As filed with the Securities and Exchange Commission on
December 22, 2003 Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------------
FORM F-6
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933 FOR DEPOSITARY SHARES EVIDENCED BY
AMERICAN DEPOSITARY RECEIPTS
-----------------------------
The News Corporation Limited
(Exact name of issuer of deposited securities as specified in its charter)
-----------------
N/A
(Translation of issuer's name into English)
--------------------------------------------
Australia
(Jurisdiction of incorporation or organization of issuer)
--------------------------------------------
CITIBANK, N.A.
(Exact name of depositary as specified in its charter)
--------------------------------
111 Wall Street
New York, New York 10043
(212) 657-2026
(Address, including zip code, and
telephone number, including
area code, of Depositary's
principal executive offices)
--------------------------------
Arthur M. Siskind, Esq.
News America Incorporated
1211 Avenue of the Americas
New York, New York 10036
(212) 852-7000
(Name, address, including zip code, and telephone number,
including area code of agent for service)
-----------------------------------------
Copies to:
Jeffrey W. Rubin, Esq. Mildred Quinones-Holmes, Esq.
Hogan & Hartson L.L.P. Citibank, N.A.
875 Third Avenue 388 Greenwich Street, 19th Floor
New York, New York 10022 New York, New York 10013
-----------------------------------------
It is proposed that this filing become effective under Rule 466:
|X| immediately upon filing.
|_| on (Date) at (Time).
If a separate registration statement has been filed to register the deposited
shares, check the following box |X|.
CALCULATION OF REGISTRATION FEE
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Proposed Proposed Amount of
Title of Each Amount to be Maximum Maximum Registration
Class of Securities Registered Aggregate Aggregate Fee
to be Registered Offering Offering
Price Per Price**
Unit*
--------------------------------------------------------------------------------
American Depositary 300,000,000 $5.00 $15,000,000.00 $1,213.50
Shares evidenced by
American Depositary
Receipts, each
American Depositary
Share representing four
(4) Preferred Limited
Voting Ordinary Shares
of The News Corporation
Limited.
--------------------------------------------------------------------------------
* Each unit represents one hundred (100) American Depositary Shares.
** Estimated solely for the purpose of calculating the registration fee.
Pursuant to Rule 457(k), such estimate is computed on the basis of the
maximum aggregate fees or charges to be imposed in connection with the
issuance of such receipts evidencing such American Depositary Shares.
This Registration Statement may be executed in any
number of counterparts, each of which shall be deemed an
original, and all of such counterparts together shall
constitute one and the same instrument.
THE PROSPECTUS CONSISTS OF THE FORM OF AMERICAN DEPOSITARY
RECEIPT, ATTACHED AS EXHIBIT A TO THE AMENDED AND RESTATED
DEPOSIT AGREEMENT.
PART I
INFORMATION REQUIRED IN PROSPECTUS
Item 1. DESCRIPTION OF SECURITIES TO BE REGISTERED
CROSS REFERENCE SHEET
Item Number and Caption Location in Form of American
-----------------------
Depositary Receipt ("Receipt")
Filed Herewith as Prospectus
1. Name of depositary and address Face of Receipt - Introductory
---------------
of its principal executive Paragraph; final sentence of face.
office
2. Title of American Depositary Face of Receipt - Top center and
---------------
Receipts and identity of Introductory Paragraph.
deposited securities
Terms of Deposit:
(i) The amount of deposited Face of Receipt - Upper right
---------------
securities represented by corner and Introductory Paragraph.
one American Depositary
Share
(ii) The procedure for voting, Reverse of Receipt - Paragraphs
------------------
if any, thedeposited (13) and (14).
securities
(iii) The collection and Face of Receipt - Paragraphs (4),
---------------
distribution of dividends (7) and (9);
Reverse of Receipt - Paragraphs
------------------
(12), (13) and (17).
(iv) The transmission of Face of Receipt - Paragraph (9);
---------------
notices, reports and and
proxy soliciting material Reverse of Receipt - Paragraphs
------------------
(13), (14), (16), and (21).
(v) The sale or exercise of Face of Receipt - Paragraphs (3),
---------------
rights (4) and (6);
Reverse of Receipt - Paragraphs
------------------
(12), (13) and (21).
(vi) The deposit or sale of Reverse of Receipt - Paragraphs
------------------
securities resulting (12) and (15).
from dividends, splits or
plans of reorganization
(vii)Amendment, extension or Reverse of Receipt - Paragraphs
------------------
termination of the (20) and (21).
deposit agreement
(viii)Rights of holders of Reverse of Receipt - Paragraph (16)
------------------
Receipts to inspect the
transfer books of the
depositary and the list
of holders of Receipts
(ix) Restrictions upon the Face of Receipt - Paragraphs (2),
---------------
right to deposit or (3), (4) and (5);
withdraw the underlying Reverse of Receipt - Paragraph
------------------
securities (22).
(x) Limitation upon the Face of Receipt- Paragraph (6); and
---------------
liability of the depositary Reverse of Receipt - Paragraph
------------------
(18).
3. Fees and charges which may be Face of Receipt - Paragraphs (6);
---------------
imposed directly or indirectly and
against holders of Receipts Reverse of Receipt - Paragraph
------------------
(20).
Item 2. AVAILABLE INFORMATION Face of Receipt - Paragraph (11).
---------------
The News Corporation Limited is subject to the periodic reporting requirements
of the Securities Exchange Act of 1934, as amended, and, accordingly, files
certain reports as well as the Depositary's principal office, with the
Securities and Exchange Commission (the "Commission"). These reports and other
information can be inspected by holders of Receipts and copied at public
reference facilities maintained by the Commission located at Room 1024, 450
Fifth Street, NW, Washington, D.C. 20549.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 3. EXHIBITS
(a) Amended and Restated Deposit Agreement, dated as of
December 3, 1996, by and among The News Corporation Limited (the "Company"),
Citibank, N.A., as depositary (the "Depositary"), and all Holders from time to
time of American Depositary Receipts issued thereunder (including the form of
American Depositary Receipt ("ADR") to be issued thereunder). *
(b)(1) Letter Agreement, dated as of November 25, 2003
between the Company and the Depositary. - Filed herewith as Exhibit (b)(1).
(b)(2) Letter Agreement, dated as of November 25, 2003,
between the Company and the Depositary. - Filed herewith as Exhibit (b)(2).
(c)(1) Form of Restricted Securities Letter Agreement
between the Company, the Depositary and General Motors Corporation. - Filed
herewith as Exhibit (c)(1).
(c)(2) Letter Agreement, dated as of October 15, 2003, between
the Company, the Depositary, Liberty Media Corporation and Liberty NC XIII, INC.
- Filed herewith as Exhibit (c)(2).
(c)(3) Letter Agreement, dated as of December 17, 2001,
between the Company, the Depositary, News Publishing Australia Limited, Liberty
Media Corporation, LMC International, Inc. and Citicorp Nominees Pty Limited.
- Filed herewith as Exhibit (c)(3).
(c)(4) Letter Agreement, dated as of December 3, 2001, between
the Company, the Depositary, and Liberty Media Corporation. - Filed herewith as
Exhibit (c)(4).
(c)(5) Letter Agreement, dated as of December 3, 2001, between
the Company, the Depositary, and Liberty Media Corporation. - Filed herewith as
Exhibit (c)(5).
(c)(6) Letter Agreement, dated July 15, 1999, between the
Company and the Depositary. **
(d) Opinion of Frettra M. Miller, counsel to the Depositary,
as to the legality of the securities to be registered. - Filed herewith as
Exhibit (d).
(e) Rule 466 Certification. - Filed herewith as Exhibit (e).
(f) Powers of Attorney for certain officers and directors and
the authorized representative of the Company. - Set forth on signature pages
hereto.
------------------------------------
* Previously filed and incorporated by reference to Exhibit (a) of Form F-6
Registration No. 333-10562.
** Previously filed and incorporated by reference to Exhibit (c) of Form F-6
Registration No. 333-13420.
Item 4. UNDERTAKINGS
a) The Depositary hereby undertakes to make available at the principal
office of the Depositary in the United States, for inspection by holders of the
ADRs, any reports and communications received from the issuer of the deposited
securities that are both (1) received by the Depositary as the holder of the
deposited securities and (2) made generally available to the holders of the
underlying securities by the issuer.
b) The Depositary hereby undertakes to prepare a separate document
stating the amount of any fee charged and describing the service for which it is
charged and to deliver promptly a copy of such fee schedule without charge to
anyone upon request. The Depositary undertakes to notify each registered holder
of an ADR thirty days before any change in the fee schedule.
SIGNATURES
----------
Pursuant to the requirements of the Securities Act of 1933, as amended,
Citibank, N.A., on behalf of the legal entity created by the Amended and
Restated Deposit Agreement, dated as of December 3, 1996, by and among The News
Corporation Limited, Citibank, N.A., as depositary, and all Holders of American
Depositary Receipts issued thereunder (the "Deposit Agreement"), certifies that
it has reasonable grounds to believe that all the requirements for filing on
Form F-6 are met and has duly caused this Registration Statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the City of New
York, State of New York, on the 12th day of December, 2003.
Legal entity created by the Deposit
Agreement for the issuance of
American Depositary Receipts
evidencing American Depositary
Shares, each representing four (4)
Preferred Limited Voting Ordinary
Shares of The News Corporation
Limited.
CITIBANK, N.A., as Depositary
By: /s/ Susanna Mancini
-------------------------------
Name: Susana Mancini
Title: Vice President
SIGNATURES
----------
Pursuant to the requirements of the Securities Act of 1933, as amended, The News
Corporation Limited certifies that it has reasonable grounds to believe that all
the requirements for filing on Form F-6 are met and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in New York, on the 12th day of December, 2003.
THE NEWS CORPORATION LIMITED
By: /s/ K. Rupert Murdoch
-------------------------------
Name: K. Rupert Murdoch
Title:
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below
constitutes and appoints K. Rupert Murdoch, David F. DeVoe and Arthur M.
Siskind, or anyone of them, his true and lawful attorneys-in-fact and agents,
with full power of substitution and resubstitution, for him and in his name,
place and stead, in any and all capacities, to sign any or all pre- or post-
effective amendments to this Registration Statement, and to file the same with
all exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents, or any of them or their or his substitute or substitutes, may lawfully
do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in
the capacities indicated on Decembeer 12, 2003.
Name Title
---- -----
/s/ K. Rupert Murdoch Executive Director, Chairman and Chief
--------------------------------
K. Rupert Murdoch Executive (Principal Executive Officer)
/s/ David F. DeVoe Executive Director and, Chief
---------------------------------
David F. DeVoe Financial Officer (Principal Financial
Officer and Principal Accounting
Officer)
/s/ Chase Carey Executive Director
--------------------------------
Chase Carey
/s/ Peter Chernin Executive Director
--------------------------------
Peter Chernin
/s/ Lachlan K. Murdoch Executive Director
--------------------------------
Lachlan K. Murdoch
/s/ Arthur M. Siskind Executive Director and Authorized
--------------------------------
Arthur M. Siskind Representative in the United States
/s/ Kenneth E. Cowley Non-Executive Director
--------------------------------
Kenneth E. Cowley
/s/ Andrews S. B. Knight Non-Executive Director
--------------------------------
Andrew S.B. Knight
/s/ Roderick I. Eddington Non-Executive Director
--------------------------------
Roderick I. Eddington
/s/ Graham J. Kraehe Non-Executive Director
--------------------------------
Graham J. Kraehe
/s/ Thomas J. Perkins Non-Executive Director
--------------------------------
Thomas J. Perkins
/s/ Stanley S. Shuman Non-Executive Director
--------------------------------
Stanley S. Shuman
/s/ Geoffrey C. Bible Non-Executive Director
--------------------------------
Geoffrey C. Bible
Index to Exhibits
-----------------
Sequentially
Exhibit Document Numbered Page
------- -------- -------------
(b)(1) Letter Agreement, dated
as of November 25, 2003
between the Company and
the Depositary
(b)(2) Letter Agreement, dated
as of November 25, 2003,
between the Company and
the Depositary.
(c)(1) Form of Restricted Securities
Letter Agreement between the
Company, the Depositary and
General Motors Corporation.
(c)(2) Letter Agreement, dated as of
October 15, 2003, between the
Company, the Depositary,
Liberty Media Corporation and
Liberty NC XIII, INC.
(c)(3) Letter Agreement, dated as of
December 17, 2001, between the
Company, the Depositary, News
Publishing Australia Limited,
Liberty Media Corporation,
LMC International, Inc. and
Citicorp Nominees Pty Limited.
(c)(4) Letter Agreement, dated as of
December 3, 2001, between the
Company, the Depositary and
Liberty Media Corporation.
(c)(5) Letter Agreement, dated as of
December 3, 2001, between the
Company, the Depositary and
Liberty Media Corporation.
(d) Opinion of counsel to the
Depositary
(e) Rule 466 certification
b)(1) Letter Agreement,
dated as of November 25, 2003,
between the Company and the Depositary
EXECUTION COPY
CITIBANK, N.A.
111 Wall Street
New York, New York 10043
As of November 25, 2003
The News Corporation Limited
2 Holt Street
Sydney NSW
Australia 2001
Attention: Corporate Secretary
The News Corporation Limited - Direct Registration System
for ADSs evidenced by Preferred Limited Voting Ordinary Shares
--------------------------------------------------------------
Ladies and Gentlemen:
Reference is made to the Amended and Restated Deposit
Agreement, dated as of December 3, 1996 (the "Deposit Agreement"), by and among
-----------------
The News Corporation Limited (the "Company"), Citibank, N.A., as Depositary (the
-------
"Depositary"), and all Holders from time to time of American Depositary Receipts
----------
("ADRs") evidencing American Depositary Shares ("ADSs") issued thereunder, each
---- ----
ADS representing four Preferred Limited Voting Ordinary Shares (the "Shares") of
------
the Company. Capitalized terms used herein without definition shall have the
meaning assigned thereto in the Deposit Agreement.
The purpose of this letter agreement is to supplement the
Deposit Agreement to enable the establishment by the Depositary of a "direct
registration system" (the "DR System") for ADSs and the issuance by the
---------
Depositary of "uncertificated ADSs" as part of the DR System. In order to enable
such issuance of "uncertificated ADSs", the Company and the Depositary agree as
follows:
1. Notwithstanding any provision of the Deposit Agreement, the
Depositary may, at any time and from time to time, issue ADSs that are not
evidenced by ADRs (such ADSs, the "Uncertificated ADSs", and the ADSs evidenced
-------------------
by ADRs, the "Certificated ADSs");
-----------------
2. Uncertificated ADSs shall not be represented by any
instrument(s) but shall be evidenced only by the registration of "uncertificated
securities" on the books and records of the Depositary maintained for such
purpose. Any reference to Holders of ADR(s) or ADS(s) in the Deposit Agreement
shall, in the context of the Uncertificated ADSs, refer to the person(s) in
whose name the Uncertificated ADSs are registered on the books of the Depositary
maintained for such purpose;
3. Holders of Uncertificated ADSs that are not subject to any
registered pledges, liens, restrictions or adverse claims, of which the
Depositary has written notice at such time, shall at all times have the right to
exchange the Uncertificated ADSs (or any portion thereof) for Certificated ADSs
of the same type and class, subject in each case to applicable laws and any
rules the Depositary may establish in respect of the Uncertificated ADSs;
4. Holders of Certificated ADSs shall, so long as the Depositary
maintains the DR System for the ADSs, have the right to exchange the
Certificated ADSs (or any portion thereof) for Uncertificated ADSs upon (i) the
due surrender of the Certificated ADSs to the Depositary for such purpose, and
(ii) the presentation of a written request to such effect to the Depositary,
subject in each case to (a) all liens and restrictions noted on the ADR
evidencing the Certificated ADS(s) and all adverse claims of which the
Depositary then has written notice, (b) the terms of the Deposit Agreement (as
supplemented by this letter agreement) and the rules that the Depositary may
establish from time to time for such purposes thereunder, and(c) applicable law;
5. Uncertificated ADSs shall in all material respects be identical
to Certificated ADSs of the same type and class, except that (i) no ADR(s) shall
be, nor shall need to be, issued to evidence Uncertificated ADSs, (ii)
Uncertificated ADSs shall, subject to the terms of the Deposit Agreement (as
supplemented by this letter agreement), be transferable upon the same terms and
conditions as uncertificated securities under New York law, (iii) each Holder's
ownership of Uncertificated ADSs shall be recorded on the books and records of
the Depositary maintained for such purpose and evidence of such Holder's
ownership shall be reflected in periodic statements provided by the Depositary
to each such Holder in accordance with applicable law, (iv) the Depositary may
from time to time, upon notice to the Holders of Uncertificated ADSs affected
thereby, establish rules and amend or supplement existing rules, as may be
deemed reasonably necessary to maintain the DR System and for the issuance of
Uncertificated ADSs on behalf of Holders, provided that such rules do not
conflict with the terms of the Deposit Agreement (as supplemented by this letter
agreement) and applicable law, (v) the Holder of Uncertificated ADSs shall not
be entitled to any benefits under the Deposit Agreement (as supplemented by this
letter agreement) and such Holder's Uncertificated ADSs shall not be valid or
enforceable for any purpose against the Depositary or the Company unless such
Holder is registered on the books and records of the Depositary maintained for
such purpose, (vi) the Depositary may, in connection with any deposit of Shares
resulting in the issuance of Uncertificated ADSs and with any transfer, pledge,
release and cancellation of Uncertificated ADSs, require the prior receipt of
such documentation as the Depositary may reasonably request, and (vii) upon
termination of the Deposit Agreement (as supplemented by this letter agreement),
the Depositary shall not require Holders of Uncertificated ADSs to affirmatively
instruct the Depositary before remitting proceeds from the sale of the Deposited
Securities represented by such Holders' Uncertificated ADSs under the terms of
Section 6.02 of the Deposit Agreement;
6. When issuing ADSs under the terms of the Deposit Agreement,
including, without limitation, issuances pursuant to Sections 4.03 and 4.04
thereof, the Depositary may in its discretion determine to issue Uncertificated
ADSs rather than Certificated ADSs, unless otherwise specifically instructed in
writing by the applicable Holder to issue Certificated ADSs;
7. Holders of Uncertificated ADSs may request the sale of ADSs
through the Depositary, subject to the terms and conditions generally applicable
to the sale of ADSs through the Depositary. A copy of the terms and conditions
as in effect on the date hereof is attached hereto as Exhibit A. Holders of
---------
Uncertificated ADSs requesting the sale of all or a portion of such
Uncertificated ADSs will be charged fees for the processing of such sale
-2-
(currently consisting of a service fee of $15.00, plus a processing fee of $0.12
per Uncertificated ADS sold). Fees may be changed at any time and will be
deducted from the proceeds of the sale of Uncertificated ADSs;
8. Uncertificated ADSs will be eligible for participation in The
News Corporation Limited Dividend Reinvestment Plan for Holders of American
Depositary Receipts (the "Plan") and any ADSs issued pursuant to the Plan may,
at the discretion of the Depositary, be issued in the form of Uncertificated
ADSs. The terms of this letter agreement shall be deemed to supplement that
certain Dividend Reinvestment Plan Servicing Agreement, dated as of March 22,
1999, between the Company and the Depositary in order to (i) enable the
Depositary to make the terms of the Plan available to the Holders of
Uncertificated ADSs, and (ii) permit the Depositary to issue Uncertificated
ADSs, in its discretion, pursuant to the Plan;
9. All provisions and conditions of the Deposit Agreement shall
apply to Uncertificated ADSs to the same extent as to Certificated ADSs, except
as contemplated herein. The Depositary is authorized and directed to take any
and all actions, and establish any and all procedures, deemed reasonably
necessary to give effect to the terms hereof. Any references in the Deposit
Agreement or any ADR(s) to the terms "American Depositary Share(s)" or "ADS(s)"
shall, unless the context otherwise requires, include Certificated ADS(s) and
Uncertificated ADS(s), individually or collectively, as the context may require;
10. Except as set forth herein and except as required by
applicable law, the Uncertificated ADSs shall be treated as ADSs issued and
outstanding under the terms of the Deposit Agreement (as supplemented by this
letter agreement). In the event that, in determining the rights and obligations
of parties to the Deposit Agreement (as supplemented by this letter agreement)
with respect to any Uncertificated ADSs, any conflict arises between (a) the
terms of the Deposit Agreement and (b) the terms hereof, the terms and
conditions set forth herein shall be controlling and shall govern the rights and
obligations of the parties to the Deposit Agreement pertaining to the
Uncertificated ADSs; and
11. This letter agreement shall be interpreted under, and all the
rights and obligations hereunder shall be governed by, the laws of the State of
New York without regard to the principles of choice of law thereof.
In addition, the Company and the Depositary agree that the terms
hereof supplement the Deposit Agreement, and do not prejudice any substantial
existing rights of Holders of ADSs and, as a result, notice may but does not
need to be given of the terms hereof to Holders of ADSs. The Company and the
Depositary acknowledge that a copy hereof will be attached as an exhibit to the
Registration Statement on Form F-6 to be filed with the Securities and Exchange
Commission after the date hereof in respect of the ADSs.
[Remainder of page intentionally left blank]
-3-
CITIBANK, N.A.,
as Depositary
By: /s/ Thomas M. Crane
------------------------------
Name: Thomas M. Crane
Title: Vice President
Date:
Acknowledged and Agreed:
THE NEWS CORPORATION LIMITED
By: /s/ Arthur Siskind
------------------------------
Name: Arthur Siskind
Title:
Date:
-4-
EXHIBIT A
Terms and Conditions
[to be attached]
A-1
(b)(2) Letter Agreement,
dated as of November 25, 2003,
between the Company and the Depositary
EXECUTION COPY
CITIBANK, N.A.
111 WALL STREET
NEW YORK, NEW YORK 10043
As of November 25, 2003
The News Corporation Limited
2 Holt Street
Sydney NSW
Australia 2001
Attention: Corporate Secretary
Re: The News Corporation Limited
Dividend Reinvestment Plan Servicing Agreement
----------------------------------------------
Ladies and Gentlemen:
Reference is made to the (i) Dividend Reinvestment Plan
Servicing Agreement (the Dividend Reinvestment Plan Servicing Agreement and all
schedules attached hereto, collectively, the "Servicing Agreement") is made as
-------------------
of March 22, 1999, by and between The News Corporation Limited, a corporation
organized and existing under the laws of South Australia, Australia (the
"Company"), and Citibank, N.A., in its capacity as Servicing Agent (the
-------
"Servicing Agent"), (ii) Amended and Restated Deposit Agreement, dated as of
---------------
October 29, 1996 (such Deposit Agreement as amended from time to time, the
"Ordinary Share Deposit Agreement"), by and among the Company, Citibank, N.A.,
--------------------------------
in its capacity as Depositary (the "Depositary"), and the holders of American
----------
Depositary Shares (the "Ordinary Share ADSs") evidenced by American Depositary
-------------------
Receipts ("Ordinary Share ADRs") issued thereunder, (iii) the Amended and
-------------------
Restated Deposit Agreement, dated as of December 3, 1996 (such Deposit Agreement
as amended from time to time, the "Preferred Ordinary Share Deposit Agreement",
------------------------------------------
and together with the Ordinary Share Deposit Agreement, the "Deposit
-------
Agreements"), by and among the Company, Depositary, and the holders of American
----------
Depositary Shares (the "Preferred Ordinary Share ADSs", and together with the
-----------------------------
Ordinary Share ADSs, the "ADSs") evidenced by American Depositary Receipts (the
----
"Preferred Ordinary Share ADRs", and together with the Ordinary Share ADRs, the
-----------------------------
"ADRs") issued thereunder, (iv) DRS Letter Agreement (Ordinary Shares), dated as
----
of November 25, 2003 (such DRS Letter Agreement as amended from time to time,
the "Ordinary Share DRS Letter Agreement"), by and between the Company and the
-----------------------------------
Depositary, which provides for the establishment by the Depositary of a "direct
registration system" (the "DR System") for Ordinary Share ADSs and the issuance
---------
by the Depositary of "uncertificated" Ordinary ADSs as part of the DR System,
and (v) DRS Letter Agreement (Preferred Limited Voting Ordinary Shares), dated
as of November 25, 2003 (such DRS Letter Agreement as amended from time to time,
the "Preferred Share DRS Letter Agreement"), by and between the Company and the
------------------------------------
Depositary, which provides for the establishment by the Depositary of a DR
System for Preferred Share ADSs and the issuance by the Depositary of
"uncertificated" Preferred ADSs as part of the DR System. Unless otherwise
specified in this letter agreement, all capitalized terms used, but not defined,
herein shall have the meanings given to such terms in the Servicing Agreement.
Subject to the terms and conditions contained in this letter
agreement, the Company wishes, inter alia, to update the Plan Brochure and to
amend the Servicing Agreement to allow Plan Participants to (i) request the sale
by the Servicing Agent of their ADSs held in their Plan accounts ("U.S. Plan
---------
Accounts"); (ii) request payment of net dividends (cash dividends, net of
--------
Australian and U.S. withholding taxes) by check in U.S. Dollars on specified
ADSs held in their U.S. Plan Accounts (as an alternative to reinvesting the cash
dividends on these ADSs); and (iii) deposit ADSs into their U.S. Plan Accounts
for safekeeping (with or without the dividend reinvestment feature).
Pursuant to Section 8 of the Servicing Agreement and in
connection with the objectives of the Company set forth in the preceding
paragraph, each of the Company and the Servicing Agent hereby agree to amend the
Servicing Agreement as follows:
1. The term "Effective Date" shall mean the date set forth above, which is
the date this Amendment shall become effective.
2. All references in the Servicing Agreement to the term "Agreement"
shall, as of the Effective Date, refer to the Servicing Agreement, as
amended by the terms of this Amendment.
3. All references in the Servicing Agreement to the term "Plan Brochure"
shall, as of the Effective Date, refer to the Plan Brochure, as amended
and restated (the "Amended and Restated Plan Brochure") and in the form
----------------------------------
attached hereto as Exhibit A (unless subsequently amended in accordance
---------
with its terms in which case the reference to "Plan Brochure" shall
mean the "Amended and Restated Plan Brochure" as so further amended).
4. All references in the Servicing Agreement to the term "Services
--------
Schedule" shall, as of the Effective Date, refer to the Services
--------
Schedule, as amended and restated by the terms of this Amendment (the
"Amended and Restated Services Schedule") and in the form attached
--------------------------------------
hereto as Exhibit B (unless subsequently amended in accordance with its
---------
terms in which case the reference to "Services Schedule" shall mean the
"Amended and Restated Services Schedule" as so further amended).
5. For the services provided under the Servicing Agreement, as amended by
this letter agreement, the Company agrees to pay to the Servicing
Agent, and acknowledges that the Servicing Agent may charge Plan
Participants, the fees and reimbursements set forth in the Amended and
Restated Fee Schedule attached hereto as Exhibit C. All payments due
---------
Citibank hereunder shall be remitted within 30 days of the date of
invoice.
6. This letter agreement shall be interpreted and all rights hereunder
shall be governed by the laws of the State of New York without regard
to its principles of conflicts of law.
[Remainder of page intentionally left blank; signature page immediately
follows.]
-2-
Please confirm your agreement to the terms outlined above by
signing below and returning a copy hereof to the undersigned.
Sincerely,
CITIBANK, N.A.,
as Servicing Agent
By: /s/ Thomas M. Crane
------------------------------
Name: Thomas M. Crane
Title: Vice President
Date:
Acknowledged and Agreed:
THE NEWS CORPORATION LIMITED
By: /s/ Arthur Siskind
------------------------------
Name: Arthur Siskind
Title:
Date:
Exhibits
--------
Exhibit A - Amended and Restated Plan Brochure
Exhibit B - Amended and Restated Services Schedule
Exhibit C - Amended and Restated Fee Schedule
Exhibit D - Sales Order Processing Through Citibank - Terms and Conditions
-3-
Exhibit A - Amended and Restated Plan Brochure
[to be attached]
A-1
Exhibit B - Amended and Restated Services Schedule
(as of November 25, 2003)
AMENDED AND RESTATED SERVICES SCHEDULE
to the Dividend Reinvestment Plan Servicing Agreement,
dated as of March 22, 1999, as amended (the "Agreement"),
by and between The News Corporation Limited (the "Company")
and Citibank, N.A., as Servicing Agent (the "Servicing Agent")
All capitalized terms used, but not otherwise defined herein,
shall have the meaning given to such terms in the Agreement.
Servicing Agent shall provide the following services and the
Company shall take the following actions, or shall cause the following actions
to be taken, as applicable:
I. Establishment of Participant Accounts
-------------------------------------
The Servicing Agent shall make available procedures for the
processing of "Dividend Reinvestment Plan Authorization Cards" received from
holders of ADSs registered on the books of the Depositary ("Registered Owners")
from time to time in accordance with the terms of the Plan as described in the
Plan Brochure. The Servicing Agent shall not accept Authorization Cards from
persons who (i) are not Registered Owners, or (ii) who reside outside the United
States, all of which are ineligible to participate in the Plan. ADSs held in a
brokerage or custodian account in the name of the broker or custodian, including
those held by the Depository Trust Company in the name of its nominee, Cede &
Co., are not eligible for participation in the Plan. Holders of ADSs held in the
name of a broker or custodian who wish to participate in the Plan must arrange
to have their ADSs registered in their own names and deposited in their U.S.
Plan Accounts in certificated form or in DR System form. Upon receipt of such
Authorization Cards, the Servicing Agent shall establish a Plan account in the
name of the applicable Registered Owner (upon enrollment, a "Plan Participant")
upon the terms and conditions of the Plan described in the Plan Brochure
attached as Exhibit A hereto. As an alternative to reinvesting cash dividends on
ADSs held by Plan Participants in their U.S. Plan Accounts, Plan Participants
will be given the opportunity by the Servicing Agent to request, upon the terms
of the Plan Brochure, payment of net dividends (cash dividends, net of
Australian and U.S. withholding taxes) by check in U.S. Dollars on specified
ADSs held in their U.S. Plan Accounts. If a Registered Owner returns a properly
executed Authorization Card to the Servicing Agent without electing a dividend
reinvestment option, such Authorization Card shall be deemed to indicate the
intention of such Registered Owner to apply all cash dividends on all ADSs which
are then or subsequently registered in such Registered Owner's name and all ADSs
held in such Registered Owner's Plan Account toward the purchase of additional
ADSs. The Servicing Agent shall not have any responsibility to determine whether
any person having completed an Authorization Card is eligible to participate in
the Plan under the terms of the Plan.
B-1
II. Custody and Safekeeping
-----------------------
The Servicing Agent shall accept and hold ADSs and funds
received as custodian for the Plan for the sole benefit of the Plan
Participants. The Servicing Agent will establish and maintain on its records
individual accounts for each of the Plan Participants. Unless certificated at
the request of a Plan Participant, the ADSs will be maintained in the Plan
Participants' accounts and safekept in electronic form. The Servicing Agent
shall be authorized to combine Participants' funds and ADSs with those of other
Plan Participants. No interest will accrue or be paid on any funds held in any
of the Plan Participants' accounts. All of the property maintained in the Plan
Participants' accounts shall be subject to the provisions of the Plan as in
effect from time to time. The Servicing Agent shall enable Plan Participants to
deliver ADRs representing ADSs or uncertificated ADSs to the Servicing Agent for
safekeeping at the Service Agent's address below.
III. Stock Dividend and Elective Dividend Processing
-----------------------------------------------
a. Stock Dividend. Whenever the Company shall declare a dividend payable
--------------
only in ADSs to holders of ADSs, the Servicing Agent shall credit the full and
fractional ADSs received on behalf of each of the Plan Participants to the
applicable Plan Participants' accounts.
b. Optional Dividend. Whenever the Company provides holders of ADRs the
-----------------
opportunity to receive a dividend payable in additional ADSs or in cash, the
Servicing Agent will provide to each of the Plan Participants the opportunity to
elect to receive such dividend in the form of new ADSs representing new Shares
issued by the Company upon terms similar to the terms made available to
registered holders of ADSs. Such election will take place outside the Plan. Any
cash received by the Servicing Agent as part of the elective dividend shall be
treated as a dividend payable in cash hereunder (and the applicable Dividend
Reinvestment option selected by the Plan Participants, if any, shall apply
thereto). The Servicing Agent shall credit to the account of the Plan
Participant electing to receive such dividend in ADSs (without deduction for
brokerage fees or transaction costs provided for in the Plan) the number of ADSs
distributable to such electing Plan Participant.
IV. ADS Certification
-----------------
The Servicing Agent shall establish procedures pursuant to
which Plan Participants may obtain a certificate evidencing any whole number of
ADSs held in their respective accounts upon delivery of instructions to the
Servicing Agent. The Servicing Agent will make every effort to mail the
certificate to the Plan Participant promptly and in no event later than thirty
(30) days after the receipt of such instructions (except where deferral is
necessary under Federal or State laws and regulations). ADSs so certificated
will continue to be eligible for the dividend reinvestment, safekeeping and cash
dividend participation services that are part of the Plan if so designated by
the Plan Participant. Certificates will be delivered only for whole number of
ADSs maintained in the Plan accounts. Fractional entitlements will be held on
behalf of the Plan Participants until termination of the Plan account at which
time such fractional entitlements will be sold by the Servicing Agent on behalf
of the applicable Plan Participant.
B-2
V. Proxy Processing
----------------
The Servicing Agent will make available to each of the Plan
Participants the voting rights accruing to holders of ADSs for the full number
of ADSs (exclusive of fractional entitlements) held in the individual Plan
Participants' accounts as of the applicable record date. The Servicing Agent
will forward to each of the Plan Participants any and all proxy and voting
materials timely received from the Company and requested to be distributed to
holders of ADSs by the Company.
VI. Corporate Actions Processing
----------------------------
Any stock split distributed on the ADSs held by the Servicing
Agent for any Plan Participants will, upon receipt of additional ADSs by the
Servicing Agent, be credited to the Plan Participants' accounts provided that
the stock being distributed is of the same type, class and series as the
securities represented by the ADSs held in the Plan account. In the event that
rights are made available to registered holders of ADSs to subscribe for
additional ADSs or other securities, the Servicing Agent will make such rights
available to the participants in the Plan to the same extent as such rights are
being made available to holders of ADSs (to the extent permitted by law). The
ADSs held for a Plan Participant in a Plan Account may be, but shall not be
required to be, combined with other ADSs registered in the name of such Plan
Participant for purposes of calculating the number of rights to be issued to
such Plan Participant. In the event any other distribution, the Servicing Agent
shall treat Plan Participants on the same terms and conditions as holders of
ADSs who are not Plan Participants in the Plan to the extent reasonably
practicable and permitted by law.
VII. Sale of ADSs Held in U.S. Plan Accounts
---------------------------------------
The Servicing Agent shall make available means for all Plan
Participants (other than those considered an "affiliate" under U.S. securities
laws), whether they have elected full or partial participation in the Plan, to
request the sale through the Servicing Agent of all or part of their full ADSs
held in their U.S. Plan Accounts at any time, including upon withdrawal from the
Plan. In requesting the Servicing Agent to sell ADSs, all Plan Participants
shall be required to agree with, and all sales effected upon such requests shall
be in accordance with, the terms and conditions contained in "Sales Order
Processing Through Citibank", attached to the Agreement as Exhibit D, as the
same may be amended from time to time ("Sales Terms and Conditions"). Requests
to sell all or part of the ADSs in the Plan shall be accepted in writing or by
telephone in each case upon the terms of the Sales Terms and Conditions.
VIII. Participant Communications/Statements
-------------------------------------
a. Statements. The Servicing Agent will promptly send to the Plan
----------
Participants transaction statements after each transaction effectuated (i.e.,
dividend reinvestment, cash dividend participation, sales) showing any cash
dividends received, the price per ADS purchased, the price per ADS sold, the
number of ADSs held/purchased for the Plan Participant, the number of ADSs on
which dividends are being reinvested, cash dividends paid and the fees, if any,
paid in respect of the reported transaction(s). These statements will be the
Plan Participant's continuing record of the cost basis of the purchases of ADSs
B-3
and should be retained by the Plan Participant for tax purposes. The Servicing
Agent may levy a service charge for providing copies of statements for any
period in a prior calendar year.
b. Communications The Servicing Agent shall make available its ADR holder
--------------
services toll-free number during N.Y. business hours from which Plan
Participants may obtain (i) information about the status of their respective
Plan accounts and instruct the sale of ADSs, and (ii) the forms to be used for
changes of dividend reinvestment designation and for sale instructions
(certificate delivery requests being included in the transaction statements
identified in Section VII(a) above).
c. Reporting
---------
(i) Tax Reporting: The Servicing Agent shall provide to the Plan
-------------
Participants and to their Internal Revenue Service annual tax reports on Form
1099DIV and Form 1099B.
(ii) Management Reports: The Servicing Agent shall on a quarterly basis
------------------
provide to the Company a report setting forth (i) the number of ADSs purchased
on behalf of Plan Participants during the reported quarter, (ii) the U.S. dollar
value of the ADSs purchased on behalf of Plan Participants during the reported
quarter, and (iii) the total number of Plan Participants as of the close of the
relevant quarter.
d. Mailings The Servicing Agent shall, at the request and expense of the
--------
Company, mail to each of the Plan Participants the informational materials
provided by the Company for distribution to ADR holders (i.e., Annual Reports).
IX. Deposits and Withdrawals
------------------------
a. Deposits The Servicing Agent shall establish procedures pursuant to
which Plan Participants may deposit ADSs held in their own name into their
respective Plan accounts. The ADSs so deposited will benefit from the same
services as the ADSs theretofore held in the Participants' Plan accounts.
b. Withdrawals The Servicing Agent will establish procedures pursuant to
-----------
which Plan Participants may at any time withdraw any whole number of ADSs from
their respective accounts upon delivery of instructions to that effect to the
Servicing Agent. The Servicing Agent will make every effort to either (i) mail a
certificate representing the ADSs to be withdrawn to the Plan Participant
promptly, or (ii) arrange for delivery of ADSs to the Plan Participant's broker
or custodian, or (iii) so long as the DR System is available for ADSs, arrange
for the issuance of ADSs in the Plan Participant's name as part of the DR
System, as requested by the applicable Plan Participants, but in no event later
than thirty (30) days after receipt of such instructions (except where deferral
is necessary under Federal or State laws or regulations). Fractional
entitlements will be held on behalf of Plan Participants until termination of
the Plan account at which time such fractional entitlements will be sold by the
Servicing Agent on behalf of the applicable Plan Participant. If a Plan
Participant has authorized "Full Dividend Reinvestment," cash dividends with
respect to ADSs withdrawn from the Participant's account that continue to be
registered in the name of the Participant will be continued to be reinvested.
If, however, cash dividends with respect to only a portion of the ADSs
registered in a Participant's name are being reinvested, the Servicing Agent
B-4
will continue to reinvest dividends on only the number of ADSs specified by the
Participant in the applicable Authorization Card as subject to the reinvestment
of dividends. A withdrawal of all ADSs from the account shall be deemed a
termination of participation in the Plan.
X. Fees and Charges
----------------
The fees and charges payable by the Company and by the Plan
Participants are set forth in the Fee Schedule attached as Exhibit C to the
Agreement.
B-5
Exhibit C - Fee Schedule
(November 25, 2003)
AMENDED AND RESTATED FEE SCHEDULE
to the Dividend Reinvestment Plan Servicing Agreement,
dated as of March 22, 1999, as amended (the "Agreement"),
by and between The News Corporation Limited (the "Company")
and Citibank, N.A., as Servicing Agent (the "Servicing Agent")
All capitalized terms used but not otherwise defined herein
shall have the meaning given to such terms in the Agreement.
A. The Fees payable by Participants in the Plan are as follows:
--------------------------------- ----- -------------------------------
Enrollment Fee: No charge
--------------------------------- ----- -------------------------------
--------------------------------- ----- -------------------------------
Account Maintenance: No charge
--------------------------------- ----- -------------------------------
--------------------------------- ----- -------------------------------
Deposit of Certificates: No charge
--------------------------------- ----- -------------------------------
--------------------------------- ----- -------------------------------
Safekeeping of ADSs: No charge
--------------------------------- ----- -------------------------------
--------------------------------- ----- -------------------------------
Dividend Reinvestment: No charge
--------------------------------- ----- -------------------------------
--------------------------------- ----- -------------------------------
Sale of ADSs Service fee of
$15.00 plus a processing
fee of $0.12 per each
whole ADS sold.
--------------------------------- ----- -------------------------------
--------------------------------- ----- -------------------------------
Withdrawal/Certification of ADSs: No charge
--------------------------------- ----- -------------------------------
--------------------------------- ----- -------------------------------
Termination: No charge except for brokerage
commission incurred upon the
sale of a fractional ADS and
the servicing and processing
fees on any sale of ADSs
described above.
--------------------------------- ----- -------------------------------
B. The fees and expenses reimbursable by the Company in respect of the
Plan are as follows:
The annual fee of $2,500 and any expenses incurred in
maintaining the Plan will be offset against the amounts payable by Citibank,
N.A., as Depositary, to the Company under the terms of a separate pricing
arrangement between Citibank, N.A., as Depositary, and the Company in respect of
the Company's ADR programs.
C-1
Exhibit D - Sales Order Processing Through Citibank
[to be attached]
D-1
(c)(1) Form of Restricted Securities Letter Agreement
between the Company, the Depositary and General Motors Corporation
CITIBANK, N.A.
111 WALL STREET
NEW YORK, NEW YORK 10043
As of December [__], 2003
The News Corporation Limited
2 Holt Street
Sydney NSW
Australia 2001
Attention: Corporate Secretary
Re: Restricted ADSs (Cusip No. 652487998)
The News Corporation Limited - General Motors Corporation
Stock Purchase Agreement
------------------------
Ladies and Gentlemen:
Reference is made to the Amended and Restated Deposit
Agreement, dated as of December 3, 1996, as amended and supplemented prior to
the date hereof (the "Deposit Agreement"), by and among The News Corporation
-----------------
Limited (the "Company"), Citibank, N.A., as Depositary ("Citibank"), and all
------- --------
Holders from time to time of American Depositary Receipts ("ADRs") evidencing
----
American Depositary Shares ("ADSs") issued thereunder, each ADS representing
----
four Preferred Limited Voting Ordinary Shares (the "Preferred Shares") of the
----------------
Company. Capitalized terms used herein without definition shall have the
meanings assigned thereto in the Deposit Agreement.
Pursuant to Section 2.03 of the Deposit Agreement and in
connection with the proposed delivery by the Company of ADSs that are
"Restricted Securities" as defined in Section 1.13 of the Deposit Agreement
(such ADSs, the "Restricted ADSs") to General Motors Corporation ("GM"), in
--------------- --
accordance with Section 2.2 of the Stock Purchase Agreement, dated as of April
9, 2003, as amended, by and among the Company, Hughes Electronics Corporation
("Hughes") and GM, the Company hereby authorizes, directs and agrees to the
------
following:
1. Upon receipt of confirmation of the deposit of [__________]
Preferred Shares by the Company with Citicorp Nominees Pty Limited and delivery
to Citibank by the Company of a notice (a draft copy of which is attached hereto
as Exhibit A) releasing such Preferred Shares from escrow, Citibank shall issue
---------
one or more Restricted ADR(s) in the aggregate representing [__________]
Restricted ADSs to GM, which Restricted ADR(s) shall bear the legend set forth
on the form of Restricted ADR certificate attached hereto as Exhibit B. After
---------
the Restricted ADR(s) have been delivered to GM, GM shall promptly deliver to
Citibank a receipt substantially in the form attached hereto as Exhibit C
---------
acknowledging, inter alia, receipt of the Restricted ADR(s) and the Restricted
ADSs represented thereby.
2. For as long as the Restricted ADSs constitute "Restricted
Securities" as defined in the Deposit Agreement or are otherwise subject to
restrictions on transfer set forth in Section 8(d) of the GM Registration Rights
Agreement, dated as of April 9, 2003, between the Company and GM, a copy of
which is attached as Exhibit D hereto (the "GM Registration Rights Agreement"),
--------- --------------------------------
the Restricted ADSs shall:
a. be separately identified on the books of Citibank
(by means of CUSIP No. 652487998) and shall not be
fungible or commingled with the ADSs issued under
the terms of the Deposit Agreement that are not
Restricted ADSs;
b. be represented by the Deposited Shares deposited in
an account or subaccount to be maintained by the
Custodian separate and distinct from other
Preferred Shares held pursuant to the terms of the
Deposit Agreement that are not restricted under the
terms hereof;
c. be issued only in the form of physical, certificated
Restricted ADRs substantially in the form attached
hereto as Exhibit B;
---------
d. not be eligible for book-entry settlement through
any third parties, including without limitation,
book-entry settlement through The Depository Trust
Company;
e. not be eligible for pre-release transactions
described in Section 5.11 of the Deposit Agreement
nor be included for purposes of the calculation
referred to in the penultimate sentence of the first
paragraph of said section; and
f. not be eligible for transfer on the books of
Citibank or cancellation unless Citibank has
received in addition to the documentation otherwise
contemplated by the Deposit Agreement an opinion of
counsel to the Company substantially in the form
attached hereto as Exhibit E (with such supporting
---------
certificates, acknowledgements or other
documentation as such counsel deems appropriate) in
form and substance reasonably satisfactory to
Citibank setting forth, inter alia, the
circumstances under which the Restricted ADSs are no
longer "Restricted Securities" or are transferable
by the holder thereof under applicable securities
laws.
3. Citibank acknowledges and agrees that the Company is relying
on the procedures and conditions set forth in the preceding paragraph in
connection with the issuance of the Restricted ADSs. The Company may advise
Citibank from time to time in writing that it has been advised that some or all
of the Restricted ADSs no longer constitute Restricted Securities. Upon
Citibank's receipt of any such notice and the applicable items identified in
Section 2(f) above, the Restricted ADSs identified therein shall cease to be
subject to the terms of this letter agreement and Citibank will, for the benefit
2
of GM or any other holder of the Restricted ADSs, take such actions (including
the removal of legends on the Restricted ADR(s) representing such Restricted
ADSs) as are necessary to accomplish the foregoing.
4. The Company hereby represents and warrants (in lieu of the
representations and warranties contained in Section 3.03 of the Deposit
Agreement) that (a) the Preferred Shares that will be deposited by the Company
for issuance of the Restricted ADSs will be, at the time of such deposit,
validly issued, fully paid and nonassessable, and free of any preemptive rights
of the holders of outstanding Preferred Shares, (b) the Company will be, at the
time of such deposit, duly authorized to make such deposit, (c) the Preferred
Shares deposited by the Company for issuance of the Restricted ADSs will rank,
at the time of such deposit, pari passu in all respects with all existing
Preferred Shares issued as of the date of such deposit (including as to
dividends), and (d) the Preferred Shares that will be deposited by the Company
for issuance of the Restricted ADSs will not be, at the time of such deposit,
liable for disenfranchisement or disposal by the Company pursuant to the
Constitution of the Company. Such representations and warranties shall survive
the deposit and withdrawal of the Preferred Shares and the issuance of
Restricted ADSs and the issuance and cancellation of Restricted ADR(s) in
respect thereof.
5. Except as expressly provided in this letter agreement and
except as required by applicable law, the Restricted ADSs shall be treated as
ADSs issued and outstanding under the terms of the Deposit Agreement. The
parties acknowledge that this letter agreement supplements the terms of the
Deposit Agreement and imposes certain restrictions specified herein with respect
to the Restricted ADSs and the Restricted ADR(s) representing the Restricted
ADSs.
6. The Company agrees to reimburse Citibank for any reasonable
fees or expenses incurred in connection with the establishment and
implementation of any procedures for the deposit of the Preferred Shares or the
issuance of Restricted ADSs as contemplated by this letter agreement.
7. Each of the Company and Citibank acknowledges and agrees
that the indemnification under Section 5.08 of the Deposit Agreement shall apply
to the issuance of Restricted ADSs hereunder and any other acts performed or
omitted by Citibank or any Custodian as contemplated by this letter agreement.
8. This letter agreement shall be interpreted and all rights
hereunder shall be governed by the laws of the State of New York without regard
to its principles of conflicts of law.
9. The Company and the Depositary acknowledge that a copy
hereof has been attached as Exhibit (c)(4) to the Registration Statement on Form
F-6 (Reg. No. [________]) filed with the Securities and Exchange Commission in
respect of the ADSs.
[Signature page immediately follows.]
3
Please confirm your agreement to the terms written above by signing below and
returning a copy hereof to the undersigned.
Sincerely,
CITIBANK, N.A.,
as Depositary
By:
----------------------------
Name:
Title:
Date:
Acknowledged and Agreed:
THE NEWS CORPORATION LIMITED
By:
----------------------------
Name:
Title:
Date:
Acknowledged and Agreed:
GENERAL MOTORS CORPORATION
By:
----------------------------
Name:
Title:
Date:
Exhibits
--------
Exhibit A - Release Notice
Exhibit B - Form of Restricted ADR
Exhibit C - Form of Acknowledgment of Receipt of Restricted ADR Exhibit D - GM
Registration Rights Agreement Exhibit E - Opinion of Counsel
4
EXHIBIT A
---------
RELEASE NOTICE
[TO BE ATTACHED FROM ESCROW DEED (ANNEXURE 1)]
A-1
Escrow Deed - Hughes Merger
--------------------------------------------------------------------------------
ANNEXURE 1
THE NEWS CORPORATION LIMITED
(A.C.N. 007 910 330)
c/o News America Incorporated
1211 Avenue of the Americas
New York, N.Y. 10036
__________, 2003 (New York Time)
TO: Citibank, N.A.
ADR Department
Level 20, Zone 7
111 Wall Street
New York, N.Y. 10043 USA
Attention: Tom Crane
Fax: (212) 825 5398
TO: Citicorp Nominees Pty Limited
Level 2
350 Collins Street
Melbourne Vic 3000
Attention: Scott Simon
Fax: (03) 9605 4599
CC: Computershare Investor Services Pty Limited
5/115 Grenfell Street
Adelaide, S.A. 5000
Attention: Doris Grave
Fax: (08) 8236 2305
10
Escrow Deed - Hughes Merger
--------------------------------------------------------------------------------
Release of Escrow Notice - Stock Purchase Agreement
Direction to issue Restricted ADSs
We refer to the [****] Preferred Limited Voting Ordinary Shares ("Preferred
Shares") held in escrow by Citicorp Nominees Pty Limited under the Escrow Deed
dated as of _________, 2003 among Citibank, N.A., Citicorp Nominees Pty Limited
and The News Corporation Limited, which are held for the account of Citibank,
N.A. pending closing of the Stock Purchase Agreement (as defined in the Escrow
Deed).
Pursuant to clause 5(b) of the Escrow Deed, The News Corporation Limited
irrevocably notifies you that the conditions to the deposit of those [****]
Preferred Shares with the Custodian have been satisfied and Citicorp Nominees
Pty Limited is hereby instructed and authorized to unconditionally allot and
release the Preferred Shares from the escrow under the Escrow Deed.
With reference to the Amended and Restated Deposit Agreement, dated as of
December 3, 1996 (Deposit Agreement) among The News Corporation Limited,
Citibank, N.A., as depositary and all holders of American Depositary Receipts
from time to time, as supplemented by the Letter Agreement, dated as of [DATE],
2003 (Letter Agreement), by and among Citibank, N.A., General Motors Corporation
and The News Corporation Limited, The News Corporation Limited:
1. notifies Citibank, N.A. that [****] Preferred Shares have been
unconditionally and irrevocably allotted and issued to Citicorp Nominees
Pty Limited for the account of Citibank, N.A. with effect from this date
and directs that Computershare Investor Services Pty Limited record in
the share register the allotment and issue with effect from this date;
2. instructs Citibank, N.A. to issue, in accordance with the Deposit
Agreement, as supplemented by the Letter Agreement, an aggregate of
[****nb a quarter of all other numbers] Restricted American Depositary
Shares, each of which represents four Preferred Shares of The News
Corporation Limited in the name of General Motors Corporation (or as
designated by General Motors Corporation within the terms of the Letter
Agreement); and
3. represents and warrants (in lieu of the representations and warranties
contained in Section 3.03 of the Deposit Agreement) that
(a) the Preferred Shares to be represented by the Restricted
American Depositary Shares are validly issued, fully paid and
nonassessable, and free of any preemptive rights of the holders
of outstanding Preferred Shares;
(b) The News Corporation Limited is duly authorized to make such
deposit;
(c) the Preferred Shares being deposited by The News Corporation
Limited in support of the issuance of the Restricted American
Depositary Shares rank pari passu in all respects with all
existing Preferred Shares in issue at that date (including as
to dividends); and
(d) the Preferred Shares being deposited by The News Corporation
Limited are not liable for disenfranchisement or disposal by
The News Corporation Limited pursuant to the Constitution of
The News Corporation Limited.
11
Escrow Deed - Hughes Merger
--------------------------------------------------------------------------------
Such representations and warranties shall survive the deposit and
withdrawal of Preferred Shares and the issuance and cancellation of
Restricted American Depositary Shares and the issuance and cancellation
of Restricted American Depositary Receipts in respect thereof.
Yours faithfully
Authorised Officer
The News Corporation Limited
12
EXHIBIT B
---------
FORM OF RESTRICTED ADR
[INCLUDING LEGEND]
"THE AMERICAN DEPOSITARY SHARES (THE "ADSs") REPRESENTED BY THIS AMERICAN
----
DEPOSITARY RECEIPT AND THE PREFERRED LIMITED VOTING ORDINARY SHARES (THE
"SHARES") REPRESENTED BY SUCH ADSs HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
------
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND NONE OF THE ADSs OR SHARES
--------------
MAY BE SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF
UNLESS SUCH ADSs OR SHARES HAVE BEEN REGISTERED UNDER THE SECURITIES ACT AND
APPLICABLE STATE SECURITIES LAWS OR, IN THE OPINION OF COUNSEL REASONABLY
ACCEPTABLE TO THE NEWS CORPORATION LIMITED ("NEWS CORPORATION"), IN FORM AND
----------------
SUBSTANCE REASONABLY SATISFACTORY TO NEWS CORPORATION, EXEMPTION FROM SUCH
REGISTRATION IS AVAILABLE."
[STOCK CERTIFICATE TO BE ATTACHED]
B-1
EXHIBIT C
---------
FORM OF ACKNOWLEDGMENT OF
RECEIPT OF RESTRICTED ADR
Citibank, N.A.
ADR Department
111 Wall Street, 20th Floor
New York, New York 10043
Attention: Mr. Tom Crane
---------
Re: The News Corporation Limited - General Motors Corporation
Stock Purchase Agreement (Cusip No. 652487998)
----------------------------------------------
Dear Sirs:
The undersigned General Motors Corporation ("GM") hereby (x)
--
acknowledges the receipt, pursuant to the Stock Purchase Agreement, dated as of
April 9, 2003, as amended, (the "Stock Purchase Agreement"), by and among Hughes
------------------------
Electronics Corporation, General Motors Corporation and The News Corporation
Limited ("TNCL"), of [____] Restricted American Depositary Receipt(s) in
----
aggregate representing [______] Restricted American Depositary Shares issued
under the terms of (i) the Amended and Restated Deposit Agreement, dated as of
December 3, 1996, as amended or supplemented since such date (the "Deposit
-------
Agreement"), by and among TNCL, Citibank, N.A. ("Citibank") and all Holders from
--------- --------
time to time of American Depositary Receipts evidencing American Depositary
Shares issued thereunder, (ii) the Letter Agreement, dated as of [DATE], 2003
(the "Letter Agreement"), by and among TNCL, GM and Citibank, and (y) agrees to
----------------
be bound by the terms of the Deposit Agreement and the Letter Agreement.
Dated: December [__], 2003
By:
---------------------------------
Name:
Title:
C-1
EXHIBIT D
---------
GM REGISTRATION RIGHTS AGREEMENT
[to be attached]
D-1
EXHIBIT E
---------
OPINION OF COUNSEL
[to be attached]
E-1
(c)(2) Letter Agreement,
dated as of October 15, 2003,
between the Company, the Depositary,
Liberty Media Corporation and Liberty NC XIII, INC.
EXECUTION COPY
CITIBANK, N.A.,
111 WALL STREET
NEW YORK, NEW YORK 10043
As of October 15, 2003
The News Corporation Limited
2 Holt Street
Sydney NSW
Australia 2001
Attention: Corporate Secretary
Re: The News Corporation Limited - Liberty Media Corporation
Call/Put Agreement Cusip No. 652487993)
--------------------------------------
Ladies and Gentlemen:
Reference is made to the (1) Amended and. Restated Deposit
Agreement, dated as of December 3, 1996 (the "Deposit Agreement"), by and among
-----------------
The News Corporation Limited (the "Company"), Citibank, N.A., as Depositary
-------
("Citibank"), and all Holders from time to time of American Depositary Receipts
--------
("ADRs") evidencing American Depositary Shares ("ADSs") issued thereunder, each
---- ----
ADS representing four Preferred Limited Voting Ordinary Shares (the "Preferred
---------
Shares") of the Company, and (ii) Notice, dated as of October 9, 2003 (the
------
"Notice"), from the Company to, and acknowledged by, Citibank, notifying
------
Citibank that the Call Right has been exercised and instructing, inter alia, the
issuance of Restricted ADSs (as hereinafter defined) and delivery of Restricted
ADR(s) (as hereinafter defined) upon Citibank's receipt of certain documentation
specified therein. Capitalized terms used herein without definition shall have
the meaning assigned thereto in the Deposit Agreement.
Pursuant to Section 2.01 of the Deposit Agreement and in
connection with the delivery by the Company, pursuant to that certain Call/Put
Agreement, by and between the Company and Liberty Media Corporation ("LMC"),
---
dated as of March 27, 2003 and as in effect on the date hereof (the "Call/Put
--------
Agreement"), of ADSs that are "Restricted Securities", as defined in Section
---------
1.13 of the Deposit Agreement (such ADSs, the "Restricted ADSs," the Shares
---------------
represented by such Restricted ADSs, the "Deposited Shares"; and the ADRs
----------------
evidencing such Restricted ADSs, the "Restricted ADRs"), to LMC and/or one or
---------------
more of LMC's Controlled Affiliates (as defined in the Call/Put Agreement),
Citibank hereby acknowledges receipt (whether prior to the date hereof or on the
date hereof) of the following:
1. a properly completed and duly executed copy of the Call
Notice, dated September 30, 2003;
2. the Escrow Deed attached hereto as Exhibit A;
---------
3. at least three (3) business days prior to the date hereof,
the Issuance Notice attached hereto as Exhibit B (the "Issuance Notice");
--------- ---------------
4. the written confirmation of the Custodian's receipt of the
deposit of the Deposited Shares by the Company into Citibank's account;
5. the release instructions attached hereto as Exhibit C (the
---------
"Release Instructions"); and
--------------------
6. the opinion of counsel to the Company attached hereto as
Exhibit D.
---------
The Company hereby authorizes and instructs Citibank to, and
Citibank agrees to, issue the applicable number of Restricted ADSs and deliver
the applicable Restricted ADR(s) to the Purchaser(s) (as defined in the Notice
and hereinafter used as so defined), in accordance with the terms of the
Issuance Notice. The parties hereto agree that the Restricted ADSs so issued
shall be restricted in the manner outlined in this letter agreement and the
Restricted ADR(s) so delivered shall bear the legend set forth on the form of
Restricted ADR attached hereto as Exhibit E. After the Restricted ADR(s) have
---------
been delivered to the Purchaser(s), each Purchaser shall be required to deliver
to Citibank, a receipt substantially in the form attached hereto as Exhibit F
---------
acknowledging receipt of the Restricted ADR(s) and the Restricted ADSs evidenced
thereby.
For as long as the Restricted ADSs constitute "Restricted
Securities" as defined in the Deposit Agreement, the Restricted ADSs shall:
a. be separately identified on the books of Citibank
and shall not be fungible or commingled with the
ADSs issued under the terms of the Deposit Agreement
that are not Restricted ADSs;
b. be represented by the Deposited Shares deposited
pursuant hereto to be maintained by the Custodian in
an account or subaccount separate and distinct from
other Preferred Shares held pursuant to the terms of
the Deposit Agreement that are not restricted;
C. be issued only in the form of physical, certificated
Restricted ADRs in the form annexed hereto as
Exhibit E;
---------
d. not be eligible for any book-entry settlement system,
including without limitation, with The Depository
Trust Company;
e. not be eligible for pre-release transactions
described in Section 5,11 of the Deposit Agreement
nor be included for purposes of the calculation
referred to in the penultimate sentence of the first
paragraph of said section; and
f. not be eligible for transfer on the books of Citibank
or cancellation unless Citibank has received an
addition to the documentation otherwise contemplated
by the Deposit Agreement an opinion of counsel to the
Company (with such supporting certificates,
acknowledgements OT Other documentation as such
counsel deems appropriate) in form and substance
reasonably satisfactory to Citibank setting forth,
inter alia, the circumstances under which the
Restricted ADSs are no longer Restricted Securities
or are transferable by the holder thereof under
applicable securities laws. Notwithstanding the
foregoing, any Holder (as defined in the Registration
Rights Agreement, by and between the Company and LMC,
dated as of October 15, 2003) may transfer all or a
portion of its Restricted ADSs to an Affiliate (as
defined in the Registration Rights Agreement) of such
Holder without Citibank having received such an
opinion of counsel.
7. Citibank acknowledges and agrees that the Company is
relying on the procedures and conditions set forth in the preceding paragraph in
connection with the issuance of the Restricted ADSs. The Company may advise
Citibank from time to time in writing that it has been advised that some or all
of the Restricted ADSs no longer constitute Restricted Securities. Upon
Citibank's receipt of any such notice and the applicable items identified in
Section 3(f) above, the Restricted ADSs identified therein shall cease to be
subject to the terms of this letter agreement and Citibank will, for the benefit
of the purchasers) or any other holder of the Restricted ADSs take such actions
(including the removal of legends on the Restricted ADR(s) representing such
Restricted ADSs) as are necessary to accomplish the foregoing.
8. The Company hereby represents and warrants (in lieu of the
representations and warranties contained in Section 3.03 of the Deposit
Agreement) that (a) the Preferred Shares deposited by the Company for issuance
of the Restricted ADSs were, at the time of such deposit, and are validly
issued, fully paid and nonassessable, and free of any preemptive rights of the
holders of outstanding Preferred Shares, (b) the Company is and was, at the time
of such deposit, duly authorized to make such deposit, (c) the Preferred Shares
deposited by the Company for issuance of the Restricted ADSs rank and ranked,
at the time of such deposit, pari passu in all respects with all existing
Preferred Shares issued as of the date of such deposit (including as to
dividends), and (d) the Preferred Shares deposited by the Company for issuance
of the Restricted ADSs were not, at the time of such deposit, and are not liable
for disenfranchisement or disposal by the Company pursuant to the Constitution
of the Company. Such representations and warranties shall survive the deposit
and withdrawal of the Preferred Shares and the issuance of Restricted ADSs and
the issuance and cancellation of ADRs in respect thereof.
9. Except as expressly provided in this letter agreement and
except as required by applicable law, the Restricted ADSs shall be treated as
ADSs issued and outstanding under the terms of the Deposit Agreement. The
parties acknowledge that this letter agreement supplements the terms of the
Deposit Agreement and imposes certain restrictions specified herein with respect
to the Restricted ADSs and the Restricted ADR(s) representing the Restricted
ADSs,
10. The Company agrees to reimburse Citibank for any
reasonable fees or expenses incurred in connection with the establishment and
implementation of any procedures for the deposit of the Preferred Shares or the
issuance of Restricted ADSs as contemplated by this letter agreement.
11. Each of the Company and Citibank acknowledges and agrees
that the indemnification under Section 5.08 of the Deposit Agreement shall apply
to the issuance of Restricted ADSs hereunder and any other acts performed or
omitted by Citibank as contemplated by this letter agreement.
This letter agreement shall be interpreted and all rights
hereunder shall be governed by the laws of the State of New York without regard
to its principles of conflicts of law.
[Signature page immediately follows.]
EXECUTION COPY
Please confirm your agreement to the terms outlined above by signing below and
returning a copy hereof to the undersigned.
Sincerely,
CITIBANK, N.A., as Depositary
By:
-------------------------------
Name:
Title:
Date:
Acknowledged and Agreed:
THE NEWS CORPORATION LIMITED
By:
-------------------------------
Name:
Title:
Date:
Acknowledged and Agreed:
LIBERTY MEDIA CORPORATION
By:
-------------------------------
Name:
Title:
Date:
Please confirm your agreement to the terms outlined above by signing below and
returning a copy hereof to the undersigned.
Sincerely,
CITIBANK, N.A.,
as Depositary
By: /s/ Susan A. Lucanto
-------------------------------
Name: SUSAN A. LUCANTO
Title: Vice President
Date: 10-15-03
Acknowledged and Agreed:
THE NEWS CORPORATION LIMITED
By:
-------------------------------
Name:
Title:
Date:
Acknowledged and Agreed:
LIBERTY MEDIA CORPORATION
By:
-------------------------------
Elizabeth M. Markowski
Senior Vice President
Date:
Acknowledged and Agreed:
LIBERTY NC XIII, INC.
By:
-------------------------------
Name:
Title:
Date:
Exhibits
--------
Exhibit A - Issuance Notice
Exhibit B - Form of Escrow Deed
Exhibit C - Release Instructions
Exhibit D Form of Opinion of Counsel
Please confirm your agreement to the terms outlined above by signing below and
returning a copy hereof to the undersigned.
Sincerely,
CITIBANK, N.A.,
as Depositary
By:
-------------------------------
Name:
Title:
Date:
Acknowledged and Agreed:
THE NEWS CORPORATION LIMITED
By: /s/ Janet L. Nova
-----------------------------
Name: Janet L. Nova
Title: Authorized Person
Date: October 15, 2003
Acknowledged and Agreed:
LIBERTY MEDIA CORPORATION
By:
-------------------------------
Elizabeth M. Markowski
Senior Vice President
Date:
Acknowledged and Agreed:
LIBERTY NC XIII, INC.
By:
-------------------------------
Name:
Title:
Date:
Exhibits
--------
Exhibit A - Issuance Notice
Exhibit B - Form of Escrow Deed
Exhibit C - Release Instructions
Exhibit D - Form of Opinion of Counsel
Please confirm your agreement to the terms outlined above by signing below and
returning a copy hereof to the undersigned.
Sincerely,
CITIBANK, N.A.,
as Depositary
By:
-------------------------------
Name:
Title:
Date:
Acknowledged and Agreed:
THE NEWS CORPORATION LIMITED
By:
-------------------------------
Name:
Title:
Date:
Acknowledged and Agreed:
LIBERTY MEDIA CORPORATION
By: /s/ Elizabeth M. Markowski
------------------------------
Elizabeth M. Markowski
Senior Vice President
Date: 10/15/03
Acknowledged and Agreed:
LIBERTY NC XIII, INC.
By: /s/ Elizabeth M. Markowski
-------------------------------
Elizabeth M. Markowski
Senior Vice President
Date: 10/15/03
Exhibits
--------
Exhibit A - Issuance Notice
Exhibit B - Form of Escrow Deed
Exhibit C - Release Instructions
Exhibit D - Form of Opinion of Counsel
Exhibit E - Form of Restricted ADR
Exhibit F - Form of Acknowledgment of Receipt of Restricted ADR
Exhibit G - TNCL Registration Rights Agreement
Acknowledged and Agreed:
[Upon issuance of Restricted ADSs to one or more of LMC's Controlled Affiliates
each such Controlled Affiliate shall execute this Letter Agreement in
counterpart]
By:
-------------------------------
Name:
Title:
Date:
Exhibits
--------
Exhibit A -Escrow Deed
Exhibit B - Issuance Notice
Exhibit C - Release Instructions
Exhibit D -Opinion of Counsel
Exhibit E - Form of Restricted ADR
Exhibit F - Form of Acknowledgment of Receipt of Restricted ADR
EXHIBIT A
---------
ESCROW DEED
EXECUTION COPY
Escrow Deed
-------------------------------------------------------------------
The News Corporation Limited
Citicorp Nominees Pty Limited
Citibank, N.A.
GM Purchase Allotment
1
Escrow Deed - Hughes Merger
--------------------------------------------------------------------------------
Date 2003
-------------
Parties
-------------
1. The News Corporation Limited (A.C.N. 007 910 330) of 2 Holt
Street, Surry Hills, New South Wales (TNCL);
2. Citicorp Nominees Pty Limited (A.C.N. 000 809 030) of Level 2,
350 Collins Street, Melbourne, Victoria 3000 (the Custodian);
and
3. Citibank, N.A., (A.R.B.N. 072 814 058) a national banking
association organised and existing under the laws of the United
States of America, of 111 Wall Street, 20th Floor, New York, New
York 10043, USA (the Depositary).
Recitals
-------------
A Whereas TNCL, General Motors Corporation (GM) and Hughes
Electronics Corporation (Hughes) have entered into a Stock
Purchase Agreement and Merger Agreement (each, as defined below)
whereby, subject to the conditions therein, the following
actions shall occur (i) Hughes, a wholly owned subsidiary of GM,
shall be split-off from GM, (ii) simultaneously thereto, a
wholly owned subsidiary of TNCL shall purchase all of
outstanding Class B common stock of Hughes from GM (the Hughes
Stock Purchase), and (iii) immediately thereafter, a wholly
owned subsidiary of TNCL shall merge with and into Hughes (the
Merger) with Hughes surviving as the surviving company
(collectively, the Transactions). As a result of the
Transactions, TNCL shall own 34% of the outstanding common stock
of Hughes.
B Pursuant to the Stock Purchase Agreement it is proposed that
TNCL issue [***] [to be updated once Exchange Ratio calculation
has been made the Stock Purchase Agreement ] Preferred Shares to
the Custodian, to be held in escrow under this Escrow Deed in
respect of the ADSs to be issued to GM in the Hughes Stock
Purchase, pursuant to the Stock Purchase Agreement (the Hughes
Pref Shares).
C TNCL is required to deposit the Hughes Pref Shares with the
Custodian, for the account of the Depositary, pursuant to the
Deposit Agreement, as supplemented by the Letter Agreement, so
that [_______] Restricted ADSs can be issued to General Motors
Corporation (GM) and/or its nominees pursuant to the Stock
Purchase Agreement. Those Hughes Pref Shares to be issued and
deposited with the Custodian will be allotted by TNCL prior to
Closing.
2
Escrow Deed - Hughes Merger
--------------------------------------------------------------------------------
D The parties have agreed that the Custodian will hold the Hughes
Pref Shares referred to in Recitals (A) and (B) in escrow, and
not credit the Hughes Pref Shares to the account of the
Depositary, until instructed to do so upon the terms of this
Escrow Deed.
--------------------------------------------------------------------------------
E Pursuant to the Stock Purchase Agreement, it is proposed that
TNCL issue and deliver [ ] Preferred Shares to the Custodian for
the account of the Depositary in respect of the ADSs to be
issued to the Hughes shareholders in the Merger, with such
issuance and delivery to occur immediately following the
effective time of the Merger and without such shares being held
in escrow under this Agreement.
IT IS AGREED as follows.
1. Definitions and interpretation
--------------------------------------------------------------------------------
1.1 Definitions
The following definitions apply unless the context requires otherwise.
ADSs American Depositary Shares of TNCL, each
representing 4 Preferred Shares.
Closing The closing of the Transactions.
Deposit Agreement The Amended and Restated Deposit
Agreement dated as of December 3,1996 among
TNCL, Citibank, N.A., as depositary and all
holders of American Depositary Receipts from
time to time evidencing the ADSs.
Hughes Merger Agreement The Agreement and Plan of Merger by and among
Hughes Electronics Corporation, TNCL and GMH
Merger Sub, Inc. dated as of 9 April 2003.
Hughes Pref Shares The Preferred Shares allotted
------
to the Custodian by TNCL prior to Closing, which
allotment and deposit is conditional upon the
satisfaction of conditions to the Closing.
Letter Agreement The Letter Agreement dated as of
[DATE], 2003, by and among Citibank, TNCL and
GM in respect of the Restricted ADSs.
Preferred Shares Preferred limited voting ordinary shares of TNCL
3
Escrow Deed - Hughes Merger
--------------------------------------------------------------------------------
Restricted ADSs Restricted American Depositary Shares of
TNCL issued under the terms of the Letter
Agreement, each Restricted ADS representing 4
Preferred Shares.
Stock Purchase Agreement The Stock Purchase Agreement
dated as of April 9, 2003 among TNCL, Hughes
Electronics Corporation and General Motors
Corporation.
1.2 Interpretation
Headings are for convenience only and do not affect interpretation. The
following rules of interpretation apply unless the context requires
otherwise.
(a) The singular includes the plural and conversely.
(b) A gender includes all genders.
(c) Where a word or phrase is defined, its other grammatical forms
have a corresponding meaning.
(d) A reference to a person includes a body corporate, an
unincorporated body or other entity and conversely.
(e) A reference to clause or schedule is to a clause of or schedule
to this Escrow Deed.
(f) A reference to any agreement or document is to that agreement or
document as amended, novated, supplemented, varied or replaced
from time to time, except to the extent prohibited by this
Escrow Deed.
(g) A reference to any legislation or to any provision of any
legislation includes any modification or re-enactment of it,
any legislative provision substituted for it and all regulations
and statutory instruments issued under it.
(h) A reference to any party to this Escrow Deed or any other
document or agreement includes the party's successors and
permitted assigns.
(i) A reference to dollars or $ is to Australian currency.
(j) A reference to conduct includes, without limitation, any
omission, statement or undertaking, whether or not in writing.
2. Allotment of Preferred Shares
--------------------------------------------------------------------------------
Prior to the Closing, TNCL shall conditionally allot the Hughes Pref
Shares on the terms of this Escrow Deed.
3. Escrow
--------------------------------------------------------------------------------
The Custodian shall hold the Hughes Pref Shares in escrow, and neither
the Custodian nor the Depositary shall have any interest in, power over
4
Escrow Deed - Hughes Merger
--------------------------------------------------------------------------------
or entitlement to, nor purport to transfer, assign, charge, credit,
pledge, hypothecate or otherwise deal (except in accordance with clause
4) in any way with, the Hughes Pref Shares in accordance with the
Deposit Agreement or otherwise, until delivery of the notice referred to
in clause 5.
4. Redelivery
--------------------------------------------------------------------------------
If, prior to release under clause 5, TNCL notifies the Custodian in
writing that the final allotment of any of the Hughes Pref Shares shall
not occur or that any condition to the allotment of the Hughes Pref
Shares has not been satisfied, the Custodian shall promptly return any
holding statements (or other evidence of issuance) for the Hughes Pref
Shares in its possession to TNCL and do such other acts as TNCL
reasonably requires to revoke and nullify the allotment of the Hughes
Pref Shares.
5. Release & transfer
--------------------------------------------------------------------------------
At the time that TNCL deems appropriate on the day of the Closing, TNCL
shall give notice to the Depositary and the Custodian in the form set
out in Annexure 1 (Release Notice) and when (but only when) TNCL has
done so,
(a) the condition affecting the allotment and deposit of the Hughes
Pref Shares specified in the Release Notice as a result of this
Escrow Deed shall have been satisfied; and
(b) the disability, restriction and limitation described in clause 3
above shall be removed as to the Hughes Pref Shares specified in
the Release Notice;
(c) the Hughes Pref Shares specified in the Release Notice shall be
deposited and credited to the Custodian for the account of the
Depositary; and
(d) the Depositary and the Custodian will be entitled and bound to
deal with the Hughes Pref Shares pursuant to the Deposit
Agreement as supplemented by the Letter Agreement and issue
Restricted ADSs representing the Hughes Pref Shares as
contemplated by the Letter Agreement.
6. Protection of Custodian and Depositary
--------------------------------------------------------------------------------
6.1 Duties of Custodian and Depositary
Neither the Custodian nor the Depositary will have duties or
responsibilities in relation to the deposit of the Hughes Pref Shares
except those expressly contained in this Escrow Deed and the Deposit
Agreement, as supplemented by the Letter Agreement.
6.2 Not obliged to consult
Neither the Custodian nor the Depositary is obliged to consult with any
party or make an enquiry of any kind before taking any action under
this Escrow Deed, except as expressly set out in this Escrow Deed. The
5
Escrow Deed - Hughes Merger
--------------------------------------------------------------------------------
Custodian and the Depositary may rely on a notice in the form of the
Release Notice or any other document signed by TNCL which appears on
its face to be in accordance with this Escrow Deed and is believed by
the Custodian and the Depositary to be genuine.
6.3 Indemnity
Subject to the Deposit Agreement, as supplemented by the Letter
Agreement, TNCL indemnifies the Custodian and the Depositary against
all liabilities, losses, reasonable costs and expenses or damages which
either of them may sustain or incur in any way related to the Hughes
Pref Shares issued in the name of the Custodian (other than as
contemplated hereby) or otherwise under or in relation to this Escrow
Deed (including, without limitation, any reasonable costs associated
with seeking directions from a court of competent jurisdiction) except
in the case of their own fraud, negligence or wilful misconduct.
6.4 Stamp duty and costs
Each party shall bear its own costs arising out of the preparation of
this Escrow Deed but TNCL shall bear any stamp duty (including fines
and penalties) chargeable on this Escrow Deed and on any instruments
executed under this Escrow Deed. TNCL shall indemnify the Custodian and
the Depositary on demand against any liability for that stamp duty
(including fines and penalties).
7. Further assurances
--------------------------------------------------------------------------------
Each party shall take all steps, execute all documents and do
everything reasonably required by any other party to give effect to the
transactions contemplated by this Escrow Deed.
8. Counterparts
--------------------------------------------------------------------------------
This Escrow Deed and any notice required to be given under this Escrow
Deed may be executed in any number of counterparts. All counterparts
taken together will be taken to constitute one agreement.
9. Severance
--------------------------------------------------------------------------------
Any provision of this Escrow Deed which is prohibited or unenforceable
in any jurisdiction will be ineffective in that jurisdiction to the
extent of the prohibition or unenforceability. Such an ineffective
provision will not invalidate the remaining provisions of this Escrow
Deed nor affect the validity or enforceability of that provision in any
other jurisdiction.
10. Notices
--------------------------------------------------------------------------------
Any notice given under this Escrow Deed:
6
Escrow Deed - Hughes Merger
--------------------------------------------------------------------------------
(a) must be in writing addressed to the intended recipient at the
address shown below or the address last notified by the intended
recipient to the sender:
The News Corporation Limited
c/o News America Incorporated
1211 Avenue of the Americas
New York, NY, 10036 USA
Attention: Arthur M Siskind, Esq
Fax: (212) 768 2029
Citicorp Nominees Pty Limited
Level 2
350 Collins Street
Melbourne VIC 3000
Attention: Scott Simon
Fax: (03) 9605 4599
Citibank, N.A.
ADR Department
Level 20, Zone 7
111 Wall Street
New York, NY 10043 USA
Attention: Tom Crane
Fax: (212) 825 5398
(b) must be signed by a person duly authorised by the sender, a
certified copy of the signature of that person having previously
been sent to the recipient;
(c) will be taken to be duly given or made when delivered, received
or left at the above address, but if delivery or receipt occurs
on a day on which business is not generally carried on in the
place to which the communication is sent or is later than 4 pm
(local time) it will be taken to have been duly given or made at
the commencement of business on the next day on which business
is generally carried on in the place; and
(d) if sent by fax, must be followed by despatch of the original
of the fax by courier on the next day on which business is
generally carried on in the place from which the fax is sent to
the recipient at its above address.
11. Amendment
--------------------------------------------------------------------------------
This Escrow Deed may be amended only by another deed executed by all
parties.
12. Assignment
--------------------------------------------------------------------------------
The rights and obligations of each party under this Escrow Deed are
personal. They cannot be assigned, charged or otherwise dealt with, and
no party shall attempt or purport to do so, without the prior written
consent of all the parties.
7
Escrow Deed - Hughes Merger
--------------------------------------------------------------------------------
13. No waiver
--------------------------------------------------------------------------------
No failure to exercise and no delay in exercising any right, power or
remedy under this Escrow Deed will operate as a waiver. Nor will any
single or partial exercise of any right, power or remedy preclude any
other or further exercise of that or any other right, power or remedy.
14. No merger
--------------------------------------------------------------------------------
The rights and obligations of the parties will not merge on completion
of any transaction under this Escrow Deed, Stock Purchase Agreement or
the Hughes Merger Agreement. They will survive the execution and
delivery of any assignment or other document entered into for the
purpose of implementing any transaction.
15. Governing law
--------------------------------------------------------------------------------
This Escrow Deed is governed by the laws of South Australia. The
parties submit to the non-exclusive jurisdiction of courts exercising
jurisdiction there.
8
Escrow Deed - Hughes Merger
--------------------------------------------------------------------------------
EXECUTED as a deed in New York.
EXECUTED by )
THE NEWS CORPORATION LIMITED )
)
by its duly authorised attorney )
in the presence of: )
----------------------------------------- ------------------------------------
Signature Signature
----------------------------------------- ------------------------------------
Print name Print name
EXECUTED by )
CITICORP NOMINEES PTY LIMITED )
)
by its duly authorised attorney )
in the presence of: )
----------------------------------------- ------------------------------------
Signature Signature
----------------------------------------- ------------------------------------
Print name Print name
EXECUTED on behalf of )
CITIBANK, N.A. )
in the presence of: )
------------------------------------
Signature
----------------------------------------- ------------------------------------
Witness Print name
----------------------------------------- ------------------------------------
Print name Title
9
EXHIBIT B
---------
ISSUANCE NOTICE
EXIIIBIT C
----------
RELEASE INSTRUCTIONS
[TO BE ATTACHED FROM ESCROW DEED (ANNEXURE 1)]
Escrow Deed - Hughes Merger
--------------------------------------------------------------------------------
ANNEXURE 1
THE NEWS CORPORATION LIMITED
(A.C.N. 007 910 330)
c/o News America Incorporated
1211 Avenue of the Americas
New York, N.Y. 10036
__________, 2003 (New York Time)
TO: Citibank, N.A.
ADR Department
Level 20, Zone 7
111 Wall Street
New York, N.Y. 10043 USA
Attention: Tom Crane
Fax: (212) 825 5398
TO: Citicorp Nominees Pty Limited
Level 2
350 Collins Street
Melbourne Vic 3000
Attention: Scott Simon
Fax: (03) 9605 4599
CC: Computershare Investor Services Pty Limited
5/115 Grenfell Street
Adelaide, S.A. 5000
Attention: Doris Grave
Fax: (08) 8236 2305
10
Escrow Deed - Hughes Merger
--------------------------------------------------------------------------------
Release of Escrow Notice - Stock Purchase Agreement
Direction to issue Restricted ADSs
We refer to the [****] Preferred Limited Voting Ordinary Shares ("Preferred
Shares") held in escrow by Citicorp Nominees Pty Limited under the Escrow Deed
dated as of _________, 2003 among Citibank, N.A., Citicorp Nominees Pty Limited
and The News Corporation Limited, which are held for the account of Citibank,
N.A. pending closing of the Stock Purchase Agreement (as defined in the Escrow
Deed).
Pursuant to clause 5(b) of the Escrow Deed, The News Corporation Limited
irrevocably notifies you that the conditions to the deposit of those [****]
Preferred Shares with the Custodian have been satisfied and Citicorp Nominees
Pty Limited is hereby instructed and authorized to unconditionally allot and
release the Preferred Shares from the escrow under the Escrow Deed.
With reference to the Amended and Restated Deposit Agreement, dated as of
December 3, 1996 (Deposit Agreement) among The News Corporation Limited,
Citibank, N.A., as depositary and all holders of American Depositary Receipts
from time to time, as supplemented by the Letter Agreement, dated as of [DATE],
2003 (Letter Agreement), by and among Citibank, N.A., General Motors Corporation
and The News Corporation Limited, The News Corporation Limited:
1. notifies Citibank, N.A. that [****] Preferred Shares have been
unconditionally and irrevocably allotted and issued to Citicorp Nominees
Pty Limited for the account of Citibank, N.A. with effect from this date
and directs that Computershare Investor Services Pty Limited record in
the share register the allotment and issue with effect from this date;
2. instructs Citibank, N.A. to issue, in accordance with the Deposit
Agreement, as supplemented by the Letter Agreement, an aggregate of
[****nb a quarter of all other numbers] Restricted American Depositary
Shares, each of which represents four Preferred Shares of The News
Corporation Limited in the name of General Motors Corporation (or as
designated by General Motors Corporation within the terms of the Letter
Agreement); and
3. represents and warrants (in lieu of the representations and warranties
contained in Section 3.03 of the Deposit Agreement) that
(a) the Preferred Shares to be represented by the Restricted
American Depositary Shares are validly issued, fully paid and
nonassessable, and free of any preemptive rights of the holders
of outstanding Preferred Shares;
(b) The News Corporation Limited is duly authorized to make such
deposit;
(c) the Preferred Shares being deposited by The News Corporation
Limited in support of the issuance of the Restricted American
Depositary Shares rank pari passu in all respects with all
existing Preferred Shares in issue at that date (including as
to dividends); and
(d) the Preferred Shares being deposited by The News Corporation
Limited are not liable for disenfranchisement or disposal by
The News Corporation Limited pursuant to the Constitution of
The News Corporation Limited.
11
Escrow Deed - Hughes Merger
--------------------------------------------------------------------------------
Such representations and warranties shall survive the deposit and
withdrawal of Preferred Shares and the issuance and cancellation of
Restricted American Depositary Shares and the issuance and cancellation
of Restricted American Depositary Receipts in respect thereof.
Yours faithfully
Authorised Officer
The News Corporation Limited
12
EXHIBIT D
---------
OPINION OF COUNSEL
EXHIBIT E
---------
FORM OF RESTRICTED ADR
[INCLUDING LEGEND]
THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), AND MAY NOT BE SOLD, OFFERED OR
HYPOTHECATED IN THE ABSENCE OF (I) AN EFFECTIVE REGISTRATION STATEMENT WITH
RESPECT TO SUCH SECURITIES UNDER THE ACT OR (II) AN OPINION OF COUNSEL WHICH
OPINION IS REASONABLY SATISFACTORY TO THE DEPOSITARY AND THE NEWS CORPORATION
LIMITED (THE "COMPANY") THAT SUCH REGISTRATION IS NOT REQUIRED.
[STOCK CERTIFICATE TO BE ATTACHED]
EXHIBIT F
---------
FORM OF ACKNOWLEDGMENT OF
RECEIPT OF RESTRICTED ADR
Citibank, N.A.
ADR Department
111 Wall Street
New York, New York 10043
Attention: [ ]
---------- --------------------------
Re: The News Corporation Limited - Liberty Media Corporation
Call/Put Agreement (Cusip No.652487993)
---------------------------------------
Dear Sirs:
The undersigned , a
------------------------- -----------------
corporation ("Purchaser"), hereby (x) acknowledges the receipt, pursuant to the
---------
Call/Put Agreement, dated as of March 27, 2003 (the "Call/Put Agreement"), by
------------------
and between Liberty Media Corporation ("LMC") and The News Corporation Limited
("TNCL"), of [ ] Restricted American Depositary Receipt(s) in aggregate
---- ----
representing [ ] Restricted American Depositary Shares issued under the
----------
terms of (i) the Amended acid Restated Deposit Agreement, dated as of December
3, 1999 (the "Deposit Agreement"), among TNCL and Citibank, N.A. ("Citibank")
----------------- --------
and all Holders from time to time of American Depositary Receipts evidencing
American Depositary Shares issued thereunder, (ii) the Letter Agreement, dated
as of [DATE], 2003 (the "Letter Agreement"), by and among TNCL, LMC and
----------------
Citibank, and (y) agrees to be bound by the terms of the Deposit Agreement and
the Letter Agreement.
Dated. [DATE], 2003
By:
---------------------------------------
Name:
Title:
(c)(3) Letter Agreement,
dated as of December 17, 2001,
between the Company, the Depositary,
News Publishing Australia Limited,
Liberty Media Corporation, LMC International, Inc.
and Citicorp Nominees Pty Limited
December 17, 2001
Liberty Media Corporation
LMC International Inc.
12300 Liberty Boulevard
Englewood, CO 80112
Ladies and Gentlemen:
Ladies and Gentlemen:
Reference is hereby made to (i) the Agreement and Plan of Merger (the
"Merger Agreement"), dated as of December 3, 2001, by and among Liberty Media
Corporation ("LMC"), The News Corporation limited ("TNCL"), Liberty Newco
International, Inc. and News Publishing Australia Limited ("NPAL"); (ii) the
Letter Agreement, dated as of December 3, 2001 (the "Letter Agreement'), by and
among Citibank, N.A. ("Citibank, N.A."), TNCL and LMC and (iii) the
Rectification Deed, dated December 17, 2001, by and among LMC, TNCL, NPAL (on
behalf of itself and as successor by merger to Liberty Newco International,
Inc.), LMC International, Inc. ("LMC International", together with TNCL, NPAL
and LMC, the "Merger Parties"), Citibank N.A. and Citicorp Nominees Pty Limited
("Citicorp Nominees"). Unless otherwise clued herein, capitalized terms used
herein shall have the meanings given to such terms in the Merger Agreement,
Each of the Merger Parties hereby acknowledges and agrees as follows:
(i) that the 3,673,183 ADSs listed as the Additional Phase II Merger
Consideration in Section 3.1(a) of the Merger Agreement is incorrect; (ii) that
as a result of such error, the total number of ADSs and TNCL Shares issued in
the transaction was 7,307,049 ADSs representing 29,228,196 TNCL Shares; (iii)
that the correct number of ADSs to be issued as Additional Phase II Merger
Consideration is 39,317; (iv) that, therefore, the correct aggregate number of
ADSs to be issued to LMC International as the Base Phase II Merger Consideration
and the Additional Phase II Merger Consideration is 3,673,183 ADSs representing
14,692,732 TNCL Shares; and (v) that the Transactions contemplated by the Merger
Agreement shall be deemed to have been consummated with the correct number of
ADSs (and TNCL Shares) having been issued to LMC International as of the
Effective Time.
Each of the Merger Parties hereby authorizes Citibank N.A., Citicorp
Nominees and each of their nominees (collectively, "Citibank") to, and Citibank
hereby agrees that it shall, as promptly as practicable after the receipt by
TNCL and Citibank of (a) a sealed copy of a final order, substantially in the
form attached as Schedule 1 to this Letter, from the Federal Court of Australia
or other court of competent jurisdiction correcting the TNCL Share Register in
relation to the error and (b) the ADR (certification no. P4069) from LMC
International registered in the name of LMC International evidencing 7,307,049
ADSs representing 29,228,196 TNCL Shares (such ADR, the "Existing LMC
International ADR"), take such actions as may be necessary (i) to cancel the
Existing LMC International ADR and the ADSs evidenced thereby, (ii) to release
to TNCL in Australia 14,535,464 TNCL Sharers, (iii) to issue in replacement of
the Existing LMC International ADR a new ADR, dated December 3, 2001, evidencing
3,673,183 ADSs having the same terms and conditions as the Existing LMC
International ADR under the Letter Agreement and (iv) to take such other actions
as may be required to adjust Citibank's depositary records to reflect the
adjustments contemplated herein.
Further, each of the NPAL, LMC, LMC International and Citibank agrees to
do all things reasonably necessary, at TNCL's request and expense, to assist
TNCL in applying for and obtaining the court order referred to in the previous
paragraph.
TNCL confirms that (i) the indemnification in favor of Citibank under
Section 5.08 of the Deposit Agreement shall apply to any actions taken pursuant
to the terms hereof and (ii) the fees and expenses of Citibank (including
reasonable legal fees and expenses) will be reimbursed by TCL.
(Remainder of page intentionally left blank]
If the foregoing reflects your understanding of the matters set forth
herein, please countersign this letter where indicated.
Very truly yours,
The News Corporation Limited
By: /s/ Lawrence Jacobs
----------------------------------
Name: Lawrence Jacobs
Title: Authorized Signatory
ACCEPTED AND AGREED:
News Publishing Australia Limited
By: /s/ Lawrence Jacobs
----------------------------------
Name: Lawrence Jacobs
Title: Executive Vice President
Liberty Media Corporation
By:
----------------------------------
Name:
Title.
LMC International, Inc.
By:
----------------------------------
Name:
Title
If the foregoing reflects your understanding of the matters set forth
herein, please countersign this letter where indicated.
Very truly yours,
The News Corporation Limited
By:
----------------------------------
Name: Lawrence Jacobs
Title: Authorized Signatory
ACCEPTED AND AGREED:
News Publishing Australia Limited
By:
----------------------------------
Name: Lawrence Jacobs
Title: Executive Vice President
Liberty Media Corporation
By: /s/ Elizabeth M. Markowski
----------------------------------
Name: Elizabeth M. Markowski
Title: Senior Vice President
LMC International, Inc.
By: /s/ Elizabeth M. Markowski
----------------------------------
Name: Elizabeth M. Markowski
Title: Senior Vice President
Citibank, N.A.
By: /s/ Richard Etienne
----------------------------------
Name: Richard Etienne
Title: Vice President
Citicorp Nominees Pty Limited
By:
----------------------------------
Name:
Title:
Citibank, N.A.
By:
----------------------------------
Name: Richard Etienne
Title: Vice President
Citicorp Nominees Pty Limited
By: /s/ Rocco Di Maggio
----------------------------------
Name: Rocco Di Maggio
Title: Manager - Custody
Citibank, Melbourne
Schedule 1
Form of Final Order
The Court order that:
1. Service of the Application be dispensed with.
2. The register of members of the Applicant be corrected by deleting the
allotment on 4 December 2001 of 29,228,196 preferred limited voting
ordinary shares in the capital of the Applicant to Citicorp Nominees Pty
Limited and recording instead the allotment an that date of 14,692,732
preferred limited voting ordinary shares in the capital of the Applicant
to Citicorp Nominees Pty Limited.
3. No order as to costs
(c)(4) Letter Agreement,
dated as of December 3, 2001,
between the Company, the Depositary and Liberty Media Corporation
Execution Copy
CITIBANK, N.A.
III WALL STREET
NEW YORK, NEW YORK 10043
As of December 3, 2001
The News Corporation Limited
2 Holt Street
Sydney NSW
Australia 2001
Attention: Corporate Secretary
Re. News Corporation - Liberty Media - Phase II Merger
--------------------------------------------------
Ladies and Gentlemen:
Reference is made to the Amended and Restated Deposit Agreement, dated
as of December 3, 1996 (the "Deposit Agreement"), by and among The News
-----------------
Corporation Limited (the Company") Citibank, N.A., as Depositary ("Citibank"),
------- --------
and all Holders from time to time of American Depositary Receipts ("ADRs")
----
evidencing American Depositary Shares ("ADSs") issued thereunder, each ADS
----
representing four Preferred Limited Voting Ordinary Shares (the "Shares") of the
------
Company. Capitalized terms used herein without definition shall have the meaning
assigned thereto in the Deposit Agreement.
Pursuant to Section 2.01 of the Deposit Agreement and in connection with
the delivery by the Company of ADSs that are "Restricted Securities" as defined
in Section 1.13 of the Deposit Agreement (such ADSs, the "Restricted ADSs") to a
---------------
subsidiary of Liberty Media Corporation ("LMC"), the Company hereby authorizes,
directs and agrees to the following:
1. Upon receipt of confirmation of the deposit of 14,692,732 Shares by
the Company and delivery to Citibank by the Company of a notice releasing such
Shares from escrow, Citibank shall issue one or more ADR(s) in the aggregate
representing 3,673,183 Restricted ADSs to LMC International. Inc., an indirect
wholly owned subsidiary of LMC, in accordance with Section 3.1(a) of the
Agreement and Plan of Merger, dated as of December 3, 2001, by and among LMC,
Liberty Newco International, Inc., the Company and News Publishing Australia
Limited, which ADR(s) shall be restricted in the manner outlined in is letter
agreement and which ADR(s) shall bear the legend set forth on the form of ADR
certificate annexed hereto as Exhibit A.
---------
2. For as long as the Restricted ADSs constitute "Restricted Securities"
as defined in the Deposit Agreement or are otherwise subject to restrictions on
transfer set forth in Section 8(c) of the Registration Rights and Lock-Up
Agreement, dated as of July 15, 1999 between the Company and LMC, a copy of
which is attached as Exhibit B hereto, as amended by the First Amendment to
---------
Registration Rights and Lock-Up Agreement, dated as of December 3, 2001, a copy
of which is attached as Exhibit C hereto (as so amended, the "Registration
Rights Agreement"), the Restricted ADSs shall:
a. be separately identified on the books of Citibank
and shall not be fungible or commingled with the
ADSs issued under the terms of the Deposit
Agreement that are not Restricted ADSs;
b. be represented by the Shares deposited pursuant
hereto to be maintained by the Custodian in an
account or subaccount separate and distinct from
other Deposited Securities held tinder the Deposit
Agreement that are not restricted;
c. be issued only in the form of physical,
certificated ADRs in the form annexed hereto as
Exhibit A;
---------
d. not be eligible for any book-entry settlement
system, including without limitation, with The
Depository Trust Company;
e. not be eligible for pre-release transactions
described in Section 5.11 of the Deposit Agreement
nor be included for purposes of the calculation
referred to in the penultimate sentence of the
first paragraph of said section; and
f. not be eligible for transfer on the books of
Citibank or cancellation unless Citibank has
received in addition to the documentation otherwise
contemplated by the Deposit Agreement an opinion of
counsel (with such supporting certificates,
acknowledgements or other documentation as such
counsel deems appropriate) in form and substance
reasonably satisfactory to Citibank setting forth,
inter alia, the circumstances under which the
Restricted ADSs are no longer restricted or are
transferable by the holder thereof under applicable
securities laws and/or the transfer restrictions
set forth in Section 8(c) of the Registration
Rights Agreement. Notwithstanding the foregoing,
any Holder (as defined in the Registration Rights
Agreement) may transfer all or a portion of its
Restricted ADSs to an Affiliate (as defined in the
Registration Rights Agreement) of such Holder
without Citibank having received such an opinion of
counsel if the Company delivers to Citibank a
certificate reasonably satisfactory to Citibank
specifying that the transfer of such Restricted
ADSs to such Affiliate complies with the applicable
requirements of the Registration Rights Agreement.
3. Citibank acknowledges and agrees that the Company is relying on the
procedures and conditions set forth in the preceding paragraph in connection
with the issuance of the Restricted ADSs. The Company may advise Citibank from
time to time in writing that it has been advised that some or all of the
Restricted ADSs no longer constitute Restricted Securities.
Upon delivery of any such notice and the applicable items identified in 2(f)
above, the ADSs identified therein shall cease to be subject to the terms of
this letter agreement and Citibank will, for the benefit of LMC or any other
holder of the Restricted ADSs take such actions (including the removal of
legends on the ADRs representing such Restricted ADSs) as ate necessary to
accomplish the foregoing.
4. The Company hereby represents and warrants (in lieu of the
representations and warranties contained in Section 3.03 of the Deposit
Agreement) that (a) the Shares being deposited by the Company for issuance of
the Restricted ADSs are validly issued, fully paid and nonassessable, and free
of any preemptive rights of the holders of outstanding Shares, (b) the Company
is duly authorized to make such deposit, (c) the Shares being deposited by the
Company in support of the issuance of the Restricted ADSs rank pari passu in all
respects with all existing Shares on issue at that date (including as to
dividends), and (d) the Shares being deposited by the Company are not liable for
disenfranchisement or disposal by the Company pursuant to the Constitution of
the Company. Such representations and warranties shall survive the deposit and
withdrawal of Shares and the issuance of Restricted ADSs and the issuance and
cancellation of ADRs in respect thereof.
5. Except as expressly provided in this letter agreement and except as
required by applicable law, the Restricted ADSs shall be treated as ADSs issued
and outstanding under the terms of the Deposit Agreement. The parties
acknowledge that this letter agreement supplements the terms of the Deposit
Agreement and imposes certain restrictions specified herein with respect to the
Restricted ADSs and the ADRs representing the Restricted AM.
6. The Company agrees to reimburse Citibank for any reasonable fees or
expenses incurred in connection with the establishment and implementation of any
procedures for the deposit of Shares or the issuance of Restricted ADSs as
contemplated by this letter agreement.
7. Each of the Company and Citibank acknowledges and agrees that the
indemnification under Section 5.08 of the Deposit Agreement shall apply to the
issuance of Restricted ADSs hereunder and any other acts performed or omitted by
Citibank as contemplated by this letter agreement.
This letter agreement shall be interpreted and all rights hereunder
shall be governed by the laws of the State of New York without regard to its
principles of conflicts of law.
Please confirm your agreement to the terms outlined above by signing
below and returning a copy hereof to the undersigned.
Sincerely,
CITIBANK, N.A.,
as Depositary
By: /s/ Richard Etienne
-----------------------------------
Name: Richard Etienne
Title: Vice President
Date: 12/3/01
Acknowledged and Agreed:
THE NEWS CORPORATION LIMITED
By:
-----------------------------------
Name:
Title:
Date:
Acknowledged and Agreed:
LIBERTY MEDIA CORPORATION
By:
-----------------------------------
Name:
Title:
Date:
Exhibits
--------
Exhibit A - Form of ADR
Exhibit B - First Amendment to Registration Rights and Lock-Up Agreement
Exhibit C - Registration Rights and Lock-Up Agreement
Please confirm your agreement to the terms outlined above by signing
below and returning a copy hereof to the undersigned.
Sincerely,
CITIBANK, N.A.,
as Depositary
By:
-----------------------------------
Name:
Title:
Date:
Acknowledged and Agreed:
THE NEWS CORPORATION LIMITED
By: /s/ Lawrence A. Jacobs
-----------------------------------
Name: Lawrence A. Jacobs
Title: Authorizing Signatory
Date: 12/3/01
Acknowledged and Agreed:
LIBERTY MEDIA CORPORATION
By:
-----------------------------------
Name:
Title:
Date:
Exhibits
--------
Exhibit A - Form of ADR
Exhibit B - First Amendment to Registration Rights and Lock-Up Agreement
Exhibit C - Registration Rights and Lock-Up Agreement
Please confirm your agreement to the terms outlined above by signing
below and returning a copy hereof to the undersigned.
Sincerely,
CITIBANK, N.A.,
as Depositary
By:
-----------------------------------
Name:
Title:
Date:
Acknowledged and Agreed:
THE NEWS CORPORATION LIMITED
By:
-----------------------------------
Name:
Title:
Date:
Acknowledged and Agreed:
LIBERTY MEDIA CORPORATION
By: /s/ Gary S. Howard
-----------------------------------
Name: Gary S. Howard
Title: Executive Vice President
Date: 12/3/01
Exhibits
--------
Exhibit A - Form of ADR
Exhibit B - First Amendment to Registration Rights and Lock-Up Agreement
Exhibit C - Registration Rights and Lock-Up Agreement
Exhibit A
Form of ADR
[including Legend]
THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), AND MAY NOT BE SOLD,
OFFERED OR HYPOTHECATED IN THE ABSENCE OF (i) AN EFFECTIVE REGISTRATION
STATEMENT WITH RESPECT TO SUCH SECURITIES UNDER THE ACT OR (ii) AN OPINION OF
COUNSEL WHICH OPINION IS REASONABLY SATISFACTORY TO THE NEWS CORPORATION LIMITED
(THE "COMPANY") THAT SUCH REGISTRATION IS NOT REQUIRED.
THE SALE, ASSIGNMENT OR OTHER DISPOSITION (EACH A "TRANSFER") OF THE
SECURITIES REPRESENTED BY THIS CERTIFICATE IS RESTRICTED PURSUANT TO A
REGISTRATION RIGHTS AND LOCK-UP AGREEMENT, AS AMENDED, BETWEEN THE COMPANY AND
LIBERTY MEDIA CORPORATION, A COPY OF WHICH IS ON FILE AT THE COMPANY'S PRINCIPAL
OFFICES. SUCH SECURITIES MAY NOT BE TRANSFERRED UNLESS AND UNTIL THE TRANSFER
HAS BEEN MADE IN COMPLIANCE WITH THE TERMS OF SUCH REGISTRATION RIGHTS AND
LOCK-UP AGREEMENT.
Exhibit B
First Amendment to Registration Rights and Lock-Up Agreement
EXECUTION COPY
FIRST AMENDMENT TO
------------------
REGISTRATION RIGHTS AND LOCK-UP AGREEMENT
-----------------------------------------
THIS FIRST AMENDMENT TO REGISTRATION RIGHTS AND LOCK-UP AGREEMENT (the
"Amendment") is entered into this 3rd day of December, 2001, between The News
Corporation Limited, a South Australia corporation (ACN 007 190 330) (the
"Company"), Fox Entertainment Group, Inc., a Delaware corporation, and Liberty
Media Corporation, a Delaware corporation ("Purchaser" and, together with its
successors and assigns, the "Holders"), to amend the Registration Rights and
Lock-Up Agreement between the Company and Purchaser entered into as of July 15,
1999 (as amended hereby, the "Agreement"). Capitalized terms not herein defined
shall have the meanings set forth in the Agreement.
RECITALS
--------
A. Concurrently with the execution of this Amendment, the parties are
executing the Phase II Merger Agreement (as defined in the Parents' Agreement
dated as of July 15, 1999, by and between the Company and Purchaser).
B. The parties desire to amend the Agreement to provide that the
definition therein of Phase II Shares includes all of the Additional Phase II
Merger Consideration (as defined in the Phase II Merger Agreement).
C. Section 8(b) of the Agreement provides that the Agreement may be
amended only if the Company obtains the written consent to such amendment of the
Holders of a majority of the Registrable Securities then outstanding. As of the
date of this Amendment, Purchaser is the Holder of more than a majority of the
Registrable Securities outstanding.
AGREEMENT
---------
NOW THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which hereby are
acknowledged, the parties hereto, intending to be legally bound hereby, agree as
follows:
1. Amendment to Section 1 of Agreement. The second sentence of Section
-----------------------------------
1 of the Agreement is hereby deleted in its entirety and is replaced with the
following:
In addition, the Company and Purchaser have entered into a Parents'
Agreement dated as of the date hereof (the "Parents Agreement"),
pursuant to which the Company may issue to Purchaser, and Purchaser may
acquire (i) 3,633,866 additional ADSs (the "Base Phase II Shares") and
(ii) an additional number of ADSs representing the aggregate number of
Preferred Limited Voting Ordinary Shares of the Company which could
have been purchased by reinvesting in ADSs each cash dividend declared
on such number of Base Phase II Shares between July 15, 1999 and the
Phase II Closing Date (as defined in the Parents Agreement), in each
case based on the Current Market Value (as defined in the Parents
Agreement) of the ADSs as of the ex-dividend date of such dividend
(collectively with the Base Phase II Shares, the "Phase II Shares").
2. Effect on Agreement. Except as specifically amended by this
-------------------
Amendment, the Agreement shall remain in full force and effect. This Amendment
shall be construed as one with the Agreement, and the Agreement shall, where the
context requires, be read and construed throughout so as to incorporate this
Amendment.
3. Counterparts. This Amendment may be executed in counterparts, and by
------------
different parties on separate counterparts, each of which shall be deemed an
original, but all such counterparts shall together constitute one and the same
instrument, and it shall not be necessary in making proof of this Amendment to
produce or account for more than one such counterpart.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties have executed this First Amendment to
Registration Rights and Lock-Up Agreement as of the date first written above.
COMPANY: THE NEWS CORPORATION LIMITED
By: /s/ Lawrence A. Jacobs
-------------------------------
Name: Lawrence A. Jacobs
Title: Authorized Signatory
PURCHASER: LIBERTY MEDIA CORPORATION
By:
-------------------------------
Name:
Title:
FOX ENTERTAINMENT GROUP, INC.
By: /s/ Lawrence A. Jacobs
-------------------------------
Name: Lawrence A. Jacobs
Title: Secretary
IN WITNESS WHEREOF, the parties have executed this First Amendment to
Registration Rights and Lock-Up Agreement as of the date first written above.
COMPANY: THE NEWS CORPORATION LIMITED
By:
-------------------------------
Name:
Title:
PURCHASER: LIBERTY MEDIA CORPORATION
By: /s/ Elizabeth M. Markowski
-------------------------------
Name: Elizabeth M. Markowski
Title: Senior Vice President
FOX ENTERTAINMENT GROUP, INC.
By:
-------------------------------
Name:
Title:
Exhibit C
Registration Rights and Lock-Up Agreement
REGISTRATION RIGHTS AND LOCK-UP AGREEMENT
This REGISTRATION RIGHTS AGREEMENT, dated as of July 15, 1999 between
The News Corporation Limited, a South Australia corporation (ACN 007 190 330)
(the "Company") and Liberty Media Corporation, a Delaware corporation
("Purchaser" and, together with its successors and assigns, the "Holders").
1. Background. The Company has issued and sold on the date
----------
hereof to subsidiaries of Purchaser 79,875,886 ADSs (the "Shares"), consisting
of 56,835,343 Shares issued to Purchaser pursuant to the Merger Agreement (as
defined below) and 23,040,543 Shares issued to Purchaser pursuant to the
Subscription Agreement (as defined below). In addition, the Company and
Purchaser have entered into a Parents Agreement dated as of the date hereof,
pursuant to which the Company may issue to Purchaser, and Purchaser may acquire,
3,633,866 additional ADSs (the "Phase II Shares") in the future. As a condition
to such transactions, the Company and Purchaser have executed and delivered this
Agreement.
2. Definitions. As used in this Agreement, the following
-----------
capitalized terms shall have the following meanings:
"270-Day Securities" means an aggregate of 28,093,293 of the Shares
consisting of 5,052,750 Shares issued pursuant to the Merger Agreement and
23,040,543 Shares issued pursuant to the Subscription Agreement.
"ADSs" - American Depositary Shares, each representing four Preferred
Limited Shares.
"Affiliate" - with respect to any Person, any entity which Controls, is
Controlled by or is under common Control with such Person.
"Applicable Lock-Up Period" - as defined in Section 8(c).
"Control" - the power, directly or indirectly, to direct or cause the
direction of the management and policies of a Person, whether by ownership of
voting securities, by contract or otherwise.
"Derivative Security" - as defined in the definition of Registrable
Securities.
"Exchange Act" - the Securities Exchange Act of 1934 as amended, and the
rules and regulations of the SEC promulgated thereunder.
"Merger Agreement" means that certain Agreement and Plan of Merger by
and among Purchaser and certain of its subsidiaries, on the one hand, and the
Company and News Publishing Australia Limited, on the other hand, dated as of
July 15, 1999.
"Person" - Any individual, partnership, joint venture, limited liability
company, corporation, trust, unincorporated organization or other entity or
government or any department or agency thereof.
"Preferred Limited Shares" - The Company's preferred limited voting
ordinary shares.
"Registrable Securities" - All of (i) the Shares and the Phase A Shares
(ii) any shares of capital stock which may be issued or distributed in respect
of the Shares or the Phase U Shares by way of conversion, exchange, stock
dividend, eligible bonus issue, or stock split or other distribution,
recapitalization or reclassification and (iii) any Registrable Securities
described in clause (i) or clause (ii) above that underlie (A) any securities
issued by a Holder, the value of which relates to or is based upon the
Registrable Securities described in clause (i) or clause (ii) above or which are
exchangeable for or convertible into such Registrable Securities ("Derivative
Securities"), or (B) any equity swap transaction or mandatory or non-mandatory
exchangeable note transaction entered into by a Holder, in each case to the
extent any such Registrable Securities require registration by the Company
(Registrable Securities described in this clause (iii) being sometimes referred
to in this Agreement as "Underlying Registrable Securities"); provided that any
Shares or Phase L[ Shares (or other shares of capital stock) registered pursuant
to this Agreement shall be registered in the form of ADSs (or other American
Depository Shares) representing such shares, so long as American Depository
Receipts representing such ADSs (or other American Depository Shares) are
publicly traded in the United States at the relevant time. As to any particular
Registrable Securities, once issued, such securities shall cease to be
Registrable Securities when (iv) a registration statement with respect to the
sale of such securities shall have become effective under the Securities Act and
such securities shall have been disposed of in accordance with such registration
statement, (v) they shall have been distributed to the public pursuant to Rule
144 or 144A (or any successor provisions) under the Securities Act, (vi) they
shall have been otherwise transferred, new certificates for them not bearing a
legend restricting further transfer shall have been delivered by the Company and
subsequent disposition shall not require their registration or qualification of
them under the Securities Act or (vii) they shall have ceased to be outstanding.
"Registration Expenses" - Any and all reasonable expenses incident to
performance of or compliance with this Agreement, including, without limitation,
(i) all SEC and stock exchange or National Association of Securities Dealers,
Inc. registration and filing fees, (ii) all fees and expenses of complying with
securities or blue sky laws (including reasonable fees and disbursements of
counsel for the underwriters in connection with blue sky qualifications of the
Registrable Securities), (iii) all printing, messenger and delivery expenses,
(iv) all fees and expenses incurred in connection with the listing of the
Registrable Securities on any securities exchange pursuant to clause (viii) of
Section 5(a), (v) the fees and disbursements of counsel for the Company and of
its independent public accountants, including the expenses of any special audits
and/or "cold comfort" letters required by or incident to such performance and
compliance, and (vi) all fees and expenses, if any, incurred in connection with
retaining a depository for the ADSs; provided that the expenses described in the
provisos to Sections 3(b) and 4(b) shall not be deemed to be "Registration
Expenses."
"Securities Act" - The Securities Act of 1933, as amended, and the rules
and regulations of the SEC-promulgated thereunder.
"SEC" - The Securities and Exchange Commission or any other federal
agency at the time administering the Securities Act or the Exchange Act.
-2-
"Subscription Agreement" means that certain Subscription Agreement,
dated as of July 15, 1999, between the Company and Purchaser.
3. Piggyback Registrations.
(a) Right to Include Registrable Securities. If the Company at
---------------------------------------
any time, from and after the expiration of any Applicable Lock-Up Period (as
hereinafter defined), proposes to register its Preferred Limited Shares under
the Securities Act (other than a registration on Form F-4 or S-8, or any
successor or other forms promulgated for similar purposes), whether or not for
sale for its own account, pursuant to a registration. statement on which it is
permissible to register Registrable Securities for sale to the public under the
Securities Act, it will each such time give prompt written notice to all Holders
of Registrable Securities of its intention to do so, referring to such Holders'
rights under this Section 3. Upon the written request of any such Holder made
within 15 days after the receipt of any such notice (which request shall specify
the Registrable Securities intended to be disposed of by such Holder which shall
consist solely of Registrable Securities that are not subject to any Applicable
Lock-Up Period), the Company will use its best efforts to effect the
registration under the Securities Act of all Registrable Securities which the
Company has been so requested to register by the Holders thereof. If a
registration requested pursuant to this Section 3(a) involves an underwritten
public offering, any Holder of Registrable Securities requesting to be included
in such registration may elect, in writing prior to the effective date of the
registration statement fled in connection with such registration, not to
register such securities in connection with such registration.
(b) Expenses. Fox Entertainment Group, Inc. ("Fox Entertainment")
--------
will pay all Registration Expenses in connection with each registration of
Registrable Securities requested pursuant to this Section 3; provided that each
Holder will pay all underwriting discounts and commissions and transfer taxes
relating to the sale or other disposition of such Holder's Registrable
Securities pursuant to such registration and the fees and expenses of its
counsel.
(c) Priority in Piggyback Registrations. If a registration
-----------------------------------
pursuant to this Section 3 involves an underwritten offering and the managing
underwriter advises the Company in writing that, in its opinion, the amount of
securities requested to be included in such registration by all selling security
holders exceeds the amount which can be sold in such offering, so as to be
likely to have an adverse effect on such offering as contemplated by the Company
(including the price at which the Company proposes to sell such securities),
then the Company will include in such registration (A) if such registration
relates to a primary offering initiated by the Company, (i) first, the
securities proposed to be sold by the Company, (ii) second, to the extent the
number of securities proposed to be included in such registration by the Company
is less than the number of securities which the Company has been advised by the
underwriter can be sold in such offering without having the adverse effect
referred to above, the securities requested to be included in such registration
by the Holders and other Persons entitled to participate in such registration
provided that if the number of such securities, in combination with the number
of securities proposed to be included in such registration by the Company,
exceeds the number which the Company has been advised can be sold in such
offering without having the adverse effect referred to above, the number of such
securities included in such registration shall be allocated pro rata among all
such Holders and other Persons on the basis of the relative number of securities
that each of the Holders and the other Persons has requested to be
-3-
included in such registration); and (B) if such registration relates to a
secondary offering initiated by any Person other than a Holder, (i) first, the
securities requested to be included in such registration by such other Person
(to the extent that the number of such securities does not exceed the number of
securities which the Company has been advised by the underwriter can be sold in
such offering without having the adverse effect described above), (ii) second,
to the extent the number of securities requested to be included in such
registration by such other Person is less than the number of securities which
the Company has been advised by the underwriter can be sold in such offering
without having the adverse effect referred to above, the securities proposed to
be sold by the Company (to the extent that the number of securities does not
exceed, in combination with the securities of such other Person to be included
in such registration, the number of securities which the Company has been
advised by the underwriter can be sold in such offering without having the
adverse effect described above), (iii) third, to the extent the sum of the
number of securities requested to be included in such registration by such other
Person plus the number of securities proposed to be included in such
registration by the Company is less than the number of securities which the
Company has been advised by the underwriter can be sold in such offering without
having the adverse effect referred to above, the Registrable Securities
requested to be included in such registration by the Holders (provided that if
the number of such Registrable Securities, in combination with the securities of
such other Person and the securities of the Company to be included in such
registration, exceeds the number which the Company has been advised by the
underwriter can be sold in such offering without having the adverse effect
referred to above, the number of such Registrable Securities of the Holders
included in such registration shall be allocated pro rata among all such Holders
on the basis of the relative number of Registrable Securities each such Holder
has requested to be included in such registration).
(d) Underwritten Public Offering. If a registration pursuant to
----------------------------
this Section 3 involves an underwritten public offering, each Holder who has
requested that any of its Registrable Securities be included in such
registration must sell such Registrable Securities to the underwriters on the
same terms and conditions as apply to the Company or such other Person
initiating the registration, with such differences, in the case of any primary
registration, including any with respect to indemnification and contribution, as
may be customary or appropriate in combined primary and secondary offerings.
4. Demand Registrations.
(a) Request by Holders. At any time, from and after the date
------------------
hereof, upon the written request of any Holder or Holders requesting that the
Company effect the registration under the Securities Act of all or part of such
Holder's or Holders Registrable Securities which Registrable Securities
represent not less than 10% of the Registrable Securities then outstanding, and
specifying the intended method of disposition thereof, the Company will promptly
give written notice of such requested registration to all other Holders of
Registrable Securities, and thereupon will, as expeditiously as possible, use
its best efforts to effect the registration under the Securities Act of:
(i) the Registrable Securities which the Company has been so
requested to register by such Holder Or Holders; and
-4-
(ii) all other Registrable Securities which the Company has been
requested to register by any other Holder thereof by written request given to
the Company within 15 days after the giving of such written notice by the
Company (the original request and all additional requests given within such
15-day period being considered one request for registration), so as to permit
the disposition (in accordance with the intended method thereof as aforesaid) of
the Registrable Securities so to be registered; provided, however, that the
Company may delay filing the registration statement for up to 180 days if its
Board of Directors determines that filing the Registration Statement would be
materially detrimental to the Company. So long as the Company does not breach
any of its obligations in respect of the registration contemplated by this
Section 4 (other than a breach which would not materially adversely affect any
Holder's rights hereunder), with respect to all Holders, the Company shall only
be required to comply with an aggregate of five requests for registration
pursuant to this Section 4. The requests for registration referred to in the
preceding sentence may be exercised by the Holders, in the aggregate, no more
than twice in a twelve calendar month period. If any Holder withdraws its
request far registration following the filing of a registration statement
therefor and other than as a result of a material adverse change in the
business, financial condition or results of operations of the Company, such
withdrawn request shall be deemed to be one of the five requests granted to the
Holders pursuant to this Section 4. The Holders shall only exercise
registration rights for Registrable Securities which they intend to sell,
transfer or otherwise dispose of within 60 days of the effectiveness of the
registration statement relating to such Registrable Securities.
(b) Expenses. Fox Entertainment will pay all Registration
--------
Expenses in connection with the registrations of Registrable Securities pursuant
to this Section 4; provided that each Holder will pay all underwriting discounts
and commissions and transfer taxes relating to the sale or other disposition of
such Holder's Registrable Securities pursuant to such registration and the fees
and expenses of its counsel.
(c) Effective Registration Statement. A registration requested
--------------------------------
pursuant to this Section 4 will not be deemed to have been effected unless a
registration statement for the ADSs (the "ADS Registration Statement") being
offered thereby has become effective; provided that if, within 60 days after the
effective date of the ADS Registration Statement, the offering of Registrable
Securities pursuant to such registration is prevented by any stop order,
injunction or other order or requirement of the SEC or other governmental agency
or court, such registration will be deemed not to have been effected.
Notwithstanding the preceding sentence, if any such stop order, injunction or
other order or requirement is rescinded, the effective period shall continue
upon such rescission and be extended by the number of days by which such stop
order, injunction or other order or requirement delayed the filing.
(d) Selection of Underwriters. If a requested registration
-------------------------
pursuant to this Section 4 involves either a firm or best efforts underwritten
public offering, the Holder or Holders of a majority of the Registrable
Securities shall have the right to select the underwriter or underwriters of
nationally recognized standing to administer the offering, subject to the prior
written consent of the Company, which consent shall not be unreasonably
withheld, and each Holder participating in such registration must sell such
Registrable Securities to the underwriters on the same terms and conditions.
-5-
(e) Priority in Demand Registrations. If a requested registration
--------------------------------
pursuant to this Section 4 involves an underwritten offering and the managing
underwriter advises the Company in writing that, in its opinion, the number of
securities requested to be included in such registration (including securities
of the Company which are not Registrable Securities) exceeds the number which
can be sold in such offering, the Company will include in such registration only
the Registrable Securities requested to be included in such registration. In the
event that the number of Registrable Securities requested to be included in such
registration exceeds the number which, in the opinion of such managing
underwriter, can be sold in such offering, the number of such Registrable
Securities to be included in such registration shall be allocated pro rata among
all requesting Holders on the basis of the relative number of ADSs constituting
Registrable Securities then held by each such Holder (provided that such ADSs
thereby allocated to any such Holder that exceed such Holder's request shall be
reallocated among the remaining requesting Holders in like manner). If the
number of Registrable Securities requested to be included in such registration
is less than the number which, in the opinion of the managing underwriter, can
be sold in such offering, the Company may include in such registration the
securities the Company proposes to sell up to the number of securities that, in
the opinion of the underwriter, can be sold in such offering. In the event that
the number of Registrable Securities requested to be included in such
registration plus the number of securities proposed to be included in such
registration by the Company is less than the number which, in the opinion of the
managing underwriter, can be sold in such offering, the securities requested to
be included in such registration by other Persons whose requests have been
approved by the Company may be included in such registration up to the number of
securities that, in the opinion of the underwriter, can be sold.
(f) Additional Rights. The Company shall not grant any other Person
-----------------
rights to register securities of the Company on terms which could restrict in
any way the ability of the Company fully to perform its obligations to the
Holders pursuant to this Section 4.
(g) Other Disposition of Registrable Securities. In connection with
-------------------------------------------
any exercise of the rights set forth in this Section 4, if the Company, within
10 business days following the receipt of a written request from the Holders in
accordance with the first sentence of Section 4(a), notifies the Holders in
writing that the Company has determined in good faith that the registration of
the Registrable Securities under the Securities Act pursuant to such request is
not necessary to provide the Holders making such request with a liquid market
for the sale of such Registrable Securities on the proposed terms of the sale
(which notice shall identify the alternative market or markets which would
permit such sale), then the Company shall not be required to effect the
registration so requested unless the Holders, after due consideration of the
Company's good faith determination, disagree on a reasonable basis with such
determination and advise the Company to proceed with the requested registration.
5. Registration Procedures. (a) If and whenever the Company is
-----------------------
required to use its best efforts to effect or cause the registration of any
Registrable Securities under the Securities Act as provided in this Agreement,
the Company will, subject to the provisions of Section 4(a), as expeditiously as
possible:
(i) prepare and file with the SEC within 60 days (or as soon
thereafter as possible, if any required financial statements of the Company
-6-
are not available within such 60 day period) after the end of the period
within which requests for registration may be given to the Company, a
registration statement covering the Registrable Securities (in the form of
ADSs to the extent possible) (a "Registration Statement") and use its best
efforts to cause such Registration Statement to become effective;
(ii) prepare and file with the SEC such amendments and supplements to
such Registration Statement and the prospectus used in connection therewith
as may be necessary to keep such Registration Statement effective for a
period not in excess of 60 days and to comply with the provisions of the
Securities Act with respect to the disposition of all securities covered by
such Registration Statement during such period in accordance with the
intended methods of disposition by the seller or sellers thereof set forth in
such Registration Statement; provided, that before filing a Registration
Statement or prospectus, or any amendments or supplements thereto, the
Company will furnish to one counsel selected by the Holders of a majority of
the Registrable Securities covered by such Registration Statement to
represent all Holders of Registrable Securities covered by such Registration
Statement, copies of all documents proposed to be filed, which documents will
be subject to the review of such counsel;
(iii) furnish to each seller of such Registrable Securities such
number of copies of such Registration Statement and of each amendment and
supplement thereto (in each case including all exhibits), such number of
copies of the prospectus included in such Registration Statement (including
each preliminary prospectus and summary prospectus), in conformity with the
requirements of the Securities Act, and such other documents as such seller
may reasonably request in order to facilitate the disposition of the
Registrable Securities by such seller;
(iv) use its best efforts to register or qualify such Registrable
Securities covered by such Registration Statement under such other securities
or blue sky laws of such jurisdictions as each seller shall reasonably
request, and do any and all other acts and things which may be reasonably
necessary or advisable to enable such seller to consummate the disposition in
such jurisdictions of the Registrable Securities owned by such seller, except
that the Company shall not for any such purpose be required to qualify
generally to do business as a foreign corporation in any jurisdiction where,
but for the requirements of this clause (iv), it would not be obligated to be
so qualified, to subject itself to taxation in any such jurisdiction or to
consent to general service of process in any such jurisdiction;
(v) use its best efforts to cause such Registrable Securities
covered by such Registration Statement to be registered with or approved by
such other governmental agencies or authorities of the United States of
America as may be necessary by virtue of the business and operations of the
Company to enable the seller or sellers thereof to consummate the disposition
of such Registrable Securities;
(vi) immediately notify each seller of any such Registrable Securities
covered by such Registration Statement, at any time when a prospectus
relating thereto is required to be delivered under the Securities Act within
the appropriate period mentioned in clause (ii) of this Section 5(a), of the
Company's becoming aware that the prospectus included in such Registration
-7-
Statement, as then in effect, includes an untrue statement of a material fact
or omits to state a material fact required to be stated therein or necessary
to make the statements therein not misleading in the light of the
circumstances then existing, and at the request of any such seller, prepare
and furnish to such seller a reasonable number of copies of an amended or
supplemental prospectus as may be necessary so that, as thereafter delivered
to the purchasers of such Registrable Securities, such prospectus shall not
include an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances then existing;
(vii) otherwise use its best efforts to comply with all applicable
rules and regulations of the SEC, and make available to its security holders,
as soon as reasonably practicable (but not more than fifteen months) after
the effective date of the Registration Statement, an earnings statement which
shall satisfy the provisions of Section 11 (a) of the Securities Act and the
rules and regulations promulgated thereunder,
(viii) use its best efforts to list such Registrable Securities on any
securities exchange on which the ADSs are then listed, if such Registrable
Securities are not already so listed and if such listing is then permitted
under the rules of such exchange, and provide a transfer agent and registrar
for such Registrable Securities covered by such Registration Statement not
later than the effective date of such Registration Statement;
(ix) enter into an agreement with a depositary to provide for the
custody of the Registrable Securities and issuance of American Depositary
Receipts representing such Registrable Securities;
(x) enter into such customary agreements (including an underwriting
agreement in customary form) and take such other actions customarily taken by
registrants as sellers of a majority of such Registrable Securities or the
underwriters, if any, reasonably request in order to expedite or facilitate
the disposition of such Registrable Securities;
(xi) obtain a "cold comfort" letter or letters from the Company's
independent public accountants in customary form and covering matters of the
type customarily covered by "cold comfort" letters as the seller or sellers
of a majority of such Registrable Securities shall reasonably request; and
(xii) subject to the appropriate parties signing confidentiality
agreements reasonably acceptable to the Company, make available for
inspection by any seller of such Registrable Securities covered by such
Registration Statement, by any underwriter participating in any disposition
to be effected pursuant to such Registration Statement and by any attorney,
accountant or other agent retained by any such seller or any such underwriter
(collectively, "Inspectors"), all pertinent financial and other records,
pertinent corporate documents and properties of the Company (collectively the
"Records") as shall be reasonably necessary to enable them to exercise "due
diligence," and cause all of the, Company's officers, directors and employees
to supply all information reasonably requested by any Inspector in connection
with such Registration Statement. Sellers of Registrable Securities hereunder
-8-
agree that Records and other information which the Company determines in good
faith to be confidential, and of which determination the Inspectors and
sellers are so notified, shall not be disclosed by the Inspectors or sellers
unless (i) the disclosure of such Records is necessary to avoid or correct a
material misstatement or material omission in the registration statement or
is otherwise required by law or legal process, (ii) the release of such
Records is required pursuant to a subpoena, court order or regulatory or
agency request, or (iii) the information in such Records has been made
generally available to the public without violation of any confidentiality
obligations hereunder.
(b) The Company may require each seller of Registrable Securities as
to which any registration is being effected to furnish the Company with such
information regarding such seller and pertinent to the disclosure requirements
relating to the registration and the distribution of such securities as the
Company may from time to time reasonably request in writing.
(c) Each Holder of Registrable Securities agrees that, upon receipt
of any notice from the Company of the happening of any event of the kind
described in clause (vi) of Section 5(a), such Holder will forthwith discontinue
disposition of Registrable Securities pursuant to the Registration Statement
covering such Registrable Securities until such Holder's receipt of the copies
of the supplemented or amended prospectus contemplated by clause (vi) of
Section 5(a), and, if so directed by the Company, such holder will deliver to
the Company (at the Company's expense) all copies, other than permanent file
copies then in such Holder's possession, of the prospectus covering such
Registrable Securities at the time of receipt of such notice. In the event the
Company gives any such notice, the period mentioned in clause (ii) of Section
5(a) shall be extended by the number of days during the period from and
including the date of the giving of such notice pursuant to clause (vi) of
Section 5(a) to and including the date when each seller of Registrable
Securities covered by such Registration Statement shall have received the copies
of the supplemented or amended prospectus contemplated by clause (vi) of Section
5(a) up to the number of days remaining in such period, such extension to begin
on the later of the end of the period or the date on which each Holder of
Registrable Securities covered by such Registration Statement shall have
received such copies of such supplemented or amended prospectus.
6. Indemnification.
(a) Indemnification by the Company. In the event of any
------------------------------
registration of any Registrable Securities of the Company under the Securities
Act pursuant to Section 3 or 4, the Company will, and it hereby does, indemnify
and hold harmless, to the extent permitted by law, the seller of any Registrable
Securities covered by such Registration Statement, each Affiliate of such seller
and their respective employees, directors and officers and general and limited
partners (and the directors, officers, Affiliates and controlling Persons
thereof), each other Person who participates as an underwriter in the offering
or sale of such securities and each other Person, if any, who controls such
seller or any such underwriter within the meaning of the Securities Act
(collectively, the "Purchaser Indemnitees"), against any and all losses, claims,
damages or liabilities, joint or several, and reasonable expenses to which any
of such Purchaser Indemnitees may become subject under the Securities Act,
common law or otherwise, insofar as such losses, claims, damages or liabilities
-9-
(or actions or proceedings in respect thereof, whether commenced or threatened,
and whether or not such Purchaser Indemnitee is a party thereto) arise out of or
are based upon (a) any untrue statement or alleged untrue statement of any
material fact contained in any Registration Statement under which such
securities were registered under the Securities Act, any preliminary, final or
summary prospectus contained therein (except where errors or omissions in such
preliminary prospectus are corrected in the final prospectus and the seller
fails to deliver such final prospectus) or any amendment or supplement thereto,
or (b) any omission or alleged omission to state, therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and the Company will reimburse such Purchaser Indemnitee for any
legal or any other expenses reasonably incurred by it in connection with
investigating or defending any such loss, claim, liability, action or
proceeding, provided, that the Company shall not be liable to any Purchaser
indemnitee in any such case to the extent that any such loss, claim, damage,
liability (or action or proceeding in respect thereof) or expense arises out of
or is based upon any untrue statement or alleged untrue statement or omission or
alleged omission made in such Registration Statement or amendment or supplement
thereto or in any such preliminary, final or summary prospectus in reliance upon
and in conformity with written information with respect to such seller furnished
to the Company by such seller for use in the preparation thereof. The indemnity
agreements contained in this Section 6(a) shall not apply to amounts paid in
settlement of claims if such settlement is effectuated without the consent of
the Company (which consent shall not be unreasonably withheld). Such indemnity
shall remain in full force and effect regardless of any investigation made by or
on behalf of such seller or any Purchaser Indemnitee and shall survive the
transfer of the Registrable Securities by such seller.
(b) Indemnification by Participating Holders. In the event of the
----------------------------------------
registration of any Registrable Securities of the Company under the Securities
Act pursuant to Section 3 or 4, each participating Holder will, and it hereby
does, indemnify and hold harmless (in the same manner and to the same extent as
set forth in subdivision (a) of this Section 6) the Company, each of its
Affiliates, employees, directors and officers and each Person, if any, who
controls the Company within the meaning of the Securities Act (collectively
"Company Indemnitees"), with respect to any statement or alleged statement in or
omission or alleged omission from such Registration Statement, any preliminary,
final or summary prospectus contained therein, or any amendment or supplement,
if such statement or alleged statement or omission or alleged omission was made
in reliance upon and in conformity with written information with respect to such
Holder furnished to the Company by such Holder for use in the preparation of
such Registration Statement, preliminary, final or summary prospectus or
amendment or supplement, or a document incorporated by reference into any of the
foregoing; provided, however, that the indemnity agreement contained in this
paragraph 6(b) shall. not apply to amounts paid in settlement of any loss,
claim, damage, liability or action arising pursuant to a registration under
Section 3 or 4 if such settlement is effected without the consent of the Holder
(which consent shall not be unreasonably withheld). Such indemnity shall remain
in full force and effect regardless of any investigation made by or on behalf of
the Company or any Holder, or any of its Affiliates, directors, officers or
controlling Persons, and shall survive the transfer of such Registrable
Securities by such Holder.
(c) Notices of Claims, Etc. Promptly after receipt by any Purchaser
----------------------
Indemnitee or Company Indemnitee (each, an "Indemnified Party") of written
notice of the commencement of any action or proceeding with respect to which a
claim for indemnification may be made pursuant to this Section 6, such
-10-
Indemnified Party will, if a claim in respect thereof is to be made against an
indemnifying party, give written notice to the latter of the commencement of
such action; provided, that the failure of the Indemnified Party to give notice
as provided herein shall not relieve the indemnifying party of its obligations
under the provisions of this Section 6, except to the extent that the
indemnifying party is actually prejudiced by such failure to give notice. In
case any such action is brought against an Indemnified Party, unless in such
Indemnified Party's reasonable judgment a conflict of interest between such
Indemnified Parties and indemnifying parties may exist in respect of such claim,
the indemnifying party will be entitled to participate in and to assume the
defense thereof, jointly with any other indemnifying party similarly notified to
the extent that it may wish, with counsel reasonably satisfactory to such
Indemnified Party, and after notice from the indemnifying party to such
Indemnified Party of its election so to assume the defense thereof, the
indemnifying party will not be liable to such indemnified party for any legal or
other expenses subsequently incurred by the latter in connection with the
defense thereof. No indemnifying party will consent to entry of any judgment or
enter into any settlement which does not include as an unconditional term
thereof the giving by the claimant or plaintiff to such Indemnified Party of a
release from all liability in respect to such claim or litigation.
(d) Other Indemnification. Indemnification similar to that
---------------------
specified in the provisions of this Section 6 (with appropriate modifications)
shall be given by the Company and each Holder of Registrable Securities with
respect to any required registration or other qualification of Registrable
Securities under any federal or state law or regulation or governmental
authority other than the Securities Act
(e) Contribution. To the extent any indemnification by an
------------
indemnifying party provided for in Section 6(a), 6(b) or 6(d) is prohibited or
limited by law, the indemnifying party agrees to make the maximum contribution
permitted by law with respect to any amounts for which it would otherwise be
liable under this Section 6; provided that (i) no contribution shall be made
under circumstances where the maker would not have been liable for
indemnification under the fault standards set forth in this Section 6, and (ii)
no Holder of Registrable Securities guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any Holder of Registrable Securities who was not guilty of
such fraudulent misrepresentation.
(f) Non-Exclusivity. The obligations of the parties under this
---------------
Section 6 shall be in addition to any liability which any party may otherwise
have to any other party.
7. Rule 144. The Company covenants that it will file the reports
--------
required to be filed by it under the Securities Act and the Exchange Act and
that it will take such further action as any Holder of Registrable Securities
may reasonably request, all to the extent required from time to time to enable
such Holder to sell Registrable Securities without registration under the
Securities Act within the limitation of the exemptions provided by (i) Rule 144
under the Securities Act, as such Rule may be amended from time to time, or (ii)
any similar rule or regulation hereafter adopted by the SEC. Upon the request of
any Holder of Registrable Securities, the Company will deliver to such Holder a
written statement as to whether it has complied with such requirements.
-11-
8. Miscellaneous.
-------------
(a) Holdback Agreement. If any registration under this Agreement
------------------
shall be in connection with an underwritten public offering, each Holder of
Registrable Securities agrees not to effect any public sale or distribution,
including any sale pursuant to Rule 144 under the Securities Act, of any equity
securities of the Company, or of any security convertible into or exchangeable
or exercisable for any equity security of the Company (in each case, other than
as part of such underwritten public offering), within 7 days before or 60 days
(or such lesser period as the managing underwriters may permit) after the
effective date of such registration (other than (i) as part of such underwritten
offering, (ii) any such sale or distribution in connection with any merger or
consolidation by the Company or any subsidiary of the Company or the acquisition
by the Company or any subsidiary of the Company of capital stock or assets of
any other Person, (iii) pursuant to any then-effective "shelf" registration
under Rule 415 (or any successor provision) under the Securities Act, or (iv) in
connection with an employee stock option or other benefit plan, including any
dividend reinvestment plan), and the Company hereby also so agrees.
(b) Amendments and Waivers. This Agreement may be amended and
----------------------
the Company may take any action herein prohibited, or omit to perform any act
herein required to be performed by it, only if the Company shall have obtained
the written consent to such amendment, action or omission to act, of the Holders
of a majority of the Registrable Securities then outstanding. Each Holder of any
Registrable Securities at the time or thereafter outstanding shall be bound by
any consent authorized by this Section 8(b), whether or not such Registrable
Securities shall have been marked to indicate such consent requirement.
(c) Restrictions on Transfer. The Registrable Securities have
------------------------
not been registered under the Securities Act, and none of the Registrable
Securities may be sold, assigned, transferred, pledged, encumbered or otherwise
disposed of (collectively, "transferred") unless such Registrable Securities
have been registered under the Securities Act and applicable state securities
laws or, in the opinion of counsel reasonably acceptable to the Company, inform
and substance reasonably satisfactory to the Company, exemption from such
registration is available. In addition, the Shares (other than the 270-Day
Securities) may not be transferred for a period of two years following the date
of this Agreement, the 270-Day Securities may not be transferred for a period of
270 days following the date of this Agreement and the Phase II Shares, if issued
before the second anniversary of the date of this Agreement, may not be
transferred before that anniversary (in each case, the "Applicable Lock-Up
Period"), other than by (i) transferring any or all of the Registrable
Securities to an Affiliate of the Holder, provided that such Affiliate agrees in
writing to be subject to the remainder of the Applicable Lock-Up Period, (ii)
pledging or granting a security interest in any or all of the Registrable
Securities, provided that the pledgee or other holder of a security interest
agrees in writing to be subject to the remainder of the Applicable Lock-Up
Period or (iii) issuing or acquiring any Derivative Security or entering into
any equity swap transaction or mandatory or nonmandatory exchangeable note
transaction, provided that none of the Underlying Registrable Securities may be
transferred prior to the expiration of the Applicable Lock-Up Period.
Notwithstanding the foregoing, if a Holder pledges Pr otherwise grants a
security interest in the Registrable Securities and subsequently defaults on the
secured obligation as a consequence of the Holder's insolvency or bankruptcy,
-12-
the pledgee or other holder of a security interest will be entitled to dispose
of the Registrable Securities prior to the end of the Applicable Lock-Up Period,
provided, however, if such pledge or other holder of a security interest desires
to dispose of the Registrable Securities prior to the end of the Applicable
Lock-Up Period, then such pledgee or other holder (a "Transferor") shall first
offer to sell all such Registrable Securities to the Company by delivering to
the Company a written notice setting forth the number of Registrable Securities
to be disposed of (the "Offered Securities"), the identity of the proposed
transferee and the nature of the Transferor's relationship with the proposed
transferee (a "Transfer Notice"). The Company, at its sole option, may elect, by
providing notice ("Election Notice") to the Transferor within 30 days of the
effective date of the Transfer Notice, to purchase from the Transferor (and to
require the Transferor to sell to the Company) all or any portion of the Offered
Securities for cash at a purchase price equal to the fair market value (as
defined below) of such Offered Securities, subject to the Company's receipt or,
to the extent permitted by applicable law, waiver of all necessary shareholder,
Australian Stock Exchange, and other governmental approvals (collectively, the
"Required Consents"). For purposes of this Section 8(c), the "fair market value"
of any Registrable Securities shall be equal to the average of the daily closing
prices of the ADSs for the 20 consecutive trading days immediately preceding the
effective date of the Company's Election Notice- The closing price for each day
shall be the last reported sales price regular way or, if no such reported sale
takes place on such day, the closing bid price regular way, in either case as
reported on the New York Stock Exchange or other U.S. national securities
exchange. The closing of any purchase and sale pursuant to the Company's right
of first refusal under this Section 8(c) shall occur within five business days
following the Company's receipt or waiver of all Required Consents. The Company
shall use its reasonable best efforts to obtain or waive all Required Consents
as promptly as practicable following the effective date of its Election Notice.
If the Company is unable to obtain or waive all Required Consents within 180
days following the effective date of its Election Notice, the Transferor shall
be entitled to dispose of the Offered Securities without restriction. The Holder
agrees that the Registrable Securities may be legended to reflect the
restrictions contained in this Section 8(c) and that corresponding instructions
may be given to the transfer agent (or any depositary) for the Registrable
Securities.
(d) Successors, Assigns and Transferees. This Agreement shall
-----------------------------------
be binding upon and shall inure to the benefit of the parties hereto and their
respective successors and assigns. In addition, and whether or not any express
assignment shall have been made, the provisions of this Agreement which are for
the benefit of the parties hereto other than the Company shall also be for the
benefit of and enforceable by any subsequent Holder of any Registrable
Securities, subject to the provisions contained herein.
(e) Notices. All notices and other communications provided far
-------
hereunder shall be in writing and shall be sent by telecopier, courier or hand
delivery:
(i) if to the Company, to:
The News Corporation Limited
1211 Avenue of the Americas
New York, New York 10036
Attention: Arthur M. Siskind, Esq.
-13-
Senior Executive Vice President
and Group General Counsel
Telecopy No.: (212) 852-7136
with a copy to.
Squadron, Ellenoff, Plesent & Sheinfeld, L LP
551 Fifth Avenue
New York, New York 10176
Attention: Joel I. Papernik, Esq.
Telecopy No.: (212) 697-6686
(ii) if to Purchaser, to:
Liberty Media Corporation
9197 S. Peoria Street
Englewood, Colorado 80112
Attention: Charles Y. Tanabe, Esq.
Telecopy: (720) 875-5382
with a copy to:
Sherman & Howard L.L.C.
633 Seventeenth Street
Suite 3000
Denver, Colorado 80202
Attention: Amy Hirter, Esq.
Telecopy: (303) 298-0940
(iii) if to any other Holder of Registrable Securities, to the
address of such other Holder as shown in the books and records of the Company,
or to such other address as any of the above shall have designated in writing to
all of the other parties listed above.
All such notices and communications shall be deemed to have been given or made
(1) when delivered (or when delivery is refused) by courier, certified mail or
by hand, or (2) when telecopied, with oral confirmation of receipt.
(f) Descriptive Headings. The headings in this Agreement are for
--------------------
convenience of reference only and shall not limit or otherwise affect the
meaning of terms contained herein.
(g) Severability. In the event that any one or more of the
------------
provisions, paragraphs, words, clauses, phrases or sentences contained herein,
or the application thereof in any circumstances, is held invalid, illegal or
unenforceable in any respect for any reason, the validity, legality and
enforceability of any such provision, paragraph, word, clause, phrase or
-14-
sentence in every other respect and of the remaining provisions, paragraphs,
words, clauses, phrases or sentences hereof shall not be in any way impaired, it
being intended that all rights, powers and privileges of the parties hereto
shall be enforceable to the fullest extent permitted by law.
(h) Counterparts. This Agreement may be executed in two or
------------
more counterparts, and by different parties on separate counterparts, each of
which shall be deemed an original, but all such counterparts shall together
constitute one and the same instrument, and it shall not be necessary in making
proof of this Agreement to produce or account for more than one such
counterpart.
(i) Governing Law. This Agreement will be governed by the internal
-------------
laws of the State of New York, without regard to conflicts of laws rules. TNCL
hereby appoints News America Incorporated, 1211 Avenue of the Americas, New
York, New York 10036, Attention: Arthur M. Siskind, as its authorized agent (the
"Authorized Agent") upon which process may be served in any such action arising
out of or based upon this Agreement or the transactions contemplated hereby that
may be instituted in any court by any party hereto and expressly consents to the
jurisdiction of any such court, but only in respect of any such action, and
waives any other requirements of or objections to personal jurisdiction with
respect thereto. TNCL represents and warrants that the Authorized Agent has
agreed to act as said agent for service of process, and TNCL agrees to take any
and all action, including the filing of any and all documents and instruments,
that may be necessary to continue such appointment in full force and effect as
aforesaid. If the Authorized Agent shall cease to act as TNCL's agent for
service of process, TNCL shall appoint without delay another such agent and
notify LMC of such appointment. With respect to any such action in the courts,
service of process upon the Authorized Agent and written notice of such service
to TNCL shall be deemed, in every respect, effective service of process upon
TNCL. Any action to enforce any provision of this Agreement may be brought only
in a United States Federal court or a court of any state of the United States
having jurisdiction in such matter. Each party (a) hereby submits to the general
jurisdiction of such courts and agrees to accept service of process at its
address for notices pursuant to this Agreement in any such action or proceeding
and (b) irrevocably waives any objection it may have to the laying of venue of
such action or proceeding brought in any such court and any claim that such
action or proceeding brought in any such court has been brought in an
inconvenient forum.
(j) Specific Performance. The parties hereto acknowledge and
--------------------
agree that irreparable damage would occur in the event that any of the
provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached. Accordingly, it is agreed that they
shall be entitled to an injunction or injunctions to prevent breaches of the
provisions of this Agreement and to enforce specifically the terms and
provisions hereof in any court of competent jurisdiction in the United States or
any state thereof, in addition to any other remedy to which they may be entitled
at law or equity.
-15-
IN WITNESS WHEREOF, each of the undersigned has executed this Agreement
and caused this Agreement to be executed on its behalf as of the date
first written above.
COMPANY: THE NEWS CORPORATION LIMITED
By: /s/ Lawrence A. Jacobs
-------------------------------------
Name: Lawrence A. Jacobs
Title: Attorney-in-Fact
PURCHASER: LIBERTY MEDIA CORPORATION
By:
-------------------------------------
Name:
Title:
IN WITNESS WHEREOF, each of the undersigned has executed this Agreement
and caused this Agreement to be executed on its behalf as of the date first
written above.
COMPANY: THE NEWS CORPORATION LIMITED
By:
-------------------------------------
Name:
Title:
PURCHASER: LIBERTY MEDIA CORPORATION
By: /s/ Gary S. Howard
-------------------------------------
Name: Gary S. Howard
The undersigned hereby agrees to perform its obligations described in
Section 3(b) and 4(b) hereof.
FOX ENTERTAINMENT GROUP, INC.
By: /s/ Jay Itzkowitz
-------------------------------------
Name: Jay Itzkowitz
Title: Senior Vice President
(c)(5) Letter Agreemen,
dated as of December 3, 2001,
between the Company, the Depositary and Liberty Media Corporation
Execution Copy
CITIBANK, N.A.,
111 WALL STREET
NEW YORK, NEW YORK 10043
As of December 3, 2001
The News Corporation Limited
2 Holt Street
Sydney NSW
Australia 2001
Attention: Corporate Secretary
Re: News Corporation - Liberty Media - Gemstar Backup Merger
--------------------------------------------------------
Ladies and Gentlemen
Reference is made to the Amended and Restated Deposit
Agreement, dated as of December 3, 1996 (the "Deposit Agreement"), by and among
-----------------
The News Corporation Limited (the "Company"), Citibank, N.A., as Depositary
-------
("Citibank"), and all Holders from time to time of American Depositary Receipts
--------
("ADRs") evidencing American Depositary Shares ("ADSs") issued thereunder, each
---- ----
ADS representing four Preferred Limited Voting Ordinary Shares (the "Shares") of
------
the Company. Capitalized terms used herein without definition shall have the
meaning assigned thereto in the Deposit Agreement,
Pursuant to Section 2.01 of the Deposit Agreement and in
connection with the delivery by the Company of ADSs that are "Restricted
Securities" as defined in Section 1.13 of the Deposit Agreement (such ADSs, the
"Restricted ADSs") to Liberty NC XE, Inc., a subsidiary of Liberty Media
---------------
Corporation ("LMC"), the Company hereby authorizes, directs and agrees to the
---
following:
1. Upon receipt of confirmation of the deposit of 115,175,920
Shares by the Company and delivery to Citibank by the Company of a notice
releasing such Shares from escrow, Citibank shall issue one or more ADR(s) in
the aggregate representing 28,793,980 Restricted ADSs to Liberty NC XE, Inc., a
"Controlled Affiliate Acquirer" of LMC in accordance with Section 3.1 (a) of the
Agreement and Plan of Merger, dated as of November 27, 2001, by and among LMC,
Liberty TVGIA, Inc., the Company and News Publishing Australia Limited), which
ADR(s) shall be restricted in the manner outlined in this letter agreement and
which ADR(s) shall bear the legend set forth on the form of ADR certificate
annexed hereto as Exhibit A.
2. For as long as the Restricted ADSs constitute "Restricted
Securities" as defined in the Deposit Agreement or are otherwise subject to
restrictions on transfer set forth in Section 8(d) of the Amended and Restated
TNCL Registration Rights and Lock-Up Agreement, dated as of December 3, 2001
between the Company and LMC (the "Registration Rights Agreement"), a copy of
which is attached as Exhibit B hereto, the Restricted ADSs shall:
a. be separately identified on the books of Citibank and
shall not be fungible or commingled with the ADSs
issued under the terms of the Deposit Agreement that
are not Restricted ADSs;
b. be represented by the Shares deposited pursuant hereto
to be maintained by the Custodian in an account or
subaccount separate and distinct from other Deposited
Securities held under the Deposit Agreement that are
not restricted;
c. be issued only in the form of physical, certificated
ADRs in the form annexed hereto as Exhibit A;
---------
d. not be eligible for any book-entry settlement system,
including without limitation, with The Depository Trust
Company;
e. not be eligible for pre-release transactions described
in Section 5.11 of the Deposit Agreement nor be
included for purposes of the calculation referred to in
the penultimate sentence of the first paragraph of said
section; and
f not be eligible for transfer on the books of Citibank
or cancellation unless Citibank has received in
addition to the documentation otherwise contemplated by
the Deposit Agreement an opinion of counsel (with such
supporting certificates, acknowledgements or other
documentation as such counsel deems appropriate) in
form and substance reasonably satisfactory to Citibank
setting forth, inter alia, the circumstances under
which the Restricted ADSs are no longer restricted or
are transferable by the holder thereof under applicable
securities laws and/or the transfer restrictions set
forth in Section 8(d) of the Registration Rights
Agreement. Notwithstanding the foregoing, any Holder
(as defined in the Registration Rights Agreement) may
transfer all or a portion of its Restricted ADSs to an
Affiliate (as defined in the Registration Rights
Agreement) of such Holder without Citibank having
received such an opinion of counsel if the Company
delivers to Citibank a certificate reasonably
satisfactory to Citibank specifying that the transfer
of such Restricted ADSs to such Affiliate complies with
the applicable requirements of the Registration Rights
Agreement.
3. Citibank acknowledges and agrees that the Company is relying
on the procedures and conditions set forth in the preceding paragraph in
connection with the issuance of the Restricted ADSs. The Company may advise
Citibank from time to time in writing that it has been advised. that some or all
of the Restricted ADSs no longer constitute Restricted Securities_ Upon delivery
of any such notice and the applicable items identified in 2(f) above, the ADSs
identified therein shall cease to be subject to the terms of this letter
agreement and Citibank will, for the benefit of LMC or any other holder of the
Restricted ADSs take such actions (including the removal of legends on the ADRs
representing such Restricted ADSs) as are necessary to accomplish the foregoing.
4. The Company hereby represents and warrants (an lieu of the
representations and warranties contained in Section 3.03 of the Deposit
Agreement) that (a) the Shares being deposited by the Company for issuance of
the Restricted ADSs are validly issued, fully paid and nonassessable, and free
of any preemptive rights of the holders of outstanding Shares, (b) the Company
is duly authorized to make such deposit, (c) the Shares being deposited by the
Company in support of the issuance of the Restricted ADSs rank pari passu in all
respects with all existing Shares on issue at that date (including as to
dividends), and (d) the Shares being deposited by the Company are not liable for
disenfranchisement or disposal by the Company pursuant to the Constitution of
the Company. Such representations and warranties shall survive the deposit and
withdrawal of Shares and the issuance of Restricted ADSs and the issuance and
cancellation of ADRs in respect thereof.
5. Except as expressly provided in this letter agreement and
except as required by applicable law, the Restricted ADSs shall be treated as
ADSs issued and outstanding under the terms of the Deposit Agreement. The
parties acknowledge that this letter agreement supplements the terms of the
Deposit Agreement and imposes certain restrictions specified herein with respect
to the Restricted ADSs and the ADRs representing the Restricted ADSs.
6. The Company agrees to reimburse Citibank for any reasonable
fees or expenses incurred in connection with the establishment and
implementation of any procedures for the deposit of Shares or the issuance of
Restricted ADSs as contemplated by this letter agreement.
7. Each of the Company and Citibank acknowledges and agrees
that the indemnification under Section 5.08 of the Deposit Agreement shall apply
to the issuance of Restricted ADSs hereunder and any other acts performed or
omitted by Citibank as contemplated by this letter agreement.
8. Each of the Company, LMC and Citibank acknowledges and
agrees that any reference in the letter agreement by and among the parties
hereto, dated as of May 2, 2001, to the TNCL Registration Rights and Lock-Up
Agreement, dated as of May 2, 2001, between the Company and LMC, shall be deemed
to refer to the Registration Rights Agreement (as defined above), and such
letter agreement is hereby amended to reflect the foregoing.
This letter agreement shall be interpreted and all rights
hereunder shall be governed by the laws of the State of New York without regard
to its principles of conflicts of law.
Please confirm your agreement to the terms outlined above by
signing below and returning a copy hereof to the undersigned.
Sincerely,
CITIBANK, N.A.,
as Depositary
By: /s/ Richard Etienne
----------------------------
Name: Richard Etienne
Title: Vice President
Date: 12/3/01
Acknowledged and Agreed:
THE NEWS CORPORATION LIMITED
By:
----------------------------
Name:
Title:
Date:
Acknowledged and Agreed:
LIBERTY MEDIA CORPORATION
By:
----------------------------
Name:
Title:
Date:
Exhibits
--------
Exhibit A - Form of ADR
Exhibit B - Amended and Restated TNCL Registration Rights and Lock-Up Agreement
Please confirm your agreement to the terms outlined above by
signing below and returning a copy hereof to the undersigned.
Sincerely,
CITIBANK, N.A.,
as Depositary
By:
----------------------------
Name:
Title:
Date:
Acknowledged and Agreed:
THE NEWS CORPORATION LIMITED
By: /s/ Lawrence A. Jacobs
----------------------------
Name: Lawrence A. Jacobs
Title: Author and Signatory
Date: December 5, 2001
Acknowledged and Agreed:
LIBERTY MEDIA CORPORATION
By:
----------------------------
Name: Title:
Date:
Exhibits
--------
Exhibit A - Form of ADR
Exhibit B - Amended and Restated TNCL Registration Rights and Lock-Up Agreement
Please confirm your agreement to the terms outlined above by
signing below and returning a copy hereof to the undersigned.
Sincerely,
CITIBANK, N.A.,
as Depositary
By:
----------------------------
Name:
Title:
Date:
Acknowledged and Agreed:
THE NEWS CORPORATION LIMITED
By:
----------------------------
Name:
Title:
Date:
Acknowledged and Agreed:
LIBERTY MEDIA CORPORATION
By:
----------------------------
Name: Elizabeth M. Markowski
Title: Senior Vice President
Date:
Exhibits
--------
Exhibit A - Form of ADR
Exhibit B - Amended and Restated TNCL Registration Rights and Lock-Up Agreement
Exhibit A
Form of ADR
[including Legend]
THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), AND MAY NOT BE SOLD, ASSIGNED,
TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF (EACH A "TRANSFER" OR
COLLECTIVELY, "TRANSFERRED") UNLESS SUCH SECURITIES HAVE BEEN REGISTERED UNDER
THE ACT AND APPLICABLE STATE SECURITIES LAWS OR, IN THE OPINION OF COUNSEL
REASONABLY ACCEPTABLE TO THE NEWS CORPORATION LIMITED (THE "COMPANY") AND
REASONABLY ACCEPTABLE IN FORM AND SUBSTANCE TO THE COMPANY, AN EXEMPTION FROM
SUCH REGISTRATION IS AVAILABLE.
THE TRANSFER OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE IS RESTRICTED
PURSUANT TO AN AMENDED AND RESTATED REGISTRATION RIGHTS AND LOCK-UP AGREEMENT
(THE "REGISTRATION RIGHTS AGREEMENT") BETWEEN THE COMPANY AND LIBERTY MEDIA
CORPORATION, A COPY OF WHICH IS ON FILE AT THE COMPANY'S PRINCIPAL OFFICES SUCH
SECURITIES MAY NOT BE TRANSFERRED UNLESS AND UNTIL THE TRANSFER HAS BEEN MADE IN
COMPLIANCE WITH THE TERMS OF SUCH REGISTRATION RIGHTS AGREEMENT.
Exhibit B
Amended and Restated TNCL Registration Rights and Lock-Up Agreement
(d) Opinion of counsel to the Depositary
Frettra M. Miller
Vice President and
Senior Counsel
Tel212/816-5675
Fax212/816-2689
frettra.m.miller@citigroup.com
December 10 2003
Citibank, N.A.
ADR Department
111 Wall Street
New York, N.Y. 10043
Re: American Depositary Receipts evidencing American Depositary
Shares Representing four (4) Preferred Limited Voting Ordinary Shares of
The News Corporation Limited
Ladies and Gentlemen:
I refer to the Registration Statement to be filed on Form F-6 (the
"Registration Statement") by the legal entity created by the Deposit Agreement
(as defined herein) for which you are acting as the depositary, for the
purpose of registering under the Securities Act of 1933, as amended,
300,000,000 American Depositary Shares ("ADSs") evidenced by American
Depositary Receipts ("ADRs") to be issued under the Amended and restated
Deposit Agreement, dated as of December 3, 1996, by and among Citibank, N.A.,
as depositary, The News Corporation Limited, a company organized and existing
under the laws of Australia (the "Company"), and the Holders from time to time
of ADRs issued thereunder, a copy of which is being filed as Exhibit (a) to
the Registration Statement (the "Deposit Agreement"). Each ADS will (subject
to amendments in accordance with the terms of the Deposit Agreement) represent
four (4) shares, or evidence of the right to receive such shares, of the
Company. Capitalized terms used herein without definition shall have the
meaning assigned thereto in the Deposit Agreement.
Assuming that the Deposit Agreement will have been duly executed and delivered
at the time of their issuance or has been duly executed and delivered by the
Company, I am of the opinion that the ADSs covered by the Registration
Statement, when issued in accordance with the terms of the Deposit Agreement,
will be legally issued and will entitle the Holders thereof to the rights
specified in the Deposit Agreement and the ADRs.
I hereby consent to the filing of this opinion as an exhibit to the
aforementioned Registration Statement.
I am a member of the Bar of the State of New York. This opinion is limited to
the laws of the State of New York and the Federal laws of the United States.
Very truly yours,
/s/ Fretta M. Miller
Frettra M. Miller
(e) Rule 466 Certification
Certification under Rule 466
----------------------------
The Depositary, Citibank, N.A., represents and certifies the following:
(1) That it previously had filed a Registration Statement on Form F-6 (File
No. 333-13420), which the Commission declared effective, with terms of
deposit identical to the terms of this Registration Statement.
(2) That its ability to designate the date and time of effectiveness under
Rule 466 has not been suspended.
Citibank, N.A., as depositary
By: /s/ Mildred Quinones-Holmes
-------------------------------
Name: Mildred Quinones-Holmes
Title: Vice President
Dated: December 10, 2003