1
EXHIBIT 4.3
XXXXXX COMMUNICATIONS CORPORATION
10-3/4% Senior Subordinated Notes due 2008
REGISTRATION RIGHTS AGREEMENT
New York, New York
July 12, 2001
Xxxxxxx Xxxxx Barney Inc.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
CIBC World Markets Corp.
Bear, Xxxxxxx & Co. Inc.
As Representatives of the Initial Purchasers
c/o Salmon Xxxxx Xxxxxx Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Xxxxxx Communications Corporation, a corporation organized
under the laws of the State of Delaware (the "Company"), proposes to issue and
sell to certain purchasers (the "Initial Purchasers"), upon the terms set forth
in a purchase agreement of even date herewith (the "Purchase Agreement"), its
10-3/4% Senior Subordinated Notes due 2008 (the "Notes") relating to the initial
placement of the Notes (the "Initial Placement"). The Notes will be guaranteed
(the "Guarantees" and together with the Notes, the "Securities") on a senior
subordinated basis by each of the Company's direct and indirect domestic
subsidiaries set forth on the signature page hereto (the "Guarantors"). To
induce the Initial Purchasers to enter into the Purchase Agreement and to
satisfy a condition of your obligations thereunder, the Company and the
Guarantors agree with you for your benefit and the benefit of the holders from
time to time of the Securities (including the Initial Purchasers) (each a
"Holder" and, together, the "Holders"), as follows:
1. DEFINITIONS. Capitalized terms used herein without
definition shall have their respective meanings set forth in the Purchase
Agreement. As used in this Agreement, the following capitalized defined terms
shall have the following meanings:
"Act" shall mean the Securities Act of 1933, as amended, and
the rules and regulations of the Commission promulgated thereunder.
"Affiliate" of any specified Person shall mean any other
Person that, directly or indirectly, is in control of, is controlled by, or is
under common control with, such specified Person. For purposes of this
definition, control of a Person shall mean the power, direct or indirect, to
direct or cause the direction of the management and policies of such Person
whether by contract or otherwise; and the terms "controlling" and "controlled"
shall have meanings correlative to the foregoing.
2
"Broker-Dealer" shall mean any broker or dealer registered as
such under the Exchange Act.
"Business Day" shall mean any day other than a Saturday, a
Sunday or a legal holiday or a day on which banking institutions or trust
companies are authorized or obligated by law to close in New York City.
"Commission" shall mean the Securities and Exchange
Commission.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended, and the rules and regulations of the Commission promulgated
thereunder.
"Exchange Offer Registration Period" shall mean the one-year
period following the consummation of the Registered Exchange Offer, exclusive of
any period during which any stop order shall be in effect suspending the
effectiveness of the Exchange Offer Registration Statement.
"Exchange Offer Registration Statement" shall mean a
registration statement of the Company and the Guarantors on an appropriate form
under the Act with respect to the Registered Exchange Offer, all amendments and
supplements to such registration statement, including post-effective amendments
thereto, in each case including the Prospectus contained therein, all exhibits
thereto and all material incorporated by reference therein.
"Exchanging Dealer" shall mean any Holder (which may include
any Initial Purchaser) that is a Broker-Dealer and elects to exchange for New
Securities any Securities that it acquired for its own account as a result of
market-making activities or other trading activities (but not directly from the
Company or any Affiliate of the Company) for New Securities.
"Final Memorandum" shall have the meaning set forth in the
Purchase Agreement.
"Holder" shall have the meaning set forth in the preamble
hereto.
"Indenture" shall mean the Indenture relating to the
Securities, dated as of July 12, 2001, among the Company, the Guarantors and The
Bank of New York, as trustee, as the same may be amended from time to time in
accordance with the terms thereof.
"Initial Placement" shall have the meaning set forth in the
preamble hereto.
2
3
"Initial Purchaser" shall have the meaning set forth in the
preamble hereto.
"Losses" shall have the meaning set forth in Section 7(d)
hereof.
"Majority Holders" shall mean the Holders of a majority of the
aggregate principal amount of Securities registered under a Registration
Statement.
"Managing Underwriters" shall mean the investment banker or
investment bankers and manager or managers that shall administer an underwritten
offering.
"New Securities" shall mean debt securities of the Company,
guaranteed by the Guarantors, identical in all material respects to the
Securities (except that the cash interest and interest rate step-up provisions
and the transfer restrictions shall be modified or eliminated, as appropriate)
and to be issued under the Indenture or the New Securities Indenture.
"New Securities Indenture" shall mean an indenture between the
Company, the Guarantors and the New Securities Trustee, identical in all
material respects to the Indenture (except that the cash interest and interest
rate step-up provisions will be modified or eliminated, as appropriate).
"New Securities Trustee" shall mean a bank or trust company
reasonably satisfactory to the Initial Purchasers, as trustee with respect to
the New Securities under the New Securities Indenture.
"Prospectus" shall mean the prospectus included in any
Registration Statement (including, without limitation, a prospectus that
discloses information previously omitted from a prospectus filed as part of an
effective registration statement in reliance upon Rule 430A under the Act), as
amended or supplemented by any prospectus supplement, with respect to the terms
of the offering of any portion of the Securities or the New Securities covered
by such Registration Statement, and all amendments and supplements thereto and
all material incorporated by reference therein.
"Purchase Agreement" shall have the meaning set forth in the
preamble hereto.
"Registered Exchange Offer" shall mean the proposed offer of
the Company to issue and deliver to the Holders of the Securities that are not
prohibited by any law or policy of the Commission from participating in such
offer, in exchange for the Securities, a like aggregate principal amount of the
New Securities.
"Registration Statement" shall mean any Exchange Offer
Registration Statement or Shelf Registration Statement that covers any of the
Securities or the New Securities pursuant to the provisions of this Agreement,
any amendments and supplements to such registration statement, including
3
4
post-effective amendments (in each case including the Prospectus contained
therein), all exhibits thereto and all material incorporated by reference
therein.
"Securities" shall have the meaning set forth in the preamble
hereto.
"Shelf Registration" shall mean a registration effected
pursuant to Section 3 hereof.
"Shelf Registration Period" has the meaning set forth in
Section 3(b) hereof.
"Shelf Registration Statement" shall mean a "shelf"
registration statement of the Company and the Guarantors pursuant to the
provisions of Section 3 hereof which covers some or all of the Securities or New
Securities, as applicable, on an appropriate form under Rule 415 under the Act,
or any similar rule that may be adopted by the Commission, amendments and
supplements to such registration statement, including post-effective amendments,
in each case including the Prospectus contained therein, all exhibits thereto
and all material incorporated by reference therein.
"Trustee" shall mean the trustee with respect to the
Securities under the Indenture.
"underwriter" shall mean any underwriter of Securities in
connection with an offering thereof under a Shelf Registration Statement.
2. REGISTERED EXCHANGE OFFER.
(a) The Company and the Guarantors shall prepare and, not
later than 60 days following the date of the original issuance of the
Securities (or if such 60th day is not a Business Day, the next
succeeding Business Day), shall file with the Commission the Exchange
Offer Registration Statement with respect to the Registered Exchange
Offer. The Company and the Guarantors shall use their best efforts to
cause the Exchange Offer Registration Statement to become effective
under the Act within 120 days of the date of the original issuance of
the Securities (or if such 120th day is not a Business Day, the next
succeeding Business Day).
(b) Upon the effectiveness of the Exchange Offer Registration
Statement, the Company and the Guarantors shall promptly commence the
Registered Exchange Offer, it being the objective of such Registered
Exchange Offer to enable each Holder electing to exchange Securities
for New Securities (assuming that such Holder is not an Affiliate of
the Company, acquires the New Securities in the ordinary course of such
Holder's business, has no arrangements with any Person to participate
in the distribution of the New Securities and is not prohibited by any
law or policy of the Commission from participating in the Registered
4
5
Exchange Offer) to trade such New Securities from and after their
receipt without any limitations or restrictions under the Act and
without material restrictions under the securities laws of a
substantial proportion of the several states of the United States.
(c) In connection with the Registered Exchange Offer, the
Company and the Guarantors shall:
(i) mail to each Holder a copy of the Prospectus
forming part of the Exchange Offer Registration Statement,
together with an appropriate letter of transmittal and related
documents;
(ii) keep the Registered Exchange Offer open for not
less than 20 Business Days and not more than 30 Business Days
after the date notice thereof is mailed to the Holders (or, in
each case, longer if required by applicable law);
(iii) use their best efforts to keep the Exchange
Offer Registration Statement continuously effective under the
Act, supplemented and amended as required, under the Act to
ensure that it is available for sales of New Securities by
Exchanging Dealers during the Exchange Offer Registration
Period;
(iv) utilize the services of a depositary for the
Registered Exchange Offer with an address in the Borough of
Manhattan in New York City, which may be the Trustee, the New
Securities Trustee or an Affiliate of either of them;
(v) permit Holders to withdraw tendered Securities at
any time prior to the close of business, New York time, on the
last Business Day on which the Registered Exchange Offer is
open;
(vi) prior to effectiveness of the Exchange Offer
Registration Statement, provide a supplemental letter to the
Commission (A) stating that the Company and the Guarantors are
conducting the Registered Exchange Offer in reliance on the
position of the Commission in EXXON CAPITAL HOLDINGS
CORPORATION (pub. avail. May 13, 1988), XXXXXX XXXXXXX AND
CO., INC. (pub. avail. June 5, 1991); and (B) including a
representation that the Company and the Guarantors have not
entered into any arrangement or understanding with any Person
to distribute the New Securities to be received in the
Registered Exchange Offer and that, to the best of their
information and belief, each Holder participating in the
Registered Exchange Offer is acquiring the New Securities in
the ordinary course of business and has no arrangement or
understanding with any Person to participate in the
distribution of the New Securities; and
(vii) comply in all respects with all applicable
laws.
5
6
(d) As soon as practicable after the close of the Registered
Exchange Offer, the Company and the Guarantors shall:
(i) accept for exchange all Securities tendered and
not validly withdrawn pursuant to the Registered Exchange
Offer;
(ii) deliver to the Trustee for cancellation in
accordance with Section 5(s) all Securities so accepted for
exchange; and
(iii) cause the Trustee or New Securities Trustee, as
the case may be, promptly to authenticate and deliver to each
Holder of Securities a principal amount of New Securities
equal to the principal amount of the Securities of such Holder
so accepted for exchange.
(e) Each Holder hereby acknowledges and agrees that any
Broker-Dealer and any such Holder using the Registered Exchange Offer
to participate in a distribution of the New Securities (x) could not
under Commission policy as in effect on the date of this Agreement rely
on the position of the Commission in XXXXXX XXXXXXX AND CO., INC. (pub.
avail. June 5, 1991) and EXXON CAPITAL HOLDINGS CORPORATION (pub.
avail. May 13, 1988), as interpreted in the Commission's letter to
Shearman & Sterling dated July 2, 1993 and similar no-action letters;
and (y) must comply with the registration and prospectus delivery
requirements of the Act in connection with any secondary resale
transaction which must be covered by an effective registration
statement containing the selling security holder information required
by Item 507 or 508, as applicable, of Regulation S-K under the Act if
the resales are of New Securities obtained by such Holder in exchange
for Securities acquired by such Holder directly from the Company or one
of its Affiliates. Accordingly, each Holder participating in the
Registered Exchange Offer shall be required to represent to the Company
and the Guarantors that, at the time of the consummation of the
Registered Exchange Offer:
(i) any New Securities received by such Holder will
be acquired in the ordinary course of business;
(ii) such Holder will have no arrangement or
understanding with any Person to participate in the
distribution of the Securities or the New Securities within
the meaning of the Act; and
(iii) such Holder is not an Affiliate of the Company
or the Guarantors.
(f) If any Initial Purchaser determines that it is not
eligible to participate in the Registered Exchange Offer with respect
to the exchange of Securities constituting any portion of an unsold
allotment, at the request of such Initial Purchaser, the Company and
the Guarantors shall issue and deliver to such Initial Purchaser or the
Person purchasing New Securities registered under a Shelf Registration
6
7
Statement as contemplated by Section 3 hereof from such Initial
Purchaser, in exchange for such Securities, a like principal amount of
New Securities. The Company and the Guarantors shall use their best
efforts to cause the CUSIP Service Bureau to issue the same CUSIP
number for such New Securities as for New Securities issued pursuant to
the Registered Exchange Offer.
3. SHELF REGISTRATION.
(a) If (i) due to any change in law or applicable
interpretations thereof by the Commission's staff, the Company
determines upon advice of its outside counsel that it is not permitted
to effect the Registered Exchange Offer as contemplated by Section 2
hereof; or (ii) for any other reason the Exchange Offer Registration
Statement is not declared effective within 120 days after the original
issue date of the Securities or the Registered Exchange Offer is not
consummated within 180 days after the original issue date of the
Securities; (iii) any Initial Purchaser so requests with respect to
Securities that are not eligible to be exchanged for New Securities in
the Registered Exchange Offer and that are held by it following
consummation of the Registered Exchange Offer; (iv) any Holder (other
than an Initial Purchaser) is not eligible to participate in the
Registered Exchange Offer or does not receive freely tradable New
Securities in the Registered Exchange Offer other than by reason of
such Holder being an Affiliate of the Company (it being understood that
the requirement that a participating Broker-Dealer deliver the
prospectus contained in the Exchange Offer Registration Statement in
connection with sales of New Securities shall not result in such New
Securities being not "freely tradable"); or (v) in the case of any
Initial Purchaser that participates in the Registered Exchange Offer or
acquires New Securities pursuant to Section 2(f) hereof, such Initial
Purchaser does not receive freely tradable New Securities in exchange
for Securities constituting any portion of an unsold allotment (it
being understood that (x) the requirement that an Initial Purchaser
deliver a Prospectus containing the information required by Item 507 or
508 of Regulation S-K under the Act in connection with sales of New
Securities acquired in exchange for such Securities shall result in
such New Securities being not "freely tradable;" and (y) the
requirement that an Exchanging Dealer deliver a Prospectus in
connection with sales of New Securities acquired in the Registered
Exchange Offer in exchange for Securities acquired as a result of
market-making activities or other trading activities shall not result
in such New Securities being not "freely tradeable"), the Company and
the Guarantors shall effect a Shelf Registration Statement in
accordance with subsection (b) below.
(b) If required pursuant to subsection (a) above,
(i) the Company and the Guarantors shall as promptly
as practicable (but in no event more than 60 days after so
required or requested pursuant to this Section 3), file with
the Commission and thereafter shall use their best efforts to
cause to be declared effective under the Act a Shelf
Registration Statement relating to the offer and sale of the
7
8
Securities or the New Securities, as applicable, by the
Holders thereof from time to time in accordance with the
methods of distribution elected by such Holders and set forth
in such Shelf Registration Statement; provided, however, that
no Holder (other than an Initial Purchaser) shall be entitled
to have the Securities held by it covered by such Shelf
Registration Statement unless such Holder agrees in writing to
be bound by all of the provisions of this Agreement applicable
to such Holder; and provided further, that with respect to New
Securities received by an Initial Purchaser in exchange for
Securities constituting any portion of an unsold allotment,
the Company and the Guarantors may, if permitted by current
interpretations by the Commission's staff, file a
post-effective amendment to the Exchange Offer Registration
Statement containing the information required by Item 507 or
508 of Regulation S-K, as applicable, in satisfaction of their
obligations under this subsection with respect thereto, and
any such Exchange Offer Registration Statement, as so amended,
shall be referred to herein as, and governed by the provisions
herein applicable to, a Shelf Registration Statement.
(ii) the Company and the Guarantors shall use their
best efforts to keep the Shelf Registration Statement
continuously effective, supplemented and amended as required
by the Act, in order to permit the Prospectus forming part
thereof to be usable by Holders for a period of two years from
the date the Shelf Registration Statement is declared
effective by the Commission or such shorter period that will
terminate when all the Securities or New Securities, as
applicable, covered by the Shelf Registration Statement have
been sold pursuant to the Shelf Registration Statement (in any
such case, such period being called the "Shelf Registration
Period"). The Company and the Guarantors shall be deemed not
to have used their best efforts to keep the Shelf Registration
Statement effective during the requisite period if they
voluntarily take any action that would result in Holders of
Securities covered thereby not being able to offer and sell
such Securities during that period, unless (A) such action is
required by applicable law; or (B) such action is taken by the
Company and the Guarantors in good faith and for valid
business reasons (not including avoidance of the Company and
the Guarantors' obligations hereunder), including the
acquisition or divestiture of assets, so long as the Company
and the Guarantors promptly thereafter comply with the
requirements of Section 5(k) hereof, if applicable.
(iii) the Company and the Guarantors shall cause the
Shelf Registration Statement and the related Prospectus and
any amendment or supplement thereto, as of the effective date
of the Shelf Registration Statement or such amendment or
supplement, (A) to comply in all material respects with the
applicable requirements of the Securities Act and the rules
8
9
and regulations of the Commission; and (B) not to contain any
untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
4. SPECIAL INTEREST. If (a) on or prior to the 60th day following the
original issue date of the Securities, neither the Exchange Offer Registration
Statement nor the Shelf Registration Statement has been filed with the SEC, (b)
on or prior to the 120th day following the original issue date of the
Securities, neither the Exchange Offer Registration Statement nor the Shelf
Registration Statement has been declared effective, (c) on or prior to the 180th
day following the original issue date of the Securities, neither the Registered
Exchange Offer has been consummated nor the Shelf Registration Statement has
been declared effective, or (d) after either the Exchange Offer Registration
Statement or the Shelf Registration Statement has been declared effective, such
Registration Statement thereafter ceases to be effective or usable (subject to
certain exceptions) in connection with resales of Securities or New Securities
in accordance with and during the periods specified in this Agreement (each such
event referred to in clauses (a) through (d), a ("Registration Default"),
interest ("Special Interest") will accrue on the principal amount of the
Securities and the New Securities (in addition to the stated interest on the
Securities and New Securities) from and including the date on which any such
Registration Default shall occur to but excluding the date on which all
Registration Defaults have been cured. Special Interest will accrue at a rate of
0.25% per annum during the 90-day period immediately following the occurrence of
such Registration Default and shall increase by 0.25% per annum at the end of
each subsequent 90-day period, but in no event shall such rate exceed 1.00% per
annum.
All obligations of the Company and the Guarantors set forth in the
preceding paragraph that are outstanding with respect to any Security at the
time such Security is exchanged for a New Security shall survive until such time
as all such obligations with respect to such Security have been satisfied in
full.
5. ADDITIONAL REGISTRATION PROCEDURES. In connection with any Shelf
Registration Statement and, to the extent applicable, any Exchange Offer
Registration Statement, the following provisions shall apply.
(a) The Company and the Guarantors shall:
(i) furnish to you, not less than five Business Days
prior to the filing thereof with the Commission, a copy of any
Exchange Offer Registration Statement and any Shelf
Registration Statement, and each amendment thereof and each
amendment or supplement, if any, to the Prospectus included
therein (including all documents incorporated by reference
therein after the initial filing) and shall use their best
efforts to reflect in each such document, when so filed with
9
10
the Commission, such comments as you reasonably propose,
subject to the Company's reasonable determination as to
compliance with applicable laws as provided in subsection (b)
below;
(ii) include the information set forth in Annex A
hereto on the facing page of the Exchange Offer Registration
Statement, in Annex B hereto in the forepart of the Exchange
Offer Registration Statement in a section setting forth
details of the Exchange Offer, in Annex C hereto in the
underwriting or plan of distribution section of the Prospectus
contained in the Exchange Offer Registration Statement, and in
Annex D hereto in the letter of transmittal delivered pursuant
to the Registered Exchange Offer;
(iii) if requested by an Initial Purchaser, include
the information required by Item 507 or 508 of Regulation S-K,
as applicable, in the Prospectus contained in the Exchange
Offer Registration Statement; and
(iv) in the case of a Shelf Registration Statement,
include the names of the Holders that propose to sell
Securities pursuant to the Shelf Registration Statement as
selling security holders.
(b) The Company and the Guarantors shall ensure that:
(i) any Registration Statement and any amendment
thereto and any Prospectus forming part thereof and any
amendment or supplement thereto complies in all material
respects with the Act and the rules and regulations
thereunder; and
(ii) any Registration Statement and any amendment
thereto does not, when it becomes effective, contain an untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the
statements therein not misleading.
(c) The Company and the Guarantors shall advise you, the
Holders of Securities covered by any Shelf Registration Statement and
any Exchanging Dealer under any Exchange Offer Registration Statement
that has provided in writing to the Company and the Guarantors a
telephone or facsimile number and address for notices, and, if
requested by you or any such Holder or Exchanging Dealer, shall confirm
such advice in writing (which notice pursuant to clauses (ii)-(v)
hereof shall be accompanied by an instruction to suspend the use of the
Prospectus until the Company and the Guarantors shall have remedied the
basis for such suspension):
10
11
(i) when a Registration Statement and any amendment
thereto has been filed with the Commission and when the
Registration Statement or any post-effective amendment thereto
has become effective;
(ii) of any request by the Commission for any
amendment or supplement to the Registration Statement or the
Prospectus or for additional information;
(iii) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration
Statement or the initiation of any proceedings for that
purpose;
(iv) of the receipt by the Company and the Guarantors
of any notification with respect to the suspension of the
qualification of the securities included therein for sale in
any jurisdiction or the initiation of any proceeding for such
purpose; and
(v) of the happening of any event that requires any
change in the Registration Statement or the Prospectus so
that, as of such date, the statements therein are not
misleading and do not omit to state a material fact required
to be stated therein or necessary to make the statements
therein (in the case of the Prospectus, in the light of the
circumstances under which they were made) not misleading.
(d) The Company and the Guarantors shall use their best
efforts to obtain the withdrawal of any order suspending the
effectiveness of any Registration Statement or the qualification of the
securities therein for sale in any jurisdiction at the earliest
possible time.
(e) The Company and the Guarantors shall furnish to each
Holder of Securities covered by any Shelf Registration Statement,
without charge, at least one copy of such Shelf Registration Statement
and any post-effective amendment thereto, including all material
incorporated therein by reference, and, if the Holder so requests in
writing, all exhibits thereto (including exhibits incorporated by
reference therein).
(f) The Company and the Guarantors shall, during the Shelf
Registration Period, deliver to each Holder of Securities covered by
any Shelf Registration Statement, without charge, as many copies of the
Prospectus (including each preliminary Prospectus) included in such
Shelf Registration Statement and any amendment or supplement thereto as
such Holder may reasonably request. The Company and the Guarantors
consent to the use of the Prospectus or any amendment or supplement
thereto by each of the selling Holders of securities in connection with
the offering and sale of the securities covered by the Prospectus, or
any amendment or supplement thereto, included in the Shelf Registration
Statement.
11
12
(g) The Company and the Guarantors shall furnish to each
Exchanging Dealer which so requests, without charge, at least one copy
of the Exchange Offer Registration Statement and any post-effective
amendment thereto, including all material incorporated by reference
therein, and, if the Exchanging Dealer so requests in writing, all
exhibits thereto (including exhibits incorporated by reference
therein).
(h) The Company and the Guarantors shall promptly deliver to
each Initial Purchaser, each Exchanging Dealer and each other Person
required to deliver a Prospectus during the Exchange Offer Registration
Period, without charge, as many copies of the Prospectus included in
such Exchange Offer Registration Statement and any amendment or
supplement thereto as any such Person may reasonably request. The
Company and the Guarantors consent to the use of the Prospectus or any
amendment or supplement thereto by any Initial Purchaser, any
Exchanging Dealer and any such other Person that may be required to
deliver a Prospectus following the Registered Exchange Offer in
connection with the offering and sale of the New Securities covered by
the Prospectus, or any amendment or supplement thereto, included in the
Exchange Offer Registration Statement.
(i) Prior to the Registered Exchange Offer or any other
offering of Securities pursuant to any Registration Statement, the
Company and the Guarantors shall arrange, if necessary, for the
qualification of the Securities or the New Securities for sale under
the laws of such jurisdictions as any Holder shall reasonably request
and will maintain such qualification in effect so long as required;
provided that in no event shall the Company and the Guarantors be
obligated to qualify to do business in any jurisdiction where they are
not then so qualified or to take any action that would subject them to
service of process in suits, other than those arising out of the
Initial Placement, the Registered Exchange Offer or any offering
pursuant to a Shelf Registration Statement, in any such jurisdiction
where they are not then so subject.
(j) The Company and the Guarantors shall cooperate with the
Holders of Securities to facilitate the timely preparation and delivery
of certificates representing New Securities or Securities to be issued
or sold pursuant to any Registration Statement free of any restrictive
legends and in such denominations and registered in such names as
Holders may request.
(k) Upon the occurrence of any event contemplated by
subsections (c)(ii) through (v) above, the Company and the Guarantors
shall promptly prepare a post-effective amendment to the applicable
Registration Statement or an amendment or supplement to the related
Prospectus or file any other required document so that, as thereafter
delivered to Initial Purchasers of the securities included therein, the
Prospectus will not include 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. In such circumstances, the period of effectiveness of
12
13
the Exchange Offer Registration Statement provided for in Section 2 and
the Shelf Registration Statement provided for in Section 3(b) shall
each be extended by the number of days from and including the date of
the giving of a notice of suspension pursuant to Section 5(c) to and
including the date when the Initial Purchasers, the Holders of the
Securities and any known Exchanging Dealer shall have received such
amended or supplemented Prospectus pursuant to this Section.
(l) Not later than the effective date of any Registration
Statement, the Company and the Guarantors shall provide a CUSIP number
for the Securities or the New Securities, as the case may be,
registered under such Registration Statement and provide the Trustee
with printed certificates for such Securities or New Securities, in a
form eligible for deposit with The Depository Trust Company.
(m) The Company and the Guarantors shall comply with all
applicable rules and regulations of the Commission and shall make
generally available to their security holders as soon as practicable
after the effective date of the applicable Registration Statement an
earnings statement satisfying the provisions of Section 11(a) of the
Act.
(n) The Company and the Guarantors shall cause the Indenture
or the New Securities Indenture, as the case may be, to be qualified
under the Trust Indenture Act in a timely manner.
(o) The Company and the Guarantors may require each Holder of
securities to be sold pursuant to any Shelf Registration Statement to
furnish to the Company and the Guarantors such information regarding
the Holder and the distribution of such securities as the Company and
the Guarantors may from time to time reasonably require for inclusion
in such Registration Statement. The Company and the Guarantors may
exclude from such Shelf Registration Statement the Securities of any
Holder that unreasonably fails to furnish such information within a
reasonable time after receiving such request.
(p) In the case of any Shelf Registration Statement, the
Company and the Guarantors shall enter into such agreements and take
all other appropriate actions (including if requested an underwriting
agreement in customary form) in order to expedite or facilitate the
registration or the disposition of the Securities, and in connection
therewith, if an underwriting agreement is entered into, cause the same
to contain indemnification provisions and procedures no less favorable
than those set forth in Section 7 (or such other provisions and
procedures acceptable to the Majority Holders and the Managing
Underwriters, if any, with respect to all parties to be indemnified
pursuant to Section 7.
13
14
(q) In the case of any Shelf Registration Statement, the
Company and the Guarantors shall:
(i) make reasonably available for inspection by the
Holders of Securities to be registered thereunder, any
underwriter participating in any disposition pursuant to such
Registration Statement, and any attorney, accountant or other
agent retained by the Holders or any such underwriter all
relevant financial and other records, pertinent corporate
documents and properties of the Company and its subsidiaries;
(ii) cause the Company's officers, directors and
employees to supply all relevant information reasonably
requested by the Holders or any such underwriter, attorney,
accountant or agent in connection with any such Registration
Statement as is customary for similar due diligence
examinations; PROVIDED, HOWEVER, that any information that is
designated in writing by the Company, in good faith, as
confidential at the time of delivery of such information shall
be kept confidential by the Holders or any such underwriter,
attorney, accountant or agent, unless such disclosure is made
in connection with a court proceeding or required by law, or
such information becomes available to the public generally or
through a third party without an accompanying obligation of
confidentiality;
(iii) make such representations and warranties to the
Holders of Securities registered thereunder and the
underwriters, if any, in form, substance and scope as are
customarily made by issuers to underwriters in primary
underwritten offerings and covering matters including, but not
limited to, those set forth in the Purchase Agreement;
(iv) obtain opinions of counsel to the Company and
the Guarantors and updates thereof (which counsel and opinions
(in form, scope and substance) shall be reasonably
satisfactory to the Managing Underwriters, if any) addressed
to each selling Holder and the underwriters, if any, covering
such matters as are customarily covered in opinions requested
in underwritten offerings and such other matters as may be
reasonably requested by such Holders and underwriters;
(v) obtain "cold comfort" letters and updates thereof
from the independent certified public accountants of the
Company (and, if necessary, any other independent certified
public accountants of any subsidiary of the Company or of any
business acquired by the Company for which financial
statements and financial data are, or are required to be,
included in the Registration Statement), addressed to each
selling Holder of Securities registered thereunder and the
14
15
underwriters, if any, in customary form and covering matters
of the type customarily covered in "cold comfort" letters in
connection with primary underwritten offerings; and
(vi) deliver such documents and certificates as may
be reasonably requested by the Majority Holders and the
Managing Underwriters, if any, including those to evidence
compliance with Section 5(k) and with any customary conditions
contained in the underwriting agreement or other agreement
entered into by the Company and the Guarantors .
The actions set forth in clauses (iii), (iv), (v) and (vi) of this Section shall
be performed at (A) the effectiveness of such Registration Statement and each
post-effective amendment thereto; and (B) each closing under any underwriting or
similar agreement as and to the extent required thereunder.
(r) In the case of any Exchange Offer Registration Statement,
the Company and the Guarantors shall:
(i) make reasonably available for inspection by such
Initial Purchaser, and any attorney, accountant or other agent
retained by such Initial Purchaser, all relevant financial and
other records, pertinent corporate documents and properties of
the Company and its subsidiaries;
(ii) cause the Company's officers, directors and
employees to supply all relevant information reasonably
requested by such Initial Purchaser or any such attorney,
accountant or agent in connection with any such Registration
Statement as is customary for similar due diligence
examinations; PROVIDED, HOWEVER, that any information that is
designated in writing by the Company, in good faith, as
confidential at the time of delivery of such information shall
be kept confidential by such Initial Purchaser or any such
attorney, accountant or agent, unless such disclosure is made
in connection with a court proceeding or required by law, or
such information becomes available to the public generally or
through a third party without an accompanying obligation of
confidentiality;
(iii) make such representations and warranties to
such Initial Purchaser, in form, substance and scope as are
customarily made by issuers to underwriters in primary
underwritten offerings and covering matters including, but not
limited to, those set forth in the Purchase Agreement;
(iv) obtain opinions of counsel to the Company and
the Guarantors and updates thereof (which counsel and opinions
(in form, scope and substance) shall be reasonably
satisfactory to such Initial Purchaser and its counsel,
addressed to such Initial
15
16
Purchaser, covering such matters as are customarily covered in
opinions requested in underwritten offerings and such other
matters as may be reasonably requested by such Initial
Purchaser or its counsel;
(v) obtain "cold comfort" letters and updates thereof
from the independent certified public accountants of the
Company (and, if necessary, any other independent certified
public accountants of any subsidiary of the Company or of any
business acquired by the Company for which financial
statements and financial data are, or are required to be,
included in the Registration Statement), addressed to such
Initial Purchaser, in customary form and covering matters of
the type customarily covered in "cold comfort" letters in
connection with primary underwritten offerings, or if
requested by such Initial Purchaser or its counsel in lieu of
a "cold comfort" letter, an agreed-upon procedures letter
under Statement on Auditing Standards No. 35, covering matters
requested by such Initial Purchaser or its counsel; and
(vi) deliver such documents and certificates as may
be reasonably requested by such Initial Purchaser or its
counsel, including those to evidence compliance with Section
5(k) and with conditions customarily contained in underwriting
agreements.
The foregoing actions set forth in clauses (iii), (iv), (v), and (vi) of this
Section shall be performed at the close of the Registered Exchange Offer and the
effective date of any post-effective amendment to the Exchange Offer
Registration Statement.
(s) If a Registered Exchange Offer is to be consummated, upon
delivery of the Securities by Holders to the Company (or to such other
Person as directed by the Company) in exchange for the New Securities,
the Company shall xxxx, or caused to be marked, on the Securities so
exchanged that such Securities are being canceled in exchange for the
New Securities. In no event shall the Securities be marked as paid or
otherwise satisfied.
(t) The Company and the Guarantors will use their best efforts
(i) if the Securities have been rated prior to the initial sale of such
Securities, to confirm such ratings will apply to the Securities or the
New Securities, as the case may be, covered by a Registration
Statement; or (ii) if the Securities were not previously rated, to
cause the Securities covered by a Registration Statement to be rated
with at least one nationally recognized statistical rating agency, if
so requested by Majority Holders with respect to the related
Registration Statement or by any Managing Underwriters.
(u) In the event that any Broker-Dealer shall underwrite any
Securities or participate as a member of an underwriting syndicate or
selling group or "assist in the distribution" (within the meaning of
the Rules of Fair Practice and the By-Laws of the National Association
of Securities Dealers, Inc.) thereof, whether as a Holder of such
16
17
Securities or as an underwriter, a placement or sales agent or a broker
or dealer in respect thereof, or otherwise, assist such Broker-Dealer
in complying with the requirements of such Rules and By-Laws,
including, without limitation, by:
(i) if such Rules or By-Laws shall so require,
engaging a "qualified independent underwriter" (as defined in
such Rules) to participate in the preparation of the
Registration Statement, to exercise usual standards of due
diligence with respect thereto and, if any portion of the
offering contemplated by such Registration Statement is an
underwritten offering or is made through a placement or sales
agent, to recommend the yield of such Securities;
(ii) indemnifying any such qualified independent
underwriter to the extent of the indemnification of
underwriters provided in Section 6 hereof; and
(iii) providing such information to such
Broker-Dealer as may be required in order for such
Broker-Dealer to comply with the requirements of such Rules.
(iv) The Company and the Guarantors shall use their
best efforts to take all other steps necessary to effect the
registration of the Securities or the New Securities, as the
case may be, covered by a Registration Statement.
6. REGISTRATION EXPENSES. The Company shall bear all expenses incurred
in connection with the performance of its and the Guarantors' obligations under
Sections 2, 3 and 5 hereof and, in the event of any Shelf Registration
Statement, will reimburse the Holders for the reasonable fees and disbursements
of one firm or counsel designated by the Majority Holders to act as counsel for
the Holders in connection therewith.
7. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company and the Guarantors, jointly and severally,
agree to indemnify and hold harmless each Holder of Securities or New
Securities, as the case may be, covered by any Registration Statement
(including each Initial Purchaser and, with respect to any Prospectus
delivery as contemplated in Section 5(h) hereof, each Exchanging
Dealer), the directors, officers, employees and agents of each such
Holder and each Person who controls any such Holder within the meaning
of either the Act or the Exchange Act against any and all losses,
claims, damages or liabilities, joint or several, to which they or any
of them may become subject under the Act, the Exchange Act or other
Federal or state statutory law or regulation, at common law or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in
the Registration Statement as originally filed or in any amendment
17
18
thereof, or in any preliminary Prospectus or the Prospectus, or in any
amendment thereof or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading, and agrees to reimburse each such indemnified
party, as incurred, for any legal or other expenses reasonably incurred
by them in connection with investigating or defending any such loss,
claim, damage, liability or action; PROVIDED, HOWEVER, that the Company
and the Guarantors will not be liable in any case to the extent that
any such loss, claim, damage or liability arises out of or is based
upon any such untrue statement or alleged untrue statement or omission
or alleged omission made therein in reliance upon and in conformity
with written information furnished to the Company and the Guarantors by
or on behalf of any such Holder specifically for inclusion therein.
This indemnity agreement will be in addition to any liability which the
Company and the Guarantors may otherwise have.
The Company and the Guarantors also, jointly and severally,
agree to indemnify or contribute as provided in Section 7(d) to Losses of any
underwriter of Securities or New Securities, as the case may be, registered
under a Shelf Registration Statement, their directors, officers, employees or
agents and each Person who controls such underwriter on substantially the same
basis as that of the indemnification of the Initial Purchasers and the selling
Holders provided in this Section 7(a) and shall, if requested by any Holder,
enter into an underwriting agreement reflecting such agreement, as provided in
Section 5(p) hereof.
(b) Each Holder of securities covered by a Registration
Statement (including each Initial Purchaser and, with respect to any
Prospectus delivery as contemplated in Section 5(h) hereof, each
Exchanging Dealer) severally agrees to indemnify and hold harmless the
Company and the Guarantors, each of their directors, each of their
officers who sign such Registration Statement and each Person who
controls the Company or any of the Guarantors within the meaning of
either the Act or the Exchange Act, to the same extent as the foregoing
indemnity from the Company and the Guarantors to each such Holder, but
only with reference to written information relating to such Holder
furnished to the Company and the Guarantors by or on behalf of such
Holder specifically for inclusion in the documents referred to in the
foregoing indemnity. This indemnity agreement will be in addition to
any liability which any such Holder may otherwise have.
(c) Promptly after receipt by an indemnified party under this
Section 7 or notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the
indemnifying party under this Section, notify the indemnifying party in
writing of the commencement thereof; but the failure so to notify the
indemnifying party (i) will not relieve it from liability under
paragraph (a) or (b) above unless and to the extent it did not
otherwise learn of such action and such failure results in the
forfeiture by the indemnifying party of substantial rights and
defenses; and (ii) will not, in any event, relieve the indemnifying
party from any obligations to any indemnified party other than the
indemnification obligation provided in paragraph (a) or (b) above. The
18
19
indemnifying party shall be entitled to appoint counsel of the
indemnifying party's choice at the indemnifying party's expense to
represent the indemnified party in any action for which indemnification
is sought (in which case the indemnifying party shall not thereafter be
responsible for the fees and expenses of any separate counsel retained
by the indemnified party or parties except as set forth below);
PROVIDED, HOWEVER, that such counsel shall be satisfactory to the
indemnified party. Notwithstanding the indemnifying party's election to
appoint counsel to represent the indemnified party in an action, the
indemnified party shall have the right to employ separate counsel
(including local counsel), and the indemnifying party shall bear the
reasonable fees, costs and expenses of such separate counsel if (i) the
use of counsel chosen by the indemnifying party to represent the
indemnified party would present such counsel with a conflict of
interest; (ii) the actual or potential defendants in, or targets of,
any such action include both the indemnified party and the indemnifying
party and the indemnified party shall have reasonably concluded that
there may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available to
the indemnifying party; (iii) the indemnifying party shall not have
employed counsel satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of the
institution of such action; or (iv) the indemnifying party shall
authorize the indemnified party to employ separate counsel at the
expense of the indemnifying party. An indemnifying party will not,
without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any
pending or threatened claim, action, suit or proceeding in respect of
which indemnification or contribution may be sought hereunder (whether
or not the indemnified parties are actual or potential parties to such
claim or action) unless such settlement, compromise or consent includes
an unconditional release of each indemnified party from all liability
arising out of such claim, action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a)
or (b) of this Section is unavailable to or insufficient to hold
harmless an indemnified party for any reason, then each applicable
indemnifying party shall have a joint and several obligation to
contribute to the aggregate losses, claims, damages and liabilities
(including legal or other expenses reasonably incurred in connection
with investigating or defending same) (collectively "Losses") to which
such indemnified party may be subject in such proportion as is
appropriate to reflect the relative benefits received by such
indemnifying party, on the one hand, and such indemnified party, on the
other hand, from the Initial Placement and the Registration Statement
which resulted in such Losses; PROVIDED, HOWEVER, that in no case shall
any Initial Purchaser or any subsequent Holder of any Security or New
Security be responsible, in the aggregate, for any amount in excess of
19
20
the purchase discount or commission applicable to such Security, or in
the case of a New Security, applicable to the Security that was
exchangeable into such New Security, as set forth on the cover page of
the Final Memorandum, nor shall any underwriter be responsible for any
amount in excess of the underwriting discount or commission applicable
to the securities purchased by such underwriter under the Registration
Statement which resulted in such Losses. If the allocation provided by
the immediately preceding sentence is unavailable for any reason, the
indemnifying party and the indemnified party shall contribute in such
proportion as is appropriate to reflect not only such relative benefits
but also the relative fault of such indemnifying party, on the one
hand, and such indemnified party, on the other hand, in connection with
the statements or omissions which resulted in such Losses as well as
any other relevant equitable considerations. Benefits received by the
Company and the Guarantors shall be deemed to be equal to the sum of
(x) the total net proceeds from the Initial Placement (before deducting
expenses) as set forth on the cover page of the Final Memorandum and
(y) the total amount of additional interest which the Company and the
Guarantors were not required to pay as a result of registering the
securities covered by the Registration Statement which resulted in such
Losses. Benefits received by the Initial Purchasers shall be deemed to
be equal to the total purchase discounts and commissions as set forth
on the cover page of the Final Memorandum, and benefits received by any
other Holders shall be deemed to be equal to the value of receiving
Securities or New Securities, as applicable, registered under the Act.
Benefits received by any underwriter shall be deemed to be equal to the
total underwriting discounts and commissions, as set forth on the cover
page of the Prospectus forming a part of the Registration Statement
which resulted in such Losses. Relative fault shall be determined by
reference to, among other things, whether any alleged untrue statement
or omission relates to information provided by the indemnifying party,
on the one hand, or by the indemnified party, on the other hand, the
intent of the parties and their relative knowledge, access to
information and opportunity to correct or prevent such untrue statement
or omission. The parties agree that it would not be just and equitable
if contribution were determined by pro rata allocation (even if the
Holders were treated as one entity for such purpose) or any other
method of allocation which does not take account of the equitable
considerations referred to above. Notwithstanding the provisions of
this paragraph (d), no Person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any Person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section, each Person who
controls a Holder within the meaning of either the Act or the Exchange
Act and each director, officer, employee and agent of such Holder shall
have the same rights to contribution as such Holder, and each Person
who controls the Company or any of the Guarantors within the meaning of
either the Act or the Exchange Act, each officer of the Company or any
of the Guarantors who shall have signed the Registration Statement and
20
21
each director of the Company or any of the Guarantors shall have the
same rights to contribution as the Company, subject in each case to the
applicable terms and conditions of this paragraph (d).
(e) The provisions of this Section will remain in full force
and effect, regardless of any investigation made by or on behalf of any
Holder or the Company and the Guarantors or any of the officers,
directors or controlling Persons referred to in this Section hereof,
and will survive the sale by a Holder of securities covered by a
Registration Statement.
8. UNDERWRITTEN REGISTRATIONS.
(a) If any of the Securities or New Securities, as the case
may be, covered by any Shelf Registration Statement are to be sold in
an underwritten offering, the Managing Underwriters shall be selected
by the Majority Holders.
(b) No Person may participate in any underwritten offering
pursuant to any Shelf Registration Statement, unless such Person (i)
agrees to sell such Person's Securities or New Securities, as the case
may be, on the basis reasonably provided in any underwriting
arrangements approved by the Persons entitled hereunder to approve such
arrangements; and (ii) completes and executes all questionnaires,
powers of attorney, indemnities, underwriting agreements and other
documents reasonably required under the terms of such underwriting
arrangements.
9. NO INCONSISTENT AGREEMENTS. The Company has not, as of the date
hereof, entered into, nor shall it, on or after the date hereof, enter into, any
agreement with respect to its securities that is inconsistent with the rights
granted to the Holders herein or otherwise conflicts with the provisions hereof.
10. AMENDMENTS AND WAIVERS. The provisions of this Agreement, including
the provisions of this sentence, may not be amended, qualified, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given, unless the Company has obtained the written consent of the
Majority Holders (or, after the consummation of any Registered Exchange Offer in
accordance with Section 2 hereof, of New Securities); PROVIDED that, with
respect to any matter that directly or indirectly affects the rights of any
Initial Purchaser hereunder, the Company shall obtain the written consent of
each such Initial Purchaser against which such amendment, qualification,
supplement, waiver or consent is to be effective. Notwithstanding the foregoing
(except the foregoing proviso), a waiver or consent to departure from the
provisions hereof with respect to a matter that relates exclusively to the
rights of Holders whose Securities or New Securities, as the case may be, are
being sold pursuant to a Registration Statement and that does not directly or
indirectly affect the rights of other Holders may be given by the Majority
Holders, determined on the basis of Securities or New Securities, as the case
may be, being sold rather than registered under such Registration Statement.
21
22
11. NOTICES. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail,
telex, telecopier or air courier guaranteeing overnight delivery:
(a) if to a Holder, at the most current address given by such
holder to the Company in accordance with the provisions of this
Section, which address initially is, with respect to each Holder, the
address of such Holder maintained by the Registrar under the Indenture,
with a copy in like manner to Salomon Brothers Inc;
(b) if to you, initially at the respective addresses set forth
in the Purchase Agreement; and
(c) if to the Company or the Guarantors, initially at its
respective address set forth in the Purchase Agreement.
All such notices and communications shall be deemed to have been duly
given when received.
The Initial Purchasers or the Company by notice to the other parties
may designate additional or different addresses for subsequent notices or
communications.
12. SUCCESSORS. This Agreement shall inure to the benefit of and be
binding upon the successors and assigns of each of the parties, including,
without the need for an express assignment or any consent by the Company
thereto, subsequent Holders of Securities and the New Securities. The Company
hereby agrees to extend the benefits of this Agreement to any Holder of
Securities and the New Securities, and any such Holder may specifically enforce
the provisions of this Agreement as if an original party hereto.
13. COUNTERPARTS. This agreement may be in signed counterparts, each of
which shall an original and all of which together shall constitute one and the
same agreement.
14. HEADINGS. The headings used herein are for convenience only and
shall not affect the construction hereof.
15. APPLICABLE LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York applicable to contracts
made and to be performed in the State of New York.
16. SEVERABILITY. In the event that any one of more of the provisions
contained herein, or the application thereof in any circumstances, is held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and of
the remaining provisions hereof shall not be in any way impaired or affected
22
23
thereby, it being intended that all of the rights and privileges of the parties
shall be enforceable to the fullest extent permitted by law.
17. SECURITIES HELD BY THE COMPANY, ETC. Whenever the consent or
approval of Holders of a specified percentage of principal amount of Securities
or New Securities is required hereunder, Securities or New Securities, as
applicable, held by the Company or its Affiliates (other than subsequent Holders
of Securities or New Securities if such subsequent Holders are deemed to be
Affiliates solely by reason of their holdings of such Securities or New
Securities) shall not be counted in determining whether such consent or approval
was given by the Holders of such required percentage.
23
24
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this Agreement and your acceptance shall represent a binding agreement
among the Company, the Guarantors and the several Initial Purchasers.
Very truly yours,
Xxxxxx Communications Corporation
By:
------------------------------------------
Name: Xxxxxx X. Xxxxxxxx, Xx.
Title: Senior Vice President and Chief
Financial Officer
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
Xxxxxxx Xxxxx Xxxxxx Inc.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
CIBC World Markets Corp.
Bear, Xxxxxxx & Co. Inc.
By: Xxxxxxx Xxxxx Xxxxxx Inc.
By:
-----------------------------
Name: Xxxxx Xxxxxxx
Title: Director
24
25
SUBSIDIARY GUARANTORS:
BUD HITS, INC.
BUD SONGS, INC.
CAP COMMUNICATIONS LICENSE OF NEW LONDON, INC.
CAP COMMUNICATIONS OF NEW LONDON, INC.
CAP COMMUNICATIONS, INC.
CHANNEL 66 OF TAMPA, INC.
CLEARLAKE PRODUCTIONS, INC.
XXXXXX MEDIA CORPORATION OF FLORIDA
XXXXXX MEDIA CORPORATION OF SAN FRANCISCO, INC.
DP MEDIA, INC.
DP MEDIA LICENSE OF BATTLE CREEK, INC.
DP MEDIA LICENSE OF BOSTON, INC.
DP MEDIA LICENSE OF MARTINSBURG, INC.
DP MEDIA LICENSE OF MILWAUKEE, INC.
DP MEDIA LICENSE OF XXXXXXX XXXXXX, INC.
DP MEDIA OF BATTLE CREEK, INC.
DP MEDIA OF BOSTON, INC.
DP MEDIA OF MARTINSBURG, INC.
DP MEDIA OF MILWAUKEE, INC.
DP MEDIA OF XXXXXXX XXXXXX, INC.
DP MEDIA OF ST. LOUIS, INC.
FLAGLER PRODUCTIONS, INC.
HISPANIC BROADCASTING, INC.
IRON MOUNTAIN PRODUCTIONS, INC.
OCEAN STATE TELEVISION, LLC
PAX HITS PUBLISHING, INC.
PAX INTERNET, INC.
PAX NET TELEVISION PRODUCTIONS, INC.
PAX NET, INC.
XXXXXX AKRON LICENSE, INC.
XXXXXX ALBANY LICENSE, INC.
XXXXXX ALBUQUERQUE LICENSE, INC.
XXXXXX ATLANTA LICENSE, INC.
XXXXXX BIRMINGHAM LICENSE, INC.
XXXXXX BOSTON LICENSE, INC.
XXXXXX BOSTON-68 LICENSE, INC.
XXXXXX BUFFALO LICENSE, INC.
XXXXXX CEDAR RAPIDS LICENSE, INC.
XXXXXX CHARLESTON LICENSE, INC.
XXXXXX CHICAGO LICENSE, INC.
XXXXXX COMMUNICATIONS LICENSE COMPANY, LLC
XXXXXX COMMUNICATIONS LPTV, INC.
XXXXXX COMMUNICATIONS MANAGEMENT COMPANY, INC.
XXXXXX COMMUNICATIONS OF AKRON-23, INC.
XXXXXX COMMUNICATIONS OF ALBANY-55, INC.
XXXXXX COMMUNICATIONS OF ALBUQUERQUE-14, INC.
XXXXXX COMMUNICATIONS OF ATLANTA-14, INC.
25
26
XXXXXX COMMUNICATIONS OF BIRMINGHAM-44, INC.
XXXXXX COMMUNICATIONS OF BOSTON-46, INC.
XXXXXX COMMUNICATIONS OF BOSTON-60, INC.
XXXXXX COMMUNICATIONS OF BOSTON-68, INC.
XXXXXX COMMUNICATIONS OF BUFFALO-51, INC.
XXXXXX COMMUNICATIONS OF CEDAR RAPIDS-48, INC.
XXXXXX COMMUNICATIONS OF CHARLESTON-29, INC.
XXXXXX COMMUNICATIONS OF CHICAGO-38, INC.
XXXXXX COMMUNICATIONS OF DALLAS-68, INC.
XXXXXX COMMUNICATIONS OF XXXXXXXXX-67, INC.
XXXXXX COMMUNICATIONS OF DENVER-59, INC.
XXXXXX COMMUNICATIONS OF DES MOINES-39, INC.
XXXXXX COMMUNICATIONS OF DETROIT-31, INC.
XXXXXX COMMUNICATIONS OF FAYETTEVILLE-62, INC.
XXXXXX COMMUNICATIONS OF FRESNO-61, INC.
XXXXXX COMMUNICATIONS OF GREENSBORO-16, INC.
XXXXXX COMMUNICATIONS OF GREENVILLE-38, INC.
XXXXXX COMMUNICATIONS OF HONOLULU-66, INC.
XXXXXX COMMUNICATIONS OF HOUSTON-49, INC.
XXXXXX COMMUNICATIONS OF JACKSONVILLE-21, INC.
XXXXXX COMMUNICATIONS OF JACKSONVILLE-35, INC.
XXXXXX COMMUNICATIONS OF KANSAS CITY-50, INC.
XXXXXX COMMUNICATIONS OF KNOXVILLE-54, INC.
XXXXXX COMMUNICATIONS OF LEXINGTON-67, INC.
XXXXXX COMMUNICATIONS OF LOS ANGELES-30, INC.
XXXXXX COMMUNICATIONS OF LOUISVILLE-21, INC.
XXXXXX COMMUNICATIONS OF MEMPHIS-50, INC.
XXXXXX COMMUNICATIONS OF MIAMI-35, INC.
XXXXXX COMMUNICATIONS OF MINNEAPOLIS-41, INC.
XXXXXX COMMUNICATIONS OF MOBILE-61, INC.
XXXXXX COMMUNICATIONS OF NASHVILLE-28, INC.
XXXXXX COMMUNICATIONS OF NEW ORLEANS-49, INC.
XXXXXX COMMUNICATIONS OF NEW YORK-31, INC.
XXXXXX COMMUNICATIONS OF NORFOLK-49, INC.
XXXXXX COMMUNICATIONS OF OKLAHOMA CITY-62, INC.
XXXXXX COMMUNICATIONS OF ORLANDO-56, INC.
XXXXXX COMMUNICATIONS OF PHILADELPHIA-61, INC.
XXXXXX COMMUNICATIONS OF PHOENIX-13, INC.
XXXXXX COMMUNICATIONS OF PHOENIX-51, INC.
XXXXXX COMMUNICATIONS OF PITTSBURGH-40, INC.
XXXXXX COMMUNICATIONS OF PORTLAND-22, INC.
XXXXXX COMMUNICATIONS OF PORTLAND-23, INC.
XXXXXX COMMUNICATIONS OF PROVIDENCE-69, INC.
XXXXXX COMMUNICATIONS OF ROANOKE-38, INC.
XXXXXX COMMUNICATIONS OF SACRAMENTO-29, INC.
XXXXXX COMMUNICATIONS OF SALT LAKE CITY-30, INC.
XXXXXX COMMUNICATIONS OF SAN ANTONIO-26, INC.
XXXXXX COMMUNICATIONS OF SAN XXXX-65, INC.
XXXXXX COMMUNICATIONS OF SAN XXXX, INC.
26
27
XXXXXX COMMUNICATIONS OF SCRANTON-64, INC.
XXXXXX COMMUNICATIONS OF SEATTLE-33, INC.
XXXXXX COMMUNICATIONS OF SHREVEPORT-21, INC.
XXXXXX COMMUNICATIONS OF SPOKANE-34, INC.
XXXXXX COMMUNICATIONS OF ST. CROIX-15, INC.
XXXXXX COMMUNICATIONS OF SYRACUSE-56, INC.
XXXXXX COMMUNICATIONS OF TAMPA-66, INC.
XXXXXX COMMUNICATIONS OF TUCSON-46, INC.
XXXXXX COMMUNICATIONS OF TULSA-44, INC.
XXXXXX COMMUNICATIONS OF WASHINGTON-66, INC.
XXXXXX COMMUNICATIONS OF WAUSAU-46, INC.
XXXXXX COMMUNICATIONS OF WEST PALM BEACH-67, INC.
XXXXXX COMMUNICATIONS TELEVISION, INC.
XXXXXX XXXXXX LICENSE, INC.
XXXXXX XXXXXXXXX LICENSE, INC.
XXXXXX DENVER LICENSE, INC.
XXXXXX DES MOINES LICENSE, INC.
XXXXXX DETROIT LICENSE, INC.
XXXXXX DEVELOPMENT, INC.
XXXXXX FAYETTEVILLE LICENSE, INC.
XXXXXX FRESNO LICENSE, INC.
XXXXXX GREENSBORO LICENSE, INC.
XXXXXX GREENVILLE LICENSE, INC.
XXXXXX HAWAII LICENSE, INC.
XXXXXX HOUSTON LICENSE, INC.
XXXXXX JACKSONVILLE LICENSE, INC.
XXXXXX JAX LICENSE, INC.
XXXXXX KANSAS CITY LICENSE, INC.
XXXXXX KNOXVILLE LICENSE, INC.
XXXXXX LEXINGTON LICENSE, INC.
XXXXXX LOS ANGELES LICENSE, INC.
XXXXXX MERCHANDISING & LICENSING, INC.
XXXXXX MIAMI-35 LICENSE, INC.
XXXXXX MINNEAPOLIS LICENSE, INC.
XXXXXX MOBILE LICENSE, INC.
XXXXXX NEW YORK LICENSE, INC.
XXXXXX NORFOLK LICENSE, INC.
XXXXXX OKLAHOMA CITY LICENSE, INC.
XXXXXX XXXXXXX LICENSE, INC.
XXXXXX PHILADELPHIA LICENSE, INC.
XXXXXX PHOENIX LICENSE, INC.
XXXXXX PORTLAND LICENSE, INC.
XXXXXX PRODUCTIONS, INC.
XXXXXX ROANOKE LICENSE, INC.
XXXXXX SACRAMENTO LICENSE, INC.
XXXXXX SALEM LICENSE, INC.
XXXXXX SALT LAKE CITY LICENSE, INC.
XXXXXX SAN ANTONIO LICENSE, INC.
XXXXXX SAN XXXX LICENSE, INC.
27
28
XXXXXX SCRANTON LICENSE, INC.
XXXXXX SEATTLE LICENSE, INC.
XXXXXX SHREVEPORT LICENSE, INC.
XXXXXX SPOKANE LICENSE, INC.
XXXXXX SPORTS OF MIAMI, INC.
XXXXXX ST. CROIX LICENSE, INC.
XXXXXX SYRACUSE LICENSE, INC.
XXXXXX TAMPA-66 LICENSE, INC.
XXXXXX TELEVISION PRODUCTIONS, INC.
XXXXXX TELEVISION, INC.
XXXXXX TENNESSEE LICENSE, INC.
XXXXXX TULSA LICENSE, INC.
XXXXXX WASHINGTON LICENSE, INC.
XXXXXX WAUSAU LICENSE, INC.
PCC DIRECT, INC.
RDP COMMUNICATIONS LICENSE OF INDIANAPOLIS, INC.
RDP COMMUNICATIONS OF INDIANAPOLIS, INC.
RDP COMMUNICATIONS, INC.
S&E NETWORK, INC.
TRAVEL CHANNEL ACQUISITION CORPORATION
By:
-----------------------------------------
Name: Xxxxxxx X Xxxxxxxx
Title: Vice President and Assistant Secretary
of each of such Subsidiary Guarantors
AMERICA 51, L.P.
By: Xxxxxx Communications of Phoenix-51, Inc.,
its General Partner and Limited Partner
By: Xxxxxx Communications Television, Inc.,
its Limited Partner
By:
-----------------------------------------
Name: Xxxxxxx X Xxxxxxxx
Title: Vice President and Assistant
Secretary of such General and Limited Partners
28
29
ANNEX A
Each Broker-Dealer that receives New Securities for its own
account pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such New Securities. The Letter of
Transmittal states that by so acknowledging and by delivering a prospectus, a
Broker-Dealer will not be deemed to admit that it is an "underwriter" within the
meaning of the Securities Act. This Prospectus, as it may be amended or
supplemented from time to time, may be used by a Broker-Dealer in connection
with resales of New Securities received in exchange for Securities where such
Securities were acquired by such Broker-Dealer as a result of market-making
activities or other trading activities. The Company has agreed that, starting on
the Expiration Date (as defined herein) and ending on the close of business one
year after the Expiration Date, it will make this Prospectus available to any
Broker-Dealer for use in connection with any such resale. See "Plan of
Distribution".
29
30
ANNEX B
Each Broker-Dealer that receives New Securities for its own
account in exchange for Securities, where such Securities were acquired by such
Broker-Dealer as a result of market-making activities or other trading
activities, must acknowledge that it will deliver a prospectus in connection
with any resale of such New Securities. See "Plan of Distribution."
30
31
ANNEX C
PLAN OF DISTRIBUTION
Each Broker-Dealer that receives New Securities for its own
account pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such New Securities. This
Prospectus, as it may be amended or supplemented from time to time, may be used
by a Broker-Dealer in connection with resales of New Securities received in
exchange for Securities where such Securities were acquired as a result of
market-making activities or other trading activities. The Company and the
Guarantors have agreed that, starting on the Expiration Date and ending on the
close of business one year after the Expiration Date, they will make this
Prospectus, as amended or supplemented, available to any Broker-Dealer for use
in connection with any such resale. In addition, until __________, 200_, all
dealers effecting transactions in the New Securities may be required to deliver
a prospectus.
The Company will not receive any proceeds from any sale of New
Securities by brokers-dealers. New Securities received by Broker-Dealers for
their own account pursuant to the Exchange Offer may be sold from time to time
in one or more transactions in the over-the-counter market, in negotiated
transactions, through the writing of options on the New Securities or a
combination of such methods of resale, at market prices prevailing at the time
of resale, at prices related to such prevailing market prices or negotiated
prices. Any such resale may be made directly to purchasers or to or through
brokers or dealers who may receive compensation in the form of commissions or
concessions from any such Broker-Dealer and/or the purchasers of any such New
Securities. Any Broker-Dealer that resells New Securities that were received by
it for its own account pursuant to the Exchange Offer and any broker or dealer
that participates in a distribution of such New Securities may be deemed to be
an "underwriter" within the meaning of the Securities Act and any profit of any
such resale of New Securities and any commissions or concessions received by any
such Persons may be deemed to be underwriting compensation under the Securities
Act. The Letter of Transmittal states that by acknowledging that it will deliver
and by delivering a prospectus, a Broker-Dealer will not be deemed to admit that
it is an "underwriter" within the meaning of the Securities Act.
For a period of one year after the Expiration Date, the
Company and the Guarantors will promptly send additional copies of this
Prospectus and any amendment or supplement to this Prospectus to any
Broker-Dealer that requests such documents in the Letter of Transmittal. The
Company has agreed to pay all expenses incident to the Exchange Offer (including
the expenses of one counsel for the holder of the Securities) other than
commissions or concessions of any brokers or dealers and will indemnify the
holders of the Securities (including any Broker-Dealers) against certain
liabilities, including liabilities under the Securities Act.
31
32
[If applicable, add information required by Regulation S-K
Items 507 and/or 508.]
32
33
ANNEX D
Rider A
CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10
ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY
AMENDMENTS OR SUPPLEMENTS THERETO.
Name: --------------------------------------------
Address:
--------------------------------------------
Rider B
If the undersigned is not a Broker-Dealer, the undersigned represents that it
acquired the New Securities in the ordinary course of its business, it is not
engaged in, and does not intend to engage in, a distribution of New Securities
and it has no arrangements or understandings with any Person to participate in a
distribution of the New Securities. If the undersigned is a Broker-Dealer that
will receive New Securities for its own account in exchange for Securities, it
represents that the Securities to be exchanged for New Securities were acquired
by it as a result of market-making activities or other trading activities and
acknowledges that it will deliver a prospectus in connection with any resale of
such New Securities; however, by so acknowledging and by delivering a
prospectus, the undersigned will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act.
33
