EXHIBIT 4.2
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DISCOUNT NOTES
REGISTRATION RIGHTS AGREEMENT
Dated as of August 21, 1998
by and among
COAXIAL LLC,
COAXIAL FINANCING CORP.,
INSIGHT COMMUNICATIONS OF CENTRAL OHIO, LLC
and
THE INITIAL PURCHASER
named herein
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TABLE OF CONTENTS
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Page
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1. Definitions............................................................ 1
2. Exchange Offer......................................................... 5
3. Shelf Registration..................................................... 9
4. Additional Interest.................................................... 11
5. Registration Procedures................................................ 13
6. Registration Expenses.................................................. 24
7. Indemnification........................................................ 26
8. Rules 144 and 144A..................................................... 29
9. Underwritten Registrations............................................. 30
10. Miscellaneous......................................................... 30
(a) Remedies..................................................... 30
(b) Enforcement.................................................. 31
(c) No Inconsistent Agreements................................... 31
(d) Adjustments Affecting Registrable Notes...................... 31
(e) Amendments and Waivers....................................... 31
(f) Notices...................................................... 31
(g) Successors and Assigns....................................... 32
(h) Counterparts................................................. 32
(i) Headings..................................................... 32
(j) Governing Law................................................ 33
(k) Severability................................................. 33
(l) Entire Agreement............................................. 33
(m) Discount Notes Held by the Issuers or their Affiliates....... 33
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DISCOUNT NOTES REGISTRATION RIGHTS AGREEMENT (the "Agreement") dated as of
August 21, 1998, by and among Coaxial LLC, a Delaware limited liability company
("Coaxial"), Coaxial Financing Corp., a Delaware corporation ("Financing Corp."
and, together with Coaxial, the "Issuers") and Insight Communica tions of
Central Ohio, LLC, a Delaware limited liability company (the "Guarantor") and
CIBC Oppenheimer Corp. (the "Initial Purchaser").
This Agreement is entered into in connection with the Purchase Agreement,
dated as of August 17, 1998 among the Issuers, the Guarantor and the Initial
Purchaser (the "Purchase Agreement") relating to the sale by the Issuers to the
Initial Purchaser of $55,869,000 aggregate principal amount at maturity of the
Issuers' 12 7/8% Senior Discount Notes due 2008 (the "Discount Notes"). In
order to induce the Initial Purchaser to enter into the Purchase Agreement, the
Issuers and the Guaran tor have agreed to provide the registration rights set
forth in this Agreement to the Initial Purchaser and its direct and indirect
transferees and assigns. The execution and delivery of this Agreement is a
condition to the Initial Purchaser's obligation to purchase the Discount Notes
under the Purchase Agreement.
The parties hereby agree as follows:
1. Definitions
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As used in this Agreement, the following terms shall have the following
meanings:
Additional Interest: See Section 4(a).
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Advice: See Section 5.
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Applicable Period: See Section 2(b).
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Closing: See the Purchase Agreement.
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Issuers: See the introductory paragraph to this Agreement.
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Effectiveness Date: The 150th day after the Issue Date.
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Effectiveness Period: See Section 3(a).
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Event Date: See Section 4(b).
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Exchange Act: The Securities Exchange Act of 1934, as amended, and the
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rules and regulations of the SEC promul gated thereunder.
Exchange Notes: See Section 2(a).
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Exchange Offer: See Section 2(a).
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Exchange Registration Statement: See Section 2(a).
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Filing Date: The 60th day after the Issue Date.
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Holder: Any holder of a Registrable Note or Registrable Notes.
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Indemnified Person: See Section 7(c).
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Indemnifying Person: See Section 7(c).
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Indenture: The Indenture, dated as of August 21, 1998, among the
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Issuers, the Guarantor and Bank of Montreal Trust Company, as trustee, pursuant
to which the Discount Notes are being issued, as amended or supplemented from
time to time in accordance with the terms thereof.
Initial Purchaser: See the introductory paragraph to this Agreement.
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Initial Shelf Registration: See Section 3(a).
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Inspectors: See Section 5(o).
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Issue Date: The date on which the original Discount Notes are sold to
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the Initial Purchaser pursuant to the Purchase Agreement.
Lien: See the Indenture.
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NASD: See Section 5(t).
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Discount Notes: See the second introductory paragraph to this Agreement.
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Participant: See Section 7(a).
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Participating Broker-Dealer: See Section 2(b).
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Person: An individual, corporation, limited liability company,
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partnership, joint venture, association, joint stock company, trust,
unincorporated organization or government (including any agency or political
subdivision thereof).
Private Exchange: See Section 2(b).
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Private Exchange Notes: See Section 2(b).
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Prospectus: The prospectus included in any Registration Statement
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(including, without limitation, any prospectus subject to completion and a
prospectus that includes any information previously omitted from a prospectus
filed as part of an effective registration statement in reliance upon Rule 430A
promulgated under the Securities Act), as amended or supplemented by any
prospectus supplement, with respect to the terms of the offering of any portion
of the Registrable Notes covered by such Registration Statement, and all other
amendments and supplements to the Prospectus, including post-effective
amendments, and all material incorporated by reference or deemed to be
incorporated by reference in such Prospectus.
Purchase Agreement: See the second introductory paragraph to this
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Agreement.
Records: See Section 5(o).
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Registrable Notes: The Discount Notes upon original issuance of the
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Discount Notes and at all times subsequent thereto and, if issued, the Private
Exchange Notes, until in the case of any such Discount Notes or any such Private
Exchange Notes, as the case may be, (i) a Registration Statement covering such
Discount Notes or such Private Exchange Notes has been declared effective by the
SEC and such Discount Notes or such Private Exchange Notes, as the case may be,
have been disposed of in accordance with such effective Registration Statement,
(ii) such Discount Notes or such Private Exchange Notes, as the case may be, are
sold in compliance with Rule 144, (iii) in the case of any Note, such Note has
been exchanged for an Exchange Note or Exchange Notes pursuant to an Exchange
Offer or (iv) such Discount Notes or such Private Exchange Notes, as the case
may be, cease to be outstanding.
Registration Default: See Section 4(a).
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Registration Statement: Any registration statement of the Issuers and
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the Guarantor, including, but not limited to, the Exchange Registration
Statement, which covers any of
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the Registrable Notes pursuant to the provisions of this Agreement, including
the Prospectus, amendments and supplements to such registration statement,
including post-effective amendments, all exhibits, and all material incorporated
by reference or deemed to be incorporated by reference in such registration
statement.
Rule 144: Rule 144 promulgated under the Securities Act, as such Rule
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may be amended from time to time, or any similar rule (other than Rule 144A) or
regulation hereafter adopted by the SEC providing for offers and sales of
securities made in compliance therewith resulting in offers and sales by
subsequent holders that are not affiliates of an issuer of such securities being
free of the registration and prospectus delivery requirements of the Securities
Act.
Rule 144A: Rule 144A promulgated under the Securi ties Act, as such Rule
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may be amended from time to time, or any similar rule (other than Rule 144) or
regulation hereafter adopted by the SEC providing for offers and sales of
securities made in compliance therewith resulting in offers and sales by
subsequent holders that are not affiliates of an issuer of such securities being
free of the registration and prospectus delivery requirements of the Securities
Act.
Rule 415: Rule 415 promulgated under the Securities Act, as such Rule
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may be amended from time to time, or any similar rule or regulation hereafter
adopted by the SEC.
SEC: The Securities and Exchange Commission.
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Securities Act: The Securities Act of 1933, as amended, and the rules
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and regulations of the SEC promulgated thereunder.
Shelf Notice: See Section 2(c).
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Shelf Registration: See Section 3(b).
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Subsequent Shelf Registration: See Section 3(b).
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TIA: The Trust Indenture Act of 1939, as amended.
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Trustee: The trustee under the Indenture and, if existent, the trustee
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under any indenture governing the Exchange Notes and Private Exchange Notes (if
any).
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Underwritten registration or underwritten offering: A registration in
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which securities of the Issuers and the Guarantor are sold to an underwriter(s)
for reoffering to the public.
2 Exchange Offer
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(a) Each of the Guarantor and the Issuers agrees to use its
reasonable best efforts to file with the SEC as soon as practicable after the
Closing, but in no event later than the Filing Date, an offer to exchange (the
"Exchange Offer") any and all of the Registrable Notes (other than the Private
Exchange Notes, if any) for a like aggregate principal amount of debt securities
of the Issuers which are identical to the Notes (the "Exchange Notes") (and
which are entitled to the benefits of the Indenture or a trust indenture which
is substantially identical to the Indenture in all material respects (other than
such changes to the Indenture or any such identical trust indenture as are
necessary to comply with any requirements of the SEC to effect or maintain the
qualification thereof under the TIA) and which, in either case, has been
qualified under the TIA), except that the Exchange Notes (other than the Private
Exchange Notes, if any) shall have been registered pursuant to an effective
Registration Statement under the Securities Act and will not contain terms with
respect to transfer restrictions. The Exchange Offer will be registered under
the Securities Act on the appropriate form (the "Exchange Registration
Statement") and will comply with all applicable tender offer rules and
regulations under the Exchange Act. Each of the Guarantor and the Issuers
agrees to use its reasonable best efforts to (x) cause the Exchange Registration
Statement to become effective under the Securities Act on or before the
Effectiveness Date; (y) keep the Exchange Offer open for at least 20 business
days (or longer if required by applicable law) after the date that notice of the
Exchange Offer is mailed to Holders; and (z) consummate the Exchange Offer on or
prior to the 180th day following the Issue Date. If after such Exchange
Registration Statement is initially declared effective by the SEC, the Exchange
Offer or the issuance of the Exchange Notes thereunder is interfered with by any
stop order, injunction or other order or requirement of the SEC or any other
governmental agency or court, such Exchange Registration Statement shall be
deemed not to have become effective for purposes of this Agreement. Each Holder
who participates in the Exchange Offer will be required to represent that any
Exchange Notes received by it will be acquired in the ordinary course of its
business, that at the time of the consummation of the Exchange Offer such Holder
will have no arrangement or understanding with any Per-
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son to participate in the distribution of the Exchange Notes in violation of the
provisions of the Securities Act, that such Holder is not an affiliate of any of
the Issuers, the Guarantor or their subsidiaries within the meaning of Rule 405
promulgated under the Securities Act or if it is such an affiliate, that it will
comply with the registration and prospectus delivery requirements of the
Securities Act, to the extent applicable and that it is not acting on behalf of
any Person who could not truthfully make the foregoing representations. Upon
consummation of the Exchange Offer in accordance with this Section 2, the
provisions of this Agreement shall continue to apply, mutatis mutandis, solely
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with respect to Registrable Notes that are Private Exchange Notes and Exchange
Notes held by Participating Broker-Dealers, and the Issuers and the Guarantor
shall have no further obligation to register Registrable Notes (other than
Private Exchange Notes and Exchange Notes held by Participating Broker-Dealers)
pursuant to Section 3 of this Agreement.
(b) The Issuers and the Guarantor shall include within the Prospectus
contained in the Exchange Registration Statement a section entitled "Plan of
Distribution," reasonably acceptable to the Initial Purchaser, which shall
contain a summary statement of the positions taken or policies made by the staff
of the SEC with respect to the potential "underwriter" status of any broker-
dealer that is the beneficial owner (as defined in Rule 13d-3 promulgated under
the Exchange Act) of Exchange Notes received by such broker-dealer in the
Exchange Offer (a "Participating Broker-Dealer"), whether such positions or
policies have been publicly disseminated by the staff of the SEC or such
positions or policies, in the reasonable judgment of the Initial Purchaser,
represent the prevailing views of the staff of the SEC. Such "Plan of
Distribution" section shall also allow the use of the Prospectus by all Persons
subject to the prospectus delivery requirements of the Securities Act, including
all Participating Broker-Dealers, and include a statement describing the means
by which Participating Broker-Dealers may resell the Exchange Notes.
Each of the Guarantor and the Issuers shall use its reasonable best efforts
to keep the Exchange Registration Statement effective and to amend and
supplement the Prospectus contained therein, in order to permit such Prospectus
to be lawfully delivered by all Persons subject to the prospectus delivery
requirements of the Securities Act for such period of time as such Persons must
comply with such requirements in order to resell the Exchange Notes, provided
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that such period shall not exceed 180 days (or such longer period if extended
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pursuant to the last paragraph of Section 5) (the "Applicable Period").
If, upon consummation of the Exchange Offer, the Initial Purchaser holds
any Discount Notes acquired by it and having, or which are reasonably likely to
be determined to have, the status as an unsold allotment in the initial
distribution, the Issuers and the Guarantor upon the request of the Initial
Purchaser shall, simultaneously with the delivery of the Exchange Notes in the
Exchange Offer, issue and deliver to the Initial Purchaser, in exchange (the
"Private Exchange") for the Discount Notes held by the Initial Purchaser, a like
principal amount of debt securities of the Issuers that are identical in all
material respects to the Exchange Notes (the "Private Exchange Notes") (and
which are issued pursuant to the same indenture as the Exchange Notes) except
for the placement of a restrictive legend on the Private Exchange Notes. If
possible, the Private Exchange Notes shall bear the same CUSIP number as the
Exchange Notes. Interest on the Exchange Notes and Private Exchange Notes will
accrue from the last interest payment date on which interest was paid on the
Discount Notes surrendered in exchange therefor or, if no interest has been paid
on the Discount Notes, from the Issue Date.
In connection with the Exchange Offer, the Issuers and the Guarantor shall:
(i) mail to each Holder a copy of the Prospectus forming part of
the Exchange Registration Statement, together with an appropriate letter
of transmittal and related documents;
(ii) utilize the services of a depositary for the Exchange Offer
with an address in the Borough of Manhattan, The City of New York which
may be the Trustee or an affiliate thereof; and
(iii) permit Holders to withdraw tendered Discount Notes at any
time prior to the close of business, New York time, on the last business
day on which the Exchange Offer shall remain open.
As soon as practicable after the close of the Exchange Offer or the Private
Exchange, as the case may be, the Issuers and the Guarantor shall:
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(i) accept for exchange all Discount Notes tendered and not
validly withdrawn pursuant to the Exchange Offer or the Private
Exchange;
(ii) deliver to the Trustee for cancellation all Discount Notes
so accepted for exchange; and
(iii) cause the Trustee to authenticate and deliver promptly to
each Holder of Discount Notes, Exchange Notes or Private Exchange Notes,
as the case may be, equal in principal amount to the Discount Notes of
such Holder so accepted for exchange.
The Exchange Notes and the Private Exchange Notes may be issued under (i)
the Indenture or (ii) an indenture substantially identical to the Indenture,
which in either event will provide that (1) the Exchange Notes will not be
subject to the transfer restrictions set forth in the Indenture and (2) the
Private Exchange Notes will be subject to the transfer restrictions set forth in
the Indenture. The Indenture or such indenture shall provide that the Exchange
Notes, the Private Exchange Discount Notes and the Discount Notes will vote and
consent together on all matters as one class and that neither the Exchange
Notes, the Private Exchange Notes nor the Discount Notes will have the right to
vote or consent as a separate class on any matter.
(c) If (1) prior to the consummation of the Exchange Offer, the
Issuers and the Guarantor or Holders of at least a majority in aggregate
principal amount of the Registrable Notes reasonably determine in good faith
that (i) the Exchange Notes would not, upon receipt, be tradable by such Holders
which are not affiliates (within the meaning of the Securities Act) of the
Issuers and the Guarantor without restriction under the Securities Act and
without restrictions under applicable state securities laws, (ii) the interests
of the Holders under this Agreement would be adversely affected by the
consummation of the Exchange Offer or (iii) after conferring with counsel, the
SEC is unlikely to permit the commencement of the Exchange Offer prior to the
Effectiveness Date, (2) subsequent to the consummation of the Private Exchange,
any holder of the Private Exchange Notes so requests or (3) the Exchange Offer
is commenced and not consummated within 180 days of the Issue Date, then the
Issuers and the Guarantor shall promptly deliver to the Holders and the Trustee
written notice thereof (the "Shelf Notice") and shall file an Initial Shelf
Registration pursuant to Section 3. Following the delivery of a Shelf Notice to
the Holders of Registrable Notes (in the circumstances contemplated
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by clauses (1) and (3) of the preceding sentence), the Issuers and the Guarantor
shall not have any further obligation to conduct the Exchange Offer or the
Private Exchange under this Section 2.
(d) As a condition to its participation in the Exchange Offer pursuant
to the terms of this Agreement, each Holder represents and warrants to the
Issuers and the Guarantor that, (A) it is not an affiliate of the Issuers and
the Guarantor, (B) it is not engaged in, and does not intend to engage in, and
has no arrangement or understanding with any Person to participate in, a
distribution of the Exchange Notes to be issued in the Exchange Offer, and (C)
it is acquiring the Exchange Notes in its ordinary course of business. Each
Holder hereby acknowledges and agrees that any Participating Broker-Dealer and
any Holder using the Exchange Offer to participate in a distribution of Exchange
Notes (1) could not under SEC policy as in effect on the date of this Agreement
rely on the position of the SEC enunciated in Morgan Stanley and Co., Inc.
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(available June 5, 1991) and Exxon Capital Holdings Corporation (available May
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13, 1988)], as interpreted in the SEC's letter to Shearman & Sterling dated July
2, 1993, and similar no-action letters, and (2) must comply with the
registration and prospectus delivery requirements of the Securities Act in
connection with a secondary resale transaction and that such a secondary resale
transaction must be covered by an effective registration statement containing
the selling security holder information required by Item 507 or 508, as
applicable, of Regulation S-K if the resales are of Discount Notes obtained by
such Holder in exchange for Discount Notes acquired by such Holder directly from
the Issuers and the Guarantor or an affiliate thereof.
3. Shelf Registration
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If a Shelf Notice is delivered as contemplated by Section 2(c), then:
(a) Initial Shelf Registration. The Issuers and the Guarantor shall
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prepare and file with the SEC a Registration Statement for an offering to be
made on a continuous basis pursuant to Rule 415 covering all of the Registrable
Notes (the "Initial Shelf Registration"). If the Issuers and the Guarantor
shall have not yet filed an Exchange Registration Statement, the Issuers shall
use their best efforts to file with the SEC the Initial Shelf Registration on or
prior to the Filing Date. In any other instance, the Issuers and the Guarantor
shall use their reasonable best efforts to file with the SEC
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the Initial Shelf Registration within 30 days of the delivery of the Shelf
Notice. The Initial Shelf Registration shall be on Form S-1 or another
appropriate form permitting registration of such Registrable Notes for resale by
such Holders in the manner or manners designated by them (including, without
limitation, one or more underwritten offerings). The Issuers and the Guarantor
shall not permit any securities other than the Registrable Notes to be included
in the Initial Shelf Registration or any Subsequent Shelf Registration (as
defined below). The Issuers and the Guarantor shall use their reasonable best
efforts to cause the Initial Shelf Registration to be declared effective under
the Securities Act, if an Exchange Registration Statement has not yet been
declared effective, on or prior to the Effectiveness Date, or, in any other
instance, as soon as practicable thereafter and in no event later than 45 days
after filing of the Initial Shelf Registration, and to keep the Initial Shelf
Registration continuously effective under the Securities Act until the date
which is 24 months from the date on which such Initial Shelf Registration is
declared effective (subject to extension pursuant to the last paragraph of
Section 5 hereof), or such shorter period ending when (i) all Registrable Notes
covered by the Initial Shelf Registration have been sold in the manner set forth
and as contemplated in the Initial Shelf Registration or (ii) a Subsequent Shelf
Registration covering all of the Registrable Notes has been declared effective
under the Securities Act (the "Effectiveness Period").
(b) Subsequent Shelf Registrations. If the Initial Shelf
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Registration or any Subsequent Shelf Registration ceases to be effective for any
reason at any time during the Effectiveness Period (other than because of the
sale of all the securities registered thereunder), the Issuers and the Guarantor
shall use their reasonable best efforts to obtain the prompt withdrawal of any
order suspending the effectiveness thereof, and in any event shall within 45
days of such cessation of effectiveness amend the Shelf Registration in a manner
reasonably expected to obtain the withdrawal of the order suspending the
effectiveness thereof, or file an additional "shelf" Registration Statement
pursuant to Rule 415 covering all of the Registrable Notes (a "Subsequent Shelf
Registration"). If a Subsequent Shelf Registration is filed, the Issuers and
the Guarantor shall use their reasonable best efforts to cause the Subsequent
Shelf Registration to be declared effective as soon as practicable after such
filing and to keep such Registration Statement continuously effective for a
period equal to the number of days in the Effectiveness Period less the
aggregate number of days during which the Initial Shelf Registration or any
Subsequent Shelf Registration was previously continuously effective.
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As used herein the term "Shelf Registration" means the Initial Shelf
Registration and any Subsequent Shelf Registration.
(c) Supplements and Amendments. The Issuers and the Guarantor shall
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promptly supplement and amend the Shelf Registration if required by the rules,
regulations or instructions applicable to the registration form used for such
Shelf Registration, if required by the Securities Act, or if requested by the
Holders of a majority in aggregate principal amount of the Registrable Notes
covered by such Registration Statement or by any underwriter(s) of such
Registrable Notes.
4 Additional Interest
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(a) The Issuers, the Guarantor and the Initial Purchaser agree that
the Holders of Registrable Notes will suffer damages if the Issuers and the
Guarantor fail to fulfill their obligations under Section 2 or Section 3 hereof
and that it would not be feasible to ascertain the extent of such damages with
precision. Accordingly, the Issuers and the Guarantor agree to pay additional
interest on the Discount Notes ("Additional Interest") under the circumstances
and to the extent set forth below:
(i) if the Exchange Registration Statement has not been filed
on or prior to the Filing Date;
(ii) if the Exchange Registration Statement has not been
declared effective on or prior to the Effectiveness Date;
(iii) if an Initial Shelf Registration required by Section 2(c)
has not been filed on or prior to the date required by Section 3(a);
(iv) if an Initial Shelf Registration required by Section 2(c)
has not been declared effective on or prior to the date required by
Section 3(a); and/or
(v) if (A) the Issuers have not exchanged the Exchange Notes
for all Discount Notes validly tendered in accordance with the terms of
the Exchange Offer on or prior to 180 days after the Issue Date or (B)
the Exchange Registration Statement ceases to be effective at any time
prior to the time that the Exchange Offer is consummated or (C) if
applicable, the Shelf Registration has been de-
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clared effective and such Shelf Registration ceases to be effective at
any time during the Effectiveness Period;
(each such event referred to in clauses (i) through (v) above is a "Registration
Default"), the sole remedy available to Holders of the Discount Notes will be
the payment as liquidated damages of Additional Interest equal to 0.50% per
annum of the average Accreted Value of the Discount Notes for the first 90 days
during which any such default exists, and the Additional Interest will be
increased by an additional 0.25% per annum of the average Accreted Value of the
Discount Notes for each subsequent 90-day period that any such Additional
Interest continues to accrue; provided that in no event shall the rate at which
the Additional Interest accrues be more than 2.0%, provided, however, that only
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Holders of Private Exchange Notes shall be entitled to receive Additional
Interest as a result of a Registration Default pursuant to clause (iii) or (iv),
provided, further, that (1) upon the filing of the Exchange Registration
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Statement or the Initial Shelf Registration (in the case of (i) above), (2) upon
the effectiveness of the Exchange Registration Statement or a Shelf Registration
(in the case of (ii) above), (3) upon the filing of the Shelf Registration (in
the case of (iii) above), (4) upon the effectiveness of the Shelf Registration
(in the case of (iv) above), or (5) upon the exchange of Exchange Notes for all
Discount Notes tendered (in the case of (v)(A) above), or upon the effectiveness
of the Exchange Registration Statement which had ceased to remain effective (in
the case of (v)(B) above), or upon the effectiveness of the Shelf Registration
which had ceased to remain effective (in the case of (v)(C) above), Additional
Interest on the Discount Notes as a result of such clause (i), (ii), (iii), (iv)
or (v) (or the relevant subclause thereof), as the case may be, shall cease to
accrue and the interest rate on the Discount Notes will revert to the interest
rate originally borne by the Discount Notes.
(b) The Issuers and the Guarantor shall notify the Trustee within one
business day after each and every date on which an event occurs in respect of
which Additional Interest is required to be paid (an "Event Date"). Any amounts
of Additional Interest due pursuant to (a) of this Section 4 will be payable in
cash semi-annually on each February 15 and August 15 (to the Holders of record
on the February 1 and August 1 immediately preceding such dates), commencing
with the first such date occurring after any such Additional Interest commences
to accrue and until such Registration Default is cured, by depositing with the
Trustee, in trust for the benefit of such Holders, immediately available funds
in sums sufficient to pay such
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Additional Interest. The amount of Additional Interest will be determined by
multiplying the applicable Additional Interest rate by the principal amount of
the Registrable Notes, multiplied by a fraction, the numerator of which is the
number of days such Additional Interest rate was applicable during such period
(determined on the basis of a 360-day year comprised of twelve 30-day months
and, in the case of a partial month, the actual number of days elapsed), and the
denominator of which is 360.
5. Registration Procedures
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In connection with the filing of any Registration Statement pursuant to
Section 2 or 3 hereof, the Issuers and the Guarantor shall effect such
registrations to permit the sale of the securities covered thereby in accordance
with the intended method or methods of disposition thereof, and pursuant thereto
the Issuers and the Guarantor shall:
(a) Prepare and file with the SEC, prior to the Filing Date,
a Registration Statement or Registration Statements as prescribed by
Section 2 or 3, and use their reasonable best efforts to cause each such
Registration Statement to become effective and remain effective as
provided herein, provided that, if (1) such filing is pursuant to
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Section 3, or (2) a Prospectus contained in an Exchange Registration
Statement filed pursuant to Section 2 is required to be delivered under
the Securities Act by any Participating Broker-Dealer who seeks to sell
Exchange Notes during the Applicable Period, before filing any
Registration Statement or Prospectus or any amendments or supplements
thereto, the Issuers and the Guarantor shall, if requested, furnish to
and afford the Holders of the Registrable Notes covered by such
Registration Statement and each such Participating Broker-Dealer, as the
case may be, their counsel and the managing underwriter(s), if any, a
reasonable opportunity to review copies of all such documents (including
copies of any documents to be incorporated by reference therein and all
exhibits thereto) proposed to be filed (at least 5 business days prior
to such filing). The Issuers and the Guarantor shall not file any
Registration Statement or Prospectus or any amendments or supplements
thereto in respect of which the Holders must be afforded an opportunity
to review prior to the filing of such document, if the Holders of a
majority in aggregate principal amount of the Registrable Notes covered
by such Registration Statement, or such Participating Broker-Dealer, as
the case may be, their counsel,
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or the managing underwriter(s), if any, shall reasonably object.
(b) Prepare and file with the SEC such amendments and post-
effective amendments to each Shelf Registration or Exchange Registration
Statement, as the case may be, as may be necessary to keep such
Registration Statement continuously effective for the Effectiveness
Period or the Applicable Period, as the case may be; cause the related
Prospectus to be supplemented by any prospectus supplement required by
applicable law, and as so supplemented to be filed pursuant to Rule 424
(or any similar provisions then in force) under the Securities Act; and
comply with the provisions of both the Securities Act and the Exchange
Act, and the rules and regulations of the SEC thereunder, applicable to
them with respect to the disposition of all securities covered by such
Registration Statement as so amended or in such Prospectus as so
supplemented and with respect to the subsequent resale of any securities
being sold by a Participating Broker-Dealer covered by any such
Prospectus; the Issuers and the Guarantor shall be deemed not to have
used their reasonable best efforts to keep a Registration Statement
effective during the Applicable Period if any of them voluntarily takes
any action that would result in selling Holders of the Registrable Notes
covered thereby or Participating Broker-Dealers seeking to sell Exchange
Notes not being able to sell such Registrable Notes or such Exchange
Notes during that period unless such action is required by applicable
law or unless the Issuers and the Guarantor comply with this Agreement,
including without limitation, the provisions of clause 5(c)(v) below.
(c) If (1) a Shelf Registration is filed pursuant to Section
3, or (2) a Prospectus contained in an Exchange Registration Statement
filed pursuant to Section 2 is required to be delivered under the
Securities Act by any Participating Broker-Dealer who seeks to sell
Exchange Notes during the Applicable Period, notify the selling Holders
of Registrable Notes, or each such Participating Broker-Dealer, as the
case may be, their counsel and the managing underwriter(s), if any,
promptly (but in any event within two business days), and confirm such
notice in writing, (i) when a Prospectus or any prospectus supplement or
post-effective amendment thereto has been filed, and, with respect to a
Registration Statement or any post-effective amendment thereto, when the
same has become effective under the Securities Act (including in
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such notice a written statement that any Holder may, upon request,
obtain, without charge, one conformed copy of such Registration
Statement or post-effective amendment thereto including financial
statements and schedules, documents incorporated or deemed to be
incorporated by reference and exhibits), (ii) of the issuance by the SEC
of any stop order suspending the effectiveness of a Registration
Statement or of any order preventing or suspending the use of any
preliminary Prospectus or the initiation of any proceedings for that
purpose, (iii) if at any time when a Prospectus is required by the
Securities Act to be delivered in connection with sales of the
Registrable Notes or resales of Exchange Notes by Participating Broker-
Dealers the representations and warranties of the Issuers and the
Guarantor contained in any agreement (including any underwriting
agreement) contemplated by Section 5(n) below cease to be true and
correct, (iv) of the receipt by the Issuers and the Guarantor of any
notification with respect to the suspension of the qualification or
exemption from qualification of a Registration Statement or any of the
Registrable Notes or the Exchange Notes to be sold by any Participating
Broker-Dealer for offer or sale in any jurisdiction, or the initiation
or threatening of any proceeding for such purpose, (v) of the happening
of any event or any information becoming known that makes any statement
made in such Registration Statement or related Prospectus or any
document incorporated or deemed to be incorporated therein by reference
untrue in any material respect or that requires the making of any
changes in, or amendments or supplements to, such Registration
Statement, Prospectus or documents so that, in the case of the
Registration Statement, it will not contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading, and
that in the case of the Prospectus, it will not contain any untrue
statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading,
and (vi) of the Issuers' and the Guarantor's reasonable determination
that a post-effective amendment to a Registration Statement would be
appropriate.
(d) If (1) a Shelf Registration is filed pursuant to Section
3, or (2) a Prospectus contained in an Exchange Registration Statement
filed pursuant to Section 2 is required to be delivered under the
Securities Act by any
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Participating Broker-Dealer who seeks to sell Exchange Notes during the
Applicable Period, use their reasonable best efforts to prevent the
issuance of any order suspending the effectiveness of a Registration
Statement or of any order preventing or suspending the use of a
Prospectus or suspending the qualification (or exemption from
qualification) of any of the Registrable Notes or the Exchange Notes to
be sold by any Participating Broker-Dealer, for sale in any
jurisdiction, and, if any such order is issued, to use their reasonable
best efforts to obtain the withdrawal of any such order at the earliest
possible moment.
(e) If a Shelf Registration is filed pursuant to Section 3
and if requested by the managing underwriter(s), if any, or the Holders
of a majority in aggregate principal amount of the Registrable Notes
being sold in connection with an underwritten offering, (i) promptly
incorporate in a Prospectus supplement or post-effective amendment such
information as the managing underwriter(s), if any, or such Holders
reasonably request to be included therein and (ii) make all required
filings of such Prospectus supplement or such post-effective amendment
as soon as practicable after the Issuers and the Guarantor have received
notification of the matters to be incorporated in such Prospectus
supplement or post-effective amendment.
(f) If (1) a Shelf Registration is filed pursuant to Section
3, or (2) a Prospectus contained in an Exchange Registration Statement
filed pursuant to Section 2 is required to be delivered under the
Securities Act by any Participating Broker-Dealer who seeks to sell
Exchange Notes during the Applicable Period, furnish to each selling
Holder of Registrable Notes who so requests and to each such
Participating Broker-Dealer who so requests and to counsel and the
managing underwriter(s), if any, without charge, one conformed copy of
the Registration Statement or Registration Statements and each post-
effective amendment thereto, including financial statements and
schedules, and, if requested, all documents incorporated or deemed to be
incorporated therein by reference and all exhibits.
(g) If (1) a Shelf Registration is filed pursuant to Section
3, or (2) a Prospectus contained in an Exchange Registration Statement
filed pursuant to Section 2 is required to be delivered under the
Securities Act by any
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Participating Broker-Dealer who seeks to sell Exchange Notes during the
Applicable Period, deliver to each selling Holder of Registrable Notes,
or each such Participating Broker-Dealer, as the case may be, their
counsel, and the managing underwriter or underwriters, if any, without
charge, as many copies of the Prospectus or Prospectuses (including each
form of preliminary Prospectus) and each amendment or supplement thereto
and any documents incorporated by reference therein as such Persons may
reasonably request; and, subject to the last paragraph of this Section
5, the Issuers and the Guarantor hereby consent to the use of such
Prospectus and each amendment or supplement thereto by each of the
selling Holders of Registrable Notes or each such Participating Broker-
Dealer, as the case may be, and the managing underwriter or underwriters
or agents, if any, and dealers (if any), in connection with the offering
and sale of the Registrable Notes covered by, or the sale by
Participating Broker-Dealers of the Exchange Notes pursuant to, such
Prospectus and any amendment or supplement thereto.
(h) Prior to any public offering of Registrable Notes or any
delivery of a Prospectus contained in the Exchange Registration
Statement by any Participating Broker-Dealer who seeks to sell Exchange
Notes during the Applicable Period, to use their reasonable best efforts
to register or qualify, and to cooperate with the selling Holders of
Registrable Notes or each such Participating Broker-Dealer, as the case
may be, the managing underwriter or underwriters, if any, and their
respective counsel in connection with the registration or qualification
of (or exemption from such registration or qualification), such
Registrable Notes for offer and sale under the securities or Blue Sky
laws of such jurisdictions within the United States as any selling
Holder, Participating Broker-Dealer, or the managing underwriter or
underwriters, if any, reasonably request in writing, provided that where
--------
Exchange Notes held by Participating Broker-Dealers or Registrable Notes
are offered other than through an underwritten offering, the Issuers and
the Guarantor agree to cause their counsel to perform Blue Sky
investigations and file registrations and qualifications required to be
filed pursuant to this Section 5(h); keep each such registration or
qualification (or exemption therefrom) effective during the period such
Registration Statement is required to be kept effective and do any and
all other acts or things reasonably necessary or advisable to enable the
disposition in such jurisdictions of the Exchange Notes held by
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Participating Broker-Dealers or the Registrable Notes covered by the
applicable Registration Statement; provided that the Issuers and
--------
the Guarantor shall not be required to (A) qualify generally to do
business in any jurisdiction where it is not then so qualified, (B) take
any action that would subject it to general service of process in any
such jurisdiction where it is not then so subject or (C) subject itself
to taxation in excess of a nominal dollar amount in any such
jurisdiction.
(i) If a Shelf Registration is filed pursuant to Section 3,
cooperate with the selling Holders of Registrable Notes and the managing
underwriter or underwriters, if any, to facilitate the timely
preparation and delivery of certificates representing Registrable Notes
to be sold, which certificates shall not bear any restrictive legends
and shall be in a form eligible for deposit with The Depository Trust
Company; and enable such Registrable Notes to be in such denominations
and registered in such names as the managing underwriter or
underwriters, if any, or Holders may reasonably request.
(j) Use their reasonable best efforts to cause the
Registrable Notes covered by the Registration Statement to be registered
with or approved by such other governmental agencies or authorities as
may be necessary to enable the seller or sellers thereof or the managing
underwriter or underwriters, if any, to consummate the disposition of
such Registrable Notes, except as may be required solely as a
consequence of the nature of such selling Holder's business, in which
case the Issuers and the Guarantor will cooperate in all reasonable
respects with the filing of such Registration Statement and the granting
of such approvals.
(k) If (1) a Shelf Registration is filed pursuant to Section
3, or (2) a Prospectus contained in an Exchange Registration Statement
filed pursuant to Section 2 is required to be delivered under the
Securities Act by any Participating Broker-Dealer who seeks to sell
Exchange Notes during the Applicable Period, upon the occurrence of any
event contemplated by paragraph 5(c)(v) or 5(c)(vi), as promptly as
reasonably practicable prepare and (subject to Section 5(a)) file with
the SEC, at the expense of the Issuers and the Guarantor, a supplement
or post-effective amendment to the Registration Statement or a
supplement to the related Prospectus or any document incorporated or
deemed to be incorporated therein by reference, or file
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any other required document so that, as thereafter delivered to the
purchasers of the Registrable Notes being sold thereunder or to the
purchasers of the Exchange Notes to whom such Prospectus will be
delivered by a Participating Broker-Dealer, any such Prospectus will not
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading.
(l) Use their reasonable best efforts to cause the
Registrable Notes covered by a Registration Statement or the Exchange
Notes, as the case may be, to be rated with the appropriate rating
agencies, if so requested by the Holders of a majority in aggregate
principal amount of Registrable Notes covered by such Registration
Statement or the Exchange Notes, as the case may be, or the managing
underwriter or underwriters, if any.
(m) Prior to the effective date of the first Registration
Statement relating to the Registrable Notes, (i) provide the Trustee
with certificates for the Registrable Notes or Exchange Notes, as the
case may be, in a form eligible for deposit with The Depository Trust
Company and (ii) provide a CUSIP number for the Registrable Notes or
Exchange Notes, as the case may be.
(n) In connection with an underwritten offering of
Registrable Notes pursuant to a Shelf Registration, enter into an
underwriting agreement as is customary in underwritten offerings of debt
securities similar to the Discount Notes and take all such other actions
as are reasonably requested by the managing underwriter(s), if any, in
order to expedite or facilitate the registration or the disposition of
such Registrable Notes, and in such connection, (i) to the extent
possible, make such representations and warranties to the managing
underwriter or underwriters on behalf of any underwriters, with respect
to the business of the Issuers, the Guarantor and their subsidiaries and
the Registration Statement, Prospectus and documents, if any,
incorporated or deemed to be incorporated by reference therein, in each
case, as are customarily made by issuers to underwriters in underwritten
offerings of debt securities similar to the Discount Notes, and confirm
the same if and when requested; (ii) obtain opinions of counsel to the
Issuers and the Guarantor and updates thereof in form and substance
reasonably satisfactory to the managing underwriter or underwriters,
addressed to the
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managing underwriter or underwriters covering the matters customarily
covered in opinions requested in underwritten offerings of debt
securities similar to the Discount Notes and such other matters as may
be reasonably requested by the managing underwriter(s); (iii) obtain
"cold comfort" letters and updates thereof in form and substance
reasonably satisfactory to the managing underwriter or underwriters from
the independent certified public accountants of the Issuers and the
Guarantor (and, if necessary, any other independent certified public
accountants of any subsidiary of any of the Issuers and the Guarantor or
of any business acquired by the Issuers or the Guarantor for which
financial statements and financial data are, or are required to be,
included in the Registration Statement), addressed to the managing
underwriter or underwriters on behalf of any underwriters, such letters
to be in customary form and covering matters of the type customarily
covered in "cold comfort" letters in connection with underwritten
offerings of debt securities similar to the Discount Notes and such
other matters as may be reasonably requested by the managing underwriter
or underwriters; and (iv) if an underwriting agreement is entered into,
the same shall contain indemnification provisions and procedures no less
favorable than those set forth in Section 7 hereof (or such other
provisions and procedures acceptable to Holders of a majority in
aggregate principal amount of Registrable Notes covered by such
Registration Statement and the managing underwriter or underwriters or
agents) with respect to all parties to be indemnified pursuant to said
Section. The above shall be done at each closing under such underwriting
agreement, or as and to the extent required thereunder.
(o) If (1) a Shelf Registration is filed pursuant to Section
3, or (2) a Prospectus contained in an Exchange Registration Statement
filed pursuant to Section 2 is required to be delivered under the
Securities Act by any Participating Broker-Dealer who seeks to sell
Exchange Notes during the Applicable Period, make available for
inspection by any selling Holder of such Registrable Notes being sold,
or each such Participating Broker-Dealer, as the case may be, the
managing underwriter or underwriters participating in any such
disposition of Registrable Notes, if any, and any attorney, accountant
or other agent retained by any such selling Holder or each such
Participating Broker-Dealer, as the case may be (collectively, the
"Inspectors"), at the offices where normally kept, during reasonable
business hours, all financial and other
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records, pertinent corporate documents and properties of the Issuers,
the Guarantor and their respective subsidiaries (collectively, the
"Records") as shall be reasonably necessary to enable them to exercise
any applicable due diligence responsibilities, and cause the officers,
directors and employees of the Issuers, the Guarantor and their
respective subsidiaries to supply all information in each case
reasonably requested by any such Inspector in connection with such
Registration Statement. Records which the Issuers and the Guarantor
determine, in good faith, to be confidential and any Records which they
notify the Inspectors are confidential shall not be disclosed by the
Inspectors unless (i) the disclosure of such Records is necessary to
avoid or correct a material misstatement or material omission in such
Registration Statement, (ii) the release of such Records is ordered
pursuant to a subpoena or other order from a court of competent
jurisdiction or (iii) the information in such Records has been made
generally available to the public. Each selling Holder of such
Registrable Notes and each such Participating Broker-Dealer or
underwriter will be required to agree that information obtained by it as
a result of such inspections shall be deemed confidential and shall not
be used by it as the basis for any market transactions in the securities
of the Issuers and the Guarantor or for any purpose other than in
connection with such Registration Statement unless and until such is
made generally available to the public. Each selling Holder of such
Registrable Notes and each such Participating Broker-Dealer will be
required to further agree that it will, upon learning that disclosure of
such Records is sought in a court of competent jurisdiction, give prompt
notice to the Issuers and the Guarantor and allow the Issuers and the
Guarantor to undertake appropriate action to prevent disclosure of the
Records deemed confidential at their expense.
(p) Provide an indenture trustee for the Registrable Notes or
the Exchange Notes, as the case may be, and cause the Indenture or the
trust indenture provided for in Section 2(a), as the case may be, to be
qualified under the TIA not later than the effective date of the
Exchange Registration Statement or the first Registration Statement
relating to the Registrable Notes; and in connection therewith,
cooperate with the trustee under any such indenture and the Holders of
the Registrable Notes, to effect such changes to such indenture as may
be required for such indenture to be so qualified in accordance with the
terms of the TIA; and execute, and use their reasonable
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best efforts to cause such 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 such indenture to be so
qualified in a timely manner.
(q) Comply with all applicable rules and regulations of the
SEC and make generally available to its securityholders earnings
statements satisfying the provisions of Section 11(a) of the Securities
Act and Rule 158 thereunder (or any similar rule promulgated under the
Securities Act) no later than 45 days after the end of any 12-month
period (or 90 days after the end of any 12-month period if such period
is a fiscal year) (i) commencing at the end of any fiscal quarter in
which Registrable Notes are sold to underwriters in a firm commitment or
best efforts underwritten offering and (ii) if not sold to underwriters
in such an offering, commencing on the first day of the first fiscal
quarter of the Issuers and the Guarantor after the effective date of a
Registration Statement, which statements shall cover said 12-month
periods.
(r) Upon consummation of an Exchange Offer or a Private
Exchange, obtain an opinion or opinions of counsel to the Issuers and
the Guarantor, in a form customary for underwritten offerings of debt
securities similar to the Discount Notes, addressed to the Trustee for
the benefit of all Holders of Registrable Notes participating in the
Exchange Offer or the Private Exchange, as the case may be, and which
includes an opinion that (i) the Issuers and the Guarantor have duly
authorized, executed and delivered the Exchange Notes and Private
Exchange Notes and the related indenture and (ii) each of the Exchange
Notes or the Private Exchange Notes, as the case may be, and related
indenture constitutes a legal, valid and binding obligation of the
Issuers and the Guarantor, enforceable against the Issuers and the
Guarantor in accordance with its respective terms (with customary
exceptions).
(s) If an Exchange Offer or a Private Exchange is to be
consummated, upon delivery of the Registrable Notes by Holders to the
Issuers and the Guarantor (or to such other Person as directed by the
Issuers and the Guarantor) in exchange for the Exchange Notes or the
Private Exchange Notes, as the case may be, the Issuers and the
Guarantor shall mark, or cause to be marked, on such Registrable Notes
that such Registrable Notes are being canceled in exchange for the
Exchange Notes or the Private Exchange
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Notes, as the case may be; and, in no event shall such Registrable Notes
be marked as paid or otherwise satisfied.
(t) Cooperate with each seller of Registrable Notes covered
by any Registration Statement and the managing underwriter(s), if any,
participating in the disposition of such Registrable Notes and their
respective counsel in connection with any filings required to be made
with the National Association of Securities Dealers, Inc. (the "NASD").
(u) Use their reasonable best efforts to take all other
reasonable steps necessary to effect the registration of the Registrable
Notes covered by a Registration Statement contemplated hereby.
The Issuers and the Guarantor may require each seller of Registrable Notes
or Participating Broker-Dealer as to which any registration is being effected to
furnish to the Issuers and the Guarantor such information regarding such seller
or Participating Broker-Dealer and the distribution of such Registrable Notes or
Exchange Notes to be sold by such Participating Broker-Dealer, as the case may
be, as the Issuers and the Guarantor may, from time to time, reasonably request.
The Issuers and the Guarantor may exclude from such registration the Registrable
Notes of any seller or Participating Broker-Dealer who unreasonably fails to
furnish such information within a reasonable time after receiving such request.
Each seller as to which any Shelf Registration is being effected agrees to
furnish promptly to the Issuers and the Guarantor all information required to be
disclosed in order to make the information previously furnished to the Issuers
and the Guarantor by such seller not materially misleading.
Each Holder of Registrable Notes and each Participating Broker-Dealer
agrees by acquisition of such Registrable Notes or Exchange Notes to be sold by
such Participating Broker-Dealer, as the case may be, that, upon receipt of any
notice from the Issuers and the Guarantor of the happening of any event of the
kind described in Section 5(c)(ii), 5(c)(iv), 5(c)(v), or 5(c)(vi) hereof, such
Holder will forthwith discontinue disposition of such Registrable Notes covered
by such Registration Statement or Prospectus or Exchange Notes to be sold by
such Holder or Participating Broker-Dealer, as the case may be, until such
Holder's or Participating Broker-Dealer's receipt of the copies of the
supplemented or amended Prospectus contemplated by Section 5(k), or until it is
advised in writing
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(the "Advice") by the Issuers and the Guarantor that the use of the applicable
Prospectus may be resumed, and has received copies of any amendments or
supplements thereto. In the event the Issuers and the Guarantor shall give any
such notice, each of the Effectiveness Period and the Applicable Period shall be
extended by the number of days during such periods from and including the date
of the giving of such notice to and including the date when each seller of
Registrable Notes covered by such Registration Statement or Exchange Notes to be
sold by such Holder or Participating Broker-Dealer, as the case may be, shall
have received (x) the copies of the supplemented or amended Prospectus
contemplated by Section 5(k) or (y) the Advice.
6 Registration Expenses
---------------------
(a) All fees and expenses incident to the performance of or
compliance with this Agreement by the Issuers and the Guarantor shall be borne
by the Issuers and the Guarantor, whether or not the Exchange Offer or a Shelf
Registration is filed or becomes effective, including, without limitation, (i)
all registration and filing fees (including, without limitation, (A) fees with
respect to filings required to be made with the NASD in connection with an
underwritten offering and (B) fees and expenses of compliance with state
securities or Blue Sky laws (including, without limitation, reasonable fees and
disbursements of counsel in connection with Blue Sky qualifications of the
Registrable Notes or Exchange Notes and determination of the eligibility of the
Registrable Notes or Exchange Notes for investment under the laws of such
jurisdictions in the United States (x) where the Holders of Registrable Notes
are located, in the case of the Exchange Notes, or (y) as provided in Section
5(h), in the case of Registrable Notes or Exchange Notes to be sold by a
Participating Broker-Dealer during the Applicable Period)), (ii) printing
expenses (including, without limitation, expenses of printing certificates for
Registrable Notes or Exchange Notes in a form eligible for deposit with The
Depository Trust Company and of printing Prospectuses if the printing of
Prospectuses is reasonably requested by the managing underwriter or
underwriters, if any, or, in respect of Registrable Notes or Exchange Notes to
be sold by any Participating Broker-Dealer during the Applicable Period, by the
Holders of a majority in aggregate principal amount of the Registrable Notes
included in any Registration Statement or of such Exchange Notes, as the case
may be), (iii) messenger, telephone and delivery expenses, (iv) fees and
disbursements of counsel for the Issuers and the Guarantor and fees and
disbursements of one special counsel for the sellers of Registrable Notes
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(subject to the provisions of Section 6(b)), (v) fees and disbursements of all
independent certified public accountants referred to in Section 5(n)(iii)
(including, without limitation, the expenses of any special audit and "cold
comfort" letters required by or incident to such performance, but excluding fees
and expenses of counsel to the underwriters (other than fees and expenses set
forth in (i) above) or the Holders), (vi) rating agency fees, (vii) Securities
Act liability insurance, if the Issuers and the Guarantor desire such insurance,
(viii) fees and expenses of the Trustee, (ix) fees and expenses of all other
Persons retained by the Issuers and the Guarantor, (x) internal expenses of the
Issuers and the Guarantor (including, without limitation, all salaries and
expenses of officers and employees of the Issuers and the Guarantor performing
legal or accounting duties), (xi) the expense of any annual audit, (xii) the
fees and expenses incurred in connection with any listing of the securities to
be registered on any securities exchange, (xiii) the fees and disbursements of
underwriters, if any, customarily paid by issuers or sellers of securities (but
not including any underwriting discounts or commissions or transfer taxes, if
any, attributable to the sale of the Registrable Notes which discounts,
commissions or taxes shall be paid by Holders or such Registrable Notes) and
(xiv) the expenses relating to printing, word processing and distributing all
Registration Statements, underwriting agreements, securities sales agreements,
indentures and any other documents necessary in order to comply with this
Agreement.
(b) In connection with any Shelf Registration hereunder, the Issuers
and the Guarantor shall reimburse the Holders of the Registrable Notes being
registered in such registration for the reasonable fees and disbursements of not
more than one counsel (in addition to appropriate local counsel) chosen by the
Holders of a majority in aggregate principal amount of the Registrable Notes to
be included in such Registration Statement and other reasonable out-of-pocket
expenses of the Holders of Registrable Notes incurred in connection with the
registration of the Registrable Notes. The Issuers and the Guarantor shall not
have any obligation to pay any underwriting fees, discounts or commissions
attributable to the sale of Registrable Securities.
7. Indemnification
---------------
(a) The Guarantor and each of the Issuers, jointly and severally,
agree to indemnify and hold harmless each Holder of Registrable Notes and each
Participating Broker-Dealer selling Exchange Notes during the Applicable Period,
the officers
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and directors of each such Person, and each Person, if any, who controls any
such Person within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act (each, a "Participant"), from and against any and
all losses, claims, damages and liabilities (including, without limitation, the
reasonable legal fees and other expenses actually incurred in connection with
any suit, action or proceeding or any claim asserted) caused by, arising out of
or based upon any untrue statement or alleged untrue statement of a material
fact contained in any Registration Statement or Prospectus (as amended or
supplemented if the Issuers and the Guarantor shall have furnished any
amendments or supplements thereto) or any preliminary Prospectus, or caused by,
arising out of or based upon any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading, except insofar as such losses, claims, damages or liabilities are
caused by any untrue statement or omission or alleged untrue statement or
omission made in reliance upon and in conformity with information relating to
any Participant furnished to the Issuers and the Guarantor in writing by such
Participant expressly for use therein; provided that the foregoing indemnity
--------
with respect to any preliminary Prospectus shall not inure to the benefit of any
Participant (or to the benefit of an officer or director of such Participant or
any Person controlling such Participant) from whom the Person asserting any such
losses, claims, damages or liabilities purchased Registrable Notes or Exchange
Notes if such untrue statement or omission or alleged untrue statement or
omission made in such preliminary Prospectus is eliminated or remedied in the
related Prospectus (as amended or supplemented if the Issuers and the Guarantor
shall have furnished any amendments or supplements thereto) and a copy of the
related Prospectus (as so amended or supplemented) shall have been furnished to
such Participant at or prior to the sale of such Registrable or Exchange Notes,
as the case may be, to such Person.
(b) Each Participant will be required to agree, severally and not
jointly, to indemnify and hold harmless the Guarantor and each Issuer, their
directors and officers and each Person who controls any of the Issuer or the
Guarantor within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act to the same extent as the foregoing indemnity from the
Guarantor and each Issuer to each Participant, but only with reference to
information relating to such Participant furnished to the Guarantor and each
Issuer in writing by such Participant expressly for use in any Registration
Statement or Prospectus, any amendment or supplement thereto,
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or any preliminary Prospectus. The liability of any Participant under this
paragraph (b) shall in no event exceed the proceeds received by such Participant
from sales of Registrable Notes or Exchange Notes giving rise to such
obligations.
(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 indemnity may be sought pursuant to either
paragraph (a) or (b) of this Section 7, such Person (the "Indemnified Person")
shall promptly notify the Person against whom such indemnity may be sought (the
"Indemnifying Person") in writing, and the Indemnifying Person, upon request of
the Indemnified Person, shall retain one counsel reasonably satisfactory to the
Indemnified Person to represent the Indemnified Person and any others the
Indemnifying Person may reasonably designate in such proceeding and shall pay
the reasonable fees and expenses incurred by such counsel related to such
proceeding. 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 in writing to the contrary,
(ii) the Indemnifying Person has failed within a reasonable time to retain
counsel reasonably satisfactory to the Indemnified Person or (iii) the named
parties in any such proceeding (including any impleaded parties) include both
the Indemnifying Person and the Indemnified Person and such Indemnified Person
shall have been advised by counsel that there may be one or more legal defenses
available to it which are different from or additional to those available to any
such Indemnifying Person. It is understood that the Indemnifying Person shall
not, in connection with any proceeding or related proceeding in the same
jurisdiction, be liable for the fees and expenses of more than one separate law
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 for the Participants and such control Persons of Participants
shall be designated in writing by Participants who sold a majority in interest
of Registrable Notes and Exchange Notes sold by all such Participants and any
such separate firm for the Issuers, the Guarantor, their respective directors,
their respective officers and such control Persons of the Issuers and the
Guarantor shall be designated in writing by the Issuers and the Guarantor. The
Indemnifying Person shall not be liable for any settlement of any proceeding
effected without its prior written consent, but if settled with such consent or
if there be a final judgment for the plaintiff for which the Indemnified Person
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is entitled to indemnification pursuant to this Agreement, the Indemnifying
Person agrees to indemnify any 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 an
Indemnifying Person to reimburse the Indemnified Person for reasonable fees and
expenses incurred by counsel as contemplated by the third sentence of this
paragraph, the Indemnifying Person agrees that it shall be liable for any
settlement of any proceeding effected without its written consent if (i) such
settlement is entered into more than 60 days after receipt by such Indemnifying
Person of the aforesaid request and (ii) such Indemnifying Person shall not have
reimbursed the Indemnified Person in accordance with such request prior to the
date of such settlement; provided, however, that the Indemnifying Person shall
-------- -------
not be liable for any settlement effected without its consent pursuant to this
sentence if the Indemnifying Party is contesting, in good faith, the request for
reimbursement. No Indemnifying Person shall, without the prior 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 indemnity could have been sought hereunder by such Indemnified Person,
unless such settlement includes an unconditional release of such Indemnified
Person from all liability on claims that are the subject matter of such
proceeding.
(d) If the indemnification provided for in paragraphs (a) and (b) of
this Section 7 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 paragraphs, 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 in such proportion as is appropriate to reflect the relative fault
of the Issuers and the Guarantor on the one hand and the Participants 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 Issuers and the Guarantor on the one
hand and the Participants 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 Issuers and the Guarantor or by the Participants and
the parties' relative intent, knowledge, access to informa-
-29-
tion and opportunity to correct or prevent such statement or omission.
(e) The parties agree that it would not be just and equitable if
contribution pursuant to this Section 7 were determined by pro rata allocation
--- ----
(even if the Participants 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 the immediately preceding paragraph. The amount
paid or payable by an Indemnified Person as a result of the losses, claims,
damages and liabilities referred to in the immediately preceding paragraph shall
be deemed to include, subject to the limitations set forth above, any reasonable
legal or other expenses actually incurred by such Indemnified Person in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 7, in no event shall a
Participant be required to contribute any amount in excess of the amount by
which proceeds received by such Participant from sales of Registrable Notes or
Exchange Notes exceeds the amount of any damages that such Participant 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.
(e) The indemnity and contribution agreements contained in this
Section 7 will be in addition to any liability which the Indemnifying Persons
may otherwise have to the Indemnified Persons referred to above.
8. Rules 144 and 144A
------------------
The Issuers and the Guarantor covenant that they will file the reports
required to be filed by them under the Securities Act and the Exchange Act and
the rules and regulations adopted by the SEC thereunder in a timely manner and,
if at any time the Issuers and the Guarantor are not required to file such
reports, they will, upon the request of any Holder of Registrable Notes, make
publicly available other information of a like nature so long as necessary to
permit sales pursuant to Rule 144 or Rule 144A. The Issuers and the Guarantor
further covenant that so long as any Registrable Notes remain outstanding to
make available to any Holder of Registrable Notes in connection with any sale
thereof, the information required by Rule 144A(d)(4) under the Securities Act in
order to permit resales of such Registrable Notes pursuant to (a) such Rule
144A,
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or (b) any similar rule or regulation hereafter adopted by the SEC.
9. Underwritten Registrations
--------------------------
If any of the Registrable Notes covered by any Shelf Registration are to be
sold in an underwritten offering, the investment banker or investment bankers
and manager or managers that will manage the offering will be selected by the
Holders of a majority in aggregate principal amount of such Registrable Notes
included in such offering and shall be reasonably acceptable to the Issuers and
the Guarantor.
No Holder of Registrable Notes may participate in any underwritten
registration hereunder unless such Holder (a) agrees to sell such Holder's
Registrable Notes on the basis provided in any underwriting arrangements
approved by the Persons entitled hereunder to approve such arrangements and (b)
completes and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents reasonably required under the terms
of such underwriting arrangements.
10. Miscellaneous
-------------
(a) Remedies. In the event of a breach by the Issuers, the Guarantor
--------
or their subsidiaries of any of their obligations under this Agreement, other
than the occurrence of an event which requires payment of Additional Interest,
each Holder of Registrable Notes, in addition to being entitled to exercise all
rights provided herein, in the Indenture or, in the case of the Initial
Purchaser, in the Purchase Agreement or granted by law, including recovery of
damages, will be entitled to specific performance of its rights under this
Agreement. The Issuers and the Guarantor agree that monetary damages would not
be adequate compensation for any loss incurred by reason of a breach by them of
any of the provisions of this Agreement and hereby further agree, jointly and
severally, that, in the event of any action for specific performance in respect
of such breach, they shall waive the defense that a remedy at law would be
adequate.
(b) Enforcement. The Trustee shall be authorized to enforce the
-----------
provisions of this Agreement for the ratable benefit of the Holders.
(c) No Inconsistent Agreements. The Issuers and the Guarantor have
--------------------------
not, as of the date hereof, and the Issuers and
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the Guarantor shall not, after the date of this Agreement, enter into any
agreement with respect to any of their securities that is inconsistent with the
rights granted to the Holders of Registrable Notes in this Agreement or
otherwise conflicts with the provisions hereof. The Issuers and the Guarantor
have not entered and will not enter into any agreement with respect to any of
their securities which will grant to any Person piggy-back rights with respect
to a Registration Statement required to be filed under this Agreement.
(d) Adjustments Affecting Registrable Notes. The Issuers and the
---------------------------------------
Guarantor shall not, directly or indirectly, take any action with respect to the
Registrable Notes as a class that would adversely affect the ability of the
Holders of Registrable Notes to include such Registrable Notes in a registration
undertaken pursuant to this Agreement.
(e) 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 Issuers and the Guarantor have obtained the written
consent of Holders of at least a majority of the then outstanding aggregate
principal amount of Registrable Notes. Notwithstanding the foregoing, a waiver
or consent to depart from the provisions hereof with respect to a matter that
relates exclusively to the rights of Holders of Registrable Notes whose
securities are being sold pursuant to a Registration Statement and that does not
directly or indirectly affect, impair, limit or compromise the rights of other
Holders of Registrable Notes may be given by Holders of at least a majority in
aggregate principal amount of the Registrable Notes being sold by such Holders
pursuant to such Registration Statement, provided that the provisions of this
--------
sentence may not be amended, modified or supplemented except in accordance with
the provisions of the immediately preceding sentence.
(f) Notices. All notices and other communications (including without
-------
limitation any notices or other communications to the Trustee) provided for or
permitted hereunder shall be made in writing by hand-delivery, registered first-
class mail, next-day air courier or telecopier:
(i) if to a Holder of Registrable Notes or any Participating
Broker-Dealer, at the most current address given by the Trustee to the
Issuers; and
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(ii) if to the Issuers and the Guarantor, c/o Insight
Communications Company, L.P., 126 East 56th Street, New York, New York
10022, Attention: Kim D. Kelly, with a copy to Cooperman Levitt Winikoff
Lester & Newman, P.C., 800 Third Avenue, New York, New York 10022,
Attention: Elliot Brecher, Esq. and Coaxial Communications, Inc., to
5111 Ocean Boulevard, Suite C, Sarasota, Florida 34242, Attention:
Dennis McGillicuddy, with a copy to Dow, Lohnes & Albertson, PLLC, 1200
New Hampshire Avenue, N.W., Suite 800, Washington, D.C. 20036-6802,
Attention: Timothy J. Kelley, Esq.
All such notices and communications shall be deemed to have been duly
given: (i) when delivered by hand, if personally delivered; (ii) five business
days after being deposited in the mail, postage prepaid, if mailed; (iii) one
business day after being timely delivered to a next-day air courier; and (iv)
when receipt is acknowledged by the addressee, if telecopied.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee under the
Indenture at the address specified in such Indenture.
(g) Successors and Assigns. This Agreement shall inure to the
----------------------
benefit of and be binding upon the successors and assigns of each of the
parties, including without limitation and without the need for an express
assignment, subsequent Holders of Registrable Notes.
(h) 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.
(i) Headings. The headings in this Agreement are for convenience of
--------
reference only and shall not limit or otherwise affect the meaning hereof.
(j) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
-------------
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS
MADE AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAW. EACH OF THE PARTIES HERETO AGREES TO SUBMIT TO THE
JURISDICTION OF THE COURTS OF THE STATE OF NEW
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YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT.
(k) Severability. If any term, provision, covenant or restriction of
------------
this Agreement is held by a court of competent jurisdiction to be invalid,
illegal, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full force and
effect and shall in no way be affected, impaired or invalidated, and the parties
hereto shall use their reasonable best efforts to find and employ an alternative
means to achieve the same or substantially the same result as that contemplated
by such term, provision, covenant or restriction.
(l) Entire Agreement. This Agreement, together with the Purchase
----------------
Agreement and the Indenture, is intended by the parties as a final expression of
their agreement, and is intended to be a complete and exclusive statement of the
agreement and understanding of the parties hereto in respect of the subject
matter contained herein and therein.
(m) Discount Notes Held by the Issuers or their Affiliates. Whenever
------------------------------------------------------
the consent or approval of Holders of a specified percentage of Registrable
Notes is required hereunder, Registrable Notes held by the Issuers, the
Guarantor or their affiliates (as such term is defined in Rule 405 under the
Securities Act) shall not be counted in determining whether such consent or
approval was given by the Holders of such required percentage.
IN WITNESS WHEREOF, the parties have executed this Discount Notes
Registration Rights Agreement as of the date first written above.
COAXIAL LLC
By: BARRY SILVERSTEIN, SOLE
MEMBER OF COAXIAL LLC
By: /s/ Dennis J. McGillicuddy
---------------------------------------
Name: Dennis J. McGillicuddy
Title: Attorney-In-Fact for
Barry Silverstein
COAXIAL FINANCING CORP.
By: /s/ Kim D. Kelly
---------------------------------------
Name: Kim D. Kelly
Title: Executive Vice
President
INSIGHT COMMUNICATIONS OF CENTRAL OHIO, LLC
By: /s/ Kim D. Kelly
---------------------------------------
Name: Kim D. Kelly
Title: Executive Vice
President
The foregoing Agreement is hereby confirmed and accepted as of the date
first above written.
CIBC OPPENHEIMER CORP.
By: /s/ Kevin Magil
---------------------------------------
Name: Kevin Magil
Title: Managing Director