EXHIBIT 4.16
DISCOUNT NOTE REGISTRATION RIGHTS AGREEMENT
This DISCOUNT NOTE REGISTRATION RIGHTS AGREEMENT dated November 10,
2003 (the "Agreement") is entered into by and among Dex Media, Inc., a Delaware
corporation (the "Company") and X.X. Xxxxxx Securities Inc., Banc of America
Securities LLC and Xxxxxx Brothers Inc. (collectively, the "Initial
Purchasers").
The Company and the Initial Purchasers are parties to the Purchase
Agreement dated November 3, 2003 (the "Purchase Agreement"), which provides for
the sale by the Company to the Initial Purchasers of $389,000,000 aggregate
principal amount at maturity (yielding gross proceeds of $250,181,460) of the
Company's 9% Discount Notes due 2013 (the "Discount Notes") and $500,000,000
aggregate principal amount of the Company's 8% Notes due 2013. As an inducement
to the Initial Purchasers to enter into the Purchase Agreement, the Company has
agreed to provide to the Initial Purchasers and their direct and indirect
transferees the registration rights with respect to the Discount Notes set forth
in this Agreement. The execution and delivery of this Agreement is a condition
to the closing under the Purchase Agreement.
In consideration of the foregoing, the parties hereto agree as
follows:
1. Definitions. As used in this Agreement, the following terms shall
have the following meanings:
"Accreted Value" shall have the meaning assigned thereto in the
Indenture.
"Applicable Rate" shall mean 9% per annum, subject to increase as
required by Section 2(d) hereof and the Indenture.
"Business Day" shall mean any day that is not a Saturday, Sunday or
other day on which commercial banks in New York City are authorized or required
by law to remain 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 the Company's successors.
"Discount Exchange Securities" shall mean notes issued by the Company
under the Indenture containing terms identical to the Discount Notes (except
that the Discount Exchange Securities will not be subject to restrictions on
transfer or to any increase in annual interest rate for failure to comply with
this Agreement), and to be offered to Holders of Discount Notes in exchange for
Discount Notes pursuant to the Exchange Offer.
"Discount Notes" shall have the meaning set forth in the Preamble.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended from time to time.
"Exchange Dates" shall have the meaning set forth in Section 2(a)(ii)
hereof.
"Exchange Offer" shall mean the exchange offer by the Company of
Discount 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 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 any
document incorporated by reference therein.
"Full Accretion Date" shall have the meaning assigned thereto in the
Indenture.
"Holders" shall mean the Initial Purchasers, for so long as they own
any Registrable Securities, and each of their successors, assigns and direct and
indirect transferees who become owners of Registrable Securities under the
Indenture; provided that for purposes of Sections 4 and 5 of this Agreement, the
term "Holders" shall include Participating Broker-Dealers.
"Initial Purchasers" shall have the meaning set forth in the preamble.
"Indemnified Person" shall have the meaning set forth in Section 5(c)
hereof.
"Indemnifying Person" shall have the meaning set forth in Section 5(c)
hereof.
"Indenture" shall mean the Indenture relating to the Discount Notes
dated as of the Closing Date between the Company and U.S. Bank National
Association, as trustee, as the same may be amended from time to time in
accordance with the terms thereof.
"Inspector" shall have the meaning set forth in Section 3(m) hereof.
"Majority Holders" shall mean the Holders of a majority of the
aggregate principal amount at maturity of outstanding Registrable Securities;
provided that whenever the consent or approval of Holders of a specified
percentage of Registrable Securities is required hereunder, Registrable
Securities owned directly or indirectly by the Company or any of its affiliates
shall not be counted in determining whether such consent or approval was given
by the Holders of such required percentage or amount.
"Participating Broker-Dealers" shall have the meaning set forth in
Section 4(a) hereof.
"Person" shall mean an individual, partnership, limited liability
company, corporation, trust or unincorporated organization, or a government or
agency or political subdivision thereof.
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"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 such prospectus, and in each case including
any document incorporated by reference therein.
"Purchase Agreement" shall have the meaning set forth in the preamble.
"Registrable Securities" shall mean the Discount Notes; provided that
the Discount Notes shall cease to be Registrable Securities (i) when a
Registration Statement with respect to such Discount Notes has been declared
effective under the Securities Act and such Discount Notes have been exchanged
or disposed of pursuant to such Registration Statement, (ii) when such Discount
Notes are eligible to be sold pursuant to Rule 144(k) (or any similar provision
then in force, but not Rule 144A) under the Securities Act, (iii) when such
Discount Notes are sold pursuant to Rule 144 under circumstances after which
such Discount Notes are freely transferable under the Securities Act or (iv)
when such Discount Notes cease to be outstanding.
"Registration Expenses" shall mean any and all expenses incident to
performance of or compliance by the Company with this Agreement, including
without limitation: (i) all SEC, stock exchange or National Association of
Securities Dealers, Inc. registration and filing fees, (ii) all fees and
expenses incurred in connection with compliance with state securities or blue
sky laws (including reasonable fees and disbursements of counsel for any
Underwriters or Holders in connection with blue sky qualification of any
Discount Exchange Securities or Registrable Securities, not to exceed $10,000 in
the aggregate), (iii) all expenses of any Persons in preparing or assisting in
preparing, word processing, printing and distributing any Registration
Statement, any Prospectus and any amendments or supplements thereto, any
underwriting agreements, securities sales agreements or other similar agreements
and any other documents relating to the performance of and compliance with this
Agreement, (iv) all rating agency fees, (v) all fees and disbursements relating
to the qualification of the Indenture under applicable securities laws, (vi) the
fees and disbursements of the Trustee and its counsel, (vii) the fees and
disbursements of counsel for the Company and, in the case of a Shelf
Registration Statement, the reasonable fees and disbursements of one counsel for
the Holders (which counsel shall be selected by the Majority Holders and which
counsel may also be counsel for the Initial Purchasers) and (viii) the fees and
disbursements of the independent public accountants of the Company, including
the expenses of any special audits or "comfort" letters required by or incident
to the performance of and compliance with this Agreement, but excluding fees and
expenses of counsel to the Underwriters (other than fees and expenses set forth
in clause (ii) above) or the Holders and underwriting discounts and commissions
and transfer taxes, if any, relating to the sale or disposition of Registrable
Securities by a Holder.
"Registration Statement" shall mean any registration statement of the
Company that covers any of the Discount Exchange Securities or Registrable
Securities pursuant to the provisions of this Agreement and all amendments and
supplements to any such registration statement, including post-effective
amendments, in each case including the Prospectus contained therein, all
exhibits thereto and any document incorporated by reference therein.
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"SEC" shall mean the Securities and Exchange Commission.
"Securities Act" shall mean the Securities Act of 1933, as amended
from time to time.
"Shelf Effectiveness Period" shall have the meaning set forth in
Section 2(b) hereof.
"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 that covers all Registrable Securities (but no other
securities unless approved by the Holders whose Registrable Securities are to be
covered by such Shelf Registration Statement) on an appropriate form under Rule
415 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 any document incorporated by
reference therein.
"Trust Indenture Act" shall mean the Trust Indenture Act of 1939, as
amended from time to time.
"Trustee" shall mean the trustee with respect to the Discount Notes
under the Indenture.
"Underwriter" shall have the meaning set forth in Section 3 hereof.
"Underwritten Offering" shall mean an offering in which Registrable
Securities are sold to an Underwriter for reoffering to the public.
2. Registration Under the Securities Act. (a) To the extent not
prohibited by any applicable law or applicable interpretations of the Staff of
the SEC, the Company shall use all commercially reasonable efforts to (i) cause
to be filed an Exchange Offer Registration Statement covering an offer to the
Holders to exchange all the Registrable Securities for Discount Exchange
Securities and (ii) have such Registration Statement remain effective until the
earlier of (A) 180 days after the closing of the Exchange Offer and (B) such
time as no broker-dealer holds any Registrable Securities. The Company shall
commence the Exchange Offer promptly after the Exchange Offer Registration
Statement is declared effective by the SEC and use all commercially reasonable
efforts to complete the Exchange Offer not later than 60 days after such
effective date.
The Company shall commence the Exchange Offer by mailing the related
Prospectus, appropriate letters of transmittal and other 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 Agreement
and that all Registrable Securities validly tendered and not properly
withdrawn will be accepted for exchange;
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(ii) the dates of acceptance for exchange (which shall be a period of
at least 20 Business Days from the date such notice is mailed) (the
"Exchange Dates");
(iii) that any Registrable Security not tendered will remain
outstanding and continue to accrete at the Applicable Rate and, following
the Full Accretion Date, accrue interest but will not retain any rights
under this Agreement;
(iv) that any Holder electing to have a Registrable Security exchanged
pursuant to the Exchange Offer will be required to surrender such
Registrable Security, together with the appropriate letters of transmittal,
to the institution and at the address and in the manner specified in the
notice, prior to the close of business on the last Exchange Date; and
(v) that any Holder will be entitled to withdraw its election, not
later than the close of business on the last Exchange Date, by sending to
the institution and at the address specified in the notice, a telegram,
telex, facsimile transmission or letter setting forth the name of such
Holder, the principal amount of Registrable Securities delivered for
exchange and a statement that such Holder is withdrawing its election to
have such Discount Notes exchanged.
As a condition to participating in the Exchange Offer, a Holder will be
required to represent to the Company that (i) any Discount Exchange Securities
to be received by it will be acquired in the ordinary course of its business,
(ii) at the time of the commencement of the Exchange Offer it has no arrangement
or understanding with any Person to participate in the distribution (within the
meaning of the Securities Act) of the Discount Exchange Securities in violation
of the provisions of the Securities Act, (iii) it is not an "affiliate" (within
the meaning of Rule 405 under Securities Act) of the Company and (iv) if such
Holder is a broker-dealer that will receive Discount Exchange Securities for its
own account in exchange for Registrable Securities that were acquired as a
result of market-making or other trading activities, then such Holder will
deliver a Prospectus in connection with any resale of such Discount Exchange
Securities.
As soon as practicable after the last Exchange Date, the Company shall:
(i) accept for exchange Registrable Securities or portions thereof
validly tendered and not properly withdrawn pursuant to the Exchange Offer;
and
(ii) deliver, or cause to be delivered, to the Trustee for cancelation
all Registrable Securities or portions thereof so accepted for exchange by
the Company and issue, and cause the Trustee to promptly authenticate and
deliver to each Holder, Discount Exchange Securities equal in Accreted
Value and principal amount at maturity to the Accreted Value and principal
amount at maturity of the Registrable Securities surrendered by such
Holder.
The Company shall use all commercially reasonable efforts to complete
the Exchange Offer as provided above and shall comply with the applicable
requirements of the Securities Act, the Exchange Act and other applicable laws
and regulations in connection with the Exchange Offer. The Exchange Offer shall
not be subject to any conditions, other than that
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the Exchange Offer does not violate any applicable law or applicable
interpretations of the Staff of the SEC.
(b) In the event that (i) the Company determines that the Exchange
Offer Registration provided for in Section 2(a) above is not available or may
not be completed as soon as practicable after the last Exchange Date because it
would violate any applicable law or applicable interpretations of the Staff of
the SEC, (ii) the Exchange Offer Registration Statement is not for any other
reason declared effective by the SEC by the 270th day following the Closing Date
or (iii) the Exchange Offer has been completed and, in the opinion of counsel
for the Initial Purchasers, 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 originally purchased and still held
by the Initial Purchasers, the Company shall use all commercially reasonable
efforts to cause to be filed as soon as practicable after such determination,
date or delivery of such opinion of counsel to the Company, as the case may be,
a Shelf Registration Statement providing for the sale of all the Registrable
Securities by the Holders thereof and to have such Shelf Registration Statement
declared effective by the SEC. To the extent a Shelf Registration Statement is
required to be filed pursuant to clause (ii) and the Exchange Offer Registration
Statement is declared effective by the SEC on a date later than the 270th day
following the Closing Date, upon the completion of the Exchange Offer, the
Company will no longer be required to file, make effective or continue the
effectiveness of the Shelf Registration Statement, except as may be required
pursuant to clause (i) or (iii).
In the event that the Company is required to file a Shelf Registration
Statement pursuant to clause (iii) of the preceding sentence, the Company shall
use all commercially reasonable efforts to 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 agrees to use all commercially reasonable efforts to keep
the Shelf Registration Statement continuously effective until the expiration of
the period referred to in Rule 144(k) under the Securities Act with respect to
the Registrable Securities or such shorter period that will terminate when all
the Registrable Securities covered by the Shelf Registration Statement have been
sold pursuant to the Shelf Registration Statement or are no longer outstanding
(the "Shelf Effectiveness Period"). The Company further agrees to supplement or
amend the Shelf Registration Statement and the related Prospectus 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 Securities Act or
by any other rules and regulations thereunder for shelf registration or if
reasonably and timely requested by a Holder of Registrable Securities with
respect to information relating to such Holder, and to use all commercially
reasonable efforts to cause any such amendment to become effective and such
Shelf Registration Statement and Prospectus to become usable as soon as
thereafter practicable. 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.
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(c) The Company shall pay all Registration Expenses in connection with
the registration pursuant to Section 2(a) and Section 2(b) hereof. Each Holder
shall pay all underwriting discounts and commissions and transfer taxes, if any,
relating to the sale or disposition of such Holder's Registrable Securities
pursuant to the Shelf Registration Statement.
(d) 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.
In the event that either (x) the Exchange Offer Registration Statement
or the Shelf Registration Statement, if required hereby, is not declared
effective on or prior to the 270th day following the Closing Date or (y) the
Exchange Offer is not consummated on or prior to the 330th day following the
Closing Date, then (i) if prior to the Full Accretion Date, the Applicable Rate
on the Registrable Securities will be increased by a per annum rate of 0.25% on
the Accreted Value of the Registrable Securities (as of the most recent
semi-annual accretion date) for the first 90-day period and will increase by an
additional 0.25% per annum with respect to each subsequent 90-day period until
the Exchange Offer Registration Statement or the Shelf Registration Statement,
if required hereby, is declared effective by the SEC or the Discount Notes
become freely tradable under the Securities Act and (ii) if after the Full
Accretion Date, the interest rate (paid in cash on each scheduled interest
payment date) on the Registrable Securities will be increased by 0.25% per annum
for the first 90-day period and will increase by an additional 0.25% per annum
with respect to each subsequent 90-day period until the Exchange Offer
Registration Statement or the Shelf Registration Statement, if required hereby,
is declared effective by the SEC or the Discount Notes become freely tradable
under the Securities Act; provided, however, that in no event will such
additional accretion or additional interest pursuant to clauses (i) or (ii)
exceed 1.00% individually or on an aggregate basis.
If the Shelf Registration Statement has been declared effective and
thereafter either ceases to be effective or the Prospectus contained therein
ceases to be usable at any time during the Shelf Effectiveness Period, and such
failure to remain effective or usable exists for more than 60 consecutive days
or more than 90 days (whether or not consecutive) in any 12-month period, then
(i) if prior to the Full Accretion Date, the Applicable Rate of accretion on the
Registrable Securities will be increased by 1.00% per annum on the Accreted
Value of the Registrable Securities (as of the most recent semi-annual accretion
date), commencing on the 61st or 91st day in such 12-month period and ending on
such date that the Shelf Registration Statement has again been declared
effective or the Prospectus again becomes usable and (ii) if after the Full
Accretion Date, the interest rate on the Registrable Securities will be
increased by 1.00% per annum, commencing on the 61st or 91st day in such
12-month period and ending on such date that the Shelf Registration Statement
has again been declared effective or the Prospectus again becomes usable;
provided, however, that in no event will such additional accretion or additional
interest pursuant to clauses (i) or (ii), together with the additional accretion
or additional interest payable pursuant to the immediately preceding paragraph,
if any, exceed 1.00% individually or on an aggregate basis.
(e) Without limiting the remedies available to the Initial Purchasers
and the Holders, the Company acknowledges that any failure by the Company to
comply with its obligations under Section 2(a) and Section 2(b) hereof may
result in material irreparable injury to
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the Initial Purchasers or the Holders for which there is no adequate remedy at
law, that it will not be possible to measure damages for such injuries precisely
and that, in the event of any such failure, the Initial Purchasers or any Holder
may obtain such relief as may be required to specifically enforce the Company's
obligations under Section 2(a) and Section 2(b) hereof.
3. Registration Procedures. In connection with its obligations
pursuant to Section 2(a) and Section 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 (x) shall be selected
by the Company, (y) shall, in the case of a Shelf Registration, be
available for the sale of the Registrable Securities by the selling Holders
thereof and (z) shall comply as to form in all material respects with the
requirements of the applicable form and include all financial statements
required by the SEC to be filed therewith; and use all commercially
reasonable efforts to cause such Registration Statement to become effective
and remain effective for the applicable period in accordance with Section 2
hereof;
(b) prepare and file with the SEC such amendments and post-effective
amendments to each Registration Statement as may be necessary to keep such
Registration Statement effective for the applicable period in accordance
with Section 2 hereof and cause each Prospectus to be supplemented by any
required prospectus supplement and, as so supplemented, to be filed
pursuant to Rule 424 under the Securities Act; and keep each Prospectus
current during the period described in Section 4(3) of and Rule 174 under
the Securities Act that is applicable to transactions by brokers or dealers
with respect to the Registrable Securities or Discount Exchange Securities;
(c) in the case of a Shelf Registration, furnish to each Holder of
Registrable Securities, to counsel for the Initial Purchasers, to counsel
for such Holders and to each Underwriter of an Underwritten Offering of
Registrable Securities, if any, without charge, as many copies of each
Prospectus as reasonably requested, including each preliminary Prospectus,
and any amendment or supplement thereto, in order to facilitate the sale or
other disposition of the Registrable Securities thereunder; and the Company
consents to the use of such Prospectus and any amendment or supplement
thereto in accordance with applicable law by each of the selling Holders of
Registrable Securities and any such Underwriters in connection with the
offering and sale of the Registrable Securities covered by and in the
manner described in such Prospectus or any amendment or supplement thereto
in accordance with applicable law;
(d) use all commercially reasonable 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 a Registration Statement shall reasonably request in writing by the time
the applicable Registration Statement is declared effective by the SEC;
cooperate with the Holders in connection with any filings required to be
made with the National Association of Securities Dealers, Inc.; and do any
and all other acts and things that may be reasonably necessary or advisable
to enable each Holder to complete the disposition in each such jurisdiction
of the Registrable Securities owned by such Holder; provided that the
Company shall not be required to (i) qualify as a
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foreign corporation or other entity or as a dealer in securities in any
such jurisdiction where it would not otherwise be required to so qualify,
(ii) file any general consent to service of process in any such
jurisdiction or (iii) subject itself to taxation in any such jurisdiction
if it is not so subject;
(e) in the case of a Shelf Registration, notify each Holder of
Registrable Securities, counsel for such Holders and counsel for the
Initial Purchasers promptly and, if requested by any such Holder or
counsel, confirm such advice in writing (i) when a Registration Statement
has become effective and when any post-effective amendment thereto has been
filed and becomes effective, (ii) of any request by the SEC or any state
securities authority for amendments and supplements to a Registration
Statement and Prospectus or for additional information after the
Registration Statement has become effective, (iii) of the issuance by the
SEC or any state securities authority of any stop order suspending the
effectiveness of a Registration Statement or the initiation of any
proceedings for that purpose, (iv) if, between the effective date of a
Registration Statement and the closing of any sale of Registrable
Securities covered thereby, the representations and warranties of the
Company contained in any underwriting agreement, securities sales agreement
or other similar agreement, if any, relating to an offering of such
Registrable Securities cease to be true and correct in all material
respects or if 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, (v)
of the happening of any event during the period a Shelf Registration
Statement is effective that makes any statement made in such Registration
Statement or the related Prospectus untrue in any material respect or that
requires the making of any changes in such Registration Statement or
Prospectus in order to make the statements therein not misleading and (vi)
of any determination by the Company that a post-effective amendment to a
Registration Statement would be appropriate;
(f) use all commercially reasonable efforts to obtain the withdrawal
of any order suspending the effectiveness of a Registration Statement at
the earliest possible moment and provide immediate notice to each Holder of
the withdrawal of any such order;
(g) in the case of a Shelf Registration, if requested, furnish to each
Holder of Registrable Securities, without charge, at least one conformed
copy of each Registration Statement and any post-effective amendment
thereto (without any 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 issued in such denominations and registered in such names (consistent
with the provisions of the Indenture) as the selling Holders may reasonably
request at least one Business Day prior to the closing of any sale of
Registrable Securities;
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(i) in the case of a Shelf Registration, upon the occurrence of any
event contemplated by Section 3(e)(v) hereof, use all commercially
reasonable efforts to prepare and file with the SEC a supplement or
post-effective amendment to a 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 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; and the Company shall notify the Holders of
Registrable Securities to suspend use of the Prospectus as promptly as
practicable after the occurrence of such an event, and such Holders hereby
agree to suspend use of the Prospectus until the Company has amended or
supplemented the Prospectus to correct such misstatement or omission;
(j) a reasonable time prior to the filing of any Registration
Statement, any Prospectus, any amendment to a Registration Statement or
amendment or supplement to a Prospectus or of any document that is to be
incorporated by reference into a Registration Statement or a Prospectus
after initial filing of a Registration Statement, provide copies of such
document to the Initial Purchasers and their counsel (and, in the case of a
Shelf Registration Statement, to the Holders of Registrable Securities and
their counsel) and make such of the representatives of the Company as shall
be reasonably requested by the Initial Purchasers or their counsel (and, in
the case of a Shelf Registration Statement, the Holders of Registrable
Securities or their counsel) available for discussion of such document; and
the Company shall not, at any time after initial filing of a Registration
Statement, file any Prospectus, any amendment of or supplement to a
Registration Statement or a Prospectus, or any document that is to be
incorporated by reference into a Registration Statement or a Prospectus, of
which the Initial Purchasers and their counsel (and, in the case of a Shelf
Registration Statement, the Holders of Registrable Securities and their
counsel) shall not have previously been advised and furnished a copy or to
which the Initial Purchasers or their counsel (and, in the case of a Shelf
Registration Statement, the Holders or their counsel) shall reasonably
object;
(k) obtain a CUSIP number for all Discount Exchange Securities or
Registrable Securities, as the case may be, not later than the effective
date of a Registration Statement;
(l) cause the Indenture to be qualified under the Trust Indenture Act
in connection with the registration of the Discount Exchange Securities or
Registrable Securities, as the case may be; 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 Trust
Indenture Act; and execute, and use all commercially reasonable 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;
(m) in the case of a Shelf Registration, make available for inspection
by a representative of the Holders of the Registrable Securities reasonably
acceptable to the Company (an "Inspector"), any Underwriter participating
in any disposition pursuant to
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such Shelf Registration Statement, and attorneys and accountants designated
by the Holders, at reasonable times and in a reasonable manner, all
pertinent financial and other records, documents and properties of the
Company, and cause the officers, directors and employees of the Company to
supply all information reasonably requested by any such Inspector,
Underwriter, attorney or accountant in connection with a Shelf Registration
Statement; provided that if any such information is identified by the
Company as being confidential or proprietary, each Person receiving such
information shall take such actions as are reasonably necessary to protect
the confidentiality of such information to the extent such action is
otherwise not inconsistent with, an impairment of or in derogation of the
rights and interests of any Inspector, Holder or Underwriter;
(n) in the case of a Shelf Registration, use all commercially
reasonable efforts to cause all Registrable Securities to be listed on any
securities exchange or any automated quotation system on which similar
securities issued or guaranteed by the Company are then listed if requested
by the Majority Holders, to the extent such Registrable Securities satisfy
applicable listing requirements;
(o) if reasonably requested by any Holder of Registrable Securities
covered by a Registration Statement, promptly incorporate in a Prospectus
supplement or post-effective amendment such information with respect to
such Holder as such Holder reasonably requests to be included therein and
make all required filings of such Prospectus supplement or such
post-effective amendment as soon as the Company has received notification
of the matters to be incorporated in such filing; and
(p) in the case of a Shelf Registration, enter into such customary
agreements and take all such other actions in connection therewith
(including those reasonably requested by the Holders of a majority in
principal amount of the Registrable Securities being sold) in order to
expedite or facilitate the disposition of such Registrable Securities
including, but not limited to, an Underwritten Offering and in such
connection, (i) to the extent possible, make such representations and
warranties to the Holders and any Underwriters of such Registrable
Securities with respect to the business of the Company and its
subsidiaries, the Registration Statement, Prospectus and documents
incorporated by reference or deemed incorporated by reference, if any, in
each case, in form, substance and scope as are customarily made by issuers
to underwriters in underwritten offerings and confirm the same if and when
requested, (ii) obtain opinions of counsel to the Company (which counsel
and opinions, in form, scope and substance, shall be reasonably
satisfactory to the Holders and such Underwriters and their respective
counsel) addressed to each selling Holder and Underwriter of Registrable
Securities, covering the matters customarily covered in opinions requested
in underwritten offerings, (iii) obtain "comfort" letters from the
independent certified public accountants of the Company (and, if necessary,
any other certified public accountant of any subsidiary of the Company, or
of any business acquired by the Company for which financial statements and
financial data are or are required to be included in the Registration
Statement) addressed to each selling Holder and Underwriter of Registrable
Securities, such letters to be in customary form and covering matters of
the type customarily covered in "comfort" letters in connection with
underwritten offerings and (iv) deliver such documents and certificates as
may be reasonably requested by the Holders of a majority in principal
amount of the
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Registrable Securities being sold or the Underwriters, and which are
customarily delivered in underwritten offerings, to evidence the continued
validity of the representations and warranties of the Company made pursuant
to clause (i) above and to evidence compliance with any customary
conditions contained in an underwriting agreement.
In the case of a Shelf Registration Statement, the Company may require
each Holder of Registrable Securities to furnish to the Company such information
regarding such Holder and the proposed disposition by such Holder of such
Registrable Securities as the Company may from time to time reasonably request
in writing.
In the case of a Shelf Registration Statement, each Holder of
Registrable Securities agrees that, upon receipt of any notice from the Company
of the happening of any event of the kind described in Section 3(e)(iii) or
3(e)(v) hereof or a notice pursuant to the last sentence of this paragraph, such
Holder will forthwith discontinue disposition of Registrable Securities pursuant
to a Registration Statement until such Holder's receipt of the copies of the
supplemented or amended Prospectus contemplated by Section 3(i) hereof and, if
so directed by the Company, such Holder will deliver to 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 that is
current at the time of receipt of such notice. In addition, the Company may give
notice of the suspension of the offering and sale under the Shelf Registration
Statement for a period or periods upon the occurrence or existence of any
pending corporate development that, in the good faith judgment of the Board of
Directors of the Company, makes such suspension necessary.
If the Company shall give any such notice to suspend the disposition
of Registrable Securities pursuant to a Registration Statement, the Company
shall extend the period during which the 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. The Company may give
any such notice only twice during any 365-day period and any such suspensions
shall not exceed 45 days for each suspension and there shall not be more than
two suspensions in effect during any 365-day period.
The Holders of Registrable Securities covered by a 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.
4. Participation of Broker-Dealers in Exchange Offer. (a) The Staff of
the SEC has taken the position that any broker-dealer that receives Discount
Exchange Securities for its own account in the Exchange Offer in exchange for
Discount Notes 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
-12-
and must deliver a prospectus meeting the requirements of the Securities Act in
connection with any resale of such Discount Exchange Securities.
The Company understands that it is the Staff's position that if the
Prospectus 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 Discount Exchange Securities,
without naming the Participating Broker-Dealers or specifying the amount of
Discount Exchange Securities owned by them, such Prospectus may be delivered by
Participating Broker-Dealers to satisfy their prospectus delivery obligation
under the Securities Act in connection with resales of Discount 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, and notwithstanding the other provisions of
this Agreement, the Company agrees to amend or supplement the Prospectus
contained in the Exchange Offer Registration Statement, as would otherwise be
contemplated by Section 3(i), for a period of up to 180 days after the last
Exchange Date (as such period may be extended pursuant to the penultimate
paragraph of Section 3 of this Agreement), if requested by the Initial
Purchasers or by one or more Participating Broker-Dealers, in order to expedite
or facilitate the disposition of any Discount Exchange Securities by
Participating Broker-Dealers consistent with the positions of the Staff recited
in Section 4(a) above. The Company further agrees that Participating
Broker-Dealers shall be authorized to deliver such Prospectus during such period
in connection with the resales contemplated by this Section 4.
(c) The Initial Purchasers shall have no liability to the Company or
any Holder with respect to any request that they may make pursuant to Section
4(b) above.
5. Indemnification and Contribution. (a) The Company agrees to
indemnify and hold harmless each Initial Purchaser and each Holder, their
respective affiliates, directors and officers and each Person, if any, who
controls any Initial Purchaser or any Holder within the meaning of Section 15 of
the Securities Act or Section 20 of the Exchange Act, from and against any and
all losses, claims, damages and liabilities (including, without limitation,
reasonable legal fees and other expenses incurred in connection with any suit,
action or proceeding or any claim asserted, as such fees and expenses are
incurred), joint or several, that arise out of, or are based upon, any untrue
statement or alleged untrue statement of a material fact contained in any
Registration Statement or any Prospectus or any omission or alleged omission to
state therein a material fact required to be stated therein or necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading, except insofar as such losses, claims,
damages or liabilities arise out of, or are based upon, any untrue statement or
omission or alleged untrue statement or omission made in reliance upon and in
conformity with any information relating to any Initial Purchaser or any Holder
furnished to the Company in writing through X.X. Xxxxxx Securities Inc. or any
selling Holder expressly for use therein; provided, that with respect to any
such untrue statement in or omission from any preliminary prospectus, the
indemnity agreement contained in this Section 5(a) shall not inure to the
benefit of any Initial Purchaser or any Holder from whom the person asserting
any such loss, claim, damage or liability received Discount Notes or Discount
Exchange Securities to the extent that any such loss, claim, damage or liability
of or with respect to such Initial Purchaser or Holder results from the fact
that both (i) a copy of the final prospectus was not sent or given to such
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person at or prior to the written confirmation of the sale of such Discount
Notes or Discount Exchange Securities to such person and (ii) the untrue
statement in or omission from the related preliminary prospectus was corrected
in the final prospectus unless, in either case, such failure to deliver the
final prospectus was a result of non-compliance by the Company with the
provisions of Section 3. In connection with any Underwritten Offering permitted
by Section 3, the Company will also indemnify the Underwriters, if any, selling
brokers, dealers and similar securities industry professionals participating in
the distribution, their respective affiliates and each Person who controls such
Persons (within the meaning of the Securities Act and the Exchange Act) to the
same extent as provided above with respect to the indemnification of the
Holders, if requested in connection with any Registration Statement.
(b) Each Holder agrees, severally and not jointly, to indemnify and
hold harmless the Company, the Initial Purchasers and the other selling Holders,
their respective affiliates, the directors of the Company, each officer of the
Company who signed the Registration Statement and each Person, if any, who
controls the Company, any Initial Purchaser and any other selling Holder within
the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act to the same extent as the indemnity set forth in paragraph (a) above, but
only with respect to any losses, claims, damages or liabilities that arise out
of, or are based upon, any untrue statement or omission or alleged untrue
statement or omission made in reliance upon and in conformity with any
information relating to such Holder furnished to the Company in writing by such
Holder expressly for use in any Registration Statement and any Prospectus.
(c) If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against
any Person in respect of which indemnification may be sought pursuant to either
paragraph (a) or (b) above, such Person (the "Indemnified Person") shall
promptly notify the Person against whom such indemnification may be sought (the
"Indemnifying Person") in writing; provided that the failure to notify the
Indemnifying Person shall not relieve it from any liability that it may have
under this Section 5 except to the extent that it has been materially prejudiced
(through the forfeiture of substantive rights or defenses) by such failure; and
provided, further, that the failure to notify the Indemnifying Person shall not
relieve it from any liability that it may have to an Indemnified Person
otherwise than under this Section 5. If any such proceeding shall be brought or
asserted against an Indemnified Person and it shall have notified the
Indemnifying Person thereof, the Indemnifying Person shall retain counsel
reasonably satisfactory to the Indemnified Person to represent the Indemnified
Person and any others entitled to indemnification pursuant to this Section 5
that the Indemnifying Person may designate in such proceeding and shall pay the
fees and expenses of such counsel related to such proceeding, as incurred. In
any such proceeding, any Indemnified Person shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the expense
of such Indemnified Person unless (i) the Indemnifying Person and the
Indemnified Person shall have mutually agreed to the contrary; (ii) the
Indemnifying Person has failed within a reasonable time to retain counsel
reasonably satisfactory to the Indemnified Person; (iii) the Indemnified Person
shall have reasonably concluded that there may be legal defenses available to it
that are different from or in addition to those available to the Indemnifying
Person; or (iv) the named parties in any such proceeding (including any
impleaded parties) include both the Indemnifying Person and the Indemnified
Person and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It is
understood and agreed that the Indemnifying
-14-
Person shall not, in connection with any proceeding or related proceeding in the
same jurisdiction, be liable for the reasonable fees and expenses of more than
one separate firm (in addition to any local counsel) for all Indemnified
Persons, and that all such fees and expenses shall be reimbursed as they are
incurred. Any such separate firm (x) for any Initial Purchaser, its affiliates,
directors and officers and any control Persons of such Initial Purchaser shall
be designated in writing by X.X. Xxxxxx Securities Inc., (y) for any Holder, its
affiliates, directors and officers and any control Persons of such Holder shall
be designated in writing by the Majority Holders and (z) in all other cases
shall be designated in writing by the Company. The Indemnifying Person shall not
be liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment for
the plaintiff, the Indemnifying Person agrees to indemnify each Indemnified
Person from and against any loss or liability by reason of such settlement or
judgment. Notwithstanding the foregoing sentence, if at any time an Indemnified
Person shall have requested that an Indemnifying Person reimburse the
Indemnified Person for fees and expenses of counsel as contemplated by this
paragraph, the Indemnifying Person shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 30 days after receipt by the Indemnifying Person of such
request and (ii) the Indemnifying Person shall not have reimbursed the
Indemnified Person in accordance with such request prior to the date of such
settlement. No Indemnifying Person shall, without the written consent of the
Indemnified Person, effect any settlement of any pending or threatened
proceeding in respect of which any Indemnified Person is or could have been a
party and indemnification could have been sought hereunder by such Indemnified
Person, unless such settlement (A) includes an unconditional release of such
Indemnified Person, in form and substance reasonably satisfactory to such
Indemnified Person, from all liability on claims that are the subject matter of
such proceeding and (B) does not include any statement as to or any admission of
fault, culpability or a failure to act by or on behalf of any Indemnified
Person.
(d) If the indemnification provided for in paragraphs (a) and (b)
above is unavailable to an Indemnified Person or insufficient in respect of any
losses, claims, damages or liabilities referred to therein, then each
Indemnifying Person under such paragraph, in lieu of indemnifying such
Indemnified Person thereunder, shall contribute to the amount paid or payable by
such Indemnified Person as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company from the offering of the Discount Notes and the
Discount Exchange Securities, on the one hand, and by the Holders from receiving
Discount Notes or Discount Exchange Securities registered under the Securities
Act, on the other hand, or (ii) if the allocation provided by clause (i) is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) but also the relative fault
of the Company on the one hand and the Holders on the other in connection with
the statements or omissions that resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
relative fault of the Company on the one hand and the Holders on the other shall
be determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company or by the Holders
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
-15-
(e) The Company and the Holders agree that it would not be just and
equitable if contribution pursuant to this Section 5 were determined by pro rata
allocation (even if the Holders were treated as one entity for such purpose) or
by any other method of allocation that does not take account of the equitable
considerations referred to in paragraph (d) above. The amount paid or payable by
an Indemnified Person as a result of the losses, claims, damages and liabilities
referred to in paragraph (d) above shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses incurred by such
Indemnified Person in connection with any such action or claim. Notwithstanding
the provisions of this Section 5, in no event shall a Holder be required to
contribute any amount in excess of the amount by which the total price at which
the Discount Notes or Discount Exchange Securities sold by such Holder exceeds
the amount of any damages that such Holder has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No Person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any Person who was not guilty of such fraudulent misrepresentation.
(f) The remedies provided for in this Section 5 are not exclusive and
shall not limit any rights or remedies that may otherwise be available to any
Indemnified Person at law or in equity.
(g) The indemnity and contribution provisions contained in this
Section 5 shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement, (ii) any investigation made by or on behalf
of the Initial Purchasers or any Holder, their respective affiliates or any
Person controlling any Initial Purchaser or any Holder, or by or on behalf of
the Company, its affiliates or the officers or directors of or any Person
controlling the Company, (iii) acceptance of any of the Discount Exchange
Securities and (iv) any sale of Registrable Securities pursuant to a Shelf
Registration Statement.
6. General.
(a) No Inconsistent Agreements. The Company represents, warrants and
agrees that (i) 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
any other outstanding securities issued or guaranteed by the Company under any
other agreement and (ii) the Company has not entered into, and on or after the
date of this Agreement will not enter into, any agreement that is inconsistent
with the rights granted to the Holders of Registrable Securities in this
Agreement or otherwise conflicts with the provisions hereof.
(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 in aggregate principal amount of the outstanding
Registrable Securities affected by such amendment, modification, supplement,
waiver or consent; provided that no amendment, modification, supplement, waiver
or consent to any departure from the provisions of Section 5 hereof shall be
effective as against any Holder of Registrable Securities unless consented to in
writing by such Holder. Any amendments,
-16-
modifications, supplements, waivers or consents pursuant to this Section 6(b)
shall be by a writing executed by each of the parties hereto.
(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 6(c), which address initially is, with respect to the Initial
Purchasers, the address set forth in the Purchase Agreement; (ii) if to the
Company, initially at the Company's address set forth in the Purchase Agreement
and thereafter at such other address, notice of which is given in accordance
with the provisions of this Section 6(c); and (iii) to such other Persons at
their respective addresses as provided in the Purchase Agreement and thereafter
at such other address, notice of which is given in accordance with the
provisions of this Section 6(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
an air courier guaranteeing overnight delivery. Copies of all such notices,
demands or other communications shall be concurrently delivered by the Person
giving the same to the Trustee, at the address specified in the Indenture.
(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 or the Indenture. 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 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. The Initial
Purchasers (in their capacity as Initial Purchasers) shall have no liability or
obligation to the Company with respect to any failure by a Holder to comply
with, or any breach by any Holder of, any of the obligations of such Holder
under this Agreement.
(e) Purchases and Sales of Securities. The Company shall not, and
shall use all commercially reasonable efforts to cause its affiliates (as
defined in Rule 405 under the Securities Act) not to, purchase and then resell
or otherwise transfer any Registrable Securities.
(f) Third Party Beneficiaries. Each Holder shall be a third party
beneficiary to the agreements made hereunder between the Company, on the one
hand, and the Initial Purchasers, on the other hand, and shall have the right to
enforce such agreements directly to the extent it deems such enforcement
necessary or advisable to protect its rights or the rights of other Holders
hereunder.
(g) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed
-17-
shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for convenience of
reference only, are not a part of this Agreement and shall not limit or
otherwise affect the meaning hereof.
(i) Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York.
(j) Miscellaneous. This Agreement contains the entire agreement
between the parties relating to the subject matter hereof and supersedes all
oral statements and prior writings with respect thereto. If any term, provision,
covenant or restriction contained in this Agreement is held by a court of
competent jurisdiction to be invalid, void or unenforceable or against public
policy, the remainder of the terms, provisions, covenants and restrictions
contained herein shall remain in full force and effect and shall in no way be
affected, impaired or invalidated. The Company and the Initial Purchasers shall
endeavor in good faith negotiations to replace the invalid, void or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the invalid, void or unenforceable
provisions.
-18-
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
DEX MEDIA, INC.
by: /s/ Xxxxxx X. Xxxxxxxxxx, Xx.
-----------------------------------
Name: Xxxxxx X. Xxxxxxxxxx, Xx.
Title: Executive Vice President and
Chief Financial Officer
Confirmed and accepted as of the
date first above written:
X.X. XXXXXX SECURITIES INC.
For itself and on behalf of the
several Initial Purchasers
by: /s/ Xxxxxx Xxxx
----------------------------------
Name: Xxxxxx Xxxx
Title: Vice President
