursuant to the Indenture (the "Tenth Supplemental Indenture").
This Debenture is one of a duly authorized issue of securities of the
Company (herein called the "Debentures") issued and to be issued in one or more
series under an Indenture dated as of July 7, 1999 (herein called, together with
the Tenth Supplemental Indenture and all other indentures supplemental thereto,
the "Indenture") between the Company and the Trustee, to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of the
respective rights, limitations of rights, duties and immunities thereunder of
the Company, the Trustee and the Holders of the Debentures, and of the terms
upon which the Debentures are, and are to be, authenticated and delivered. This
Debenture is one of the series designated on the face hereof, initially limited
(subject to exceptions provided in the Indenture) to the aggregate Original
Principal Amount specified in the Tenth Supplemental Indenture.
The Debentures are redeemable at the option of the Company, in whole or in
part at any time or from time to time on or after April 5, 2008, on the terms
set forth in Section 208 of the Tenth Supplemental Indenture.
The Debentures are exchangeable at the option of the Holders thereof on the
terms set forth in Section 209 of the Tenth Supplemental Indenture.
The Debentures are subject to purchase by the Company at the option of the
Holders thereof on the terms set forth in Section 210 of the Tenth Supplemental
Indenture.
If an Event of Default (as defined in the Indenture, including the
amendments thereto in the Tenth Supplemental Indenture) with respect to the
Debentures shall occur and be continuing, the principal of the Debentures may be
declared due and payable in the manner and with the effect provided in the
Indenture.
The Company agrees, and each Holder and any beneficial owner of a Debenture
by its purchase thereof shall be deemed to agree, to treat, for United States
federal income tax purposes, the fair market value of any Reference Shares or
any shares of Company Common Stock received upon an exchange of a Debenture,
upon a redemption of a Debenture, or upon a purchase of a Debenture at the
Holder's option (together with any cash payment in lieu of fractional shares) or
cash, or a combination of cash, Reference Shares, and/or Company Common Stock as
a contingent payment on the Debenture for purposes of U.S. Treasury Regulation
Section 1.1275-4(b).
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series issued
under the Indenture at any time by the Company and the Trustee with the consent
of the Holders of not less than a majority in aggregate principal amount of the
Securities at the time Outstanding of each series affected thereby. The
Indenture also contains provisions permitting the Holders of specified
percentages in aggregate principal
4
amount of the Securities of any series at the time Outstanding, on behalf of the
Holders of all Securities of such series, to waive compliance by the Company
with certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Debenture shall be conclusive and binding upon such Holder and upon all
future Holders of this Debenture and of any Debentures issued upon the
registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Debenture or
such Debentures.
No reference herein to the Indenture and no provision of this Debenture or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the Maturity Repayment Amount, Additional
Distributions and interest on this Debenture, at the times, place and rate, and
in the coin or currency or other form of consideration, herein and in the
Indenture prescribed.
As provided in the Indenture and subject to certain limitations set forth
therein and in this Debenture, the transfer of this Debenture may be registered
on the Security Register upon surrender of this Debenture for registration of
transfer at the office or agency of the Company maintained for the purpose in
any place where the Maturity Repayment Amount, Additional Distributions,
Exchange Market Value, Redemption Price, Purchase Price and interest on this
Debenture are payable, duly endorsed by, or accompanied by a written instrument
of transfer in form satisfactory to the Company and the Security Registrar duly
executed by, the Holder hereof or by his attorney duly authorized in writing,
and thereupon one or more new Debentures of this series and of like tenor, of
authorized denominations and for the same aggregate Original Principal Amount,
will be issued to the designated transferee or transferees.
The Debentures are issuable only in registered form without coupons in the
denominations specified in the Tenth Supplemental Indenture establishing the
terms of the Debentures, all as more fully provided in the Indenture. As
provided in the Indenture, and subject to certain limitations set forth in the
Indenture and in this Debenture, the Debentures are exchangeable for a like
aggregate Original Principal Amount of Debentures of this series in different
authorized denominations, as requested by the Holders surrendering the same.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith, other than in
certain cases provided in the Indenture.
Prior to due presentment of this Debenture for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Debenture is registered as the owner hereof for
all purposes, whether or not this Debenture be overdue, and neither the Company,
the Trustee nor any such agent shall be affected by notice to the contrary.
This Debenture shall be governed by and construed in accordance with the
laws of the State of New York.
All terms used in this Debenture which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
5
Unless the certificate of authentication hereon has been executed by or on
behalf of the Trustee under the Indenture by the manual signature of one of its
authorized signatories, this Debenture shall not be entitled to any benefits
under the Indenture or be valid or obligatory for any purpose.
6
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
LIBERTY MEDIA CORPORATION
Attest: By:
------------------------ ------------------------
Name: Xxxxxxxxx X. Xxxxxxxxx Name: Xxxxx X.X. Xxxxxxx
Title: Senior Vice President Title: Senior Vice President and
Treasurer
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Debentures of the series designated herein referred to
in the within-mentioned Indenture.
Dated: April 4, 0000 XXX XXXX XX XXX XXXX,
as Trustee
By:
-------------------------
Authorized Signatory
7
CERTIFICATE OF TRANSFER
To transfer or assign this Debenture, fill in the form below:
I or we transfer and assign this Debenture to
________________________________________________________________________________
(Insert assignee's tax I.D. number)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or Type assignee's name, address and zip code)
and irrevocably appoint ________________ agent to transfer this Debenture on the
books of the Company. The agent may substitute another to act for him.
Date: Your signature:
------------------------- -------------------------
EXHIBIT B
[FORM OF NOTICE OF EXCHANGE]
The Bank of New York
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Re: $1,500,000,000 .75% Exchangeable Senior
Debentures due 2023 (the "Debentures")
Gentlemen:
The undersigned Holder of debentures hereby gives notice of its intention
to exchange $______________ aggregate Original Principal Amount of Debentures.
If Reference Shares or Company Common Stock are to be delivered as part of
this exchange, they should be delivered to:
If cash is to be paid as part of this exchange, it should be sent to:
Any communication to the Holder in connection with this exchange should be
directed to:
Very truly yours,
[Name of Holder]
By:
--------------------------
Name:
Title:
Date of Notice of Exchange:
B-1
