Exhibit 99.1
REGISTRATION RIGHTS AGREEMENT
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REGISTRATION RIGHTS AGREEMENT (this "Agreement"), dated as of June 16,
1997, by and between TELE-COMMUNICATIONS, INC., a Delaware corporation (the
"Company"), and XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED, a Delaware
corporation ("MLPF&S").
WITNESSETH:
WHEREAS, MLPF&S is acquiring shares of Tele-Communications, Inc. Series A
TCI Group Common Stock, par value $1.00 per share ("Series A Stock"), from the
Estate of Xxx Xxxxxxx, Deceased (the "Estate"), pursuant to a Stock Purchase
Agreement, dated as of June 16, 1997 (the "Stock Purchase Agreement"), between
MLPF&S and the Personal Representatives of the Estate, which shares are
"restricted securities" (as defined in Rule 144 under the Securities Act of
1933, as amended);
WHEREAS, Xxxxxxx Xxxxx International ("MLI") and the Company are parties
to an ISDA Master Agreement, dated as of June 16, 1997 (the "Master Agreement,"
which term includes the related Schedule and confirmations), pursuant to which
MLI may acquire additional shares of Series A Stock which are "restricted
securities"; and
WHEREAS, the Company has agreed to file and keep continuously effective a
"shelf" registration statement for the resale of any shares of Series A Stock
acquired under the Stock Purchase Agreement or pursuant to the Master
Agreement, on the terms and conditions set forth herein.
NOW THEREFORE, in consideration of the premises and of the mutual
agreements and covenants hereinafter set forth, the parties hereto agree as
follows:
1. Certain Definitions. Capitalized terms used herein but not defined herein
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shall have the meanings given such terms in the Master Agreement. In addition,
the following terms, as used herein, shall have the following meanings:
Business Day: Any day other than a Saturday, Sunday or other day on which
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banking institutions in Denver, Colorado or New York, New York are authorized or
obligated by law, regulation or executive order to close.
Commission: The Securities and Exchange Commission, or any other Federal
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agency at the time administering the Securities Act or the Exchange Act.
Exchange Act: The Securities Exchange Act of 1934, as amended, or any
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successor Federal statute, and the rules and regulations of the Commission
promulgated thereunder, as they each may, from time to time, be in effect.
Prospectus: The prospectus included in the Registration Statement as of
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the date it becomes effective under the Securities Act and, in the case of
references to the Prospectus as of a date subsequent to the effective date of
the Registration Statement, as amended or supplemented as of such date,
including all documents incorporated by reference therein, as amended, and each
prospectus supplement relating to the offering and sale of any of the
Registrable Shares.
Registrable Shares: Shares of Series A Stock acquired under or pursuant to
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the Master Agreement or from the Estate pursuant to the Stock Purchase
Agreement, which, in each case, at the time of acquisition, are "restricted
securities" (as that term is defined in Rule 144 under the Securities Act), and
any other shares of capital stock of the Company issued in respect of such
shares as a result of stock splits, stock dividends, reclassification,
recapitalizations, mergers, consolidations or similar events.
Registration Expenses: All expenses incident to the Company's performance
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of or compliance with this Agreement, including, without limitation, (i) all
Commission and National Association of Securities Dealers, Inc. registration and
filing fees, (ii) fees and expenses of compliance with state securities or blue
sky laws (including, without limitation, reasonable fees and disbursements of
counsel for the Sellers in connection with any blue sky qualifications of any of
the Registrable Shares), (iii) all printing expenses and messenger and delivery
expenses in connection with the preparation and distribution of any documents
relating to the performance of and compliance with this Agreement and (iv) fees
and disbursements of counsel for the Company and all independent certified
public accountants (including the expenses of any "cold comfort" letters
prepared by such accountants); provided, however, the term "Registration
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Expenses" shall not include, and the Company shall be responsible for (except to
the extent otherwise expressly provided in the Master Agreement), any
underwriting discounts or commissions or transfer taxes, if any, attributable to
the sale of any Registrable Shares.
Registration Statement: A "shelf" registration statement of the Company on
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Form S-3 (or, if the Company is not then eligible for Form S-3, such other form
for which the Company then qualifies) which permits the secondary resale
thereunder of up to 50 million shares of Series A Stock on a delayed or
continuous basis under Rule 415 of the Commission under the Securities Act, or
any successor rule that may be promulgated by the Commission under the
Securities Act, as they each may, from time to time, be in effect. The term
"Registration Statement" shall also include all exhibits and financial
statements and schedules and documents incorporated by reference in such
Registration Statement when it becomes effective under the Securities Act, and
in the case of references to the Registration Statement as of a date subsequent
to the effective date, as amended or supplemented as of such date.
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Securities Act: The Securities Act of 1933, as amended, or any successor
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Federal statute, and the rules and regulations of the Commission promulgated
thereunder, as they each may, from time to time, be in effect.
Sellers: MLPF&S and MLI, and any transferee of any interest of MLI under
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the Master Agreement or MLPF&S under the Stock Purchase Agreement that acquires
Registrable Shares.
Special Counsel: Xxxxx & Wood LLP, special counsel to the Sellers.
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2. Shelf Registration.
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(a) The Company shall:
(i) file as promptly as practicable, but in any event by June 23,
1997, a Registration Statement providing for resales by the Sellers of up
to 50 million shares of Series A Stock. The section of the Registration
Statement entitled "Plan of Distribution" shall provide that the Sellers
may distribute Registrable Shares pursuant to such Registration Statement
in the manner set forth on Exhibit A hereto. The Company may include in any
Registration Statement shares of Series A Stock acquired by (i) LB I Group
Inc. from the Estate and (ii) Xxxxxx Brothers Finance S.A. under that
certain ISDA Master Agreement (which includes the related Schedule and
confirmations), dated as of June 16, 1997, with the Company;
(ii) use its best efforts to cause such Registration Statement to
be declared effective by the Commission as promptly as practicable, but in
any event by August 9, 1997; and
(iii) use its best efforts to keep such Registration Statement
continuously effective under the Securities Act until the later of (x) the
final settlement of all amounts due to the Sellers from the Company under
the Master Agreement and (y) the sale of all Registrable Shares owned by
the Sellers.
(b) The Company shall supplement or amend the Registration Statement as
necessary to comply with the rules, regulations or instructions applicable to
Form S-3 (or, if different, the form used for the Registration Statement) or by
the Securities Act or by any other rules and regulations thereunder for shelf
registration, and the Company shall furnish to the Sellers and Special Counsel
copies of any such supplement or amendment promptly after its being filed with
the Commission.
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3. Registration Procedures
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(a) In connection with the obligations of the Company pursuant to
Section 2 hereof, the Company shall:
(i) prepare and file with the Commission the Registration
Statement and cause such Registration Statement to become effective and
remain continuously effective in accordance with Section 2 hereof;
provided, however, that before filing any Registration Statement or
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Prospectus or any amendments or supplements thereto (other than documents
that would be incorporated therein by reference) the Company shall afford
the Sellers and Special Counsel an opportunity to review copies of all such
documents proposed to be filed. The Company shall not file the Registration
Statement or related Prospectus or any amendments or supplements thereto
(other than such documents to be incorporated by reference) if the Sellers
or Special Counsel shall reasonably object on a timely basis;
(ii) notify the Sellers and Special Counsel (A) of the receipt of
any comments from the Commission on the Registration Statement prior to its
becoming effective, and the Company's responses thereto, (B) when the
Registration Statement becomes effective, (C) when the filing of a post-
effective amendment to the Registration Statement or supplement to the
Prospectus is required, when the same is filed, and in the case of a post-
effective amendment, when the same becomes effective, (D) of any request by
the Commission or any state securities authority for any amendment of or
supplement to the Registration Statement or the Prospectus relating thereto
or for additional information, (E) of the entry of any stop order
suspending the effectiveness of the Registration Statement or of the
initiation of any proceedings for that purpose, (F) of the happening of any
event or the failure of any event to occur or the discovery of any facts or
otherwise that makes any statement made in the Registration Statement or
the Prospectus relating thereto untrue in any material respect or that
causes such Registration Statement or Prospectus to omit to state a
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading and (G) of the
reasonable determination by the Company that a post-effective amendment to
the Registration Statement would be appropriate;
(iii) use commercially reasonable efforts to obtain the withdrawal
of any order suspending the effectiveness of the Registration Statement or
any order directed to any document incorporated by reference in the related
Prospectus at the earliest possible moment;
(iv) furnish to the Sellers and Special Counsel a conformed copy
of the Registration Statement as declared effective by the Commission and
each post-effective amendment thereto, and such number of copies of the
final Prospectus and
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of each supplement thereto (together with documents incorporated therein by
reference) as may reasonably be required to facilitate the distribution of
the Registrable Shares in accordance with a method of distribution
described in the Registration Statement;
(v) cooperate with the Sellers to facilitate the timely
preparation and delivery of certificates representing Registrable Shares to
be sold under the Registration Statement and not bearing any restrictive
legends and in such denominations and registered in such names as the
Sellers or the underwriters may reasonably request at least two Business
Days prior to the closing of any sale of Registrable Shares pursuant to the
Registration Statement;
(vi) prepare a supplement or post-effective amendment to the
Registration Statement or the Prospectus relating thereto or any document
incorporated therein by reference or file any other required document
whenever necessary upon the occurrence of any circumstance so that, as
thereafter delivered to the purchasers of Registrable Shares, such
Prospectus will not include an untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading;
(vii) if the Sellers notify the Company that they wish to effect an
underwritten offering of Registrable Shares, (A) the Sellers shall have the
right to select the managing underwriters, who shall be subject to the
approval of the Company, which approval shall not be unreasonably withheld
(it being understood that MLPF&S is, in any event, reasonably acceptable to
the Company for this purpose) and (B) the Company shall (w) enter into such
agreements (including underwriting agreements) as are customary in
underwritten offerings; (x) obtain opinions of counsel to the Company and
updates thereof (which may be in the form of a reliance letter) in form and
substance reasonably satisfactory to the managing underwriters and the
Sellers addressed to the underwriters and the Sellers covering the matters
customarily covered in opinions requested in underwritten offerings and
such other matters as may be reasonably requested by such underwriters and
the Sellers (it being agreed that the matters to be covered by such opinion
may be subject to customary qualifications and exceptions); (y) obtain
"cold comfort" letters and updates thereof in form and substance reasonably
satisfactory to the managing underwriters and the Sellers from the
independent certified public accountants of the Company (and, if necessary,
any other independent certified public accountants of any subsidiary of the
Company or of any business acquired by the Company for which financial
statements and financial data are, or are required to be, included in the
Registration Statement), addressed to each of the underwriters and, if
permitted by applicable accounting rules and statements, the Sellers, such
letters to be in customary form and covering matters of the type
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customarily covered in "cold comfort" letters in connection with
underwritten offerings and such other matters as reasonably requested by
such underwriters in accordance with Statement on Auditing Standards No.
72; and (z) ensure that any underwriting agreement contains indemnification
provisions and procedures no less favorable than those included in Section
5 hereof (or such other provisions and procedures acceptable to the Sellers
and the underwriters) with respect to all parties to be indemnified
pursuant to said section (including, without limitation, the underwriters
and the Sellers);
(viii) make reasonably available for inspection by the Sellers, any
underwriter, agent or broker-dealer participating in any disposition of
Registrable Shares and Special Counsel such information and corporate
documents as shall be reasonably necessary to enable them to exercise any
applicable due diligence responsibilities, and cause the officers of the
Company and its "significant subsidiaries" (as that terms is defined in
Regulation S-X) to be available to respond to questions relevant to such
due diligence inquiries;
(ix) make generally available to its securityholders earning
statements satisfying the provisions of Section 11(a) of the Securities Act
and Rule 158 thereunder (or any similar rule promulgated under the
Securities Act) no later than 45 days after the end of any 12-month period
(or 90 days after the end of any 12-month period if such period is a fiscal
year) (i) commencing at the end of any fiscal quarter in which Registrable
Shares are sold to underwriters in a firm commitment or best efforts
underwritten offering and (ii) if not sold to underwriters in such an
offering, commencing on the first day of the first fiscal quarter of the
Company after the effective date of the Registration Statement, which
statements shall cover said 12-month periods;
(x) register or qualify the Registrable Shares covered by the
Registration Statement under the securities or blue sky laws of such
jurisdictions in the United States as the Sellers shall reasonably request,
and do any and all other acts and things which may be necessary to enable
the Sellers to consummate the disposition in such jurisdictions of
Registrable Shares in accordance with a method of distribution described in
such Registration Statement; provided, however, that the Company shall in
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no event be required to qualify to do business as a foreign corporation or
as a dealer in any jurisdiction where it is not so qualified, to conform
its capitalization or the composition of its assets at the time to the
securities or blue sky laws of such jurisdiction, to execute or file any
general consent to service of process under the laws of any jurisdiction,
to take any action that would subject it to service of process in suits
other than those arising out of the offer and sale of the Registrable
Shares covered by such Registration Statement, or to subject itself to
taxation in any jurisdiction where it has not theretofore done so;
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(xi) cause the Registrable Shares covered by the Registration
Statement to be listed on the principal exchange or exchanges or qualified
for trading on the principal over-the-counter market on which the Series A
Shares are then listed or traded upon the sale of Registrable Shares
pursuant to the Registration Statement; and
(xii) otherwise comply with all applicable rules and regulations of
the Commission and use its commercially reasonable efforts to take such
other actions as may be required to permit unrestricted sales of
Registrable Shares under the Registration Statement.
(b) The Company's obligations under this Agreement to the Sellers shall be
conditioned upon the Sellers's compliance with the following:
(i) the Sellers shall cooperate with the Company in connection
with the preparation of the Registration Statement and, for so long as the
Company is obligated to keep the Registration Statement effective, the
Sellers will provide to the Company, in writing, for use in the
Registration Statement, all information regarding the Sellers and such
other information as may be reasonably required to enable the Company to
prepare the Registration Statement and Prospectus covering the Registrable
Shares and to maintain the currency and effectiveness thereof;
(ii) the Sellers shall permit the Company, any proposed
underwriters, agents or broker-dealers participating in the offering or
other distribution and their respective representatives and agents to
examine such documents and records and shall supply any information as they
may reasonably request in connection with the offering or other
distribution in which such Sellers propose to participate;
(iii) the Sellers shall enter into such agreements with the Company
and any underwriter, broker-dealer or similar securities industry
professional participating in an offering containing representations,
warranties, indemnities and agreements as are in each case customarily
entered into and made by selling stockholders, and will cause its counsel
to give any legal opinions customarily given, in secondary distributions
under similar circumstances;
(iv) during such time as the Sellers may be engaged in a
distribution of the Registrable Shares, the Sellers will comply with all
applicable laws, including, but not limited to, Regulation M promulgated by
the Commission under the Exchange Act and pursuant thereto will, among
other things: (A) not engage in any stabilization activity in connection
with the securities of the Company in contravention of such rules; (B)
distribute the Shares owned by the Sellers solely in the manner described
in the Registration Statement; and (C) not bid for or purchase
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any securities of the Company or attempt to induce any person to purchase
any securities of the Company other than as permitted under the Exchange
Act;
(v) other than in the case of an underwritten public offering, at
least one Business Day prior to any distribution by a Seller of Registrable
Shares, such Seller will advise the Company in writing of the dates on
which the distribution will commence and, to the best knowledge of such
Seller at that time, the date on which the distribution will terminate, the
number of the Registrable Shares to be sold, the terms and the manner of
sale (including, to the extent applicable, the purchase price, the name of
any underwriter, agent or broker-dealer to or through whom such
distribution is being made, and the amount of any selling commissions or
other items constituting compensation to such underwriter, agent or broker-
dealer) and the number of shares of Series A Stock that will be owned
beneficially by the Seller after giving effect to such sale; and
(vi) on notice from the Company of the happening of any of the
events specified in clauses (C), (D), (E), (F) or (G) of Section 3(a)(ii),
then the Sellers shall cease offering or distributing the Registrable
Shares until such time as the Company notifies the Sellers that offering
and distribution of the Registrable Shares may recommence.
4. Expenses of Registration.
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The Company shall pay all Registration Expenses and the fees and
disbursements of Special Counsel in the preparation of this Agreement, the
Master Agreement, the Stock Purchase Agreement and the Registration Statement.
Except as otherwise expressly set forth in the Master Agreement, the Sellers
shall be responsible for all underwriting discounts, commissions and transfer
taxes, if any, relating to the sale of any Registrable Shares pursuant to the
Registration Statement.
5. Indemnification. (a) The Company agrees to indemnify and hold harmless
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each Seller, and each person, if any, who controls such Seller within the
meaning of either Section 15 of the Securities Act or Section 20 of the Exchange
Act, from and against any and all losses, claims, damages, liabilities and
expenses (including reasonable costs of investigation) arising out of or based
upon any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement or the Prospectus or in any amendment or
supplement thereto or in any preliminary prospectus, or arising out of or based
upon any omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading, except insofar as
such losses, claims, damages, liabilities or expenses arise out of or are based
upon any such untrue statement or omission or allegation thereof based upon
information furnished in writing to the Company by such Seller expressly for use
therein; provided, however, that the Company shall not indemnify any Seller or
any person who controls any such Seller from any such losses, claims, damages or
liabilities alleged by any person who purchased Registrable Shares from such
Seller if the untrue statement, omission
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or allegation thereof upon which such losses, claims, damages or liabilities are
based was made in: (i) any preliminary prospectus, if a copy of the Prospectus
(as then amended or supplemented if the Company shall have furnished any
amendments or supplements thereto) was not sent or given by or on behalf of such
Seller to such person at or prior to the written confirmation of the sale of
Registrable Shares to such person, and if the Prospectus (as so amended or
supplemented) corrected the untrue statement or omission giving rise to such
loss, claim, damage or liability; (ii) any Prospectus used by such Seller or any
person who controls such Seller, after such time as the Company advised such
Seller that the filing of a post-effective amendment or supplement thereto was
required, except the Prospectus as so amended or supplemented; or (iii) any
Prospectus used after such time as the obligation of the Company to keep the
same current and effective has expired. This indemnity will be in addition to
any liability which the Company may otherwise have. All fees and expenses which
are reimbursable pursuant to this Section 5 shall be reimbursed as they are
incurred.
(b) If any action or proceeding (including any governmental investigation)
shall be brought or asserted against any Seller or any person controlling such
Seller in respect of which indemnity may be sought from the Company, such Seller
or such controlling person shall promptly notify the Company in writing, and the
Company shall assume the defense thereof, including the employment of counsel
reasonably satisfactory to such Underwriter and the payment of all expenses. Any
omission so to notify the Company shall not, however, relieve the Company from
any liability which it may have to any indemnified party otherwise than under
this Section 5. A Seller or any person controlling a Seller shall have the
right to employ separate counsel in any such action or proceeding and to
participate in the defense thereof, but the fees and expenses of such separate
counsel shall be such Seller's expense or the expense of such controlling person
unless (a) the Company has agreed to pay such fees and expenses or (b) the
Company shall have failed to assume the defense of such action or proceeding and
employ counsel reasonably satisfactory to such Seller in any such action or
proceeding or (c) the named parties to any such action or proceeding (including
any impleaded parties) include both such Seller or such controlling person and
the Company and such Seller or such controlling person shall have been advised
by counsel to such Seller that there may be a conflict of interest between such
Seller or such controlling person and the Company in the conduct of the defense
of such action (in which case, if the Seller or such controlling person notifies
the Company in writing that it elects to employ separate counsel at the expense
of the Company, the Company shall not have the right to assume the defense of
such action or proceeding on behalf of the Seller or such controlling person),
it being understood, however, that the Company shall not, in connection with any
one such action or proceeding or separate but substantially similar or related
actions or proceedings arising out of the same general allegations or
circumstances, be liable for the reasonable fees and expenses of more than one
separate firm of attorneys (unless the members of such firm are not admitted to
practice in a jurisdiction where an action is pending, in which case the Company
shall pay the reasonable fees and expenses of one additional firm of attorneys
to act as local counsel in such jurisdiction, provided the services of such
counsel are substantially limited to that of appearing as attorneys of record).
The Company shall not be liable for any settlement of any such action or
proceeding effected without its written consent, but if settled with its written
consent, or if there be a final judgment for the plaintiff in any such action or
proceeding, the Company agrees
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to indemnify and hold harmless such Seller and any such controlling person from
and against any loss or liability by reason of such settlement or judgment.
(c) Each Seller severally agrees to indemnify and hold harmless the
Company, including its directors and each of its officers, and each person, if
any, who controls the Company within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act, to the same extent as the
foregoing indemnity from the Company to such Seller, but only with respect to
information furnished in writing by such Seller expressly for use in the
Registration Statement, the related Prospectus, or any amendment or supplement
thereto, or any preliminary prospectus. In case any action or proceeding shall
be brought against the Company or the Company's directors or officers or any
such controlling person, in respect of which indemnity may be sought against an
Seller, such Seller shall have the rights and duties given to the Company, and
the Company or the Company's directors or officers or such controlling person
shall have the rights and duties given to such Seller, by Section 5(b).
(d) If the indemnification provided for in this Section 5 is unavailable
to an indemnified party under the first or third paragraph hereof in respect of
any losses, claims, damages or liabilities referred to therein (other than by
reason of such indemnified party's failure to comply with the first sentence of
the second paragraph of this Section 5), then each applicable indemnifying
party, in lieu of indemnifying such indemnified party, shall contribute to the
amount paid or payable by such indemnified party as a result of such losses,
claims, damages or liabilities in such proportion as is appropriate to reflect
the relative fault of the Company on the one hand and of the Sellers on the
other in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative fault of the Company on the one hand and of the
Sellers on the other shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company or by the Sellers and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The amount paid or payable by a party as a result of the
losses, claims, damages and liabilities referred to above shall be deemed to
include, subject to the limitations set forth in Section 5(b), any legal or
other fees or expenses reasonably incurred by such party in connection with
investigating or defending any action or claim.
(e) Each of the Company and the Sellers agrees that it would not be just
and equitable if contribution pursuant to this Section 5 were determined by pro
rata allocation or by any other method of allocation which does not take account
of the equitable considerations referred to in Section 5(d). Notwithstanding
the provisions of this Section 5, no Seller shall be required to contribute any
amount in excess of the amount by which the total price at which the Registrable
Shares were offered to the public exceeds the amount of any damages which such
Seller has otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation.
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(f) The indemnity and contribution agreements contained in this Section 5
shall remain operative and in full force and effect regardless of (a) any
investigation made by or on behalf of any Seller, by or on behalf of any person
controlling such Seller or by or on behalf of the Company or (b) any termination
of this Agreement.
6. Notices. All notices, requests, demands, waivers and other communications
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hereunder shall be in writing and shall be deemed to have been duly given if
delivered personally or mailed, certified or registered mail with postage
prepaid, or sent by telex, telegram or telecopier, as follows:
(a) if to the Company:
Tele-Communications, Inc.
0000 XXX Xxxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx, Esq.
Facsimile: (000) 000-0000
(b) if to MLPF&S:
World Financial Center
Xxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Wilenbucher
Facsimile: 000-000-0000
or to such other person (including any Seller other than MLPF&S) or address as
any party shall specify by notice in writing to the other party. All notices
and other communications given to a party in accordance with the provisions of
this Agreement shall be deemed to have been given (i) three Business Days after
the same are sent by certified or registered mail, postage prepaid, return
receipt requested, (ii) when delivered by hand or transmitted by telecopy
(answer back received) or (iii) one Business Day after the same are sent by a
reliable overnight courier service, with acknowledgment of receipt requested.
Notwithstanding the preceding sentence, notice of change of address shall be
effective only upon actual receipt thereof.
7. Amendment. Any provision of this Agreement may be amended or modified
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in whole or in part at any time by an agreement in writing among the Company and
Sellers. No consent, waiver or similar act shall be effective unless in writing
and signed by the party sought to be bound.
8. Counterparts. This Agreement may be executed in two or more
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counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
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9. Governing Law. This Agreement shall be governed by and interpreted in
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accordance with the internal laws of the State of New York, without giving
effect to principles of conflicts of laws.
10. Successors and Assigns. This Agreement shall inure to the benefit of
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and be binding upon (i) the Company, MLPF&S and MLI and their respective
successors and (ii) any assignee or transferee of rights and obligations of MLI
pursuant to the Master Agreement or MLPF&S pursuant to the Stock Purchase
Agreement. A transferee of MLI pursuant to the Master Agreement or MLPF&S
pursuant to the Stock Purchase Agreement, and any successor, assignee, or
transferee of any of the foregoing, shall be deemed a party to and held subject
to all of the terms of this Agreement. Except as set forth in this Section 10,
neither the Company nor any other party to this Agreement may assign any of its
rights, or delegate any of its duties, under this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
TELE-COMMUNICATIONS, INC.
By:
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XXXXXXX LYNCH, PIERCE, XXXXXX
& XXXXX INCORPORATED
By:
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EXHIBIT A
Any distribution of Registrable Shares by the Sellers may be effected
from time to time in one or more of the following transactions: (a) through
brokers, acting as agent in transactions (which may involve block transactions),
in special offerings, in the over-the-counter market, or otherwise, at market
prices obtainable at the time of sale, at prices related to such prevailing
market prices, at negotiated prices or at fixed prices; (b) to underwriters who
will acquire the Registrable Shares for their own account and resell them in one
or more transactions, including negotiated transactions, at a fixed public
offering price or at varying prices determined at the time of sale (any public
offering price and any discount or concessions allowed or reallowed or paid to
dealers may be changed from time to time); (c) directly or through brokers or
agents in private sales at negotiated prices; (d) to lenders pledged as
collateral to secure loans, credit or other financing arrangements and any
subsequent foreclosure, if any, thereunder; or (e) by any other legally
available means. Also, offers to purchase Registrable Shares may be solicited
by agents designated by the Sellers from time to time. Underwriters or other
agents participating in an offering made pursuant to the Registration Statement
and the related Prospectus (as amended or supplemented from time to time) may
receive underwriting discounts or commissions under the Securities Act and
discounts or concessions may be allowed or reallowed or paid to dealers, and
brokers or agents participating in such transactions may receive brokerage or
agent's commissions or fees.
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