Exhibit 4.3
REGISTRATION RIGHTS AGREEMENT
Dated as of March 21, 2003
by and among
THE NEWS CORPORATION LIMITED,
NEWS AMERICA INCORPORATED,
NEWS CORPORATION FINANCE TRUST II
and
SALOMON SMITH BARNEY INC.
and
J.P. MORGAN SECURITIES INC., as the representatives of the Initial
Purchasers
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is made and
entered into as of March 21, 2003 by and among THE NEWS CORPORATION LIMITED, a
South Australia corporation (A.C.N. 007 910 330) ("News Corporation"), NEWS
AMERICA INCORPORATED, a Delaware corporation (the "Company"), NEWS CORPORATION
FINANCE TRUST II, a statutory business trust formed under the laws of the State
of Delaware (the "Trust"), and J.P. MORGAN SECURITIES INC. and SALOMON SMITH
BARNEY INC., as representatives of the Initial Purchasers listed on Annex I
(collectively, the "Initial Purchasers").
This Agreement is made pursuant to the Purchase Agreement dated as of
March 18, 2003, by and among the Company, News Corporation and certain of its
subsidiaries from time to time serving as guarantors under the Indenture (as
hereinafter defined) (the "Subsidiary Guarantors" and collectively with News
Corporation, the "Guarantors"), the Trust and the Initial Purchasers (the
"Purchase Agreement"), which provides, among other things, for the sale by the
Trust to the Initial Purchasers of up to $1,750,000,000 of the Trust's 0.75%
Senior Exchangeable BUCS, (the "Exchangeable Preferred Securities") with an
original liquidation preference of $1,000 per Exchangeable Preferred Security.
Pursuant to the terms of the Declaration (as defined below), (i) the
Exchangeable Preferred Securities are exchangeable into BSkyB Ordinary Shares or
BSkyB ADSs (as such terms are defined below) or, at the Company's option, cash,
or a combination thereof, (ii) the Exchangeable Preferred Securities are subject
to redemption at various times, in exchange for BSkyB Ordinary Shares or BSkyB
ADSs or cash, or a combination thereof, at the Company's option, and (iii) the
Holders of the Exchangeable Preferred Securities shall have the right to require
the Company to repurchase the Exchangeable Preferred Securities in exchange for
BSkyB Ordinary Shares, or BSkyB ADSs, News Corporation Preferred ADSs (as
hereinafter defined) or cash, or a combination thereof, at News Corporation's
option. In order to induce the Initial Purchasers to enter into the Purchase
Agreement, News Corporation, the Company and the Trust have agreed to provide,
and News Corporation has agreed to cause the Subsidiary Guarantors to provide,
to the Initial Purchasers and their direct and indirect transferees, the
registration rights set forth in this Agreement. The execution and delivery of
this Agreement is a condition to the closing under the Purchase Agreement.
In consideration of the foregoing, the parties hereto agree as follows:
1. Definitions
As used in this Agreement, the following capitalized defined terms
shall have the following meanings:
"Additional Interest" shall have the meaning set forth in Section 2.4
hereof.
"Advice" shall have the meaning set forth in the last paragraph of
Section 3 hereof.
"Affiliates" shall mean with respect to any specified Person, any other
Person directly or indirectly controlling or controlled by or under direct or
indirect common control with the specified Person.
"Agreement" shall have the meaning set forth in the preamble.
"Beneficial Owner" shall mean (i), in the case of a Debenture held in
certificated form, the Holder of such Debenture and (ii), in the case of a
Debenture held through the Depositary, the Person identified in the records of
the Depositary's direct or indirect participants as the owner of such Debenture;
provided, however, that in the case of a Holder described in clause (ii), such
Holder is identified to the Company in accordance with this Agreement.
"BSkyB" shall mean British Sky Broadcasting Group plc, a public limited
company incorporated under the laws of England and Wales.
"BSkyB ADRs" shall mean American Depositary Receipts evidencing BSkyB
ADSs issued from time to time by the BSkyB Depositary.
"BSkyB ADSs" shall mean American Depositary Shares, evidenced by BSkyB
ADRs, issued from time to time by the BSkyB Depositary, each such share
representing, as of the date hereof four BSkyB Ordinary Shares.
"BSkyB Depositary" shall mean depositary pursuant to the terms of a
Deposit Agreement, dated as of December 9, 2002, among BSkyB, The Bank of New
York and the holders from time to time of BSkyB ADSs, as such agreement may be
amended or modified, or any deposit agreement entered into by BSkyB in
substitution or replacement thereof.
"BSkyB Ordinary Shares" shall mean the ordinary shares, nominal value
50p per share, of BSkyB.
"BSkyB Securities" shall mean the BSkyB ADSs and the BSkyB Ordinary
Shares deliverable upon exchange or redemption of the Exchangeable Preferred
Securities and the Debentures.
"Business Day" shall mean a day that is not a Saturday, a Sunday, or a
day on which banking institutions in New York, New York are authorized or
required to be closed.
"Closing Date" shall mean the Closing Time as defined in the Purchase
Agreement.
"Company" shall have the meaning set forth in the preamble and shall
also include the Company's successors.
"Debentures" shall mean the Company's 0.75% Senior Debentures due 2023
issued pursuant to the Indenture.
"Debt Guarantees" shall mean the full and unconditional guarantees by
the Guarantors of the Company's obligations under the Debentures, as set forth
in the Indenture.
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"Declaration" shall mean the Amended and Restated Declaration of Trust,
dated as of March 21, 2003, among the Company, as sponsor, The Bank of New York,
as property trustee, The Bank of New York (Delaware), as Delaware trustee (the
"Delaware Trustee"), and the regular trustees named therein.
"Depositary" shall mean The Depository Trust Company, or any other
depositary appointed by the Company; provided, however, that such depositary
must have an address in the Borough of Manhattan, in The City of New York.
"Effectiveness Period" shall have the meaning set forth in Section 2.1
hereof.
"Event Date" shall have the meaning set forth in Section 2.4 hereof.
"Exchangeable Preferred Securities" shall have the meaning set forth in
the second paragraph of this Agreement.
"Exchangeable Preferred Securities Guarantee" shall mean the guarantee
by News Corporation, as set forth in the Exchangeable Preferred Securities
Guarantee Agreement, of the payment of distributions and the amount payable upon
redemption of the Exchangeable Preferred Securities and the liquidation
preference of the Exchangeable Preferred Securities, in each case, to the extent
the Company or any Guarantor has made a payment to the property trustee of the
Trust of interest or principal on the Debentures.
"Exchangeable Preferred Securities Guarantee Agreement" shall mean the
Guarantee, dated as of March 21, 2003, between News Corporation and the Initial
Purchasers.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended from time to time.
"Guarantees" shall mean the Exchangeable Preferred Securities Guarantee
and the Debt Guarantees.
"Guarantors" shall have the meaning set forth in the second paragraph
of this Agreement.
"Holder" shall mean the Initial Purchasers, for so long as either of
them owns, beneficially or otherwise, any Registrable Securities, and each of
their respective successors, assigns and direct and indirect transferees who
become Holders of Exchangeable Preferred Securities or Debentures.
"Indenture" shall mean the Indenture, dated as of March 21, 2003, among
the Company, News Corporation, the Subsidiary Guarantors and the Bank of New
York, as trustee, relating to the Debentures.
"Initial Purchasers" shall have the meaning set forth in the preamble.
"Inspectors" shall have the meaning set forth in Section 3(m) hereof.
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"Majority Holders" shall mean the Holders of a majority of (i) the
aggregate adjusted liquidation value, as determined under the Declaration, of
the then outstanding Exchangeable Preferred Securities that are Registrable
Securities, but without taking into account accrued but unpaid distributions, or
(ii) if the Debentures have been distributed to the Holders, the aggregate
principal amount at maturity, as determined under the Indenture, of the
outstanding Debentures that are Registrable Securities.
"NASD" shall mean the National Association of Securities Dealers, Inc.
"News Corporation" shall have the meaning set forth in the preamble.
"News Corporation Depositary" shall mean the depositary pursuant to the
terms of an amended and restated Deposit Agreement, dated as of December 3,
1996, among News Corporation, Citibank, N.A. and the holders from time to time
of News Corporation Preferred ADSs, as such agreement may be amended or
modified, or any deposit agreement entered into by News Corporation in
substitution or replacement thereof.
"News Corporation Preferred ADRs" shall mean American Depositary
Receipts evidencing News Corporation Preferred ADSs issued from time to time by
the News Corporation Depositary.
"News Corporation Preferred ADSs" shall mean American Depositary
Shares, evidenced by News Corporation Preferred ADRs, issued from time to time
by the News Corporation Depositary, each such share representing, as of the date
hereof four News Corporation Preferred Ordinary Shares.
"News Corporation Preferred Ordinary Shares" shall mean the preferred
limited voting ordinary shares of News Corporation.
"News Corporation Securities" shall mean the News Corporation Preferred
ADSs and News Corporation Preferred Ordinary Shares deliverable upon redemption
of the Exchangeable Preferred Securities or the Debentures at the option of the
Holders.
"NYSE" shall mean the New York Stock Exchange.
"Person" shall mean an individual, partnership (general or limited),
corporation, limited liability company, trust or unincorporated organization, or
a government or agency or political subdivision thereof.
"Prospectus" shall mean the prospectus included in the Shelf
Registration Statement, including any preliminary prospectus, and any such
prospectus as amended or supplemented by any prospectus supplement, including
any such prospectus supplement with respect to the terms of the offering of any
portion of the Registrable Securities covered by the Shelf Registration
Statement, and by all other amendments and supplements to a prospectus,
including post-effective amendments, and in each case including all material
incorporated by reference therein.
"Purchase Agreement" shall have the meaning set forth in the second
paragraph of this Agreement.
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"Records" shall have the meaning set forth in Section 3(m) hereof.
"Registrable Securities" shall mean the Securities; provided, however,
that (i) any Securities (other than the BSkyB Securities) shall cease to be
Registrable Securities when (A) a Registration Statement with respect to such
Securities shall have been declared effective under the Securities Act and such
Securities shall have been disposed of, (B) such Securities (other than any such
Securities held by the Company, the Guarantors, the Trust or BSkyB or their
Affiliates) shall be eligible for sale under Rule 144(k) (or any similar
provision then in force, but not Rule 144A) under the Securities Act or shall
otherwise be freely tradable without registration under the Securities Act, or
(C) such Securities shall have ceased to be outstanding, and (ii) any BSkyB
Securities shall cease to be Registrable Securities when (A) a Registration
Statement with respect to such BSkyB Securities shall have been declared
effective under the Securities Act and such BSkyB Securities have been
distributed to the Holders, (B) the Exchangeable Preferred Securities or
Debentures in respect of which such BSkyB Securities may be distributed cease to
be outstanding, or (C) such Securities shall be eligible for sale under Rule
144(k) (or any similar provision then in force, but not Rule 144A) under the
Securities Act or shall otherwise be freely tradable without registration under
the Securities Act.
"Registrants" shall mean News Corporation, the Company, the Trust, the
Subsidiary Guarantors and BSkyB.
"Registration Default" shall have the meaning set forth in Section 2.4
hereof.
"Registration Expenses" shall mean any and all reasonable expenses
incident to performance of or compliance by News Corporation, the Company and
the Trust with this Agreement, including without limitation: (i) all SEC or
stock exchange registration and filing fees, (ii) all reasonable fees and
expenses incurred in connection with compliance with state securities or blue
sky laws (including reasonable fees and disbursements of counsel for the Initial
Purchasers in connection with blue sky qualification of any of the Registrable
Securities), (iii) all reasonable expenses of any Persons (other than the
Holders or Persons acting on the request of the Holders) in preparing or
assisting in preparing, word processing, printing and distributing any Shelf
Registration Statement, any Prospectus, any amendments or supplements thereto,
and other documents relating to the performance of and compliance with this
Agreement, (iv) all fees and expenses incurred in connection with the listing,
if any, of any of the Registrable Securities on any securities exchange or
exchanges, (v) all rating agency fees, (vi) the reasonable fees and
disbursements of counsel for the Registrants and of the independent public
accountants of the Registrants, including the expenses of any special audits
required by or incident to such performance and compliance, (vii) the reasonable
fees and expenses of the Trustees and any custodian, (viii) the reasonable fees
and expenses incurred in connection with the listing of the Registrable
Securities on the NYSE; and (ix) all reasonable fees and expenses of the Special
Counsel, but excluding other counsel fees and any discounts, commissions and
transfer taxes, if any, relating to the sale or disposition of Registrable
Securities by the Holders.
"Registration Statement" shall mean any Shelf Registration Statement.
"Registration Suspension" shall have the meaning set forth in Section
2.4 hereof.
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"SEC" shall mean the Securities and Exchange Commission or any
successor agency or government body performing the functions currently performed
by the Securities and Exchange Commission.
"Securities" shall mean, collectively, the Exchangeable Preferred
Securities, the Debentures, the Guarantees and the Exchangeable Preferred
Securities Guarantees and the BSkyB Securities.
"Securities Act" shall mean the Securities Act of 1933, as amended from
time to time.
"Shelf Registration" shall mean any registration effected pursuant to
Section 2.1 hereof.
"Shelf Registration Statement" shall mean any "shelf" registration
statement or registration statements of any Registrant filed pursuant to the
provisions of Section 2.1 hereof, which cover any of the Securities and all
amendments to any such registration statement, including post-effective
amendments, in each case including the Prospectus contained therein, all
exhibits thereto and all material incorporated by reference therein.
"Special Counsel" shall mean one counsel designated in writing by the
Majority Holders to act as counsel to the Holders of the Registrable Securities
in connection with a Shelf Registration Statement.
"Subsidiary Guarantors" shall have the meaning set forth in the second
paragraph of this Agreement.
"TIA" shall have the meaning set forth in Section 3(k) hereof.
"Trustees" shall mean any and all trustees with respect to (i) the
Exchangeable Preferred Securities under the Declaration and (ii) the Debentures
and the Guarantees under the Indenture.
2. Registration under the Securities Act.
2.1 Shelf Registration. (a) News Corporation, the Company and the
Trust shall, subject to Section 2.2 hereof, at News Corporation's and the
Company's cost, (i) prepare and, as soon as practicable but not later than 120
days following the Closing Date, file with the SEC a Shelf Registration
Statement on an appropriate form under the Securities Act covering the resale of
the Securities (other than the BSkyB Securities) and (ii) use their reasonable
best efforts to cause such Shelf Registration Statement to be declared effective
under the Securities Act within 180 days following the Closing Date; (b) News
Corporation shall, subject to Section 2.2 hereof, at News Corporation's and the
Company's cost, use its reasonable best efforts to cause BSkyB to use its
reasonable best efforts to prepare and file a Shelf Registration Statement on an
appropriate form under the Securities Act covering the BSkyB Securities and to
cause such Shelf Registration Statement to be declared effective under the
Securities Act on or prior to April 2, 2004; (c) News Corporation, the Company
and the Trust shall use their reasonable best efforts (and News Corporation
shall use its reasonable best efforts to cause BSkyB to use its reasonable best
efforts, solely with respect to the registration of the BSkyB Securities on any
Shelf Registration Statement) to keep each such Shelf Registration Statement
continuously effective in order to permit the Prospectus forming part thereof to
be usable (i) with respect to the Securities
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(other than the BSkyB Securities), for a period of two years from the later of
the original issue date of the Exchangeable Preferred Securities or the latest
issue date of any Exchangeable Preferred Securities issued upon exercise of the
Initial Purchasers' option to purchase additional Exchangeable Preferred
Securities under the Purchase Agreement, or for such shorter period that will
terminate when all such Securities covered by the Shelf Registration Statement
cease to be Registrable Securities, and (ii) with respect to the BSkyB
Securities, until all such BSkyB Securities cease to be Registrable Securities
(each such period, as applicable, being the "Effectiveness Period"); provided,
however, that the Effectiveness Period in respect of the Shelf Registration
Statement shall be extended up to a maximum of 90 days if necessary to permit
dealers to comply with the applicable prospectus delivery requirements of Rule
174 under the Securities Act and as otherwise provided herein; and (d)
notwithstanding any other provisions hereof, News Corporation, the Company and
the Trust shall use their reasonable best efforts to ensure that (i) each Shelf
Registration Statement and any amendment thereto and any Prospectus forming part
thereof and any supplement thereto complies in all material respects with the
Securities Act and the rules and regulations thereunder, (ii) such Shelf
Registration Statement and any amendment thereto does not, when it becomes
effective, contain 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 and (iii) any Prospectus forming part of such Shelf
Registration Statement, and any supplement to such Prospectus (as amended or
supplemented from time to time), does not include an untrue statement of a
material fact or omit to state a material fact necessary in order to make the
statements, in light of the circumstances under which they were made, not
misleading.
Notwithstanding anything to the contrary contained in this
Agreement, no Registrant shall be required to file a post-effective amendment to
the Registration Statement or to amend or supplement any Prospectus in order to
include any information regarding any selling Holder (as to which information
was not previously included in a Prospectus) that requests in writing that it be
covered by any such amendment or supplement (i) more than once in any 90-day
period or (ii) unless Exchangeable Preferred Securities with an aggregate
adjusted liquidation value, but without taking into account accrued but unpaid
distributions (as determined under the Declaration), of at least $100,000,000
(or Debentures with an equal aggregate principal amount at maturity) are being
registered on behalf of such Holders. Such Registrants shall be entitled, in
their sole discretion, to aggregate any and all requests from selling Holders
with respect to the preparation of any such post-effective amendment or
amendment or supplement to any Prospectus and to control the timing of the
filing or use thereof.
2.2 Expenses. News Corporation and the Company shall pay all
Registration Expenses in connection with any Shelf Registration pursuant to
Section 2.1 hereof. Each Holder shall pay all underwriting expenses, discounts
and commissions and transfer taxes, if any, relating to the sale or disposition
of such Holder's Securities pursuant to any Shelf Registration Statement.
2.3 Effectiveness. Each of News Corporation, the Company and the Trust
will be deemed not to have used its reasonable best efforts to cause any Shelf
Registration Statement to become, or to remain, effective during the requisite
period if it voluntarily takes any action that would, or omits to take any
action which omission would, result in such Shelf
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Registration Statement not being declared effective or in the Holders of
Securities covered thereby not being able to offer and sell such Securities
during that period as and to the extent contemplated hereby, unless (i) such
action or omission from acting is required by applicable law, or (ii) such
action or omission from acting is taken by News Corporation, the Company or the
Trust in good faith and for valid business reasons (not including avoidance of
its obligations hereunder), including the acquisition or divestiture of assets,
so long as News Corporation, the Company or the Trust, as the case may be,
promptly thereafter complies with the requirements of Section 3(i) hereof, if
applicable. Notwithstanding the foregoing, the only remedies available under
this Agreement for the failure of News Corporation, the Company and/or the Trust
to satisfy the obligations set forth in this Section 2.3 and Sections 2.1 and 3
hereof shall be payment by the Company of the Additional Interest (and the
payment by the Trust of the corresponding additional distributions on the
Exchangeable Preferred Securities, as provided in the Declaration) as set forth
in Section 2.4 hereof and the remedy of specific enforcement provided by Section
2.5 hereof.
A Shelf Registration Statement will not be deemed to have become
effective unless it has been declared effective by the SEC; provided, however,
that if, after it has been declared effective, the offering of Securities
pursuant to a Shelf Registration Statement is interfered with by any stop order,
injunction or other order or requirement of the SEC or any other governmental
agency or court, the Shelf Registration Statement will be deemed not to have
become effective during the period of such interference, until the offering of
Securities pursuant to the Shelf Registration Statement may legally resume.
2.4 Additional Interest. The Indenture executed in connection with the
Securities provides that in the event that either (a) any Shelf Registration
Statement described in Section 2.1(a) hereof is not filed with the Commission on
or prior to the 120th calendar day following the Closing Date, (b) such Shelf
Registration Statement has not been declared effective on or prior to the 180th
calendar day following the Closing Date or (c) a Shelf Registration Statement
described in Section 2.1(b) hereof with respect to the BSkyB Securities has not
been declared effective on or prior to the date specified in Section 2.1(b)
(each such event referred to in clauses (a), (b) and (c) above, a "Registration
Default"), the interest rate borne by the Debentures shall be increased
("Additional Interest"), (i) initially, by one quarter of one percent (0.25%)
per annum of the principal amount of the Debentures upon the occurrence of a
Registration Default, and thereafter (ii) by an additional one quarter of one
percent (0.25%) per annum if such Registration Default continues for more than
90 days (and such increase will be in addition to the increase set forth in
clause (i) and will take effect beginning on the 91st day of such Registration
Default), and thereafter (iii) by an additional one half of one percent (0.50%)
per annum if such Registration Default continues for more than 180 days (and
such increase will be in addition to the increase set forth in clauses (i) and
(ii) and will take effect beginning on the 181st day of such Registration
Default), and thereafter (iv) by an additional one half of one percent per annum
if such Registration Default continues for more than 270 days (and such increase
will be in addition to the increase set forth in clauses (i), (ii) and (iii) and
will take effect beginning on the 271st day of such Registration Default).
If a Shelf Registration Statement filed pursuant to Section 2.1(a)
or 2.1(b) hereof is declared effective but becomes unusable by the Holders of
Securities covered by the Shelf Registration Statement for any reason, and the
aggregate number of days for which the
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Shelf Registration Statement shall not be usable shall exceed 30 consecutive
days (which period may be increased by up to 15 days in the circumstances
described in the last paragraph of Section 3 of this Agreement) or exceed 90
days during any consecutive twelve-month period (a "Registration Suspension"),
then the interest rate borne by the Debentures shall be increased (which
increased interest shall also be deemed to be "Additional Interest" hereunder),
(i) initially, by one quarter of one percent (0.25%) per annum of the
principal amount of the Debentures upon the occurrence of a Registration
Suspension, and thereafter (ii) by an additional one quarter of one percent
(0.25%) per annum if such Registration Suspension continues for more than 90
days (and such increase will be in addition to the increase set forth in clause
(i) and will take effect beginning on the 91st day of such Registration
Suspension), and thereafter (iii) by an additional one half of one percent
(0.50%) per annum if such Registration Suspension continues for more than 180
days (and such increase will be in addition to the increase set forth in clauses
(i) and (ii) and will take effect beginning on the 181st day of such
Registration Suspension), and thereafter (iv) by an additional one half of one
percent per annum if such Registration Suspension continues for more than 270
days (and such increase will be in addition to the increase set forth in clauses
(i), (ii) and (iii) and will take effect beginning on the 271st day of such
Registration Suspension.
Notwithstanding the foregoing provisions of this Section 2.4, the
maximum aggregate increase in the interest rate as a result of a Shelf
Registration Statement being unusable (inclusive of any interest that accrues on
such Debentures pursuant to the first paragraph of this Section 2.4) will in no
event exceed one and one half of one percent (1.5%) per annum. The Company shall
not be required to pay Additional Interest for more than one Registration
Default or Registration Suspension (but not both) if there are concurrent
Registration Defaults and/or Registration Suspensions.
Accrual of Additional Interest will cease and the interest rate will
revert to the original rate, (i) in the case of a Registration Default,
immediately upon the earlier to occur of (A) the cure of all Registration
Defaults, or (B) the date on which the Securities that would otherwise be
required to be registered on a Shelf Registration Statement, are saleable
pursuant to Rule 144(k) under the Securities Act or any successor provision or
are otherwise freely tradable without registration under the Securities Act; and
(ii) in the case of a Registration Suspension, immediately upon the earlier to
occur of (A) the cure of all Registration Suspensions, or (B) the date on which
the Securities with respect to which a usable Shelf Registration Statement is
required are saleable pursuant to Rule 144(k) under the Securities Act or any
successor provision or are otherwise freely tradable without registration under
the Securities Act.
Additional Interest shall accrue from and including the day
following the applicable Event Date (as defined below), and shall be computed
based on the actual number of days elapsed in each 90-day period in which any
Registration Default or Registration Suspension continues. The Company shall
notify the Trustees within three Business Days after each and every date on
which an event occurs in respect of which Additional Interest is required to be
paid (an "Event Date"). The Additional Interest due shall be payable by the
Company in accordance with the Indenture on each interest payment date to the
holder of Debentures entitled to receive the interest payment to be paid on such
date as set forth in the Indenture.
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Upon any accrual of Additional Interest, additional distributions
will accrue on the Exchangeable Preferred Securities, and upon the due date for
the payment of Additional Interest to the holder of the Debentures, additional
distributions shall be made in respect of the Exchangeable Preferred Securities,
all in accordance with the terms of the Declaration.
2.5 Specific Enforcement. News Corporation, the Company and the Trust
acknowledge that any failure by them to comply with their respective obligations
under Section 2.1 and 2.3 hereof may result in material irreparable injury to
the Initial Purchasers or the Holders for which there is no adequate remedy at
law, that it would not be possible to measure damages for such injuries
precisely and that, in the event of any such failure, the Initial Purchasers or
any Holder may obtain such relief as may be required to specifically enforce
their respective rights under Sections 2.1 and 2.3 hereof.
2.6 Registration of News Securities. News Corporation may, in its sole
discretion, but shall not be obligated to, prepare and file a registration
statement with respect to the News Corporation Securities. Any News Corporation
Securities delivered upon redemption of the Exchangeable Preferred Securities or
the Debentures will be registered under the Securities Act or freely tradable
without such registration.
3. Registration Procedures. In connection with the obligations of News
Corporation, the Company and the Trust with respect to each Shelf Registration
Statement filed pursuant to Section 2.1 hereof, News Corporation, the Company
and the Trust shall use their reasonable best efforts (and News Corporation
shall use its reasonable best efforts to cause BSkyB to use its reasonable best
efforts, solely with respect to the registration of the BSkyB Securities), as
applicable, to:
(a) prepare and file with the SEC a Shelf Registration Statement,
within the relevant time period for such filing as specified in Section 2
hereof, on an appropriate form under the Securities Act, which form (i) shall be
selected by News Corporation, the Company and the Trust, (ii) shall be available
for the distribution of the Registrable Securities in accordance with the plan
of distribution contained therein, including, if applicable, the resale of the
Registrable Securities by the selling Holders thereof, (iii) shall comply as to
form in all material respects with the requirements of the applicable form and
include or incorporate by reference all financial statements required by the SEC
to be filed therewith or incorporated by reference therein, and (iv) shall
comply in all respects with the requirements of Regulation S-T under the
Securities Act;
(b) prepare and file with the SEC such amendments and
post-effective amendments to the Shelf Registration Statement as may be
necessary under applicable law to keep the Shelf Registration Statement
effective for the Effectiveness Period; and cause each Prospectus to be
supplemented by any required prospectus supplement, and as so supplemented to be
filed pursuant to Rule 424 (or any similar provision then in force) under the
Securities Act and comply with the provisions of the Securities Act, the
Exchange Act and the rules and regulations thereunder applicable to them with
respect to the disposition of all Securities covered by the Shelf Registration
Statement during the Effectiveness Period in accordance with the plan of
distribution included in the Prospectus;
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(c) (i) notify each Holder of Registrable Securities (or, in the
case of Registrable Securities held through the Depositary, the participant in
the Depositary through whom such Holder holds), at least five Business Days
prior to filing, that a Shelf Registration Statement with respect to the
Securities is being filed; (ii) furnish to each Holder of Registrable
Securities, without charge, as many copies of each Prospectus, including each
preliminary Prospectus, and any amendment or supplement thereto and such other
documents as such Holder may reasonably request, including financial statements
and schedules and, if the Holder so requests, all exhibits in order to
facilitate the public sale or other disposition of the Registrable Securities;
and (iii) consent to the use of the Prospectus or any amendment or supplement
thereto by each of the selling Holders of Registrable Securities in connection
with the offering and sale of the Registrable Securities covered by the
Prospectus or any amendment or supplement thereto;
(d) use their reasonable best efforts to register or qualify the
Registrable Securities under all applicable state securities or "blue sky" laws
of such jurisdictions by the time the Shelf Registration Statement is declared
effective by the SEC as any Holder of Registrable Securities covered by the
Shelf Registration Statement shall reasonably request in advance of the filing
of the Shelf Registration Statement, and do any and all other acts and things
which may be reasonably necessary or advisable to enable each such Holder to
consummate the disposition in each such jurisdiction of such Registrable
Securities owned by such Holder; provided, however, that none of the Registrants
shall be required to (i) qualify as a foreign corporation or as a dealer in
securities in any jurisdiction where it would not otherwise be required to
qualify but for this Section 3(d), (ii) take any action which would subject any
of them to general service of process or taxation in any such jurisdiction where
it is not then so subject, or (iii) conform their capitalization or the
composition of their assets at the time to the securities or blue sky laws of
such jurisdiction;
(e) notify promptly each selling Holder of Registrable Securities
included in the Prospectus forming part of the Shelf Registration Statement (i)
when the Shelf Registration Statement has become effective and when any
post-effective amendments and supplements thereto become effective (other than
any such post-effective amendment primarily for the purpose of including
additional selling Holders), (ii) of any request by the SEC or any state
securities authority for post-effective amendments (other than any such
post-effective amendment primarily for the purpose of including additional
selling Holders) and supplements to the Shelf Registration Statement and
Prospectus or for additional information after the Registration Statement has
become effective, (iii) of the issuance by the SEC or any state securities
authority of any stop order suspending the effectiveness of the Shelf
Registration Statement or the initiation of any proceedings for that purpose,
(iv) of the happening of any event or the discovery of any facts during the
period the Shelf Registration Statement is effective which makes any statement
made in the Shelf Registration Statement or the related Prospectus untrue in any
material respect or which requires the making of any changes in the Shelf
Registration Statement or Prospectus in order to make the statements therein not
misleading, (v) of the receipt by any Registrant of any notification with
respect to the suspension of the qualification of the Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding for such purpose
and (vi) of any determination by News Corporation, the Company, the Trust or
BSkyB that a post-effective amendment to the Shelf Registration Statement would
be appropriate by reason of a fundamental change in the information set forth in
the Shelf
-11-
Registration Statement (but not including any such post-effective amendment
primarily for the purpose of including additional selling Holders).
(f) make every reasonable effort to obtain the withdrawal of any
order suspending the effectiveness of the Shelf Registration Statement at the
earliest practicable date;
(g) furnish to each selling Holder of Registrable Securities
included in the Prospectus forming part of the Shelf Registration Statement,
without charge, at least one conformed copy of the Shelf Registration Statement
and any post-effective amendment thereto (other than any such post-effective
amendment filed primarily for the purpose of including additional selling
Holders), including financial statements and schedules (without documents
incorporated therein by reference or exhibits thereto, unless requested);
(h) with respect to Registrable Securities represented by a global
certificate, facilitate the timely preparation and delivery of a new global
certificate representing Securities which have been or may be sold through the
Shelf Registration Statement that does not bear any restrictive legends;
(i) upon the occurrence of any event or the discovery of any facts,
such as contemplated by Sections 3(e)(iv) and 3(e)(vi) hereof, as promptly as
practicable after the occurrence of such an event, use its reasonable best
efforts to prepare a supplement or post-effective amendment to the Shelf
Registration Statement or the related Prospectus or any document incorporated
therein by reference or file any other required document so that, as thereafter
delivered to the purchasers of the Securities, such Prospectus will not contain
at the time of such delivery any untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading. At such time as such
public disclosure is otherwise made or the Company determines that such
disclosure is not necessary, in each case to correct any misstatement of a
material fact or to include any omitted material fact, the Company agrees
promptly to notify each Holder of such determination and to furnish each Holder
such number of copies of the Prospectus as amended or supplemented, as such
Holder may reasonably request;
(j) obtain a CUSIP number for each new global certificate referred
to in Section 3(h) above, not later than the effective date of the Shelf
Registration Statement;
(k) (i) cause the Indenture, the Declaration and the Guarantees to
be qualified under the Trust Indenture Act of 1939, as amended (the "TIA"), in
connection with the registration of the Securities, (ii) cooperate with the
Trustees and the Initial Purchasers to effect such changes to the Indenture, the
Declaration and the Guarantees as may be required for such qualification in
accordance with the terms of the TIA, and (iii) execute, and use its reasonable
best efforts to cause the Trustees to execute, all documents as may be required
to effect such changes, and all other forms and documents required to be filed
with the SEC to enable the Indenture, the Declaration and the Guarantees to be
so qualified in a timely manner;
(l) take all other customary and appropriate actions in order to
expedite or facilitate the disposition of the Registrable Securities; provided
that in no event shall
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any Registrant be required to enter into any underwriting agreement with respect
to the disposition of the Registrable Securities;
(m) make available for inspection by Special Counsel and any
accountant or other agent retained by the Majority Holders (collectively, the
"Inspectors"), at the offices where normally kept, during reasonable business
hours, such financial and other records, pertinent corporate documents and
properties of News Corporation, the Company, the Trust and the Subsidiary
Guarantors (collectively, the "Records") as shall be reasonably necessary to
enable them to exercise any applicable due diligence responsibilities, and cause
the officers, directors and employees of News Corporation, the Company, the
Trust and the Subsidiary Guarantors to supply all such information in each case
reasonably requested by any such Inspector to enable them to exercise any such
due diligence responsibilities in connection with such Registration Statement.
Records which any Registrant determines to be confidential or any Records which
they notify the Inspectors are confidential shall not be disclosed by the
Inspectors unless (i) the disclosure of such Records is necessary in connection
with the Inspectors' assertion of any claims or actions or with their
establishment of any defense in an action then pending before a court of
competent jurisdiction, (ii) the release of such Records is ordered pursuant to
a subpoena or other order from a court of competent jurisdiction or (iii) the
information in such Records has been made generally available to the public.
Each selling Holder of such Registrable Securities will be required to agree (in
a written confidentiality agreement satisfactory to the Company) that
information obtained by it as a result of such inspections shall be deemed
confidential and shall not be used by it as the basis for any market
transactions in the securities of the Issuer unless and until such is made
generally available to the public. Each selling Holder of such Registrable
Securities will be required to further agree (in a written confidentiality
agreement satisfactory to the Company) that it will, prior to disclosure of such
Records pursuant to clause (i) or (ii) above, give prompt notice to the Company
and allow the Company and the other Registrants at their expense to undertake
appropriate action to prevent disclosure to the public of the Records deemed
confidential; and
(n) otherwise comply with all applicable rules and regulations of
the SEC and make available to its security holders, as soon as reasonably
practicable, an earnings statement covering at least 12 months which shall
satisfy the provisions of Section 11(a) of the Securities Act and Rule 158
thereunder.
The Company may require each seller of Registrable Securities as to
which any registration is being effected (or is proposed to be effected) to
furnish to the Company such information regarding such seller and the proposed
distribution of such Registrable Securities as the Company may from time to time
reasonably request in writing. Each selling Holder of Registrable Securities as
to which any Shelf Registration is being effected agrees to furnish to the
Company, within 20 days after receipt of a request therefor, all such
information; provided that any information with respect to such Seller necessary
to make the information furnished to the Company by such Holder not materially
misleading shall be furnished as promptly as may be practicable.
The Company may exclude from such registration, or from any
post-effective amendment or Prospectus (including any amendment or supplement
thereof), the Registrable Securities of any seller who fails to furnish any such
information which the
-13-
Company reasonably requires (including, without limitation, the information
included in Annex A to the offering memorandum, dated March 18, 2003, with
respect to the offering of the Exchangeable Preferred Securities) in order for
the Registration Statement to comply with applicable law and SEC policy within a
reasonable time after receiving such request (and, in any event, no later than
20 days after receipt of such request), without the accrual of Additional
Interest on such excluded Registrable Securities, and shall be under no
obligation to include the Registrable Securities of such seller in the Shelf
Registration Statement or to compensate any such seller for any lost income,
interest or other opportunity foregone, or any liability incurred, as a result
of the Company's decision to exclude such seller.
Each selling Holder agrees that, upon receipt of any notice from
the Company of the happening of any event of the kind described in Section
3(e)(ii), 3(e)(iii), 3(e)(iv), 3(e)(v) or 3(e)(vi) hereof, such Holder will
forthwith discontinue disposition of Registrable Securities pursuant to a
Registration Statement until such Holder receives copies of the supplemented or
amended Prospectus contemplated by Section 3(i) hereof or until it is advised in
writing (the "Advice") by the Company that the use of the applicable Prospectus
may be resumed, and, if so directed by the Company, such Holder will deliver to
the Company (at the Company's expense) all copies in such Holder's possession,
other than permanent file copies then in such Holder's possession, of the
Prospectus covering such Registrable Securities current at the time of receipt
of such notice. If the Company shall give any such notice to suspend the
disposition of Registrable Securities, as the case may be, pursuant to a
Registration Statement, each of News Corporation, the Company and the Trust
shall use its reasonable best efforts (and News Corporation shall use its
reasonable best efforts to cause BSkyB to use its reasonable best efforts) to
file as soon as practicable an amendment or supplement to the Registration
Statement and, in the case of an amendment, have such amendment declared
effective as soon as practicable; provided, however, that the Company may
postpone the filing of such amendment or supplement for a period not to extend
beyond the Business Day after the cessation of the circumstances described below
upon which such postponement is based, if the members of the Board of Directors
of any Registrant (and, in the case of the Trust, the Board of Directors of the
Company) determine reasonably and in good faith that such filing would require
disclosure of material information which such entity has a bona fide purpose for
preserving as confidential; provided, further, however, that (i) the exercise of
rights under this provision shall relieve the Company of any obligation to pay
Additional Interest otherwise required under Section 2.4 only if such period
during which the Company may postpone the filing of such amendment or supplement
does not exceed 15 days in any three month period (in addition to the 30
consecutive day period set forth in the second paragraph of Section 2.4) or the
90 day period set forth in such Section 2.4, in which case, a Registration
Suspension shall not be deemed to have occurred during such period and (ii) the
period during which such Registration Statement shall be maintained effective
pursuant to this Agreement shall be extended by the number of days in the period
from and including the date of the giving of such notice to and including the
date when the Company shall have made available to the selling Holders (A)
copies of the supplemented or amended Prospectus necessary to resume such
dispositions or (B) the Advice.
4. Indemnification; Contribution.
(a) News Corporation, the Company and the Trust jointly and
severally agree to indemnify and hold harmless each Holder named as a selling
Holder in any
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Prospectus forming part of a Shelf Registration Statement, and each Person, if
any, who controls any selling Holder named in any such Prospectus within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act as
follows except to the extent otherwise provided in Section 4(b) hereof:
(i) against any and all loss, liability, claim, damage and expense,
as incurred, arising out of any untrue statement or alleged untrue statement of
a material fact contained in the Shelf Registration Statement (or any amendment
or supplement thereto) pursuant to which Securities were registered under the
Securities Act, including all documents incorporated therein by reference, or
the omission or alleged omission therefrom of a material fact required to be
stated therein or necessary to make the statements therein not misleading, or
arising out of any untrue statement or alleged untrue statement of a material
fact contained in any Prospectus (or any amendment or supplement thereto) or the
omission or alleged omission therefrom of a material fact necessary in order to
make the statements therein, in the light of the circumstances under which they
were made, not misleading;
(ii) against any and all loss, liability, claim, damage and
expense, as incurred, to the extent of the aggregate amount paid in settlement
of any litigation, or any investigation or proceeding by any governmental agency
or body, commenced or threatened, or of any claim based upon any such untrue
statement or omission, or any such alleged untrue statement or omission;
provided, however, that (subject to Section 4(d) below) any such settlement is
effected with the written consent of the Company; and
(iii) against any and all expense, as incurred (including the fees
and disbursements of counsel chosen by any indemnified party as provided
therein), reasonably incurred in investigating or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim based upon any such untrue statement
or omission, or any such alleged untrue statement or omission, to the extent
that any such expense is not paid under subparagraph (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to News Corporation,
the Company, the Trust or BSkyB by such Holder expressly for use in the
Registration Statement (or any amendment thereto) or any Prospectus (or any
amendment or supplement thereto), and provided further that News Corporation,
the Company, and the Trust shall not indemnify any Holder from any loss,
liability, claim or damage (or expense incurred in connection therewith) alleged
by any person who purchased Securities from such Holder if the untrue statement,
omission or allegation thereof upon which such loss, liability, claim or damage
is based was made in (i) any preliminary prospectus, if a copy of the Prospectus
(as then amended or supplemented if the Company shall have furnished any
amendments or supplements thereto) was not sent or given by or on behalf of such
Holder to such person at or prior to the written confirmation of the sale of
Securities to such person, and if the Prospectus (as so amended or supplemented)
corrected the untrue statement or omission giving rise to such loss, claim,
damage or liability; (ii) any Prospectus used by such Holder or any Person who
controls such Holder, after such time as any Registrant advised the Holder in
writing that the filing of a post-effective amendment or supplement thereto was
required, except
-15-
the Prospectus as so amended or supplemented, if the Prospectus as amended or
supplemented by such post-effective amendment or supplement would not have given
rise to such loss, liability, claim or damage; or (iii) any Prospectus used
after such time as the obligation hereunder to keep the same current and
effective has expired.
(b) Each Holder severally, but not jointly, agrees to indemnify and
hold harmless the Registrants and the Initial Purchasers, and the other selling
Holders, and each of their respective directors and officers, and each Person,
if any, who controls any of the Registrants, the Initial Purchasers, or any
other selling Holder within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act, against any and all loss, liability, claim,
damage and expense described in the indemnity contained in Section 4(a) hereof,
as incurred, but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made in the Shelf Registration Statement (or any
amendment thereto) or any Prospectus included therein (or any amendment or
supplement thereto) in reliance upon and in conformity with written information
with respect to such Holder furnished to News Corporation, the Company, the
Trust or BSkyB by such Holder expressly for use in the Shelf Registration
Statement (or any amendment thereto) or such Prospectus (or any amendment or
supplement thereto); provided, however, that no such Holder shall be liable for
any claims hereunder in excess of the amount of net proceeds received by such
Holder from the sale of Registrable Securities pursuant to the Registration
Statement.
(c) Each indemnified party shall give written notice as promptly as
reasonably practicable to each indemnifying party of any action or proceeding
commenced against it in respect of which indemnity may be sought hereunder, and
the indemnifying party shall assume the defense thereof, including the
employment of counsel satisfactory to the indemnified party, and the payment of
all expenses. Any omission to so notify an indemnifying party shall not relieve
such indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. Any such indemnified party shall have the right to employ separate
counsel in any such action or proceeding and to participate in the defense
thereof, but the fees and expenses of such separate counsel shall be paid by
such indemnified party unless (a) the indemnifying party has agreed to pay such
fees and expenses or (b) the indemnifying party shall have failed to assume the
defense of such action or proceeding and employ counsel reasonably satisfactory
to the indemnified party in any such action or proceeding or (c) the named
parties to any such action of proceeding (including any impleaded parties)
include both such indemnified party and indemnifying party, and the indemnified
party shall have been advised by its counsel that there may be a conflict of
interest between such indemnified party and indemnifying party in the conduct of
the defense of such action (in which case, if such indemnified party notifies
the indemnifying party in writing that it elects to employ separate counsel at
the expense of the indemnifying party, the indemnifying party shall not have the
right to assume the defense of such action or proceeding on behalf of such
indemnified party), it being understood, however, that the indemnifying party
shall not, in connection with any one such action or proceeding or separate but
substantially similar or related actions or proceedings arising out of the same
general allegations or circumstances, be liable for the reasonable fees and
expenses of more than one separate firm of attorneys (unless the members of such
firm are not admitted to practice in a jurisdiction where an action is pending,
in which case the indemnifying party shall pay the reasonable fees and expenses
of one additional
-16-
firm of attorneys to act as local counsel in such jurisdiction, provided the
services of such counsel are substantially limited to that of appearing as
attorneys of record) at any time for all indemnified parties, which firm shall
be designated in writing by the indemnified party. No indemnifying party shall,
without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 4 (whether or
not the indemnified parties are actual or potential parties thereto), unless
such settlement, compromise or consent (i) includes an unconditional release of
each indemnified party from all liability arising out of such litigation,
investigation, proceeding or claim and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act by or on behalf of any
indemnified party.
(d) If at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel, such indemnifying party agrees that it shall be liable for any
settlement of the nature contemplated by Section 4(a)(ii) hereof effected
without its written consent if (i) such settlement is entered into more than 45
days after receipt by such indemnifying party of the aforesaid request, (ii)
such indemnifying party shall have received notice of the terms of such
settlement at least 30 days prior to such settlement being entered into, and
(iii) such indemnifying party shall not have reimbursed such indemnified party
in accordance with such request prior to the date of such settlement.
Notwithstanding the immediately preceding sentence, if at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
shall not be liable for any settlement of the nature contemplated by Section
4(a)(ii) effected without its prior written consent if such indemnifying party
(i) reimburses such indemnified party in accordance with such request to the
extent it considers such request to be reasonable and (ii) provides written
notice to the indemnified party substantiating the unpaid balance as
unreasonable, in each case prior to the date of such settlement.
(e) In order to provide for just and equitable contribution in
circumstances under which any of the indemnity provisions set forth in this
Section 4 is for any reason held to be unavailable to the indemnified parties
although applicable in accordance with its terms, News Corporation, the Company,
the Trust, the Initial Purchasers and the Holders agree that each indemnifying
party, in lieu of indemnifying such indemnified party, shall contribute to the
amount paid or payable by such indemnified party as a result of such losses,
liabilities, claims, damages or expenses; provided, however, that no Person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any Person that was
not guilty of such fraudulent misrepresentation. As between News Corporation,
the Company and the Trust on the one hand and the Initial Purchasers and the
Holders on the other, such parties shall contribute to such aggregate losses,
liabilities, claims, damages and expenses of the nature contemplated by such
indemnity agreement in such proportion as shall be appropriate to reflect the
relative fault of the Registrants on the one hand and of the Initial Purchasers
and the Holders, as the case may be, on the other hand in connection with the
statements or omissions which resulted in such losses, liabilities, claims,
damages or expenses, as well as any other relevant equitable considerations.
-17-
(f) The relative fault of the Registrants on the one hand and the
Initial Purchasers and the Holders on the other hand shall be determined by
reference to, amount other things, whether any such untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a material
fact relates to information supplied by the Registrants, the Initial Purchasers
or the Holders and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
(g) News Corporation, the Company, the Trust, the Initial
Purchasers and the Holders agree that it would not be just and equitable if
contribution pursuant to this Section 4 were determined by pro rata allocation
or by any other method of allocation which does not take account of the
equitable considerations referred to above in this Section 4.
(h) For purposes of this Section 4, each Person, if any, who
controls a Holder or an Initial Purchaser within the meaning of Section 15 of
the Securities Act or Section 20 of the Exchange Act, shall have the same rights
to contribution as such Holder or Initial Purchaser, and each Person, if any,
who controls any Registrant within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act shall have the same rights to contribution
as any Registrant.
5. Miscellaneous.
5.1 Rule 144 and Rule 144A. For so long as News Corporation is subject
to the reporting requirements of Section 13 or 15 of the Exchange Act, News
Corporation covenants that it will file the reports required to be filed by it
under the Securities Act and Section 13(a) or 15(d) of the Exchange Act and the
rules and regulations adopted by the SEC thereunder. If News Corporation ceases
to be so required to file such reports, News Corporation covenants that it will
upon the request of any Holder of Registrable Securities (a) deliver to a
prospective purchaser such information as is necessary to permit sales pursuant
to Rule 144A under the Securities Act and it will take such further action as
any Holder of Registrable Securities may reasonably request, and (b) take such
further action that is reasonable in the circumstances, in each case, to the
extent required from time to time to enable such Holder to sell its 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, (ii) Rule 144A under the Securities Act,
as such Rule may be amended from time to time, or (iii) any similar rules or
regulations hereafter adopted by the SEC. Notwithstanding the foregoing, nothing
in this Section 5.1 shall be deemed to require News Corporation to register any
of its securities under the Exchange Act.
Upon the reasonable request of any Holder, the Company will deliver to such
Holder a written statement as to whether it has complied with such requirements.
The Company's obligations under this Section 5.1 shall terminate upon the
consummation of the Effectiveness Period.
5.2 No Inconsistent Agreements. The Company has not entered into and
the Company will not after the date of this Agreement enter into any agreement
which is inconsistent with the rights granted to the Holders of Registrable
Securities in this Agreement or otherwise conflicts with the provisions hereof.
The rights granted to the Holders hereunder do not and will
-18-
not for the term of this Agreement in any way conflict with the rights granted
to the initial purchasers of the Company's other issued and outstanding
securities under any such agreements.
5.3 Amendments and Waivers. The provisions of this Agreement, including
the provisions of this sentence, may not be amended, modified or supplemented,
and waivers or consents to departures from the provisions hereof may not be
given unless News Corporation, the Company and the Trust consent thereto in
writing and the written consent of Holders of at least a majority in aggregate
redemption value (calculated as set forth in the definition of Majority Holders
herein) of the then outstanding Registrable Securities affected by such
amendment, modification, supplement, waiver or departure has been obtained.
5.4 Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand delivery, registered
first-class mail, telecopier, or any courier guaranteeing overnight delivery (a)
if to a Holder, at the most current address given by such Holder to the Company
by means of a notice given in accordance with the provisions of this Section
5.4, which address initially is the address set forth in the Purchase Agreement
with respect to the Initial Purchasers; and (b) if to News Corporation, the
Company or the Trust initially at the Company's address set forth in the
Purchase Agreement, and thereafter at such other address of which notice is
given in accordance with the provisions of this Section 5.4.
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five Business
Days after being deposited in the mail, postage prepaid, if mailed; when receipt
is acknowledged, if telecopied; and on the next Business Day if timely delivered
to an air courier guaranteeing overnight delivery.
5.5 Successor and Assigns. This Agreement shall inure to the benefit of
and be binding upon the successors, assigns and transferees of parties,
including, without limitation and without the need for an express assignment,
Holders of the Securities; provided, however, that nothing herein shall be
deemed to permit any assignment, transfer or other disposition of Securities in
violation of the terms of the Declaration, the Purchase Agreement or the
Indenture.
If any transferee of any Holder shall acquire Registrable Securities, in
any manner, whether by operation of law or otherwise, such Registrable
Securities shall be held subject to all of the terms of this Agreement, and by
taking and holding such Registrable Securities such Person shall be conclusively
deemed to have agreed to be bound by and to perform all of the terms and
provisions of this Agreement, including the restrictions on resale set forth in
this Agreement and, if applicable, the Purchase Agreement, and such Person shall
be entitled to receive the benefits hereof.
5.6 Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
5.7 Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
-19-
5.8 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK WITHOUT REGARD TO THE
PRINCIPLES OF CONFLICT OF LAWS THEREOF. SPECIFIED TIMES OF DAY REFER TO NEW YORK
CITY TIME.
5.9 Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
[Signature Page Follows]
-20-
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
THE NEWS CORPORATION LIMITED
By: /s/ Arthur M. Siskind
---------------------------------------
Name: Arthur M. Siskind
Title: Senior Executive Vice President
NEWS AMERICA INCORPORATED
By: /s/ Arthur M. Siskind
---------------------------------------
Name: Arthur M. Siskind
Title: Senior Executive Vice President
NEWS CORPORATION FINANCE TRUST II
By: /s/ Arthur M. Siskind
---------------------------------------
Name: Arthur M. Siskind
Title: Regular Trustee
By: /s/ Paula M. Wardynski
---------------------------------------
Name: Paula M. Wardynski
Title: Regular Trustee
Confirmed and accepted as of the date first above written:
As representatives of the Initial Purchasers
listed on Annex I hereto:
SALOMON SMITH BARNEY INC.
By: /s/ Daniel Richards
------------------------------
Name: Daniel Richards
Title: Managing Director
J.P. MORGAN SECURITIES INC.
By: /s/ J. Andrew Sanford
------------------------------
Name: J. Andrew Sanford
Title: Managing Director
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