AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 19, 2002
REGISTRATION NO. 333-98817
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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AMENDMENT NO. 2
TO
FORM S-3
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
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LIBERTY MEDIA CORPORATION
(Exact name of Registrant as specified in its charter)
Delaware 4841 84-1288730
(State or other jurisdiction (Primary Standard Industrial (I.R.S. Employer
of incorporation or organization) Classification code number) Identification No.)
12300 Liberty Boulevard, Englewood, Colorado 80112, (720) 875-5400
(Address, including zip code, and telephone number, including
area code, of Registrant's principal executive offices)
Elizabeth M. Markowski, Esq. Copy To:
Liberty Media Corporation Robert W. Murray Jr., Esq.
12300 Liberty Boulevard Baker Botts L.L.P.
Englewood, Colorado 80112 30 Rockefeller Plaza
(720) 875-5400 New York, New York 10112-4998
(Name, address, including zip code, (212) 408-2500
and telephone number, including area code,
of agent for service)
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after the later to occur of (1) the effective date hereof and (2)
the expiration of a 30-day lock-up period which commenced upon the initial
issuance of the shares being registered hereby (which is subject to extension,
at the option of the Registrant, for up to an additional 30 days).
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box: [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier registration statement for the same
offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier registration statement for the same
offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(a), MAY DETERMINE.
PROSPECTUS
LIBERTY MEDIA CORPORATION
15,385,836 SHARES
SERIES A COMMON STOCK
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This prospectus relates to 15,385,836 shares of our Series A common stock,
par value $.01 per share, which may be sold by the selling stockholder named
herein.
The shares of Series A common stock offered hereby were initially sold by
us in a private placement as part of the purchase price we paid for ordinary
shares of OpenTV Corp., a British Virgin Islands corporation. We purchased these
ordinary shares from the selling stockholder.
The selling stockholder may offer and sell the shares of Series A common
stock offered hereby directly to purchasers or through underwriters, brokers,
dealers or agents, who may receive compensation in the form of discounts,
concessions or commissions. Shares of the Series A common stock may be sold in
one or more transactions at fixed or negotiated prices or at prices based on
prevailing market prices at the time of sale.
We will not receive any of the proceeds from the sale of shares of Series A
common stock by the selling stockholder. We are, however, responsible for
expenses incident to the registration, under the Securities Act of 1933, of the
offer and sale of the Series A common stock by the selling stockholders.
Our Series A common stock is listed on the New York Stock Exchange under
the symbol "L". On September 18, 2002, the closing sale price of our Series A
common stock on the NYSE was $8.30 per share.
INVESTING IN SERIES A COMMON STOCK INVOLVES RISKS. YOU SHOULD CAREFULLY
CONSIDER THE MATTERS DESCRIBED UNDER THE CAPTION "RISK FACTORS" BEGINNING ON
PAGE 1 OF THIS PROSPECTUS.
Our principal executive offices are located at 12300 Liberty Boulevard,
Englewood, Colorado 80112. Our main telephone number is (720) 875-5400.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED THESE SECURITIES OR DETERMINED IF THIS
PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
The date of this prospectus is September 19, 2002
TABLE OF CONTENTS
RISK FACTORS...................................................................1
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS..............................6
RECENT DEVELOPMENTS............................................................6
USE OF PROCEEDS................................................................6
SELLING STOCKHOLDER............................................................6
PLAN OF DISTRIBUTION...........................................................7
LEGAL MATTERS..................................................................9
EXPERTS........................................................................9
WHERE TO FIND MORE INFORMATION................................................10
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RISK FACTORS
An investment in our Series A common stock involves risk. You should
carefully consider the following factors, as well as the other information
included in this prospectus and in the documents we have incorporated by
reference before deciding to purchase shares of Series A common stock. Any of
the following risks could have a material adverse effect on the value of our
Series A common stock.
FACTORS RELATING TO LIBERTY
WE DEPEND ON A LIMITED NUMBER OF POTENTIAL CUSTOMERS FOR CARRIAGE OF OUR
PROGRAMMING SERVICES. The cable television and direct-to-home satellite
industries are currently undergoing a period of consolidation. As a result, the
number of potential buyers of our programming services and those of our business
affiliates is decreasing. Until August of 2001, we were a subsidiary of AT&T
Corp. AT&T's cable television subsidiaries and affiliates, which as a group
comprise one of the two largest operators of cable television systems in the
United States, are collectively the largest single customer of our programming
companies. With respect to some of our programming services and those of our
business affiliates, this is the case by a significant margin. The existing
agreements between AT&T's cable television subsidiaries and affiliates and the
program suppliers owned by or affiliated with us were entered into with
Tele-Communications, Inc., prior to its merger with AT&T in March of 1999. We
were a subsidiary of TCI at the time of that merger. There can be no assurance
that our owned and affiliated program suppliers will be able to negotiate
renewal agreements with AT&T's cable television subsidiaries and affiliates on
commercially reasonable terms or at all. Although AT&T has agreed to extend any
existing affiliation agreement of ours and our affiliates that expires on or
before March 9, 2004 to a date not before March 9, 2009, that agreement is
conditioned on mutual most favored nation terms being offered and the
arrangements being consistent with industry practice. In addition, AT&T and
Comcast Corporation have entered into an agreement to merge AT&T Broadband LLC,
the holding company for AT&T's cable television business, with Comcast. The
transaction recently received shareholder approval but remains subject to
customary closing conditions, including the receipt of regulatory approvals. We
cannot assure you as to what effect, if any, this merger will have on these
programming arrangements.
THE LIQUIDITY AND VALUE OF OUR INTERESTS IN OUR BUSINESS AFFILIATES MAY BE
ADVERSELY AFFECTED BY STOCKHOLDERS AGREEMENTS AND SIMILAR AGREEMENTS TO WHICH WE
ARE A PARTY. We own equity interests in a broad range of domestic and
international video programming and communications businesses. A significant
portion of the equity securities we own is held pursuant to stockholder
agreements, partnership agreements and other instruments and agreements that
contain provisions that affect the liquidity, and therefore the realizable
value, of those securities. Most of these agreements subject the transfer of the
stock, partnership or other interests constituting equity securities to consent
rights or rights of first refusal of the other stockholders or partners. In
certain cases, a change in control of our company or of the subsidiary holding
our equity interest will give rise to rights or remedies exercisable by other
stockholders or partners, such as a right to initiate or require the initiation
of buy/sell procedures. Some of our subsidiaries and business affiliates are
parties to loan agreements that restrict changes in ownership of the borrower
without the consent of the lenders. All of these provisions will restrict our
ability to sell those equity securities and may adversely affect the price at
which those securities may be sold. For example, in the event buy/sell
procedures are initiated at a time when we are not in a financial position to
buy the initiating party's interest, we could be forced to sell our interest at
a price based upon the value established by the initiating party, and that price
might be significantly less than what we might otherwise obtain.
WE DO NOT HAVE THE RIGHT TO MANAGE OUR BUSINESS AFFILIATES, WHICH MEANS WE
CANNOT CAUSE THOSE AFFILIATES TO OPERATE IN A MANNER THAT IS FAVORABLE TO US. We
do not have the right to manage the businesses or affairs of any of our business
affiliates in which we have less than a majority voting interest. Rather, our
rights may take the form of representation on the board of directors or a
partners' or similar committee that supervises management or possession of veto
rights over significant or extraordinary actions. The scope of our veto rights
varies from agreement to agreement. Although our board representation and veto
rights may enable us to exercise influence over the management or policies of an
affiliate and enable us to prevent the sale of assets by a business affiliate in
which we own less than a majority voting interest or prevent it from paying
dividends or making distributions to its stockholders or partners, they do not
enable us to cause these actions to be taken.
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OUR BUSINESS IS SUBJECT TO RISKS OF ADVERSE GOVERNMENT REGULATION.
Programming services, cable television systems, satellite carriers and
television stations are subject to varying degrees of regulation in the United
States by the Federal Communications Commission and other entities. Such
regulation and legislation are subject to the political process and have been in
constant flux over the past decade. In addition, substantially every foreign
country in which we have, or may in the future make, an investment regulates, in
varying degrees, the distribution and content of programming services and
foreign investment in programming companies and wireline and wireless cable
communications, satellite and telephony services. Further material changes in
the law and regulatory requirements must be anticipated, and there can be no
assurance that our business and the business of our affiliates will not be
adversely affected by future legislation, new regulation or deregulation.
WE MAY MAKE SIGNIFICANT CAPITAL CONTRIBUTIONS AND LOANS TO OUR SUBSIDIARIES
AND BUSINESS AFFILIATES TO COVER OPERATING LOSSES AND FUND DEVELOPMENT AND
GROWTH, WHICH COULD LIMIT THE AMOUNT OF CASH AVAILABLE TO PAY OUR OWN FINANCIAL
OBLIGATIONS OR TO MAKE ACQUISITIONS OR INVESTMENTS. The development of video
programming, communications and technology businesses involves substantial costs
and capital expenditures. As a result, many of our business affiliates have
incurred operating and net losses to date and are expected to continue to incur
significant losses for the foreseeable future. Our results of operations include
our, and our consolidated subsidiaries', share of the net losses of affiliates.
Our net losses included $244 million for the first six months of 2002, $4,906
million for calendar year 2001 and $3,485 million for calendar year 2000
attributable to net losses of affiliates.
We have assisted, and may in the future assist, our subsidiaries and
business affiliates in their financing activities by guaranteeing bank and other
financial obligations. At June 30, 2002, we had guaranteed various loans, notes
payable, letters of credit and other obligations of certain of our subsidiaries
and business affiliates totaling approximately $645 million.
To the extent we make loans and capital contributions to our subsidiaries
and business affiliates or we are required to expend cash due to a default by a
subsidiary or business affiliate of any obligation we guarantee, there will be
that much less cash available to us with which to pay our own financial
obligations or make acquisitions or investments.
IF WE FAIL TO MEET REQUIRED CAPITAL CALLS TO A SUBSIDIARY OR BUSINESS
AFFILIATE, WE COULD BE FORCED TO SELL OUR INTEREST IN THAT COMPANY, OUR INTEREST
IN THAT COMPANY COULD BE DILUTED OR WE COULD FORFEIT IMPORTANT RIGHTS. We are
parties to stockholder and partnership agreements that provide for possible
capital calls on stockholders and partners. Our failure to meet a capital call,
or other commitment to provide capital or loans to a particular company, may
have adverse consequences to us. These consequences may include, among others,
the dilution of our equity interest in that company, the forfeiture of our right
to vote or exercise other rights, the right of the other stockholders or
partners to force us to sell our interest at less than fair value, the forced
dissolution of the company to which we have made the commitment or, in some
instances, a breach of contract action for damages against us. Our ability to
meet capital calls or other capital or loan commitments is subject to our
ability to access cash. See " -- We could be unable in the future to obtain cash
in amounts sufficient to service our financial obligations" below.
WE ARE SUBJECT TO THE RISK OF POSSIBLY BECOMING AN INVESTMENT COMPANY.
Because we are a holding company and a significant portion of our assets
consists of investments in companies in which we own less than a 50% interest,
we run the risk of inadvertently becoming an investment company that is required
to register under the Investment Company Act of 1940. Registered investment
companies are subject to extensive, restrictive and potentially adverse
regulation relating to, among other things, operating methods, management,
capital structure, dividends and transactions with affiliates. Registered
investment companies are not permitted to operate their business in the manner
in which we operate our business, nor are registered investment companies
permitted to have many of the relationships that we have with our affiliated
companies.
To avoid regulation under the Investment Company Act, we monitor the value
of our investments and structure transactions with an eye toward the Investment
Company Act. As a result, we may structure transactions in a less advantageous
manner than if we did not have Investment Company Act concerns, or we may avoid
otherwise economically desirable transactions due to those concerns. In
addition, events beyond our control, including significant appreciation or
depreciation in the market value of certain of our publicly traded holdings,
could result in our becoming an inadvertent investment company. If we were to
become an inadvertent investment company, we
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would have one year to divest of a sufficient amount of investment securities
and/or acquire other assets sufficient to cause us to no longer be an investment
company.
If it were established that we are an unregistered investment company,
there would be a risk, among other material adverse consequences, that we could
become subject to monetary penalties or injunctive relief, or both, in an action
brought by the Securities and Exchange Commission, that we would be unable to
enforce contracts with third parties or that third parties could seek to obtain
rescission of transactions with us undertaken during the period it was
established that we were an unregistered investment company.
WE COULD BE UNABLE IN THE FUTURE TO OBTAIN CASH IN AMOUNTS SUFFICIENT TO
SERVICE OUR FINANCIAL OBLIGATIONS. Our ability to meet our financial obligations
depends upon our ability to access cash. We are a holding company, and our
sources of cash include our available cash balances, net cash from operating
activities, dividends and interest from our investments, availability under
credit facilities and proceeds from asset sales. We cannot assure you that we
will maintain significant amounts of cash, cash equivalents or marketable
securities in the future.
We obtained from one of our subsidiaries net cash in the form of dividends
in the amount of $23 million in calendar year 2001 and $5 million in calendar
year 2000. We did not obtain any cash dividends from our subsidiaries in the
first six months of 2002. The ability of our operating subsidiaries to pay
dividends or to make other payments or advances to us depends on their
individual operating results and any statutory, regulatory or contractual
restrictions to which they may be or may become subject. Some of our
subsidiaries are subject to loan agreements that restrict sales of assets and
prohibit or limit the payment of dividends or the making of distributions, loans
or advances to stockholders and partners.
We generally do not receive cash, in the form of dividends, loans, advances
or otherwise, from our business affiliates. In this regard, we do not have
sufficient voting control over most of our business affiliates to cause those
companies to pay dividends or make other payments or advances to their partners
or stockholders, including us.
WE HAVE ENTERED INTO BANK CREDIT AGREEMENTS THAT CONTAIN RESTRICTIONS ON
HOW WE FINANCE OUR OPERATIONS AND OPERATE OUR BUSINESS, WHICH COULD IMPEDE OUR
ABILITY TO ENGAGE IN TRANSACTIONS THAT WOULD BE BENEFICIAL TO US. We and our
subsidiaries are subject to significant financial and operating restrictions
contained in outstanding credit facilities. These restrictions will affect, and
in some cases significantly limit or prohibit, among other things, our ability
or the ability of our subsidiaries to:
- borrow more funds;
- pay dividends or make other distributions;
- make investments;
- engage in transactions with affiliates; or
- create liens.
The restrictions contained in these credit agreements could have the
following adverse effects on us, among others:
- we could be unable to obtain additional capital in the future to:
- fund capital expenditures or acquisitions that could improve the
value of our company;
- permit us to meet our loan and capital commitments to our
business affiliates;
- allow us to help fund the operating losses or future development
of our business affiliates; or
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- allow us to conduct necessary corporate activities;
- we could be unable to access the net cash of our subsidiaries to
help meet our own financial obligations;
- we could be unable to invest in companies in which we would
otherwise invest; and
- we could be unable to obtain lower borrowing costs that are
available from secured lenders or engage in advantageous
transactions that monetize our assets.
In addition, some of the credit agreements to which our subsidiaries are
parties require them to maintain financial ratios, including ratios of total
debt to operating cash flow and operating cash flow to interest expense. If we
or our subsidiaries fail to comply with the covenant restrictions contained in
the credit agreements, that failure could result in a default that accelerates
the maturity of the indebtedness under those agreements. Such a default could
also result in indebtedness under other credit agreements and certain of our
debt securities becoming due and payable due to the existence of cross-default
or cross-acceleration provisions of our credit agreements and in the indentures
governing such debt securities.
THOSE OF OUR BUSINESS AFFILIATES THAT OPERATE OFFSHORE ARE SUBJECT TO
NUMEROUS OPERATIONAL RISKS. A number of our business affiliates operate
primarily in countries other than the United States. Their businesses are thus
subject to the following inherent risks:
- fluctuations in currency exchange rates;
- longer payment cycles for sales in foreign countries that may increase
the uncertainty associated with recoverable accounts;
- difficulties in staffing and managing international operations; and
- political unrest that may result in disruptions of services that are
critical to their businesses.
THE ECONOMIES IN MANY OF THE OPERATING REGIONS OF OUR INTERNATIONAL
BUSINESS AFFILIATES HAVE RECENTLY EXPERIENCED RECESSIONARY CONDITIONS, WHICH HAS
ADVERSELY AFFECTED THE FINANCIAL CONDITION OF THEIR BUSINESSES. The economies in
many of the operating regions of our international business affiliates have
recently experienced moderate to severe recessionary conditions, including
Argentina, Chile, the United Kingdom, Germany and Japan, among others, which has
strained consumer and corporate spending and financial systems and financial
institutions in these areas. As a result, our affiliates have experienced a
reduction in consumer spending and demand for services coupled with an increase
in borrowing costs, which has, in some cases, caused our affiliates to default
on their own indebtedness. We cannot assure you that these economies will
recover in the future or that continued economic weakness will not lead to
further reductions in consumer spending or demand for services. We also cannot
assure you that our affiliates in these regions will be able to obtain
sufficient capital or credit to fund their operations.
YOU WILL HAVE NO RECOURSE AGAINST ONE OF THE EXPERTS NAMED IN THIS
PROSPECTUS. Arthur Andersen LLP is unable to consent to the use of their
independent auditors report with respect to (1) the consolidated financial
statements as of December 31, 2001 and for the period from February 5, 2001
(inception) through December 31, 2001 of UnitedGlobalCom, Inc. and (2) the
consolidated financial statements as of December 31, 2001 and 2000, and for the
three-years then ended of UGC Holdings, Inc., which financial statements have
been incorporated by reference into this prospectus. This means that Arthur
Andersen is not reconfirming the continuing validity of its audit opinion on
those financial statements. Although we have no reason to believe that those
financial statements are incorrect, if they are incorrect and we are adversely
affected as a result, you will not be able to recover any damages you may incur
from Arthur Andersen.
WE HAVE TAKEN SIGNIFICANT IMPAIRMENT CHARGES DUE TO OTHER THAN TEMPORARY
DECLINES IN THE MARKET VALUE OF CERTAIN OF OUR AVAILABLE FOR SALE SECURITIES. We
own equity interests in a significant number of publicly traded
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companies which we account for as available for sale securities. We are required
by generally accepted accounting principles to determine, from time to time,
whether a decline in the market value of any of those investments below our cost
for that investment is other than temporary. If we determine that it is, we are
required to write down our cost to a new cost basis, with the amount of the
write-down accounted for as a realized loss in the determination of net income
for the period in which the write-down occurs. We realized losses of $5,134
million, $4,101 million and $1,463 million for the six months ended June 30,
2002 and for the years ended December 31, 2001 and 2000, respectively, due to
other than temporary declines in the fair value of certain of our available for
sale securities, and we may be required to realize further losses of this nature
in future periods. We consider a number of factors in determining the fair value
of an investment and whether any decline in an investment is other than
temporary. As our assessment fair value and any resulting impairment losses
requires a high degree of judgment and includes significant estimates and
assumptions, the actual amount we may eventually realize for an investment could
differ materially from our assessment of the value of that investment made in an
earlier period.
FACTORS RELATING TO THE SERIES A COMMON STOCK
IT MAY BE DIFFICULT FOR A THIRD PARTY TO ACQUIRE US, EVEN IF DOING SO MAY
BE BENEFICIAL TO OUR STOCKHOLDERS. Certain provisions of our restated
certificate of incorporation and bylaws may discourage, delay or prevent a
change in control of our company that a stockholder may consider favorable.
These provisions include the following:
- authorizing the issuance of "blank check" preferred stock that could
be issued by our board of directors to increase the number of
outstanding shares and thwart a takeover attempt;
- classifying our board of directors with staggered three-year terms,
which may lengthen the time required to gain control of our board of
directors;
- limiting who may call special meetings of stockholders;
- prohibiting stockholder action by written consent, thereby requiring
all stockholder actions to be taken at a meeting of the stockholders;
and
- establishing advance notice requirements for nominations of candidates
for election to the board of directors or for proposing matters that
can be acted upon by stockholders at stockholder meetings.
Section 203 of the Delaware General Corporation Law and any stock option
plan relating to our common stock may also discourage, delay or prevent a change
in control of our company even if such change of control would be in the best
interests of our stockholders.
OUR STOCK PRICE MAY DECLINE SIGNIFICANTLY BECAUSE OF STOCK MARKET
FLUCTUATIONS THAT AFFECT THE PRICES OF THE PUBLIC COMPANIES IN WHICH WE HAVE
OWNERSHIP INTERESTS. The stock market has recently experienced significant price
and volume fluctuations that have affected the market prices of securities of
media and other technology companies. We own equity interests in many media and
technology companies. If market fluctuations cause the stock price of these
companies to decline, our stock price may decline.
OUR STOCK PRICE HAS DECLINED SIGNIFICANTLY OVER THE LAST YEAR. During the
past year, the stock market has experienced significant price and volume
fluctuations that have affected the market prices of our stock. In the future,
our stock price may be materially affected by, among other things:
- actual or anticipated fluctuations in our operating results or those
of the companies in which we invest;
- potential acquisition activity by our company or the companies in
which we invest;
- changes in financial estimates by securities analysts regarding our
company or companies in which we invest;
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- general market conditions; or
- the final terms of our recently announced rights offering, including
the number of shares offered and the price at which shares may be
purchased pursuant to the rights.
THE MARKET PRICE OF OUR SERIES A COMMON STOCK COULD BE ADVERSELY AFFECTED
BY OUR RECENTLY ANNOUNCED RIGHTS OFFERING. We recently announced that we intend
to effect a rights offering, in which holders of our Series A common stock and
Series B common stock will receive transferable subscription rights which will
entitle them to subscribe for additional shares of the same series of our common
stock as they currently hold. The exact terms of the rights offering, including
the subscription price and the record date of holders entitled to receive
rights, have not yet been finalized. The aggregate subscription price, assuming
the exercise of all rights, is currently contemplated to be $310,000,000. We
cannot assure you that the rights offering will not adversely affect the trading
price of the Series A common stock, or that once the subscription price is
announced that the Series A common stock will not trade to or below that price.
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus, including documents incorporated by reference herein,
contains forward looking statements concerning future events that are subject to
risks, uncertainties and assumptions. These forward-looking statements are based
upon our current expectations and projections about future events. When used in
this prospectus and in our incorporated documents, the words "believe,"
"anticipate," "intend," "estimate," "expect" and similar expressions are
intended to identify forward-looking statements, although not all
forward-looking statements contain such words. These forward-looking statements
are subject to risks, uncertainties and assumptions about us and our
subsidiaries and business affiliates, including, among other things, the
following:
- general economic and business conditions and industry trends;
- the continued strength of the industries in which we are involved;
- uncertainties inherent in our proposed business strategies;
- our future financial performance, including availability, terms and
deployment of capital;
- availability of qualified personnel;
- changes in, or our failure or inability to comply with, government
regulations and adverse outcomes from regulatory proceedings;
- changes in the nature of key strategic relationships with partners and
business affiliates;
- rapid technological changes;
- our inability to obtain regulatory or other necessary approvals of any
strategic transactions;
- social, political and economic situations in foreign countries where
we do business; and
- the final terms of our recently announced rights offering and the
success of that offering.
You are cautioned not to place undue reliance on these forward-looking
statements, which speak only as of the date of the document in which they are
included. In light of these risks, uncertainties and other assumptions, the
events described in any forward-looking statement contained in this prospectus
might not occur. We assume no responsibility for updating forward-looking
statements contained in this prospectus.
RECENT DEVELOPMENTS
Pending Acquisition of Casema
On July 31, 2002, we entered into a definitive agreement to acquire (1) all
of the outstanding capital stock of Casema Holding B.V. from Dutchtone Group
B.V., which is an 86% owned subsidiary of France Telecom, S.A., and (2) all of
the intercompany indebtedness owed by Casema and its subsidiaries to France
Telecom, for an aggregate purchase price of approximately E750 million, subject
to certain adjustments. Casema is the third largest cable operator in the
Netherlands by number of subscribers. If closed, the acquisition would add
approximately 1.3 million cable subscribers to our European operations. We
anticipate completing the acquisition of Casema by October 31, 2002, subject to
customary closing conditions, including clearance from the Dutch regulatory
authorities. Therefore, we cannot assure you that the closing will occur within
this time frame or at all.
Acquisition of Wink Communications
On August 22, 2002, we completed the acquisition by merger of Wink
Communications, Inc. for total cash consideration of approximately $100 million.
Through the merger, Wink became an indirect wholly owned subsidiary of our
company, and each outstanding share of Wink common stock was converted into the
right to receive $3.00 in cash, without interest. Wink provides mass-market
interactive television solutions in North America. Wink's technology platform
enables viewers to access program-related information (such as weather, sports
updates, trivia and play-along games), to process transactions with advertisers
and programmers (such as purchases) and to make requests of advertisers and
programmers (such as requests for product samples), without interruption in
their television viewing. Wink also collects, analyzes and routes viewer
behavior and response data to advertisers and broadcasters, which assists them
in evaluating the success and value of their television campaigns.
Acquisition of Controlling Ownership Interest in OpenTV
On August 27, 2002, we completed a transaction with MIH Limited, pursuant
to which we acquired MIH's indirect controlling ownership stake in OpenTV Corp.
for approximately 15.4 million shares of our Series A common stock and
approximately $46.2 million in cash. When combined with our prior shareholdings,
this transaction increased our total economic interest in OpenTV to
approximately 40% and our total voting interest to approximately 85%. OpenTV is
one of the world's leading interactive television companies. OpenTV provides
software, content and applications, and professional services that enable
digital television network operators to deliver and manage interactive
television services on cable, satellite and terrestrial platforms. OpenTV's
middleware is deployed in more than 25 million digital set-top boxes worldwide.
USE OF PROCEEDS
We will not receive any of the proceeds from the sale of shares of Series A
common stock by the selling stockholder. We have filed the registration
statement of which this prospectus is a part solely to satisfy our obligation to
register the offer and sale of the Series A common stock pursuant to the terms
of a stock purchase agreement we entered into with the selling stockholder.
SELLING STOCKHOLDER
We issued and sold the Series A common stock being offered hereby in a
private placement that was exempt from the registration requirements of the
Securities Act. The selling stockholder listed below (including its permitted
transferees, pledgees, donees or successors) may offer and sell pursuant to this
prospectus any or all of the shares of Series A common stock owned by it and
offered hereby in accordance with one or more of the methods of distribution
described under the caption "Plan of Distribution."
As further described under the heading "Recent Developments" above, on
August 27, 2002 we sold 15,385,836 shares of our Series A common stock to OTV
Holdings Limited, the selling stockholder, pursuant to a stock purchase
agreement, dated as of May 8, 2002, as amended as of August 27, 2002, among us,
one of our wholly owned subsidiaries, MIH Limited and OTV Holdings Limited.
Under the terms of the stock purchase agreement, we acquired all of the ordinary
shares of OpenTV owned by OTV Holdings Limited. Pursuant to the terms of the
stock purchase agreement, we have registered the offer and resale of the
foregoing shares of Series A common stock.
6
The following table sets forth information with respect to the selling
stockholder and the number of shares of Series A common stock owned by it. The
entire number of shares of Series A common stock owned by the selling
stockholder named in the table may be sold pursuant to this prospectus. Because
the selling stockholder may sell all or some of its shares of Series A common
stock from time to time under this prospectus, no estimate can be given at this
time as to the number of shares of Series A common stock that will be held by
the selling stockholder following any sale of Series A common stock by it.
Changes in the information concerning the selling stockholder will be set forth
in supplements to this prospectus when and if necessary.
NUMBER OF SHARES PERCENTAGE OF
OF SERIES A OUTSTANDING SHARES
COMMON STOCK OF SERIES A
NAME THAT MAY BE SOLD COMMON STOCK
---- ---------------- ------------
OTV Holdings Limited ............. 15,385,836 *
-----------------------
* Less than 1%.
PLAN OF DISTRIBUTION
We will not receive any of the proceeds from sales of Series A common stock
by the selling stockholder. The Series A common stock may be sold from time to
time after the expiration on September 26, 2002, of a 30-day lock-up period
(which may be extended by us for up to an additional 30 days) and our decline or
waiver of our right of first refusal as to those shares:
- directly by the selling stockholder to one or more purchasers;
- to or through underwriters, brokers or dealers;
- through agents on a best-efforts basis or otherwise; or
- through a combination of such methods of sale.
If shares of Series A common stock are sold through underwriters, brokers,
dealers or agents, the selling stockholder will be responsible for underwriting
discounts or agent's commissions. In effecting sales, brokers or dealers may
arrange for other brokers or dealers to participate. The Series A common stock
may be sold:
- directly by the selling stockholder to one or more purchasers in one
or more transactions at fixed or variable prices;
- at prevailing market prices at the time of sale or at prices related
to such prevailing prices;
- at varying prices determined at the time of sale; or
7
- at negotiated prices.
The shares of Series A common stock offered hereby may be sold from time to
time by, as applicable, the selling stockholder or, to the extent permitted, by
pledgees, donees, transferees or other successors in interest. The shares may be
disposed of from time to time in one or more transactions through any one or
more of the following, as appropriate:
- a block trade in which the broker or dealer so engaged will attempt to
sell the securities as agent but may position and resell a portion of
the block as principal to facilitate the transaction;
- purchases by a broker or dealer as principal and resale by that broker
or dealer for its account;
- ordinary brokerage transactions and transactions in which the broker
solicits purchasers;
- an exchange distribution in accordance with the rules of that exchange
or transactions in the over-the-counter market;
- on the New York Stock Exchange;
- in transactions otherwise than on the New York Stock Exchange or in
the over-the-counter market;
- through the writing of put or call options on the securities;
- short sales of the securities and sales to cover the short sales;
- the pledge of the securities as security for any loan or obligation,
including pledges to brokers or dealers who may, from time to time,
themselves effect distributions of the securities or interests
therein;
- the distribution of the securities by the selling stockholder to its
partners, members or shareholders;
- sales through underwriters or dealers who may receive compensation in
the form of underwriting discounts, concessions or commissions from
the selling stockholder or its successors in interest or from the
purchasers of the shares for whom they may act as agent; and
- a combination of any of the above.
In addition, the shares of Series A common stock covered by this prospectus
may be sold in private transactions or under Rule 144 under the Securities Act
of 1933, as amended, rather than under this prospectus.
We cannot assure you that the selling stockholder will sell any or all of
its shares under this prospectus or that the selling stockholder will not
transfer, devise or gift its shares by other means not described in this
prospectus.
The selling stockholder may pledge or grant a security interest in some or
all of the shares of Series A common stock owned by it, including pledges to
brokers or dealers who may, from time to time, themselves effect distributions
of shares of Series A common stock or interests therein, and if a selling
stockholder defaults in the performance of its secured obligations, the pledgees
or secured party may, subject to our waiver of or failure to exercise our right
of first refusal, from time to time, sell shares of the pledged Series A common
stock pursuant to the registration statement of which this prospectus is a part.
The selling stockholder may also transfer and donate shares of Series A common
stock in other circumstances in which case the transferees, donees, pledgees or
other successors in interest will be the selling stockholder for purposes of
this prospectus. Underwriters, brokers, dealers and agents may receive
compensation in the form of underwriting discounts, concessions or commissions
from the selling stockholder and/or the purchaser of shares of Series A common
stock for whom they may act as agent. The selling stockholder and any
underwriters, dealers or
8
agents that participate in the distribution of shares of Series A common stock
may be deemed to be "underwriters" within the meaning of the Securities Act, and
any profit on the sale of shares of Series A common stock by them and any
discounts, commissions or concessions received by them might be deemed to be
underwriting discounts and commissions under the Securities Act.
Our Series A common stock is listed on the NYSE under the symbol "L". On
September 18, 2002, the closing sale price of our Series A common stock on the
NYSE was $8.30 per share. At the time a particular offering or sale of Series A
common stock is made, a prospectus supplement, if required, will be distributed
which will set forth the aggregate number of shares of Series A common stock
offered or sold and the terms of the offering or sale, including the name or
names of any underwriters, dealers or agents, any discounts, commissions and
other terms constituting compensation from the selling stockholder and any
discounts, commissions or concessions allowed or reallowed or paid to dealers.
To comply with the securities laws of certain jurisdictions, if applicable,
shares of Series A common stock can be offered or sold in such jurisdictions
only through registered or licensed brokers or dealers. In addition, in certain
jurisdictions shares of Series A common stock may not be offered or sold unless
they have been registered or qualified for sale in such jurisdictions or an
exemption from registration or qualification is available and is complied with.
One or more prospectus supplements and, if necessary, post - effective
amendments to the registration statement of which this prospectus is a part, may
be filed with the Securities and Exchange Commission to reflect the disclosure
of additional information with respect to the distribution of shares of Series A
common stock pursuant to this prospectus.
We are responsible for expenses incident to the registration under the
Securities Act of 1933, as amended, of the offer and sale of shares of Series A
common stock by the selling stockholder, subject to the limitations set forth
in the stock purchase agreement to which we and the selling stockholder are
party.
We have agreed to indemnify the selling stockholder and any underwriters
they may use against certain civil liabilities, including liabilities under the
Securities Act of 1933, as amended.
LEGAL MATTERS
Certain legal matters with respect to the validity of the shares of Series
A common stock offered by this prospectus will be passed upon for us by Baker
Botts L.L.P., New York, New York, and for any underwriters, dealers or agents,
by counsel named in the applicable prospectus supplement.
EXPERTS
The consolidated balance sheets of Liberty Media Corporation and
subsidiaries ("New Liberty" or "Successor") as of December 31, 2001 and 2000,
and the related consolidated statements of operations, comprehensive earnings,
stockholders' equity, and cash flows for the years ended December 31, 2001 and
2000 and the period from March 1, 1999 to December 31, 1999 (Successor periods)
and from January 1, 1999 to February 28, 1999 (Predecessor period) have been
incorporated by reference herein in reliance upon the report, dated March 8,
2002, of KPMG LLP, independent certified public accountants, incorporated by
reference herein, and upon the authority of said firm as experts in accounting
and auditing.
The KPMG LLP report states that Liberty Media Corporation changed its
method of accounting for derivative instruments and hedging activities in 2001.
In addition, the KPMG LLP report contains an explanatory paragraph that
states that, effective March 9, 1999, AT&T Corp., the former parent company of
New Liberty, acquired Tele-Communications, Inc., the former parent company of
Liberty Media Corporation, in a business combination accounted for as a
purchase. As a result of the acquisition, the consolidated financial information
for the periods after the acquisition is presented on a different basis than
that for the periods before the acquisition and, therefore, is not comparable.
9
The consolidated balance sheets of Telewest Communications plc and
subsidiaries as of December 31, 2001 and 2000, and the related consolidated
statements of operations, shareholders' equity and comprehensive income, and
cash flows for each of the years in the three-year period ended December 31,
2001, have been incorporated by reference herein in reliance upon the report,
dated February 28, 2002, of KPMG Audit Plc, independent chartered accountants,
incorporated by reference herein, and upon the authority of said firm as experts
in accounting and auditing.
Our Annual Report on Form 10-K for the year ended December 31, 2001, which
is incorporated by reference in this prospectus, includes the consolidated
balance sheet of UnitedGlobalCom, Inc. (a Delaware corporation f/k/a New
UnitedGlobalCom, Inc.) and subsidiaries as of December 31, 2001, and the related
consolidated statements of operations and cash flows for the period from
February 5, 2001 (inception) through December 31, 2001, and the consolidated
balance sheets of UGC Holdings, Inc. (a Delaware corporation f/k/a
UnitedGlobalCom, Inc.) and subsidiaries as of December 31, 2001 and 2000, and
the related consolidated statements of operations and comprehensive (loss)
income, stockholders' (deficit) equity and cash flows for each of the three
years in the period ended December 31, 2001 (which we refer to as the UGC
Financial Statements). After reasonable efforts, we have not been able to obtain
the consent of Arthur Andersen LLP to the incorporation by reference in this
prospectus of their report with respect to the UGC Financial Statements, and we
have dispensed with the requirement under Section 7 of the Securities Act to
file their consent as an exhibit to the registration statement of which this
prospectus forms a part in reliance on Rule 437(a) promulgated under the
Securities Act. Because we have been unable to obtain the consent of Arthur
Andersen LLP to the incorporation by reference of their audit report, you will
not be able to recover any damages you may incur from Arthur Andersen LLP under
Section 11 of the Securities Act in the event that the UGC Financial Statements
contain any untrue statements of a material fact or omit to state a material
fact required to be stated therein, in each case by virtue of their
incorporation by reference herein.
WHERE TO FIND MORE INFORMATION
We have filed with the Securities and Exchange Commission a registration
statement on Form S-3 under the Securities Act with respect to the securities
being offered by this prospectus. This prospectus, which forms a part of the
registration statement, does not contain all the information included in the
registration statement and the exhibits thereto. You should refer to the
registration statement, including its exhibits and schedules, for further
information about our company and the securities being offered hereby.
The Securities and Exchange Commission allows us to "incorporate by
reference" information into this document, which means that we can disclose
important information to you by referring you to other documents. The
information incorporated by reference is an important part of this prospectus,
and is deemed to be part of this document except for any information superseded
by this document or any other document incorporated by reference into this
document. Any statement, including financial statements, contained in our Annual
Report on Form 10-K for the year ended December 31, 2001 shall be deemed to be
modified or superseded to the extent that a statement, including financial
statements, contained in this prospectus or in any other later incorporated
document modifies or supersedes that statement. We incorporate by reference the
documents listed below and any future filings made by us with the Securities and
Exchange Commission under Sections 13(a), 13(c), 14, or 15(d) of the Securities
Exchange Act of 1934:
- Annual Report on Form 10-K for the year ended December 31, 2001, filed
on April 1, 2002.
- Quarterly Report on Form 10-Q for the three-month period ending March
31, 2002, filed on May 14, 2002.
- Quarterly Report on Form 10-Q for the six-month period ending June 30,
2002, filed on August 14, 2002.
- Current Report on Form 8-K, filed on January 9, 2002.
- Current Report on Form 8-K, filed on February 13, 2002, as amended by
Current Report on Form 8-K/A, filed on April 15, 2002.
10
- Current Report on Form 8-K, filed on June 17, 2002.
- The description of our capital stock contained in Annex A to our Form
8-A filed under the Securities Exchange Act of 1934 on July 24, 2001,
and any amendment or report filed for the purpose of updating such
description.
You may request a copy of these filings at no cost, by writing or
telephoning the office of:
Corporate Secretary
Liberty Media Corporation
12300 Liberty Boulevard
Englewood, Colorado 80112
Telephone: 877-772-1518
Our annual, quarterly and special reports and other information are on file
with the Securities and Exchange Commission. You may read and copy any document
that we file at the Public Reference Room of the Securities and Exchange
Commission at 450 Fifth Street, NW, Washington, D.C. 20549. You may obtain
information on the operation of the Public Reference Room by calling the
Securities and Exchange Commission at 1-800-SEC-0330. You may also inspect our
filings at the regional office of the Securities and Exchange Commission located
at Citicorp, 500 West Madison Street, Suite 1400, Chicago, Illinois 60661 or
over the Internet at the Securities and Exchange Commission's website at
http://www.sec.gov. Information contained on any website referenced in this
prospectus is not incorporated by reference in this prospectus.
This prospectus incorporates by reference documents which include
information concerning The News Corporation Limited, AOL Time Warner Inc., USA
Interactive, Vivendi Universal, S.A., Sprint Corporation, Telewest
Communications plc, Motorola Inc., IDT Corporation and UnitedGlobalCom, Inc.,
among other public companies. All of these companies file reports and other
information with the Securities and Exchange Commission in accordance with the
requirements of the Securities Act and the Securities Exchange Act. Information
incorporated by reference into this prospectus concerning those companies has
been derived from the reports and other information filed by them with the
Securities and Exchange Commission. We had no part in the preparation of those
reports and other information, nor are they incorporated by reference into this
prospectus. You may read and copy any reports and other information filed by
those companies with the Securities and Exchange Commission as set forth above.
You should rely only on the information contained or incorporated by
reference into this prospectus or to which we have referred you. We have not
authorized any person to provide you with different information or to make any
representation not contained in this prospectus.
11
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND REGISTRATION.
The following table sets forth the costs and expenses, other than
underwriting discounts and commissions, payable by us in connection with the
transaction being registered. All amounts are estimates except the registration
fee.
Registration fees .................................... $ 12,393
Transfer agent and registrar fees and expenses ....... 25,000
Legal fees and expenses .............................. 100,000
Accounting fees and expenses ......................... 10,000
Printing and engraving expenses ...................... 25,000
Miscellaneous ........................................ 25,000
--------
Total ................................................ $197,393
========
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law ("DGCL") provides,
generally, that a corporation shall have the power to indemnify any person who
was or is a party or is threatened to be made a party to any threatened, pending
or completed action, suit or proceeding (except actions by or in the right of
the corporation) by reason of the fact that such person is or was a director,
officer, employee or agent of the corporation against all expenses, judgments,
fines and amounts paid in settlement actually and reasonably incurred by such
person in connection with such action, suit or proceeding if such person acted
in good faith and in a manner such person reasonably believed to be in or not
opposed to the best interests of the corporation and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his or her
conduct was unlawful. A corporation may similarly indemnify such person for
expenses actually and reasonably incurred by such person in connection with the
defense or settlement of any action or suit by or in the right of the
corporation, provided that such person acted in good faith and in a manner he or
she reasonably believed to be in or not opposed to the best interests of the
corporation, and, in the case of claims, issues and matters as to which such
person shall have been adjudged liable to the corporation, provided that a court
shall have determined, upon application, that, despite the adjudication of
liability but in view of all of the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses which such court
shall deem proper.
Section 102(b)(7) of the DGCL provides, generally, that the certificate of
incorporation may contain a provision eliminating or limiting the personal
liability of a director to the corporation or its stockholders for monetary
damages for breach of fiduciary duty as a director, provided that such provision
may not eliminate or limit the liability of a director (i) for any breach of the
director's duty of loyalty to the corporation or its stockholders, (ii) for acts
or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) under section 174 of Title 8 of the Delaware
General Corporation Law, or (iv) for any transaction from which the director
derived an improper personal benefit. No such provision may eliminate or limit
the liability of a director for any act or omission occurring prior to the date
when such provision became effective.
Article V, Section E of the Restated Certificate of Incorporation, as
amended (the "Liberty Charter"), of Liberty Media Corporation, a Delaware
corporation ("Liberty"), provides as follows:
1. Limitation On Liability. To the fullest extent permitted by the DGCL as
the same exists or may hereafter be amended, a director of Liberty shall not be
liable to Liberty or any of its stockholders for monetary damages for breach of
fiduciary duty as a director. Any repeal or modification of this paragraph 1
shall be prospective only and shall not adversely affect any limitation, right
or protection of a director of Liberty existing at the time of such repeal or
modification.
II-1
2. Indemnification.
(a) Right to Indemnification. Liberty shall indemnify and hold harmless, to
the fullest extent permitted by applicable law as it presently exists or may
hereafter be amended, any person who was or is made or is threatened to be made
a party or is otherwise involved in any action, suit or proceeding, whether
civil, criminal, administrative or investigative (a "proceeding") by reason of
the fact that he, or a person for whom he is the legal representative, is or was
a director or officer of Liberty or is or was serving at the request of Liberty
as a director, officer, employee or agent of another corporation or of a
partnership, joint venture, trust, enterprise or nonprofit entity, including
service with respect to employee benefit plans, against all liability and loss
suffered and expenses (including attorneys' fees) reasonably incurred by such
person. Such right of indemnification shall inure whether or not the claim
asserted is based upon matters which antedate the adoption of Section E of the
Liberty Charter. Liberty shall be required to indemnify or make advances to a
person in connection with a proceeding (or part thereof) initiated by such
person only if the proceeding (or part thereof) was authorized by the board of
directors of Liberty.
(b) Prepayment of Expenses. Liberty shall pay the expenses (including
attorneys' fees) incurred by a director or officer in defending any proceeding
in advance of its final disposition, provided, however, that the payment of
expenses incurred by a director or officer in advance of the final disposition
of the proceeding shall be made only upon receipt of an undertaking by the
director or officer to repay all amounts advanced if it should be ultimately
determined that the director or officer is not entitled to be indemnified under
this paragraph or otherwise.
(c) Claims. If a claim for indemnification or payment of expenses under
this paragraph is not paid in full within 60 days after a written claim therefor
has been received by Liberty, the claimant may file suit to recover the unpaid
amount of such claim and, if successful in whole or in part, shall be entitled
to be paid the expense of prosecuting such claim. In any such action, Liberty
shall have the burden of proving that the claimant was not entitled to the
requested indemnification or payment of expenses under applicable law.
(d) Non-Exclusivity of Rights. The rights conferred on any person by this
paragraph shall not be exclusive of any other rights which such person may have
or hereafter acquire under any statute, provision of the Liberty Charter,
Liberty's Bylaws, agreement, vote of stockholders or resolution of disinterested
directors or otherwise.
(e) Other Indemnification. Liberty's obligation, if any, to indemnify any
person who was or is serving at its request as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust, enterprise or
nonprofit entity shall be reduced by any amount such person may collect as
indemnification from such other corporation, partnership, joint venture, trust,
enterprise or nonprofit entity.
3. Amendment or Repeal. Any amendment, modification or repeal of the
foregoing provisions of Section E of the Liberty Charter shall not adversely
affect any right or protection hereunder of any person in respect of any act or
omission occurring prior to the time of such amendment, modification or repeal.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
(a) Exhibits. The following is a complete list of Exhibits filed as part of
this registration statement.
EXHIBIT NO. DOCUMENT
----------- --------
4.1 Specimen certificate for shares of Series A common
stock, par value $.01 per share, of the Registrant
(incorporated by reference to Exhibit 4.1 to the
Registration Statement on Form S-1 of Liberty Media
Corporation (File No. 333-55998) as filed on February
21, 2001).
4.2 Stock Purchase Agreement, dated as of May 8, 2002, among
Liberty Media Corporation, LDIG OTV, Inc., MIH Limited
and OTV Holdings Limited (incorporated by reference to
Exhibit 7(b) to the Statement of Liberty Media
Corporation in respect of OpenTV Corp. on Schedule 13D
as filed on July 22, 2002).+
4.3 Amendment to Stock Purchase Agreement, dated as of
August 27, 2002, among Liberty Media Corporation, LDIG
OTV, Inc., MIH Limited and OTV Holdings Limited.+,++
II-2
EXHIBIT NO. DOCUMENT
----------- --------
5.1 Opinion of Baker Botts L.L.P., with respect to the
validity of the shares of Series A common stock being
registered.
23.1 Consent of KPMG LLP.++
23.2 Consent of KPMG Audit Plc.++
23.3 Consent of Baker Botts L.L.P. (included in Exhibit 5.1).
24.1 Power of Attorney.++
-----------------------------------------------
+ Confidential treatment has been granted for this exhibit.
++ Previously filed.
(b) Financial Statement Schedules. Schedules not listed above have been
omitted because the information to be set forth therein is not material, not
applicable or is shown in the financial statements or notes thereto.
ITEM 17. UNDERTAKINGS.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of
Liberty pursuant to the foregoing provisions, or otherwise, Liberty has been
advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Securities Act of
1933 and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by Liberty of
expenses incurred or paid by a director, officer or controlling person of
Liberty in the successful defense of any action, suit or proceeding) is asserted
by such director, officer or controlling person in connection with the
securities being registered, Liberty will, unless in the opinion of its counsel
the matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act of 1933 and will be
governed by the final adjudication of such issue.
Liberty hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement;
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the
effective date of this registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in this registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of
prospectus filed with the Securities and Exchange Commission pursuant
to Rule 424(b) under the Securities Act of 1933 if, in the aggregate,
the changes in volume and price represent no more than a 20% change in
the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement;
(iii)To include any material information with respect to the plan of
distribution not previously disclosed in this registration statement
or any material change to such information in this registration
statement;
II-3
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof; and
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the
termination of the offering.
(4) That for purposes of determining any liability under the Securities
Act of 1933, the information omitted from the form of prospectus filed
as part of this registration statement in reliance upon Rule 430A and
contained in a form of prospectus filed by the registrant pursuant to
Rule 424(b)(1) or (4) or 497(h) under the Securities Act of 1933 shall
be deemed to be part of this registration statement as of the time it
was declared effective.
(5) That for the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement relating
to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
(6) That, for purposes of determining any liability under the Securities
Act of 1933, each filing of the registrant's annual report pursuant to
Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (and,
where applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the registration statement
shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering
thereof.
II-4
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
has duly caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the city of Denver, state of
Colorado, on September 19, 2002.
LIBERTY MEDIA CORPORATION
By: /s/ ROBERT R. BENNETT
--------------------------------------
Name: Robert R. Bennett
Title: President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, as amended,
this registration statement has been signed by the following persons in the
capacities and on the dates indicated:
NAME TITLE DATE
---- ----- ----
* Chairman of the Board and Director September 19, 2002
-------------------------
John. C. Malone
* President, Chief Executive Officer September 19, 2002
------------------------- (Principal Executive Officer) and
Robert R. Bennett Director
* Executive Vice President, Chief September 19, 2002
------------------------- Operating Officer and Director
Gary S. Howard
* Senior Vice President and Treasurer September 19, 2002
------------------------- (Principal Financial Officer)
David J.A. Flowers
* Senior Vice President and Controller September 19, 2002
------------------------- (Principal Accounting Officer)
Christopher W. Shean
* Director September 19, 2002
-------------------------
Donne F. Fisher
* Director September 19, 2002
-------------------------
Paul A. Gould
* Director September 19, 2002
-------------------------
Jerome H. Kern
* Director September 19, 2002
-------------------------
Larry E. Romrell
* Director September 19, 2002
-------------------------
David E. Rapley
By: /s/ Robert W. Murray, Jr.
-----------------------------
Attorney-in-Fact
II-5
EXHIBIT INDEX
EXHIBIT NO. DOCUMENT
4.1 Specimen certificate for shares of Series A common stock, par
value $.01 per share, of the Registrant (incorporated by
reference to Exhibit 4.1 to the Registration Statement on Form
S-1 of Liberty Media Corporation (File No. 333-55998) as filed
on February 21, 2001).
4.2 Stock Purchase Agreement, dated as of May 8, 2002, among Liberty
Media Corporation, LDIG OTV, Inc., MIH Limited and OTV
Holdings Limited (incorporated by reference to Exhibit 7(b) to
the Statement of Liberty Media Corporation in respect of
OpenTV Corp. on Schedule 13D as filed on July 22, 2002).+
4.3 Amendment to Stock Purchase Agreement, dated as of August 27,
2002, among Liberty Media Corporation, LDIG OTV, Inc., MIH
Limited and OTV Holdings Limited.+,++
5.1 Opinion of Baker Botts L.L.P., with respect to the validity of
the shares of Series A common stock being registered.
23.1 Consent of KPMG LLP.++
23.2 Consent of KPMG Audit Plc.++
23.3 Consent of Baker Botts L.L.P. (included in Exhibit 5.1).
24.1 Power of Attorney.++
-----------------------------------------------
+ Confidential treatment has been granted for this exhibit.
++ Previously filed.