Exhibit 4.1
EXECUTION COPY
CSC HOLDINGS, INC.
6 3/4% Senior Notes due 2012
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Registration Rights Agreement
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Dated: April 6, 2004
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT dated April 6, 2004, between CSC
HOLDINGS, INC., a Delaware corporation (the "Company"), and CITIGROUP GLOBAL
MARKETS INC., BANC OF AMERICA SECURITIES LLC, BEAR, XXXXXXX & CO. INC, XXXXXXX
LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED, WACHOVIA CAPITAL MARKETS, LLC CREDIT
LYONNAIS SECURITIES (USA) INC. and XXXXXX XXXXXXX CORP. as the initial
purchasers (the "Initial Purchasers") of the Securities referred to below
pursuant to the Purchase Agreement, dated March 30, 2004, between the Initial
Purchasers and the Company, in connection with the issuance of $500,000,000
aggregate principal amount of the Company's 6 3/4% Senior Notes due 2012 (the
"Securities") pursuant to the Indenture, dated as of April 6, 2004, between the
Company and The Bank of New York, trustee (the "Indenture").
In consideration of the foregoing, the parties hereto agree as
follows:
1. Certain Definitions.
As used in this Agreement, the following defined terms shall have the
following meanings:
"Business Day" shall mean any day except (i) a Saturday, Sunday or
other day in The City of New York on which banks are required or authorized
to close or (ii) any other day on which the SEC is closed.
"Closing Date" shall mean the Closing Date as defined in the Purchase
Agreement.
"Company" shall have the meaning set forth in the preamble and shall
also include a company which succeeds to all or substantially all of the
Company's cable television business.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended from time to time.
"Exchange Offer" shall mean the exchange offer by the Company of
Exchange Securities for Registrable Securities pursuant to Section 2(a)
hereof.
"Exchange Offer Registration" shall mean a registration under the
Securities Act effected pursuant to Section 2(a) hereof.
"Exchange Offer Registration Statement" shall mean an exchange offer
registration statement of the Company pursuant to the provisions of Section
2(a) hereof on Form S-4 (or, if applicable, on another appropriate form),
and all amendments and supplements to such registration statement, in each
case including the Prospectus contained therein, all exhibits thereto and
all material incorporated by reference therein.
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"Exchange Securities" shall mean the 6 3/4% Series B Senior Notes due
2012 issued by the Company under the Indenture as Exchange Securities (as
defined therein), to be offered to Holders of Securities pursuant to the
Exchange Offer.
"Holder" shall mean, individually, each of the Initial Purchasers, for
so long as they own any Registrable Securities, and any of the Initial
Purchasers' successors, assigns and direct and indirect transferees who
become registered owners of Registrable Securities.
"Indenture" shall have the meaning set forth in the preamble.
"Initial Purchasers" shall have the meaning set forth in the preamble.
"Majority Holders" shall mean the Holders of a majority of the
aggregate principal amount of outstanding Registrable Securities.
"Person" shall mean an individual, partnership, corporation, trust or
unincorporated organization, or a government or agency or political
subdivision thereof.
"Prospectus" shall mean the prospectus included in a Registration
Statement, including any preliminary prospectus, and any such prospectus as
amended or supplemented by any prospectus supplement, including a
prospectus supplement with respect to the terms of the offering of any
portion of the Registrable Securities covered by a Shelf Registration
Statement, and by all other amendments and supplements to a prospectus,
including post-effective amendments, and in each case including all
material incorporated by reference therein.
"Purchase Agreement" shall mean the Purchase Agreement, dated March
30, 2004, between the Company and the Initial Purchasers, providing for the
initial purchase and sale of the Securities.
"Registrable Securities" shall mean the Securities; provided, however,
that any such Securities shall cease to be Registrable Securities upon the
earlier to occur of the date on which (i) the Exchange Offer has been
consummated, (ii) a Registration Statement with respect to such Securities
shall have been declared effective under the Securities Act and such
Securities shall have been disposed of pursuant to such Registration
Statement, provided, that Securities not disposed of pursuant to an
effective Shelf Registration Statement shall cease to be Registrable
Securities two years from the date such Shelf Registration Statement is
declared effective by the SEC, or such longer period as the Company's
obligation to keep such Shelf Registration Statement effective is extended
in accordance with Section 5 hereof, (iii) such Registrable Securities have
been sold to the public pursuant to Rule 144(k) (or any similar provision
then in force, but not Rule 144A) under the Securities Act, or (iv) such
Registrable Securities shall have ceased to be outstanding.
"Registration Expenses" shall mean any and all expenses incident to
the performance of or compliance by the Company with this Agreement,
including without limitation: (i) all SEC or National Association of
Securities Dealers, Inc. registration and
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filing fees, (ii) all fees and expenses incurred in connection with
compliance with state securities or blue sky laws, (iii) all expenses of
any Persons acting on behalf of the Company in preparing or assisting in
preparing, word processing, printing and distributing any Registration
Statement, any Prospectus, any amendments or supplements thereto and other
documents reasonably relating to the performance of and compliance with
this Agreement by the Company, (iv) all rating agency fees, (v) the fees
and disbursements of counsel for the Company and, in connection with a
Shelf Registration Statement, the fees and disbursements of one counsel for
the Holders (which counsel shall be selected by the Majority Holders and
shall be reasonably acceptable to the Company), and (vi) any fees and
expenses of the independent public accountants of the Company, including
the expenses of any special audits or "cold comfort" letters (in connection
with a Shelf Registration) required by or necessary to such performance and
compliance, but excluding underwriting discounts and commissions, fees and
expenses and transfer taxes, if any, relating to the sale or disposition of
Registrable Securities by a Holder.
"Registration Statement" shall mean any Exchange Offer Registration
Statement or Shelf Registration Statement.
"SEC" shall mean the Securities and Exchange Commission.
"Securities" shall have the meaning set forth in the preamble.
"Securities Act" shall mean the Securities Act of 1933, as amended
from time to time.
"Shelf Registration" shall mean a registration effected pursuant to
Section 2(b) hereof.
"Shelf Registration Statement" shall mean a "shelf" registration
statement of the Company pursuant to the provisions of Section 2(b) hereof
which covers all of the Registrable Securities on an appropriate form under
Rule 4l5 under the Securities Act, or any similar rule that may be adopted
by the SEC and all 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 and
the Exchange Securities under the Indenture.
"Underwritten Registration or Underwritten Offering" shall mean a
registration in which Registrable Securities are sold to one or more
Underwriters (as hereinafter defined) for reoffering to the public.
2. Registration Under the Securities Act.
(a) Exchange Offer Registration. The Company shall, for the benefit of
the Holders of the Securities, file an Exchange Offer Registration Statement
with respect to
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Exchange Securities and use its commercially reasonable best efforts to cause
such Exchange Offer Registration Statement to be declared effective under the
Securities Act within 365 days after the Closing Date. Upon such Exchange Offer
Registration Statement becoming effective under the Securities Act, the Company
shall offer the Exchange Securities in return for surrender of the Securities.
The Exchange Offer shall remain open for not less than 30 days (or longer if
required by applicable law) after the date notice of the Exchange Offer is
mailed to Holders of the Securities. For the Securities surrendered to the
Company under the Exchange Offer, the Holder will receive Exchange Securities
having an aggregate principal amount equal to that of the surrendered
Securities. Interest on the Exchange Securities shall accrue from the last
maturity date of any interest installment on which interest was paid on the
Security so surrendered (or the Exchange Securities, as the case may be or, if
no interest has been paid on the Securities, from April 6, 2004). The Company
shall commence the Exchange Offer by mailing the related Exchange Offer
Prospectus and accompanying documents to each Holder stating, in addition to
such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this
Registration Rights Agreement and that all Registrable Securities validly
tendered will be accepted for exchange;
(ii) the date of acceptance for exchange (which shall be a Business
Day no earlier than 30 days nor later than 40 days (unless otherwise
required by applicable law) from the date such notice is mailed) (the
"Exchange Date");
(iii) that any Registrable Security not tendered will remain
outstanding and shall accrue interest at the initial rate borne by the
Securities and, other than Registrable Securities referred to in Section
2(b)(iii) below, will not retain any rights under this Registration Rights
Agreement;
(iv) that Holders electing to have a Registrable Security exchanged
pursuant to the Exchange Offer will be required to surrender such
Registrable Security, together with letters of transmittal, to the
institution and at the address (located in the Borough of Manhattan, City
of New York) specified in the notice prior to the close of business on the
Business Day immediately preceding the Exchange Date; and
(v) that Holders will be entitled to withdraw the election, not later
than the close of business on the Business Day immediately preceding the
Exchange Date, by sending to the institution and at the address (located in
the Borough of Manhattan, City of New York) specified in the notice, a
telegram, telex, facsimile transmission or letter setting forth the name of
such Holder, the number of shares of Registrable Securities delivered for
exchange, and a statement that such Holder is withdrawing its election to
have such Registrable Securities exchanged.
On the Exchange Date, the Company shall:
(i) accept for exchange Registrable Securities tendered and not
validly withdrawn pursuant to the Exchange Offer; and
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(ii) deliver, or cause to be delivered, to the Trustee for
cancellation all Registrable Securities so accepted for exchange by the
Company, and issue and mail to each Holder or such Holder's nominee, for
the Registrable Securities so surrendered, new Exchange Securities having
an aggregate liquidation preference equal to that of the Registrable
Securities surrendered by such Holder.
The Company shall use its commercially reasonable best efforts to complete the
Exchange Offer as provided above, and in accordance with the applicable
requirements of the Securities Act, the Exchange Act and other applicable laws
in connection with the Exchange Offer. Consummation of the Exchange Offer shall
not be subject to any conditions, other than that the Exchange Offer does not,
and consummation of the Exchange Offer will not, violate applicable law or any
applicable interpretation of the staff of the SEC. The Company shall inform the
Initial Purchasers of the names and addresses of the Holders to whom the
Exchange Offer is made, and the Initial Purchasers shall have the right to
contact such Holders and otherwise facilitate the tender of Registrable
Securities in the Exchange Offer.
(b) Shelf Registration. In the event that (i) the Company determines
that the Exchange Offer Registration provided in Section 2(a) above is not
available or may not be consummated because it would violate applicable law or
the applicable interpretations of the SEC staff, (ii) the Exchange Offer is not
for any other reason consummated within 400 days after the Closing Date, or
(iii) following the consummation of the Exchange Offer a Registration Statement
must be filed and a Prospectus must be delivered by the Initial Purchasers in
connection with any offering or sale of Registrable Securities because such
Registrable Securities represent an unsold allotment of the Registrable
Securities purchased by the Initial Purchasers from the Company, unless the
Company has previously done so, the Company will (a) file as soon as practicable
after such determination or date, as the case may be, a Shelf Registration
Statement providing for the sale by the Holders of all of the Registrable
Securities, (b) use its commercially reasonable best efforts to have such Shelf
Registration Statement declared effective by the SEC and (c) keep the Shelf
Registration Statement continuously effective until the second anniversary of
the Closing Date or such shorter period which will terminate when all of the
Registrable Securities covered by the Shelf Registration Statement have been
sold pursuant to the Shelf Registration Statement. In the event the Company is
required to file a Shelf Registration Statement solely as a result of the
matters referred to in clause (iii) of the preceding sentence, the Company shall
file and have declared effective by the SEC both an Exchange Offer Registration
Statement pursuant to Section 2(a) with respect to all Registrable Securities
and a Shelf Registration Statement (which may be a combined Registration
Statement with the Exchange Offer Registration Statement) with respect to offers
and sales of Registrable Securities held by the Initial Purchasers after
completion of the Exchange Offer. The Company further agrees, if necessary, to
supplement or amend the Shelf Registration Statement, if required by the rules,
regulations or instructions applicable to the registration form used by the
Company for such Shelf Registration Statement or by the 1933 Act or by any other
rules and regulations thereunder for shelf registration, and the Company agrees
to furnish to the Holders of Registrable Securities copies of any such
supplement or amendment promptly after its being used or filed with the SEC.
(c) Expenses. The Company shall pay all Registration Expenses in
connection with any registration pursuant to Section 2(a) or 2(b) hereof.
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(d) Effective Registration Statement. An Exchange Offer Registration
Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement
pursuant to Section 2(b) hereof will not be deemed to have become effective
unless it has been declared effective by the SEC; provided, however, that if,
after it has been declared effective, the offering of Registrable Securities
pursuant to a Shelf Registration Statement is interfered with by any stop order,
injunction or other order or requirement of the SEC or any other governmental
agency or court, such Registration Statement will be deemed not to have been
effective during the period of such interference, until the offering of
Registrable Securities pursuant to such Registration Statement may legally
resume.
3. Participation of Broker-Dealers in Exchange Offer.
(a) The SEC staff has taken the position that any broker-dealer that
receives Exchange Securities for its own account in the Exchange Offer in
exchange for Securities that were acquired by such broker-dealer as a result of
market-making or other trading activities (a "Participating Broker-Dealer") may
be deemed to be an "underwriter" within the meaning of the Securities Act and
must deliver a prospectus meeting the requirements of the Securities Act in
connection with any resale of such Exchange Securities.
The Company understands that it is the SEC staff's position that if
the Prospectus contained in the Exchange Offer Registration Statement includes a
plan of distribution containing a statement to the above effect and the means by
which Participating Broker-Dealers may resell the Exchange Securities, without
naming the Participating Broker-Dealers or specifying the amount of Exchange
Securities owned by them, such Prospectus may be delivered by Participating
Broker-Dealers and other Persons, if any, subject to similar prospectus delivery
requirements to satisfy their prospectus delivery obligation under the
Securities Act in connection with resales of Exchange Securities for their own
accounts, so long as the Prospectus otherwise meets the requirements of the
Securities Act.
(b) In light of the above, notwithstanding the other provisions of
this Agreement, the Company agrees that the provisions of this Agreement as they
relate to a Shelf Registration shall also apply to an Exchange Offer
Registration to the extent, and with such reasonable modifications thereto as
may be, reasonably requested by the Initial Purchasers or by one or more
Participating Broker-Dealers, in each case as provided in clause (ii) below, in
order to expedite or facilitate the disposition of any Exchange Securities by
Participating Broker-Dealers consistent with the positions of the SEC staff
recited in Section 3(a) above; provided that:
(i) the Company shall not be required to amend or supplement the
Prospectus contained in the Exchange Offer Registration Statement, as would
otherwise be contemplated by Section 5(i), for a period exceeding 90 days
after the last Exchange Date (as such period may be extended pursuant to
the penultimate paragraph of Section 5 of this Agreement) and Participating
Broker-Dealers shall not be authorized by the Company to deliver and shall
not deliver such Prospectus after such period in connection with the
resales contemplated by this Section 3; and
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(ii) the application of the Shelf Registration procedures set forth in
Section 5 of this Agreement to an Exchange Offer Registration, to the
extent not required by the positions of the SEC staff or the Securities Act
and the rules and regulations thereunder, will be in conformity with the
reasonable request to the Company by the Initial Purchasers or with the
reasonable request in writing to the Company by one or more broker-dealers
who certify to the Initial Purchasers and the Company in writing that they
anticipate that they will be Participating Broker-Dealers; and provided
further that, in connection with such application of the Shelf Registration
procedures set forth in Section 5 to an Exchange Offer Registration, the
Company shall be obligated (x) to deal only with one entity representing
the Participating Broker-Dealers, which shall be one of the Initial
Purchasers unless they collectively elect not to act as such
representative, (y) to pay the fees and expenses of only one counsel
representing the Participating Broker-Dealers, which shall be counsel to
the Initial Purchasers unless such counsel elects not to so act and (z) to
cause to be delivered only one, if any, "cold comfort" letter with respect
to the Prospectus in the form existing on the last Exchange Date and with
respect to each subsequent amendment or supplement, if any, effected during
the period specified in clause (i) above; provided, that the provisions of
clauses (y) and (z) of this Section 3(b)(ii) shall apply only if one or
more Participating Broker-Dealers holding at least $10,000,000 principal
amount of Registrable Securities shall request that the provisions of this
Agreement as they relate to a Shelf Registration also apply to an Exchange
Offer Registration Statement for the disposition of Exchange Securities by
Participating Broker-Dealers.
4. Liquidated Damages.
In the event that, for any reason the Exchange Offer is not
consummated or a Shelf Registration Statement is not declared effective on or
prior to the 400th calendar day following the Closing Date, the interest rate
borne by the Securities shall be increased by one-quarter of one percent per
annum for the first 90 days following such 400-day period. Such interest rate
will increase by an additional one-quarter of one percent per annum thereafter
up to a maximum aggregate increase of one half of one percent per annum. Upon
the consummation of the Exchange Offer or the effectiveness of a Shelf
Registration Statement, as the case may be, the interest rate borne by the
Securities will be reduced to the original interest rate.
5. Registration Procedures.
In connection with the obligations of the Company with respect to the
Registration Statement pursuant to Sections 2(a) and 2(b) hereof, the Company
shall:
(a) prepare and file with the SEC a Registration Statement on the
appropriate form under the Securities Act, which form (i) shall be selected
by the Company and (ii) shall, in the case of a Shelf Registration, be
available for the sale of the Registrable Securities in accordance with the
intended method or methods of distribution as the Company is so advised of
by the selling Holders thereof and (iii) shall comply as to form in all
material respects with the requirements of the applicable form and include
(including through incorporation by reference, if available to the Company)
all financial statements required by the SEC to be filed therewith, and the
Company shall use its
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commercially reasonable best efforts to cause such Registration Statement
to become effective and remain effective in accordance with Section 2
hereof;
(b) prepare and file with the SEC such amendments and post-effective
amendments to such Registration Statement as may be necessary to keep such
Registration Statement in compliance with the Securities Act; and cause the
Prospectus to be supplemented by any required prospectus supplement, and as
so supplemented to be filed pursuant to Rule 424 under the Securities Act;
(c) in the case of a Shelf Registration, furnish to each Holder of
Registrable Securities and to each underwriter of Registrable Securities,
if any, without charge, as many copies of the Prospectus, including each
preliminary prospectus, and any amendment or supplement thereto and such
other documents as such Holder or Underwriter may reasonably request, in
order to facilitate the public sale or other disposition of the Registrable
Securities;
(d) in the case of a Shelf Registration, use its commercially
reasonable best efforts to register or qualify the Registrable Securities
under all applicable state securities or "blue sky" laws of such
jurisdictions as any Holder of Registrable Securities covered by such Shelf
Registration Statement and or any Underwriter shall reasonably request in
writing by the time the applicable Shelf Registration Statement is declared
effective by the SEC, and do any and all other acts and things which may be
reasonably necessary or advisable to enable such Holder or Underwriter to
consummate the disposition in each such designated jurisdiction, provided,
however, that the Company shall not be required to (i) qualify generally to
do business as a foreign corporation or as a broker-dealer in any
jurisdiction where it would not otherwise be required to qualify but for
this Section 5(d), (ii) consent to general service of process in any such
jurisdiction or (iii) subject itself to taxation in any such jurisdiction;
(e) in the case of a Shelf Registration, promptly notify each Holder
and, if requested by such Holder, confirm such advice in writing (i) when
such Shelf Registration Statement has become effective and when any
post-effective amendments and supplements thereto become effective, (ii) of
the issuance by the SEC or any state securities authority of any stop order
suspending the effectiveness of such Shelf Registration Statement or the
initiation of any proceedings for that purpose, (iii) if, between the
effective date of such Shelf Registration Statement and the closing of any
sale of Registrable Securities covered thereby, the Company receives any
notification with respect to the suspension of the qualification of the
Registrable Securities for sale in any jurisdiction or the initiation of
any proceeding for such purpose, and (iv) of the happening of any event
during the period such Shelf Registration Statement is effective which
makes any statement made in such Shelf Registration Statement or the
related Prospectus untrue in any material respect or which requires the
making of any changes in such Shelf Registration Statement or Prospectus in
order to make the statements therein not misleading;
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(f) make every reasonable effort to obtain the withdrawal of any order
suspending the effectiveness of a Registration Statement promptly and shall
provide notice to each Holder of the withdrawal of any such order as
promptly as practicable;
(g) in the case of a Shelf Registration, furnish to each Holder of
Registrable Securities, without charge, at least one conformed copy of such
Shelf Registration Statement and any post-effective amendment thereto
(without documents incorporated therein by reference or exhibits thereto,
unless requested);
(h) in the case of a Shelf Registration, cooperate with the selling
Holders of Registrable Securities to facilitate the timely preparation and
delivery of certificates representing Registrable Securities to be sold and
not bearing any restrictive legends; and enable such Registrable Securities
to be in such denominations and registered in such names as the selling
Holders may reasonably request at least two business days prior to the
closing of any sale of Registrable Securities;
(i) in the case of a Shelf Registration, upon the occurrence of any
event contemplated by Section 5(e)(iv) hereof, use its commercially
reasonable best efforts to prepare a supplement or post-effective amendment
to such Shelf Registration Statement or the related Prospectus or any
document incorporated therein by reference or file any other required
document so that, as thereafter delivered to the purchasers of the
Registrable Securities, such Prospectus will not contain any untrue
statement of a material fact or omit to state a material fact necessary to
make the statements therein, in the light of the circumstances under which
they were made, not misleading;
(j) in the case of a Shelf Registration Statement, enter into and
deliver all such customary agreements, documents and take such other
actions (including causing the delivery of opinions of counsel and
"comfort" letters of independent certified public accountants) as are
reasonably required to expedite or facilitate the disposition of
Registrable Securities;
(k) in the case of a Shelf Registration, upon reasonable notice make
available for inspection by a representative of the Holders of the
Registrable Securities, any Underwriter participating in any disposition
pursuant to such Shelf Registration Statement, and any attorney or
accountant designated by the Selling Holders, at reasonable times and in a
reasonable manner, all financial and other records, pertinent documents and
properties of the Company, and cause the respective officers, directors and
employees of the Company to supply all information reasonably requested by
any such representative, Underwriter, attorney or accountant in connection
with a Shelf Registration Statement; provided, however, that such
representatives, attorneys or accountants shall be acceptable to the
Company in its judgment reasonably exercised and shall agree to enter into
a written confidentiality agreement mutually acceptable to the Company and
the Underwriters regarding any records, information or documents that are
designated by the Company as confidential unless such records, information
or documents are available to the public or disclosure of such records,
information or documents is required by court or administrative order after
the exhaustion of appeals therefrom and to use such information obtained
pursuant to this provision only in
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connection with the transaction for which such information was obtained,
and not for any other purpose;
(1) in the case of a Shelf Registration, provide copies of any
Prospectus, any amendment to any applicable Shelf Registration Statement or
amendment or supplement to any Prospectus or any document which is to be
incorporated by reference into such Shelf Registration Statement or any
Prospectus after initial filing of such Shelf Registration Statement, a
reasonable time prior to the filing of any such Prospectus, amendment,
supplement or document, to the Initial Purchasers on behalf of the Holders
and Underwriters, if any, and except with respect to a Shelf Registration
filed pursuant to Section 2(b)(iii) not file any such document in a form to
which the Initial Purchasers on behalf of the Holders or Underwriters, if
any, shall reasonably object; and make the representatives of the Company
as shall be reasonably requested by the Holders or the Initial Purchasers
on behalf of such Holders available for discussion of such document;
provided that the requirements of this paragraph shall not apply to the
Company's annual report on Form 10-K, its Quarterly Reports on Form 10-Q,
its current reports on Form 8-K or any other documents filed pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act (the "Exchange Act
Documents"); and further provided that the Company shall promptly notify
Holders of the filing of any Exchange Act Documents except for such
Exchange Act Documents specifically related to the offering of other
securities and not to the Registrable Securities;
(m) obtain a CUSIP number for all Exchange Securities or Registrable
Securities, as the case may be, not later than the effective date of any
Registration Statement; and
(n) cause the Indenture to be qualified under the Trust Indenture Act
of 1939, as amended (the "TIA"), in connection with the registration of the
Exchange Securities, cooperate with the Trustee and the Holders to effect
such changes to the Indenture as may be required for the Indenture to be so
qualified in accordance with the terms of the TIA and execute, and use its
commercially reasonable best efforts to cause the Trustee to execute, all
documents as may be required to effect such changes, and all other forms
and documents required to be filed with the SEC to enable the Indenture to
be so qualified in a timely manner.
In the case of a Shelf Registration Statement, the Company may (as a
condition to such Holder's participation in a Shelf Registration) require each
Holder to furnish to the Company information regarding the Holder and the
proposed distribution by such Holder of any Registrable Securities as the
Company may from time to time reasonably request in writing.
In the case of a Shelf Registration Statement, each Holder agrees
that, upon receipt of any (i) notice from the Company of the happening of any
event of the kind described in Section 5(e)(ii) or (iv) hereof, (ii) notice from
the Company that it is in possession of material information that has not been
disclosed to the public and the Company reasonably deems it to be advisable not
to disclose such information in a registration statement or (iii) notice from
the Company that it is in the process of a registered offering of securities and
the Company reasonably deems it to be advisable to temporarily discontinue
disposition of Registrable
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Securities pursuant to the Shelf Registration Statement (in each case, such
notice being hereinafter referred to as a "Suspension Notice"), such Holder will
forthwith discontinue disposition of Registrable Securities pursuant to any
Shelf Registration Statement and shall not be entitled to the benefits provided
under Section 6 hereof with respect to any sales made by it in contravention of
this paragraph, until such Holder's receipt of the copies of the supplemented or
amended Prospectus contemplated by Section 5(i) or a notice in accordance with
Section 5(f) hereof that any order suspending the effectiveness of the Shelf
Registration Statement has been withdrawn, or, in the case of (ii) or (iii)
above, until further notice from the Company that disposition of Registrable
Securities may resume, provided that (except with respect to a Shelf
Registration filed pursuant to Section 2(b)(iii)) such further notice will be
given within 90 days of the Suspension Notice in the case of (ii) above and
within 120 days of the Suspension Notice in the case of (iii) above, and
provided further that in the case of (ii) and (iii) above that any Suspension
Notice must be based upon a good faith determination of the Board of Directors
of the Company or the Executive Committee thereof that such Notice is necessary;
and, if so directed by the Company, such Holder will deliver to the Company (at
the expense of the Company) all copies in its possession, other than permanent
file copies then in such Holder's possession, of the Prospectus covering such
Registrable Securities current at the time of receipt of such notice. If the
Company shall give any such notice to suspend the disposition of Registrable
Securities pursuant to any Shelf Registration Statement, the Company shall
extend the period during which such Shelf Registration Statement shall be
maintained effective pursuant to this Agreement by the number of days during the
period from and including the date of the giving of such notice to and including
the date when the Holders shall have received copies of the supplemented or
amended Prospectus necessary to resume such dispositions or received notice that
any order suspending dispositions of the Securities has been withdrawn.
Each Holder will furnish to the Company such information regarding
such Holder and the distribution of such Registrable Securities as the Company
may from time to time reasonably request in writing, but only to the extent that
such information is required in order to comply with the Securities Act or any
relevant state securities or Blue Sky law or obligation. Each Holder of
Registrable Securities as to which any registration is being effected agrees to
notify the Company as promptly as practicable of any inaccuracy or change in
information previously furnished by such Holder 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 such Holder or the distribution of such Registrable Securities or
omits to state any material fact regarding such Holder 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 such
holder 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.
12
6. Indemnification; Contribution.
(a) The Company agrees to indemnify and hold harmless each Holder and
each Person, if any, who controls any Holder within the meaning of Section 15 of
the Securities Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in any Shelf Registration
Statement (or any amendment thereto) pursuant to which Registrable
Securities were registered under the Securities Act, including all
documents incorporated therein by reference, or the omission or alleged
omission therefrom of a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading or arising out of any untrue statement or alleged untrue
statement of a material fact contained in any preliminary prospectus or any
Prospectus (or any amendment or supplement thereto) or the omission or
alleged omission therefrom of a material fact necessary in order to make
the statements therein, in light of the circumstances under which they were
made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, if such settlement is effected with
the written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred (including
fees and disbursements of counsel chosen by any Holder), reasonably
incurred in investigating, preparing or defending against any litigation,
or investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or omission, to
the extent that any such expense is not paid under subparagraph (i) or (ii)
above;
provided, however, that this indemnity does not apply to any loss, claim,
damage, liability or expense to the extent it arises out of an untrue statement
or omission or alleged untrue statement or omission made in reliance upon and in
conformity with written information furnished to the Company by any Holder
expressly for use in a Registration Statement (or any amendment thereto) or any
Prospectus (or any amendment or supplement thereto).
The foregoing indemnity with respect to any untrue statement contained
in or any omission from a preliminary prospectus shall not inure to the benefit
of any Holder (or any Person controlling such Holder) from whom the Person
asserting any such loss, liability, claim, damage or expense purchased any of
the Securities that are the subject thereof if the Company shall sustain the
burden of proving that such Person was not sent or given a copy of the
Prospectus (or the Prospectus as amended or supplemented) (in each case
exclusive of the documents from which information is incorporated by reference)
at or prior to the written confirmation of the sale of such Securities to such
Person and the untrue statement contained in
13
or the omission from such preliminary prospectus was corrected in the Prospectus
(or the Prospectus as amended or supplemented).
(b) Each Holder severally agrees to indemnify and hold harmless the
Company, its directors, officers and each Person, if any, who controls the
Company within the meaning of Section 15 of the Securities Act, against any and
all loss, liability, claim, damage and expense described in the indemnity
contained in Section 6(a) hereof, as incurred, but only with respect to untrue
statements or omissions, or alleged untrue statements or omissions, made in the
Registration Statement (or any amendment thereto) or any Prospectus (or any
amendment or supplement thereto) in reliance upon and in conformity with written
information furnished to the Company by such Holder expressly for use in the
Registration Statement (or any amendment thereto) or such Prospectus (or any
amendment or supplement thereto).
(c) Each indemnified party shall give prompt notice to each
indemnifying party of any action commenced against it in respect of which
indemnity may be sought hereunder, but failure to so notify an indemnifying
party shall not relieve it from any liability which it may have otherwise than
under this indemnity agreement. An indemnifying party may participate at its own
expense in the defense of such action; provided, however, that counsel to the
indemnifying party shall not (except with the consent of the indemnified party)
also be counsel to the indemnified party. In no event shall the indemnifying
party or parties be liable for the fees and expenses of more than one counsel
for all indemnified parties in connection with any one action or separate but
similar or related actions in the same jurisdiction, arising out of the same
general allegations or circumstances.
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnity agreement provided for in this Section 6 is
for any reason held to be unenforceable by the indemnified parties although
applicable in accordance with its terms, the Company and the Holders shall
contribute to the aggregate losses, liabilities, claims, damages and expenses of
the nature contemplated by such indemnity agreement incurred by the Company and
one or more of the Holders; provided, however, that no Person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any Person who was not
guilty of such fraudulent misrepresentation. As between the Company and the
Holders, such parties shall contribute to the aggregate losses, liabilities,
claims, damages and expenses of the nature contemplated by such indemnity
agreement in such proportion as shall be appropriate to reflect (i) the relative
benefits received by the Company on the one hand and the Holders on the other
hand, from the offering of the Exchange Securities or Registrable Securities
included in such offering, and (ii) the relative fault of the Company on the one
hand and the Holders on the other, with respect to the statements or omissions
which resulted in such loss, liability, claim, damage or expense, or action in
respect thereof, as well as any other relevant equitable considerations. The
Company and the Holders of the Registrable Securities agree that it would not be
just and equitable if contribution pursuant to this Section 6 were to be
determined by pro rata allocation or by any other method of allocation which
does not take into account the relevant equitable considerations. For purposes
of this Section 6, each Person, if any, who controls a Holder within the meaning
of Section 15 of the Securities Act shall have the same rights to contribution
as such Holder, and each director of the Company, each officer of the Company
who signed the Registration Statement, and each Person,
14
if any, who controls the Company within the meaning of Section 15 of the
Securities Act shall have the same rights to contribution as the Company.
7. Selection of Underwriters. The Holders of Registrable Securities
covered by the Shelf Registration Statement who desire to do so may sell such
Registrable Securities in an Underwritten Offering. In any such Underwritten
Offering, the investment banker or investment bankers and manager or managers
(the "Underwriters") that will administer the offering will be selected by the
Majority Holders of the Registrable Securities included in such offering;
provided that such Underwriters must be reasonably acceptable to the Company.
8. Miscellaneous.
(a) No Inconsistent Agreements. The Company has not entered into nor
will the Company on or after the date of this Agreement enter into any agreement
which is inconsistent with the rights granted to the Holders in this Agreement
or otherwise conflicts with the provisions hereof. The rights granted to the
Holders hereunder do not in any way conflict with and are not inconsistent with
the rights granted to the holders of the Company's other issued and outstanding
securities under any such agreements.
(b) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, 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 Holders
of at least a majority of the issued and outstanding Registrable Securities
affected by such amendment, modification, supplement, waiver or departure;
provided, however, no amendment, modification or supplement, waiver or consent
with respect to the provisions of Section 6 hereof shall be effective as against
any Holder of Registrable Securities unless consented to in writing by such
Holder.
(c) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand delivery, registered
first-class mail, telex, telecopier, or any courier guaranteeing overnight
delivery (i) if to a Holder, at the most current address given by such Holder to
the Company by means of a notice given in accordance with the provisions of this
Section 8(c); (ii) if to the Company, initially at 0000 Xxxxxxx Xxxxxx,
Xxxxxxxx, Xxx Xxxx 00000, Attention: Xxxxxxxx X. Xxxxxx, Esq., Senior Vice
President, Deputy General Counsel and Secretary, and thereafter at such other
address, notice of which is given in accordance with the provisions of this
Section 8(c).
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five business
days after being deposited in the mail, postage prepaid, if mailed; when
answered back, if telexed; when receipt is acknowledged, if telecopied; and on
the next business day if timely delivered to any courier guaranteeing overnight
delivery.
Copies of all such notices, demands, or other communications shall be
concurrently delivered by the Person giving the same to the Trustee at The Bank
of New York, 101 Xxxxxxx Street, 0xx Xxxxx Xxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Corporate Trust Department.
15
(d) Successors and Assigns. This Agreement shall inure to the benefit
of and be binding upon the successors, assigns and transferees of each of the
parties, including, without limitation and without the need for an express
assignment, subsequent Holders; provided that nothing herein shall be deemed to
permit any assignment, transfer or other disposition of Registrable Securities
in violation of the terms of the Purchase Agreement. If any transferee of any
Holder shall acquire Registrable Securities, in any manner, whether by operation
of law or otherwise, such Registrable Securities shall be held subject to all of
the terms of this Agreement, and by taking and holding such Registrable
Securities such Person shall be conclusively deemed to have agreed to be bound
by and to perform all of the terms and provisions of this Agreement and such
Person shall be entitled to receive the benefits hereof.
(e) Enforcement by Initial Purchasers. The Initial Purchasers shall
have the right to directly enforce the agreements made hereunder between the
Company, on the one hand, and the Holders, on the other hand, to the extent they
deem such enforcement necessary or advisable to protect their rights or the
rights of Holders hereunder, provided, however, that such right of direct
enforcement shall terminate upon consummation of an Exchange Offer.
(f) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(g) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(h) Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York.
(i) Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
16
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
CSC HOLDINGS, INC.
By: /s/ Xxxxxxx X. Xxxx
------------------------------------
Name: Xxxxxxx X. Xxxx
------------------------------
Title: Vice Chairman
-----------------------------
Confirmed and accepted as of the date first above written:
CITIGROUP GLOBAL MARKETS INC.
BANC OF AMERICA SECURITIES LLC
BEAR, XXXXXXX & CO. INC
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
WACHOVIA CAPITAL MARKETS, LLC
CREDIT LYONNAIS SECURITIES (USA) INC.
XXXXXX XXXXXXX CORP.
By: CITIGROUP GLOBAL MARKETS INC.
By: /s/ Xxxxx Dunk
---------------------------------
Name: Xxxxx Dunk
---------------------------
Title: Vice President
--------------------------
