exv10w1



 





Exhibit 10.1




LIBERTY JUPITER, INC.




SECOND AMENDED AND RESTATED STOCKHOLDERS’ AGREEMENT




     THIS SECOND AMENDED AND RESTATED STOCKHOLDERS’ AGREEMENT (the “Agreement”) is entered into
this 14th day of August, 2007, by and among LIBERTY GLOBAL, INC., a Delaware corporation (“LGI”),
LGJ HOLDINGS LLC, a Delaware limited liability company (“LGJ Holdings”), Miranda Curtis (“Curtis”),
Graham Hollis (“Hollis”), Yasushige Nishimura (“Nishimura”), Liberty Jupiter, Inc., a Delaware
corporation (the “Corporation”), and, solely for the purposes of Section 7 of this Agreement,
LIBERTY MEDIA INTERNATIONAL, INC., a Delaware corporation (“LMI”), and LIBERTY MEDIA INTERNATIONAL
HOLDINGS, LLC, a Delaware limited liability company (“LMINT LLC”). Each of LGJ Holdings, Curtis,
Hollis and Nishimura is referred to in this Agreement individually as a “Stockholder,” and are
referred to collectively in this Agreement as “Stockholders.”



Recitals




     The Stockholders own all of the issued and outstanding Shares of the Corporation, as follows:



	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	Percentage of
	 	 	 	 	 	 	 	 	Issued and
	 	 	 	 	 	 	 	 	Outstanding
	Stockholder	 	Class	 	Number of Shares	 	in Class
	 
	LGJ Holdings
	 	Class A Common	 	 	230.00000	 	 	 	28.75	%
	 
	 	Class B Common	 	 	3,198.00000	 	 	 	100.00	%
	 
	 	Class C Common	 	 	2.00000	 	 	 	100.00	%
	 
	 	Preferred	 	 	93,378.87298	 	 	 	100.00	%
	 
	Curtis
	 	Class A Common	 	 	320.00000	 	 	 	40.00	%
	 
	Hollis
	 	Class A Common	 	 	200.00000	 	 	 	25.00	%
	 
	Nishimura
	 	Class A Common	 	 	50.00000	 	 	 	6.25	%






     The parties to this Agreement other than LGI and LGJ Holdings entered into a Amended and
Restated Stockholders’ Agreement (the “2004 Agreement”) dated May 21, 2004 with Robert R. Bennett,
a former stockholder of the Corporation, to provide for certain exchange and repurchase rights and
other matters relating to the relationship among them. Since that date, LGJ Holdings has acquired
all of the Shares formerly held by LMINT LLC and Robert R. Bennett and certain of the Shares
formerly held by Nishimura. The parties hereto desire to substitute LGI and LGJ Holdings for LMI
and LMINT LLC, respectively, as parties and to amend and restate the provisions of the 2004
Agreement.



 









 





     In consideration of the mutual promises and covenants contained in this Agreement and
intending to be legally bound, the parties agree that the 2004 Agreement shall be amended and
restated in its entirety to provide as follows:



Agreement




     1. Definitions. The following terms, when used in this Agreement, have the meanings set forth
below:



          (a) “Affiliate” means, with respect to any Person, any Person that directly or indirectly
Controls, is Controlled by, or is under common Control with such Person.




          (b) “Business Day” means any day other than Saturday, Sunday or a day on which banking
institutions in Denver, Colorado, are required or authorized to be closed.




          (c) “Class A Shares” means Class A common stock, par value $.01 per share, of the Corporation
and any security received in exchange or substitution for such stock.




          (d) “Class B Shares” means Class B common stock, par value $.01 per share, of the Corporation
and any security received in exchange or substitution for such stock.




          (e) “Class C Shares” means Class C common stock, par value $.01 per share, of the Corporation
and any security received in exchange or substitution for such stock.




          (f) “Common Shares” means any of the Class A Shares, the Class B Shares, and the Class C
Shares.




          (g) “Control” means the possession, direct or indirect, of the power to direct or cause the
direction of the management and policies of a Person, whether through the ownership of voting
securities, by contract or otherwise.




          (h) “Exchange Notice” means a notice delivered to LGI or to an Investor pursuant to Section 3,
specifying the number of Class A Shares the provider of such notice desires to exchange for LBTYA
Shares.




          (i) “Exchanged Shares” has the meaning specified in Section 3(e).




          (j) “Fair Market Value” means the cash price at which a willing seller would sell and a
willing buyer would buy, both having full knowledge of the relevant facts and being under no
compulsion to sell, in an arm’s-length transaction without time constraints, determined, as to any
LBTYA Shares, in accordance with Section 3(d) below and, as to any Class A Shares, in accordance
with Section 3(e) below.




          (k) “Investor” means each of Curtis, Hollis and Nishimura.




 









 








          (l) “Loan Facility” means the proposed JPY 85,000,000,000 Senior Secured Term Loan Facility
that LGJ Holdings is negotiating as of the date of this Agreement with Citibank, N.A., Tokyo
Branch, as Sole Lead Arranger and Sole Book Runner and as Administrative Agent.




          (m) “LBTYA Share” means a share of Series A Common Stock, par value $.01 per share, of LGI and
any security received in exchange or substitution for such a share.




          (n) “Person” means a human being or a corporation, partnership, limited liability company,
limited liability partnership, trust, unincorporated organization, association or other entity.




          (o) “Preferred Shares” means shares of preferred stock, $.01 par value per share, of the
Corporation and any security received in exchange or substitution for such stock.




          (p) “Shares” means any of the Class A Shares, the Class B Shares, the Class C Shares and the
Preferred Shares.




          (q) “Transfer” means a sale, exchange, assignment, pledge, grant of a security interest, or
other disposition (whether voluntary, involuntary or by operation of law).




     2. Share Transfer Restrictions. No Investor will directly or indirectly Transfer or agree to
Transfer any Class A Shares except (a) by a Transfer of Class A Shares to LGJ Holdings for purposes
of exchanging such Class A Shares for LBTYA Shares in accordance with Section 3 below, (b) with
the prior written consent of LGI, or (c) (i) to a trust or similar arrangement established
primarily for the benefit of such Investor or such Investor’s immediate family members, (ii) to the
spouse and lineal descendants of such Investor (including an executor, administrator or personal
representative of a deceased Investor for the benefit of such Person), or (iii) to a Person that is
Controlled by the transferring Investor and that continues to be Controlled by the transferring
Investor at all times while it owns any Class A Shares, so long as any such Transfer does not
subject LGI, LGJ Holdings or the Corporation to any additional legal requirements or restrictions
or to any liability or obligation. Any attempted Transfer of Class A Shares by an Investor other
than in accordance with this Section 2 will be void ab initio. Any Person to whom Class A Shares
are transferred in accordance with clause (b) or (c) of this Section 2 automatically will be
substituted for the transferring Investor as a party to this Agreement with respect to such Class A
Shares as of the effective time of such Transfer and thereafter shall be considered an Investor for
all purposes of this Agreement.



     3. Exchange of Class A Shares. LGI and each Investor will have the right to require the exchange
of Class A Shares for LBTYA Shares in accordance with the following provisions:



          (a) LGI Exchange Right. LGI will have the right, exercisable by delivery of a Exchange
Notice to an Investor, to require the exchange of all or any part of the Class A Shares held by
such Investor for a number of LBTYA Shares having a Fair Market Value equivalent to the Fair Market
Value of the number of Class A Shares being exchanged. If LGI exercises its right under this
Section 3(a) to require the exchange of Class A Shares held by an Investor, LGI



 









 






will use commercially reasonable efforts to cause such exchange to be accomplished without the
imposition of tax liability on the Investor whose Class A Shares are exchanged.




          (b) Investor Exchange Right. Each Investor (or, in the case of a deceased Investor, his or
her personal representative) will have the right, exercisable by delivery of a Exchange Notice to
LGI, to require the exchange of all of the Class A Shares held by such Investor for a number of
LBTYA Shares having a Fair Market Value equivalent to the Fair Market Value of the number of Class
A Shares being exchanged.




          (c) Exchange Notice Date. The date on which any Exchange Notice pursuant to Section 3(a)
or (b) is delivered is the “Exchange Notice Date.”




          (d) Fair Market Value of LBTYA Shares. For purposes of this Section 3, the Fair Market
Value of an LBTYA Share will be equal to the last reported sales price of an LBTYA Share on the
last trading day immediately preceding the Exchange Notice Date, as reported by the principal U. S.
securities exchange on which LBTYA Shares are traded or, if LBTYA Shares are then traded in the
over-the-counter market, as reported by Nasdaq Stock Market or any recognized successor
organization.




          (e) Fair Market Value of Class A Shares. For purposes of this Section 3, the Fair Market
Value of Class A Shares being exchanged pursuant to this Section 3 (“Exchanged Shares”) will be
determined by agreement between LGI and the Investor whose Class A Shares are being exchanged. If
LGI and such Investor cannot agree on the Fair Market Value of the Exchanged Shares within thirty
(30) days following the Exchange Notice Date, the Fair Market Value of the Exchanged Shares will be
determined by a qualified independent appraiser jointly appointed by LGI and the Investor or, if
they are unable to agree on an appraiser within thirty-five (35) days following the Exchange Notice
Date, each of LGI and the Investor will appoint a qualified independent appraiser to determine the
Fair Market Value of the Exchanged Shares as of the Exchange Notice Date. Any guarantee of, or
pledge of assets as collateral for, the Loan Facility by the Corporation will not be taken into
account in any determination of the Fair Market Value of the Exchanged Shares, and LGI and the
Investor shall so instruct any appraiser appointed pursuant to this Section 3(e). If the Fair
Market Value of the Exchanged Shares as determined by the appraisal indicating the lower value is
at least 90% of the Fair Market Value of the Exchanged Shares as determined by the appraisal
indicating the higher value, the Fair Market Value of the Exchanged Shares will be deemed to be the
average of the two values. If the Fair Market Value of the Exchanged Shares as determined by the
appraisal indicating the lower value is less than 90% of the Fair Market Value of the Exchanged
Shares as determined by the appraisal indicating the higher value, the two appraisers performing
such valuations will appoint a third appraiser, whose determination of Fair Market Value will
control. LGI will bear the cost of any appraiser appointed by it. The Investor will bear the cost
of any appraiser appointed by the Investor. Each of LGI and the Investor will bear one-half of the
cost of any appraiser appointed jointly by LGI and the Investor or by the appraisers appointed
respectively by LGI and the Investor. Notwithstanding the foregoing, if a determination of Fair
Market Value of Exchanged Shares has been made by independent appraisal under this Section 3(e)
within thirty (30) days preceding the Exchange Notice Date, then the result of such appraisal
process will determine the Fair Market Value of Exchanged Shares if LGI and the Investor are unable
to agree on Fair Market Value within thirty (30) days following the Exchange Notice Date.




 









 








          (f) Representations of Investors Upon Exchange. Immediately prior to any exchange of such
Investor’s Class A Shares to LBTYA Shares and as a condition to such exchange, the applicable
Investor will provide to LGI and LGJ Holdings such written representations, warranties and opinions
of counsel as are reasonably deemed necessary by LGI and LGJ Holdings to establish compliance with
applicable securities laws and regulations.




          (g) Delivery of Shares. LGI will deliver LBTYA Shares to the Investor, and the Investor
will deliver Class A Shares to LGJ Holdings at a time and place mutually agreeable to Investor, LGI
and LGJ Holdings, provided however, if LGI, LGJ Holdings and Investor are unable to agree as to
such time and place, the closing will occur at the offices of LGI on the later of (i) ten (10)
Business Days following the Exchange Notice Date or, if a determination of the Fair Market Value of
the Class A Shares is necessary pursuant to this Section 3, ten (10) Business Days following the
completion of such determination.




     4. Endorsements on Stock Certificates.




     (a) Class A Shares. All certificates representing the Class A Shares will be
endorsed with the following legends:




“THE STOCK REPRESENTED BY THIS CERTIFICATE IS SUBJECT TO THE TERMS
OF A STOCKHOLDERS’ AGREEMENT AMONG THE CORPORATION AND ITS
STOCKHOLDERS (THE “AGREEMENT”), WHICH AGREEMENT, AMONG OTHER THINGS,
CONTAINS RESTRICTIONS ON TRANSFER WITH RESPECT TO SUCH STOCK. A
COPY OF THE AGREEMENT IS ON FILE WITH THE CORPORATION, AND ANY
ATTEMPTED TRANSFER OR PLEDGE IN VIOLATION OF THE TERMS OF SUCH
AGREEMENT IS NULL AND VOID. SUCH AGREEMENT MAY BE INSPECTED AT THE
PRINCIPAL OFFICE OF THE CORPORATION DURING NORMAL BUSINESS HOURS.




THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933 (THE “ACT”) OR THE SECURITIES LAWS OF ANY STATE AND HAVE
BEEN PURCHASED FOR INVESTMENT PURPOSES. THEY MAY NOT BE OFFERED OR
SOLD UNLESS SUBSEQUENTLY REGISTERED UNDER THE ACT AND ALL APPLICABLE
STATE SECURITIES LAWS OR UNLESS EXEMPTION FROM THE REGISTRATION
REQUIREMENTS THEREOF ARE AVAILABLE FOR THE TRANSACTION, AS
ESTABLISHED TO THE SATISFACTION OF THE COMPANY, BY OPINION OF
COUNSEL OR OTHERWISE.”


Each Investor agrees that, upon signing this Agreement, he or she will surrender to the Corporation
any certificates such Investor holds representing Class A Shares for the purpose of reissuing such
certificates with the above legend affixed.




 









 








          (b) LBTYA Shares. All certificates representing LBTYA Shares into which any Class A
Shares are exchanged will be endorsed with the following legend:





THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933 (THE “ACT”) OR THE SECURITIES LAWS OF ANY STATE AND HAVE
BEEN PURCHASED FOR INVESTMENT PURPOSES. THEY MAY NOT BE OFFERED OR
SOLD UNLESS SUBSEQUENTLY REGISTERED UNDER THE ACT AND ALL APPLICABLE
STATE SECURITIES LAWS OR UNLESS EXEMPTION FROM THE REGISTRATION
REQUIREMENTS THEREOF ARE AVAILABLE FOR THE TRANSACTION, AS
ESTABLISHED TO THE SATISFACTION OF THE COMPANY, BY OPINION OF
COUNSEL OR OTHERWISE.”



     5. Consent to Pledge and Guaranty. Each of the Investors hereby irrevocably consents to the
following as security for the repayment of LGJ Holdings’ obligations under the Loan Facility: (a) a
pledge of the membership interests in LGJ Holdings; (b) a pledge of the assets of LGJ Holdings,
including, without limitation, all of the issued and outstanding shares of the capital stock of
Liberty Japan, Inc., a Delaware corporation (“Liberty Japan”), and all of the Shares of the
Corporation owned by LGJ Holdings; (c) a pledge of the assets of each of LGJ Holdings’
subsidiaries, including Liberty Japan and the Corporation, whether such assets are owned as of the
date of this Agreement or are acquired after the date of this Agreement, other than the units of
ownership (“Units”) in LMI/Sumisho Super Media, LLC, a Delaware limited liability company (“Super
Media”) held by Liberty Japan or the Corporation, but including any assets received by Liberty
Japan or the Corporation upon the dissolution of Super Media; (d) the guaranty by Liberty Japan of
100% of LGJ Holdings’ obligations under the Loan Facility, and (e) the guaranty by the Corporation
of a portion of LGJ Holdings’ obligations under the Loan Facility, which portion shall equal, as of
any relevant date, the value of the Corporation’s assets multiplied by the percentage obtained by
dividing the number of Common Shares owned by LGJ Holdings as of such date by the total number of
Common Shares issued and outstanding as of such date.



     6. Miscellaneous.




(a) Notices. All notices and other communications given hereunder shall be in writing and
shall be addressed as follows:



     If to LGI:


Liberty Global, Inc.

12300 Liberty Boulevard

Englewood, CO 80112

Attn: General Counsel

Telecopy: 303-220-6691




     If to LGJ Holdings:



 









 




LGJ Holdings, LLC

12300 Liberty Boulevard

Englewood, CO 80112

Attn: General Counsel

Telecopy: 303-220-6691




     If to the Corporation:


Liberty Jupiter, Inc.

12300 Liberty Boulevard

Englewood, CO 80112

Attn: General Counsel

Telecopy: 303-220-6691





If to an Investor, at the address specified for such Investor on Schedule
6(a) of this Agreement


Any notice given in accordance with this Section 6(a) will be deemed to have been given (a) on the
date of receipt if personally delivered, (b) five (5) days after being sent by U.S. mail, postage
prepaid, (c) the date of receipt, if sent by registered or certified U.S. mail, postage prepaid,
(d) one (1) Business Day after receipt, if sent by confirmed facsimile or telecopier transmission
or (e) one (1) Business Day after having been sent by a nationally recognized overnight courier
service, provided that any notice of a change of notice address by any party will be deemed given
as to any other party only upon actual receipt by such other party. In computing time periods, the
day of the notice will be included.




          (b) Binding Agreement. This Agreement constitutes the entire agreement among the parties
with respect to the subject matter hereof, and may not be modified except by a writing executed by
all parties hereto, and no waiver of any provision of this Agreement shall in any event be
effective unless the same shall be in writing and signed by the party against whom such waiver is
sought to be enforced, and then such waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given. This Agreement shall be binding upon, and
inure to the benefit of, the parties and their respective successors and permitted assigns.




          (c) Governing Law. The provisions of this Agreement shall be construed and interpreted,
and all rights and obligations of the parties hereto determined, in accordance with the internal
laws of the State of Colorado. Each party hereby irrevocably submits to the general jurisdiction of
the state and federal courts located in the State of Colorado in any action to interpret or enforce
this Agreement, and irrevocably waives any objection to jurisdiction such Investor may have based
on inconvenience of the forum.




          (d) Severability. Whenever possible each provision of this Agreement shall be interpreted
in such manner as to be effective and valid under applicable law, but if any provision of this
Agreement shall be prohibited or invalid under such law, such provision shall be ineffective only
to the extent of such prohibition or invalidity, without invalidating the remainder of such
provision of this Agreement.




 









 








          (e) Interpretation; Headings. The headings of the Sections of this Agreement have been
inserted for convenience of reference only and will not be deemed to be a part of this Agreement or
to affect its interpretation. Whenever the context may require, any pronouns used herein will
include the corresponding masculine, feminine or neuter forms, and the singular form of names and
pronouns will include the plural and vice versa.




          (f) Counterparts. This Agreement may be executed in any number of counterparts, each of
which shall be deemed to be an original and all of which, when taken together, shall constitute one
and the same instrument, and each of the parties hereto may execute this Agreement by signing any
such counterpart.




          (g) Further Assurances. Each party to this Agreement agrees that such party will
execute and deliver such additional documents and instruments and will take such further actions as
may be reasonably necessary or appropriate to carry out the provisions of this Agreement.




     7. Substitution of Parties. The parties to this Agreement, including LMI and LMINT LLC, agree
that LGI and LGJ Holdings are hereby substituted for LMI and LMINT LLC, respectively, as parties
for all purposes under this Agreement, and that each of LMI and LMINT LLC is relinquishing all of
its rights, and is being relieved of all of its obligations, under the 2004 Agreement.



* * * * *




 









 








     IN WITNESS WHEREOF, the undersigned have hereunto set their hands, by and through their duly
authorized signatories, as of the day and year first above written.



	 	 	 	 	 
	 	LIBERTY GLOBAL, INC.

 	 
	 	By:  	/s/ Elizabeth M. Markowski
 	 
	 	 	Elizabeth M. Markowski 	 
	 	 	Senior Vice President 	 
	 



	 	 	 	 	 
	 	LGJ HOLDINGS LLC

 	 
	 	By:  	/s/ Elizabeth M. Markowski
 	 
	 	 	Elizabeth M. Markowski 	 
	 	 	Senior Vice President 	 
	 



	 	 	 	 	 
	 	                                                     /s/ Miranda Curtis
 	 
	 	Miranda Curtis 	 
	 	 	 



	 	 	 	 	 
	 	                                                     /s/ Graham Hollis
 	 
	 	Graham Hollis 	 
	 	 	 



	 	 	 	 	 
	 	                                                     /s/ Yasushige Nishimura
 	 
	 	Yasushige Nishimura 	 
	 	 	 
	 	LIBERTY JUPITER, INC.

 	 
	 	By:  	/s/ Elizabeth M. Markowski
 	 
	 	 	Elizabeth M. Markowski 	 
	 	 	Senior Vice President 	 



 









 






	 	 	 	 	 


Solely for purposes of Section 7 hereof:




	 	 	 	 	 
	 	LIBERTY MEDIA INTERNATIONAL, INC.

 	 
	 	By:  	/s/ Elizabeth M. Markowski
 	 
	 	 	Elizabeth M. Markowski 	 
	 	 	Senior Vice President 	 
	 



	 	 	 	 	 
	 	LIBERTY MEDIA INTERNATIONAL HOLDINGS, LLC

 	 
	 	By:  	/s/ Elizabeth M. Markowski
 	 
	 	 	Elizabeth M. Markowski 	 
	 	 	Senior Vice President 	 



 









 






	 	 	 	 	 



Schedule 6(a)




Investors’ Notice Addresses




Miranda Curtis

Littlebrook Farm

Little Tew

Oxfordshire

OX7 4JJ

United Kingdom




Graham Hollis

64 Spyglass Drive

Littleton, CO 80123




Yasushige Nishimura

2-41-1 Inukura, Miyamae-ku

Kawasaki, Kanagawa 216-0011

Japan