Exhibit 10.43
[Execution Copy]
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of October 6, 2000,
between Cablevision Systems Corporation, a Delaware corporation (the "COMPANY"),
on the one hand, and NBC-Rainbow Holding, Inc., a Delaware corporation (the
"STOCKHOLDER"), on the other hand.
WHEREAS, the Stockholder currently owns shares of Class A common
stock of Rainbow Media Holdings, Inc.;
WHEREAS, pursuant to an Agreement (the "STOCKHOLDERS' AGREEMENT"),
dated of even date herewith, among the Company, CSC Holdings, Inc., National
Broadcasting Company, Inc. and the Stockholder, the Stockholder has the right to
exchange such shares of Class A common stock of Rainbow Media Holdings, Inc. for
shares of the Company's Rainbow Media Group Class A tracking stock; and
WHEREAS, the Company and the Stockholder desire to have the shares
of the Company's Rainbow Media Group Class A tracking stock received by the
Stockholder pursuant to the Stockholders' Agreement be subject to the rights
described herein;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements set forth herein, the parties agree as follows:
1. DEFINITIONS.
(a) As used herein, the following terms shall have the following
meanings:
"AGREEMENT" shall mean this Registration Rights Agreement, as
amended, supplemented or otherwise modified from time to time.
"BUSINESS DAY" shall mean any day other than a Saturday, Sunday or
other day which the New York Stock Exchange (or, if different, the
principal exchange on which the Rainbow Media Group Class A Shares are
traded) is not open for trading.
"COMMISSION" shall mean the Securities and Exchange Commission.
"COMPANY" shall have the meaning set forth in the preamble and shall
also include the Company's successors.
"DERIVATIVE SECURITIES" shall mean any derivative security
including, without limitation, any rights, warrants, convertible or
exchangeable securities or other securities issued by a Derivative
Securities Issuer, that are offered with, convertible into, or
exchangeable or exercisable for, any Registrable Securities.
"DERIVATIVE SECURITIES ISSUER" shall mean (a) the Stockholder, (b)
any of affiliate of the Stockholder, or (c) any financial institution
issuing Derivative Securities for the benefit of the Stockholder or any of
its affiliates in a transaction in which the net proceeds of such
Derivative Securities will be received by the Stockholder or an affiliate
of the Stockholder.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as
amended from time to time.
"PROSPECTUS" shall mean the prospectus included in the Registration
Statement, including any preliminary prospectus, and any such prospectus
as supplemented by any prospectus supplement with respect to the terms of
the offering of any of the Registrable Securities, and by all other
amendments and supplements to such prospectus, and in each case including
all documents incorporated by reference therein.
"REGISTER", "REGISTERED" and "REGISTRATION" refer to a registration
of Registrable Securities effected by preparing and filing a Registration
Statement in compliance with the Securities Act and the declaration or
ordering of the effectiveness of such Registration Statement.
"REGISTRABLE SECURITIES" shall mean (i) the Rainbow Media Group
Class A Shares to be received upon Exchange by the Stockholder pursuant to
the Stockholders' Agreement and (ii) any securities of the Company issued
or issuable with respect to any Rainbow Media Group Class A Shares
referred to in clause (i) by way of stock dividend or stock split or in
connection with a combination of shares, recapitalization, merger,
consolidation or other reorganization or otherwise. As to any particular
Registrable Securities, such securities shall cease to be Registrable
Securities when (x) a Registration Statement with respect to the sale of
such securities shall have become effective under the Securities Act and
such securities shall have been disposed of in accordance with such
Registration Statement, (y) they shall have been distributed to the public
pursuant to Rule 144 or Rule 145 (or any successor provision) under the
Securities Act or (z) they shall have ceased to be outstanding.
"REGISTRATION EXPENSES" shall mean all expenses incident to the
performance of or compliance with this Agreement by any party, including,
without limitation, all Registration, filing and National Association of
Securities Dealers, Inc. fees, all fees and expenses of complying with
securities or blue sky laws, all word processing, duplicating and printing
expenses, messenger and delivery expenses, the fees and disbursements of
counsel for the Company and of its independent public accountants,
including the expenses of any special audits or "comfort" letters required
by or incident to such performance and compliance, premiums and other
costs of policies of insurance obtained by the Company against liabilities
arising out of the public offering of Registrable Securities being
registered, any fees and disbursements of underwriters, all underwriting
discounts and commissions and transfer taxes, if any, relating to
Registrable Securities and any other registration expenses incident to the
registration of the Registrable Securities issued to the Stockholder.
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"REGISTRATION STATEMENT" shall mean the registration statement of
the Company on Form S-3 (or, if the Company is not then eligible for Form
S-3, such other form for which the Company then qualifies) which is filed
by the Company with the Commission in accordance with Section 3 below. The
term "Registration Statement" shall also include all exhibits and
financial statements and schedules and documents incorporated by reference
in such Registration Statement when it becomes effective under the
Securities Act, and in the case of references to the Registration
Statement as of a date subsequent to the effective date, as amended or
supplemented as of such date.
"SECURITIES ACT" shall mean the Securities Act of 1933, as amended
from time to time.
(b) Capitalized terms used herein but not otherwise defined herein
shall have the same meaning as in the Stockholders' Agreement. Terms defined in
the singular shall have a comparable meaning when used in the plural, and vice
versa. All matters of an accounting nature in connection with this Agreement and
the transactions contemplated hereby shall be determined in accordance with
generally accepted accounting principles as in effect from time to time. As used
herein, the neuter gender shall also denote the masculine and feminine, and the
masculine gender shall also denote the neuter and feminine, where the context so
permits. The words "hereof," "herein" and "hereunder", and words of similar
import, when used in this Agreement shall refer to this Agreement as a whole and
not to any particular provision of this Agreement, and section, subsection,
paragraph, schedule and exhibit references are to this Agreement unless
otherwise specified.
2. REGISTRATION RIGHTS.
(a) DEMAND REGISTRATIONS. During the period commencing on the
first anniversary of the Distribution and ending on December 31, 2011 (as it may
be extended pursuant to Section 16, the "REGISTRATION Period"), the Stockholder
shall have the right upon written request (a "REQUEST") to request that the
Company effect the following registrations under the Securities Act:
(i) five demand registrations to be effected by means of a firm
commitment underwritten public offering (an "UNDERWRITTEN Offering"), two
of which may be in connection with publicly-registered Derivative
Securities or similar transactions ("PUBLIC DERIVATIVES TRANSACTIONS")
under which the Stockholder may demand a total of two registrations for
each Underwritten Offering (one at issuance and one at settlement, which
two registrations shall constitute only one demand registration effected
by an Underwritten Offering for the purposes of calculating how many
demand registrations the Stockholder has requested that the Company make
pursuant to this Section 2(a)(i)) of Registrable Securities in connection
with such issuances of Derivative Securities, subject to the conversion of
the demand registration rights for Public Derivatives Transactions into
demand registration rights for Private Derivatives Transactions as
provided in Section 2(a)(ii) and subject to the following limitations:
(A) for an Underwritten Offering that is not a Public
Derivatives Transaction, the Stockholder shall not demand
registration for less than the
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greater of (1) 7,500,000 Rainbow Media Group Class A Shares (as
adjusted to reflect any stock splits, combinations of shares,
reclassification or comparable transactions) or (2) $150 million of
Registrable Securities;
(B) for a Public Derivatives Transaction, the Stockholder
shall not demand registration for less than $100 million of
Registrable Securities; and
(C) for a Public Derivatives Transaction, the Stockholder
shall not demand registration within 3 years of a preceding issuance
of securities in a Public Derivatives Transaction;
(ii) demand registrations to consummate five negotiated sale or
hedging or similar transactions ("PRIVATE DERIVATIVES Transactions");
PROVIDED that the Stockholder may elect to increase the number of demand
registrations for Private Derivatives Transactions by converting one or
both of its demand registrations for Public Derivatives Transactions,
which shall have the effect of reducing the number of Underwritten
Offerings for which a demand right can be exercised upon each conversion,
subject to the limitation that the Stockholder shall not demand
registration for a Private Derivatives Transaction for less than 1,000,000
Rainbow Media Group Class A Shares (as adjusted to reflect any stock
splits, combinations of shares, reclassifications or comparable
transactions); and
(iii) piggy-back registration rights on any registration under the
Securities Act of any Rainbow Media Group Class A Shares in an
Underwritten Offering of at least $100 million (whether or not for the
account of the Company or for any stockholder of the Company) in a manner
that would permit the registration under the Securities Act of Registrable
Securities for sale to the public (a "STOCKHOLDER PIGGY-BACK
REGISTRATION"); PROVIDED that the Company shall have no obligation under
this clause (iii) with respect to any registration on Form S-4 (or any
other Registration Statement registering shares in a merger,
consolidation, acquisition or similar transaction) or Form S-8 or any
successor or comparable forms, or a Registration Statement filed in
connection with an exchange offer or otherwise pursuant to a dividend
reinvestment plan, stock purchase plan or other employee benefit plan. If
the Company proposes a Stockholder Piggy-Back Registration, the Company
shall give notice to the Stockholder of its intention to do so not later
than ten days prior to the anticipated filing date of the applicable
Registration Statement. The Stockholder may elect to participate in such
registration on the same basis as the planned method of distribution
contemplated by the proposed registration by delivering written notice of
its election to the Company within five days after the receipt of the
Company's notice pursuant to this clause (iii). The Stockholder's election
pursuant to this clause (iii) must (1) specify the amount of Registrable
Securities desired to be included in such registration by the Stockholder
and (2) include any other information that the Company reasonably
requested be included in such Registration Statement. Upon its receipt of
the Stockholder's election pursuant to this clause (iii), the Company
will, subject to the cutback rights described below in Section 2(b), use
its reasonable efforts to include in such registration all Registrable
Securities requested to be included.
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In addition to the other limitations set forth above, the Company
shall not be obligated to effect more than one demand registration (which for
purposes of this paragraph may include two registrations (one at issuance and
one at settlement) for a Public Derivatives Transaction) in any calendar year;
provided that the Stockholder may not submit a Request for registration for at
least 90 days after the completion of an offering of Rainbow Media Group Class A
Shares or the completion by the Stockholder of a Private Derivatives
Transaction.
(b) PIGGY-BACK REGISTRATION; CUTBACK RIGHTS. The Company may
include in any registration relating to an Underwritten Offering other
securities for sale for its own account or for the account of any other Person.
Notwithstanding the foregoing, in any registration in which the Stockholder
exercises a piggy-back demand right pursuant to Section 2(a)(iii) or the Company
or another Person exercises a right to have other securities included on a
Registration Statement demanded by the Stockholder pursuant to this Section
2(b), if the managing or lead underwriter or underwriters thereof shall
determine in its or their reasonable good faith judgment that it cannot sell, or
that it would not be advisable to sell, all the securities desired to be sold,
then the number of securities that each such Person may have included shall be
reduced according to the following terms until the managing or lead underwriter
or underwriters shall believe that the remaining securities can be sold and it
would not be inadvisable to sell such number of securities:
(i) in the event that the offering in question includes a primary
offering of securities by the Company, then the number of securities that
the Company may have included shall not be reduced and the number of
securities which the Stockholder and any other Persons may have included
shall be reduced pro rata in proportion to the total number of securities
sought to be included by each such person, subject, in all cases, to the
Company's contractual obligations pursuant to the Registration Rights
Agreements, each dated as of January 27, 1986, as amended, between the
Company and Cablevision Systems Company in the first case and the Company
and CSC Holdings Company in the second case, and
(ii) in the event that the offering in question does not include a
primary offering of securities by the Company, then the number of
securities that the Stockholder and any other Persons may have included
shall be reduced pro rata in proportion to the total number of securities
sought to be included by each such Person, subject, in all cases, to the
Company's contractual obligations pursuant to the Registration Rights
Agreements, each dated as of January 27, 1986, as amended, between the
Company in the first case and the Company and Cablevision Systems Company
and CSC Holdings Company in the second case.
If, as a result of the cutback rights set forth above, less than 50%
of the Registrable Securities sought to be registered by the Stockholder would
be included in a registration under Section 2(a)(i), the Stockholder's demand
will not be deemed to have been made.
(c) REGISTRATION STATEMENT FORM. The Company shall effect any
registration requested under this Section 2 by the filing of a Registration
Statement on such form as the Company may determine; provided that the Company
shall not be obligated to register any
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securities on a "shelf" Registration Statement pursuant to Rule 415 under the
Securities Act (or any successor provisions of such Act) or otherwise to
register securities on a continuous or delayed basis. The Company's obligation
to effect any such registration shall apply only to the Rainbow Media Group
Class A Shares, and the Stockholder shall be responsible for the separate
registration of the securities to be issued by the Stockholder.
(d) EXPENSES. The Registration Expenses in connection with any
registration which may be requested under this Section 2 shall be borne by the
Stockholder, except that another holder piggy-backing on the Stockholder's
Registration Statement pursuant to Section 2(b) shall pay (or shall require the
Company to pay) its pro rata share of the Registration Expenses and if the
Stockholder piggy-backs on another Person's registration pursuant to Section
2(a)(iii), the Stockholder will pay its pro rata share of the Registration
Expenses.
(e) SELECTION OF UNDERWRITERS. One co-lead managing underwriter
for any Underwritten Offering pursuant to Section 2(a)(i) that is not a Public
Derivatives Transaction shall be selected by the Company, and the other co-lead
managing underwriter for such Underwritten Offering that is not a Public
Derivatives Transaction shall be selected by the Stockholder and shall be
reasonably acceptable to the Company. The co-lead managing underwriter selected
by the Stockholder shall establish the pricing of the Underwritten Offering
pursuant to Section 2(a)(i) that is not a Public Derivatives Transaction. The
book-running managing underwriter for any Public Derivatives Transaction
pursuant to Section 2(a)(i) shall be selected by the Stockholder and the other
managing underwriter for such Public Derivatives Transaction shall be selected
by the Company and shall be reasonably acceptable to the Stockholder. The
book-running managing underwriter selected by the Stockholder shall establish
the pricing of the Public Derivatives Transaction pursuant to Section 2(a)(i).
3. REGISTRATION PROCEDURES. If the Company is required to
register Registrable Securities under the Securities Act as provided in Section
2, the Company will as expeditiously as possible:
(i) prepare and (within 60 days after the receipt of a Request)
file with the Commission the requisite Registration Statement to effect
such registration and use reasonable efforts to cause such Registration
Statement to become effective, PROVIDED that before filing such
Registration Statement or any amendments thereto, the Company will furnish
to the counsel selected by the Stockholder copies of all such documents
proposed to be filed, which documents will be subject to the review of
such counsel before any such filing is made, and the Company will comply
with any reasonable request made by such counsel to make changes in any
information contained in such documents relating to the Stockholder;
(ii) prepare and file with the Commission such amendments and
supplements to such Registration Statement and the Prospectus used in
connection therewith as may be necessary to maintain the effectiveness of
such registration and to comply with the provisions of the Securities Act
with respect to the disposition of all securities covered by such
Registration Statement until the earliest of (A) the termination of this
Agreement pursuant to Section 16, (B) such time as all of such securities
have been disposed of and
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(C) the date which is 60 days after the date of initial effectiveness of
such Registration Statement;
(iii) furnish to the Stockholder such number of conformed copies of
such Registration Statement and of each such amendment and supplement
thereto (in each case including all exhibits), such number of copies of
the Prospectus contained in such Registration Statement and any
supplements thereto and any other Prospectus filed under Rule 424 under
the Securities Act, in conformity with the requirements of the Securities
Act, and such other documents, including documents incorporated by
reference, as the Stockholder may reasonably request;
(iv) use all reasonable efforts to register or qualify all
Registrable Securities registered pursuant to such Registration Statement
under such other securities or blue sky laws of such jurisdictions as the
Stockholder shall reasonably request, to keep such registration or
qualification in effect for so long as such Registration Statement remains
in effect, and take any other action which may be reasonably necessary or
advisable to enable the Stockholder to consummate the disposition in such
jurisdictions of the securities owned by the Stockholder, except that the
Company shall not for any such purpose be required to qualify generally to
do business as a foreign corporation in any jurisdiction wherein it would
not but for the requirements of this clause (iv) be obligated to be so
qualified, to be subject to taxation or to consent to general service of
process in any such jurisdiction;
(v) use all reasonable efforts to cause all Registrable Securities
covered by such Registration Statement to be registered with or approved
by such other governmental agencies or authorities as may be necessary to
enable the Stockholder to consummate the disposition of such Registrable
Securities;
(vi) if such registration includes an Underwritten Offering that is
not a Public Derivatives Transaction, furnish to the Stockholder a signed
counterpart, addressed to the Stockholder (and the underwriters), of (x)
an opinion of counsel for the Company, dated the date of the closing under
the underwriting agreement, and (y) a "comfort letter" dated the effective
date of such Registration Statement (and a supplement to such "comfort
letter" dated the date of the closing under the underwriting agreement),
signed by the independent public accountants who have certified the
Company's financial statements included in such Registration Statement,
covering substantially the same matters with respect to such Registration
Statement (and the Prospectus included therein) and, in the case of the
accountants' letter, with respect to events subsequent to the date of such
financial statements, as are customarily covered in opinions of issuer's
counsel and in accountants' letters delivered to the underwriters in
underwritten public offerings of securities and, in the case of the
accountants' letter, such other financial matters, as the Stockholder (or
the underwriters, if any) may reasonably request;
(vii) promptly notify the Stockholder at any time when the Company
becomes aware that a Prospectus relating to Registrable Securities is
required to be delivered under the Securities Act, of the happening of any
event as a result of which the Prospectus included in such Registration
Statement, as then in effect, includes an untrue statement of
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a material fact or omits to state any material fact required to be stated
therein or necessary to make the statements therein not misleading in the
light of the circumstances under which they were made, and at the request
of the Stockholder (and subject to Section 4(b)(ii)) promptly prepare and
furnish to the Stockholder a reasonable number of copies of a supplement
to or an amendment of such Prospectus as may be necessary so that, as
thereafter delivered to the purchasers of such securities, such Prospectus
shall not include 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 in the light of the circumstances under
which they were made;
(viii) otherwise use all reasonable efforts to comply with the
Securities Act and the Exchange Act and with all applicable rules and
regulations of the Commission, and make available to its security holders,
as soon as reasonably practicable, an earnings statement covering the
period of at least twelve months, but not more than eighteen months,
beginning with the first full calendar month after the effective date of
such Registration Statement, which earnings statement shall satisfy the
provisions of Section 11(a) of the Securities Act, and not file any
amendment or supplement to such Registration Statement or Prospectus to
which the Stockholder shall have reasonably objected on the grounds that
such amendment or supplement does not comply in all material respects with
the requirements of the Securities Act;
(ix) provide a transfer agent and registrar for all Registrable
Securities covered by such Registration Statement not later than the
effective date of such Registration Statement;
(x) use all reasonable efforts to list all Rainbow Media Group
Class A Shares covered by such Registration Statement on any securities
exchange on which any of the Rainbow Media Group Class A Shares are then
listed; and
(xi) upon the reasonable request of the Stockholder, otherwise use
all reasonable efforts to effect the registration of Registrable
Securities under the Securities Act as provided in Section 2.
In the case of any Underwritten Offering that is not a Public
Derivatives Transaction, the Company will participate in customary "roadshow"
presentations and customary analyst's meetings as reasonably requested by the
co-lead managing underwriters. In the case of a Public Derivatives Transaction,
the Company shall be required to participate in not more than two investor
conference calls in connection with such offering as reasonably requested by the
managing underwriters. No participation in roadshows, analysts' meetings or
investor conference calls by the Company shall be required in connection with
any Private Derivatives Transaction.
If requested by the underwriters for any Underwritten Offering, the
Company will enter into its customary underwriting agreement with such
underwriters for such offering, to contain such representations and warranties
by the Company and such other terms as are customarily contained in agreements
of this type, including, without limitation, indemnities to the effect and to
the extent provided in Section 6. The Stockholder shall be a party to such
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underwriting agreement and may, at its option, require that any or all of the
representations and warranties by, and the other agreements on the part of, the
Company to and for the benefit of such underwriters shall also be made to and
for the benefit of the Stockholder and that any or all of the conditions
precedent to the obligations of such underwriters under such underwriting
agreement be conditions precedent to the obligations of the Stockholder.
4. STOCKHOLDER'S OBLIGATIONS. (a) FURNISHING INFORMATION. The
Stockholder shall furnish the Company such information regarding itself and the
distribution proposed by it as the Company may reasonably request, including,
without limitation, providing the Company with questionnaires as are customary
for similar transactions, and which the Company may reasonably request or as may
be required by applicable securities laws and regulations, and as shall be
required in connection with any registration, qualification or compliance
referred to in this Agreement. The Stockholder agrees to notify the Company as
promptly as practicable of any inaccuracy or change in information previously
furnished to the Company or of the happening of any event, in either case as a
result of which any Prospectus relating to such registration contains an untrue
statement of a material fact regarding the Stockholder or the distribution of
such Registrable Securities or omits to state any material fact regarding the
Stockholder or the distribution of such Registrable Securities required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, and to furnish to the
Company promptly any additional information required to correct and update any
previously furnished information or required such that such Prospectus shall not
contain, with respect to the Stockholder or the distribution of such Registrable
Securities, 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,
in the light of the circumstances under which they were made, not misleading.
(b) HOLDBACK AGREEMENT; POSTPONEMENT. (i) The Stockholder agrees
by acquisition of the Registrable Securities not to engage in transactions
involving the Company's equity securities, including by commencing any public
offering of the Company's equity securities, by entering into transactions that
result in another party selling the Company's equity securities or by causing a
demand registration, during the seven days prior to and the 180 days after any
Registration Statement relating to the Company's equity securities (other than
under Form S-4 or Form S-8) (either for its own account or for the benefit of
the holders of any securities of the Company) has become effective; PROVIDED,
that the Company shall give the Stockholder notice as soon as reasonably
practicable of the date upon which a Registration Statement relating to the
Company's equity securities is expected to become effective and, in any event
the Stockholder's holdback restriction for the seven day period prior to
effectiveness shall not commence until the seventh day after such notice is
given.
(ii) The Company may, by written notice to the Stockholder,
postpone any registration which is requested pursuant to Section 2 or delivery
of a Prospectus pursuant to Section 3(vii) if (A) the Company reasonably
believes that the use of such Registration Statement would require disclosure of
a material corporate development not otherwise required to be disclosed that the
Company has a valid business purpose for not disclosing, (B) the Company is in
the process of making, or preparing to make, a registered offering of securities
and the Company reasonably deems it advisable to temporarily discontinue
disposition of securities, or (C) the Company reasonably believes that
disposition of securities at such time
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would have a material adverse affect on the Company. In the event the Company
makes any such election, the Stockholder agrees to keep confidential the fact of
such election and any information provided by the Company in connection
therewith.
(iii) Notwithstanding the black-out rights and the lock-up periods
set forth above in Sections 4(b)(i) and 4(b)(ii), the Stockholder shall in any
event be entitled to 120 days in each calendar year that are not subject to any
black-out or lock-up.
5. REGISTRATION STATEMENT. In connection with the preparation and
filing of the Registration Statement under the Securities Act, the Company will
give the Stockholder, its underwriters, if any, and their respective counsel,
the opportunity to participate in the preparation of such Registration
Statement, each Prospectus included therein or filed with the Commission, and
each amendment thereof or supplement thereto. Such opportunity to participate
shall include reasonable access for purposes of due diligence, subject to the
execution and delivery of appropriate confidentiality agreements.
6. INDEMNIFICATION. (a) INDEMNIFICATION BY THE COMPANY. In the
event of any registration of any Registrable Securities of the Company under the
Securities Act, the Company will, and hereby does, indemnify and hold harmless
the Stockholder, each other Person who participates as an underwriter in the
offering or sale of such Registrable Securities and each other Person who
controls any such underwriter within the meaning of the Securities Act, against
any losses, claims, damages or liabilities, joint or several, to which the
Stockholder or any such underwriter or controlling person may become subject
under the Securities Act or otherwise, insofar as such losses, claims, damages
or liabilities (or actions or proceedings, whether commenced or threatened, in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the Registration Statement
under which such Registrable Securities were registered under the Securities
Act, any Prospectus contained therein, or any amendment or supplement thereto,
or 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,
and the Company will reimburse the Stockholder and each such underwriter and
controlling person for any legal or any other expenses reasonably incurred by
them in connection with investigating or defending any such loss, claim,
liability, action or proceedings; PROVIDED that the Company shall not be liable
in any such case to the extent that any such loss, claim, damage, liability (or
action or proceeding in respect thereof) or expense arises out of or is based
upon (i) an untrue statement or alleged untrue statement or omission or alleged
omission made in such Registration Statement, any such Prospectus or amendment
or supplement thereto in reliance upon and in conformity with written
information furnished to the Company by the Stockholder for use in the
preparation thereof, (ii) the use of any Prospectus after such time as the
obligation of the Company to keep the same effective and current has expired, or
(iii) the use of any Prospectus after such time as the Company has advised the
Stockholder that the filing of a post-effective amendment or supplement thereto
is required, except such Prospectus as so amended or supplemented, and PROVIDED
FURTHER that the Company shall not be liable to any Person who participates as
an underwriter in the offering or sale of Registrable Securities or any other
Person, if any, who controls such underwriter within the meaning of the
Securities Act in any such case to the extent that any such loss, claim, damage,
liability (or action or proceeding in respect thereof) or expense arises out of
the matters described in (i), (ii) or (iii) above or such Person's failure to
send or give a copy of the final Prospectus or
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supplement to the Persons asserting an untrue statement or alleged untrue
statement or omission or alleged omission at or prior to the written
confirmation of the sale of Registrable Securities to such Person if such
statement or omission was corrected in such final Prospectus or supplement. Such
indemnity shall remain in full force and effect regardless of any investigation
made by or on behalf of the Stockholder or any such underwriter or controlling
person and shall survive the transfer of such securities by the Stockholder. The
Company's indemnity hereunder shall relate only to Rainbow Media Group Class A
Shares, and the Company shall otherwise have no indemnity obligations with
respect to the securities issued by the Stockholder or the registration thereof.
(b) INDEMNIFICATION BY THE STOCKHOLDER. The Stockholder will, and
hereby does, indemnify and hold harmless (in the same manner and to the same
extent as set forth in subdivision (a) of this Section 6) the Company, each
director and officer of the Company, and each other Person, if any, who controls
the Company, within the meaning of the Securities Act, with respect to any
untrue statement or alleged untrue statement of a material fact in or omission
or alleged omission to state a material fact from such Registration Statement,
any Prospectus contained therein, or any amendment or supplement thereto, if
such untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with written information
furnished to the Company by the Stockholder for use in the preparation of such
Registration Statement, Prospectus, or amendment or supplement thereto;
PROVIDED, HOWEVER, that the Stockholder shall not be liable to the extent that
the losses, liabilities or expenses arise out of or are based upon (i) the use
by the Company of any Prospectus after such time as the obligation of the
Company to keep the same effective and current has expired or (ii) the use by
the Company of any Prospectus after such time as the Stockholder has advised the
Company that the filing of a post-effective amendment or supplement thereto is
required with respect to any information contained in such Prospectus concerning
the Stockholder, except such Prospectus as so amended or supplemented. Such
indemnity shall remain in full force and effect regardless of any investigation
made by or on behalf of the Company, or any such director, officer, or
controlling person and shall survive the transfer of such securities by the
Stockholder.
(c) NOTICES OF CLAIMS, ETC. Promptly after receipt by an
indemnified party of notice of the commencement of any action or proceeding
involving a claim referred to in the preceding subdivisions of this Section 6,
such indemnified party will, if a claim in respect thereof is to be made against
an indemnifying party, give written notice to the latter of the commencement of
such action; PROVIDED that the failure of any indemnified party to give notice
as provided herein shall not relieve the indemnifying party of its obligations
under the preceding subdivisions of this Section 6, except to the extent that
the indemnifying party is actually prejudiced by such failure to give notice. In
case any such action is brought against an indemnified party, unless in such
indemnified party's reasonable judgment a conflict of interest between such
indemnified and indemnifying parties may exist in respect of such claim, the
indemnifying party shall be entitled to participate in and to assume the defense
thereof, jointly with any other indemnifying party similarly notified to the
extent that it may wish, with counsel reasonably satisfactory to such
indemnified party, and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to the indemnified party for any legal or
other expenses subsequently incurred by the latter in connection with the
defense thereof other than reasonable costs of investigation.
-11-
(d) CONTRIBUTION. If for any reason the foregoing indemnity is
unavailable, or is insufficient to hold harmless an indemnified party, then the
indemnifying party shall contribute to the amount paid or payable by the
indemnified party as a result of the expense, loss, damage or liability, (i) in
such proportion as is appropriate to reflect the relative fault of the
indemnifying party on the one hand and the indemnified party on the other
(determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or omission relates to information supplied
by the indemnifying party or the indemnified party and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such untrue statement or omission), or (ii) if the allocation provided by clause
(i) above is not permitted by applicable law or provides a lesser sum to the
indemnified party than the amount hereinafter calculated, in the proportion as
is appropriate to reflect not only the relative fault of the indemnifying party
and the indemnified party, but also the relative benefits received by the
indemnifying party on the one hand and the indemnified party on the other, as
well as any other relevant equitable considerations. No indemnified party guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any indemnifying party
who was not guilty of such fraudulent misrepresentation.
(e) ADDITIONAL INDEMNIFICATION BY THE STOCKHOLDER. In the case of
any registration of securities other than Rainbow Media Group Class A Shares, it
shall be a condition to the Company's obligation to proceed under this Agreement
that the Stockholder shall provide, in a manner reasonably satisfactory to the
Company, indemnification, contribution and other rights in favor of the Company,
each director and officer of the Company and each other Person, if any, who
controls the Company within the meaning of the Securities Act with respect to
the securities issued by the Stockholder and the registration thereof, in the
same manner and to the same extent as applicable to the Stockholder in the case
of registrations of Registrable Securities hereunder. In addition, to the extent
applicable, the Company shall furnish the Stockholder indemnification,
contribution and other rights in favor of the Stockholder, each director and
officer of the Stockholder and each other Person, if any, who controls the
Stockholder within the meaning of the Securities Act with respect to the written
information, if any, furnished to the Stockholder by the Company for use in the
preparation of the registration statement related to the registration of such
other securities, in the same manner and to the same extent as applicable to the
Stockholder in the case of registrations of Registrable Securities under Section
6(b).
7. COVENANTS RELATING TO RULE 144/145. The Company will prepare
and file in a timely manner, information, documents and reports in compliance
with the Exchange Act so as to comply with the requirements of such Act and the
rules and regulations thereunder and will, at its expense, forthwith upon the
request of the Stockholder, deliver to the Stockholder a certificate, signed by
the Company's principal financial officer, stating (a) the Company's name,
address and telephone number (including area code), (b) the Company's Internal
Revenue Service identification number, (c) the Company's Commission file number,
(d) the number of shares of Common Stock outstanding as shown by the most recent
report or statement published by the Company, and (e) whether the Company has
filed the reports required to be filed under the Exchange Act for a period of at
least 90 days prior to the date of such certificate and in addition has filed
the most recent annual report required to be filed thereunder. If at any time
the Company is not required to file reports in compliance with either Section 13
or Section 15(d) of the Exchange Act, the Company at its expense will forthwith,
upon the written request of the Stockholder, make available adequate current
public information with respect to the Company
-12-
within the meaning of paragraph (c)(2) of Rule 144 of the General Rules and
Regulations promulgated under the Securities Act.
8. NOTICES, ETC. All notices, requests, demands or other
communications required by or otherwise with respect to this Agreement shall be
in writing and shall be deemed to have been duly given to any party when
delivered personally (by courier service or otherwise), when delivered by
telecopy if receipt is confirmed by return telecopy, or five days after being
mailed by registered or certified mail, return receipt requested, in each case
to the applicable addresses set forth below:
If to the Stockholder:
NBC-Rainbow Holding, Inc.
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Chief Financial Officer
Facsimile: (000) 000-0000
With a copy to:
Law Department
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Vice President
Corporate and Transactions Law
Facsimile: (000) 000-0000
If to the Company:
Cablevision Systems Corporation
0000 Xxxxxxx Xxxxxx
Xxxxxxxx, Xxx Xxxx 00000
Attention: General Counsel
Facsimile: (000) 000-0000
with a copy to:
Xxxxxxxx & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxx
Facsimile: (000) 000-0000
or to such other address as such party shall have designated by notice so given
to each other party.
-13-
9. AMENDMENTS, WAIVERS, ETC. This Agreement may not be amended,
changed, supplemented, waived or otherwise modified or terminated except by an
instrument in writing signed by the party against whom enforcement is sought or
as expressly provided in Section 16. The failure of any party to exercise any
right, power or remedy provided under this Agreement or otherwise available in
respect hereof at law or in equity, or to insist upon compliance by any other
party with its obligations hereunder, and any custom or practice of the parties
at variance with the terms hereof, shall not constitute a waiver by such party
of its right to exercise any such or other right, power or remedy or to demand
such compliance.
10. ENTIRE AGREEMENT. This Agreement and the Stockholders'
Agreement embody the entire agreement and understanding between the parties
relating to the subject matter hereof and supersede all prior agreements and
understandings relating to such subject matter.
11. SEVERABILITY. If any term of this Agreement or the application
thereof to any party or circumstance shall be held invalid or unenforceable to
any extent, the remainder of this Agreement and the application of such term to
the other parties or circumstances shall not be affected thereby and shall be
enforced to the greatest extent permitted by applicable law.
12. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon
and shall inure to the benefit of and be enforceable by the parties and their
respective successors and assigns; provided that neither the rights nor the
obligations of any party may be assigned or delegated without the prior written
consent of the other parties.
13. GOVERNING LAW. THIS AGREEMENT AND ALL DISPUTES HEREUNDER SHALL
BE GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK.
14. NAME, CAPTIONS. The name assigned this Agreement and the
section captions used herein are for convenience of reference only and shall not
affect the interpretation or construction hereof.
15. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one instrument. Each counterpart may consist of a
number of copies each signed by less than all, but together signed by all, the
parties hereto.
16. EFFECTIVENESS; TERMINATION. This Agreement shall not be
effective until such time as the Stockholder beneficially owns any Registrable
Securities and no provision hereof shall have any force and effect until such
time. This Agreement shall terminate and be of no further force and effect upon
the expiration of the Registration Period; PROVIDED, HOWEVER, that after such
date, the Stockholder shall have the right to utilize one remaining demand
request for an underwritten offering of not less than 10 million Rainbow Media
Group Class A Shares (as adjusted for stock splits, stock dividends,
combinations of shares, reclassifications or comparable transactions), provided
such request is made on or prior to June 30, 2012; PROVIDED that,
notwithstanding this Section 16, the provisions of Section 6 shall survive the
termination of this Agreement.
-14-
IN WITNESS WHEREOF, the parties have duly executed this Agreement as
of the date first above written.
CABLEVISION SYSTEMS CORPORATION
By: /s/ Xxxxxx Xxxxxxxxx
-----------------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Executive Vice President, Finance
NBC-RAINBOW HOLDING, INC.
By: /s/ Xxxx X. Xxxxx
------------------------------------------
Name: Xxxx X. Xxxxx
Title: Vice President
