<PAGE>
Draft of 6/22/00
Exhibit 1.1
Liberty Digital Inc.
Shares*
Series A Common Stock
($.01 par value)
U.S. Underwriting Agreement
New York, New York
, 2000
As U.S. Representatives of the several
U.S. Underwriters,
c/o __________
_____________
New York, New York ______
Ladies and Gentlemen:
Liberty Digital Inc., a corporation organized under the laws of Delaware
(the "Company", which term, as used herein, includes its predecessors), proposes
to sell to the several U.S. Underwriters, for whom the U.S. Representatives are
acting as representatives, shares of Series A Common Stock, $.01 par
value ("Common Stock") of the Company (said shares to be issued and sold by the
Company being hereinafter called the "U.S. Underwritten Securities"). The
Company also proposes to grant to the U.S. Underwriters an option to purchase up
to additional shares of Common Stock to cover over-allotments (the
"U.S. Option Securities" and together with the U.S. Underwritten Securities, the
"U.S. Securities"). It is understood that the Company and the International
Underwriters are concurrently entering into the International Underwriting
Agreement providing for the sale by the Company of an aggregate of
shares of Common Stock (said shares to be sold by the Company pursuant to the
International Underwriting Agreement being hereinafter called the "International
Underwritten Securities") and providing for the grant to the International
Underwriters of an option to purchase from the Company up to ____ additional
shares of Common Stock (the "International Option Securities"). It is further
understood and agreed that the International Underwriters and the U.S.
Underwriters have entered into an Agreement Between U.S. Underwriters and
International Underwriters dated the date hereof (the "Agreement Between U.S.
Underwriters and International Underwriters"), pursuant to which, among other
things, the International Underwriters may purchase from the U.S. Underwriters a
portion of the U.S. Securities to be sold pursuant to this U.S. Underwriting
Agreement and the U.S. Underwriters may purchase from the International
Underwriters a portion of the International Securities to be sold pursuant to
the International Underwriting Agreement. To the extent there are no additional
U.S. Underwriters listed on Schedule I other than you, the term U.S.
Representatives as used in
-----------------------
* Plus an option to purchase from the Company up to additional U.S.
Securities to cover over-allotments.
<PAGE>
this U.S. Underwriting Agreement shall mean you, as U.S. Underwriters, and the
terms U.S. Representatives and U.S. Underwriters shall mean either the singular
or plural as the context requires. Any reference herein to the Registration
Statement, the Basic Prospectus, any Preliminary Final Prospectus or Final
Prospectus shall be deemed to refer to and include the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 which were filed under the
Exchange Act on or before the Effective Date of the Registration Statement or
the issue date of the Basic Prospectus, such Preliminary Final Prospectus or
such Final Prospectus, as the case may be; and any reference herein to the terms
"amend", "amendment" or "supplement" with respect to the Registration Statement,
the Basic Prospectus, any Preliminary Final Prospectus or Final Prospectus shall
be deemed to refer to and include the filing of any document under the Exchange
Act after the Effective Date of the Registration Statement or the issue date of
the Basic Prospectus, such Preliminary Final Prospectus or such Final
Prospectus, as the case may be, that is deemed to be incorporated therein by
reference. The use of the neuter in this U.S. Underwriting Agreement shall
include the feminine and masculine wherever appropriate. Certain terms used in
this U.S. Underwriting Agreement are defined in Section 17 hereof.
1. Representations and Warranties.
------------------------------
(i) The Company represents and warrants to, and agrees with, each U.S.
Underwriter as set forth below in this Section 1.
(a) The Company meets the requirements for use of Form S-3 under the
Act and has prepared and filed with the Commission a registration statement
(file number _________) on Form S-3, including the related basic
prospectus, for registration under the Act of the offering and sale of the
Securities. The Company may have filed one or more amendments thereto,
including the related Preliminary Final Prospectuses, each of which has
previously been furnished to you. The Company will next file with the
Commission one of the following: (1) after the Effective Date of such
registration statement, final prospectus supplements relating to the
Securities in accordance with Rules 430A and 424(b), (2) prior to the
Effective Date of such registration statement, an amendment to such
registration statement (including the form of final prospectus supplements)
or (3) final prospectuses in accordance with Rules 415 and 424(b). In the
case of clause (1), the Company has included in such registration
statement, as amended at the Effective Date, all information (other than
Rule 430A Information) required by the Act and the rules thereunder to be
included in such registration statement and the Final Prospectuses. As
filed, such final prospectus supplements or such amendment and form of
final prospectus supplements shall contain all Rule 430A Information,
together with all other such required information, and, except to the
extent the U.S. Representatives shall agree in writing to a modification,
shall be in all substantive respects in the form furnished to you prior to
the Execution Time or, to the extent not completed at the Execution Time,
shall contain only such specific additional information and other changes
(beyond that contained in the Basic Prospectus and any Preliminary Final
Prospectus) as the Company has advised you, prior to the Execution Time,
will be included or made therein. The Registration Statement, at the
Execution Time, meets the requirements set forth in Rule 415(a)(1)(x).
2
<PAGE>
It is understood that two forms of prospectuses are to be used in
connection with the offering and sale of the Securities: one form of
prospectus relating to the U.S. Securities, which are to be offered and
sold to United States and Canadian Persons, and one form of prospectus
relating to the International Securities, which are to be offered and sold
to persons other than United States and Canadian Persons. The U.S. Final
Prospectus and the International Final Prospectus are identical except for
the outside front cover page[, the inside front cover page, the discussion
under the headings "Underwriting" and "Certain United States Tax
Consequences to Non-United States Holders"] and the outside back cover
page.
(b) On the Effective Date, the Registration Statement did or will, and
when the Final Prospectuses are first filed (if required) in accordance
with Rule 424(b) and on the Closing Date (as defined in this U.S.
Underwriting Agreement) and on any date on which Option Securities are
purchased, if such date is not the Closing Date (a "settlement date"), each
Final Prospectus (and any supplements thereto) will, comply in all material
respects with the applicable requirements of the Act and the Exchange Act
and the respective rules thereunder; on the Effective Date and at the
Execution Time, the Registration Statement did not or will not contain any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the statements
therein not misleading; and, on the Effective Date, each Final Prospectus,
if not filed pursuant to Rule 424(b), will not, and on the date of any
filing pursuant to Rule 424(b) and on the Closing Date and any settlement
date, each Final Prospectus (together with any supplement thereto) will
not, include any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
provided, however, that the Company makes no representations or warranties
as to the information contained in or omitted from the Registration
Statement, or the Final Prospectuses (or any supplement thereto) in
reliance upon and in conformity with information furnished in writing to
the Company by or on behalf of any Underwriter through the Representatives
specifically for inclusion in the Registration Statement or the Final
Prospectuses (or any supplement thereto).
(c) Each of the Company and its subsidiaries has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the jurisdiction in which it is chartered or organized
with full corporate power and authority to own or lease, as the case may
be, and to operate its properties and conduct its business as described in
the Final Prospectuses, and is duly qualified to do business as a foreign
corporation and is in good standing under the laws of each jurisdiction
which requires such qualification.
(d) All the outstanding shares of capital stock of each subsidiary
have been duly and validly authorized and issued and are fully paid and
nonassessable, and, except as otherwise set forth in the Final
Prospectuses, all outstanding shares of capital stock of the subsidiaries
are owned by the Company either directly or through wholly owned
subsidiaries free and clear of any perfected security interest or any other
security interests, claims, liens or encumbrances.
3
<PAGE>
(e) The Company's authorized equity capitalization is as set forth in
the Final Prospectuses; the capital stock of the Company conforms in all
material respects to the description thereof contained in the Final
Prospectuses; the outstanding shares of Common Stock have been duly and
validly authorized and issued and are fully paid and nonassessable; the
Securities being sold under the Underwriting Agreements by the Company have
been duly and validly authorized, and, when issued and delivered to and
paid for by the U.S. Underwriters pursuant to this U.S. Underwriting
Agreement and the International Underwriters pursuant to the International
Underwriting Agreement, will be fully paid and nonassessable; and the
Securities being sold under the Underwriting Agreements by the Company are
duly listed, and admitted and authorized for trading, subject to official
notice of issuance on the Nasdaq National Market; the certificates for the
Securities are in valid and sufficient form; the holders of outstanding
shares of capital stock of the Company are not entitled to preemptive or
other rights to subscribe for the Securities; and, except as set forth in
the Final Prospectuses, no options, warrants or other rights to purchase,
agreements or other obligations to issue, or rights to convert any
obligations into or exchange any securities for, shares of capital stock of
or ownership interests in the Company are outstanding.
(f) There is no franchise, contract or other document of a character
required to be described in the Registration Statement or the Final
Prospectuses, or to be filed as an exhibit to the Registration Statement,
which is not described or filed as required; and the statements in the
Final Prospectuses under the heading[s] "Certain United States Federal Tax
Consequences to Non-United States Holders", "_____" and "_____", insofar as
such statements summarize legal matters, agreements, documents, or
proceedings discussed therein, are accurate and fair summaries of such
legal matters, agreements, documents or proceedings.
(g) Each of the Underwriting Agreements has been duly authorized,
executed and delivered by the Company and constitutes a valid and binding
obligation of the Company enforceable in accordance with its terms.
(h) The Company is not and, after giving effect to the offering and
sale of the Securities and the application of the proceeds thereof as
described in the Final Prospectuses, will not be an "investment company" or
a company "controlled" by an "investment company", as such terms are
defined in the Investment Company Act of 1940, as amended.
(i) No consent, approval, authorization, filing with or order of any
court or governmental agency or body is required in connection with the
transactions contemplated herein, except such as have been obtained under
the Act and such as may be required under the blue sky laws of any
jurisdiction in connection with the purchase and distribution of the
Securities by the Underwriters in the manner contemplated herein and in the
Final Prospectuses.
(j) Neither the issue and sale of the Securities nor the consummation
of any other of the transactions herein contemplated nor the fulfillment of
the terms hereof will conflict with, result in a breach or violation or
imposition of any lien, charge or
4
<PAGE>
encumbrance upon any property or assets of the Company or any of its
subsidiaries pursuant to, (i) the Charter or by-laws of the Company or any
of its subsidiaries, (ii) the terms of any indenture, contract, lease,
mortgage, deed of trust, note agreement, loan agreement or other agreement,
obligation, condition, covenant or instrument to which the Company or any
of its subsidiaries is a party or bound or to which its or their property
is subject, or (iii) any statute, law, rule, regulation, judgment, order or
decree applicable to the Company or any of its subsidiaries of any court,
regulatory body, administrative agency, governmental body, arbitrator or
other authority having jurisdiction over the Company or any of its
subsidiaries or any of its or their properties.
(k) No holders of securities of the Company have rights to the
registration of such securities under the Registration Statement except for
Liberty Media Corporation, a ____________ corporation ("Liberty Media"),
and Liberty Media has duly waived all rights to the registration of any
securities under the Registration Statement.
(l) The consolidated historical financial statements and schedules of
the Company and its consolidated subsidiaries included in the Final
Prospectuses and the Registration Statement present fairly in all material
respects the financial condition, results of operations and cash flows of
the Company as of the dates and for the periods indicated, comply as to
form with the applicable accounting requirements of the Act and have been
prepared in conformity with generally accepted accounting principles
applied on a consistent basis throughout the periods involved (except as
otherwise noted therein). The selected financial data set forth under the
captions "_________" and "Selected Consolidated Financial Information" in
the Final Prospectuses fairly present, on the basis stated in the Final
Prospectuses, the information included therein. [The pro forma financial
statements included in the Final Prospectuses and the Registration
Statement include assumptions that provide a reasonable basis for
presenting the significant effects directly attributable to the
transactions and events described therein, the related pro forma
adjustments give appropriate effect to those assumptions, and the pro forma
adjustments reflect the proper application of those adjustments to the
historical financial statement amounts in the pro forma financial
statements included in the Final Prospectuses and the Registration
Statement. The pro forma financial statements included in the Final
Prospectuses and the Registration Statement comply as to form in all
material respects with the applicable accounting requirements of Regulation
S-X under the Act and the pro forma adjustments have been properly applied
to the historical amounts in the compilation of those statements.]
(m) No action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the
Company or any of its subsidiaries or its or their property is pending or,
to the best knowledge of the Company, threatened that (i) could reasonably
be expected to have a material adverse effect on the performance of this
Agreement or the consummation of any of the transactions contemplated
hereby or (ii) could reasonably be expected to have a material adverse
effect on the condition (financial or otherwise), prospects, earnings,
business or properties of the Company and its subsidiaries, taken as a
whole, whether or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the Final Prospectuses
(exclusive of any supplement thereto).
5
<PAGE>
(n) Each of the Company and each of its subsidiaries owns or leases
all such properties as are necessary to the conduct of its operations as
presently conducted.
(o) Neither the Company nor any subsidiary is in violation or default
of (i) any provision of its charter or bylaws, (ii) the terms of any
indenture, contract, lease, mortgage, deed of trust, note agreement, loan
agreement or other agreement, obligation, condition, covenant or instrument
to which it is a party or bound or to which its property is subject, or
(iii) any statute, law, rule, regulation, judgment, order or decree of any
court, regulatory body, administrative agency, governmental body,
arbitrator or other authority having jurisdiction over the Company or such
subsidiary or any of its properties, as applicable.
(p) KPMG, LLP, who have certified certain financial statements of the
Company and its consolidated subsidiaries and delivered their report with
respect to the audited consolidated financial statements and schedules
included in the Prospectus, are independent public accountants with respect
to the Company within the meaning of the Act and the applicable published
rules and regulations thereunder.
(q) There are no transfer taxes or other similar fees or charges under
Federal law or the laws of any state, or any political subdivision thereof,
required to be paid in connection with the execution and delivery of this
Agreement or the issuance by the Company or sale by the Company of the
Securities.
(r) The Company has filed all foreign, federal, state and local tax
returns that are required to be filed or has requested extensions thereof
(except in any case in which the failure so to file would not have a
material adverse effect on the condition (financial or otherwise),
prospects, earnings, business or properties of the Company and its
subsidiaries, taken as a whole, whether or not arising from transactions in
the ordinary course of business, except as set forth in or contemplated in
the Final Prospectuses (exclusive of any supplement thereto)) and has paid
all taxes required to be paid by it and any other assessment, fine or
penalty levied against it, to the extent that any of the foregoing is due
and payable, except for any such assessment, fine or penalty that is
currently being contested in good faith or as would not have a material
adverse effect on the condition (financial or otherwise), prospects,
earnings, business or properties of the Company and its subsidiaries, taken
as a whole, whether or not arising from transactions in the ordinary course
of business, except as set forth in or contemplated in the Final
Prospectuses (exclusive of any supplement thereto).
(s) No labor problem or dispute with the employees of the Company or
any of its subsidiaries exists or is threatened or imminent, and the
Company is not aware of any existing or imminent labor disturbance by the
employees of any of its or its subsidiaries' principal suppliers,
contractors or customers, that could have a material adverse effect on the
condition (financial or otherwise), prospects, earnings, business or
properties of the Company and its subsidiaries, taken as a whole, whether
or not arising from transactions in the ordinary course of business, except
as set forth in or contemplated in the Final Prospectuses (exclusive of any
supplement thereto).
6
<PAGE>
(t) The Company and each of its subsidiaries are insured by insurers
of recognized financial responsibility against such losses and risks and in
such amounts as are prudent and customary in the businesses in which they
are engaged; all policies of insurance and fidelity or surety bonds
insuring the Company or any of its subsidiaries or their respective
businesses, assets, employees, officers and directors are in full force and
effect; the Company and its subsidiaries are in compliance with the terms
of such policies and instruments in all material respects; and there are no
claims by the Company or any of its subsidiaries under any such policy or
instrument as to which any insurance company is denying liability or
defending under a reservation of rights clause; neither the Company nor any
such subsidiary has been refused any insurance coverage sought or applied
for; and neither the Company nor any such subsidiary has any reason to
believe that it will not be able to renew its existing insurance coverage
as and when such coverage expires or to obtain similar coverage from
similar insurers as may be necessary to continue its business at a cost
that would not have a material adverse effect on the condition (financial
or otherwise), prospects, earnings, business or properties of the Company
and its subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business, except as set forth in or
contemplated in the Final Prospectuses (exclusive of any supplement
thereto).
(u) No subsidiary of the Company is currently prohibited, directly or
indirectly, from paying any dividends to the Company, from making any other
distribution on such subsidiary's capital stock, from repaying to the
Company any loans or advances to such subsidiary from the Company or from
transferring any of such subsidiary's property or assets to the Company or
any other subsidiary of the Company, except as described in or contemplated
by the Final Prospectuses.
(v) The Company and its subsidiaries possess all licenses,
certificates, permits and other authorizations issued by the appropriate
federal, state or foreign regulatory authorities necessary to conduct their
respective businesses, and neither the Company nor any such subsidiary has
received any notice of proceedings relating to the revocation or
modification of any such certificate, authorization or permit which, singly
or in the aggregate, if the subject of an unfavorable decision, ruling or
finding, would have a material adverse effect on the condition (financial
or otherwise), prospects, earnings, business or properties of the Company
and its subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business, except as set forth in or
contemplated in the Final Prospectuses (exclusive of any supplement
thereto).
(w) The Company and each of its subsidiaries maintain a system of
internal accounting controls sufficient to provide reasonable assurance
that (i) transactions are executed in accordance with management's general
or specific authorizations; (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with generally
accepted accounting principles and to maintain asset accountability; (iii)
access to assets is permitted only in accordance with management's general
or specific authorization; and (iv) the recorded accountability for assets
is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences.
7
<PAGE>
(x) The Company has not taken, directly or indirectly, any action that
has constituted or that was designed to or might reasonably be expected to
cause or result in, under the Exchange Act or otherwise, the stabilization
or manipulation of the price of any security of the Company to facilitate
the sale or resale of the Securities.
(y) The Company and its subsidiaries are (i) in compliance with any
and all applicable foreign, federal, state and local laws and regulations
relating to the protection of human health and safety, the environment or
hazardous or toxic substances or wastes, pollutants or contaminants
("Environmental Laws"), (ii) have received and are in compliance with all
permits, licenses or other approvals required of them under applicable
Environmental Laws to conduct their respective businesses and (iii) have
not received notice of any actual or potential liability for the
investigation or remediation of any disposal or release of hazardous or
toxic substances or wastes, pollutants or contaminants, except where such
non-compliance with Environmental Laws, failure to receive required
permits, licenses or other approvals, or liability would not, individually
or in the aggregate, have a material adverse change in the condition
(financial or otherwise), prospects, earnings, business or properties of
the Company and its subsidiaries, taken as a whole, whether or not arising
from transactions in the ordinary course of business, except as set forth
in or contemplated in the Final Prospectuses (exclusive of any supplement
thereto). Except as set forth in the Final Prospectuses, neither the
Company nor any of the subsidiaries has been named as a "potentially
responsible party" under the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended.
(z) In the ordinary course of its business, the Company periodically
reviews the effect of Environmental Laws on the business, operations and
properties of the Company and its subsidiaries, in the course of which it
identifies and evaluates associated costs and liabilities (including,
without limitation, any capital or operating expenditures required for
clean-up, closure of properties or compliance with Environmental Laws, or
any permit, license or approval, any related constraints on operating
activities and any potential liabilities to third parties). On the basis of
such review, the Company has reasonably concluded that such associated
costs and liabilities would not, singly or in the aggregate, have a
material adverse effect on the condition (financial or otherwise),
prospects, earnings, business or properties of the Company and its
subsidiaries, taken as a whole, whether or not arising from transactions in
the ordinary course of business, except as set forth in or contemplated in
the Final Prospectuses (exclusive of any supplement thereto).
(aa) Each of the Company and its subsidiaries has fulfilled its
obligations, if any, under the minimum funding standards of Section 302 of
the United States Employee Retirement Income Security Act of 1974 ("ERISA")
and the regulations and published interpretations thereunder with respect
to each "plan" (as defined in Section 3(3) of ERISA and such regulations
and published interpretations) in which employees of the Company and its
subsidiaries are eligible to participate and each such plan is in
compliance in all material respects with the presently applicable
provisions of ERISA and such regulations and published interpretations. The
Company and its subsidiaries have not incurred any unpaid liability to the
Pension Benefit Guaranty Corporation (other than
8
<PAGE>
for the payment of premiums in the ordinary course) or to any such plan
under Title IV of ERISA.
(bb) The subsidiaries listed on Exhibit B attached hereto are the only
significant subsidiaries of the Company as defined by Rule 1-02 of
Regulation S-X (the "Subsidiaries").
(cc) The Company and its subsidiaries own, possess, license or have
other rights to use, on reasonable terms, all patents, patent applications,
trade and service marks, trade and service mark registrations, trade names,
copyrights, licenses, inventions, trade secrets, technology, know-how and
other intellectual property (collectively, the "Intellectual Property")
necessary for the conduct of the Company's business as now conducted or as
proposed in the Prospectus to be conducted. There are no rights of third
parties to any such Intellectual Property; (b) there is no material
infringement by third parties of any such Intellectual Property; (c) there
is no pending or threatened action, suit, proceeding or claim by others
challenging the Company's rights in or to any such Intellectual Property,
and the Company is unaware of any facts which would form a reasonable basis
for any such claim; (d) there is no pending or threatened action, suit,
proceeding or claim by others challenging the validity or scope of any such
Intellectual Property, and the Company is unaware of any facts which would
form a reasonable basis for any such claim; (e) there is no pending or
threatened action, suit, proceeding or claim by others that the Company
infringes or otherwise violates any patent, trademark, copyright, trade
secret or other proprietary rights of others, and the Company is unaware of
any other fact which would form a reasonable basis for any such claim; (f)
there is no U.S. patent or published U.S. patent application which contains
claims that dominate or may dominate any Intellectual Property described in
the Final Prospectuses as being owned by or licensed to the Company or that
interferes with the issued or pending claims of any such Intellectual
Property; and (g) there is no prior art of which the Company is aware that
may render any U.S. patent held by the Company invalid or any U.S. patent
application held by the Company unpatentable which has not been disclosed
to the U.S. Patent and Trademark Office.
(dd) The statements contained in the Final Prospectuses under the
captions "____________" and "____________", insofar as such statements
summarize legal matters, agreements, documents, or proceedings discussed
therein, are accurate and fair summaries of such legal matters, agreements,
documents or proceedings.
(ee) Except as disclosed in the Registration Statement and the Final
Prospectuses, the Company (i) does not have any material lending or other
relationship with any bank or lending affiliate of any Underwriter and (ii)
does not intend to use any of the proceeds from the sale of the Securities
hereunder to repay any outstanding debt owed to any affiliate of any
Underwriter.
(ff) The Company meets and, on the date the Registration Statement was
first filed with the Commission and on each Effective Date, the Company met
the requirements for use of Form S-3 under the Act as those requirements
were in effect immediately prior to October 21, 1992.
9
<PAGE>
Any certificate signed by any officer of the Company and delivered to the
Representatives or counsel for the Underwriters in connection with the offering
of the Securities shall be deemed a representation and warranty by the Company,
as to matters covered thereby, to each U.S. Underwriter.
2. Purchase and Sale.
-----------------
(a) Subject to the terms and conditions and in reliance upon the
representations and warranties in this U.S. Underwriting Agreement set forth,
the Company agrees to sell to each U.S. Underwriter, and each U.S. Underwriter
agrees, severally and not jointly, to purchase from the Company, at a purchase
price of $ per share, the amount of the U.S. Underwritten Securities set forth
opposite such U.S. Underwriter's name in Schedule I to this U.S. Underwriting
Agreement.
(b) Subject to the terms and conditions and in reliance upon the
representations and warranties set forth in this U.S. Underwriting Agreement,
the Company hereby grants an option to the several U.S. Underwriters to
purchase, severally and not jointly, up to U.S. Option Securities at the same
purchase price per share as the U.S. Underwriters shall pay for the U.S.
Underwritten Securities. Said option may be exercised only to cover
over-allotments in the sale of the U.S. Underwritten Securities by the U.S.
Underwriters. Said option may be exercised in whole or in part at any time (but
not more than once) on or before the 30th day after the date of the U.S. Final
Prospectus upon written or telegraphic notice by the U.S. Representatives to the
Company setting forth the number of shares of the U.S. Option Securities as to
which the several U.S. Underwriters are exercising the option and the settlement
date. The number of U.S. Option Securities to be purchased by each U.S.
Underwriter shall be the same percentage of the total number of shares of the
U.S. Option Securities to be purchased by the several U.S. Underwriters as such
U.S. Underwriter is purchasing of the U.S. Underwritten Securities, subject to
such adjustments as you in your absolute discretion shall make to eliminate any
fractional shares.
3. Delivery and Payment. Delivery of and payment for the U.S. Underwritten
--------------------
Securities and the U.S. Option Securities (if the option provided for in Section
2(b) hereof shall have been exercised on or before the third Business Day prior
to the Closing Date) shall be made at 10:00 AM, New York City time, on , 20 , or
at such time on such later date not more than three Business Days after the
foregoing date as the U.S. Representatives and the International Representatives
shall designate, which date and time may be postponed by agreement among the
U.S. Representatives, the International Representatives and the Company or as
provided in Section 9 hereof (such date and time of delivery and payment for the
U.S. Securities being called in this U.S. Underwriting Agreement the "Closing
Date"). Delivery of the U.S. Securities shall be made to the U.S.
Representatives for the respective accounts of the several U.S. Underwriters
against payment by the several U.S. Underwriters through the U.S.
Representatives of the respective aggregate purchase prices of the U.S.
Securities being sold by the Company to or upon the order of the Company by wire
transfer payable in same-day funds to the accounts specified by the Company.
Delivery of the U.S. Underwritten Securities and the U.S. Option Securities
shall be made through the facilities of The Depository Trust Company unless the
U.S. Representatives shall otherwise instruct.
10
<PAGE>
Delivery of the Securities shall be made at such location as __________
shall reasonably designate at least one Business Day in advance of the Closing
Date. Certificates for the Securities shall be registered in such names and in
such denominations as __________ may request not less than two Business Days in
advance of the Closing Date.
The Company agrees to have the Securities available for inspection,
checking and packaging by the Representatives in New York, New York, not later
than 1:00 PM on the Business Day prior to the Closing Date.
If the option provided for in Section 2(b) hereof is exercised after the
third Business Day prior to the Closing Date, the Company will deliver the U.S.
Option Securities (at the expense of the Company) to the U.S. Representatives,
at __________, New York, New York, on the date specified by the U.S.
Representatives (which shall be within three Business Days after exercise of
said option) certificates for the U.S. Option Securities in such names and
denominations as the U.S. Representatives shall have requested for the
respective accounts of the several U.S. Underwriters, against payment by the
several U.S. Underwriters through the U.S. Representatives of the purchase price
thereof to or upon the order of the Company by wire transfer payable in same-day
funds to the accounts specified by the Company. If settlement for the U.S.
Option Securities occurs after the Closing Date, the Company will deliver to the
U.S. Representatives on the settlement date for the U.S. Option Securities, and
the obligation of the U.S. Underwriters to purchase the U.S. Option Securities
shall be conditioned upon receipt of, supplemental opinions, certificates and
letters confirming as of such date the opinions, certificates and letters
delivered on the Closing Date pursuant to Section 6 hereof.
It is understood and agreed that the Closing Date shall occur
simultaneously with the "Closing Date" under the International Underwriting
Agreement, and that the settlement date, if any, shall occur simultaneously with
the "settlement date" under the International Underwriting Agreement.
4. Offering by Underwriters. It is understood that the several U.S.
------------------------
Underwriters propose to offer the U.S. Securities for sale to the public as set
forth in the U.S. Final Prospectus.
5. Agreements.
----------
(i) The Company agrees with the several U.S. Underwriters that:
(a) The Company will use its best efforts to cause the Registration
Statement, if not effective at the Execution Time, and any amendment
thereof, to become effective. Prior to the termination of the offering of
the Securities, the Company will not file any amendment of the Registration
Statement or supplement (including the Final Prospectuses and any
Preliminary Final Prospectus) to the Basic Prospectus or any Rule 462(b)
Registration Statement unless the Company has furnished you a copy for your
review prior to filing and will not file any such proposed amendment or
supplement to which you reasonably object. Subject to the foregoing
sentence, if the Registration Statement has become or becomes effective
pursuant to Rule 430A, or filing of the Final Prospectuses is otherwise
required under Rule 424(b), the Company will cause the Final Prospectuses,
properly completed, and any supplement thereto to be filed with the
11
<PAGE>
Commission pursuant to the applicable paragraph of Rule 424(b) within the
time period prescribed and will provide evidence satisfactory to the U.S.
Representatives of such timely filing. The Company will promptly advise the
U.S. Representatives (1) when the Registration Statement, if not effective
at the Execution Time, shall have become effective, (2) when the Final
Prospectuses, and any supplement thereto, shall have been filed (if
required) with the Commission pursuant to Rule 424(b) or when any Rule
462(b) Registration Statement shall have been filed with the Commission,
(3) when, prior to termination of the offering of the Securities, any
amendment to the Registration Statement shall have been filed or become
effective, (4) of any request by the Commission or its staff for any
amendment of the Registration Statement, or any Rule 462(b) Registration
Statement, or for any supplement to the Final Prospectuses or for any
additional information, (5) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or the
institution or threatening of any proceeding for that purpose and (6) of
the receipt by the Company of any notification with respect to the
suspension of the qualification of the Securities for sale in any
jurisdiction or the institution or threatening of any proceeding for such
purpose. The Company will use its best efforts to prevent the issuance of
any such stop order or the suspension of any such qualification and, if
issued, to obtain as soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Securities is
required to be delivered under the Act, any event occurs as a result of
which either of the Final Prospectuses as then supplemented would include
any untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein in the light of the circumstances
under which they were made not misleading, or if it shall be necessary to
amend the Registration Statement or supplement either of the Final
Prospectuses to comply with the Act or the rules thereunder, the Company
promptly will (1) notify the U.S. Representatives of any such event; (2)
prepare and file with the Commission, subject to the second sentence of
paragraph (i)(a) of this Section 5, an amendment or supplement which will
correct such statement or omission or effect such compliance; and (3)
supply any supplemented Final Prospectuses to you in such quantities as you
may reasonably request.
(c) As soon as practicable, the Company will make generally available
to its security holders and to the U.S. Representatives an earnings
statement or statements of the Company and its subsidiaries which will
satisfy the provisions of Section 11(a) of the Act and Rule 158 under the
Act.
(d) The Company will furnish to the U.S. Representatives and counsel
for the U.S. Underwriters signed copies of the Registration Statement
(including exhibits thereto) and to each other U.S. Underwriter a copy of
the Registration Statement (without exhibits thereto) and, so long as
delivery of a prospectus by an U.S. Underwriter or dealer may be required
by the Act, as many copies of each U.S. Preliminary Final Prospectus and
the U.S. Final Prospectus and any supplement thereto as the U.S.
Representatives may reasonably request.
12
<PAGE>
(e) The Company will arrange, if necessary, for the qualification of
the Securities for sale under the laws of such jurisdictions as the U.S.
Representatives may designate and will maintain such qualifications in
effect so long as required for the distribution of the U.S. Securities;
provided that in no event shall the Company be obligated to qualify to do
business in any jurisdiction where it is not now so qualified or to take
any action that would subject it to service of process in suits, other than
those arising out of the offering or sale of the Securities, in any
jurisdiction where it is not now so subject.
(f) The Company will not, without the prior written consent of
__________, offer, sell, contract to sell, pledge, or otherwise dispose of,
(or enter into any transaction which is designed to, or might reasonably be
expected to, result in the disposition (whether by actual disposition or
effective economic disposition due to cash settlement or otherwise) by the
Company or any affiliate of the Company or any person in privity with the
Company or any affiliate of the Company) directly or indirectly, including
the filing (or participation in the filing) of a registration statement
with the Commission in respect of, or establish or increase a put
equivalent position or liquidate or decrease a call equivalent position
within the meaning of Section 16 of the Exchange Act, any other shares of
Common Stock or any securities convertible into, or exercisable, or
exchangeable for, shares of Common Stock; or publicly announce an intention
to effect any such transaction, for a period of ___ days after the date of
this U.S. Underwriting Agreement, provided, however, that the Company may
issue and sell Common Stock pursuant to any employee stock option plan,
stock ownership plan or dividend reinvestment plan of the Company in effect
at the Execution Time and the Company may issue Common Stock issuable upon
the conversion of securities or the exercise of warrants outstanding at the
Execution Time.
(g) The Company will not take, directly or indirectly, any action
designed to or which has constituted or which might reasonably be expected
to cause or result, under the Exchange Act or otherwise, in stabilization
or manipulation of the price of any security of the Company to facilitate
the sale or resale of the Securities.
(h) The Company agrees to pay the costs and expenses relating to the
following matters: (i) the preparation, printing or reproduction and filing
with the Commission of the Registration Statement (including financial
statements and exhibits thereto), each Preliminary Final Prospectus, each
Final Prospectus, and each amendment or supplement to any of them; (ii) the
printing (or reproduction) and delivery (including postage, air freight
charges and charges for counting and packaging) of such copies of the
Registration Statement, each Preliminary Final Prospectus, each Final
Prospectus, and all amendments or supplements to any of them, as may, in
each case, be reasonably requested for use in connection with the offering
and sale of the Securities; (iii) the preparation, printing,
authentication, issuance and delivery of certificates for the Securities,
including any stamp or transfer taxes in connection with the original
issuance and sale of the Securities; (iv) the printing (or reproduction)
and delivery of this U.S. Underwriting Agreement and the International
Underwriting Agreement, any blue sky memorandum and all other agreements or
documents printed (or reproduced) and delivered in connection with the
offering of the Securities; (v) the registration of the
13
<PAGE>
Securities under the Exchange Act and the listing of the Securities on the
Nasdaq National Market; (vi) any registration or qualification of the
Securities for offer and sale under the securities or blue sky laws of the
several states (including filing fees and the reasonable fees and expenses
of counsel for the Underwriters relating to such registration and
qualification); (vii) any filings required to be made with the National
Association of Securities Dealers, Inc. (including filing fees and the
reasonable fees and expenses of counsel for the Underwriters relating to
such filings); (viii) the transportation and other expenses incurred by or
on behalf of Company representatives in connection with presentations to
prospective purchasers of the Securities; (ix) the fees and expenses of the
Company's accountants and the fees and expenses of counsel (including local
and special counsel) for the Company; and (x) all other costs and expenses
incident to the performance by the Company of their obligations under the
Underwriting Agreements.
(ii) Each U.S. Underwriter agrees that (i) it is not purchasing any of the
U.S. Securities for the account of anyone other than a United States or Canadian
Person, (ii) it has not offered or sold, and will not offer or sell, directly or
indirectly, any of the U.S. Securities or distribute any U.S. Final Prospectus
to any person outside the United States or Canada, or to anyone other than a
United States or Canadian Person, and (iii) any dealer to whom it may sell any
of the U.S. Securities will represent that it is not purchasing for the account
of anyone other than a United States or Canadian Person and agree that it will
not offer or resell, directly or indirectly, any of the U.S. Securities outside
the United States or Canada, or to anyone other than a United States or Canadian
Person or to any other dealer who does not so represent and agree; provided,
however, that the foregoing shall not restrict (A) purchases and sales between
the International Underwriters on the one hand and the U.S. Underwriters on the
other hand pursuant to the Agreement Between U.S. Underwriters and International
Underwriters, (B) stabilization transactions contemplated under the Agreement
Between U.S. Underwriters and International Underwriters, conducted through
__________ (or through the U.S. Representatives and International
Representatives) as part of the distribution of the Securities, and (C) sales to
or through (or distributions of U.S. Final Prospectuses or U.S. Preliminary
Final Prospectuses to) United States or Canadian Persons who are investment
advisors, or who otherwise exercise investment discretion, and who are
purchasing for the account of anyone other than a United States or Canadian
Person.
(iii) The agreements of the U.S. Underwriters set forth in paragraph (ii)
of this Section 5 shall terminate upon the earlier of the following events:
(a) a mutual agreement of the U.S. Representatives and the
International Representatives to terminate the selling restrictions set
forth in paragraph (ii) of this Section 5 and in Section 5(ii) of the
International Underwriting Agreement; or
(b) the expiration of a period of 30 days after the Closing Date,
unless (A) the U.S. Representatives shall have given notice to the Company
and the International Representatives that the distribution of the U.S.
Securities by the U.S. Underwriters has not yet been completed, or (B) the
International Representatives shall have given notice to the Company and
the U.S. Representatives that the distribution of the International
Securities by the International Underwriters has not yet been completed. If
such notice by the U.S. Representatives or the International
Representatives is given, the agreements
14
<PAGE>
set forth in such paragraph (ii) shall survive until the earlier of (1) the
event referred to in clause (a) of this subsection (iii) or (2) the
expiration of an additional period of 30 days from the date of any such
notice.
6. Conditions to the Obligations of the U.S. Underwriters. The obligations
------------------------------------------------------
of the U.S. Underwriters to purchase the U.S. Underwritten Securities and the
U.S. Option Securities, as the case may be, shall be subject to the accuracy of
the representations and warranties on the part of the Company contained in this
U.S. Underwriting Agreement as of the Execution Time, the Closing Date and any
settlement date pursuant to Section 3 hereof, to the accuracy of the statements
of the Company made in any certificates pursuant to the provisions hereof, to
the performance by the Company of its obligations under this U.S. Underwriting
Agreement and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to
the Execution Time, unless the U.S. Representatives and the International
Representatives agree in writing to a later time, the Registration
Statement will become effective not later than (i) 6:00 PM New York City
time on the date of determination of the public offering price, if such
determination occurred at or prior to 3:00 PM New York City time on such
date or (ii) 9:30 AM on the Business Day following the day on which the
public offering price was determined, if such determination occurred after
3:00 PM New York City time on such date; if filing of either of the Final
Prospectuses, or any supplement thereto, is required pursuant to Rule
424(b), the Final Prospectuses, and any such supplement, will be filed in
the manner and within the time period required by Rule 424(b); and no stop
order suspending the effectiveness of the Registration Statement shall have
been issued and no proceedings for that purpose shall have been instituted
or threatened.
(b) The Company shall have requested and caused __________, counsel
for the Company, to have furnished to the Representatives their opinion,
dated the Closing Date and addressed to the Representatives, to the effect
that:
(i) each of the Company and DMX Music, Inc. and ___________
(individually a "Subsidiary" and collectively the "Subsidiaries") has
been duly incorporated and is validly existing as a corporation in
good standing under the laws of the jurisdiction in which it is
chartered or organized, with full corporate power and authority to own
or lease, as the case may be, and to operate its properties and
conduct its business as described in the Final Prospectuses, and is
duly qualified to do business as a foreign corporation and is in good
standing under the laws of each jurisdiction which requires such
qualification;
(ii) all the outstanding shares of capital stock of each
Subsidiary have been duly and validly authorized and issued and are
fully paid and nonassessable, and, except as otherwise set forth in
the Final Prospectuses, all outstanding shares of capital stock of the
Subsidiaries are owned by the Company either directly or through
wholly owned subsidiaries free and clear of any perfected security
interest and, to the knowledge of such counsel, after due inquiry, any
other security interest, claim, lien or encumbrance;
15
<PAGE>
(iii) the Company's authorized equity capitalization is as set
forth in the Final Prospectuses; the capital stock of the Company
conforms in all material respects to the description thereof contained
in the Final Prospectuses; the outstanding shares of Common Stock have
been duly and validly authorized and issued and are fully paid and
nonassessable; the Securities being sold under the Underwriting
Agreements by the Company have been duly and validly authorized, and,
when issued and delivered to and paid for by the U.S. Underwriters
pursuant to this U.S. Underwriting Agreement and by the International
Underwriters pursuant to the International Underwriting Agreement,
will be fully paid and nonassessable; and the Securities being sold
under the Underwriting Agreements by the Company are duly listed, and
admitted and authorized for trading, subject to official notice of
issuance, on the Nasdaq National Market; the certificates for the
Securities are in valid and sufficient form; the holders of
outstanding shares of capital stock of the Company are not entitled to
preemptive or other rights to subscribe for the Securities; and,
except as set forth in the Final Prospectuses, no options, warrants or
other rights to purchase, agreements or other obligations to issue, or
rights to convert any obligations into or exchange any securities for,
shares of capital stock of or ownership interests in the Company are
outstanding;
(iv) to the knowledge of such counsel, there is no pending or
threatened action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the
Company or any of its subsidiaries or its or their property of a
character required to be disclosed in the Registration Statement which
is not adequately disclosed in the Final Prospectuses, and there is no
franchise, contract or other document of a character required to be
described in the Registration Statement or Final Prospectuses, or to
be filed as an exhibit thereto, which is not described or filed as
required; the descriptions contained in the Final Prospectuses under
the heading "Certain United States Federal Tax Consequences to
Non-United States Holders" constitute fair summaries of those statutes
and regulations discussed therein applicable to the offering of the
Securities and the statements in the Final Prospectuses under the
heading[s] "_____" and "_____", insofar as such statements summarize
legal matters, agreements, documents, or proceedings discussed
therein, are accurate and fair summaries of such legal matters,
agreements, documents or proceedings;
(v) the Registration Statement has become effective under the
Act; any required filing of the Basic Prospectus, any Preliminary
Final Prospectus and Final Prospectus, and any supplements thereto,
pursuant to Rule 424(b) has been made in the manner and within the
time period required by Rule 424(b); to the knowledge of such counsel,
no stop order suspending the effectiveness of the Registration
Statement has been issued, no proceedings for that purpose have been
instituted or threatened and the Registration Statement and each of
the Final Prospectuses (other than the financial statements and other
financial information contained therein, as to which such counsel need
express no opinion) comply as to form in all material respects with
the applicable requirements of the Act and the
16
<PAGE>
rules thereunder; and such counsel has no reason to believe that on
the Effective Date or the date the Registration Statement was last
deemed amended the Registration Statement contained any untrue
statement of a material fact or omitted to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading or that the Final Prospectuses as of the date
thereof and on the Closing Date included or include any untrue
statement of a material fact or omitted or omit to state a material
fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading (in each
case, other than the financial statements and other financial
information contained therein, as to which such counsel need express
no opinion);
(vi) Each of the Underwriting Agreements has been duly
authorized, executed and delivered by the Company;
(vii) no consent, approval, authorization, filing with or order
of any court or governmental agency or body is required in connection
with the transactions contemplated in the Underwriting Agreements,
except such as have been obtained under the Act and such as may be
required under the blue sky laws of any jurisdiction [and the
securities laws of any jurisdiction outside the United States] in
connection with the purchase and distribution of the Securities by the
Underwriters in the manner contemplated in and the Underwriting
Agreements and in the Final Prospectuses and such other approvals
(specified in such opinion) as have been obtained;
(viii) neither the issue and sale of the Securities, nor the
consummation of any other of the transactions contemplated in the
Underwriting Agreements nor the fulfillment of the terms of the
Underwriting Agreements will conflict with, result in a breach or
violation of or imposition of any lien, charge or encumbrance upon any
property or assets of the Company or its subsidiaries pursuant to, (i)
the Charter or by-laws of the Company or its subsidiaries, (ii) the
terms of any indenture, contract, lease, mortgage, deed of trust, note
agreement, loan agreement or other agreement, obligation, condition,
covenant or instrument to which the Company or its subsidiaries is a
party or bound or to which its or their property is subject, or (iii)
any statute, law, rule, regulation, judgment, order or decree
applicable to the Company or its subsidiaries of any court, regulatory
body, administrative agency, governmental body, arbitrator or other
authority having jurisdiction over the Company or its subsidiaries or
any of its or their properties; and
(ix) no holders of securities of the Company have rights to the
registration of such securities under the Registration Statement
except for Liberty Media, and Liberty Media has duly waived all rights
to the registration of any securities under the Registration
Statement.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the State
of or the Federal laws of
17
<PAGE>
the United States, to the extent they deem proper and specified in such
opinion, upon the opinion of other counsel of good standing whom they
believe to be reliable and who are satisfactory to counsel for the
Underwriters and (B) as to matters of fact, to the extent they deem proper,
on certificates of responsible officers of the Company and public
officials. Reference to the Final Prospectuses in this paragraph (b)
include any supplements thereto at the Closing Date.
(c) The Company shall have requested and caused __________, counsel
for the Company, to have furnished to the Representatives their opinion,
dated the Closing Date and addressed to the Representatives, to the effect
that:
(i) The Company is not and, after giving effect to the offering
and sale of the Securities and the application of the proceeds thereof
as described in the Final Prospectuses, will not be, an "investment
company" or a company "controlled" by an "investment company", as such
terms are defined in the Investment Company Act of 1940, as amended;
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the State
of ! or the Federal laws of the United States, to the extent they deem
proper and specified in such opinion, upon the opinion of other counsel of
good standing whom they believe to be reliable and who are satisfactory to
counsel for the Underwriters and (B) as to matters of fact, to the extent
they deem proper, on certificates of responsible officers of the Company
and public officials. Reference to the Final Prospectuses in this paragraph
(c) include any supplements thereto at the Closing Date.
(d) The Representatives shall have received from __________, counsel
for the Underwriters, such opinion or opinions, dated the Closing Date and
addressed to the Representatives, with respect to the issuance and sale of
the Securities, the Registration Statement, the Final Prospectuses
(together with any supplement thereto) and other related matters as the
Representatives may reasonably require, and the Company shall have
furnished to such counsel such documents as they request for the purpose of
enabling them to pass upon such matters.
(e) The Company shall have furnished to the Representatives a
certificate of the Company, signed by the Chairman of the Board or the
President and the principal financial or accounting officer of the Company,
dated the Closing Date, to the effect that the signers of such certificate
have carefully examined the Registration Statement, the Final Prospectuses,
any supplements to the Final Prospectuses and the Underwriting Agreements
and that:
(i) the representations and warranties of the Company in the
Underwriting Agreements are true and correct on and as of the Closing
Date with the same effect as if made on the Closing Date and the
Company has complied with all the agreements and satisfied all the
conditions on its part to be per-formed or satisfied at or prior to
the Closing Date;
18
<PAGE>
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or, to the Company's knowledge,
threatened; and
(iii) since the date of the most recent financial statements
included in the Final Prospectuses (exclusive of any supplement
thereto), there has been no material adverse effect on the condition
(financial or otherwise), prospects, earnings, business or properties
of the Company and its subsidiaries, taken as a whole, whether or not
arising from transactions in the ordinary course of business, except
as set forth in or contemplated in the Final Prospectuses (exclusive
of any supplement thereto).
(f) The Company shall have requested and caused KPMG LLP to have
furnished to the Representatives letters, dated respectively as of the
Execution Time and as of the Closing Date, in form and substance
satisfactory to the Representatives, confirming that they are independent
accountants within the meaning of the Act and the applicable rules and
regulations adopted by the Commission thereunder and that they have
performed a review of the unaudited interim financial information of the
Company for the !-month period ended !, 2000 and as at !, 2000, in
accordance with Statement on Auditing Standards No. 71, and stating in
effect that:
(i) in their opinion the audited financial statements and
financial statement schedules [and pro forma financial statements]
included or incorporated by reference in the Registration Statement
and the Final Prospectuses and reported on by them comply as to form
in all material respects with the applicable accounting requirements
of the Act and the related rules and regulations adopted by the
Commission;
(ii) on the basis of a reading of the latest unaudited financial
statements made available by the Company and its subsidiaries; their
limited review, in accordance with standards established under
Statement on Auditing Standards No. 71, of the unaudited interim
financial information for the ____________-month period ended
____________, 20__, and as at ____________, 20__; carrying out certain
specified procedures (but not an examination in accordance with
generally accepted auditing standards) which would not necessarily
reveal matters of significance with respect to the comments set forth
in such letter; a reading of the minutes of the meetings of the
stockholders, directors and ____________ committees of the Company and
the Subsidiaries; and inquiries of certain officials of the Company
who have responsibility for financial and accounting matters of the
Company and its subsidiaries as to transactions and events subsequent
to _________, ____, nothing came to their attention which caused them
to believe that:
(1) any unaudited financial statements included or
incorporated by reference in the Registration Statement and the
Final Prospectuses do not comply as to form in all material
respects with applicable accounting requirements of the Act and
with the related rules and regulations adopted
19
<PAGE>
by the Commission with respect to registration statements on Form
S-3; and said unaudited financial statements are not in
conformity with generally accepted accounting principles applied
on a basis substantially consistent with that of the audited
financial statements included or incorporated by reference in the
Registration Statement and the Final Prospectuses;
(2) with respect to the period subsequent to _____________,
20__, there were any changes, at a specified date not more than
five days prior to the date of the letter, in the long term debt
or total liabilities of the Company and its subsidiaries or the
redeemable preferred stock or other capital stock of the Company
or decreases in net current assets or total stockholders' equity
of the Company as compared with the amounts shown on the
____________, 2000, consolidated balance sheet included in the
Registration Statement and the Final Prospectuses, or for the
period from ____________, 2000 to such specified date there were
any decreases, as compared with the corresponding period in the
preceding year in revenues from affiliated parties, revenues from
related parties, net operating income, income from continuing
operations, income from continuing operations before income taxes
or in total or per share amounts of income before extraordinary
items or net income of the Company and its subsidiaries, except
in all instances for changes or decreases set forth in such
letter, in which case the letter shall be accompanied by an
explanation by the Company as to the significance thereof unless
said explanation is not deemed necessary by the Representatives,
it being understood that the term "decreases" as used in this
paragraph shall include an increase in the absolute value of a
negative line item number and the change from a positive line
item number to a negative number;
(3) the information included in the Registration Statement
and Final Prospectuses in response to Regulation S-K, Item 301
(Selected Financial Data), Item 302 (Supplementary Financial
Information), Item 402 (Executive Compensation) and Item 503(d)
(Ratio of Earnings to Fixed Charges) is not in conformity with
the applicable disclosure requirements of Regulation S-K; and
(4) [The unaudited amounts of [describe the capsule
information and its location] do not agree with the amounts set
forth in the unaudited financial statements for the same periods
or were not determined on a basis substantially consistent with
that of the corresponding amounts in the audited financial
statements included in the Registration Statement and the Final
Prospectuses; and]
(iii) they have performed certain other specified procedures as a
result of which they determined that certain information of an
accounting, financial or statistical nature (which is limited to
accounting, financial or statistical information derived from the
general accounting records of the Company and its
20
<PAGE>
subsidiaries) set forth in the Registration Statement and the Final
Prospectuses, including the information set forth under the captions
"___________" and "___________" in the Final Prospectuses, and the
information included in the Company's Quarterly Report[s] on Form 10-Q
for the quarter[s] ended ___________ and in the Company's Annual
Report on Form 10-K for the year ended December 31, ____ under the
heading "___________" incorporated by reference in the Final
Prospectuses, agrees with the accounting records of the Company and
its subsidiaries, excluding any questions of legal interpretation.
References to the Final Prospectuses in this paragraph (f) include any
supplement thereto at the date of the letter.
(g) Subsequent to the Execution Time or, if earlier, the dates as of
which information is given in the Registration Statement (exclusive of any
amendment thereof) and the Final Prospectuses (exclusive of any supplement
thereto), there shall not have been (i) any change or decrease specified in
the letter or letters referred to in paragraph (g) of this Section 6 or
(ii) any change, or any development involving a prospective change, in or
affecting the condition (financial or otherwise), earnings, business or
properties of the Company and its subsidiaries, taken as a whole, whether
or not arising from transactions in the ordinary course of business, except
as set forth in or contemplated in the Final Prospectuses (exclusive of any
supplement thereto) the effect of which, in any case referred to in clause
(i) or (ii) above, is, in the sole judgment of the U.S. Representatives, so
material and adverse as to make it impractical or inadvisable to proceed
with the offering or delivery of the U.S. Securities as contemplated by the
Registration Statement (exclusive of any amendment thereof) and the Final
Prospectuses (exclusive of any supplement thereto).
(h) The closing of the purchase of any of the U.S. Securities to be
issued and sold by the Company pursuant to the U.S. Underwriting Agreement,
whether on the Closing Date or a subsequent date, as provided in Section 3
hereof, shall occur concurrently with the closing of all of the
International Securities to be issued and sold by the Company pursuant to
the International Underwriting Agreement on such date.
(i) Prior to the Closing Date, the Company shall have furnished to the
Representatives such further information, certificates and documents as the
Representatives may reasonably request.
(j) The Securities shall have been listed and admitted and authorized
for trading on the Nasdaq National Market, and satisfactory evidence of
such actions shall have been provided to the Representatives.
(k) At the Execution Time, the Company shall have furnished to the
Representatives a letter substantially in the form of Exhibit A hereto from
each officer and director of the Company addressed to the Representatives.
If any of the conditions specified in this Section 6 shall not have been
fulfilled in all material respects when and as provided in this U.S.
Underwriting Agreement and the
21
<PAGE>
International Underwriting Agreement, or if any of the opinions and certificates
mentioned above or elsewhere in this U.S. Underwriting Agreement shall not be in
all material respects reasonably satisfactory in form and substance to the U.S.
Representatives and counsel for the Underwriters, this U.S. Underwriting
Agreement and all obligations of the U.S. Underwriters under this U.S.
Underwriting Agreement may be canceled at, or at any time prior to, the Closing
Date by the U.S. Representatives. Notice of such cancellation shall be given to
the Company in writing or by telephone or facsimile confirmed in writing.
The documents required to be delivered by this Section 6 shall be delivered
at the office of __________, counsel for the Underwriters, at __________,
__________, on the Closing Date.
7. Reimbursement of U.S. Underwriters' Expenses. If the sale of the U.S.
--------------------------------------------
Securities provided for in this U.S. Underwriting Agreement is not consummated
because any condition to the obligations of the U.S. Underwriters set forth in
Section 6 hereof is not satisfied, because of any termination pursuant to
Section 10 hereof or because of any refusal, inability or failure on the part of
the Company to perform any agreement in this U.S. Underwriting Agreement or
comply with any provision hereof other than by reason of a default by any of the
U.S. Underwriters, the Company will reimburse the U.S. Underwriters severally
through __________ on demand for all out-of-pocket expenses (including
reasonable fees and disbursements of counsel) that shall have been incurred by
them in connection with the proposed purchase and sale of the Securities.
8. Indemnification and Contribution.
--------------------------------
(a) The Company agrees to indemnify and hold harmless each U.S.
Underwriter, the directors, officers, employees and agents of each U.S.
Underwriter and each person who controls any U.S. Underwriter within the meaning
of either the Act or the Exchange Act against any and all losses, claims,
damages or liabilities, joint or several, to which they or any of them may
become subject under the Act, the Exchange Act or other Federal or state
statutory law or regulation, at common law or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of a material
fact contained in the registration statement for the registration of the
Securities as originally filed or in any amendment thereof, or in any U.S. or
International Preliminary Final Prospectus or in either of the Final
Prospectuses, or in any amendment thereof or supplement thereto, or arise out of
or are based upon the 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 agree to reimburse each such indemnified party, as incurred,
for any legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or action;
provided, however, that the Company will not be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or is based
upon any such untrue statement or alleged untrue statement or omission or
alleged omission made therein in reliance upon and in conformity with written
information furnished to the Company by or on behalf of any U.S. Underwriter
through the U.S. Representatives specifically for inclusion therein. This
indemnity agreement will be in addition to any liability which the Company may
otherwise have.
22
<PAGE>
(b) Each U.S. Underwriter severally and not jointly agrees to indemnify and
hold harmless the Company, each of its directors, each of its officers who signs
the Registration Statement, and each person who controls the Company within the
meaning of either the Act or the Exchange Act, to the same extent as the
foregoing indemnity to each U.S. Underwriter, but only with reference to written
information relating to such U.S. Underwriter furnished to the Company by or on
behalf of such U.S. Underwriter through the U.S. Representatives specifically
for inclusion in the documents referred to in the foregoing indemnity. This
indemnity agreement will be in addition to any liability which any U.S.
Underwriter may otherwise have. The Company acknowledges that the statements set
forth in the _____ paragraph of the cover page regarding delivery of the U.S.
Securities and, under the heading "Underwriting" or "Plan of Distribution", (i)
the list of Underwriters and their respective participation in the sale of the
Securities, (ii) the sentences related to concessions and reallowances and (iii)
the paragraph related to stabilization, syndicate covering transactions and
penalty bids in any U.S. or International Preliminary Final Prospectus and the
Final Prospectuses constitute the only information furnished in writing by or on
behalf of the several U.S. Underwriters for inclusion in any U.S. or
International Preliminary Final Prospectus or the Final Prospectuses.
(c) Promptly after receipt by an indemnified party under this Section 8 of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 8, notify the indemnifying party in writing of the commencement thereof;
but the failure so to notify the indemnifying party (i) will not relieve it from
liability under paragraph (a) or (b) above unless and to the extent it did not
otherwise learn of such action and such failure results in the forfeiture by the
indemnifying party of substantial rights and defenses and (ii) will not, in any
event, relieve the indemnifying party from any obligations to any indemnified
party other than the indemnification obligation provided in paragraph (a) or (b)
above. The indemnifying party shall be entitled to appoint counsel of the
indemnifying party's choice at the indemnifying party's expense to represent the
indemnified party in any action for which indemnification is sought (in which
case the indemnifying party shall not thereafter be responsible for the fees and
expenses of any separate counsel retained by the indemnified party or parties
except as set forth below); provided, however, that such counsel shall be
-------- -------
satisfactory to the indemnified party. Notwithstanding the indemnifying party's
election to appoint counsel to represent the indemnified party in an action, the
indemnified party shall have the right to employ separate counsel (including
local counsel), and the indemnifying party shall bear the reasonable fees, costs
and expenses of such separate counsel if (i) the use of counsel chosen by the
indemnifying party to represent the indemnified party would present such counsel
with a conflict of interest, (ii) the actual or potential defendants in, or
targets of, any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that there may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available to the
indemnifying party, (iii) the indemnifying party shall not have employed counsel
satisfactory to the indemnified party to represent the indemnified party within
a reasonable time after notice of the institution of such action or (iv) the
indemnifying party shall authorize the indemnified party to employ separate
counsel at the expense of the indemnifying party. An indemnifying party will
not, without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any pending
or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought under this U.S. Underwriting
Agreement (whether or not the indemnified parties are actual or potential
parties to
23
<PAGE>
such claim or action) unless such settlement, compromise or consent includes an
unconditional release of each indemnified party from all liability arising out
of such claim, action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a) or (b) of
this Section 8 is unavailable to or insufficient to hold harmless an indemnified
party for any reason, the Company and the U.S. Underwriters severally agree to
contribute to the aggregate losses, claims, damages and liabilities (including
legal or other expenses reasonably incurred in connection with investigating or
defending same) (collectively "Losses") to which the Company and one or more of
the U.S. Underwriters may be subject in such proportion as is appropriate to
reflect the relative benefits received by the Company on the one hand and by the
U.S. Underwriters on the other from the offering of the U.S. Securities;
provided, however, that in no case shall any U.S. Underwriter (except as may be
provided in any agreement among underwriters relating to the offering of the
U.S. Securities) be responsible for any amount in excess of the underwriting
discount or commission applicable to the Securities purchased by such U.S.
Underwriter under this U.S. Underwriting Agreement. If the allocation provided
by the immediately preceding sentence is unavailable for any reason, the Company
and the U.S. Underwriters severally shall contribute in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company on the one hand and of the U.S. Underwriters on the other
in connection with the statements or omissions which resulted in such Losses as
well as any other relevant equitable considerations. Benefits received by the
Company shall be deemed to be equal to the total net proceeds from the offering
(before deducting expenses) received by the Company, and benefits received by
the U.S. Underwriters shall be deemed to be equal to the total underwriting
discounts and commissions, in each case as set forth on the cover page of the
U.S. Final Prospectus. Relative fault shall be determined by reference to, among
other things, whether any untrue or any alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information provided by the Company on the one hand or the U.S. Underwriters on
the other, the intent of the parties and their relative knowledge, access to
information and opportunity to correct or prevent such untrue statement or
omission. The Company and the U.S. Underwriters agree that it would not be just
and equitable if contribution were determined by pro rata allocation or any
other method of allocation which does not take account of the equitable
considerations referred to above. Notwithstanding the provisions of this
paragraph (d), no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. For purposes of
this Section 8, each person who controls an U.S. Underwriter within the meaning
of either the Act or the Exchange Act and each director, officer, employee and
agent of an U.S. Underwriter shall have the same rights to contribution as such
U.S. Underwriter, and each person who controls the Company within the meaning of
either the Act or the Exchange Act, each officer of the Company who shall have
signed the Registration Statement and each director of the Company shall have
the same rights to contribution as the Company, subject in each case to the
applicable terms and conditions of this paragraph (d).
9. Default by a U.S. Underwriter. If any one or more U.S. Underwriters
-----------------------------
shall fail to purchase and pay for any of the U.S. Securities agreed to be
purchased by such U.S. Underwriter or U.S. Underwriters under this U.S.
Underwriting Agreement and such failure to purchase shall constitute a default
in the performance of its or their obligations under this U.S. Underwriting
24
<PAGE>
Agreement, the remaining U.S. Underwriters shall be obligated severally to take
up and pay for (in the respective proportions which the amount of U.S.
Securities set forth opposite their names in Schedule I hereto bears to the
aggregate amount of U.S. Securities set forth opposite the names of all the
remaining U.S. Underwriters) the U.S. Securities which the defaulting U.S.
Underwriter or U.S. Underwriters agreed but failed to purchase; provided,
--------
however, that in the event that the aggregate amount of U.S. Securities which
-------
the defaulting U.S. Underwriter or U.S. Underwriters agreed but failed to
purchase shall exceed 10% of the aggregate amount of U.S. Securities set forth
in Schedule I hereto, the remaining U.S. Underwriters shall have the right to
purchase all, but shall not be under any obligation to purchase any, of the U.S.
Securities, and if such nondefaulting U.S. Underwriters do not purchase all the
U.S. Securities, this U.S. Underwriting Agreement will terminate without
liability to any nondefaulting U.S. Underwriter or the Company. In the event of
a default by any U.S. Underwriter as set forth in this Section 9, the Closing
Date shall be postponed for such period, not exceeding five Business Days, as
the U.S. Representatives shall determine in order that the required changes in
the Registration Statement and the Final Prospectuses or in any other documents
or arrangements may be effected. Nothing contained in this U.S. Underwriting
Agreement shall relieve any defaulting U.S. Underwriter of its liability, if
any, to the Company and any nondefaulting U.S. Underwriter for damages
occasioned by its default under this U.S. Underwriting Agreement.
10. Termination. This U.S. Underwriting Agreement shall be subject to
-----------
termination in the absolute discretion of the U.S. Representatives, by notice
given to the Company prior to delivery of and payment for the U.S. Securities,
if at any time prior to such time (i) trading in the Company's Common Stock
shall have been suspended by the Commission or the Nasdaq National Market or
trading in securities generally on the New York Stock Exchange or the Nasdaq
National Market shall have been suspended or limited or minimum prices shall
have been established on such exchange or the Nasdaq National Market, (ii) a
banking moratorium shall have been declared either by Federal or New York State
authorities or (iii) there shall have occurred any outbreak or escalation of
hostilities, declaration by the United States of a national emergency or war, or
other calamity or crisis the effect of which on financial markets is such as to
make it, in the sole judgment of the U.S. Representatives, impractical or
inadvisable to proceed with the offering or delivery of the Securities as
contemplated by the U.S. Final Prospectus (exclusive of any supplement thereto).
11. Representations and Indemnities to Survive. The respective agreements,
------------------------------------------
representations, warranties, indemnities and other statements of the Company or
its officers and of the U.S. Underwriters set forth in or made pursuant to this
U.S. Underwriting Agreement will remain in full force and effect, regardless of
any investigation made by or on behalf of any U.S. Underwriter or the Company or
any of the officers, directors, employees, agents or controlling persons
referred to in Section 8 hereof, and will survive delivery of and payment for
the U.S. Securities. The provisions of Sections 7 and 8 hereof shall survive the
termination or cancellation of this U.S. Underwriting Agreement.
12. Notices. All communications under this U.S. Underwriting Agreement will
-------
be in writing and effective only on receipt, and, if sent to the U.S.
Representatives, will be mailed, delivered or tele-faxed to the __________ (fax
no.: __________) and confirmed to __________, Attention: ___________; or, if
sent to the Company, will be mailed, delivered or tele-faxed to
25
<PAGE>
Lee Masters (fax no.: (310) 979-5003) and confirmed to it at 12312 Olympic
Boulevard, Los Angeles, California 90064, attention: Lee Masters.
13. Successors. This U.S. Underwriting Agreement will inure to the benefit
----------
of and be binding upon the parties hereto and their respective successors and
the officers, directors, employees, agents and controlling persons referred to
in Section 8 hereof, and no other person will have any right or obligation under
this U.S. Underwriting Agreement.
14. Applicable Law. This U.S. Underwriting Agreement will be governed by
--------------
and construed in accordance with the laws of the State of New York applicable to
contracts made and to be performed within the State of New York.
15. Counterparts. This U.S. Underwriting Agreement may be signed in one or
------------
more counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same agreement.
16. Headings. The section headings used in this U.S. Underwriting Agreement
--------
are for convenience only and shall not affect the construction hereof.
17. Definitions. The terms which follow, when used in this U.S.
-----------
Underwriting Agreement, shall have the meanings indicated.
"Act" shall mean the Securities Act of 1933, as amended, and the rules
and regulations of the Commission promulgated thereunder.
"Basic Prospectus" shall mean the prospectus referred to in paragraph
1(i)(a) above contained in the Registration Statement at the Effective Date
including any Preliminary Final Prospectuses.
"Business Day" shall mean any day other than a Saturday, a Sunday or a
legal holiday or a day on which banking institutions or trust companies are
authorized or obligated by law to close in New York City.
"Charter" shall mean, with respect to any corporation, its certificate
of incorporation, articles of incorporation or other similar charter
documents, including, without limitation, all amendments thereto,
restatements thereof, certificate of designations, certificates of merger,
certificates of ownership and other documents constituting a part thereof.
"Commission" shall mean the Securities and Exchange Commission.
"Effective Date" shall mean each date and time that the Registration
Statement, any post-effective amendment or amendments thereto and any Rule
462(b) Registration Statement became or become effective.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated
thereunder.
26
<PAGE>
"Execution Time" shall mean the date and time that this U.S.
Underwriting Agreement is executed and delivered by the parties hereto.
"Final Prospectuses" and "each Final Prospectus" shall mean the U.S.
Final Prospectus and the International Final Prospectus.
"International Preliminary Final Prospectus" shall have the meaning
set forth under "U.S. Preliminary Final Prospectus."
"International Final Prospectus" shall mean the prospectus supplement
relating to the International Securities that is first filed pursuant to
Rule 424(b) after the Execution Time, together with the Basic Prospectus.
"International Representative" shall mean the addressees of the
International Underwriting Agreement.
"International Securities" shall mean the International Underwritten
Securities and the International Option Securities.
"International Underwriters" shall mean the several underwriters named
in Schedule I to the International Underwriting Agreement.
"International Underwriting Agreement" shall mean the International
Underwriting Agreement dated the date hereof related to the sale of the
International Securities by the Company to the International Underwriters.
"Option Securities" shall mean the U.S. Option Securities and the
International Option Securities.
"Preliminary Final Prospectus" shall have the meaning set forth under
"U.S. Preliminary Final Prospectus."
"Registration Statement" shall mean the registration statement
referred to in paragraph 1(i)(a) above, including exhibits and financial
statements, as amended at the Execution Time (or, if not effective at the
Execution Time, in the form in which it shall become effective) and, in the
event any post-effective amendment thereto or any Rule 462(b) Registration
Statement becomes effective prior to the Closing Date, shall also mean such
registration statement as so amended or such Rule 462(b) Registration
Statement, as the case may be. Such term shall include any Rule 430A
Information deemed to be included therein at the Effective Date as provided
by Rule 430A.
"Representatives" shall mean the U.S. Representatives and the
International Representatives.
"Rule 424", "Rule 430A" and "Rule 462" refer to such rules under the
Act.
27
<PAGE>
"Rule 430A Information" shall mean information with respect to the
Securities and the offering thereof permitted to be omitted from the
Registration Statement when it becomes effective pursuant to Rule 430A.
"Rule 462(b) Registration Statement" shall mean a registration
statement and any amendments thereto filed pursuant to Rule 462(b) relating
to the offering covered by the registration statement referred to in
Section 1(a)(i) hereof.
"Securities" shall mean the U.S. Securities and the International
Securities.
"Underwriter" and "Underwriters" shall mean the U.S. Underwriters and
the International Underwriters.
"Underwriting Agreements" shall mean the U.S. Underwriting Agreement
and the International Underwriting Agreement.
"Underwritten Securities" shall mean the International Underwritten
Securities and the U.S. Underwritten Securities.
"U.S. Preliminary Final Prospectus" and the "International Preliminary
Final Prospectus", respectively, shall mean any preliminary prospectus
supplement to the Basic Prospectus which describes the U.S. Securities or
the International Securities, as the case may be, and the offering thereof,
in each case together with the Basic Prospectus; and the U.S. Preliminary
Final Prospectus and the International Preliminary Final Prospectus are
hereinafter collectively called the "Preliminary Final Prospectuses".
"U.S. Final Prospectus" shall mean the prospectus supplement relating
to the U.S. Securities that is first filed pursuant to Rule 424(b) after
the Execution Time, together with the Basic Prospectus.
"U.S. Representatives" shall mean the addressees of the U.S.
Underwriting Agreement.
"U.S. Securities" shall mean the U.S. Underwritten Securities and the
U.S. Option Securities.
"U.S. Underwriting Agreement" shall mean this agreement relating to
the sale of the U.S. Securities by the Company to the U.S. Underwriters.
"U.S. Underwriters" shall mean the several underwriters named in
Schedule I to the U.S. Underwriting Agreement.
"United States or Canadian Person" shall mean any person who is a
national or resident of the United States or Canada, any corporation,
partnership, or other entity created or organized in or under the laws of
the United States or Canada or of any political subdivision thereof, or any
estate or trust the income of which is subject to United States or Canadian
Federal income taxation, regardless of its source (other than any
non-United States or non-Canadian branch of any United States or Canadian
Person),
28
<PAGE>
and shall include any United States or Canadian branch of a person other
than a United States or Canadian Person. "U.S." or "United States" shall
mean the United States of America (including the states thereof and the
District of Columbia), its territories, its possessions and other areas
subject to its jurisdiction.
29
<PAGE>
If the foregoing is in accordance with your under-standing of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company and the several U.S. Underwriters.
Very truly yours,
Liberty Digital, Inc.
By:__________________________
Name:
Title:
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
By:
By:
________________________________
Name:
Title:
For themselves and the other
several U.S. Underwriters
named in Schedule I to the foregoing
Agreement.
30
<PAGE>
SCHEDULE I
Number of Underwritten
Underwriters Securities to be Purchased
------------ --------------------------
----------...............
--------------------------
Total................
==========================
<PAGE>
EXHIBIT A
[Form of Lock-Up Agreement]
Liberty Digital, Inc.
---------------------
Public Offering of Common Stock
-------------------------------
!, 20__
As Representatives of the several U.S. Underwriters
and International Underwriters,
Ladies and Gentlemen:
This letter is being delivered to you in connection with the
proposed U.S. Underwriting Agreement and International Underwriting Agreement
(the "Underwriting Agreements"), between Liberty Digital, Inc., a Delaware
corporation (the "Company"), and each of you as representatives of a group of
U.S. Underwriters and International Underwriters named therein, relating to an
underwritten public offering of Common Stock, $.01 par value (the "Common
Stock"), of the Company.
In order to induce you and the other U.S. Underwriters and
International Underwriters to enter into the Underwriting Agreements, the
undersigned will not, without the prior written consent of __________, offer,
sell, contract to sell, pledge or otherwise dispose of (or enter into any
transaction which is designed to, or might reasonably be expected to, result in
the disposition (whether by actual disposition or effective economic disposition
due to cash settlement or otherwise) by the undersigned or any affiliate of the
undersigned or any person in privity with the undersigned or any affiliate of
the undersigned), directly or indirectly, including the filing (or participation
in the filing of) a registration statement with the Securities and Exchange
Commission in respect of, or establish or increase a put equivalent position or
liquidate or decrease a call equivalent position within the meaning of Section
16 of the Securities Exchange Act of 1934, as amended, and the rules and
regulations of the Securities and Exchange Commission promulgated thereunder
with respect to, any shares of capital stock of the Company or any securities
convertible into, or exercisable or exchangeable for such capital stock, or
publicly announce an intention to effect any such transaction, for a period of
______ days after the date of the Underwriting Agreements, other than shares of
Common Stock disposed of as bona fide gifts approved by __________
A-1
<PAGE>
If for any reason the Underwriting Agreements shall be terminated
prior to the Closing Date (as defined in the Underwriting Agreements), the
agreement set forth above shall likewise be terminated.
Yours very truly,
[Signature of officer, director
or major stockholder]
[Name and address of officer,
director or major stockholder]
<PAGE>
EXHIBIT B
List of Significant Subsidiaries
B-1
