EXHIBIT 4.2
REGISTRATION RIGHTS AGREEMENT
Dated as of August 12, 2002
by and among
Ziff ▇▇▇▇▇ Holdings Inc.,
Ziff ▇▇▇▇▇ Media Inc.,
and
The Guarantors set forth on Schedule A hereto
This Registration Rights Agreement (this "Agreement") is made and entered
into as of August 12, 2002 by and among Ziff ▇▇▇▇▇ Holdings Inc. a Delaware
corporation ("Parent"), Ziff ▇▇▇▇▇ Media Inc., a Delaware corporation (the
"Issuer" and together with Parent, the "Company") and the respective
subsidiaries of Parent and the Issuer listed on Schedule A (the "Guarantors").
This Agreement is made in connection with the Company's offer to exchange
$250.0 million 12% Series B Senior Subordinated Notes due 2010 (the "Old Notes")
for cash (other than ▇▇▇▇▇▇ ▇▇▇▇▇ who received Series D Preferred Stock and
Equity Sponsor Warrants), Series A Notes, Series E Preferred Stock and Senior
Subordinated Note Warrants (the "Exchange Consideration"), pursuant to the terms
and conditions set forth in the offering memorandum, solicitation of releases,
consents and acceptances of the disclosure statement, dated June 17, 2002, (the
"Offering Memorandum and Disclosure Statement"). In order to induce the holders
of Old Notes to exchange their Old Notes for the Exchange Consideration, the
Company has agreed to provide the registration rights set forth in this
Agreement.
The parties hereby agree as follows:
SECTION 1. DEFINITIONS
As used in this Agreement, the following capitalized terms shall have the
following meanings:
Act: The Securities Act of 1933, as amended.
Affiliate: As defined in Rule 144 of the Act.
Broker-Dealer: Any broker or dealer registered under the Exchange Act.
Business Day: A day other than a Saturday, Sunday or other day on which
commercial banks are authorized or required to close under the laws of the
United States.
Closing Date: August 12, 2002.
Commission: The Securities and Exchange Commission.
Common Stock: Parent's common stock, par value $0.01.
Consummate: An Exchange Offer shall be deemed "Consummated" for purposes of
this Agreement upon the occurrence of (a) the filing and effectiveness under the
Act of the Exchange Offer Registration Statement relating to the Exchange
Securities to be issued in the Exchange Offer, (b) the maintenance of such
Exchange Offer Registration Statement continuously effective and the keeping of
the Exchange Offer open for a period not less than the period required pursuant
to Section 3(b) hereof, (c) the delivery by the Company to the Registrar under
the Indenture of Series B Notes in the same aggregate principal amount as the
aggregate principal amount of Series A Notes tendered by Holders thereof
pursuant to the Exchange Offer for the
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Series A Notes, or (d) the delivery by the Company to the Series E Holders of
shares of Series E-1 Preferred Stock in the same aggregate liquidation
preference amount as the aggregate liquidation preference amount of shares of
Series E Preferred Stock tendered by such Series E Holders thereof pursuant to
the Exchange Offer for the Series E Preferred Stock.
Dividend Payment Date: March 31, June 30, September 30 and December 31 of
each year, beginning September 30, 2002.
Equity Sponsor Warrants: Parent's warrants issued to ▇▇▇▇▇▇ ▇▇▇▇▇, each
representing the right to purchase one share of the Company's Common Stock at an
exercise price of $0.001.
Exchange Act: The Securities Exchange Act of 1934, as amended.
Exchange Consummation Deadline: As defined in Section 3(b) hereof.
Exchange Effectiveness Deadline: As defined in Section 3(a) hereof.
Exchange Filing Deadline: As defined in Section 3(a) hereof.
Exchange Offer: The exchange and issuance by the Company of (a) a principal
amount of Series B Notes (which shall be registered pursuant to the Exchange
Offer Registration Statement) equal to the outstanding principal amount of
Series A Notes or (b) shares of Series E-1 Preferred Stock (which shall be
registered pursuant to the Exchange Offer Registration Statement) with a
liquidation preference amount equal to the outstanding liquidation preference
amount of shares of Series E Preferred Stock, that are tendered by such Holders
in connection with such exchange and issuance.
Exchange Offer Registration Statement: The Registration Statements relating
to the respective Exchange Offers, including the related Prospectuses, for the
Series A Notes and Series E Preferred Stock, which may be included in a single
document.
Exchange Securities: The Series B Notes and Series E-1 Preferred Stock.
Exempt Resales: The transactions in which the Holders propose to sell
Transfer Restricted Securities to certain "qualified institutional buyers," as
such term is defined in Rule 144A under the Act, to certain "accredited
investors," as such term is defined in Rule 501(a)(1), (2), (3) and (7) of
Regulation D under the Act and pursuant to Regulation S under the Act.
Fifth Amended and Restated Charter: The Fifth Amended and Restated
Certificate of Incorporation of Ziff ▇▇▇▇▇ Holdings Inc.
Holders: As defined in Section 2 hereof.
Indenture: The indenture governing the Series A Notes and Series B Notes.
Initial Public Offering. A firm commitment underwritten offering registered
under the Act generating net cash proceeds of at least $50.0 million and
resulting in the Common Stock
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becoming registered under the Exchange Act.
Interest Payment Date: February 15 and August 15 of each year beginning
February 15, 2003.
Liquidated Damages: The Series A Liquidated Damages and Series E Liquidated
Damages.
Named Holder: As defined in Section 7(c)(iii) hereof.
Person: Means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization, limited
liability company or government or other entity.
Piggyback Registration: As defined in Section 5(a) hereof.
Prospectus: The prospectus included in a Registration Statement at the time
such Registration Statement is declared effective, as amended or supplemented by
any prospectus supplement and by all other amendments thereto, including
post-effective amendments, and all material incorporated by reference into such
Prospectus.
Recommencement Date: As defined in Section 7(d) hereof.
Registration Default: As defined in Section 6 hereof.
Registration Expenses. As defined in Section 8(a) hereof.
Registration Statement: Any registration statement of the Company and the
Guarantors relating to (a) an offering of Exchange Securities pursuant to an
Exchange Offer, (b) the registration for resale of the Series A/E Restricted
Securities pursuant to the Shelf Registration Statement or (c) the registration
of Senior Warrant Common Stock pursuant to a Piggyback Registration involving an
underwritten offering, in each case, (i) that is filed pursuant to the
provisions of this Agreement and (ii) including the Prospectus included therein,
all amendments and supplements thereto (including post-effective amendments) and
all exhibits and material incorporated by reference therein.
Regulation S: Regulation S promulgated under the Act.
Rule 144: Rule 144 promulgated under the Act.
Senior Subordinated Note Warrants. The Company's warrants issued to the
holders of Series A Notes pursuant to the Offering Memorandum and Disclosure
Statement, each representing the right to purchase one share of the Company's
Common Stock at an exercise price of $0.001.
Senior Warrant Common Stock: The Company's Common Stock issued upon
exercise of
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the Senior Subordinated Note Warrants.
Senior Warrant Holder: Any holder of Senior Subordinated Note Warrants.
Series A/E Restricted Securities: The Series A Notes and the Series E
Preferred Stock.
Series A Liquidated Damages: Upon the occurrence of a Registration Default,
the Issuer and the Guarantors shall pay liquidated damages to each Series A Note
Holder, with respect to the first 90-day period immediately following the
occurrence of the first such Registration Default in an amount equal to 0.50%
per annum over the stated rate for the Series A Notes. The amount of liquidated
damages will increase by an additional 0.50% over the stated rate for the Series
A Notes per annum at the beginning of each subsequent 90-day period until all
Registration Defaults have been cured, up to a maximum amount of liquidated
damages of 1.00% per annum over the stated rate of the Series A Notes.
Series A Note Holder: Any holder of Series A Notes.
Series A Notes: The Issuer's senior subordinated compounding notes due 2009
issued pursuant to the Indenture as contemplated by the Offering Memorandum and
Disclosure Statement.
Series B Notes: The Issuer's senior subordinated compounding notes due 2009
to be issued pursuant to the Indenture: (i) in the Exchange Offer relating to
the Series A Notes or (ii) as contemplated by Section 4 hereof.
Series D Preferred Stock: Parent's series D redeemable preferred stock,
with $1,000 liquidation preference per share and which accrues a dividend
quarterly at a rate of 22% per annum.
Series E Liquidated Damages: Upon the occurrence of a Registration Default,
the Issuer and the Guarantors shall pay liquidated damages to each Series E
Holder, with respect to the first 90-day period immediately following the
occurrence of the first such Registration Default in an amount equal to 0.50%
per annum over the stated dividend rate for the Series E Preferred Stock. The
amount of liquidated damages will increase by an additional 0.50% over the
stated rate for the Series E Preferred Stock per annum at the beginning of each
subsequent 90-day period until all Registration Defaults have been cured, up to
a maximum amount of liquidated damages of 1.00% per annum over the stated rate
of the Series E Preferred Stock.
Series E Holder: Any holder of Series E Preferred Stock.
Series E Preferred Stock: Parent's series E redeemable preferred stock,
with $1,000 liquidation preference per share and which accrues a dividend
quarterly at a rate of 10% per annum.
Series E-1 Preferred Stock: Parent's series E redeemable preferred stock,
with $1,000 liquidation preference per share and which accrues a dividend
quarterly at a rate of 10% per
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annum to be issued pursuant to the Fifth Amended and Restated Charter: (i) in
the Exchange Offer or (ii) as contemplated by Section 4 hereof.
Shelf Effectiveness Deadline: As defined in Section 4(a) hereof.
Shelf Filing Deadline: As defined in Section 4(a) hereof.
Shelf Registration Statement: As defined in Section 4(a) hereof.
Suspension Notice: As defined in Section 7(d) hereof.
TIA: The Trust Indenture Act of 1939 (15 U.S.C. Section 77aaa-77bbbb) as in
effect on the date of the Indenture.
Transfer Restricted Securities: Each (A) Series A Note, until the earliest
to occur of (i) the date on which such Series A Note has been exchanged by a
Person other than a Broker-Dealer for a Series B Note in the Exchange Offer;
(ii) following the exchange by a Broker-Dealer in the Exchange Offer of a Series
A Note for a Series B Note, the date on which such Exchange Note is sold to a
purchaser who receives from such Broker-Dealer on or prior to the date of such
sale a copy of the Prospectus; (iii) the date on which such Series A Note has
been effectively registered under the Act and disposed of in accordance with the
Shelf Registration Statement (and the purchasers thereof have been issued Series
B Notes) or (iv) the date on which such Series A Note is distributed to the
public pursuant to Rule 144 under the Act, (B) share of Series E Preferred
Stock, until the earliest to occur of (i) the date on which such share of Series
E Preferred Stock has been exchanged by a Person other than a Broker-Dealer for
a share of Series E-1 Preferred Stock in the Exchange Offer; (ii) following the
exchange by a Broker-Dealer in the Exchange Offer of a share of Series E
Preferred Stock for a share of Series E-1 Preferred Stock, the date on which
such share of Series E-1 Preferred Stock is sold to a purchaser who receives
from such Broker-Dealer on or prior to the date of such sale a copy of the
Prospectus; (iii) the date on which such share of Series E Preferred Stock has
been effectively registered under the Act and disposed of in accordance with the
Shelf Registration Statement (and the purchasers thereof have been issued shares
of Series E-1 Preferred Stock) or (iv) the date on which such share of Series E
Preferred Stock is distributed to the public pursuant to Rule 144 under the Act
and (C) share of Senior Warrant Common Stock, until the earliest to occur of (i)
the date on which such Senior Warrant Common Stock has been effectively
registered under the Act or (ii) the date on which such Senior Warrant Common
Stock is distributed to the public pursuant to Rule 144 under the Act.
▇▇▇▇▇▇ ▇▇▇▇▇: Certain investment funds managed by ▇▇▇▇▇▇ ▇▇▇▇▇ & Partners
Management III, L.L.C.
SECTION 2. HOLDERS
A Person is deemed to be a holder of Transfer Restricted Securities (each,
a "Holder"), whenever such Person owns Transfer Restricted Securities.
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SECTION 3. REGISTERED EXCHANGE OFFER
(a) Unless the Exchange Offer shall not be permitted by applicable federal
law or Commission policy, the Company and the Guarantors shall (i) use their
respective reasonable best efforts to cause the Exchange Offer Registration
Statement to be filed with the Commission on or prior to 45 days after the
Closing Date (such 45/th/ day being the "Exchange Filing Deadline"), (ii) use
their respective reasonable best efforts to cause such Exchange Offer
Registration Statement to be declared effective by the Commission on or prior to
105 days after the Closing Date (such 105/th/ day being the "Exchange
Effectiveness Deadline"), (iii) in connection with the foregoing, (A) file all
pre-effective amendments to such Exchange Offer Registration Statement as may be
necessary in order to cause it to become effective, and (B) file, if applicable,
an Exchange Offer Registration Statement, and (iv) upon the effectiveness of
such Exchange Offer Registration Statement, commence and, within the time period
set forth in Section 3(b) hereof, Consummate the Exchange Offer. The Exchange
Offer shall be on the appropriate form permitting (i) registration of the
Exchange Securities to be offered in exchange for the Series A/E Restricted
Securities and (ii) resales of the Exchange Securities by Broker-Dealers that
tendered into the Exchange Offer Series A/E Restricted Securities that such
Broker-Dealer acquired for its own account as a result of market making
activities or other trading activities (other than Series A/E Restricted
Securities acquired directly from the Company or any of its Affiliates) as
contemplated by Section 3(c) hereof.
(b) The Company and the Guarantors shall use their respective reasonable
best efforts to cause the Exchange Offer Registration Statement to be effective
continuously, and shall keep the Exchange Offer open for a period of not less
than the minimum period required under applicable federal securities laws to
Consummate the Exchange Offer; provided, however, that in no event shall such
period be less than 20 Business Days. The Company and the Guarantors shall cause
the Exchange Offer to comply with all applicable federal securities laws. No
securities other than the Exchange Securities shall be included in the Exchange
Offer Registration Statement. The Company and the Guarantors shall use their
respective reasonable best efforts to cause the Exchange Offer to be Consummated
within 30 days after the date on which the Exchange Offer Registration Statement
was declared effective by the Commission (such 30/th/ day being the "Exchange
Consummation Deadline").
(c) The Company shall indicate in the "Plan of Distribution" section in
the Prospectus contained in the Exchange Offer Registration Statement that any
Broker-Dealer who holds Series A/E Restricted Securities that were acquired for
the account of such Broker-Dealer as a result of market-making activities or
other trading activities (other than Series A/E Restricted Securities acquired
directly from the Company or any Affiliate of the Company), may exchange such
Series A/E Restricted Securities pursuant to the Exchange Offer.
Because such Broker-Dealer may be deemed to be an "underwriter" within the
meaning of the Act and must, therefore, deliver a prospectus meeting the
requirements of the Act in connection with its initial sale of any Exchange
Securities received by such Broker-Dealer in the Exchange Offer, the Company and
Guarantors shall permit the use of the Prospectus contained in the Exchange
Offer Registration Statement by such Broker-Dealer to satisfy such prospectus
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delivery requirement. To the extent necessary to ensure that the prospectus
contained in the Exchange Offer Registration Statement is available for sales of
Exchange Securities by Broker-Dealers, the Company and the Guarantors agree to
use their respective reasonable best efforts to keep the Exchange Offer
Registration Statement continuously effective, supplemented, amended and current
as required by and subject to the provisions of Section 7(a) and Section 7(c)
hereof and in conformity with the requirements of this Agreement, the Act and
the policies, rules and regulations of the Commission as announced from time to
time, for a period of 180 days from the Exchange Consummation Deadline (provided
the Company has received written notice from any Broker-Dealer within 5 Business
Days after the Exchange Consummation Deadline) or such shorter period as will
terminate when all Series A/E Restricted Securities covered by such Registration
Statement have been sold pursuant thereto. The Company and the Guarantors shall
provide sufficient copies of the latest version of such Prospectus to such
Broker-Dealers, promptly upon request.
SECTION 4. SHELF REGISTRATION
(a) Shelf Registration. If (i) the Company and the Guarantors are not (A)
required to file the Exchange Offer Registration Statement or (B) permitted to
Consummate the Exchange Offer because the Exchange Offer is not permitted by
applicable law or Commission policy or (ii) if any Holder of Series A/E
Restricted Securities shall notify the Company prior to the 5/th/ Business Day
following the Consummation of the Exchange Offer that (A) such Holder was
prohibited by law or Commission policy from participating in the Exchange Offer
or (B) such Holder may not resell the Exchange Securities acquired by it in the
Exchange Offer to the public without delivering a prospectus and the Prospectus
contained in the Exchange Offer Registration Statement is not appropriate or
available for such resales by such Holder or (C) such Holder is a Broker-Dealer
and holds Series A/E Restricted Securities acquired directly from the Company or
any of its Affiliates, then the Company and the Guarantors shall:
(x) use their reasonable best efforts to cause to be filed, on or prior to
90 days after the earlier of (i) the date on which the Company determines that
the Exchange Offer Registration Statement cannot be filed as a result of clause
(a)(i) of this Section 4 and (ii) the date on which the Company receives the
notice specified in clause (a)(ii) of this Section 4, (such 90th day after the
earlier date, the "Shelf Filing Deadline"), a shelf registration statement
pursuant to Rule 415 under the Act, which may be an amendment to the Exchange
Offer Registration Statement (the "Shelf Registration Statement"), relating to
all Series A/E Restricted Securities, and
(y) use their respective reasonable best efforts to cause such Shelf
Registration Statement to become effective on or prior to 90 days after the
Shelf Filing Deadline (such 90/th/ day the "Shelf Effectiveness Deadline").
If, after the Company has filed an Exchange Offer Registration
Statement that satisfies the requirements of Section 3(a) hereof, the Company is
required to file and make effective a Shelf Registration Statement solely
because the Exchange Offer is not permitted under applicable federal law (i.e.,
clause (a)(i) of this Section 4), then the filing of the Exchange Offer
Registration Statement shall be deemed to satisfy the requirements of clause (x)
of this Section 4;
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provided that, in such event, the Company shall remain obligated to meet the
Shelf Effectiveness Deadline set forth in clause (y) of this Section 4.
To the extent necessary to ensure that the Shelf Registration Statement is
available for sales of Series A/E Restricted Securities by the Holders thereof
entitled to the benefit of this Section 4(a) and the other securities required
to be registered therein pursuant to Section 7(b)(ii) hereof, the Company and
the Guarantors shall use their respective reasonable best efforts to keep any
Shelf Registration Statement required by this Section 4(a) continuously
effective, supplemented, amended and current as required by and subject to the
provisions of Section 7(b) and Section (c) hereof and in conformity with the
requirements of this Agreement, the Act and the policies, rules and regulations
of the Commission as announced from time to time, for a period ending on the
second anniversary of the Closing Date, or such shorter period as will terminate
when all Series A/E Restricted Securities covered by such Shelf Registration
Statement have been sold pursuant thereto.
(b) Provision by Holders of Certain Information in Connection with the
Shelf Registration Statement. No Holder of Series A/E Restricted Securities may
include any of its Series A/E Restricted Securities in any Shelf Registration
Statement pursuant to this Agreement unless and until such Holder furnishes to
the Company in writing, within 20 days after receipt of a request therefor, the
information specified in Item 507 or Item 508 of Regulation S-K, as applicable,
of the Act for use in connection with any Shelf Registration Statement or
Prospectus or preliminary Prospectus included therein. No Holder of Series A/E
Restricted Securities shall be entitled to liquidated damages pursuant to
Section 6 hereof unless and until such Holder shall have provided all such
information. Each selling Holder agrees to promptly furnish additional
information required to be disclosed in order to make the information previously
furnished to the Company by such Holder not materially misleading.
SECTION 5. PIGGYBACK REGISTRATIONS
(a) Right to Piggyback. Whenever the Company proposes to register any of
its equity securities under the Act after the consummation of an Initial Public
Offering (except in connection with any public offering consummated in
connection with the Exchange Offer), and the registration form to be used may be
used for the registration of Senior Warrant Common Stock (a "Piggyback
Registration"), the Company shall give prompt written notice to all Senior
Warrant Holders and holders of Senior Warrant Common Stock of its intention to
effect such a registration and, subject to the terms of the paragraphs 5(c) and
5(d) hereof, shall include in such registration (and in all related
registrations or qualifications under blue sky laws or in compliance with other
registration requirements and in any related underwriting) all Senior Warrant
Common Stock with respect to which the Company has received written requests for
inclusion therein within 20 days after the receipt of the Company's notice.
(b) Priority on Primary Registrations. If a Piggyback Registration is an
underwritten primary registration on behalf of the Company, and the managing
underwriters advise the Company in writing that in their opinion the number of
securities requested to be included in such registration exceeds the number
which can be sold in an orderly manner in such offering within a price range
acceptable to the Company (such price range shall be determined by the
9
Company in its sole discretion), the Company shall include in such registration
(i) first, the securities the Company proposes to sell, (ii) second, the Senior
Warrant Common Stock requested to be included in such registration, pro rata
among the holders of such Senior Warrant Common Stock on the basis of the number
of shares owned by each such holder, and (iii) third, other securities requested
to be included in such registration.
(c) Priority on Secondary Registrations. If a Piggyback Registration is an
underwritten secondary registration on behalf of holders of the Company's
securities, and the managing underwriters advise the Company in writing that in
their opinion the number of securities requested to be included in such
registration exceeds the number which can be sold in such offering without
adversely affecting the marketability of the offering, the Company shall
included in such registration (i) first, the securities requested to be included
therein by the holders requesting such registration, (ii) second, the Senior
Warrant Common Stock requested to be included in such registration, pro rata
among the holders of such Senior Warrant Common Stock on the basis of the number
of shares owned by each such holder, and (iii) third, other securities requested
to be included in such registration.
SECTION 6. LIQUIDATED DAMAGES
If (i) any Exchange Offer Registration Statement or Shelf Registration
Statement required by this Agreement is not filed with the Commission on or
prior to the Exchange Filing Deadline or the Shelf Filing Deadline, as
applicable, (ii) any such registration statement has not been declared effective
by the Commission on or prior to the Exchange Effectiveness Deadline or the
Shelf Effectiveness Deadline, as applicable, (iii) the Exchange Offer has not
been Consummated on or prior to the Exchange Consummation Deadline or (iv) any
Exchange Offer Registration Statement or Shelf Registration Statement required
by this Agreement is filed and declared effective but shall thereafter cease to
be effective or fail to be usable for its intended purpose without being
succeeded immediately by a post-effective amendment to such Registration
Statement that cures such failure and that is itself declared effective
immediately (each such event referred to in clauses (i) through (iv) above, a
"Registration Default"), then the Company and the Guarantors hereby jointly and
severally agree to pay to each Holder of Series A/E Restricted Securities
affected thereby Liquidated Damages; provided that the Company and the
Guarantors shall in no event be required to pay Liquidated Damages for more than
one Registration Default at any given time. Notwithstanding anything to the
contrary set forth herein, (1) upon filing of the Exchange Offer Registration
Statement (and/or, if applicable, the Shelf Registration Statement), in the case
of (i) above, (2) upon the effectiveness of the Exchange Offer Registration
Statement (and/or, if applicable, the Shelf Registration Statement), in the case
of (ii) above, (3) upon Consummation of the Exchange Offer, in the case of (iii)
above, or (4) upon the filing of a post-effective amendment to the Registration
Statement or an additional Registration Statement that causes the Exchange Offer
Registration Statement (and/or, if applicable, the Shelf Registration Statement)
to again be declared effective or made usable in the case of (iv) above, the
Liquidated Damages payable with respect to the Series A/E Restricted Securities
as a result of such clause (i), (ii), (iii) or (iv), as applicable, shall cease.
All accrued Series A Liquidated Damages shall be paid to the Series A Note
Holders
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entitled thereto, in the manner provided for the payment of interest in the
Indenture, on each Interest Payment Date, as more fully set forth in the
Indenture and the Series A Notes. All accrued Series E Liquidated Damages shall
be paid to the Series E Holders entitled thereto, in the manner provided for the
payment of dividends in the Fifth Amended and Restated Charter, on each Dividend
Payment Date. Notwithstanding the fact that any securities for which Liquidated
Damages are due cease to be Transfer Restricted Securities, all obligations of
the Company and the Guarantors to pay Liquidated Damages with respect to
securities shall survive until such time as such obligations with respect to
such securities shall have been satisfied in full.
SECTION 7. REGISTRATION PROCEDURES
(a) Exchange Offer Registration Statement. In connection with the Exchange
Offer, the Company and the Guarantors shall (x) comply with all applicable
provisions of Section 7(c) hereof, (y) use their respective reasonable best
efforts to effect such exchange and to permit the resale of Exchange Securities
by Broker-Dealers that tendered in the Exchange Offer Series A/E Restricted
Securities that such Broker-Dealer acquired for its own account as a result of
its market making activities or other trading activities (other than Series A/E
Restricted Securities acquired directly from the Company or any of its
Affiliates) being sold in accordance with the intended method or methods of
distribution thereof, and (z) comply with all of the following provisions:
(i) As a condition to its participation in the Exchange Offer, each
Holder of Series A/E Restricted Securities (including, without limitation,
any Holder who is a Broker Dealer) shall furnish, upon the request of the
Company, prior to the Consummation of the Exchange Offer, a written
representation to the Company, the Issuer and the Guarantors (which may be
contained in the letter of transmittal contemplated by the Exchange Offer
Registration Statement) to the effect that (A) it is not an Affiliate of
the Company, (B) it is not engaged in, and does not intend to engage in,
and has no arrangement or understanding with any person to participate in,
a distribution of the Exchange Securities to be issued in the Exchange
Offer and (C) it is acquiring the Exchange Securities in its ordinary
course of business. As a condition to its participation in the Exchange
Offer each Holder using the Exchange Offer to participate in a distribution
of the Exchange Securities shall acknowledge and agree that, if the resales
are of Exchange Securities obtained by such Holder in exchange for Series
A/E Restricted Securities acquired directly from the Company or an
Affiliate thereof, it (1) could not, under Commission policy as in effect
on the date of this Agreement, rely on the position of the Commission
enunciated in Exxon Capital Holdings Corporation (available May 13, 1988)
and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and Co., Inc. (available June 5, 1991), as interpreted
in the Commission's letter to Shearman & Sterling dated July 2, 1993, and
similar no-action letters, and (2) must comply with the registration and
prospectus delivery requirements of the Act in connection with a secondary
resale transaction and that such a secondary resale transaction must be
covered by an effective registration statement containing the selling
security holder information required by Item 507 or Item
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508, as applicable, of Regulation S-K.
(ii) Prior to effectiveness of the Exchange Offer Registration
Statement, the Company and the Guarantors shall provide a supplemental
letter to the Commission (A) stating that the Company and the Guarantors
are registering the Exchange Offer in reliance on the position of the
Commission enunciated in Exxon Capital Holdings Corporation (available May
13, 1988), ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and Co., Inc. (available June 5, 1991) as
interpreted in the Commission's letter to Shearman & Sterling dated July 2,
1993 and (B) including a representation that neither the Company nor any
Guarantor has entered into any arrangement or understanding with any Person
to distribute the Exchange Securities to be received in the Exchange Offer
and that, to the best of the Company's and each Guarantor's information and
belief, each Holder participating in the Exchange Offer is acquiring the
Exchange Securities in its ordinary course of business and has no
arrangement or understanding with any Person to participate in the
distribution of the Exchange Securities received in the Exchange Offer.
(b) Shelf Registration Statement. In connection with the Shelf
Registration Statement, the Company and the Guarantors shall (i) comply with all
the provisions of Section 7(c) hereof and use their respective reasonable best
efforts to effect such registration to permit the sale of the Series A/E
Restricted Securities being sold in accordance with the intended method or
methods of distribution thereof (as indicated in the information furnished to
the Company pursuant to Section 4(b) hereof), and pursuant thereto the Company
and the Guarantors will prepare and file with the Commission a Registration
Statement relating to the registration on any appropriate form under the Act,
which form shall be available for the sale of the Series A/E Restricted
Securities in accordance with the intended method or methods of distribution
thereof within the time periods and otherwise in accordance with the provisions
hereof, and (ii) issue, upon the request of any Holder or purchaser of Series
A/E Restricted Securities covered by any Shelf Registration Statement
contemplated by this Agreement, Exchange Securities having an aggregate
principal amount equal to the aggregate principal amount of Series A/E
Restricted Securities sold pursuant to the Shelf Registration Statement and
surrendered to the Company for cancellation; the Company shall register Exchange
Securities on the Shelf Registration Statement for this purpose and issue the
Exchange Securities to the purchasers of securities subject to the Shelf
Registration Statement in the names as such purchasers shall designate.
(c) General Provisions. In connection with any Registration Statement and
any related Prospectus required by this Agreement, the Company and the
Guarantors shall:
(i) use their respective reasonable best efforts to keep such
Registration Statement continuously effective and provide all requisite
financial statements for the period specified in Section 3 or Section 4 of
this Agreement, as applicable. Upon the occurrence of any event that would
cause any such Registration Statement or the Prospectus contained therein
(A) to contain an untrue statement of material fact or omit to state any
material fact necessary to make the statements therein not misleading or
(B) not to be effective and usable for resale of Transfer Restricted
Securities during the
12
period required by this Agreement, the Company and the Guarantors shall
file promptly an appropriate amendment to such Registration Statement
curing such defect, and, if Commission review is required, use their
respective reasonable best efforts to cause such amendment to be declared
effective as soon as practicable.
(ii) prepare and file with the Commission such amendments and
post-effective amendments to the applicable Registration Statement as may
be necessary to keep such Registration Statement effective for the
applicable period set forth in Section 3 or Section 4 hereof, as the case
may be; cause the Prospectus to be supplemented by any required Prospectus
supplement, and as so supplemented to be filed pursuant to Rule 424 under
the Act, and to comply fully with Rules 424, 430A and 462, as applicable,
under the Act in a timely manner; and comply with the provisions of the Act
with respect to the disposition of all securities covered by such
Registration Statement during the applicable period in accordance with the
intended method or methods of distribution by the sellers thereof set forth
in such Registration Statement or supplement to the Prospectus;
(iii) advise each Holder named in such Registration Statement as a
selling security holder (each a "Named Holder") promptly and, if requested
by such Named Holder, confirm such advice in writing, (A) when the
Prospectus or any Prospectus supplement or post-effective amendment has
been filed, and, with respect to any applicable Registration Statement or
any post-effective amendment thereto, when the same has become effective,
(B) of any request by the Commission for amendments to the Registration
Statement or amendments or supplements to the Prospectus or for additional
information relating thereto, (C) of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement under
the Act and (D) of the existence of any fact or the happening of any event
that makes any statement of a material fact made in the Registration
Statement, the Prospectus, any amendment or supplement thereto or any
document incorporated by reference therein untrue, or that requires the
making of any additions to or changes in the Registration Statement in
order to make the statements therein not misleading, or that requires the
making of any additions to or changes in the Prospectus in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading. If at any time the Commission shall issue any
stop order suspending the effectiveness of the Registration Statement, the
Company and the Guarantors shall use their respective best efforts to
obtain the withdrawal or lifting of such order at the earliest possible
time;
(iv) subject to Section 7(c)(i) hereof, if any fact or event
contemplated by Section 7(c)(iii)(D) above shall exist or have occurred,
prepare a supplement or post-effective amendment to the Registration
Statement or related Prospectus or any document incorporated therein by
reference or file any other required document so that, as thereafter
delivered to the purchasers of Transfer Restricted Securities, the
Prospectus will not contain an 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;
13
(v) furnish to each Named Holder in connection with such exchange
or sale, if any, before filing with the Commission, copies of any
Registration Statement or any Prospectus included therein or any amendments
or supplements to any such Registration Statement or Prospectus (excluding,
unless otherwise requested by such Named Holder, documents incorporated by
reference after the initial filing of such Registration Statement), which
documents will be subject to the review and comment of such Named Holders
in connection with such sale, if any, for a period of at least five
Business Days, and the Company will not file any such Registration
Statement or Prospectus or any amendment or supplement to any such
Registration Statement or Prospectus (including all such documents
incorporated by reference) to which such Named Holders shall reasonably
object within five Business Days after the receipt thereof. A Named Holder
shall be deemed to have reasonably objected to such filing if such
Registration Statement, amendment, Prospectus or supplement, as applicable,
as proposed to be filed, contains an untrue statement of a material fact or
omits to state any material fact necessary to make the statements therein
not misleading or fails to comply with the applicable requirements of the
Act;
(vi) promptly prior to the filing of any document that is to be
incorporated by reference into a Registration Statement or Prospectus,
provide copies of such document to each Named Holder in connection with
such exchange or sale, if any, make the Company's and the Guarantors'
representatives available for discussion of such document and other
customary due diligence matters, and include such information in such
document prior to the filing thereof as such Named Holders may reasonably
request;
(vii) make available, at reasonable times, for inspection by each
Named Holder and any attorney or accountant retained by such Named Holders,
all financial and other records, pertinent corporate documents of the
Company and the Guarantors and cause the Company's and the Guarantors'
officers, directors and employees to supply all information reasonably
requested by any such Named Holder, attorney or accountant in connection
with such Registration Statement or any post-effective amendment thereto
subsequent to the filing thereof and prior to its effectiveness (subject in
all cases to such Persons agreeing to keep such information confidential);
(viii) if requested by any Named Holders in connection with such
exchange or sale, promptly include in any Registration Statement or
Prospectus, pursuant to a supplement or post-effective amendment if
necessary, such information as such Named Holders may reasonably request to
have included therein, including, without limitation, information relating
to the "Plan of Distribution" of the Transfer Restricted Securities; and
make all required filings of such Prospectus supplement or post-effective
amendment as soon as practicable after the Company is notified of the
matters to be included in such Prospectus supplement or post-effective
amendment;
(ix) furnish to each Named Holder in connection with such exchange
or sale, without charge, at least one copy of the Registration Statement,
as first filed with the Commission, and of each amendment thereto,
including all documents incorporated by
14
reference therein and all exhibits (including exhibits incorporated therein
by reference);
(x) deliver to each Named Holder without charge, as many copies of
the Prospectus (including each preliminary prospectus) and any amendment or
supplement thereto as such Persons may reasonably request; the Company and
the Guarantors hereby consent to the use (in accordance with law) of the
Prospectus and any amendment or supplement thereto by each selling Named
Holder in connection with the offering and the sale of the Transfer
Restricted Securities covered by the Prospectus or any amendment or
supplement thereto;
(xi) in a Piggyback Registration that is an underwritten primary
registration on behalf of the Company, to enter into such agreements
(including underwriting agreements) and make such representations and
warranties and take all such other actions in connection therewith in order
to expedite or facilitate the disposition of the Senior Warrant Common
Stock pursuant to any applicable Registration Statement contemplated by
this Agreement as may be reasonably requested by any Holder in connection
with any sale or resale pursuant to any applicable Registration Statement.
(xii) prior to any public offering of Transfer Restricted Securities,
cooperate with the selling Named Holders and their counsel in connection
with the registration and qualification of the Transfer Restricted
Securities under the securities or Blue Sky laws of such jurisdictions as
the selling Named Holders may request and do any and all other acts or
things necessary or advisable to enable the disposition in such
jurisdictions of the Transfer Restricted Securities covered by the
applicable Registration Statement; provided, however, that neither the
Company nor any Guarantor shall be required to register or qualify as a
foreign corporation where it is not now so qualified or to take any action
that would subject it to the service of process in suits or to taxation,
other than as to matters and transactions relating to the Registration
Statement, in any jurisdiction where it is not now so subject;
(xiii) in connection with any sale of Transfer Restricted Securities
that will result in such securities no longer being Transfer Restricted
Securities, cooperate with the Named Holders to facilitate the timely
preparation and delivery of certificates representing Transfer Restricted
Securities to be sold and not bearing any restrictive legends; and to
register such Transfer Restricted Securities in such denominations and such
names as the selling Named Holders may request at least two Business Days
prior to such sale of Transfer Restricted Securities;
(xiv) use their respective reasonable best efforts to cause the
disposition of the Transfer Restricted Securities covered by the
Registration Statement to be registered with or approved by such other
governmental agencies or authorities as may be necessary to enable the
seller or sellers thereof to consummate the disposition of such Transfer
Restricted Securities, subject to the proviso contained in clause (xii)
above;
(xv) provide a CUSIP number for all Transfer Restricted Securities
not later than the effective date of a Registration Statement covering such
Transfer Restricted
15
Securities and provide the Trustee under the Indenture with printed
certificates for the Transfer Restricted Securities which are in a form
eligible for deposit with the Depository Trust Company;
(xvi) otherwise use their respective reasonable best efforts to
comply with all applicable rules and regulations of the Commission, and
make generally available to its security holders with regard to any
applicable Registration Statement, as soon as practicable, a consolidated
earnings statement meeting the requirements of Rule 158 (which need not be
audited) covering a twelve-month period beginning after the effective date
of the Registration Statement (as such term is defined in paragraph (c) of
Rule 158 under the Act); and
(xvii) cause the Indenture to be qualified under the TIA not later
than the effective date of the first Exchange Offer Registration Statement
or Shelf Registration Statement required by this Agreement and, in
connection therewith, cooperate with the Trustee and the Named Holders to
effect such changes to the Indenture as may be required for such Indenture
to be so qualified in accordance with the terms of the TIA; and execute and
use its best efforts to cause the Trustee to execute, all documents that
may be required to effect such changes and all other forms and documents
required to be filed with the Commission to enable such Indenture to be so
qualified in a timely manner.
(d) Restrictions on Holders. Each Holder agrees by acquisition of a
Transfer Restricted Security that, upon receipt of the notice referred to in
Section 7(c)(iii)(C) hereof or any notice from the Company of the existence of
any fact of the kind described in Section 7(c)(iii)(D) hereof (in each case, a
"Suspension Notice"), such Holder will forthwith discontinue disposition of
Transfer Restricted Securities pursuant to the applicable Registration Statement
until (i) such Holder has received copies of the supplemented or amended
Prospectus contemplated by Section 7(c)(iv) hereof, or (ii) such Holder is
advised in writing by the Company that the use of the Prospectus may be resumed,
and has received copies of any additional or supplemental filings that are
incorporated by reference in the Prospectus (in each case, the "Recommencement
Date"). Each Holder receiving a Suspension Notice hereby agrees that it will
either (i) destroy any Prospectuses, other than permanent file copies, then in
such Holder's possession which have been replaced by the Company with more
recently dated Prospectuses or (ii) deliver to the Company (at the Company's
expense) all copies, other than permanent file copies, then in such Holder's
possession of the Prospectus covering such Transfer Restricted Securities that
were current at the time of receipt of the Suspension Notice.
SECTION 8. REGISTRATION EXPENSES
(a) All expenses incident to the Company's and the Guarantors' performance
of or compliance with this Agreement, including without limitation all
registration, qualification and filing fees, fees and expenses of compliance
with securities or Blue Sky laws, printing expenses, messenger and delivery
expenses, fees and disbursements of custodians, and fees and disbursements of
counsel for the Company and the Guarantors and all independent certified public
accountants, underwriters (excluding discounts and commissions) and other
Persons retained by the Company (all such expenses being herein called
"Registration Expenses"), will
16
be borne by the Company, and the Company will pay its internal expenses
(including, without limitation, all salaries and expenses of its officers and
employees performing legal or accounting duties), the expense of any annual
audit or quarterly review, the expense of any liability insurance and the
expenses and fees for listing the securities to be registered on each securities
exchange on which similar securities issued by the Company are then listed or on
the NASD automated quotation system.
(b) In connection with each Registration Statement, the Company and the
Guarantors will reimburse the Named Holders for the reasonable fees and
disbursements of not more than one counsel chosen by the Named Holders of a
majority of the Transfer Restricted Securities included in such registration
voting as single class.
(c) To the extent Registration Expenses are not required to be paid by the
Company, each Named Holder of securities included in any Registration Statement
hereunder shall pay those Registration Expenses allocable to the registration of
such Named Holder's securities so included, and any Registration Expenses not so
allocable shall be borne by all sellers of securities included in such
Registration Statement in proportion to the aggregate selling price of the
securities to be so registered.
SECTION 9. INDEMNIFICATION
(a) The Company and the Guarantors agree, jointly and severally, to
indemnify and hold harmless each Named Holder, its directors, officers and each
Person, if any, who controls such Named Holder (within the meaning of Section 15
of the Act or Section 20 of the Exchange Act), from and against any and all
losses, claims, damages, liabilities, judgments, (including without limitation,
any legal or other expenses incurred in connection with investigating or
defending any matter, including any action that could give rise to any such
losses, claims, damages, liabilities or judgments) caused by any untrue
statement or alleged untrue statement of a material fact contained in any
Registration Statement, or Prospectus (or any amendment or supplement thereto),
or caused by any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, except insofar as such losses, claims, damages, liabilities or
judgments are caused by an untrue statement or omission that is based upon
information relating to any Named Holder furnished in writing to the Company by
any such Named Holder expressly for use in such Registration Statement or
Prospectus.
(b) Each Named Holder of Transfer Restricted Securities agrees, severally
and not jointly, to indemnify and hold harmless the Company and the Guarantors,
and their respective directors and officers, and each person, if any, who
controls (within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act) the Company, or the Guarantors to the same extent as the foregoing
indemnity from the Company and the Guarantors set forth in section (a) above,
but only with reference to information relating to such Named Holder furnished
in writing to the Company by such Named Holder expressly for use in any
Registration Statement or Prospectus. In no event shall any Named Holder, its
directors, officers or any Person who controls such Named Holder be liable or
responsible for any amount in excess of the amount by which the net amount
received by such Named Holder with respect to its sale of the Company's
securities
17
pursuant to a Registration Statement exceeds (i) the amount paid by such Named
Holder for such securities and (ii) the amount of any damages that such Named
Holder, its directors, officers or any Person who controls such Named Holder has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission.
(c) In case any action shall be commenced involving any person in respect
of which indemnity may be sought pursuant to Section 9(a) or Section 9(b) hereof
(the "indemnified party"), the indemnified party shall promptly notify the
person against whom such indemnity may be sought (the "indemnifying person") in
writing and the indemnifying party shall assume the defense of such action,
including the employment of counsel reasonably satisfactory to the indemnified
party and the payment of all fees and expenses of such counsel, as incurred
(except that in the case of any action in respect of which indemnity may be
sought pursuant to both Sections 9(a) and 9(b) hereof, a Named Holder shall not
be required to assume the defense of such action pursuant to this Section 9(c),
but may employ separate counsel and participate in the defense thereof, but the
fees and expenses of such counsel, except as provided below, shall be at the
expense of the Named Holder). Any indemnified party shall have the right to
employ separate counsel in any such action and participate in the defense
thereof, but the fees and expenses of such counsel shall be at the expense of
the indemnified party unless (i) the employment of such counsel shall have been
specifically authorized in writing by the indemnifying party or (ii) the named
parties to any such action (including any impleaded parties) include both the
indemnified party and the indemnifying party, and the indemnified party shall
have been advised by such counsel that there may be one or more legal defenses
available to it which are different from or additional to those available to the
indemnifying party (in which case the indemnifying party shall not have the
right to assume the defense of such action on behalf of the indemnified party).
In any such case, the indemnifying party shall not, in connection with any one
action or separate but substantially similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances, be
liable for the fees and expenses of more than one separate firm of attorneys (in
addition to any local counsel) for all indemnified parties and all such fees and
expenses shall be reimbursed as they are incurred. Such firm shall be designated
in writing by a majority of the Named Holders, in the case of the parties
indemnified pursuant to Section 9(a) hereof, and by the Company and Guarantors,
in the case of parties indemnified pursuant to Section 9(b) hereof. The
indemnifying party shall indemnify and hold harmless the indemnified party from
and against any and all losses, claims, damages, liabilities and judgments by
reason of any settlement of any action (i) effected with its written consent or
(ii) effected without its written consent if the settlement is entered into more
than twenty business days after the indemnifying party shall have received a
request from the indemnified party for reimbursement for the fees and expenses
of counsel (in any case where such fees and expenses are at the expense of the
indemnifying party) and, prior to the date of such settlement, the indemnifying
party shall have failed to comply with such reimbursement request. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement or compromise of, or consent to the entry of
judgment with respect to, any pending or threatened action in respect of which
the indemnified party is or could have been a party and indemnity or
contribution may be or could have been sought hereunder by the indemnified
party, unless such settlement, compromise or judgment (i) includes an
unconditional release of the indemnified party from all liability on claims that
are or could have been the
18
subject matter of such action and (ii) does not include a statement as to or an
admission of fault, culpability or a failure to act, by or on behalf of the
indemnified party.
(d) To the extent that the indemnification provided for in this Section 9
is unavailable to an indemnified party in respect of any losses, claims,
damages, liabilities or judgments referred to therein, then each indemnifying
party, in lieu of indemnifying such indemnified party, shall contribute to the
amount paid or payable by such indemnified party as a result of such losses,
claims, damages, liabilities or judgments (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company and the
Guarantors, on the one hand, and the Named Holders, on the other hand, from
their sale of Transfer Restricted Securities or (ii) if the allocation provided
by clause 9(d)(i) hereof is not permitted by applicable law, in such proportion
as is appropriate to reflect not only the relative benefits referred to in
clause 9(d)(i) above but also the relative fault of the Company and the
Guarantors, on the one hand, and of the Named Holder, on the other hand, in
connection with the statements or omissions which resulted in such losses,
claims, damages, liabilities or judgments, as well as any other relevant
equitable considerations. The relative fault of the Company and the Guarantors,
on the one hand, and of the Named Holder, on the other hand, shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company or such Guarantor,
on the one hand, or by the Named Holder, on the other hand, and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The amount paid or payable by a party as a
result of the losses, claims, damages, liabilities and judgments referred to
above shall be deemed to include, subject to the limitations set forth in
Section 9(b) hereof, any legal or other fees or expenses reasonably incurred by
such party in connection with investigating or defending any action or claim.
The Company, the Guarantors and each Named Holder agree that it would not
be just and equitable if contribution pursuant to this Section 9(d) were
determined by pro rata allocation (even if the Named Holders were treated as one
entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to in the immediately
preceding paragraph. The amount paid or payable by an indemnified party as a
result of the losses, claims, damages, liabilities or judgments referred to in
the immediately preceding paragraph shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any matter,
including any action that could have given rise to such losses, claims, damages,
liabilities or judgments. Notwithstanding the provisions of this Section 9, no
Named Holder, its directors, its officers or any Person, if any, who controls
such Named Holder shall be required to contribute, in the aggregate, any amount
in excess of the amount by which the net amount received by such Named Holder
with respect to the sale of Transfer Restricted Securities pursuant to a
Registration Statement exceeds (i) the amount paid by such Named Holder for such
Transfer Restricted Securities and (ii) the amount of any damages which such
Named Holder has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. 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. The
19
Named Holders' obligations to contribute pursuant to this Section 9(d) are
several in proportion to the respective principal amount of Transfer Restricted
Securities held by each Named Holder hereunder and not joint.
SECTION 10. RULE 144A AND RULE 144
The Company and each Guarantor agrees with each Holder, for so long as any
Transfer Restricted Securities remain outstanding and during any period in which
the Company or such Guarantor (i) is not subject to Section 13 or 15(d) of the
Exchange Act, to make available, upon request of any Holder, to such Holder or
beneficial owner of Transfer Restricted Securities in connection with any sale
thereof and any prospective purchaser of such Transfer Restricted Securities
designated by such Holder or beneficial owner, the information required by Rule
144A(d)(4) under the Act in order to permit resales of such Transfer Restricted
Securities pursuant to Rule 144A, and (ii) is subject to Section 13 or 15 (d) of
the Exchange Act, to make all filings required thereby in a timely manner in
order to permit resales of such Transfer Restricted Securities pursuant to Rule
144.
SECTION 11. MISCELLANEOUS
(a) Remedies. The Company and the Guarantors acknowledge and agree that
any failure by the Company and/or the Guarantors to comply with their respective
obligations under Section 3, Section 4 and Section 5 hereof may result in
material irreparable injury to the Holders or the Holders for which there is no
adequate remedy at law, that it will not be possible to measure damages for such
injuries precisely and that, in the event of any such failure, the Holders or
any Holder may obtain such relief as may be required to specifically enforce the
Company's and the Guarantor's obligations under Section 3, Section 4 and Section
5 hereof. The Company and the Guarantors further agree to waive the defense in
any action for specific performance that a remedy at law would be adequate.
(b) No Inconsistent Agreements. Neither the Company nor any Guarantor
will, on or after the date of this Agreement, enter into any agreement with
respect to its securities that is inconsistent with the rights granted to the
Holders in this Agreement or otherwise conflicts with the provisions hereof.
Neither the Company nor any Guarantor has previously entered into any agreement
granting any registration rights with respect to its securities to any Person.
The rights granted to the Holders hereunder do not in any way conflict with and
are not inconsistent with the rights granted to the holders of the Company's and
the Guarantors' securities under any agreement in effect on the date hereof.
(c) Amendments and Waivers. The provisions of this Agreement may not be
amended, modified or supplemented, and waivers or consents to or departures from
the provisions hereof may not be given unless: (i) in the case of Section 6
hereof, the Company has obtained the written consent of Holders of at least
66 2/3% of the outstanding principal amount of the Series A Notes and Series E
Preferred Stock, each voting as a separate class; (ii) in the case this Section
11(c)(i), the Company has obtained the written consent of Holders of at least
66 2/3% of the outstanding principal amount of the (A) Series A Notes, (B)
Series E Preferred Stock
20
and (C) Senior Warrant Common Stock, each voting as a separate class; and (iii)
in the case of all other provisions hereof, the Company has obtained the written
consent of Holders of a majority of the outstanding principal amount of the (A)
Series A Notes, (B) Series E Preferred Stock and (C) Senior Warrant Common
Stock, each voting as a separate class. Notwithstanding the foregoing, a waiver
or consent to departure from the provisions hereof that relates exclusively to
the rights of Holders whose Transfer Restricted Securities are being tendered
pursuant to the Exchange Offer, and that does not affect directly or indirectly
the rights of other Holders whose Transfer Restricted Securities are not being
tendered pursuant to such Exchange Offer, may be given by the Holders of a
majority of the outstanding principal amount of the Series A Notes and Series E
Preferred Stock, each voting as a separate class, subject to such Exchange
Offer.
(d) Third Party Beneficiary. The Holders shall be third party
beneficiaries to the agreements made hereunder between the Company and the
Guarantors, on the one hand, and the Holders, on the other hand, and shall have
the right to enforce such agreements directly to the extent they may deem such
enforcement necessary or advisable to protect their rights or the rights of
Holders hereunder.
(e) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail
(registered or certified, return receipt requested), telex, telecopier, or air
courier guaranteeing overnight delivery:
(i) if to a Holder, at the address set forth on the records of the
Registrar under the Indenture, with a copy to the Registrar under the
Indenture; and
(ii) if to the Company or the Guarantors:
Ziff ▇▇▇▇▇ Holdings Inc.
▇▇ ▇▇▇▇ ▇▇/▇▇/ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Chief Financial Officer
With a copy to:
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five Business
Days after being deposited in the
21
mail, postage prepaid, if mailed; when receipt acknowledged, if telecopied; and
on the next business day, if timely delivered to an air courier guaranteeing
overnight delivery.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee at the
address specified in the Indenture.
(f) Successors and Assigns. This Agreement shall inure to the benefit of
and be binding upon the successors and assigns of each of the parties, including
without limitation and without the need for an express assignment, subsequent
Holders; provided, that nothing herein shall be deemed to permit any assignment,
transfer or other disposition of Transfer Restricted Securities in violation of
the terms hereof or of the Offering Memorandum and Disclosure Statement, the
Indenture or the Fifth Amended and Restated Charter. If any transferee of any
Holder shall acquire Transfer Restricted Securities in any manner, whether by
operation of law or otherwise, such Transfer Restricted Securities shall be held
subject to all of the terms of this Agreement, and by taking and holding such
Transfer Restricted Securities such Person shall be conclusively deemed to have
agreed to be bound by and to perform all of the terms and provisions of this
Agreement, including the restrictions on resale set forth in this Agreement and,
if applicable, the Purchase Agreement, and such Person shall be entitled to
receive the benefits hereof.
(g) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REGARD TO THE
CONFLICT OF LAW RULES THEREOF.
(j) Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
(k) Entire Agreement. This Agreement is intended by the parties as a final
expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein. There are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein
with respect to the registration rights granted with respect to the Transfer
Restricted Securities. This Agreement supersedes all prior agreements and
understandings between the parties with respect to such subject matter.
22
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
ZIFF ▇▇▇▇▇ HOLDINGS INC.
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------
By:
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Chief Operating Officer and
Chief Financial Officer
ZIFF ▇▇▇▇▇ MEDIA INC.
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------
By:
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Chief Operating Officer and
Chief Financial Officer
GUARANTORS:
Ziff ▇▇▇▇▇ Intermediate Holdings Inc.
Ziff ▇▇▇▇▇ Publishing Holdings Inc.
Ziff ▇▇▇▇▇ Publishing Inc.
Ziff ▇▇▇▇▇ Development Inc.
Ziff ▇▇▇▇▇ Internet Inc.
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------
By:
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Chief Operating Officer and
Chief Financial Officer
23
Schedule A
Guarantors
Ziff ▇▇▇▇▇ Intermediate Holdings Inc.
Ziff ▇▇▇▇▇ Publishing Holdings Inc.
Ziff ▇▇▇▇▇ Publishing Inc.
Ziff ▇▇▇▇▇ Development Inc.
Ziff ▇▇▇▇▇ Internet Inc.
24