Exhibit 10.1
LIBERTY JUPITER, INC.
SECOND AMENDED AND RESTATED STOCKHOLDERS’
AGREEMENT
THIS SECOND AMENDED AND RESTATED
STOCKHOLDERS’ AGREEMENT (the “Agreement”) is
entered into this 14th day of August, 2007, by and among LIBERTY
GLOBAL, INC., a Delaware corporation (“LGI”), LGJ
HOLDINGS LLC, a Delaware limited liability company (“LGJ
Holdings”), Miranda Curtis (“Curtis”), Graham
Hollis (“Hollis”), Yasushige Nishimura
(“Nishimura”), Liberty Jupiter, Inc., a Delaware
corporation (the “Corporation”), and, solely for the
purposes of Section 7 of this Agreement, LIBERTY MEDIA
INTERNATIONAL, INC., a Delaware corporation (“LMI”),
and LIBERTY MEDIA INTERNATIONAL HOLDINGS, LLC, a Delaware limited
liability company (“LMINT LLC”). Each of LGJ Holdings,
Curtis, Hollis and Nishimura is referred to in this Agreement
individually as a “Stockholder,” and are referred to
collectively in this Agreement as “Stockholders.”
Recitals
The Stockholders own all of the
issued and outstanding Shares of the Corporation, as follows:
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Percentage of |
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Issued and |
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Outstanding |
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Stockholder |
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Class |
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Number of Shares |
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in Class |
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LGJ Holdings
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Class A Common |
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230.00000 |
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28.75 |
% |
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Class B Common |
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3,198.00000 |
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100.00 |
% |
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Class C Common |
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2.00000 |
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100.00 |
% |
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Preferred |
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93,378.87298 |
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100.00 |
% |
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Curtis
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Class A Common |
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320.00000 |
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40.00 |
% |
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Hollis
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Class A Common |
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200.00000 |
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25.00 |
% |
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Nishimura
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Class A Common |
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50.00000 |
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6.25 |
% |
The parties to this Agreement other
than LGI and LGJ Holdings entered into a Amended and Restated
Stockholders’ Agreement (the “2004 Agreement”)
dated May 21, 2004 with Robert R. Bennett, a former
stockholder of the Corporation, to provide for certain exchange and
repurchase rights and other matters relating to the relationship
among them. Since that date, LGJ Holdings has acquired all of the
Shares formerly held by LMINT LLC and Robert R. Bennett and certain
of the Shares formerly held by Nishimura. The parties hereto desire
to substitute LGI and LGJ Holdings for LMI and LMINT LLC,
respectively, as parties and to amend and restate the provisions of
the 2004 Agreement.
In consideration of the mutual
promises and covenants contained in this Agreement and intending to
be legally bound, the parties agree that the 2004 Agreement shall
be amended and restated in its entirety to provide as
follows:
Agreement
1. Definitions.
The following terms, when used in this Agreement, have the meanings
set forth below:
(a)
“Affiliate” means, with respect to any Person, any
Person that directly or indirectly Controls, is Controlled by, or
is under common Control with such Person.
(b)
“Business Day” means any day other than Saturday,
Sunday or a day on which banking institutions in Denver, Colorado,
are required or authorized to be closed.
(c)
“Class A Shares” means Class A common stock,
par value $.01 per share, of the Corporation and any security
received in exchange or substitution for such stock.
(d)
“Class B Shares” means Class B common stock,
par value $.01 per share, of the Corporation and any security
received in exchange or substitution for such stock.
(e)
“Class C Shares” means Class C common stock,
par value $.01 per share, of the Corporation and any security
received in exchange or substitution for such stock.
(f)
“Common Shares” means any of the Class A Shares,
the Class B Shares, and the Class C Shares.
(g)
“Control” means the possession, direct or indirect, of
the power to direct or cause the direction of the management and
policies of a Person, whether through the ownership of voting
securities, by contract or otherwise.
(h)
“Exchange Notice” means a notice delivered to LGI or to
an Investor pursuant to Section 3, specifying the number of
Class A Shares the provider of such notice desires to exchange
for LBTYA Shares.
(i)
“Exchanged Shares” has the meaning specified in
Section 3(e).
(j)
“Fair Market Value” means the cash price at which a
willing seller would sell and a willing buyer would buy, both
having full knowledge of the relevant facts and being under no
compulsion to sell, in an arm’s-length transaction without
time constraints, determined, as to any LBTYA Shares, in accordance
with Section 3(d) below and, as to any Class A Shares, in
accordance with Section 3(e) below.
(k)
“Investor” means each of Curtis, Hollis and
Nishimura.
(l)
“Loan Facility” means the proposed JPY 85,000,000,000
Senior Secured Term Loan Facility that LGJ Holdings is negotiating
as of the date of this Agreement with Citibank, N.A., Tokyo Branch,
as Sole Lead Arranger and Sole Book Runner and as Administrative
Agent.
(m)
“LBTYA Share” means a share of Series A Common
Stock, par value $.01 per share, of LGI and any security received
in exchange or substitution for such a share.
(n)
“Person” means a human being or a corporation,
partnership, limited liability company, limited liability
partnership, trust, unincorporated organization, association or
other entity.
(o)
“Preferred Shares” means shares of preferred stock,
$.01 par value per share, of the Corporation and any security
received in exchange or substitution for such stock.
(p)
“Shares” means any of the Class A Shares, the
Class B Shares, the Class C Shares and the Preferred
Shares.
(q)
“Transfer” means a sale, exchange, assignment, pledge,
grant of a security interest, or other disposition (whether
voluntary, involuntary or by operation of law).
2. Share Transfer
Restrictions. No Investor will directly or indirectly
Transfer or agree to Transfer any Class A Shares except
(a) by a Transfer of Class A Shares to LGJ Holdings for
purposes of exchanging such Class A Shares for LBTYA Shares in
accordance with Section 3 below, (b) with the prior
written consent of LGI, or (c) (i) to a trust or similar
arrangement established primarily for the benefit of such Investor
or such Investor’s immediate family members, (ii) to the
spouse and lineal descendants of such Investor (including an
executor, administrator or personal representative of a deceased
Investor for the benefit of such Person), or (iii) to a Person
that is Controlled by the transferring Investor and that continues
to be Controlled by the transferring Investor at all times while it
owns any Class A Shares, so long as any such Transfer does not
subject LGI, LGJ Holdings or the Corporation to any additional
legal requirements or restrictions or to any liability or
obligation. Any attempted Transfer of Class A Shares by an
Investor other than in accordance with this Section 2 will be
void ab initio. Any Person to whom Class A Shares are
transferred in accordance with clause (b) or (c) of this
Section 2 automatically will be substituted for the
transferring Investor as a party to this Agreement with respect to
such Class A Shares as of the effective time of such Transfer
and thereafter shall be considered an Investor for all purposes of
this Agreement.
3. Exchange of
Class A Shares. LGI and each Investor will have the
right to require the exchange of Class A Shares for LBTYA
Shares in accordance with the following provisions:
(a)
LGI Exchange Right. LGI will have the right, exercisable by
delivery of a Exchange Notice to an Investor, to require the
exchange of all or any part of the Class A Shares held by such
Investor for a number of LBTYA Shares having a Fair Market Value
equivalent to the Fair Market Value of the number of Class A
Shares being exchanged. If LGI exercises its right under this
Section 3(a) to require the exchange of Class A Shares held by
an Investor, LGI
will use
commercially reasonable efforts to cause such exchange to be
accomplished without the imposition of tax liability on the
Investor whose Class A Shares are exchanged.
(b)
Investor Exchange Right. Each Investor (or, in the case of a
deceased Investor, his or her personal representative) will have
the right, exercisable by delivery of a Exchange Notice to LGI, to
require the exchange of all of the Class A Shares held by such
Investor for a number of LBTYA Shares having a Fair Market Value
equivalent to the Fair Market Value of the number of Class A Shares
being exchanged.
(c)
Exchange Notice Date. The date on which any Exchange Notice
pursuant to Section 3(a) or (b) is delivered is the
“Exchange Notice Date.”
(d)
Fair Market Value of LBTYA Shares. For purposes of this
Section 3, the Fair Market Value of an LBTYA Share will be
equal to the last reported sales price of an LBTYA
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