Exhibit 99.2
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 LB I GROUP INC., a Delaware corporation ("LBIG").
WITNESSETH:
WHEREAS, LBIG 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
LBIG 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, Xxxxxx Brothers Finance S.A. ("Xxxxxx Finance") 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 Xxxxxx Finance 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
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herein 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
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which 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
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Federal 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
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of the date it becomes effective under the Securities Act and, in the case of
references to the Prospectus as of a date subsequent to the effective date of
the Registration Statement, as amended or supplemented as of such date,
including all documents incorporated by reference therein, as amended, and each
prospectus supplement relating to the offering and sale of any of the
Registrable Shares.
Registrable Shares: Shares of Series A Stock acquired under or
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pursuant to 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
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performance 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
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term "Registration 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
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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.
Sellers: LBIG and Xxxxxx Finance, and any transferee of any interest
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of LBIG under the Master Agreement or Xxxxxx Finance under the Stock Purchase
Agreement that acquires Registrable Shares.
Special Counsel: Xxxxx & Xxxx 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) Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated from the Estate and (ii) Xxxxxxx Xxxxx International 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 Xxxxxx Brothers, Inc.
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
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of the type 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,
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however, that the Company shall in no event be required to qualify to
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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
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harmless 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
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communications hereunder shall be in writing and shall be deemed to have been
duly given if delivered personally or mailed, certified or registered mail with
postage prepaid, or sent by telex, telegram or telecopier, as follows:
(a) if to the Company:
Tele-Communications, Inc.
0000 XXX Xxxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx, Esq.
Facsimile: (000) 000-0000
(b) if to LBIG:
3 World Financial Center
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxx
Facsimile: (000) 000-0000
with a copy to:
Xxxxxxx Xxxxx
Facsimile: (000) 000 0000
or to such other person (including any Seller other than LBIG) 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.
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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.
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, LBIG and Lehman Finance and their
respective successors and (ii) any assignee or transferee of rights and
obligations of Lehman Finance pursuant to the Master Agreement or LBIG pursuant
to the Stock Purchase Agreement. A transferee of Lehman Finance pursuant to the
Master Agreement or LBIG 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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LBI GROUP INC.
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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