Exhibit 4.3
EXECUTION
VERSION
REGISTRATION RIGHTS
AGREEMENT
Dated as of
April 22, 2005
by and among
Ziff Davis Media
Inc.
as Issuer
The Guarantors listed
on Schedule A hereto
and
Bear, Stearns &
Co. Inc.,
Lehman Brothers Inc.
as Initial Purchasers
This
Registration Rights Agreement (this “ Agreement
”) is made and entered into as of April 22, 2005 by and
among Ziff Davis Media Inc., a Delaware corporation (the “
Company ” and the “ Issuer
”), the guarantors listed on Schedule A (the “
Guarantors ”), and Bear, Stearns & Co. Inc.
and Lehman Brothers Inc. (each an “ Initial
Purchaser ” and, collectively, the “
Initial Purchasers ”), each of whom has agreed
to purchase the Company’s Senior Secured Floating Rate Notes
due 2012 (the “ Initial Notes ”) pursuant
to the Purchase Agreement (as defined below).
This
Agreement is made pursuant to the Purchase Agreement, dated
April 18, 2005, (the “ Purchase Agreement
”), by and among the Company, the Guarantors and the Initial
Purchasers. In order to induce the Initial Purchasers to purchase
the Initial Notes, the Company has agreed to provide the
registration rights set forth in this Agreement. The execution and
delivery of this Agreement is a condition to the obligations of the
Initial Purchasers set forth in Section 8 of the Purchase
Agreement. Capitalized terms used herein and not otherwise defined
shall have the meaning assigned to them in the Indenture, dated
April 22, 2005, among the Company, the Guarantors and U.S.
Bank National Association, as Trustee, relating to the Initial
Notes and the Exchange Notes (the “ Indenture
”).
The
parties hereby agree as follows:
SECTION 1.
DEFINITIONS
As used
in this Agreement, the following capitalized terms shall have the
following meanings:
Act : The Securities Act of 1933, as amended.
Affiliate : As defined in Rule 144 of the
Act.
Broker-Dealer : Any broker or dealer registered under
the Exchange Act.
Business Day : Any day other than a Saturday, a
Sunday or a day on which banking institutions in the City of New
York are authorized by law, regulation or executive order to remain
closed.
Certificated Securities : Definitive Notes, as
defined in the Indenture.
Closing Date : The date hereof.
Commission : The Securities and Exchange
Commission.
Consummate : An Exchange Offer shall be deemed
“Consummated” for purposes of this Agreement upon the
occurrence of (a) the filing and effectiveness under the Act
of the Exchange Offer Registration Statement relating to the
Exchange Notes to be issued in the Exchange Offer, (b) the
maintenance of such Exchange Offer Registration Statement
continuously effective and the keeping of the Exchange Offer open
for a period not less than the period required pursuant to Section
3(b) hereof and (c) the delivery by the Company to the
Registrar under the Indenture of
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Exchange Notes in the same
aggregate principal amount as the aggregate principal amount of
Initial Notes tendered by Holders thereof pursuant to the Exchange
Offer.
Exchange Act : The Securities Exchange Act of 1934,
as amended.
Exchange Consummation Deadline : As defined in
Section 3(b) hereof.
Exchange Effectiveness Deadline : As defined in
Section 3(a) hereof.
Exchange Filing Deadline : As defined in Sections
3(a) hereof.
Exchange Notes : The Company’s Exchange Senior
Secured Floating Rate Notes due 2012 to be issued pursuant to the
Indenture: (i) in the Exchange Offer or (ii) as
contemplated by Section 4 hereof.
Exchange Offer : The exchange and issuance by the
Company of a principal amount of Exchange Notes (which shall be
registered pursuant to the Exchange Offer Registration Statement)
equal to the outstanding principal amount of Initial Notes that are
tendered by such Holders in connection with such exchange and
issuance.
Exchange Offer Registration Statement : The
Registration Statement relating to the Exchange Offer, including
the related Prospectus.
Exempt Resales : The transactions in which the
Initial Purchasers propose to sell the Initial Notes to certain
“qualified institutional buyers,” as such term is
defined in Rule 144A under the Act, to certain
“accredited investors,” as such term is defined in
Rule 501(a)(1), (2), (3) and (7) of
Regulation D under the Act and pursuant to Regulation S
under the Act.
Holders : As defined in Section 2 hereof.
Person : Means any individual, corporation,
partnership, joint venture, association, joint-stock company,
trust, unincorporated organization, limited liability company or
government or other entity.
Prospectus : The prospectus included in a
Registration Statement at the time such Registration Statement is
declared effective, as amended or supplemented by any prospectus
supplement and by all other amendments thereto, including
post-effective amendments, and all material incorporated by
reference into such Prospectus.
Recommencement Date : As defined in Section 6(d)
hereof.
Registration Default : As defined in Section 5
hereof.
Registration Statement : Any registration statement
of the Company and the Guarantors relating to (a) an offering
of Exchange Notes pursuant to an Exchange Offer or (b) the
registration for resale of Transfer Restricted Securities pursuant
to the Shelf Registration Statement, in each case, (i) that is
filed pursuant to the provisions of this Agreement and (ii)
including the Prospectus
included therein, all amendments and supplements thereto (including
post-effective amendments) and all exhibits and material
incorporated by reference therein.
Regulation S : Regulation S promulgated
under the Act.
Rule 144 : Rule 144 promulgated under the
Act.
Shelf Effectiveness Deadline : As defined in Section
4(a) hereof.
Shelf Filing Deadline : As defined in Sections 4(a)
hereof.
Shelf Registration Statement : As defined in
Section 4 hereof.
Suspension Notice : As defined in Section 6(d)
hereof.
TIA : The Trust Indenture Act of 1939 (15 U.S.C.
Section 77aaa-77bbbb) as in effect on the date of the
Indenture.
Transfer Restricted Securities : Each Initial Note,
until the earliest to occur of (i) the date on which such Initial
Note has been exchanged by a Person other than a Broker-Dealer for
an Exchange Note in the Exchange Offer; (ii) following the
exchange by a Broker-Dealer in the Exchange Offer of an Initial
Note for an Exchange Note, the date on which such Exchange Note is
sold to a purchaser who receives from such Broker-Dealer on or
prior to the date of such sale a copy of the Prospectus contained
in the Exchange Offer Registration Statement; (iii) the date
on which such Initial Note has been effectively registered under
the Act and disposed of in accordance with the Shelf Registration
Statement (and the purchasers thereof have been issued Exchange
Notes) or (iv) the date on which such Initial Note is
distributed to the public pursuant to Rule 144 under the
Act.
SECTION 2.
HOLDERS
A
Person is deemed to be a holder of Transfer Restricted Securities
(each, a “ Holder ” )
whenever such Person owns Transfer Restricted Securities.
SECTION 3. REGISTERED
EXCHANGE OFFER
(a) Unless
the Exchange Offer shall not be permitted by applicable federal law
or Commission policy (after the procedures set forth in
Section 6(a)(i) hereof have been complied with), the Company
and the Guarantors shall (i) cause the Exchange Offer
Registration Statement to be filed with the Commission as soon as
practicable after the Closing Date, but in no event later than 90
days after the Closing Date (such 90 th day being the
“ Exchange Filing Deadline
” ), (ii) use all commercially reasonable efforts
to cause such Exchange Offer Registration Statement to be declared
effective by the Commission on or prior to 180 days after the
Closing Date (such 180 th day being the
“ Exchange Effectiveness Deadline
” ), (iii) in connection with the foregoing,
(A) file all pre-effective amendments to such Exchange Offer
Registration Statement as may be necessary in order to cause it to
become effective, (B) file, if applicable, a post-effective
amendment to such Exchange Offer Registration Statement pursuant to
Rule 430A under the Act and (C) cause all necessary
filings, if any, in connection with the
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registration and
qualification of the Exchange Notes to be made under the Blue Sky
laws of such jurisdictions as are necessary to permit Consummation
of the Exchange Offer, and (iv) upon the effectiveness of such
Exchange Offer Registration Statement, commence and, within the
time period set forth in Section 3(b) hereof, Consummate the
Exchange Offer. The Exchange Offer shall be on the appropriate form
permitting (i) registration of the Exchange Notes to be
offered in exchange for the Initial Notes that are Transfer
Restricted Securities and (ii) resales of Exchange Notes by
Broker-Dealers that tendered into the Exchange Offer Initial Notes
that such Broker-Dealer acquired for its own account as a result of
market making activities or other trading activities (other than
Initial Notes acquired directly from the Company or any of its
Affiliates) as contemplated by Section 3(c) hereof.
(b) The
Company and the Guarantors shall use their respective commercially
reasonable efforts to cause the Exchange Offer Registration
Statement to be effective continuously, and shall keep the Exchange
Offer open for a period of not less than the minimum period
required under applicable federal and state securities laws to
Consummate the Exchange Offer; provided, however, that in no
event shall such period be less than 20 Business Days. The Company
and the Guarantors shall cause the Exchange Offer to comply with
all applicable federal and state securities laws. No securities
other than the Exchange Notes shall be included in the Exchange
Offer Registration Statement. The Company and the Guarantors shall
use all commercially reasonable efforts to cause the Exchange Offer
to be Consummated within 40 Business Days after the date on which
the Exchange Offer Registration Statement was declared effective by
the Commission (such 40 th Business Day
being the “ Exchange Consummation
Deadline ” ).
(c) The
Company shall include a “Plan of Distribution” section
in the Prospectus contained in the Exchange Offer Registration
Statement and indicate therein that any Broker-Dealer who holds
Transfer Restricted Securities that were acquired for the account
of such Broker-Dealer as a result of market-making activities or
other trading activities (other than Initial Notes acquired
directly from the Company or any Affiliate of the Company), may
exchange such Transfer Restricted Securities pursuant to the
Exchange Offer. Such “Plan of Distribution” section
shall also contain all other information with respect to such sales
by such Broker-Dealers that the Commission may require in order to
permit such sales pursuant thereto, but such “Plan of
Distribution” shall not name any such Broker-Dealer or
disclose the amount of Transfer Restricted Securities held by any
such Broker-Dealer, except to the extent required by the Commission
as a result of a change in policy, rules or regulations after the
date of this Agreement. See the Shearman & Sterling
no-action letter (available July 2, 1993).
Because
such Broker-Dealer may be deemed to be an “underwriter”
within the meaning of the Act and must, therefore, deliver a
prospectus meeting the requirements of the Act in connection with
its initial sale of any Exchange Notes received by such
Broker-Dealer in the Exchange Offer, the Company and Guarantors
shall permit the use of the Prospectus contained in the Exchange
Offer Registration Statement by such Broker-Dealer to satisfy such
prospectus delivery requirement. To the extent necessary to ensure
that the Prospectus contained in the Exchange Offer Registration
Statement is available for sales of Exchange Notes by
Broker-Dealers, the Company and the Guarantors agree to use all of
their commercially reasonable efforts to keep the Exchange Offer
Registration Statement continuously effective, supplemented,
amended and current as required by and subject to the provisions of
Section 6(a) and Section 6(c)
4
hereof and in conformity
with the requirements of this Agreement, the Act and the policies,
rules and regulations of the Commission as announced from time to
time, for a period of one year from the Exchange Consummation
Deadline or such shorter period as will terminate when all Transfer
Restricted Securities covered by such Registration Statement have
been sold pursuant thereto. The Company and the Guarantors shall
provide sufficient copies of the latest version of such Prospectus
to such Broker-Dealers, promptly upon request at any time during
such period.
SECTION 4. SHELF
REGISTRATION
(a)
Shelf Registration . If (i) the Company and the
Guarantors are not (A) required to file the Exchange Offer
Registration Statement or (B) permitted to Consummate the
Exchange Offer because the Exchange Offer is not permitted by
applicable law or Commission policy (after the Company and the
Guarantors have complied with the procedures set forth in
Section 6(a)(i) hereof) or (ii) if any Holder of Transfer
Restricted Securities shall notify the Company prior to the 20
th
Business Day following the Consummation of the Exchange Offer that
(A) such Holder was prohibited by law or Commission policy
from participating in the Exchange Offer or (B) such Holder
may not resell the Exchange Notes acquired by it in the Exchange
Offer to the public without delivering a prospectus and the
Prospectus contained in the Exchange Offer Registration Statement
is not appropriate or available for such resales by such Holder or
(C) such Holder is a Broker-Dealer and holds Initial Notes
acquired directly from the Company or any of its Affiliates, then
the Company and the Guarantors shall:
(x) use all commercially
reasonable efforts on or prior to 60 days after the earlier of
(i) the date as of which the Company determines that the Exchange
Offer Registration Statement will not be or cannot be, as the case
may be, filed as a result of clause (a)(i) above and (ii) the
date on which the Company receives the notice specified in clause
(a)(ii) above (such earlier date, the “ Shelf Filing
Deadline ”), to file a shelf registration statement
pursuant to Rule 415 under the Act (which may be an amendment
to the Exchange Offer Registration Statement (the “
Shelf Registration Statement ”)), relating to
all Transfer Restricted Securities; provided ,
however , in no event shall the Shelf Filing Deadline be
prior to 90 days from the date hereof; and
(y) use all commercially
reasonable efforts to cause such Shelf Registration Statement to
become effective on or prior to 120 days after the filing of
the Shelf Registration Statement (such 120th day, the “
Shelf Registration Effectiveness Deadline ”);
provided , however , in no event shall the Shelf
Registration Effectiveness Deadline be prior to 180 days from
the date hereof.
If,
after the Company has filed an Exchange Offer Registration
Statement that satisfies the requirements of Section 3(a) hereof,
the Company is required to file and make effective a Shelf
Registration Statement solely because the Exchange Offer is not
permitted under applicable federal law (i.e., clause (a)(i) of this
Section 4), then the filing of the Exchange Offer Registration
Statement shall be deemed to satisfy the requirements of clause
(x) of this Section 4; provided that, in such
event, the Company shall remain obligated to meet the Shelf
Registration Effectiveness Deadline set forth in clause (y) of
this Section 4.
To the
extent necessary to ensure that the Shelf Registration Statement is
available for sales of Transfer Restricted Securities by the
Holders thereof entitled to the benefit of this Section 4(a) and
the other securities required to be registered therein pursuant to
Section 6(b)(ii)
5
hereof, the Company and the
Guarantors shall use all commercially reasonable efforts to keep
any Shelf Registration Statement required by this Section 4(a)
continuously effective, supplemented, amended and current as
required by and subject to the provisions of Section 6(b) and
(c) hereof and in conformity with the requirements of this
Agreement, the Act and the policies, rules and regulations of the
Commission as announced from time to time, for a period of at least
two years (as extended pursuant to Section 6(c)(i) hereof)
following the Closing Date, or such shorter period as will
terminate when all Transfer Restricted Securities covered by such
Shelf Registration Statement have been sold pursuant thereto.
(b)
Provision by Holders of Certain Information in Connection with
the Shelf Registration Statement . No Holder of Transfer
Restricted Securities may include any of its Transfer Restricted
Securities in any Shelf Registration Statement pursuant to this
Agreement unless and until such Holder furnishes to the Company in
writing, within 20 days after receipt of a request therefor,
the information specified in Item 507 or Item 508 of
Regulation S-K, as applicable, of the Act for use in
connection with any Shelf Registration Statement or Prospectus or
preliminary Prospectus included therein. No Holder of Transfer
Restricted Securities shall be entitled to liquidated damages
pursuant to Section 5 hereof unless and until such Holder
shall have provided all such information. Each selling Holder
agrees to promptly furnish additional information required to be
disclosed in order to make the information previously furnished to
the Company by such Holder not materially misleading.
SECTION 5. LIQUIDATED
DAMAGES
If
(i) any Registration Statement required by this Agreement is
not filed with the Commission on or prior to the Exchange Filing
Deadline or the Shelf Filing Deadline, as applicable, (ii) any
such Registration Statement has not been declared effective by the
Commission on or prior to the Exchange Effectiveness Deadline or
the Shelf Registration Effectiveness Deadline, as applicable,
(iii) the Exchange Offer has not been Consummated on or prior
to the Exchange Consummation Deadline or (iv) any Registration
Statement required by this Agreement is filed and declared
effective but shall thereafter cease to be effective or fail to be
usable for its intended purpose without being succeeded immediately
by a post-effective amendment to such Registration Statement that
cures such failure and that is itself declared effective
immediately (each such event referred to in clauses
(i) through (iv) above, a “
Registration Default ” ), then the
Company and the Guarantors hereby jointly and severally agree to
pay to each Holder of Transfer Restricted Securities affected
thereby liquidated damages in an amount equal to $.05 per week per
$1,000 in principal amount of Transfer Restricted Securities held
by such Holder for each week or portion thereof that the
Registration Default continues for the first 90-day period
immediately following the occurrence of such Registration Default.
The amount of the liquidated damages shall increase by an
additional $.05 per week per $1,000 in principal amount of Transfer
Restricted Securities with respect to each subsequent 90-day period
until all Registration Defaults have been cured, up to a maximum
amount of liquidated damages of $.50 per week per $1,000 in
principal amount of Transfer Restricted Securities; provided
that the Company and the Guarantors shall in no event be required
to pay liquidated damages for more than one Registration Default at
any given time. Notwithstanding anything to the contrary set forth
herein, (1) upon filing of the Exchange Offer Registration
Statement (and/or, if applicable, the Shelf Registration
Statement), in the case of (i) above, (2) upon the
effectiveness of the Exchange Offer Registration Statement (and/or,
if applicable, the
6
Shelf Registration
Statement), in the case of (ii) above, (3) upon
Consummation of the Exchange Offer, in the case of
(iii) above, or (4) upon the filing of a post-effective
amendment to the Registration Statement or an additional
Registration Statement that causes the Exchange Offer Registration
Statement (and/or, if applicable, the Shelf Registration Statement)
to again be declared effective or made usable in the case of
(iv) above, the liquidated damages payable with respect to the
Transfer Restricted Securities as a result of such clause (i),
(ii), (iii) or (iv), as applicable, shall cease.
All accrued liquidated
damages shall be paid to the Holders entitled thereto, in the
manner provided for the payment of interest in the Indenture, on
each Interest Payment Date, as more fully set forth in the
Indenture and the Notes. Notwithstanding the fact that any
securities for which liquidated damages are due cease to be
Transfer Restricted Securities, all obligations of the Company and
the Guarantors to pay liquidated damages with respect to securities
shall survive until such time as such obligations with respect to
such securities shall have been satisfied in full.
SECTION 6. REGISTRATION
PROCEDURES
(a)
Exchange Offer Registration Statement . In connection with
the Exchange Offer, the Company and the Guarantors shall
(x) comply with all applicable provisions of Section 6(c)
hereof, (y) use all of their commercially reasonable efforts
to effect such exchange and to permit the resale of Exchange Notes
by Broker-Dealers that tendered in the Exchange Offer Initial Notes
that such Broker-Dealer acquired for its own account as a result of
its market making activities or other trading activities (other
than Initial Notes acquired directly from the Company or any of its
Affiliates) being sold in accordance with the intended method or
methods of distribution thereof, and (z) comply with all of
the following provisions:
(i) If, following the date hereof
there has been announced a change in Commission policy with respect
to exchange offers such as the Exchange Offer, that in the
reasonable opinion of counsel to the Company raises a substantial
question as to whether the Exchange Offer is permitted by
applicable federal law, the Company and the Guarantors hereby agree
to seek a no-action letter or other favorable decision from the
Commission allowing the Company and the Guarantors to Consummate an
Exchange Offer for such Transfer Restricted Securities. The Company
and the Guarantors hereby agree to pursue the issuance of such a
decision to the Commission staff level. In connection with the
foregoing, the Company and the Guarantors hereby agree to take all
such other actions as may be requested by the Commission or
otherwise required in connection with the issuance of such
decision, including without limitation (A) participating in
telephonic conferences with the Commission, (B) delivering to
the Commission staff an analysis prepared by counsel to the Company
setting forth the legal bases, if any, upon which such counsel has
concluded that such an Exchange Offer should be permitted and
(C) diligently pursuing a resolution (which need not be
favorable) by the Commission staff.
(ii) As a condition to its
participation in the Exchange Offer, each Holder of Transfer
Restricted Securities (including, without limitation, any Holder
who is a Broker Dealer) shall furnish, upon the request of the
Company, prior to the Consummation of the
7
Exchange Offer, a written representation to the Company and the
Guarantors (which may be contained in the letter of transmittal
contemplated by the Exchange Offer Registration Statement) to the
effect that (A) it is not an Affiliate of the Company,
(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. As a condition to its
participation in the Exchange Offer each Holder using the Exchange
Offer to participate in a distribution of the Exchange Notes shall
acknowledge and agree that, if the resales are of Exchange Notes
obtained by such Holder in exchange for Initial Notes acquired
directly from the Company or an Affiliate thereof, it
(1) could not, under Commission policy as in effect on the
date of this Agreement, rely on the position of the Commission
enunciated in Exxon Capital Holdings Corporation (available
May 13, 1988) and Morgan Stanley and Co., Inc.
(available June 5, 1991), as interpreted in the
Commission’s letter to Shearman & Sterling dated
July 2, 1993, and similar no-action letters (including, if
applicable, any no-action letter obtained pursuant to clause
(i) above), and (2) must comply with the registration and
prospectus delivery requirements of the 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 Item 508, as applicable, of
Regulation S-K.
(iii) Prior to effectiveness of the
Exchange Offer Registration Statement, the Company and the
Guarantors shall provide a supplemental letter to the Commission
(A) stating that the Company and the Guarantors are
registering the Exchange Offer in reliance on the position of the
Commission enunciated in Exxon Capital Holdings Corporation
(available May 13, 1988), Morgan Stanley and Co., Inc.
(available June 5, 1991) as interpreted in the
Commission’s letter to Shearman & Sterling dated
July 2, 1993, and, if applicable, any no-action letter
obtained pursuant to clause (i) above, (B) including a
representation that neither the Company nor any Guarantor has
entered into any arrangement or understanding with any Person to
distribute the Exchange Notes to be received in the Exchange Offer
and that, to the best of the Company’s and each
Guarantor’s information and belief, each Holder participating
in the Exchange Offer is acquiring the Exchange Notes in its
ordinary course of business and has no arrangement or understanding
with any Person to participate in the distribution of the Exchange
Notes received in the Exchange Offer and (C) any other
undertaking or representation required by the Commission as set
forth in any no-action letter obtained pursuant to clause
(i) above, if applicable.
(b)
Shelf Registration Statement . In connection with the Shelf
Registration Statement, the Company and the Guarantors shall
(i) comply with all the provisions of Section 6(c) hereof and
use all of their commercially reasonable efforts to effect such
registration to permit the sale of the Transfer Restricted
Securities being sold in accordance with the intended method or
methods of distribution thereof (as indicated in the information
furnished to the Company pursuant to Section 4(b) hereof), and
pursuant thereto the Company and the Guarantors will prepare and
file with the Commission a Registration Statement relating to the
registration on any appropriate form under the Act, which form
shall be available for the sale of the Transfer
8
Restricted Securities in
accordance with the intended method or methods of distribution
thereof within the time periods and otherwise in accordance with
the provisions hereof, and
(ii) issue, upon the request of any
Holder or purchaser of Initial Notes covered by any Shelf
Registration Statement contemplated by this Agreement, Exchange
Notes having an aggregate principal amount equal to the aggregate
principal amount of Initial Notes sold pursuant to the Shelf
Registration Statement and surrendered to the Company for
cancellation; the Company shall register Exchange Notes on the
Shelf Registration Statement for this purpose and issue the
Exchange Notes to the purchasers of securities subject to the Shelf
Registration Statement in the names as such purchasers shall
designate.
(c)
General Provisions . In connection with any Registration
Statement and any related P
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