Warner Bros. Discovery, Inc S-4, filed Mar 22, 2023
Warner Bros. Discovery, Inc. (WBD)
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As filed with the Securities and Exchange Commission on March 22, 2023
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
WarnerMedia Holdings, Inc.
(as the Issuer)
Warner Bros. Discovery, Inc.
(as Parent Guarantor)
Discovery Communications, LLC
(as Subsidiary Guarantor)
Scripps Networks Interactive, Inc.
(as Subsidiary Guarantor)
(Exact name of registrant as specified in its charter)
| Delaware Delaware Delaware Ohio |
4841 4841 4841 4841 |
87-0943087 35-2333914 32-0204298 61-1551890 | ||
| (State or other jurisdiction of incorporation) |
(Primary Standard Industrial Classification Code Number) |
(I.R.S. Employer Identification No.) |
230 Park Avenue South
New York, New York 10003
(212) 548-5555
(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)
Savalle Sims, Esq.
Executive Vice President and General Counsel
Warner Bros. Discovery, Inc.
230 Park Avenue South
New York, New York 10003
(212) 548-5555
(Name, address, including zip code, and telephone number, including area code, of agent for service)
With a copy to:
Matthew E. Kaplan, Esq.
Benjamin R. Pedersen, Esq.
Debevoise & Plimpton LLP
66 Hudson Boulevard
New York, New York 10001
(212) 909-6000
Approximate date of commencement of proposed sale of the securities to the public: As soon as practicable after this Registration Statement becomes effective.
If the securities being registered on this Form are being offered in connection with the formation of a holding company and there is compliance with General Instruction G, check the following box ☐
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
| Large accelerated filer | ☒ | Accelerated filer | ☐ | |||
| Non-accelerated filer | ☐ | Smaller reporting company | ☐ | |||
| Emerging growth company | ☐ | |||||
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐
If applicable, place an X in the box to designate the appropriate rule provision relied upon in conducting this transaction:
Exchange Act Rule 13e-4(i) (Cross-Border Issuer Tender Offer) ☐
Exchange Act Rule 14d-1(d) (Cross-Border Third-Party Tender Offer) ☐
The registrant hereby amends this registration statement on such date or dates as may be necessary to delay its effective date until the registrant shall file a further amendment which specifically states that this registration statement shall thereafter become effective in accordance with section 8(a) of the Securities Act of 1933 or until the registration statement shall become effective on such date as the Commission acting pursuant to said section 8(a), may determine.
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The information in this prospectus is not complete and may be changed. We may not sell these securities until a registration statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities or a solicitation of an offer to buy these securities in any jurisdiction where the offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED MARCH 22, 2023
PRELIMINARY PROSPECTUS
WARNERMEDIA HOLDINGS, INC.
Offer to Exchange
$1,750,000,000 Outstanding 3.428% Senior Notes due 2024
for
$1,750,000,000 Registered 3.428% Senior Notes due 2024
$500,000,000 Outstanding 3.528% Senior Notes due 2024
for
$500,000,000 Registered 3.528% Senior Notes due 2024
$1,750,000,000 Outstanding 3.638% Senior Notes due 2025
for
$1,750,000,000 Registered 3.638% Senior Notes due 2025
$500,000,000 Outstanding 3.788% Senior Notes due 2025
for
$500,000,000 Registered 3.788% Senior Notes due 2025
$4,000,000,000 Outstanding 3.755% Senior Notes due 2027
for
$4,000,000,000 Registered 3.755% Senior Notes due 2027
$1,500,000,000 Outstanding 4.054% Senior Notes due 2029
for
$1,500,000,000 Registered 4.054% Senior Notes due 2029
$5,000,000,000 Outstanding 4.279% Senior Notes due 2032
for
$5,000,000,000 Registered 4.279% Senior Notes due 2032
$4,500,000,000 Outstanding 5.050% Senior Notes due 2042
for
$4,500,000,000 Registered 5.050% Senior Notes due 2042
$7,000,000,000 Outstanding 5.141% Senior Notes due 2052
for
$7,000,000,000 Registered 5.141% Senior Notes due 2052
$3,000,000,000 Outstanding 5.391% Senior Notes due 2062
for
$3,000,000,000 Registered 5.391% Senior Notes due 2062
$500,000,000 Outstanding Floating Rate Senior Notes due 2024
for
$500,000,000 Registered Floating Rate Senior Notes due 2024
WarnerMedia Holdings, Inc. (formerly known as Magallanes, Inc.) is offering to exchange (the “exchange offer”) (i) $1,750,000,000 aggregate principal amount of its outstanding 3.428% Senior Notes due 2024 (the “Old 2024 Senior Notes”) for a like principal amount of registered 3.428% Senior Notes due 2024 (the “New 2024 Senior Notes”), (ii) $500,000,000 aggregate principal amount of its outstanding 3.528% Senior Notes due 2024 (the “Old 2024 NC1 Senior Notes”) for a like principal amount of registered 3.528% Senior Notes due 2024 (the “New 2024 NC1 Senior Notes”), (iii) $1,750,000,000 aggregate principal amount of its outstanding 3.638% Senior Notes due 2025 (the “Old 2025 Senior Notes”) for a like principal amount of registered 3.638% Senior Notes due 2025 (the “New 2025 Senior Notes”), (iv) $500,000,000 aggregate principal amount of its outstanding 3.788% Senior Notes due 2025 (the “Old 2025 NC1 Senior Notes”) for a like principal amount of registered 3.788% Senior Notes due 2025 (the “New 2025 NC1 Senior Notes”), (v) $4,000,000,000 aggregate principal amount of its outstanding 3.755% Senior Notes due 2027 (the “Old 2027 Senior Notes”) for a like principal amount of registered 3.755% Senior Notes due 2027 (the “New 2027 Senior Notes”), (vi) $1,500,000,000 aggregate principal amount of its outstanding 4.054% Senior Notes due 2029 (the “Old 2029 Senior Notes”) for a like principal amount of registered 4.054% Senior Notes due 2029 (the “New 2029 Senior Notes”), (vii) $5,000,000,000 aggregate principal amount of its outstanding 4.279% Senior Notes due 2032 (the “Old 2032 Senior Notes”) for a like principal amount of registered 4.279% Senior Notes due 2032 (the “New 2032 Senior Notes”), (viii) $4,500,000,000 aggregate principal amount of its outstanding 5.050% Senior Notes due 2042 (the “Old 2042 Senior Notes”) for a like principal amount of registered 5.050% Senior Notes due 2042 (the “New 2042 Senior Notes”), (ix) $7,000,000,000 aggregate principal amount of its outstanding 5.141% Senior Notes due 2052 (the “Old 2052 Senior Notes”) for a like principal amount of registered 5.141% Senior Notes due 2052 (the “New 2052 Senior Notes”), (x) $3,000,000,000 aggregate principal amount of its outstanding 5.391% Senior Notes due 2062 (the “Old 2062 Senior Notes”) for a like principal amount of registered 5.391% Senior Notes due 2062 (the “New 2062 Senior Notes”), and (xi) $500,000,000 aggregate principal amount of its outstanding Floating Rate Senior Notes due 2024 (the “Old Floating Rate Senior Notes”, and, together with the Old 2024 Senior Notes, the Old 2024 NC1 Senior Notes, the Old 2025 Senior Notes, the Old 2025 NC1 Senior Notes, the Old 2027 Senior Notes, the Old 2029 Senior Notes, the Old 2032 Senior Notes, the Old 2042 Senior Notes, the Old 2052 Senior Notes and the Old 2062 Senior Notes, the “Old Notes”) for a like principal amount of registered Floating Rate Senior Notes due 2024 (the “New Floating Rate Senior Notes” and, together with the New 2024 Senior Notes, the New 2024 NC1 Senior Notes, the New 2025 Senior Notes, the New 2025 NC1 Senior Notes, the New 2027 Senior Notes, the New 2029 Senior Notes, the New 2032 Senior Notes, the New 2042 Senior Notes, the New 2052 Senior Notes and the New 2062 Senior Notes, the “New Notes”). As used herein, the term “Notes” shall mean the New Notes together with the Old Notes.
The terms of the New Notes are identical in all material respects to the terms of the Old Notes of the corresponding series, except that the New Notes are registered under the Securities Act of 1933, as amended (the “Securities Act”), and will not contain restrictions on transfer or provisions relating to additional interest, will bear different CUSIP numbers from the Old Notes of the corresponding series and will not entitle their holders to registration rights. The New Notes will be fully, unconditionally, jointly and severally guaranteed on an unsecured unsubordinated basis by the same entities that guarantee the Old Notes. Each guarantee constitutes a separate security that is being offered by the relevant guarantor.
The Notes will not be listed on any securities exchange or any automated dealer quotation system and there is currently no public market for the Old Notes or for the New Notes.
All untendered Old Notes will continue to be subject to the restrictions on transfer set forth in the Old Notes and in the indenture governing the Notes. In general, the Old Notes may not be offered or sold unless registered under the Securities Act, except pursuant to an exemption from, or in a transaction not subject to, registration under the Securities Act. Other than in connection with the exchange offer, the Issuer does not currently anticipate that it will register any series of the Old Notes under the Securities Act.
The exchange offer will expire at 5:00 p.m., New York City time, on , 2023 (the “Expiration Date”) unless we extend the Expiration Date. You should read the section called “The Exchange Offer” for further information on how to exchange your Old Notes for New Notes.
See “Risk Factors ” beginning on page 17 for a discussion of risk factors that you should consider prior to tendering your Old Notes in the exchange offer and risk factors related to ownership of the Notes.
Each broker-dealer that receives New Notes for its own account pursuant to the exchange offer must acknowledge that it will deliver a prospectus in connection with any resale of such New Notes. The letter of transmittal states that by so acknowledging and by delivering a prospectus, a broker-dealer will not be deemed to admit that it is an “underwriter” within the meaning of the Securities Act. This prospectus, as it may be amended or supplemented from time to time, may be used by a broker-dealer in connection with resales of New Notes received in exchange for Old Notes where such Old Notes were acquired by such broker-dealer as a result of market-making activities or other trading activities. We have agreed that, for a period ending on the earlier of (i) 120 days from the date on which this registration statement is declared effective and (ii) the date on which no broker-dealer is required to deliver a prospectus in connection with market-making or other trading activities, we will make this prospectus available to any broker-dealer for use in connection with any such resale. See “Plan of Distribution.”
Neither the U.S. Securities and Exchange Commission (“SEC”) nor any state securities commission has approved or disapproved of these securities or passed upon the adequacy or accuracy of this prospectus. Any representation to the contrary is a criminal offense.
The date of this prospectus is , 2023
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You should rely only on the information contained in, or incorporated by reference into, this prospectus or to which we have referred you. We have not authorized anyone to provide you with different information. If anyone provides you with different or inconsistent information, you should not rely on it. This prospectus does not constitute an offer to sell, or a solicitation of an offer to purchase, the securities offered by this prospectus in any jurisdiction to or from any person to whom or from whom it is unlawful to make such offer or solicitation of an offer in such jurisdiction. You should not assume that the information contained in this prospectus is accurate as of any date other than the date of this prospectus. Also, you should not assume that there has been no change in the affairs of Warner Bros. Discovery, Inc. and its subsidiaries since the date of this prospectus. Any information incorporated by reference herein is accurate only as of the date of the document incorporated by reference.
This prospectus incorporates important business and financial information about us that is not included in or delivered with this prospectus. See “Where You Can Find More Information” and “Incorporation of Certain Information by Reference.” You may request a copy of any document incorporated by reference in this prospectus at no cost by calling us at (212) 548-5555 or writing us at the following address:
Warner Bros. Discovery, Inc.
230 Park Avenue South
New York, New York 10003
Attention: Investor Relations
If you would like to request copies of these documents, please do so by , 2023 (which is five business days before the scheduled expiration of the exchange offer) in order to receive them before the expiration of the exchange offer.
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This summary highlights selected information contained elsewhere in this prospectus or the documents incorporated by reference in this prospectus. Because this is only a summary, it does not contain all of the information that you should consider in making your investment decision. You should read the following summary together with the entire prospectus, including the more detailed information regarding our company and the New Notes being exchanged in this offering appearing elsewhere in this prospectus or the documents incorporated by reference in this prospectus. You should also carefully consider, among other things, the matters discussed in the sections entitled “Risk Factors” in this prospectus or the documents incorporated by reference in this prospectus, and the consolidated financial statements and the related notes incorporated by reference in this prospectus, before deciding to invest in the Notes.
Except as the context otherwise requires, or as otherwise specified or used in this prospectus, (1) the terms “we,” “our,” “us,” “the Issuer” and “WMH” refer to WarnerMedia Holdings, Inc. (formerly known as Magallanes, Inc.) together with its subsidiaries; (2) the terms “WBD” or “the Parent Guarantor” refer to Warner Bros. Discovery, Inc. (formerly known as Discovery, Inc.), together with its subsidiaries; (3) the term “DCL” refers to Discovery Communications, LLC and (4) the term “Scripps” refers to Scripps Networks Interactive, Inc.
Warner Bros. Discovery, Inc.
On April 8, 2022 (the “Merger Closing Date”), Discovery, Inc. (“Discovery”) completed the Merger (as defined below) in which it acquired the business, operations and activities that constituted the WarnerMedia segment of AT&T Inc. (“AT&T”), subject to certain exceptions (the “WarnerMedia Business”) and changed its name from “Discovery, Inc.” to “Warner Bros. Discovery, Inc.”
On the Merger Closing Date, WBD and AT&T completed the transactions contemplated by (1) the Separation and Distribution Agreement, dated as of May 17, 2021 (as amended, the “Separation Agreement”), by and among AT&T, Magallanes, Inc. (“Spinco”) and Discovery, (2) that certain Agreement and Plan of Merger, dated as of May 17, 2021 (as amended, the “Merger Agreement”), by and among Discovery, Drake Subsidiary, Inc. (“Merger Sub”), AT&T and Spinco and (3) certain other agreements in connection with the transactions contemplated by the Merger Agreement and the Separation Agreement. Specifically, (1) AT&T transferred the WarnerMedia Business to Spinco, subject to certain exceptions as set forth in the Separation Agreement (the “Separation”), (2) thereafter, on the Merger Closing Date, AT&T distributed to its stockholders all of the shares of common stock, par value $0.01 per share, of Spinco (“Spinco common stock”) held by AT&T by way of a pro rata dividend such that each holder of shares of common stock, par value $1.00 per share, of AT&T (“AT&T common stock”) was entitled to receive one share of Spinco common stock for each share of AT&T common stock held as of the record date, April 5, 2022 (the “Distribution”), and (3) following the Distribution, Merger Sub merged with and into Spinco, with Spinco surviving as a wholly owned subsidiary of WBD (the “Merger” and together with the Separation and the Distribution, the “WarnerMedia Transactions”). Spinco was subsequently renamed “WarnerMedia Holdings, Inc.” Pursuant to the Merger Agreement, at the effective time of the Merger, each issued and outstanding share of Spinco common stock on the Merger Closing Date was automatically converted into the right to receive 0.241917 shares of WBD Series A common stock (“WBD common stock”).
WBD is a premier global media and entertainment company that combines the WarnerMedia Business’s premium entertainment, sports and news assets with Discovery’s leading non-fiction and international entertainment and sports businesses, thus offering audiences a differentiated portfolio of content, brands and franchises across television, film, streaming and gaming. Some of its iconic brands and franchises include Warner Bros. Pictures Group, Warner Bros. Television Group, DC, HBO, HBO Max, Discovery Channel,
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discovery+, CNN, HGTV, Food Network, TNT, TBS, TLC, OWN, Warner Bros. Games, Batman, Superman, Wonder Woman, Harry Potter, Looney Tunes, Hanna-Barbera, Game of Thrones, and The Lord of the Rings.
WBD is home to a powerful creative engine and one of the largest collections of owned content in the world and has one of the strongest hands in the industry in terms of the completeness and quality of assets and intellectual property across sports, news, lifestyle, and entertainment in virtually every region of the globe and in most languages. Additionally, WBD serves audiences and consumers around the world with content that informs, entertains, and, when at its best, inspires.
WBD’s asset mix positions it to drive a balanced approach to creating long-term value for shareholders. It represents the full entertainment eco-system, and the ability to serve consumers across the entire spectrum of offerings from domestic and international networks, premium pay-TV, streaming, production and release of feature films and original series, related consumer products and themed experience licensing, and interactive gaming.
WBD generates revenue from the sale of advertising on its networks and digital platforms (advertising revenue); fees charged to distributors that carry its network brands and programming, including cable, direct-to-home satellite, telecommunication and digital service providers, as well as through direct-to-consumer subscription services (distribution revenue); the release of feature films for initial exhibition in theaters, the licensing of feature films and television programs to various television, subscription video on demand and other digital markets, distribution of feature films and television programs in the physical and digital home entertainment market, sales of console games and mobile in-game content, sublicensing of sports rights, and licensing of intellectual property such as characters and brands (content revenue); and other sources such as studio tours and production services (other revenue).
The WBD common stock trades on the Nasdaq Global Select Market under the symbol “WBD”. Its principal executive offices are located at 230 Park Avenue South, New York, NY, 10003, and the telephone number is (212) 548-5555.
Discovery Communications, LLC
DCL is an indirect, wholly-owned subsidiary of WBD. DCL includes WBD’s Discovery Channel and TLC networks in the U.S. DCL is a Delaware limited liability company. Its principal executive offices are located at 230 Park Avenue South, New York, NY, 10003, and the telephone number is (212) 548-5555.
Scripps Networks Interactive, Inc.
Scripps is a direct, wholly-owned subsidiary of WBD. Certain of WBD’s operations, including Food Network and HGTV, are conducted through Scripps. Scripps is an Ohio corporation. Its principal executive offices are located at 230 Park Avenue South, New York, NY, 10003, and the telephone number is (212) 548-5555.
WarnerMedia Holdings, Inc.
WMH is a direct, wholly-owned subsidiary of WBD. WMH, which was originally named Magallanes, Inc., was organized specifically for the purpose of effecting the WarnerMedia Transactions. The WarnerMedia Business is conducted through WMH and its subsidiaries. Its principal executive offices are located at 230 Park Avenue South, New York, NY, 10003, and the telephone number is (212) 548-5555.
Recent Developments
On March 10, 2023, WMH completed its registered offering (the “3NC1 Senior Notes Offering”) of $1,500,000,000 aggregate principal amount of its 6.412% Senior Notes due 2026 (the “3NC1 Senior Notes”).
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The 3NC1 Senior Notes were issued pursuant to an indenture, dated as of March 10, 2023 (the “WMH Indenture”), among WMH, WBD and U.S. Bank Trust Company, National Association, as trustee (the “Trustee”), as supplemented by a supplemental indenture, dated as of March 10, 2023 (the “Supplemental Indenture” and, together with the WMH Indenture, the “3NC1 Indenture”), among WMH, WBD, DCL, Scripps and the Trustee. The 3NC1 Indenture contains certain covenants, events of default and other customary provisions. The 3NC1 Senior Notes are fully and unconditionally guaranteed on a senior unsecured basis by WBD, DCL and Scripps. WMH used the net proceeds from the 3NC1 Senior Notes Offering, together with available cash, to repay $1,500,000,000 of the borrowings outstanding under its Term Loan Facility (as defined herein) (the “Term Loan Repayment”).
Debt Securities and Guarantee Structure
Set forth below is a diagram that graphically illustrates, in simplified form, the corporate debt and guarantee structure of WBD as of December 31, 2022, adjusted to give effect to the 3NC1 Senior Notes Offering and the Term Loan Repayment.
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Summary of the Terms of the Exchange Offer
| Background |
On March 15, 2022, WMH issued and privately placed, in each case pursuant to exemptions from the registration requirements of the Securities Act: |
| (i) $1,750,000,000 aggregate principal amount of its Old 2024 Senior Notes, |
| (ii) $500,000,000 aggregate principal amount of its Old 2024 NC1 Senior Notes, |
| (iii) $1,750,000,000 aggregate principal amount of its Old 2025 Senior Notes, |
| (iv) $500,000,000 aggregate principal amount of its Old 2025 NC1 Senior Notes, |
| (v) $4,000,000,000 aggregate principal amount of its Old 2027 Senior Notes, |
| (vi) $1,500,000,000 aggregate principal amount of its Old 2029 Senior Notes, |
| (vii) $5,000,000,000 aggregate principal amount of its Old 2032 Senior Notes, |
| (viii) $4,500,000,000 aggregate principal amount of its Old 2042 Senior Notes, |
| (ix) $7,000,000,000 aggregate principal amount of its Old 2052 Senior Notes, |
| (x) $3,000,000,000 aggregate principal amount of its Old 2062 Senior Notes, and |
| (xi) $500,000,000 aggregate principal amount of its Old Floating Rate Senior Notes. |
| In connection with the issuance of the Old Notes, WMH entered into a registration rights agreement, dated as of March 15, 2022 (as supplemented by the Counterpart to Registration Rights Agreement, dated as of April 8, 2022, the “Registration Rights Agreement”), with J.P. Morgan Securities LLC and Goldman Sachs & Co. LLC, as representatives of the initial purchasers of the Old Notes. Pursuant to the Registration Rights Agreement, WMH, WBD, DCL and Scripps have agreed, among other things, to consummate the exchange offer. |
| The Notes |
The terms of the New Notes will be identical in all material respects to the terms of the Old Notes, except that the New Notes will be |
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| registered under the Securities Act and will not be subject to restrictions on transfer or contain provisions relating to additional interest, will bear different CUSIP and ISIN numbers than the Old Notes, will not entitle their holders to registration rights and will be subject to terms relating to book-entry procedures and administrative terms relating to transfers that differ from those of the Old Notes. |
| When we use the term “2024 Senior Notes” in this prospectus, the related discussion applies to both the Old 2024 Senior Notes and the New 2024 Senior Notes. |
| When we use the term “2024 NC1 Senior Notes” in this prospectus, the related discussion applies to both the Old 2024 NC1 Senior Notes and the New 2024 NC1 Senior Notes. |
| When we use the term “2025 Senior Notes” in this prospectus, the related discussion applies to both the Old 2025 Senior Notes and the New 2025 Senior Notes. |
| When we use the term “2025 NC1 Senior Notes” in this prospectus, the related discussion applies to both the Old 2025 NC1 Senior Notes and the New 2025 NC1 Senior Notes. |
| When we use the term “2027 Senior Notes” in this prospectus, the related discussion applies to both the Old 2027 Senior Notes and the New 2027 Senior Notes. |
| When we use the term “2029 Senior Notes” in this prospectus, the related discussion applies to both the Old 2029 Senior Notes and the New 2029 Senior Notes. |
| When we use the term “2032 Senior Notes” in this prospectus, the related discussion applies to both the Old 2032 Senior Notes and the New 2032 Senior Notes. |
| When we use the term “2042 Senior Notes” in this prospectus, the related discussion applies to both the Old 2042 Senior Notes and the New 2042 Senior Notes. |
| When we use the term “2052 Senior Notes” in this prospectus, the related discussion applies to both the Old 2052 Senior Notes and the New 2052 Senior Notes. |
| When we use the term “2062 Senior Notes” in this prospectus, the related discussion applies to both the Old 2062 Senior Notes and the New 2062 Senior Notes. |
| When we use the term “Floating Rate Senior Notes” in this prospectus, the related discussion applies to both the Old Floating Rate Senior Notes and the New Floating Rate Senior Notes. |
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| When we use the term “Notes” in this prospectus, the related discussion applies to both the Old Notes and the New Notes. |
| CUSIPs and ISINs for the Old Notes and the New Notes are set forth below: |
| Series |
Old
Note |
Old
Note |
Old Note ISIN |
Old Note ISIN |
New Note |
New Note | ||||||
| 2024 Senior Notes |
55903V AC7 | U55632 AB6 | US55903VAC72 | USU55632AB67 | 55903V AW3 | US55903VAW37 | ||||||
| 2024 NC1 Senior Notes |
55903V AB9 | U55632 AK6 | US55903VAB99 | USU55632AK66 | 55903V AV5 | US55903VAV53 | ||||||
| 2025 Senior Notes |
55903V AE3 | U55632 AC4 | US55903VAE39 | USU55632AC41 | 55903V AZ6 | US55903VAZ67 | ||||||
| 2025 NC1 Senior Notes |
55903V AU7 | U55632 AL4 | US55903VAU70 | USU55632AL40 | 55903V AY9 | US55903VAY92 | ||||||
| 2027 Senior Notes |
55903V AG8 | U55632 AD2 | US55903VAG86 | USU55632AD24 | 55903V BA0 | US55903VBA08 | ||||||
| 2029 Senior Notes |
55903V AJ2 | U55632 AE0 | US55903VAJ26 | USU55632AE07 | 55903V BB8 | US55903VBB80 | ||||||
| 2032 Senior Notes |
55903V AL7 | U55632 AF7 | US55903VAL71 | USU55632AF71 | 55903V BC6 | US55903VBC63 | ||||||
| 2042 Senior Notes |
55903V AN3 | U55632 AG5 | US55903VAN38 | USU55632AG54 | 55903V BD4 | US55903VBD47 | ||||||
| 2052 Senior Notes |
55903V AQ6 | U55632 AH3 | US55903VAQ68 | USU55632AH38 | 55903V BE2 | US55903VBE20 | ||||||
| 2062 Senior Notes |
55903V AS2 | U55632 AJ9 | US55903VAS25 | USU55632AJ93 | 55903V BF9 | US55903VBF94 | ||||||
| Floating Rate Senior Notes |
55903V AA1 | U55632 AA8 | US55903VAA17 | USU55632AA84 | 55903V AX1 | US55903VAX10 |
| The Exchange Offer |
We are offering to exchange Old Notes of each series for a like principal amount of New Notes of the corresponding series. The consummation of the exchange offer is not conditioned upon any minimum or maximum aggregate principal amount of Old Notes being tendered for exchange. |
| Resale of New Notes |
We believe the New Notes that will be issued in the exchange offer may be resold by most investors without compliance with the registration and prospectus delivery provisions of the Securities Act, subject to certain conditions. Each broker-dealer that receives New Notes for its own account in exchange for Old Notes, where such Old Notes were acquired by such broker-dealer as a result of market-making activities or other trading activities, must acknowledge that it will deliver a prospectus in connection with any resale of such New Notes. You should read the discussions under “The Exchange Offer” and “Plan of Distribution” for further information regarding the exchange offer and resale of the New Notes. |
| Registration Rights Agreement |
We are undertaking the exchange offer pursuant to the terms of the Registration Rights Agreement. Under the Registration Rights Agreement, WMH, WBD, DCL and Scripps agreed, among other things, to consummate an exchange offer for the Old Notes pursuant to an effective registration statement or to cause resales of the Old Notes to be registered. We have filed this registration statement to meet our obligations under the Registration Rights Agreement. If we fail to satisfy certain obligations under the Registration Rights Agreement, we would be required to pay additional interest to holders of the Old Notes under specified circumstances. See “Exchange Offer; Registration Rights.” |
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| Consequences of Failure to Exchange the Old Notes |
If we complete the exchange offer and you do not participate in it, then: |
| • | your Old Notes will continue to be subject to the existing restrictions upon their transfer; |
| • | certain interest rate provisions will no longer apply to your Old Notes; |
| • | we will have no further obligation to provide for the registration under the Securities Act of those Old Notes except under certain limited circumstances; and |
| • | the liquidity of the market for your Old Notes could be adversely affected. |
| See “The Exchange Offer—Terms of the Exchange Offer; Period for Tendering Old Notes.” |
| Denominations of New Notes |
Tendering holders of Old Notes must tender Old Notes in minimum denominations of $2,000 and integral multiples of $1,000 in excess thereof. New Notes will be issued in minimum denominations of $2,000 and integral multiples of $1,000 in excess thereof. |
| Expiration Date |
The exchange offer will expire at 5:00 p.m., New York City time, on , 2023 (the “Expiration Date”), unless we extend it, in which case Expiration Date means the latest date and time to which the exchange offer is extended. |
| Interest on the New Notes |
The New Notes of each series will accrue interest from the most recent date to which interest has been paid or provided for on the Old Notes of the corresponding series. Any Old Notes not exchanged will remain outstanding and continue to accrue interest according to their terms. |
| Conditions to the Exchange Offer |
The exchange offer is subject to customary conditions. We will not be required to accept for exchange, or to issue any New Notes in exchange for, any Old Notes, and we may terminate or amend the exchange offer with respect to one or more series of Notes, if we determine in our reasonable judgment at any time before the Expiration Date that the exchange offer would violate applicable law or any applicable interpretation of the staff of the SEC. The foregoing condition is for our sole benefit and may be waived by us at any time. In addition, we will not accept for exchange any Old Notes tendered, and no New Notes will be issued in exchange for any such Old Notes, if at any time any stop order is threatened or in effect with respect to: |
| • | the registration statement of which this prospectus constitutes a part; or |
| • | the qualification of the indenture under the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”). |
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| See “The Exchange Offer—Conditions to the Exchange Offer.” We reserve the right to terminate or amend the exchange offer at any time prior to the Expiration Date upon the occurrence of any of the foregoing events. If we make a material change to the terms of the exchange offer, we will, to the extent required by law, disseminate additional offer materials and extend the exchange offer. |
| Procedures for Tendering Old Notes |
If you hold Old Notes through The Depository Trust Company (“DTC”) and wish to participate in the exchange offer, you must follow the automatic tender offer program (“ATOP”) procedures established by DTC for tendering the Old Notes that are held in book-entry form. The ATOP procedures require (i) that the Exchange Agent (as defined below) receive, prior to the expiration date of the exchange offer, a computer-generated message known as an “agent’s message” that is transmitted through ATOP and (ii) that DTC confirm that: |
| • | DTC has received the instructions to exchange your Old Notes; and |
| • | you agree to be bound by the terms of the letter of transmittal. |
| See “The Exchange Offer—Procedures for Tendering Old Notes.” |
| Guaranteed Delivery Procedures |
If you wish to tender your Old Notes, but cannot properly do so prior to the Expiration Date, you may tender your Old Notes according to the guaranteed delivery procedures set forth under “The Exchange Offer—Guaranteed Delivery Procedures.” |
| Withdrawal Rights |
Tenders of Old Notes may be withdrawn at any time prior to 5:00 p.m., New York City time, on the Expiration Date. To withdraw a tender of Old Notes, a notice of withdrawal must be actually received by the Exchange Agent at its address set forth in “The Exchange Offer—Exchange Agent” prior to 5:00 p.m., New York City time, on the Expiration Date. See “The Exchange Offer—Withdrawal Rights.” |
| Acceptance of Old Notes and Delivery of New Notes |
Except in some circumstances, any and all Old Notes that are validly tendered in the exchange offer prior to 5:00 p.m., New York City time, on the Expiration Date will be accepted for exchange. The New Notes issued pursuant to the exchange offer will be delivered promptly after such acceptance. See “The Exchange Offer—Acceptance of Old Notes for Exchange; Delivery of New Notes.” |
| Certain U.S. Federal Income Tax Considerations |
We believe that the exchange of the Old Notes for the New Notes will not constitute a taxable exchange for U.S. federal income tax purposes. See “Material United States Federal Income Tax Considerations.” |
| Use of Proceeds |
We will not receive any cash proceeds from the issuance of the New Notes in this exchange offer. |
| Exchange Agent |
U.S. Bank Trust Company, National Association is serving as the Exchange Agent (the “Exchange Agent”). |
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Summary of the Terms of the Notes
The terms of the New Notes offered in the exchange offer are identical in all material respects to the Old Notes, except that the New Notes:
| • | are registered under the Securities Act and therefore will not be subject to restrictions on transfer; |
| • | will not be subject to provisions relating to additional interest; |
| • | will bear different CUSIP numbers and ISINs; |
| • | will not entitle their holders to registration rights; and |
| • | will be subject to terms relating to book-entry procedures and administrative terms relating to transfers that differ from those of the Old Notes. |
The following summary contains basic information about the Notes and is not intended to be complete. For a more detailed description of the Notes, please refer to the section entitled “Description of Notes” in this prospectus.
| Issuer |
WarnerMedia Holdings, Inc. |
| Parent Guarantor |
Warner Bros. Discovery, Inc. |
| Subsidiary Guarantors |
Each domestic subsidiary of the Parent Guarantor that is a borrower or that guarantees the payment of any debt under the Senior Credit Facilities or any Material Debt (both as defined herein). See “Description of Notes.” As of the date of issuance of the New Notes, the only Subsidiary Guarantors will be DCL and Scripps. |
| Notes Offered |
$1,750,000,000 aggregate principal amount of New 2024 Senior Notes. |
$500,000,000 aggregate principal amount of New 2024 NC1 Senior Notes.
$1,750,000,000 aggregate principal amount of New 2025 Senior Notes.
$500,000,000 aggregate principal amount of New 2025 NC1 Senior Notes.
$4,000,000,000 aggregate principal amount of New 2027 Senior Notes.
$1,500,000,000 aggregate principal amount of New 2029 Senior Notes.
$5,000,000,000 aggregate principal amount of New 2032 Senior Notes.
$4,500,000,000 aggregate principal amount of New 2042 Senior Notes.
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$7,000,000,000 aggregate principal amount of New 2052 Senior Notes.
$3,000,000,000 aggregate principal amount of New 2062 Senior Notes.
$500,000,000 aggregate principal amount of New Floating Rate Senior Notes.
| Interest Rates; Interest Payment Dates; Maturity Date |
Each series of New Notes will have the same interest rates, maturity dates and interest payment dates as the corresponding series of Old Notes for which they are being offered in exchange, as set forth below: |
| Series |
Stated |
Interest Rates |
Interest
Payment | |||
| 2024 Senior Notes |
March 15, 2024 | 3.428% per annum | March 15 and September 15 | |||
| 2024 NC1 Senior Notes |
March 15, 2024 | 3.528% per annum | March 15 and September 15 | |||
| 2025 Senior Notes |
March 15, 2025 | 3.638% per annum | March 15 and September 15 | |||
| 2025 NC1 Senior Notes |
March 15, 2025 | 3.788% per annum | March 15 and September 15 | |||
| 2027 Senior Notes |
March 15, 2027 | 3.755% per annum | March 15 and September 15 | |||
| 2029 Senior Notes |
March 15, 2029 | 4.054% per annum | March 15 and September 15 | |||
| 2032 Senior Notes |
March 15, 2032 | 4.279% per annum | March 15 and September 15 | |||
| 2042 Senior Notes |
March 15, 2042 | 5.050% per annum | March 15 and September 15 | |||
| 2052 Senior Notes |
March 15, 2052 | 5.141% per annum | March 15 and September 15 | |||
| 2062 Senior Notes |
March 15, 2062 | 5.391% per annum | March 15 and September 15 | |||
| Floating Rate Senior Notes |
March 15, 2024 | Compounded SOFR plus 1.78% per annum | March 15, June 15, September 15 and December 15 |
| Each New Note will bear interest from the most recent interest payment date on which interest has been paid on the corresponding Old Note. Any Old Notes not exchanged will remain outstanding and continue to accrue interest according to their terms. Holders of Old Notes that are accepted for exchange will be deemed to have waived the right to receive any payment in respect of interest accrued from the date of the last interest payment date in respect of their Old Notes until the date of the issuance of the New Notes. |
| Consequently, holders of New Notes will receive the same interest payments that they would have received had they not exchanged their Old Notes in the exchange offer. No accrued but unpaid interest will be paid with respect to any Old Notes tendered and not validly withdrawn prior to the withdrawal deadline. |
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| Ranking |
The New Notes will be WMH’s senior unsecured obligations and will rank equally in right of payment to all of its existing and future senior unsecured debt and senior in right of payment to all of its future subordinated debt. The New Notes will be effectively subordinated to any of WMH’s future secured debt to the extent of the value of the assets securing such debt, and the New Notes will be structurally subordinated to the liabilities of WMH’s subsidiaries. |
| As of December 31, 2022, adjusted to give effect to the 3NC1 Senior Notes Offering and the Term Loan Repayment: |
| • | WMH’s outstanding indebtedness consisted of $30.0 billion aggregate principal amount of the Old Notes, $1.5 billion aggregate principal amount of the 3NC1 Senior Notes, $2.5 billion of borrowings under its Term Loan Facility, its guarantees of $13.8 billion aggregate principal amount of DCL’s senior debt securities and its guarantee of $0 billion of borrowings under DCL’s Revolving Credit Facility; |
| • | WMH had no secured indebtedness outstanding; and |
| • | WMH’s subsidiaries had $1.5 billion in aggregate principal amount of indebtedness outstanding. |
| See “Description of Notes” for definitions of the Term Loan Facility and the Revolving Credit Facility. |
| Parent Guarantee |
All payments on the New Notes, including principal and interest (and premium, if any), will be fully and unconditionally guaranteed on an unsecured and unsubordinated basis by the Parent Guarantor. See “Description of Notes—Guarantees—Guarantee by the Parent Guarantor.” |
| The Parent Guarantee of the New Notes will rank equally in right of payment with all of the Parent Guarantor’s existing and future senior debt and senior in right of payment to all of the Parent Guarantor’s future subordinated debt. The Parent Guarantee will be effectively subordinated to any of the Parent Guarantor’s future secured debt to the extent of the value of the assets securing such debt, and the Parent Guarantee will be structurally subordinated to the liabilities of the Parent Guarantor’s subsidiaries (other than WMH and the Subsidiary Guarantors). |
| As of December 31, 2022, adjusted to give effect to the 3NC1 Senior Notes Offering and the Term Loan Repayment: |
| • | the Parent Guarantor’s outstanding indebtedness consisted of its guarantees of $13.8 billion aggregate principal amount of DCL’s senior debt securities, its guarantees of $30.0 billion aggregate principal amount of the Old Notes, its guarantees of $1.5 billion aggregate principal amount of the 3NC1 Senior Notes, its |
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| guarantee of $0 billion of borrowings under DCL’s Revolving Credit Facility and its guarantee of $2.5 billion of borrowings under WMH’s Term Loan Facility; |
| • | WBD had no secured indebtedness outstanding; and |
| • | the Parent Guarantor’s subsidiaries, other than DCL and Scripps as described under “—Subsidiary Guarantors,” and WMH and certain of its subsidiaries as described under “—Ranking,” had no indebtedness outstanding. |
| See “Description of Notes” for definitions of the Term Loan Facility and the Revolving Credit Facility. |
| Subsidiary Guarantors |
All payments on the New Notes, including principal and interest (and premium, if any), will be fully and unconditionally guaranteed on an unsecured and unsubordinated basis by each wholly-owned domestic subsidiary of the Parent Guarantor that is a borrower or that guarantees the payment of any debt under the Senior Credit Facilities or any Material Debt. Each such guarantee of the New Notes will rank equally in right of payment with all other existing and future unsecured and unsubordinated indebtedness of each such subsidiary guarantor. Each such guarantee will be effectively subordinated to each such subsidiary guarantor’s future secured indebtedness to the extent of the value of the assets securing that debt. |
| As of December 31, 2022, adjusted to give effect to the 3NC1 Senior Notes Offering and the Term Loan Repayment: |
| • | DCL’s outstanding indebtedness consisted of $13.8 billion of senior debt securities, $0 billion of borrowings under its Revolving Credit Facility, its guarantees of $30.0 billion aggregate principal amount of the Old Notes, its guarantees of $1.5 billion aggregate principal amount of the 3NC1 Senior Notes and its guarantee of $2.5 billion of borrowings under WMH’s Term Loan Facility; |
| • | DCL had available borrowing capacity of $6.0 billion of its Revolving Credit Facility; |
| • | Scripps’ outstanding indebtedness consisted of $23.0 million of senior notes issued by Scripps prior to the acquisition of Scripps by WBD, its guarantees of $30.0 billion aggregate principal amount of the Old Notes, its guarantees of $1.5 billion aggregate principal amount of the 3NC1 Senior Notes, its guarantees of $13.8 billion aggregate principal amount of DCL’s senior debt securities, its guarantee of $0 billion of borrowings under DCL’s Revolving Credit Facility and its guarantee of $2.5 billion of borrowings under WMH’s Term Loan Facility; |
| • | None of DCL’s or Scripps’ subsidiaries had any secured debt outstanding; and |
| • | None of DCL’s or Scripps’ subsidiaries had any indebtedness outstanding. |
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| See “Description of Notes” for definitions of the Term Loan Facility and the Revolving Credit Facility. |
| See “Risk Factors—Risks Related to the Notes—DCL and Scripps conduct a substantial amount of their operations, and WBD and the Issuer conduct substantially all of their respective operations, through subsidiaries. WBD, the Issuer, DCL and Scripps may be limited in their ability to access funds from their subsidiaries to service their debt, including the Notes and the note guarantees. In addition, the Notes will not be guaranteed, except in certain circumstances, by any subsidiaries of WBD other than DCL and Scripps and each other wholly owned domestic subsidiary of WBD that in the future becomes a borrower or that guarantees the payment of any debt under the Senior Credit Facilities or any Material Debt.” |
| Optional Redemption |
Each series of New Notes will have the same redemption terms as the corresponding series of Old Notes for which they are being offered in exchange, as set forth below: |
| Floating Rate Senior Notes: WMH will not have the option to redeem the Floating Rate Senior Notes, in whole or in part, prior to their maturity date. |
| 2024 Senior Notes: WMH may redeem the 2024 Senior Notes, in whole or in part, at any time prior to their maturity at a redemption price equal to 100% of the principal amount of the 2024 Senior Notes, plus a “make-whole” premium equal to the Adjusted Treasury Rate (as defined herein) plus 30 basis points, plus accrued and unpaid interest, if any, to, but excluding, the date of redemption. |
| 2024 NC1 Senior Notes: WMH may redeem the 2024 NC1 Senior Notes, in whole or in part, at any time prior to their maturity at a redemption price equal to 100% of the principal amount of the 2024 NC1 Senior Notes, plus accrued and unpaid interest, if any, to, but excluding, the date of redemption. |
| 2025 Senior Notes: WMH may redeem the 2025 Senior Notes, in whole or in part, at any time prior to their maturity at a redemption price equal to 100% of the principal amount of the 2025 Senior Notes, plus a “make-whole” premium equal to the Adjusted Treasury Rate plus 30 basis points, plus accrued and unpaid interest, if any, to, but excluding, the date of redemption. |
| 2025 NC1 Senior Notes: WMH may redeem the 2025 NC1 Senior Notes, in whole or in part, at any time prior to their maturity at a redemption price equal to 100% of the principal amount of the 2025 NC1 Senior Notes, plus accrued and unpaid interest, if any, to, but excluding, the date of redemption. |
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| 2027 Senior Notes: Prior to February 15, 2027, WMH may redeem the 2027 Notes, in whole or in part, at any time at a redemption price equal to 100% of the principal amount of the 2027 Senior Notes, plus a “make-whole” premium equal to the Adjusted Treasury Rate plus 30 basis points, plus accrued and unpaid interest, if any, to, but excluding, the date of redemption. On and after February 15, 2027, WMH may redeem the 2027 Senior Notes, in whole or in part, at any time prior to their maturity at a redemption price equal to 100% of the principal amount of the 2027 Senior Notes, plus accrued and unpaid interest, if any, to, but excluding, the date of redemption. |
| 2029 Senior Notes: Prior to January 15, 2029, WMH may redeem the 2029 Senior Notes, in whole or in part, at any time at a redemption price equal to 100% of the principal amount of the 2029 Senior Notes, plus a “make-whole” premium equal to the Adjusted Treasury Rate plus 35 basis points, plus accrued and unpaid interest, if any, to, but excluding, the date of redemption. On and after January 15, 2029, WMH may redeem the 2029 Senior Notes, in whole or in part, at any time prior to their maturity at a redemption price equal to 100% of the principal amount of the 2029 Senior Notes, plus accrued and unpaid interest, if any, to, but excluding, the date of redemption. |
2032 Senior Notes: WMH will not have the option to redeem the 2032 Notes prior to March 15, 2027. On and after March 15, 2027 and prior to December 15, 2031, WMH may redeem the 2032 Notes, in whole or in part, at any time at a redemption price equal to 100% of the principal amount of the 2032 Senior Notes, plus a “make-whole” premium equal to the Adjusted Treasury Rate plus 40 basis points, plus accrued and unpaid interest, if any, to, but excluding, the date of redemption. On and after December 15, 2031, WMH may redeem the 2032 Notes, in whole or in part, at any time prior to their maturity at a redemption price equal to 100% of the principal amount of the 2032 Senior Notes, plus accrued and unpaid interest, if any, to, but excluding, the date of redemption.
2042 Senior Notes: Prior to September 15, 2041, WMH may redeem the 2042 Senior Notes, in whole or in part, at any time at a redemption price equal to 100% of the principal amount of the 2042 Senior Notes, plus a “make-whole” premium equal to the Adjusted Treasury Rate plus 40 basis points, plus accrued and unpaid interest, if any, to, but excluding, the date of redemption. On and after September 15, 2041, WMH may redeem the 2042 Senior Notes, in whole or in part, at any time prior to their maturity at a redemption price equal to 100% of the principal amount of the 2042 Senior Notes, plus accrued and unpaid interest, if any, to, but excluding, the date of redemption.
2052 Senior Notes: WMH will not have the option to redeem the 2052 Senior Notes prior to March 15, 2027. On and after March 15, 2027 and prior to September 15, 2051, WMH may redeem the 2052
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Senior Notes, in whole or in part, at any time at a redemption price
equal to 100% of the principal amount of the 2052 Senior Notes, plus
a “make-whole” premium equal to the Adjusted Treasury Rate plus 45 basis points, plus accrued and unpaid interest, if any, to, but excluding, the date of redemption. On and after September 15, 2051, WMH may redeem the 2052 Senior Notes, in whole or in part, at any time prior to their maturity at a redemption price equal to 100% of the principal amount of the 2052 Senior Notes, plus accrued and unpaid interest, if any, to, but excluding, the date of redemption.
| 2062 Senior Notes: WMH will not have the option to redeem the 2062 Senior Notes prior to March 15, 2027. On and after March 15, 2027 and prior to September 15, 2061, WMH may redeem the 2062 Notes, in whole or in part, at any time at a redemption price equal to 100% of the principal amount of the 2062 Notes, plus a “make-whole” premium equal to the Adjusted Treasury Rate plus 50 basis points, plus accrued and unpaid interest, if any, to, but excluding, the date of redemption. On and after September 15, 2061, WMH may redeem the 2062 Senior Notes, in whole or in part, at any time prior to their maturity at a redemption price equal to 100% of the principal amount of the 2062 Senior Notes, plus accrued and unpaid interest, if any, to, but excluding, the date of redemption. |
| See “Description of Notes—Optional Redemption.” |
| Change of Control Triggering Event |
If a Change of Control Triggering Event occurs, WMH must offer to repurchase the Notes at a price equal to 101% of the principal amount of the Notes, plus accrued and unpaid interest, if any, to, but excluding, the date of repurchase. See “Description of Notes—Change of Control Offer to Repurchase.” |
| Sinking Fund |
None. |
| Covenants |
WMH will issue each series of the New Notes as a separate series of debt securities. Each series of New Notes will be issued under the senior indenture, dated as of March 15, 2022 (the “base indenture”), by and among WMH, AT&T and the trustee, as amended and supplemented by the first supplemental indenture, dated as of April 8, 2022 (the “first supplemental indenture”; the base indenture, as amended and supplemented by the first supplemental indenture is referred to herein as the “indenture”), by and among WMH, WBD, DCL, Scripps and the trustee. The indenture restricts, among other things WMH’s and its subsidiaries’ ability to: |
| • | incur liens; and |
| • | enter into sale and leaseback transactions. |
| If any Subsidiary Guarantor and its subsidiaries are subsidiaries of the Parent Guarantor but not subsidiaries of WMH, then such Subsidiary Guarantor and its subsidiaries are treated as if they were subsidiaries of WMH for all purposes under the indenture. |
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| In addition, the indenture limits WMH’s and WBD’s ability to consolidate or merge with or into another company, or sell all or substantially all of the assets of WMH or WBD, as applicable. |
| Form and Denomination of Notes |
The New Notes of each series will be issued in the form of one or more fully-registered global securities, without coupons, in denominations of $2,000 in principal amount and integral multiples of $1,000 in excess thereof. These global securities will be deposited with the trustee as custodian for, and registered in the name of, a nominee of DTC. Except in the limited circumstances described under “Book-Entry, Form and Delivery,” New Notes will not be issued in certificated form or exchanged for interests in global securities. |
| Trustee, registrar and transfer agent |
U.S. Bank Trust Company, National Association. |
| Governing Law |
The indenture and the Notes are governed by the laws of the State of New York. |
| Further Issues |
WMH may from time to time, without notice to or consent of the holders of the Notes, create and issue additional senior notes, which may include Notes of the same series as any series offered hereby, ranking equally and ratably with the Notes of such series offered hereby in all respects, provided that if such additional senior notes are not fungible with the original senior notes of such series for U.S. federal income tax purposes, such additional senior notes will have separate CUSIP numbers. |
| Risk Factors |
An investment in the New Notes offered in the exchange offer involves risk. Before making an investment decision, you should carefully consider the risks described in “Risk Factors,” as well as other information included or incorporated by reference into this prospectus, including the risk factors set forth in Warner Bros. Discovery’s Annual Report on Form 10-K for the year ended December 31, 2022 (the “2022 WBD Annual Report”). |
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Participating in the exchange offer and any investment in the Notes involves risks. You should carefully consider the following risks, as well as the other information contained or incorporated by reference in this prospectus, before making an investment decision. In particular, you should carefully consider the risks and uncertainties included in Item 1A, “Risk Factors,” of the 2022 WBD Annual Report which is incorporated by reference in this prospectus. For a discussion of additional uncertainties associated with forward-looking statements in this prospectus, see “Cautionary Note Regarding Forward-Looking Statements.” If any of those risks or the following risks actually occurs, WBD’s businesses, and your investment in the Notes, could be negatively affected. These risks and uncertainties are not the only ones we face. Additional risks and uncertainties not presently known to us, or that we currently deem immaterial, may also materially and adversely affect their business operations, results of operations, financial condition or prospects. If any of these risks materializes, our ability to pay interest on the Notes when due or to repay the Notes at maturity could be adversely affected, and the trading prices of the Notes could decline substantially.
Risks Related to the Exchange Offer
If you fail to exchange your Old Notes, they will continue to be restricted securities and may become less liquid.
Old Notes that you do not tender or WMH does not accept will, following the exchange offer, continue to be restricted securities, and may not be offered or sold except pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act and applicable state securities laws.
If a large number of outstanding Old Notes are exchanged for New Notes issued in the exchange offer, we expect that the liquidity of the market for any Old Notes remaining after the completion of the exchange offer will be substantially limited. Any Old Notes tendered and exchanged in the exchange offer will reduce the aggregate principal amount of the Old Notes of the applicable series outstanding. Following the exchange offer, if you do not tender your Old Notes you generally will not have any further registration rights, and your Old Notes will continue to be subject to certain transfer restrictions. Accordingly, the liquidity of the market for the Old Notes could be adversely affected.
Late deliveries of Old Notes and other required documents could prevent a holder from exchanging its Old Notes.
Holders are responsible for complying with all exchange offer procedures. The issuance of New Notes in exchange for Old Notes will only occur upon completion of the procedures described in this prospectus under “The Exchange Offer.” Therefore, holders of Old Notes who wish to exchange them for New Notes should allow sufficient time for timely completion of the exchange offer procedures. Neither we nor the exchange agent are obligated to extend the offer or notify you of any failure to follow the proper procedures or waive any defect if you fail to follow the proper procedures.
If you are a broker-dealer, your ability to transfer the New Notes may be restricted.
A broker-dealer that purchased Old Notes for its own account as part of market-making or trading activities must comply with the prospectus delivery requirements of the Securities Act when it sells the New Notes. Our obligation to make this prospectus available to broker-dealers is limited. Consequently, we cannot guarantee that a proper prospectus will be available to broker-dealers wishing to resell their New Notes.
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Risks Related to the Notes
WBD has a significant amount of debt and may incur significant amounts of additional debt, which could adversely affect WBD’s financial health and its ability to react to changes in its business.
As of December 31, 2022, WBD had approximately $49.3 billion of consolidated debt, of which approximately $365 million was then current. WBD’s substantial level of indebtedness increases the possibility that it may be unable to generate cash sufficient to pay when due the principal of, interest on, or other amounts associated with its indebtedness. In addition, DCL and certain other subsidiaries of WBD had the ability to draw down $6.0 billion of the $6.0 billion Revolving Credit Facility (after giving effect to $0 million represented by outstanding letters of credit) in the ordinary course, which would have the effect of increasing its indebtedness. WBD is also permitted, subject to certain restrictions under its existing indebtedness, to obtain additional long-term debt and working capital lines of credit to meet future financing needs. This would have the effect of increasing WBD’s total leverage.
WBD’s substantial leverage could have significant negative consequences on its financial condition and results of operations, including:
| • | impairing its ability to meet one or more of the financial ratio covenants contained in its debt agreements or to generate cash sufficient to pay interest or principal, which could result in an acceleration of some or all of its outstanding debt in the event that an uncured default occurs; |
| • | increasing WBD’s vulnerability to general adverse economic and market conditions; |
| • | limiting WBD’s ability to obtain additional debt or equity financing; |
| • | requiring the dedication of a substantial portion of WBD’s cash flow from operations to service its debt, thereby reducing the amount of cash flow available for other purposes; |
| • | requiring WBD to sell debt or equity securities or to sell some of its core assets, possibly on unfavorable terms, to meet payment obligations; |
| • | limiting WBD’s flexibility in planning for, or reacting to, changes in its business and the markets in which it competes; and |
| • | placing WBD at a possible competitive disadvantage with less leveraged competitors and competitors that may have better access to capital resources. |
DCL and Scripps conduct a substantial amount of their operations, and WBD and the Issuer conduct substantially all of their respective operations, through subsidiaries. WBD, the Issuer, DCL and Scripps may be limited in their ability to access funds from their subsidiaries to service their debt, including the Notes and the note guarantees. In addition, the Notes will not be guaranteed, except in certain circumstances, by any subsidiaries of WBD other than DCL and Scripps and each other wholly owned domestic subsidiary of WBD that in the future becomes a borrower or that guarantees the payment of any debt under the Senior Credit Facilities or any Material Debt.
DCL and Scripps conduct a substantial amount of their operations, and WBD and the Issuer conduct substantially all of their respective operations, through subsidiaries. Accordingly, they depend on their subsidiaries’ earnings and advances or loans made by the subsidiaries to them (and potentially dividends or distributions by the subsidiaries to them) to provide funds necessary to meet their obligations, including the payments of principal, premium, if any, and interest on the Notes. If WBD, the Issuer, DCL and Scripps are unable to access the cash flows of their respective subsidiaries, they would be unable to meet their debt obligations.
The subsidiaries of WBD are separate and distinct legal entities and, except to the extent that they guarantee the Notes, have no obligation, contingent or otherwise, to pay any amounts due on the Notes or to make funds
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available to the Issuer to do so. In addition, the ability of the subsidiaries of WBD to pay dividends or otherwise transfer assets to WBD is subject to various restrictions under applicable law and limitations under contractual obligations. In the event of a bankruptcy, liquidation or reorganization of any of WBD’s subsidiaries, holders of their indebtedness and their trade creditors will generally be entitled to payment of their claims from the assets of those subsidiaries before any assets are made available for distribution to WBD. In addition, the indenture governing the Notes allows WBD to create new subsidiaries and invest in their subsidiaries, none of whose assets you will have any claim against, except to the extent that they guarantee the Notes. The Notes will be guaranteed on a senior unsecured basis by WBD and each wholly owned domestic subsidiary of WBD that is a borrower or that guarantees the payment of any debt under the Senior Credit Facilities or any Material Debt. There can be no assurance that any other future domestic subsidiary of WBD will guarantee indebtedness of DCL or the Issuer under the Senior Credit Facilities and, as a result, be required to guarantee the Notes. In the event that a future domestic subsidiary does guarantee the Notes as a result of its guaranteeing indebtedness of DCL or the Issuer under the Senior Credit Facilities, there also can be no assurance that such guarantee of the Senior Credit Facilities and, as a result, such guarantee of the Notes, will remain in place. There can be no assurance that DCL and Scripps will continue to guarantee the Senior Credit Facilities, and thus continue to be required to guarantee the Notes.
The Notes will be effectively subordinated to the Issuer’s and the guarantors’ future secured indebtedness to the extent of the value of the property securing that indebtedness.
The Notes will not be secured by any of the Issuer’s or the guarantors’ assets. As a result, the Notes and the note guarantees will be effectively subordinated to the Issuer’s and the guarantors’ future secured indebtedness with respect to the assets that secure that indebtedness. The effect of this subordination is that upon a default in payment on, or the acceleration of, any of the Issuer’s secured indebtedness, or in the event of bankruptcy, insolvency, liquidation, dissolution or reorganization of the Issuer or the guarantors, the proceeds from the sale of assets securing any secured indebtedness will be available to pay obligations on the Notes only after all such secured debt has been paid in full. As a result, the holders of the Notes may receive less, ratably, than the holders of secured debt in the event of the Issuer’s or the guarantors’ bankruptcy, insolvency, liquidation, dissolution or reorganization.
The Notes will be structurally subordinated to all obligations of WBD’s existing and future subsidiaries (other than the Issuer) that are not and do not become guarantors of the Notes.
The Notes will be guaranteed on a senior unsecured basis by WBD and each wholly owned domestic subsidiary of WBD that is a borrower or that guarantees the payment of any debt under the Senior Credit Facilities or any Material Debt. As of the date of issuance of the Notes, DCL and Scripps will guarantee the Notes. Except for such subsidiary guarantors of the Notes, WBD’s subsidiaries, including all of its non-domestic subsidiaries, will have no obligation, contingent or otherwise, to pay amounts due under the Notes or to make any funds available to pay those amounts, whether by dividend, distribution, loan or other payment. The Notes and note guarantees will be structurally subordinated to all indebtedness and other obligations of any non-guarantor subsidiary such that in the event of insolvency, liquidation, reorganization, dissolution or other winding up of any subsidiary that is not a guarantor, all of that subsidiary’s creditors (including trade creditors) would be entitled to payment in full out of that subsidiary’s assets before WBD or the Issuer would be entitled to any payment.
DCL and Scripps conduct a substantial amount of their operations, and WBD and the Issuer conduct substantially all of their respective operations, through subsidiaries. For the year ended December 31, 2022, on a pro forma basis after giving effect to the Merger, WBD’s subsidiaries other than the Issuer, DCL and Scripps represented approximately 95% of WBD’s consolidated revenues. As of December 31, 2022, WBD’s subsidiaries other than the Issuer, DCL and Scripps represented approximately 94% of WBD’s consolidated total assets and had approximately $35.4 billion of total liabilities, including trade payables but excluding intercompany liabilities.
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In addition, WBD’s subsidiaries that provide, or will provide, note guarantees will be automatically released from those note guarantees upon the occurrence of certain events. See “Description of Notes—Guarantees—Guarantee by Subsidiaries of the Parent Guarantor.”
If any note guarantee is released, no holder of the Notes will have a claim as a creditor against that subsidiary, and the indebtedness and other liabilities, including trade payables and preferred stock, if any, whether secured or unsecured, of that subsidiary will be effectively senior to the claim of any holders of the Notes.
Variable rate indebtedness subjects the Issuer and WBD to interest rate risk, which could cause their respective debt service obligations to increase significantly.
Borrowings under the Senior Credit Facilities and certain other indebtedness of the Issuer and WBD are at variable rates of interest and expose the Issuer and WBD to interest rate risk. As interest rates increase, the Issuer’s and WBD’s debt service obligations on their respective variable rate indebtedness increase even though the amount borrowed remains the same, and their respective net income and cash flows, including cash available for servicing their respective indebtedness, will correspondingly decrease.
The indenture governing the Notes does not restrict the ability of the Issuer, WBD or any of their respective subsidiaries to incur additional unsecured debt, pay dividends or make other distributions to holders of its equity securities or repurchase their respective securities or to take other actions that could negatively impact their ability to pay their obligations under the Notes or the note guarantees, respectively.
None of the Issuer, WBD or any of their respective subsidiaries will be restricted under the terms of the indenture governing the Notes from incurring additional unsecured debt, paying dividends or making other distributions to holders of its equity securities or repurchasing its respective securities. In addition, WBD will not be restricted under the terms of the indenture governing the Notes from incurring secured indebtedness or entering into sale and leaseback transactions, and the limited covenants applicable to the Notes will not require the Issuer, WBD or any of their respective subsidiaries to achieve or maintain any minimum financial results relating to their respective financial position or results of operations. The ability to recapitalize, incur additional debt and take a number of other actions that are not limited by the terms of the indenture governing the Notes could have the effect of diminishing the Issuer’s and the guarantors’ ability to make payments on the Notes or the note guarantees, respectively, when due.
The Issuer may not be able to repurchase all of the Notes upon a change of control triggering event, which would result in a default under the Notes.
Upon the occurrence of a Change of Control Triggering Event (as defined herein), unless the Issuer has exercised its right to redeem the Notes, each holder of the Notes will have the right to require the Issuer to repurchase all or any part of such holder’s Notes at a price equal to 101% of their principal amount, plus accrued and unpaid interest, if any, to, but excluding, the date of repurchase. If a Change of Control Triggering Event occurs, there can be no assurance that the Issuer would have sufficient financial resources available to satisfy its obligations to repurchase the Notes. In addition, the ability of the Issuer to repurchase the Notes for cash may be limited by law, or by the terms of other agreements relating to its indebtedness outstanding at that time. Any failure by the Issuer to repurchase the Notes as required under the indenture governing the Notes would result in a default under the indenture, which could have material adverse consequences for the Issuer and for holders of the Notes.
Holders of the Notes may not be able to determine when a change of control giving rise to their right to have the Notes repurchased has occurred following a sale of “substantially all” of WBD’s assets.
One of the circumstances under which a change of control may occur is upon the sale or disposition of “all or substantially all” of WBD’s assets. There is no precise established definition of the phrase “substantially all”
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under applicable law and the interpretation of that phrase will likely depend upon particular facts and circumstances. Accordingly, the ability of a holder of Notes to require WMH to repurchase its Notes as a result of a sale of less than all of WBD’s, to another person may be uncertain.
Changes in the Issuer’s and WBD’s credit ratings or the debt markets could adversely affect the trading prices of the Notes.
The trading prices for the Notes will depend on many factors, including:
| • | the Issuer’s and WBD’s credit ratings with major credit rating agencies; |
| • | the prevailing interest rates being paid by other companies similar to the Issuer and WBD; |
| • | the financial condition, financial performance and future prospects of the Issuer or WBD; and |
| • | the overall condition of the financial markets. |
The condition of the financial markets and prevailing interest rates have fluctuated significantly in the past and are likely to fluctuate in the future. Such fluctuations could have an adverse effect on the trading prices of the Notes.
In addition, credit rating agencies continually review their ratings for the companies that they follow, including the Issuer and WBD. A negative change in the rating of the Issuer or WBD could have an adverse effect on the trading prices of the Notes.
There may be no active trading market for the New Notes, and, if one develops, it may not be liquid.
The New Notes will constitute new issues of securities for which there is no established trading market. We do not intend to apply for listing of the Notes on any national securities exchange or for inclusion of the Notes on any automated dealer quotation system. A trading market for the Notes may not develop, or if a market for the Notes were to develop, the Notes may trade at a discount from their original offering prices, depending upon many factors, including prevailing interest rates, the market for similar securities, general economic conditions and our financial condition. There can be no assurance as to the development or liquidity of any market for the Notes, the ability of the holders to sell their Notes or the prices at which the holders would be able to sell their Notes.
Risks related to the Floating Rate Notes
The Floating Rate Notes bear additional risks.
The Floating Rate Notes will bear interest at a floating rate, and accordingly carry significant risks not associated with conventional fixed rate debt securities. These risks include fluctuation of the interest rates and the possibility that you will receive an amount of interest that is lower than expected. WMH has no control over a number of matters, including economic, financial and political events, which are important in determining the existence, magnitude and longevity of these risks and their results.
The Secured Overnight Financing Rate (“SOFR”) is a relatively new reference rate and its composition and characteristics are not the same as the London Inter-Bank Offered Rate (“LIBOR”).
On June 22, 2017, the Alternative Reference Rates Committee (“ARRC”) convened by the Board of Governors of the Federal Reserve System and the Federal Reserve Bank of New York identified the SOFR as the rate that, in the consensus view of the ARRC, represented best practice for use in certain new U.S. dollar derivatives and other financial contracts. SOFR is a broad measure of the cost of borrowing cash overnight collateralized by U.S. Treasury securities, and has been published by the Federal Reserve Bank of New York
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since April 2018. The Federal Reserve Bank of New York has also begun publishing historical indicative SOFR from 2014. Investors should not rely on any historical changes or trends in SOFR as an indicator of future changes in SOFR.
The composition and characteristics of SOFR are not the same as those of LIBOR, and SOFR is fundamentally different from LIBOR for two key reasons. First, SOFR is a secured rate, while LIBOR is an unsecured rate. Second, SOFR is an overnight rate, while LIBOR is a forward-looking rate that represents interbank funding over different maturities (e.g., three months). As a result, there can be no assurance that SOFR (including Compounded SOFR) will perform in the same way as LIBOR would have at any time, including, without limitation, as a result of changes in interest and yield rates in the market, market volatility or global or regional economic, financial, political, regulatory, judicial or other events.
SOFR may be more volatile than other benchmark or market rates.
Since the initial publication of SOFR, daily changes in SOFR have, on occasion, been more volatile than daily changes in other benchmark or market rates, such as U.S. dollar LIBOR. Although changes in Compounded SOFR generally are not expected to be as volatile as changes in daily levels of SOFR, the return on and value of the Floating Rate Notes may fluctuate more than floating rate debt securities that are linked to less volatile rates. In addition, the volatility of SOFR has reflected the underlying volatility of the overnight U.S. Treasury repo market. The Federal Reserve Bank of New York has at times conducted operations in the overnight U.S. Treasury repo market in order to help maintain the federal funds rate within a target range. There can be no assurance that the Federal Reserve Bank of New York will continue to conduct such operations in the future, and the duration and extent of any such operations is inherently uncertain. The effect of any such operations, or of the cessation of such operations to the extent they are commenced, is uncertain and could be materially adverse to investors in the Floating Rate Notes.
Any failure of SOFR to gain market acceptance could adversely affect the Floating Rate Notes.
According to the ARRC, SOFR was developed for use in certain U.S. dollar derivatives and other financial contracts as an alternative to U.S. dollar LIBOR in part because it is considered a good representation of general funding conditions in the overnight U.S. Treasury repurchase agreement market. However, as a rate based on transactions secured by U.S. Treasury securities, it does not measure bank-specific credit risk and, as a result, is less likely to correlate with the unsecured short-term funding costs of banks. This may mean that market participants would not consider SOFR a suitable replacement or successor for all of the purposes for which U.S. dollar LIBOR historically has been used (including, without limitation, as a representation of the unsecured short-term funding costs of banks), which may, in turn, lessen market acceptance of SOFR. Any failure of SOFR to gain market acceptance could adversely affect the return on and value of the Floating Rate Notes and the price at which investors can sell the Floating Rate Notes in the secondary market. In addition, some investors may be unwilling or unable to trade the Floating Rate Notes without changes to their information technology systems, both of which could adversely impact the liquidity and trading price of the Floating Rate Notes.
In addition, if SOFR does not prove to be widely used as a benchmark in securities that are similar or comparable to the Floating Rate Notes, the trading price of the Floating Rate Notes may be lower than those of securities that are linked to rates that are more widely used. Similarly, market terms for floating rate debt securities linked to SOFR, such as the spread over the base rate reflected in interest rate provisions or the manner of compounding the base rate, may evolve over time, and trading prices of the Floating Rate Notes may be lower than those of later-issued SOFR-based debt securities as a result. Investors in the Floating Rate Notes may not be able to sell the Floating Rate Notes at all or may not be able to sell the Floating Rate Notes at prices that will provide them with a yield comparable to similar investments that have a developed secondary market, and may consequently suffer from increased pricing volatility and market risk.
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The interest rate on the Floating Rate Notes is based on a Compounded SOFR rate and the SOFR Index, both of which are relatively new in the marketplace.
For each interest period (as defined herein), the interest rate on the Floating Rate Notes is based on Compounded SOFR, which is calculated using the SOFR Index (as defined herein) published by the Federal Reserve Bank of New York according to the specific formula described under “Description of Notes—Interest on the Floating Rate Notes—Compounded SOFR,” not the SOFR rate published on or in respect of a particular date during such interest period or an arithmetic average of SOFR rates during such period. For this and other reasons, the interest rate on the Floating Rate Notes during any interest period will not necessarily be the same as the interest rate on other SOFR-linked investments that use an alternative basis to determine the applicable interest rate. Further, if the SOFR rate in respect of a particular date during an interest period is negative, its contribution to the SOFR Index will be less than one, resulting in a reduction to Compounded SOFR used to calculate the interest payable on the Floating Rate Notes on the Floating Rate Interest Payment Date (as defined herein) for such interest period.
Very limited market precedent exists for securities that use SOFR as the interest rate and the method for calculating an interest rate based upon SOFR in those precedents varies. In addition, the Federal Reserve Bank of New York only began publishing the SOFR Index on March 2, 2020. Accordingly, the use of the SOFR Index or the specific formula for the Compounded SOFR rate used in the Floating Rate Notes may not be widely adopted by other market participants, if at all. If the market adopts a different calculation method, the liquidity and market value of the Floating Rate Notes would likely be affected.
Compounded SOFR with respect to a particular interest period will only be capable of being determined near the end of the relevant interest period.
The level of Compounded SOFR applicable to a particular interest period and, therefore, the amount of interest payable with respect to such interest period will be determined on the Interest Payment Determination Date (as defined herein) for such interest period. Because each such date is near the end of such interest period, you will not know the amount of interest payable with respect to a particular interest period until shortly prior to the related Floating Rate Interest Payment Date and it may be difficult for you to reliably estimate the amount of interest that will be payable on each such Floating Rate Interest Payment Date. In no event will the interest on any series of the floating rate Notes be less than zero.
The SOFR Index may be modified or discontinued and the Floating Rate Notes may bear interest by reference to a rate other than Compounded SOFR, which could adversely affect the value of the Floating Rate Notes.
The SOFR Index is published by the Federal Reserve Bank of New York based on data received by it from sources other than WMH, and WMH has no control over its methods of calculation, publication schedule, rate revision practices or availability of the SOFR Index at any time. There can be no guarantee, particularly given its relatively recent introduction, that the SOFR Index will not be discontinued or fundamentally altered in a manner that is materially adverse to the interests of investors in the Floating Rate Notes. If the manner in which the SOFR Index is calculated, including the manner in which SOFR is calculated, is changed, that change may result in a reduction in the amount of interest payable on the Floating Rate Notes and the trading prices of the Floating Rate Notes. In addition, the Federal Reserve Bank of New York may withdraw, modify or amend the published SOFR Index or SOFR data in its sole discretion and without notice. The interest rate for any interest period will not be adjusted for any modifications or amendments to the SOFR Index or SOFR data that the Federal Reserve Bank of New York may publish after the interest rate for that interest period has been determined.
If WMH or its designee determines that a Benchmark Transition Event and its related Benchmark Replacement Date (each, as defined herein) have occurred in respect of the SOFR Index, then the interest rate on the Floating Rate Notes will no longer be determined by reference to the SOFR Index, but instead will be determined by reference to a different rate, plus a spread adjustment, which WMH refers to as a “Benchmark Replacement”, as further described under “Description of Notes—Interest on the Floating Rate Notes—Compounded SOFR.”
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If a particular Benchmark Replacement (as defined herein) or Benchmark Replacement Adjustment (as defined herein) cannot be determined, then the next available Benchmark Replacement or Benchmark Replacement Adjustment will apply. These replacement rates and adjustments may be selected, recommended or formulated by (i) the Relevant Governmental Body (as defined herein) (such as the ARRC), (ii) the International Swaps and Derivatives Association (“ISDA”) or (iii) in certain circumstances, WMH or its designee. In addition, the terms of the Floating Rate Notes expressly authorize WMH or its designee to make Benchmark Replacement Conforming Changes (as defined herein) with respect to, among other things, changes to the definition of “interest period”, the timing and frequency of determining rates and making payments of interest, the rounding of amounts or tenors and other administrative matters. The determination of a Benchmark Replacement, the calculation of the interest rate on the Floating Rate Notes by reference to a Benchmark Replacement (including the application of a Benchmark Replacement Adjustment), any implementation of Benchmark Replacement Conforming Changes and any other determinations, decisions or elections that may be made under the terms of the Floating Rate Notes in connection with a Benchmark Transition Event, could adversely affect the value of the Floating Rate Notes, the return on the Floating Rate Notes and the price at which you can sell such Floating Rate Notes.
In addition, (i) the composition and characteristics of the Benchmark Replacement will not be the same as those of Compounded SOFR, the Benchmark Replacement may not be the economic equivalent of Compounded SOFR, there can be no assurance that the Benchmark Replacement will perform in the same way as Compounded SOFR would have at any time and there is no guarantee that the Benchmark Replacement will be a comparable substitute for Compounded SOFR (each of which means that a Benchmark Transition Event could adversely affect the value of the Floating Rate Notes, the return on the Floating Rate Notes and the price at which you can sell the Floating Rate Notes), (ii) any failure of the Benchmark Replacement to gain market acceptance could adversely affect the Floating Rate Notes, (iii) the Benchmark Replacement may have a very limited history and the future performance of the Benchmark Replacement may not be predicted based on historical performance, (iv) the secondary trading market for Floating Rate Notes linked to the Benchmark Replacement may be limited and (v) the administrator of the Benchmark Replacement may make changes that could change the value of the Benchmark Replacement or discontinue the Benchmark Replacement and has no obligation to consider your interests in doing so.
The Issuer or its designee will make certain determinations with respect to the Floating Rate Notes, which determinations may adversely affect the Floating Rate Notes.
The Issuer or its designee will make certain determinations with respect to the Floating Rate Notes as further described under “Description of Notes—Interest on the Floating Rate Notes.” For example, if a Benchmark Transition Event and its related Benchmark Replacement Date have occurred, the Issuer or its designee will make certain determinations with respect to the Floating Rate Notes in the Issuer or its designee’s sole discretion as further described under “Description of Notes—Interest on the Floating Rate Notes—Compounded SOFR.” Any determination, decision or election pursuant to the benchmark replacement provisions not made by the Issuer’s designee will be made by the Issuer. Any of these determinations may adversely affect the value of the Floating Rate Notes, the return on the Floating Rate Notes and the price at which you can sell such Floating Rate Notes. Moreover, certain determinations may require the exercise of discretion and the making of subjective judgments, such as with respect to Compounded SOFR or the occurrence or nonoccurrence of a Benchmark Transition Event and any Benchmark Replacement Conforming Changes. These potentially subjective determinations may adversely affect the value of the Floating Rate Notes, the return on the Floating Rate Notes and the price at which you can sell such Floating Rate Notes. For further information regarding these types of determinations, see “Description of Notes—Interest on the Floating Rate Notes—Compounded SOFR.”
SOFR has a limited history, and the future performance of SOFR cannot be predicted based on historical performance.
The publication of SOFR began in April 2018, and, therefore, it has a limited history. The future performance of SOFR cannot be predicted based on the limited historical performance. Levels of SOFR going
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forward may bear little or no relation to the historical actual or historical indicative data. Prior observed patterns, if any, in the behavior of market variables and their relation to SOFR, such as correlations, may change in the future. While the Federal Reserve Bank of New York has released some pre-publication historical data, such analysis inherently involves assumptions, estimates and approximations. Because the future performance of SOFR cannot be predicted, no future performance of SOFR may be inferred from any of the historical actual or historical indicative data. Hypothetical or historical performance data are not indicative of, and have no bearing on, the potential performance of SOFR. There can be no assurance that SOFR will be positive.
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SUMMARIZED FINANCIAL INFORMATION
Basis of Presentation
As of December 31, 2022, giving effect to the 3NC1 Senior Notes Offering and the Term Loan Repayment, (i) $13.8 billion aggregate principal amount of WBD’s outstanding registered senior notes have been issued by DCL and guaranteed by WBD, Scripps and WMH and (ii) $1.5 billion aggregate principal amount of WBD’s outstanding registered senior notes have been issued by WMH and guaranteed by WBD, DCL and Scripps. As of December 31, 2022, WBD also has outstanding (i) $30.0 billion of Old Notes issued by WMH and guaranteed by WBD, Scripps and DCL, (ii) $1.5 billion of senior notes issued by the legacy WarnerMedia Business, which are not guaranteed and (iii) approximately $23 million of un-exchanged senior notes issued by Scripps, which are not guaranteed. Following this exchange offer, all of the Old Notes issued by WMH which are exchanged for New Notes will be registered and guaranteed by WBD, Scripps and DCL.
DCL is a wholly owned, indirect subsidiary of WBD. WMH and Scripps are direct, wholly owned subsidiaries of WBD.
The tables below present the summarized financial information as combined for WBD, Scripps, DCL and WMH as of and for the year ended December 31, 2022.
All guarantees of DCL’s or WMH’s senior notes (the “Note Guarantees”) are full and unconditional, joint and several and unsecured, and cover all payment obligations arising under the senior notes. Note Guarantees issued by DCL, Scripps, WMH or any other subsidiary of WBD that in the future issues a Note Guarantee (each, a “Subsidiary Guarantor”) may be released and discharged (i) concurrently with any direct or indirect sale or disposition of such Subsidiary Guarantor or any interest therein, (ii) at any time that such Subsidiary Guarantor is released from all of its obligations under its guarantee of payment by DCL or WMH, as applicable, (iii) upon the merger or consolidation of any Subsidiary Guarantor with and into DCL, WMH, WBD or another Subsidiary Guarantor, as applicable, or upon the liquidation of such Subsidiary Guarantor and (iv) other customary events constituting a discharge of the guaranteed obligations.
Summarized Financial Information
We have included the accompanying summarized combined financial information of WBD, Scripps, DCL and WMH after the elimination of intercompany transactions and balances among WBD, Scripps, DCL and WMH and the elimination of equity in earnings from and investments in any subsidiary of WBD that is not a Subsidiary Guarantor (in millions).
| December 31, 2022 |
||||
| Current Assets |
1,949 | |||
| Non-guarantor intercompany trade-receivables, net |
112 | |||
| Noncurrent assets |
5,785 | |||
| Current liabilities |
1,095 | |||
| Noncurrent liabilities |
48,839 | |||
| Year Ended December 31, 2022 |
||||
| Revenues |
2,066 | |||
| Operating income |
(574 | ) | ||
| Net Income |
(1,672 | ) | ||
| Net income available to Warner Bros. Discovery, Inc. |
(1,680 | ) | ||
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The summarized income statement information for the year ended December 31, 2022 includes information with respect to WMH beginning subsequent to the close of the Merger. Please see the description of the Merger and related descriptions of WBD’s corporate structure, WMH and the WarnerMedia Business acquired by WBD set forth above in “Summary—Warner Bros. Discovery, Inc.,” “Summary—WarnerMedia Holdings, Inc.” and “Summary—Debt Securities and Guarantee Structure” for further information and please see our Current Reports on Form 8-K filed March 7, 2022 and August 4, 2022 for certain historical financial information relating to the WarnerMedia Business.
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CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS
Certain statements in this prospectus and any documents incorporated by reference herein or therein, as well as in other public statements we may make, may constitute forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995, including statements regarding WBD’s business, marketing and operating strategies, integration of acquired businesses, new service offerings, financial prospects, and anticipated sources and uses of capital. Words such as “anticipate,” “assume,” “believe,” “continue,” “estimate,” “expect,” “forecast,” “future,” “intend,” “plan,” “potential,” “predict,” “project,” “strategy,” “target” and similar terms, and future or conditional tense verbs like “could,” “may,” “might,” “should,” “will” and “would,” among other terms of similar substance used in connection with any discussion of future operating or financial performance identify forward-looking statements. Where, in any forward-looking statement, we express an expectation or belief as to future results or events, such expectation or belief is expressed in good faith and believed to have a reasonable basis, but there can be no assurance that the expectation or belief will result or be accomplished. The following is a list of some, but not all, of the factors that could cause actual results or events to differ materially from those anticipated:
| • | potential unknown liabilities, adverse consequences or unforeseen increased expenses associated with the WarnerMedia Business or our efforts to integrate the WarnerMedia Business; |
| • | inherent uncertainties involved in the estimates and assumptions used in the preparation of financial forecasts; |
| • | WBD’s level of debt, including the significant indebtedness incurred in connection with the acquisition of the WarnerMedia Business, and our future compliance with debt covenants; |
| • | more intense competitive pressure from existing or new competitors in the industries in which WBD operates; |
| • | reduced spending on domestic and foreign television advertising, due to industry trends or unexpected reductions in WBD’s number of subscribers; |
| • | industry trends, including the timing of, and spending on, sports programming, feature film, television and television commercial production; |
| • | market demand for foreign first-run and existing content libraries; |
| • | negative publicity or damage to our brands, reputation or talent; |
| • | uncertainties associated with product and service development and market acceptance, including the development and provision of programming for new television and telecommunications technologies, and the success of our HBO Max and discovery+ streaming products; |
| • | realizing direct-to-consumer subscriber goals; |
| • | general economic and business conditions, including the impact of the COVID-19 pandemic, adverse developments affecting financial institutions and the financial services industry, fluctuations in foreign currency exchange rates, and political unrest in the international markets in which WBD operates; |
| • | the possibility or duration of an industry-wide strike or other job action affecting a major entertainment industry union or others involved in the development and production of WBD’s sports programming, television programming, feature films and interactive entertainment (e.g., games) who are covered by collective bargaining agreements; |
| • | disagreements with WBD’s distributors or other business partners; |
| • | continued consolidation of distribution customers and production studios; |
| • | theft of WBD’s content and unauthorized duplication, distribution and exhibition of such content; |
| • | threatened or actual cyber-attacks and cybersecurity breaches; |
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| • | changes in, or failure or inability to comply with, laws and government regulations (including, without limitation, regulations of the Federal Communications Commission and similar authorities internationally and data privacy regulations) and adverse outcomes from regulatory proceedings; and |
| • | other risks detailed from time to time in WBD’s filings made with the SEC, including Annual Reports on Form 10-K and Quarterly Reports on Form 10-Q. |
These risks have the potential to impact the recoverability of the assets recorded on our balance sheets, including goodwill or other intangibles.
Additionally, many of these risks are currently amplified by and may, in the future, continue to be amplified by the prolonged impact of the COVID-19 pandemic. Therefore, actual outcomes and results may differ materially from what is expressed in our forward-looking statements and from our historical financial results due to the factors discussed above and elsewhere in this prospectus or in our other SEC filings. The factors discussed above are not intended to be a complete summary of all risks and uncertainties that may affect our businesses. We cannot anticipate all potential economic, operational and financial developments that may adversely affect our operations and our financial results.
You should read carefully the factors discussed under the heading “Risk Factors” in this prospectus and the documents incorporated by reference in this prospectus, including the risks and uncertainties discussed in “Item 1A. Risk Factors” of the 2022 WBD Annual Report. These forward-looking statements and such risks, uncertainties and other factors speak only as of the date of this prospectus and we expressly disclaim any obligation or undertaking to disseminate any updates or revisions to any forward-looking statement contained herein, to reflect any change in our expectations with regard thereto, or any other change in events, conditions or circumstances on which any such statement is based.
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Pursuant to the Registration Rights Agreement, we agreed to prepare and file with the SEC a registration statement on an appropriate form under the Securities Act with respect to a proposed offer to the holders of the Old Notes to issue and deliver to such holders of Old Notes, in exchange for their Old Notes, a like aggregate principal amount of New Notes that are identical in all material respects to the Old Notes, except for provisions relating to registration rights and the transfer restrictions relating to the Old Notes, and except for certain related differences described below. See “Exchange Offer; Registration Rights.”
General
On March 15, 2022, WMH issued $30.0 billion in aggregate principal amount of Notes, comprised of the following tranches: (1) $1.75 billion aggregate principal amount of its Old 2024 Notes, (2) $500.0 million aggregate principal amount of its Old 2024 NC1 Notes, (3) $1.75 billion aggregate principal amount of its Old 2025 Notes, (4) $500.0 million aggregate principal amount of its Old NC1 2025 Notes, (5) $4.0 billion aggregate principal amount of its Old 2027 Notes, (6) $1.5 billion aggregate principal amount of its Old 2029 Notes, (7) $5.0 billion aggregate principal amount of its Old 2032 Notes, (8) $4.5 billion aggregate principal amount of its Old 2042 Notes, (9) $7.0 billion aggregate principal amount of its Old 2052 Notes, (10) $3.0 billion aggregate principal amount of its Old 2062 and (11) $500.0 million aggregate principal amount of its Floating Rate Notes due 2024. The Spinco Notes included $10.0 billion in aggregate principal amount issued to AT&T, comprised of the following tranches: (1) $5.0 billion aggregate principal amount of its Old 2032 Notes, (2) $2.0 billion aggregate principal amount of its Old 2052 Notes and (3) $3.0 billion aggregate principal amount of its Old 2062 Notes (collectively, the “Spinco Debt Securities”), which were transferred to two investment banks in exchange for a short-term loan of AT&T held by affiliates of such investment banks as principal for their own account (the “Securities Exchange”). The Notes (including the Spinco Debt Securities) were resold to third-party investors in a private placement exempt from registration in accordance with Rule 144A and Regulation S under the Securities Act of 1933.
In connection with the issuance of the Old Notes, WMH entered into the Registration Rights Agreement dated as of March 15, 2022, with J.P. Morgan Securities LLC and Goldman Sachs & Co. LLC, as representatives of the initial purchasers. On April 8, 2022, in connection with the completion of the Merger, WBD, DCL and Scripps entered into the Counterpart to Registration Rights Agreement, agreeing to be bound by the terms of the Registration Rights Agreement. Pursuant to the Registration Rights Agreement, WMH has agreed (1) to use commercially reasonable efforts to consummate an exchange offer to exchange the Old Notes for registered Notes containing terms substantially similar in all material respects to the Old Notes (except that the New Notes will not be subject to transfer restrictions or any increase in annual interest rate) and evidencing the same indebtedness as the Old Notes and (2) if WMH determines that a registered exchange offer is not available or other specified circumstances occur, to have a shelf registration statement declared effective with respect to resales of the Old Notes. If we fail to satisfy the foregoing obligations under the Registration Rights Agreement by the later of (i) July 15, 2023 and (ii) 365 days of consummation of the Merger, we will be required to pay additional interest to the holders of the Old Notes under certain circumstances.
Terms of the Exchange Offer; Period for Tendering Old Notes
This prospectus and the accompanying letter of transmittal (the “letter of transmittal”) contain the terms and conditions of the exchange offer. Upon the terms and subject to the conditions included in this prospectus and in the accompanying letter of transmittal, which together constitute the exchange offer, we will accept for exchange Old Notes which are properly tendered on or prior to the Expiration Date, unless you have previously withdrawn them.
When you tender Old Notes as provided below, our acceptance of the Old Notes will constitute a binding agreement between you and us upon the terms and subject to the conditions in this prospectus and in the
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accompanying letter of transmittal. In tendering Old Notes, you should also note the following important information:
| • | You may only tender Old Notes in minimum denominations of $2,000 and any integral multiple of $1,000 in excess thereof. |
| • | We will keep the exchange offer open for not less than 20 business days, or shorter or longer if required by applicable law, after the date on which notice of the exchange offer is mailed to holders of the Old Notes. We are sending this prospectus, together with the letter of transmittal, on , 2023 to all of the registered holders of Old Notes at their addresses listed in the security registrar’s security register with respect to the Old Notes. |
| • | The exchange offer expires at 5:00 p.m., New York City time, on , 2023; provided, however, that we, in our sole discretion, may extend the period of time for which the exchange offer is open. |
| • | The exchange offer is not conditioned upon any minimum principal amount of Old Notes being tendered. |
| • | Our obligation to accept Old Notes for exchange in the exchange offer is subject to the conditions described under “—Conditions to the Exchange Offer.” |
| • | We expressly reserve the right, at any time, to extend the period of time during which the exchange offer is open, and thereby delay acceptance of any Old Notes, by giving oral (promptly followed in writing) or written notice of an extension to the Exchange Agent and notice of that extension to the holders of Notes as described below. During any extension, all Old Notes previously tendered will remain subject to the exchange offer unless withdrawal rights are exercised as described under “—Withdrawal Rights.” Any Old Notes not accepted for exchange for any reason will be returned without expense to the tendering holder of Notes promptly after the expiration or termination of the exchange offer. |
| • | We expressly reserve the right to amend or terminate the exchange offer, and to not accept for exchange any Old Notes that we have not yet accepted for exchange, at any time prior to the Expiration Date. If we make a material change to the terms of the exchange offer, including the waiver of a material condition, we will, to the extent required by law, disseminate additional offer materials and extend the period of time during which the exchange offer is open so that at least five business days remain in the exchange offer following notice of a material change. |
| • | We will give oral (promptly followed in writing) or written notice of any extension, amendment, termination or non-acceptance described above to holders of the Old Notes as promptly as practicable. If we extend the Expiration Date, we will give notice by means of a press release or other public announcement no later than 9:00 a.m., New York City time, on the business day after the previously scheduled Expiration Date. Without limiting the manner in which we may choose to make any public announcement and subject to applicable law, we will have no obligation to publish, advertise or otherwise communicate any public announcement other than by issuing a release to an appropriate news agency. Such announcement may state that we are extending the exchange offer for a specified period of time. |
| • | Holders of Old Notes do not have any appraisal or dissenters’ rights in connection with the exchange offer. |
| • | Old Notes which are not tendered for exchange, or are tendered but not accepted, in connection with the exchange offer will remain outstanding and be entitled to the benefits of the indenture, but will not be entitled to any further registration rights under the Registration Rights Agreement. |
| • | We intend to conduct the exchange offer in accordance with the applicable requirements of the Exchange Act and the rules and regulations of the SEC thereunder. |
| • | By executing, or otherwise becoming bound by, the letter of transmittal, you will be making to us the representations described under “—Resale of the New Notes.” |
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Important Rules Concerning the Exchange Offer
You should note the following important rules concerning the exchange offer:
| • | All questions as to the validity, form, eligibility, time of receipt and acceptance of Old Notes tendered for exchange will be determined by us in our sole discretion, which determination shall be final and binding. |
| • | We reserve the absolute right to reject any and all tenders of any particular Old Notes not properly tendered or to not accept any particular Old Notes if such acceptance might, in our judgment or the judgment of our counsel, be unlawful. |
| • | We also reserve the absolute right to waive any defects or irregularities or conditions of the exchange offer as to any particular Old Notes either before or after the Expiration Date, including the right to waive the ineligibility of any holder who seeks to tender Old Notes in the exchange offer. Unless we agree to waive any defect or irregularity in connection with the tender of Old Notes for exchange, you must cure any defect or irregularity within any reasonable period of time as we shall determine. |
| • | Our interpretation of the terms and conditions of the exchange offer as to any particular Old Notes either before or after the Expiration Date shall be final and binding on all parties. Neither we, the Exchange Agent nor any other person shall be under any duty to notify you of any defect or irregularity with respect to any tender of Old Notes for exchange, nor shall any of them incur any liability for failing to so notify you. |
Procedures for Tendering Old Notes
What to Submit and How
If you, as a holder of any Old Notes, wish to tender your Old Notes for exchange in the exchange offer, you must, except as described under “—Guaranteed Delivery Procedures,” transmit the following on or prior to the Expiration Date to the Exchange Agent:
| (1) | if Old Notes are tendered in accordance with the book-entry procedures described under “—Book-Entry Transfer,” an Agent’s Message, as defined below, transmitted through DTC’s ATOP, or |
| (2) | a properly completed and duly executed letter of transmittal, or a facsimile copy thereof, to the Exchange Agent at the address set forth below under “—Exchange Agent,” including all other documents required by the letter of transmittal. |
In addition,
| (1) | a timely confirmation of a book-entry transfer of Old Notes into the Exchange Agent’s account at DTC using the procedure for book-entry transfer described under “—Book-Entry Transfer” (a “Book-Entry Confirmation”), along with an Agent’s Message, must be actually received by the Exchange Agent prior to the Expiration Date, or |
| (2) | you must comply with the guaranteed delivery procedures described below. |
The term “Agent’s Message” means a message, transmitted through ATOP by DTC to, and received by, the Exchange Agent and forming a part of a Book-Entry Confirmation, that states that DTC has received an express acknowledgement that the tendering holder has received and agrees to be bound by the letter of transmittal or, in the case of an Agent’s Message relating to guaranteed delivery, that such holder has received and further agrees to be bound by the notice of guaranteed delivery, and that we may enforce the letter of transmittal, and the notice of guaranteed delivery, as the case may be, against such holder.
The method of delivery of Old Notes, letters of transmittal, notices of guaranteed delivery and all other required documentation, including delivery of Old Notes through DTC and transmission of Agent’s Messages
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through DTC’s ATOP, is at your election and risk. Delivery will be deemed made only when all required documentation is actually received by the Exchange Agent. Delivery of documents or instructions to DTC does not constitute delivery to the Exchange Agent. If delivery is by mail, we recommend that registered mail, properly insured, with return receipt requested, be used. In all cases, sufficient time should be allowed to assure timely delivery to the Exchange Agent. Holders tendering Old Notes or transmitting Agent’s Messages through DTC’s ATOP must allow sufficient time for completion of ATOP procedures during DTC’s normal business hours. No Old Notes, Agent’s Messages, letters of transmittal, notices of guaranteed delivery or any other required documentation should be sent to us.
How to Sign Your Letter of Transmittal and Other Documents
Signatures on a letter of transmittal or a notice of withdrawal, as the case may be, must be guaranteed unless the Old Notes being surrendered for exchange are tendered:
| (1) | by a registered holder of the Old Notes who has not completed the box entitled “Special Issuance Instructions” or “Special Delivery Instructions” on the letter of transmittal, or |
| (2) | for the account of an “eligible guarantor” institution within the meaning of Rule 17Ad-15 under the Exchange Act, or a commercial bank or trust company having an office or correspondent in the United States that is a member in good standing of a medallion program recognized by the Securities Transfer Association Inc., including the Securities Transfer Agents Medallion Program (“STAMP”), the Stock Exchanges Medallion Program (“SEMP”) and the New York Stock Exchange Medallion Signature Program (“MSP”) (each, an “Eligible Institution”). |
If signatures on a letter of transmittal or a notice of withdrawal, as the case may be, are required to be guaranteed, the guarantees must be by an Eligible Institution.
If the letter of transmittal is signed by a person or persons other than the registered holder or holders of Old Notes, the Old Notes must be endorsed or accompanied by appropriate powers of attorney, in either case signed exactly as the name or names of the registered holder or holders appear on the Old Notes and with the signatures guaranteed.
If the letter of transmittal or any Old Notes or powers of attorney are signed by trustees, executors, administrators, guardians, attorneys-in-fact, officers or corporations or others acting in a fiduciary or representative capacity, the person should so indicate when signing and, unless waived by us, proper evidence satisfactory to us of such person’s authority to so act must be submitted.
Acceptance of Old Notes for Exchange; Delivery of New Notes
Once all of the conditions to the exchange offer are satisfied or waived, we will accept all Old Notes properly tendered and not properly withdrawn, and will issue the New Notes of the same series, promptly after the Expiration Date. See “—Conditions to the Exchange Offer” below. For purposes of the exchange offer, our giving of oral (promptly followed in writing) or written notice of acceptance to the Exchange Agent will be considered our acceptance of the tendered Old Notes.
In all cases, we will issue New Notes in exchange for Old Notes of the same series that are accepted for exchange only after timely receipt by the Exchange Agent of:
| • | a Book-Entry Confirmation or Old Notes in proper form for transfer, |
| • | a properly transmitted Agent’s Message or a properly completed and duly executed letter of transmittal, and |
| • | all other required documentation. |
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If we do not accept any tendered Old Notes for any reason included in the terms and conditions of the exchange offer, if you submit certificates representing Old Notes in a greater principal amount than you wish to exchange or if you properly withdraw tendered Old Notes in accordance with the procedures described under “—Withdrawal Rights,” we will return any unaccepted, non-exchanged or properly withdrawn Old Notes, as the case may be, without expense to the tendering holder. In the case of Old Notes tendered by book-entry transfer into the Exchange Agent’s account at DTC using the book-entry transfer procedures described below, unaccepted, non-exchanged or properly withdrawn Old Notes will be credited to an account maintained with DTC. We will return the Old Notes or have them credited to the DTC account, as applicable, promptly after the expiration or termination of the exchange offer.
Book-Entry Transfer
The Exchange Agent will make a request to establish an account with respect to the Old Notes at DTC for purposes of the exchange offer promptly after the date of this prospectus. Any financial institution that is a participant in DTC’s systems, including Euroclear Bank, S.A./N.V., as operator of the Euroclear System (“Euroclear”), or Clearstream Banking, S.A. (“Clearstream”) may make book-entry delivery of Old Notes by causing DTC to transfer Old Notes into the Exchange Agent’s account at DTC in accordance with DTC’s ATOP procedures for transfer. However, the exchange for the Old Notes so tendered will only be made after timely confirmation of book-entry transfer of Old Notes into the Exchange Agent’s account, and timely receipt by the Exchange Agent of an Agent’s Message and all other documents required by the letter of transmittal. Only participants in DTC may deliver Old Notes by book-entry transfer.
Although delivery of Old Notes may be effected through book-entry transfer into the Exchange Agent’s account at DTC, the letter of transmittal, or a facsimile copy thereof, properly completed and duly executed, with any required signature guarantees, or an Agent’s Message, with all other required documentation, must in any case be transmitted to and received by the Exchange Agent at its address listed under “—Exchange Agent” on or prior to the Expiration Date, or you must comply with the guaranteed delivery procedures described below under “—Guaranteed Delivery Procedures.”
If your Old Notes are held through DTC, you must complete the accompanying form called “Instructions to Registered Holder and/or Book-Entry Participant,” which will instruct the DTC participant through whom you hold your Old Notes of your intention to tender your Old Notes or not tender your Old Notes. Please note that delivery of documents or instructions to DTC does not constitute delivery to the Exchange Agent and we will not be able to accept your tender of Old Notes until the Exchange Agent actually receives from DTC the information and documentation described under “—Acceptance of Old Notes for Exchange; Delivery of New Notes.”
Guaranteed Delivery Procedures
If you are a registered holder of Old Notes and you want to tender your Old Notes but the procedure for book-entry transfer cannot be completed prior to the Expiration Date, your Old Notes are not immediately available or time will not permit your Old Notes to reach the Exchange Agent before the Expiration Date, a tender may be effected if:
| • | the tender is made through an Eligible Institution, as defined above, |
| • | prior to the Expiration Date, the Exchange Agent receives from such Eligible Institution, by facsimile transmission, mail or hand delivery, a properly completed and duly executed notice of guaranteed delivery, substantially in the form provided by us, or an Agent’s Message with respect to guaranteed delivery in lieu thereof, in either case stating: |
| • | the name and address of the holder of Old Notes, |
| • | the amount of Old Notes tendered, |
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| • | that the tender is being made by delivering such notice and guaranteeing that, within three Nasdaq trading days after the Expiration Date, a Book-Entry Confirmation or the certificates for all physically tendered Old Notes, in proper form for transfer, together with either an appropriate Agent’s Message or a properly completed and duly executed letter of transmittal in lieu thereof, and all other required documentation, will be deposited by that Eligible Institution with the Exchange Agent, and |
| • | a Book-Entry Confirmation or the certificates for all physically tendered Old Notes, in proper form for transfer, together with either an appropriate Agent’s Message or a properly completed and duly executed letter of transmittal in lieu thereof, and all other required documentation, are received by the Exchange Agent within three Nasdaq trading days after the Expiration Date. |
Withdrawal Rights
You can withdraw your tender of Old Notes at any time on or prior to 5:00 p.m., New York City time, on the Expiration Date.
For a withdrawal to be effective, a written notice of withdrawal must be actually received by the Exchange Agent prior to such time, properly transmitted either through DTC’s ATOP or to the Exchange Agent at the address listed below under “—Exchange Agent.” Any notice of withdrawal must:
| • | specify the name of the person having tendered the Old Notes to be withdrawn; |
| • | identify the Old Notes to be withdrawn; |
| • | specify the principal amount of the Old Notes to be withdrawn; |
| • | contain a statement that the tendering holder is withdrawing its election to have such Notes exchanged for New Notes; |
| • | except in the case of a notice of withdrawal transmitted through DTC’s ATOP system, be signed by the holder in the same manner as the original signature on the letter of transmittal by which the Old Notes were tendered, including any required signature guarantees, or be accompanied by documents of transfer to have the security registrar with respect to the Old Notes register the transfer of the Old Notes in the name of the person withdrawing the tender; |
| • | if certificates for Old Notes have been delivered to the Exchange Agent, specify the name in which the Old Notes are registered, if different from that of the withdrawing holder; |
| • | except in the case of a notice of withdrawal transmitted through DTC’s ATOP system, include a notice of withdrawal signed in the same manner as the letter of transmittal by which the Old Notes were tendered, including any required signature guarantees; and |
| • | specify the name and number of the account at DTC from which the Old Notes were tendered and the name and number of the account at DTC to be credited with the withdrawn Old Notes, and otherwise comply with the procedures of DTC. |
Please note that all questions as to the validity, form, eligibility and time of receipt of notices of withdrawal will be determined by us, and our determination shall be final and binding on all parties. Any Old Notes so withdrawn will be considered not to have been validly tendered for exchange for purposes of the exchange offer. New Notes will not be issued in exchange for such withdrawn Old Notes unless the Old Notes so withdrawn are validly re-tendered.
If you have properly withdrawn Old Notes and wish to re-tender them, you may do so by following one of the procedures described under “—Procedures for Tendering Old Notes” above at any time on or prior to the Expiration Date.
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Conditions to the Exchange Offer
Notwithstanding any other provisions of the exchange offer, we will not be required to accept for exchange, or to issue New Notes in exchange for, any Old Notes and may terminate or amend the exchange offer, if we determine in our reasonable judgment at any time before the Expiration Date that the exchange offer would violate applicable law or any applicable interpretation of the staff of the SEC.
The foregoing conditions are for our sole benefit and may be waived by us regardless of the circumstances giving rise to that condition. Our failure at any time to exercise the foregoing rights shall not be considered a waiver by us of that right. The rights described in the prior paragraph are ongoing rights which we may assert at any time and from time to time.
In addition, we will not accept for exchange any Old Notes tendered, and no New Notes will be issued in exchange for any such Old Notes, if at any time any stop order is threatened or in effect with respect to the registration statement of which this prospectus constitutes a part or the qualification of the indenture under the Trust Indenture Act.
We reserve the right to terminate or amend the exchange offer at any time prior to the Expiration Date upon the occurrence of any of the foregoing events.
Exchange Agent
U.S. Bank Trust Company, National Association has been appointed as the Exchange Agent for the exchange offer. All executed letters of transmittal, notices of guaranteed delivery, notices of withdrawal and any other required documentation should be directed to the Exchange Agent at the address set forth below. Questions and requests for assistance, requests for additional copies of this prospectus or of the letter of transmittal and requests for notices of guaranteed delivery should be directed to the Exchange Agent, addressed as follows:
| Deliver To: | ||||
| By registered or certified mail, hand delivery or overnight courier: | By facsimile (for Eligible Institutions Only): |
To confirm by telephone or for information call: | ||
| U.S. Bank Trust Company, National Association Corporate Actions 111 Fillmore Avenue St. Paul, MN 55107-1402 |
Facsimile: (651) 466-7367 |
(800) 934-6802 | ||
Delivery to an address other than the address of the Exchange Agent as listed above or transmission of instructions via facsimile other than as listed above does not constitute a valid delivery.
Fees and Expenses
The principal solicitation is being made by mail; however, additional solicitation may be made by telephone or in person by our officers, regular employees and affiliates. We will not pay any additional compensation to any of our officers and employees who engage in soliciting tenders. We will not make any payment to brokers, dealers or others soliciting acceptances of the exchange offer. However, we will pay the Exchange Agent reasonable and customary fees for its services and will reimburse it for its reasonable out-of-pocket expenses in connection with the exchange offer.
The estimated cash expenses to be incurred in connection with the exchange offer, including legal, accounting, SEC filing, printing and Exchange Agent expenses, will be paid by us and are estimated in the aggregate to be approximately $3,800,000.
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Transfer Taxes
Holders who tender their Old Notes for exchange will not be obligated to pay any transfer taxes in connection therewith, except that holders who instruct us to register New Notes in the name of, or request that Old Notes not tendered or not accepted in the exchange offer be returned to, a person other than the registered tendering holder will be responsible for the payment of any applicable transfer tax.
Resale of the New Notes
Under existing interpretations of the staff of the SEC contained in several no-action letters to third parties, the New Notes would in general be freely transferable by holders thereof (other than affiliates of us) after the exchange offer without further registration under the Securities Act (subject to certain representations required to be made by each holder of Old Notes participating in the exchange offer, as set forth below). The relevant no-action letters include the Exxon Capital Holdings Corporation letter, which was made available by the SEC on May 13, 1988, the Morgan Stanley & Co. Incorporated letter, which was made available by the SEC on June 5, 1991, the K-111 Communications Corporation letter, which was made available by the SEC on May 14, 1993, and the Shearman & Sterling letter, which was made available by the SEC on July 2, 1993. Neither WMH nor any guarantor, nor any of their affiliates, have entered into any arrangement or understanding with any person to distribute the securities to be received in the exchange offer and, to the best of our information and belief, each person participating in the exchange offer is (i) neither an “affiliate” of WMH or any guarantor within the meaning of Rule 405 under the Securities Act, nor a broker-dealer acquiring the securities in exchange for securities acquired directly from WMH or any guarantor for its own account, (ii) acquiring the securities in its ordinary course of business, and (iii) is not engaged in, and does not intend to engage in, the distribution of the securities to be received in the exchange offer and has no arrangement or understanding with any person to participate in the distribution of the securities to be received in the exchange offer.
However, any purchaser of Old Notes who is an “affiliate” of ours or who intends to participate in the exchange offer for the purpose of distributing the New Notes:
| • | will not be able to rely on such SEC interpretation; |
| • | will not be able to tender its Old Notes in the exchange offer; and |
| • | must comply with the registration and prospectus delivery requirements of the Securities Act in connection with any sale or transfer of Old Notes unless such sale or transfer is made pursuant to an exemption from those requirements. |
We acknowledge that such secondary resale transactions should be covered by an effective registration statement containing the selling security holder information required by Item 507 of Regulation S-K promulgated under the Securities Act.
By executing, or otherwise becoming bound by, the letter of transmittal, each holder of the Old Notes will represent that:
| • | any New Notes to be received by such holder will be acquired in the ordinary course of its business; |
| • | it has no arrangements or understandings with any person to participate in the distribution of the Notes within the meaning of the Securities Act; and |
| • | it is not an “affiliate” of us or, if it is such an affiliate, such holder will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable. |
We have not sought, and do not intend to seek, a no-action letter from the SEC with respect to the effects of the exchange offer, and there can be no assurance that the SEC staff would make a similar determination with respect to the New Notes as it has made in previous no-action letters.
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In addition, in connection with any resales of those Old Notes, each exchanging dealer, as defined below, receiving New Notes for its own account in exchange for Old Notes, where such Old Notes were acquired by such exchanging dealer as a result of market-making activities or other trading activities, must acknowledge that it may be a statutory underwriter and that it must deliver a prospectus meeting the requirements of the Securities Act in connection with any resale of such New Notes. See “Plan of Distribution.”
The SEC has taken the position in the Shearman & Sterling no-action letter, which it made available on July 2, 1993, that exchanging dealers may fulfill their prospectus delivery requirements with respect to the New Notes, other than a resale of an unsold allotment from the original sale of the Old Notes, by delivery of the prospectus contained in the exchange offer registration statement.
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The exchange offer is intended to satisfy our obligations under the Registration Rights Agreement we entered into in connection with the private offering of the Old Notes. We will not receive any cash proceeds from the issuance of the New Notes pursuant to the exchange offer. In consideration for issuing the New Notes as contemplated by this prospectus, we will receive Old Notes in like principal amounts, the terms of which are identical in all material respects to the New Notes, subject to limited exceptions described herein. Old Notes surrendered in exchange for New Notes will be retired and canceled and cannot be reissued. Accordingly, the issuance of the New Notes will not result in any increase in our indebtedness.
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General
WarnerMedia Holdings, Inc. will issue each series of the New Notes as a separate series of debt securities. Each series of the Old Notes were, and each series of the New Notes will be, issued under the senior indenture, dated as of March 15, 2022 (the “base indenture”), among WMH, AT&T Inc., and U.S. Bank Trust Company, National Association, as trustee (the “Trustee”), as amended and supplemented by the first supplemental indenture, dated as of April 8, 2022, among WMH, WBD, DCL, Scripps and the Trustee (the “first supplemental indenture”). We refer to the base indenture, as amended and supplemented by the first supplemental indenture, as the “indenture.” The terms of the New Notes will be substantially identical to the terms of the Old Notes except that the New Notes will be registered under the Securities Act and will not contain restrictions on transfer or provisions relating to additional interest, will bear different CUSIP numbers and ISINs from the Old Notes, and will not entitle their holders to registration rights. New Notes will otherwise be treated as a single class with the Old Notes for purposes of the indenture.
Because this is a summary, it does not contain all the information that may be important to you. The following description of specific terms of the New Notes of each series is qualified in its entirety by reference to the provisions of the indenture, including the definitions of certain terms contained therein and those terms made part of the indenture by reference to the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”). Capitalized and other terms not otherwise defined in this prospectus have the meanings given to them in the indenture. As used in this “Description of Notes,” “we,” “our,” “us,” and “WMH” refer to WarnerMedia Holdings, Inc., the “Parent Guarantor” refers to Warner Bros. Discovery, Inc., “DCL” refers to Discovery Communications, LLC, “Scripps” refers to Scripps Networks Interactive, Inc., and the “Guarantors” refers to WBD, DCL and Scripps, collectively. Such terms do not, unless the context otherwise indicates, include the subsidiaries of such entities. The terms of each series of New Notes include those stated in the indenture and those which are made a part of the indenture by the Trust Indenture Act. A copy of the indenture is available for inspection at the office of the Trustee.
The Notes will be issued only in registered form, without coupons, in minimum denominations of $2,000 and integral multiples of $1,000 in excess thereof. The registered holder of a New Note will be treated as the owner of the New Note for all purposes. Only registered holders will have rights under the indenture.
The New Notes
The specific terms of each series of New Notes are set forth below:
| • | Title: 3.428% Senior Notes due 2024, 3.528% Senior Notes due 2024, 3.638% Senior Notes due 2025, 3.788% Senior Notes due 2025, 3.755% Senior Notes due 2027, 4.054% Senior Notes due 2029, 4.279%, Senior Notes due 2032, 5.050% Senior Notes due 2042, 5.141% Senior Notes due 2052, 5.391% Senior Notes due 2062 and Floating Rate Senior Notes due 2024. |
| • | Initial principal amount being issued: $1,750,000,000 in aggregate principal amount of 3.428% Senior Notes due 2024, $500,000,000 in aggregate principal amount of 3.528% Senior Notes due 2024, $1,750,000,000 in aggregate principal amount of 3.638% Senior Notes due 2025, $500,000,000 in aggregate principal amount of 3.788% Senior Notes due 2025, $4,000,000,000 in aggregate principal amount of 3.755% Senior Notes due 2027, $1,500,000,000 in aggregate principal amount of 4.054% Senior Notes due 2029, $5,000,000,000 in aggregate principal amount of 4.279% Senior Notes due 2032, $4,500,000,000 in aggregate principal amount of 5.050% Senior Notes due 2042, $7,000,000,000 in aggregate principal amount of 5.141% Senior Notes due 2052, $3,000,000,000 in aggregate principal amount of 5.391% Senior Notes due 2062 and $500,000,000 in aggregate principal amount of Floating Rate Senior Notes due 2024. |
| • | Stated maturity date: The 3.428% Senior Notes due 2024 will mature on March 15, 2024, the 3.528% Senior Notes due 2024 will mature on March 15, 2024, the 3.638% Senior Notes due 2025 will mature |
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| on March 15, 2025, the 3.788% Senior Notes due 2025 will mature on March 15, 2025, the 3.755% Senior Notes due 2027 will mature on March 15, 2027, the 4.054% Senior Notes due 2029 will mature on March 15, 2029, the 4.279% Senior Notes due 2032 will mature on March 15, 2032, the 5.050% Senior Notes due 2042 will mature on March 15, 2042, the 5.141% Senior Notes due 2052 will mature on March 15, 2052, the 5.391% Senior Notes due 2062 will mature on March 15, 2062 and the Floating Rate Senior Notes due 2024 will mature on March 15, 2024. |
| • | Form of Notes: The New Notes of each series will be in the form of one or more global Notes that WMH will deposit with or on behalf of DTC. |
| • | Sinking fund: The New Notes will not be subject to any sinking fund. |
| • | Ranking: Each series of the New Notes will constitute a separate series of the WMH’s unsecured and unsubordinated senior debt securities, ranking equally and ratably with any other unsecured and unsubordinated debt of WMH. See “—Ranking” below. |
| • | Guarantees: Payment of the principal of (and premium, if any, on) and interest on the New Notes, and all other amounts due under the indenture, will be unconditionally guaranteed on a senior unsecured basis by WBD in its capacity as the Parent Guarantor and by each of WBD’s wholly owned Domestic Subsidiaries that are required to become Subsidiary Guarantors. See “—Guarantees” below. |
Interest on the Fixed Rate Notes
The 3.428% Senior Notes due 2024, the 3.528% Senior Notes due 2024, the 3.638% Senior Notes due 2025, the 3.788% Senior Notes due 2025, the 3.755% Senior Notes due 2027, the 4.054% Senior Notes due 2029, the 4.279% Senior Notes due 2032, the 5.050% Senior Notes due 2042, the 5.141% Senior Notes due 2052, and the 5.391% Senior Notes due 2062 are referred to herein as “Fixed Rate Notes.”
| • | Interest rate: The 3.428% Senior Notes due 2024 will bear interest at the rate of 3.428% per annum, the 3.528% Senior Notes due 2024 will bear interest at the rate of 3.528% per annum, the 3.638% Senior Notes due 2025 will bear interest at the rate of 3.638% per annum, the 3.788% Senior Notes due 2025 will bear interest at the rate of 3.788% per annum, the 3.755% Senior Notes due 2027 will bear interest at the rate of 3.755% per annum, the 4.054% Senior Notes due 2029 will bear interest at the rate of 4.054% per annum, the 4.279% Senior Notes due 2032 will bear interest at the rate of 4.279% per annum, the 5.050% Senior Notes due 2042 will bear interest at the rate of 5.050% per annum, the 5.141% Senior Notes due 2052 will bear interest at the rate of 5.141% per annum and the 5.391% Senior Notes due 2062 will bear interest at the rate of 5.391% per annum. |
| • | Date interest starts accruing: Interest on the Fixed Rate Notes will accrue from the date on which interest on the Old Notes was most recently paid or duly provided for. |
| • | Interest payment dates: Interest on the Fixed Rate Notes will be paid on March 15 and September 15 of each year. |
| • | First interest payment date: The first interest payment on the Fixed Rate Notes will be made on September 15, 2023. |
| • | Regular record dates for interest: The regular record dates for interest on the Fixed Rate Notes will be March 1 and September 1 of each year. |
| • | Computation of interest: Interest on the Fixed Rate Notes will be computed on the basis of a 360-day year consisting of twelve 30-day months. |
Interest on the Floating Rate Notes
The Floating Rate Senior Notes due 2024 are referred to herein as “Floating Rate Notes.”
| • | Interest on the Floating Rate Notes will accrue at a rate equivalent to Compounded SOFR (as defined below) plus 1.78% per annum. The Floating Rate Notes will bear interest from the date of issuance of |
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| the Old Notes or, if interest has already been paid or duly provided for, from the date it was most recently paid or duly provided for. Interest on the Floating Rate Notes will be payable quarterly on March 15, June 15, September 15 and December 15 of each year, beginning on June 15, 2023 (each such date being a “floating rate interest payment date” and, together with each fixed rate interest payment date, an “interest payment date”), and on the maturity date of the Floating Rate Notes. Interest will be payable on the Floating Rate Notes to the persons in whose names such Floating Rate Notes are registered at the close of business on the 15th calendar day preceding each floating rate interest payment date, whether or not a business day, as the case may be. However, interest that WMH pays on the maturity date will be payable to the person to whom the principal will be payable. Interest on the Floating Rate Notes will be computed on the basis of a 360-day year and the actual number of days in the Observation Period (as defined below). |
| • | If any floating rate interest payment date would otherwise be a day that is not a business day, WMH will make the interest payment on the next succeeding business day, unless such next succeeding business day is in the next succeeding calendar month, in which case (other than the maturity date) WMH will make the interest payment on the immediately preceding business day. If an interest payment is made on the next succeeding business day, no interest will accrue as a result of the delay in payment. If a maturity date or a redemption date for the Floating Rate Notes falls on a day that is not a business day, the payment due on such date will be postponed to the next succeeding business day, and no further interest will accrue in respect of such postponement. |
| • | As further described herein, on each Interest Payment Determination Date relating to the applicable floating rate interest payment date, the calculation agent will calculate the amount of accrued interest payable on the Floating Rate Notes for each interest period by multiplying (i) the outstanding principal amount of the Floating Rate Notes by (ii) the product of (a) the interest rate for the relevant interest period multiplied by (b) the quotient of the actual number of calendar days in such Observation Period divided by 360. In no event will the interest on the Floating Rate Notes be less than zero. |
| • | The term “interest period,” with respect to the Floating Rate Notes, means (i) the period commencing on any floating rate interest payment date for the Floating Rate Notes to but excluding the next succeeding floating rate interest payment date for the Floating Rate Notes, (ii) in the case of the last such period, from and including the floating rate interest payment date for the Floating Rate Notes immediately preceding the maturity date for the Floating Rate Notes to, but excluding, such maturity date or (iii) in the event of any redemption of any Floating Rate Notes, from and including the floating rate interest payment date immediately preceding the applicable redemption date to, but excluding, such redemption date. |
Secured Overnight Financing Rate and the SOFR Index
SOFR is published by the Federal Reserve Bank of New York and is intended to be a broad measure of the cost of borrowing cash overnight collateralized by U.S. Treasury securities.
The SOFR Index is published by the Federal Reserve Bank of New York and measures the cumulative impact of compounding SOFR on a unit of investment over time, with the initial value set to 1.00000000 on April 2, 2018, the first value date of SOFR. The SOFR Index value reflects the effect of compounding SOFR each business day and allows the calculation of compounded SOFR averages over custom time periods.
The Federal Reserve Bank of New York notes on its publication page for the SOFR Index that use of the SOFR Index is subject to important limitations, indemnification obligations and disclaimers, including that the Federal Reserve Bank of New York may alter the methods of calculation, publication schedule, rate revision practices or availability of the SOFR Index at any time without notice. The interest rate for any interest period will not be adjusted for any modifications or amendments to the SOFR Index or SOFR data that the Federal Reserve Bank of New York may publish after the interest rate for that interest period has been determined.
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Compounded SOFR
“Compounded SOFR” will be determined by the calculation agent in accordance with the following formula (and the resulting percentage will be rounded, if necessary, to the nearest one hundred-thousandth of a percentage point):
where:
“SOFR IndexStart” equals the SOFR Index value on the preceding Interest Payment Determination Date;
“SOFR IndexEnd” equals the SOFR Index value on the Interest Payment Determination Date relating to the applicable floating rate interest payment date (or in the final interest period, relating to the applicable maturity date); and
“dc” is the number of calendar days in the relevant Observation Period.
For purposes of determining Compounded SOFR,
“Interest Payment Determination Date” means the date two U.S. Government Securities Business Days before each floating rate interest payment date.
“Observation Period” means, in respect of each interest period, the period from, and including, the date two U.S. Government Securities Business Days preceding the first date in such interest period to, but excluding, the date two U.S. Government Securities Business Days preceding the floating rate interest payment date for such interest period (or in the final interest period, preceding the applicable maturity date).
“SOFR Index” means, with respect to any U.S. Government Securities Business Day:
| (1) | the SOFR Index value as published by the SOFR Administrator as such index appears on the SOFR Administrator’s Website at 3:00 p.m. (New York time) on such U.S. Government Securities Business Day (the “SOFR Index Determination Time”); provided that: |
| (2) | if a SOFR Index value does not so appear as specified in (1) above at the SOFR Index Determination Time, then: (i) if a Benchmark Transition Event and its related Benchmark Replacement Date have not occurred with respect to SOFR, then Compounded SOFR shall be the rate determined pursuant to the “SOFR Index Unavailable Provisions” described below; or (ii) if a Benchmark Transition Event and its related Benchmark Replacement Date have occurred with respect to SOFR, then Compounded SOFR shall be the rate determined pursuant to the “Effect of a Benchmark Transition Event” provisions described below. |
“SOFR” means the daily secured overnight financing rate as provided by the SOFR Administrator on the SOFR Administrator’s Website.
“SOFR Administrator” means the Federal Reserve Bank of New York (or a successor administrator of SOFR).
“SOFR Administrator’s Website” means the website of the Federal Reserve Bank of New York, currently at http://www.newyorkfed.org, or any successor source.
“U.S. Government Securities Business Day” means any day except for a Saturday, a Sunday or a day on which the Securities Industry and Financial Markets Association recommends that the fixed income departments of its members be closed for the entire day for purposes of trading in U.S. government securities.
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Notwithstanding anything to the contrary in the documentation relating to the Floating Rate Notes, if WMH or its designee determines on or prior to the relevant Reference Time that a Benchmark Transition Event and its related Benchmark Replacement Date (each as defined below) have occurred with respect to determining Compounded SOFR, then the benchmark replacement provisions set forth below under “Effect of Benchmark Transition Event” will thereafter apply to all determinations of the rate of interest payable the Floating Rate Notes.
For the avoidance of doubt, in accordance with the benchmark replacement provisions, after a Benchmark Transition Event and its related Benchmark Replacement Date have occurred, the interest rate for each interest period on the Floating Rate Notes will be an annual rate equal to the sum of the Benchmark Replacement (as defined below) and the applicable margin.
SOFR Index Unavailable Provisions
If a SOFR IndexStart or SOFR IndexEnd is not published on the associated Interest Payment Determination Date and a Benchmark Transition Event and its related Benchmark Replacement Date have not occurred with respect to SOFR, “Compounded SOFR” means, for the applicable interest period for which such index is not available, the rate of return on a daily compounded interest investment calculated in accordance with the formula for SOFR Averages, and definitions required for such formula, published on the SOFR Administrator’s Website at https://www.newyorkfed.org/markets/reference-rates/additional-information-about-reference-rates. For the purposes of this provision, references in the SOFR Averages compounding formula and related definitions to “calculation period” shall be replaced with “Observation Period” and the words “that is, 30-, 90-, or 180- calendar days” shall be removed. If SOFR does not so appear for any day, “i” in the Observation Period, SOFRi for such day “i” shall be SOFR published in respect of the first preceding U.S. Government Securities Business Day for which SOFR was published on the SOFR Administrator’s Website.
Effect of Benchmark Transition Event
| (1) | Benchmark Replacement. If WMH or its designee determines that a Benchmark Transition Event and its related Benchmark Replacement Date have occurred prior to the Reference Time (as defined below) in respect of any determination of the Benchmark on any date, the Benchmark Replacement will replace the then-current Benchmark for all purposes relating to the Floating Rate Notes in respect of such determination on such date and all determinations on all subsequent dates. |
| (2) | Benchmark Replacement Conforming Changes. In connection with the implementation of a Benchmark Replacement, WMH or its designee will have the right to make Benchmark Replacement Conforming Changes from time to time. |
| (3) | Decisions and Determinations. Any determination, decision or election that may be made by WMH or its designee pursuant to the benchmark replacement provisions described herein, including any determination with respect to tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action or any selection: |
| • | will be conclusive and binding absent manifest error; |
| • | if made by WMH, will be made in its sole discretion; |
| • | if made by WMH’s designee, will be made after consultation with the Issuer, and such designee will not make any such determination, decision or election to which the Issuer objects; and |
| • | notwithstanding anything to the contrary in this prospectus relating to the Floating Rate Notes, shall become effective without consent from the holders of the Floating Rate Notes or any other party. |
Any determination, decision or election pursuant to the benchmark replacement provisions shall be made by WMH or WMH’s designee (which may be an affiliate of WMH but in no event shall be the initial calculation
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agent, the Trustee or the initial paying agent) on the basis as described above. The calculation agent shall have no liability for not making any such determination, decision or election.
“Benchmark” means, initially, Compounded SOFR, as such term is defined above; provided that if WMH (or WMH’s designee) determines that a Benchmark Transition Event and its related Benchmark Replacement Date have occurred with respect to Compounded SOFR (or the published SOFR Index used in the calculation thereof) or the then-current Benchmark, then “Benchmark” means the applicable Benchmark Replacement.
“Benchmark Replacement” means the first alternative set forth in the order below that can be determined by WMH or its designee as of the Benchmark Replacement Date; provided that if the Benchmark Replacement cannot be determined in accordance with clause (1) below as of the Benchmark Replacement Date and WMH or its designee shall have determined that the ISDA Fallback Rate determined in accordance with clause (2) below is not an industry-accepted rate of interest as a replacement for the then-current Benchmark for U.S. dollar-denominated Floating Rate Notes at such time, then clause (2) below shall be disregarded, and the Benchmark Replacement shall be determined in accordance with clause (3) below:
| (1) | the sum of: (a) an alternate rate of interest that has been selected or recommended by the Relevant Governmental Body as the replacement for the then-current Benchmark and (b) the Benchmark Replacement Adjustment; |
| (2) | the sum of: (a) the ISDA Fallback Rate and (b) the Benchmark Replacement Adjustment; or |
| (3) | the sum of: (a) the alternate rate of interest that has been selected by WMH or its designee as the replacement for the then-current Benchmark giving due consideration to any industry-accepted rate of interest as a replacement for the then-current Benchmark for U.S. dollar denominated Floating Rate Notes at such time and (b) the Benchmark Replacement Adjustment. |
“Benchmark Replacement Adjustment” means the first alternative set forth in the order below that can be determined by WMH or its designee as of the Benchmark Replacement Date:
| (1) | the spread adjustment (which may be a positive or negative value or zero), or method for calculating or determining such spread adjustment, that has been selected or recommended by the Relevant Governmental Body for the applicable Unadjusted Benchmark Replacement; |
| (2) | if the applicable Unadjusted Benchmark Replacement is equivalent to the ISDA Fallback Rate, the ISDA Fallback Adjustment; or |
| (3) | the spread adjustment (which may be a positive or negative value or zero) that has been selected by WMH or its designee giving due consideration to any industry-accepted spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of the then-current Benchmark with the applicable Unadjusted Benchmark Replacement for U.S. dollar denominated Floating Rate Notes at such time. |
“Benchmark Replacement Conforming Changes” means, with respect to any Benchmark Replacement, any technical, administrative or operational changes (including changes to the definitions or interpretations of interest period, the timing and frequency of determining rates and making payments of interest, the rounding of amounts or tenors, and other technical, administrative or operational matters) that WMH (or its designee) decide may be appropriate to reflect the adoption of such Benchmark Replacement in a manner substantially consistent with market practice (or, if WMH or its designee decides that adoption of any portion of such market practice is not administratively feasible or if WMH (or its designee) determines that no market practice for use of the Benchmark Replacement exists, in such other manner as WMH (or its designee) determines is reasonably practicable).
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“Benchmark Replacement Date” means the earliest to occur of the following events with respect to the then-current Benchmark (including any daily published component used in the calculation thereof):
| (1) | in the case of clause (1) or (2) of the definition of “Benchmark Transition Event,” the later of (a) the date of the public statement or publication of information referenced therein and (b) the date on which the administrator of the Benchmark permanently or indefinitely ceases to provide the Benchmark (or such component); or |
| (2) | in the case of clause (3) of the definition of “Benchmark Transition Event,” the date of the public statement or publication of information referenced therein. |
For the avoidance of doubt, if the event giving rise to the Benchmark Replacement Date occurs on the same day as, but earlier than, the Reference Time in respect of any determination, the Benchmark Replacement Date will be deemed to have occurred prior to the Reference Time for such determination.
“Benchmark Transition Event” means the occurrence of one or more of the following events with respect to the then-current Benchmark (including the daily published component used in the calculation thereof):
| (1) | a public statement or publication of information by or on behalf of the administrator of the Benchmark (or such component) announcing that such administrator has ceased or will cease to provide the Benchmark (or such component), permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide the Benchmark (or such component) |
| (2) | a public statement or publication of information by the regulatory supervisor for the administrator of the Benchmark (or such component), the central bank for the currency of the Benchmark (or such component), an insolvency official with jurisdiction over the administrator for the Benchmark (or such component), a resolution authority with jurisdiction over the administrator for the Benchmark (or such component) or a court or an entity with similar insolvency or resolution authority over the administrator for the Benchmark (or such component), which states that the administrator of the Benchmark (or such component) has ceased or will cease to provide the Benchmark (or such component) permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide the Benchmark (or such component); or |
| (3) | a public statement or publication of information by the regulatory supervisor for the administrator of the Benchmark announcing that the Benchmark is no longer representative. |
“ISDA Definitions” means the 2006 ISDA Definitions published by the International Swaps and Derivatives Association, Inc. or any successor thereto, as amended or supplemented from time to time, or any successor definitional booklet for interest rate derivatives published from time to time.
“ISDA Fallback Adjustment” means the spread adjustment (which may be a positive or negative value or zero) that would apply for derivatives transactions referencing the ISDA Definitions to be determined upon the occurrence of an index cessation event with respect to the Benchmark for the applicable tenor.
“ISDA Fallback Rate” means the rate that would apply for derivatives transactions referencing the ISDA Definitions to be effective upon the occurrence of an index cessation date with respect to the Benchmark for the applicable tenor excluding the applicable ISDA Fallback Adjustment.
“Reference Time” with respect to any determination of the Benchmark means (1) if the Benchmark is Compounded SOFR, the SOFR Index Determination Time, as such time is defined above, and (2) if the Benchmark is not Compounded SOFR, the time determined by WMH or its designee in accordance with the Benchmark Replacement Conforming Changes.
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“Relevant Governmental Body” means the Federal Reserve Board and/or the Federal Reserve Bank of New York, or a committee officially endorsed or convened by the Federal Reserve Board and/or the Federal Reserve Bank of New York or any successor thereto.
“Unadjusted Benchmark Replacement” means the Benchmark Replacement excluding the Benchmark Replacement Adjustment.
The interest rate and amount of interest to be paid on the Floating Rate Notes for each interest period will be determined by the calculation agent. U.S. Bank Trust Company, National Association will initially serve as the calculation agent. All determinations made by the calculation agent shall, in the absence of manifest error, be conclusive for all purposes and binding on WMH and the holders of the Floating Rate Notes. So long as Compounded SOFR is required to be determined with respect to the Floating Rate Notes, there will at all times be a calculation agent. In the event that any then acting calculation agent shall be unable or unwilling to act, or that such calculation agent shall fail duly to establish Compounded SOFR for any interest period, or WMH proposes to remove such calculation agent, WMH shall appoint another calculation agent.
None of the Trustee, the paying agent and the calculation agent shall be under any obligation (i) to monitor, determine or verify the unavailability or cessation of SOFR or the SOFR Index, or whether or when there has occurred, or to give notice to any other transaction party of the occurrence of, any Benchmark Transition Event or related Benchmark Replacement Date, (ii) to select, determine or designate any Benchmark Replacement, or other successor or replacement benchmark index, or whether any conditions to the designation of such a rate or index have been satisfied, (iii) to select, determine or designate any Benchmark Replacement Adjustment, or other modifier to any replacement or successor index, or (iv) to determine whether or what Benchmark Replacement Conforming Changes are necessary or advisable, if any, in connection with any of the foregoing.
None of the Trustee, the paying agent and the calculation agent shall be liable for any inability, failure or delay on its part to perform any of its duties set forth in this prospectus as a result of the unavailability of SOFR, the SOFR Index or other applicable Benchmark Replacement, including as a result of any failure, inability, delay, error or inaccuracy on the part of any other transaction party in providing any direction, instruction, notice or information required or contemplated by the terms of this prospectus and reasonably required for the performance of such duties.
Ranking
The New Notes will be WMH’s senior unsecured obligations and will rank equally in right of payment to all of its existing and future senior unsecured debt and senior in right of payment to all of its future subordinated debt. The New Notes will be effectively subordinated to any of WMH’s future secured debt to the extent of the value of the assets securing such debt, and the New Notes will be structurally subordinated to the liabilities of WMH’s subsidiaries.
As of December 31, 2022, adjusted to give effect to the 3NC1 Senior Notes Offering and the Term Loan Repayment:
| • | WMH’s outstanding indebtedness consisted of $30.0 billion aggregate principal amount of the Old Notes, $1.5 billion aggregate principal amount of the 3NC1 Senior Notes, $2.5 billion of borrowings under its Term Loan Facility, its guarantees of $13.8 billion aggregate principal amount of DCL’s senior debt securities, and its guarantee of $0 billion of borrowings under DCL’s revolving credit facility; |
| • | WMH had no secured indebtedness outstanding; and |
| • | WMH’s subsidiaries had $1.5 billion in aggregate principal amount of indebtedness outstanding. |
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Guarantees
Guarantee by the Parent Guarantor
All payments on the Notes, including principal and interest (and premium, if any), are fully and unconditionally guaranteed on an unsecured and unsubordinated basis by the Parent Guarantor.
The guarantee by the Parent Guarantor of the Notes ranks equally in right of payment with all other existing and future unsecured and unsubordinated indebtedness of the Parent Guarantor. The guarantee is effectively subordinated to the Parent Guarantor’s secured indebtedness (if any) to the extent of the value of the assets securing that debt and effectively subordinated to any indebtedness and other liabilities of the Parent Guarantor’s subsidiaries to the extent such subsidiaries do not guarantee the Notes.
Guarantee by Subsidiaries of the Parent Guarantor
The indenture provides that the Parent Guarantor will cause (1) each wholly-owned Domestic Subsidiary that is a borrower or that guarantees the payment of any debt under the Senior Credit Facilities and (2) each wholly-owned Domestic Subsidiary that is a borrower or issuer or that guarantees the payment of any Material Debt, to execute and deliver to the Trustee within 30 days a supplemental indenture, in form and substance required by the indenture, pursuant to which such wholly-owned Domestic Subsidiary will guarantee payment of the Notes, whereupon such Domestic Subsidiary will become a Subsidiary Guarantor for all purposes under the applicable supplemental indenture. Subsidiary guarantees will be subject to release and discharge under certain circumstances prior to payment in full of the Notes.
“Domestic Subsidiary” means any Parent Subsidiary that is organized under the laws of any political subdivision of the United States that is not a Foreign Subsidiary.
“Foreign Subsidiary” means any Parent Subsidiary that is organized under the laws of a jurisdiction other than the United States, a State thereof or the District of Columbia or that is a Foreign Subsidiary Holdco. For the avoidance of doubt, any Parent Subsidiary that is organized and existing under the laws of Puerto Rico or any other territory of the United States of America shall be a Foreign Subsidiary.
“Foreign Subsidiary Holdco” means any Parent Subsidiary designated as a Foreign Subsidiary Holdco by WMH, so long as such Parent Subsidiary has no material assets other than securities, indebtedness or receivables of one or more Foreign Subsidiaries (or Parent Subsidiaries thereof), intellectual property relating solely to such Foreign Subsidiaries (or Parent Subsidiaries thereof) and/or other assets (including cash and cash equivalents) relating to an ownership interest in any such securities, indebtedness, intellectual property or Parent Subsidiaries.
“Material Debt” means any debt of WMH, the Parent Guarantor or any Subsidiary Guarantor in an aggregate principal amount equal to or greater than $400 million.
“Parent Subsidiary” means a corporation or other business entity of which equity interests having a majority of the voting power under ordinary circumstances is owned, directly or indirectly, by the Parent Guarantor or by one or more subsidiaries of the Parent Guarantor.
“Revolving Credit Facility” means the multicurrency revolving credit agreement, dated as of June 9, 2021, among Discovery Communications LLC, the borrowers and guarantors parties thereto from time to time, the lenders from time to time parties thereto and Bank of America, N.A., as administrative agent, swing line lender and L/C issuer, as amended on July 30, 2021 and as further amended, restated, supplemented, replaced, waived or otherwise modified from time to time.
“Senior Credit Facilities” means the Revolving Credit Facility and the Term Loan Facility.
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“Subsidiary Guarantor” means any Parent Subsidiary that provides a subsidiary guarantee, in each case, unless and until such Parent Subsidiary is released from such subsidiary guarantee in accordance with the terms of the indenture.
“Term Loan Facility” means the term loan credit agreement created pursuant to the Credit Agreement, dated as of June 4, 2021, among WMH, the lenders from time to time parties thereto and JPMorgan Chase Bank, N.A., as administrative agent, as amended, restated, supplemented, replaced, waived or otherwise modified from time to time.
All payments on the Notes, including principal and interest (and premium, if any), will be fully and unconditionally guaranteed on an unsecured and unsubordinated basis by each Subsidiary Guarantor.
For the year ended December 31, 2022, on a pro forma basis after giving effect to the Merger, WBD’s subsidiaries other than the Issuer, DCL and Scripps represented approximately 95% of WBD’s consolidated revenues. As of December 31, 2022, WBD’s subsidiaries other than the Issuer, DCL and Scripps represented approximately 94% of WBD’s consolidated total assets and had approximately $35.4 billion of total liabilities, including trade payables but excluding intercompany liabilities.
The indenture provides that the obligations of each Subsidiary Guarantor are limited to the maximum amount, as will, after giving effect to all other contingent and fixed liabilities of such Subsidiary Guarantor and after giving effect to any collections from or payments made by or on behalf of any other Subsidiary Guarantor in respect of the obligations of such other Subsidiary Guarantor under its subsidiary guarantee or pursuant to its contribution obligations under the indenture, result in the obligations of such Subsidiary Guarantor under the subsidiary guarantee not constituting a fraudulent conveyance or fraudulent transfer under applicable law, or being void or unenforceable under any law relating to insolvency of debtors.
Each such subsidiary guarantee will be a continuing guarantee and shall (i) remain in full force and effect until payment in full of the principal amount of all outstanding Notes (whether by payment at maturity, purchase, redemption, defeasance, retirement or other acquisition) and all other subsidiary guaranteed obligations of the relevant Subsidiary Guarantor then due and owing, unless earlier terminated as described below, (ii) be binding upon such Subsidiary Guarantor and (iii) inure to the benefit of and be enforceable by the Trustee, the holders and their permitted successors, transferees and assigns.
Notwithstanding the preceding paragraph, any Subsidiary Guarantor will automatically and unconditionally be released from all obligations under its subsidiary guarantee, and such subsidiary guarantee shall thereupon terminate and be discharged and of no further force or effect, (i) concurrently with any direct or indirect sale or disposition (by merger or otherwise) of any Subsidiary Guarantor or any interest therein, or any other transaction, in accordance with the terms of the indenture, if as a result of such transaction such Subsidiary Guarantor is no longer a Parent Subsidiary, (ii) at any time that such Subsidiary Guarantor is (or, substantially concurrently with the release of the subsidiary guarantee of such Subsidiary Guarantor or if as a result of the release of the subsidiary guarantee of such Subsidiary Guarantor, will be) released from all of its obligations as borrower or its obligations under its guarantee of any debt under the Senior Credit Facilities or any Material Debt (it being understood that a release subject to contingent reinstatement is still a release, and that if any such guarantee is so reinstated, such subsidiary guarantee shall also be reinstated to the extent that such Subsidiary Guarantor would then be required to provide a subsidiary guarantee under the indenture), (iii) upon the merger or consolidation of any Subsidiary Guarantor with and into WMH or the Parent Guarantor or another Subsidiary Guarantor that is the surviving person in such merger or consolidation, or upon the liquidation of such Subsidiary Guarantor following the transfer of all of its assets to WMH or the Parent Guarantor or another Subsidiary Guarantor, (iv) concurrently with any Subsidiary Guarantor ceasing to constitute a Domestic Subsidiary of the Parent Guarantor, (v) upon legal or covenant defeasance of WMH’s obligations, or satisfaction and discharge of the Notes, or (vi) subject to customary contingent reinstatement provisions, upon payment in full of the aggregate principal amount of all of the Notes then outstanding and all other subsidiary guaranteed obligations then due and
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owing. Upon any such occurrence specified in this paragraph and delivery of an officer’s certificate to the Trustee, the Trustee shall execute any documents reasonably requested by WMH in order to evidence such release, discharge and termination in respect of such subsidiary guarantee.
Further Issues
WMH may from time to time, without notice to, or the consent of, the registered holders of the Notes, create and issue additional Notes of any series offered hereby ranking equally and ratably with the Notes of a series in all respects, so that such additional Notes will be consolidated and form a single series with the Notes of such series and will have the same terms as to status, redemption or otherwise as the Notes of such series (other than the date of issuance and, under certain circumstances, the first interest payment date and the date from which interest thereon will begin to accrue), provided that if such additional Notes are not fungible with the original Notes of such series for U.S. federal income tax purposes, such additional Notes will have a separate CUSIP number.
Optional Redemption
The Floating Rate Notes will not be redeemable at WMH’s option.
The 4.279% Senior Notes due 2032, the 5.141% Senior Notes due 2052 and the 5.391% Senior Notes due 2062 are not redeemable at WMH’s option prior to March 15, 2027.
Prior to the applicable Par Call Date (or prior to the applicable maturity date, in the case of the 3.428% Senior Notes due 2024 and the 3.638% Senior Notes due 2025) and, in the case of the 4.279% Senior Notes due 2032, the 5.141% Senior Notes due 2052 and the 5.391% Senior Notes due 2062, on or after March 15, 2027, each series of Fixed Rate Notes will be redeemable, in whole or in part, at the option of WMH at any time and from time to time at a redemption price equal to the greater of (i) 100% of the principal amount of the series of Fixed Rate Notes to be redeemed, and (ii) as determined by the Quotation Agent (as defined below), the sum of the present values of the remaining scheduled payments of principal and interest on the series of Fixed Rate Notes to be redeemed (not including any portion of such payments of interest accrued as of the date of redemption) assuming that such series of Fixed Rate Notes matured on the applicable Par Call Date discounted to the date of redemption on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Adjusted Treasury Rate (as defined below) (a) plus 30 basis points in the case of the 3.428% Senior Notes due 2024, (b) plus 30 basis points in the case of the 3.528% Senior Notes due 2024, (c) plus 30 basis points in the case of the 3.638% Senior Notes due 2025, (d) plus 30 basis points in the case of the 3.788% Senior Notes due 2025, (e) plus 30 basis points in the case of the 3.755% Senior Notes due 2027, (f) plus 35 basis points in the case of the 4.054% Senior Notes due 2029, (g) plus 40 basis points in the case of the 4.279% Senior Notes due 2032, (h) plus 40 basis points in the case of the 5.050% Senior Notes due 2042, (i) plus 45 basis points in the case of the 5.141% Senior Notes due 2052 and (j) plus 50 basis points in the case of the 5.391% Senior Notes due 2062, plus in each case accrued and unpaid interest on the principal amount being redeemed to, but excluding, the date of redemption.
On and after the applicable Par Call Date, each series of Fixed Rate Notes will be redeemable at WMH’s option, in whole at any time or in part from time to time, at a redemption price equal to 100% of the principal amount of the Fixed Rate Notes to be redeemed, plus accrued and unpaid interest on the principal amount being redeemed to, but excluding, the date of redemption.
“Adjusted Treasury Rate” means, with respect to any redemption date, the rate per annum equal to the semiannual equivalent yield to maturity of the Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for such redemption date. The term “yield to maturity” means the yield to maturity on a series of securities, calculated at the time of issuance of such series, or, if applicable, at the most recent redetermination of interest on such series, and calculated in accordance with accepted financial practice.
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“Comparable Treasury Issue” means the United States Treasury security selected by the Quotation Agent as having a maturity comparable to the remaining term of the Fixed Rate Notes of a series to be redeemed (assuming that such Notes matured on the applicable Par Call Date) that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity to the remaining term of such Fixed Rate Notes.
“Comparable Treasury Price” means, with respect to any redemption date, (i) the average of the Reference Treasury Dealer Quotations for such redemption date, after excluding the highest and lowest such Reference Treasury Dealer Quotations or (ii) if WMH obtains fewer than four such Reference Treasury Dealer Quotations, the average of all such quotations.
“Par Call Date” means (i) March 15, 2023 (12 months prior to maturity) with respect to the 3.528% Senior Notes due 2024, (ii) March 15, 2023 (24 months prior to maturity) with respect to the 3.788% Senior Notes due 2025, (iii) February 15, 2027 (one month prior to maturity) with respect to the 3.755% Senior Notes due 2027, (iv) January 15, 2029 (two months prior to maturity) with respect to the 4.054% Senior Notes due 2029, (v) December 15, 2031 (three months prior to maturity) with respect to the 4.279% Senior Notes due 2032, (vi) September 15, 2041 (six months prior to maturity) with respect to the 5.050% Senior Notes due 2042, (vii) September 15, 2051 (six months prior to maturity) with respect to the 5.141% Senior Notes due 2052, and (viii) September 15, 2061 (six months prior to maturity) with respect to the 5.391% Senior Notes due 2062.
“Quotation Agent” means the Reference Treasury Dealer appointed by WMH.
“Reference Treasury Dealer” means (i) J.P. Morgan Securities LLC, Goldman Sachs & Co. LLC and Barclays Capital Inc., their respective affiliates and their respective successors with respect to the Fixed Rate Notes; provided, however, that if any of the foregoing ceases to be a primary U.S. Government securities dealer in New York City (a “Primary Treasury Dealer”), WMH will substitute therefor another Primary Treasury Dealer; and (ii) any other Primary Treasury Dealers selected by WMH.
“Reference Treasury Dealer Quotations” means, with respect to each Reference Treasury Dealer and any redemption date, the average, as determined by WMH, of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted in writing to WMH by such Reference Treasury Dealer at 5:00 p.m., New York City time, on the third business day preceding such redemption date.
Notice of any redemption will be mailed or otherwise delivered in accordance with the applicable procedures of DTC at least 10 days but not more than 60 days before the redemption date to each holder of Fixed Rate Notes of the series to be redeemed. Any notice may, at WMH’s discretion, be subject to the satisfaction or waiver of one or more conditions precedent. In that case, such notice shall state the nature of such conditions precedent, and, if applicable, state that the date of redemption may be delayed until the conditions are satisfied or that, if the conditions are not satisfied, such redemption may not occur and the notice may be rescinded. Unless WMH defaults in payment of the redemption price, on and after the redemption date, interest will cease to accrue on the series of Fixed Rate Notes or portions thereof called for redemption, subject to the satisfaction or waiver of any conditions precedent specified in the related notice of redemption.
If less than all of the Fixed Rate Notes of a series are to be redeemed, the Fixed Rate Notes of such series shall be selected by the Trustee by such method the Trustee deems to be fair and appropriate in accordance with applicable depositary procedures and any applicable stock exchange.
Mandatory Redemption; Open Market Purchases
WMH is not required to make any mandatory redemption or sinking fund payments with respect to the Notes of any series. However, under certain circumstances, WMH may be required to offer to purchase the Notes
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as described under the caption “—Change of Control Offer to Repurchase.” WMH may acquire Notes, from time to time and at any time, by means other than a redemption, whether by tender offer, open market purchases, negotiated transactions or otherwise, in accordance with applicable securities laws, so long as such acquisition does not otherwise violate the terms of the indenture.
Change of Control Offer to Repurchase
If a Change of Control Triggering Event occurs, unless WMH has exercised its right to redeem a series of Notes in full, as described under “—Optional Redemption,” holders of Notes of any series offered hereby will have the right to require WMH to repurchase all or a portion of such holder’s Notes pursuant to the offer described below (the “Change of Control Offer”), at a purchase price equal to 101% of the principal amount thereof plus accrued and unpaid interest, if any, to, but excluding, the date of repurchase, subject to the rights of holders of Notes of such series on the relevant record date to receive interest due on the relevant interest payment date.
Within 30 days following the date upon which the Change of Control Triggering Event occurred, or at WMH’s option, prior to any Change of Control but after the public announcement of the pending Change of Control, WMH will be required to send, by first class mail, or otherwise deliver in accordance with the applicable procedures of DTC, a notice to holders of Notes of any series not redeemed, with a copy to the Trustee, which notice will set forth the terms of the Change of Control Offer. Such notice will state, among other things, the repurchase date, which must be no earlier than 30 days nor later than 60 days from the date such notice is mailed, or otherwise delivered to each holder in accordance with the applicable procedures of DTC, other than as may be required by law (the “Change of Control Payment Date”). The notice, if mailed or otherwise delivered to each holder in accordance with the applicable procedures of DTC prior to the date of consummation of the Change of Control, may state that the Change of Control Offer is conditioned on the Change of Control being consummated on or prior to the Change of Control Payment Date. Holders of Notes of any series not redeemed electing to have their Notes repurchased pursuant to a Change of Control Offer will be required to surrender their Notes, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the note completed, to the paying agent at the address specified in the notice, or transfer their Notes to the paying agent by book-entry transfer pursuant to the applicable procedures of the paying agent, prior to the close of business on the third business day prior to the Change of Control Payment Date.
WMH will not be required to make a Change of Control Offer if a third party makes such an offer in the manner, at the times and otherwise in compliance with the requirements for such an offer made by WMH and such third party purchases all Notes of a series properly tendered and not withdrawn under its offer.
WMH will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with the repurchase of Notes as a result of a Change of Control Triggering Event. To the extent that the provisions of any such securities laws or regulations conflict with the Change of Control Offer provisions of the Notes of a series, WMH will comply with those securities laws and regulations and will not be deemed to have breached its obligations under the Change of Control Offer provisions of the Notes by virtue of any such conflict.
The definition of “Change of Control” includes a phrase relating to the direct or indirect sale, lease, transfer, conveyance or other disposition of “all or substantially all” of the assets of the Parent Guarantor and its subsidiaries, or WMH and its subsidiaries, taken as a whole. Although there is a limited body of case law interpreting the phrase “substantially all,” there is no precise, established definition of the phrase under applicable law. Accordingly, the ability of a holder of Notes of any series offered hereby to require WMH to repurchase such Notes as a result of a sale, lease, transfer, conveyance or other disposition of less than all of the assets of the Parent Guarantor and its subsidiaries, or WMH and its subsidiaries, taken as a whole, to another “person” (as that term is used in Section 13(d)(3) of the Exchange Act) may be uncertain.
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For purposes of the Change of Control Offer discussion above, the following definitions are applicable:
“Below Investment Grade Rating Event” with respect to the Notes of a series means that such series becomes rated below Investment Grade by each Rating Agency on any date from the date of the public notice by the Parent Guarantor or WMH of an arrangement that results in a Change of Control until the end of the 60-day period following public notice by the Parent Guarantor or WMH of the occurrence of a Change of Control (which period will be extended so long as the rating of such series of Notes is under publicly announced consideration for possible downgrade by any of the Rating Agencies); provided, however, that a Below Investment Grade Rating Event otherwise arising by virtue of a particular reduction in rating will not be deemed to have occurred in respect of a particular Change of Control (and thus will not be deemed a Below Investment Grade Rating Event for purposes of the definition of Change of Control Triggering Event), if the Rating Agencies making the reduction in rating to which this definition would otherwise apply do not announce or publicly confirm or inform the Trustee in writing at its request that the reduction was the result, in whole or in part, of any event or circumstance comprised of or arising as a result of, or in respect of, the applicable Change of Control (whether or not the applicable Change of Control has occurred at the time of the Below Investment Grade Rating Event).
“Change of Control” means the occurrence of any one of the following:
| (1) | the direct or indirect sale, lease, transfer, conveyance or other disposition (other than by way of merger or consolidation), in one or a series of related transactions, of all or substantially all of the assets of the Parent Guarantor and its subsidiaries taken as a whole, to any “person” (as that term is used in Section 13(d)(3) of the Exchange Act) other than to the Parent Guarantor or one of its subsidiaries; |
| (2) | the consummation of any transaction (including without limitation, any merger or consolidation) the result of which is that any “person” (as that term is used in Section 13(d)(3) of the Exchange Act), other than any Significant Shareholder or any combination of Significant Shareholders, becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly or indirectly, of more than 50% of the outstanding Voting Stock of the Parent Guarantor or WMH, measured by voting power rather than number of shares; |
| (3) | the consummation of a so-called “going private/Rule 13e-3 Transaction” that results in any of the effects described in paragraph (a)(3)(ii) of Rule 13e-3 under the Exchange Act (or any successor provision) with respect to each class of the Parent Guarantor’s common stock, following which any Significant Shareholder or any combination of Significant Shareholders “beneficially own” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly or indirectly, more than 50% of the outstanding Voting Stock of the Parent Guarantor, measured by voting power rather than number of shares; or |
| (4) | the adoption of a plan relating to the liquidation, dissolution or winding-up of the Parent Guarantor. |
“Change of Control Triggering Event” means the occurrence of both a Change of Control and a Below Investment Grade Rating Event. Notwithstanding the foregoing, no Change of Control Triggering Event will be deemed to have occurred in connection with any particular Change of Control unless and until such Change of Control has actually been consummated.
“Fitch” means Fitch Ratings Ltd., and its successors.
“Investment Grade” means a rating of BBB- or better by S&P (or its equivalent under any successor rating category of S&P), a rating of Baa3 or better by Moody’s (or its equivalent under any successor rating category of Moody’s) and a rating of BBB- or better by Fitch (or its equivalent under any successor rating category of Fitch).
“Moody’s” means Moody’s Investors Service, Inc., and its successors.
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“Rating Agency” means (1) each of S&P, Moody’s and Fitch; and (2) if any of S&P, Moody’s or Fitch ceases to rate the Notes or fails to make a rating of the Notes publicly available for reasons outside of WMH’s control, a “nationally recognized statistical rating organization” as defined in Section 3(a)(62) of the Exchange Act, selected by WMH (as certified by a resolution of the board of directors of the Parent Guarantor and reasonably acceptable to the Trustee) as a replacement agency for S&P, Moody’s or Fitch, or all of them, as the case may be.
“S&P” means S&P Global Ratings, a division of S&P Global, Inc., and its successors.
“Significant Shareholder” means each of (a) the Parent Guarantor or any of its subsidiaries and (b) any other “person” (as that term is used in Section 13(d)(3) of the Exchange Act) if 50% or more of the Voting Stock of such person is “beneficially owned” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly or indirectly, by the Parent Guarantor or one of its subsidiaries or any combination thereof.
“Voting Stock” of any specified person as of any date means any and all shares or equity interests (however designated) of such person that are at the time entitled to vote generally in the election of the board of directors, managers or trustees of such person, as applicable.
Certain Covenants
The indenture does not contain any provisions that would limit the ability of the Parent Guarantor and its subsidiaries to incur indebtedness or that would afford holders of Notes protection in the event of a sudden and significant decline in the credit quality of the Parent Guarantor or WMH or a takeover, recapitalization or highly leveraged or similar transaction involving the Parent Guarantor or WMH.
Limitation on Liens
WMH will not, and will not permit any subsidiary to, create, incur, assume or permit to exist any lien on any property or asset, to secure any debt of WMH, any subsidiary or any other person, or permit any subsidiary to do so, without securing the Notes equally and ratably with such debt for so long as such debt will be so secured, subject to certain exceptions. The exceptions include:
| • | liens existing on, or provided for under written arrangements existing as of, the Merger Closing Date; |
| • | liens on assets or property of a person at the time it becomes a subsidiary securing only indebtedness of such person or liens existing on assets or property at the time of the acquisition of such assets, provided such indebtedness was not incurred or such liens were not created in connection with such person becoming a subsidiary or such assets being acquired; |
| • | liens on assets created at the time of or within 12 months after the acquisition, purchase, lease, improvement or development of such assets to secure all or a portion of the purchase price or lease for, or the costs of improvement or development of, such assets; |
| • | liens to secure any extension, renewal, refinancing or refunding (or successive extensions, renewals, refinancings or refundings), in whole or in part, of any indebtedness secured by liens referred to above or liens created in connection with any amendment, consent or waiver relating to such indebtedness, so long as such lien does not extend to any other property and the amount of debt secured is not increased (other than by the amount equal to any costs and expenses incurred in connection with any extension, renewal, refinancing or refunding); |
| • | liens on property incurred in permitted sale and leaseback transactions; |
| • | liens in favor of only the Parent Guarantor, WMH or one or more subsidiaries of the Parent Guarantor granted by WMH or a subsidiary to secure any obligations owed to the Parent Guarantor, WMH or a subsidiary of the Parent Guarantor; |
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| • | carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s, laborers’, landlords’ and similar liens arising in the ordinary course of business securing obligations that are not overdue for a period of more than 90 days or that are being contested in good faith by appropriate proceedings; |
| • | pledges or deposits in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other social security legislation, other than any lien imposed by the Employment Retirement Income Security Act of 1974, as amended from time to time; |
| • | deposits to secure the performance of bids, trade contracts and leases, statutory obligations, surety bonds (other than bonds related to judgments or litigation), performance bonds and other obligations of a like nature incurred in the ordinary course of business; |
| • | liens arising out of a judgment, decree or order of court being contested in good faith by appropriate proceedings, provided that adequate reserves with respect thereto are maintained on the books of the Parent Guarantor, WMH or the books of their subsidiaries, as the case may be, in conformity with GAAP; |
| • | liens for taxes not yet due and payable, or being contested in good faith by appropriate proceedings, provided that adequate reserves with respect thereto are maintained on the books of the Parent Guarantor, WMH or the books of their subsidiaries, as the case may be, in conformity with GAAP; |
| • | easements, rights of way, restrictions and similar liens affecting real property incurred in the ordinary course of business that do not secure any monetary obligations and do not materially detract from the value of the property subject thereto or materially interfere with the ordinary conduct of business of the Parent Guarantor, WMH or of such subsidiary; |
| • | liens securing reimbursement obligations with respect to letters of credit related to trade payables and issued in the ordinary course of business, which liens encumber documents and other property relating to such letters of credit and the products and proceeds thereof; |
| • | liens encumbering customary initial deposits and margin deposits and other liens in the ordinary course of business, in each case securing indebtedness under any interest swap obligations and currency agreements and forward contract, option, futures contracts, futures options or similar agreements or arrangements designed to protect the Parent Guarantor, WMH or any of their subsidiaries from fluctuations in interest rates or currencies; |
| • | liens in the nature of voting, equity transfer, redemptive rights or similar terms under any such agreement or other term customarily found in such agreements, in each case, encumbering WMH’s or such subsidiary’s equity interests or other investments in such subsidiary or other person; |
| • | liens consisting of or relating to the sale, transfer, distribution, or financing of motion pictures, video and television programs, sound recordings, books or rights with respect thereto or with groups who may receive tax benefits or other third-party investors in connection with the financing and/or distribution of such motion pictures, video and television programming, sound recordings or books in the ordinary course of business and the granting to WMH or any subsidiary rights to distribute such motion pictures, video and television programming, sound recordings or books, including liens created in favor of a producer or supplier of television programming or films over distribution revenues and/or distribution rights which are allocable to such producer or supplier under related distribution arrangements; |
| • | liens on Securitization Assets securing or transferred pursuant to any Permitted Securitization Financing; |
| • | liens on motion pictures, video, television, interactive or multi-media programming, audio-visual works, sound recordings, books and other literary or written material, any software, copyright or other intellectual property related thereto, acquired directly or indirectly by purchase, business combination, production, creation or otherwise, any component of the foregoing or rights with respect thereto, and |
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| all improvements thereon, products and proceeds thereof and revenues derived therefrom (collectively, “works”) which either (1) existed on such works before the time of their acquisition and were not created in anticipation thereof, or (2) were created solely for the purpose of securing obligations to financiers, producers, distributors, exhibitors, completion guarantors, inventors, copyright holders, financial institutions or other participants incurred in the ordinary course of business in connection with the acquisition, financing, production, completion, distribution or exhibition of works; |
| • | any liens on the office building and hotel complex located in Atlanta, Georgia known as the CNN Center Complex, including the parking decks for such complex (to the extent such parking decks are owned or leased by WBD or any of its subsidiaries), or any portion thereof and all property rights therein and the products, revenues and proceeds therefrom created as part of any mortgage financing or sale-leaseback of the CNN Center Complex; |
| • | liens on satellite transponders and all property rights therein and the products, revenues and proceeds therefrom which secure obligations incurred in connection with the acquisition, utilization or operation of such satellite transponders or the refinancing of any such obligations; |
| • | liens resulting from progress payments or partial payments under United States government contracts or subcontracts; or |
| • | liens otherwise prohibited by this covenant, securing indebtedness which, together with the value of attributable debt incurred in sale and leaseback transactions described under “—Limitation on Sale and Leasebacks” below, do not at any time exceed 10% of the Parent Guarantor’s consolidated total assets (in each case, as set forth on the most recent consolidated balance sheet of the Parent Guarantor and its consolidated subsidiaries as of the end of the most recently ended fiscal quarter prior to the applicable date of determination for which financial statements are available; provided that the assets of the Parent Guarantor and its consolidated subsidiaries shall be adjusted to reflect any significant (as determined under Regulation S-X) acquisitions and dispositions of assets that have occurred during the period from the date of the applicable balance sheet through the applicable date of determination, including the transaction being tested under the indenture). |
If any Subsidiary Guarantor and its subsidiaries are subsidiaries of the Parent Guarantor but not subsidiaries of WMH, then such Subsidiary Guarantor and its subsidiaries shall be treated as if they were subsidiaries of WMH for all purposes under the indenture, including for purposes of the provisions described above in “—Limitation on Liens” and the provisions described below in “—Limitation on Sale and Leasebacks.”
For all purposes under the indenture, the term “debt” of any person means any debt for money borrowed which is created, assumed, incurred or guaranteed in any manner by such person or for which such person is otherwise responsible or liable, and shall expressly include any such guaranty thereof by such person. For the purpose of computing the amount of the debt of any person there shall be excluded all debt of such person for the payment or redemption or satisfaction of which money or securities (or evidences of such debt, if permitted under the terms of the instrument creating such debt) in the necessary amount shall have been deposited in trust with the proper depositary, whether upon or prior to the maturity or the date fixed for redemption of such debt; and, in any instance where debt is so excluded, for the purpose of computing the assets of such person there shall be excluded the money, securities or evidences of debt deposited by such person in trust for the purpose of paying or satisfying such debt.
“Permitted Securitization Financing” means any financing arrangement or factoring of Securitization Assets by WBD or any subsidiary and any securitization facility of any Securitization Subsidiary, in each case, the obligations of which are non-recourse (except for Standard Securitization Undertakings) to WBD or any subsidiary (other than any Securitization Subsidiary) in connection therewith.
“Securitization Assets” means accounts receivable, loans, mortgages, royalties, other rights to payment, supporting obligations therefor, proceeds therefrom and other related assets customarily disposed of or pledged
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in connection with non-recourse receivables financings or factorings or securitization facilities (as determined in good faith by WBD or any subsidiary).
“Securitization Subsidiary” means any subsidiary formed for purposes of consummating any Permitted Securitization Financing and which holds no material assets other than Securitization Assets and which is engaged in no material activities other than those related to such Permitted Securitization Financing.
“Standard Securitization Undertakings” means representations, warranties, covenants (including repurchase obligations) and indemnities entered into by WBD or any subsidiary that WBD or such subsidiary, as applicable, has determined in good faith are customary for “non-recourse” accounts receivables financings or factoring or securitization financings.
Limitation on Sale and Leasebacks
WMH will not, and will not permit any subsidiary to, enter into any arrangement with any person pursuant to which WMH or any subsidiary leases any property that has been or is to be sold or transferred by WMH or the subsidiary to such person (a “sale and leaseback transaction”), except that a sale and leaseback transaction is permitted if WMH or such subsidiary would be entitled to secure the property to be leased (without equally and ratably securing the outstanding Notes) in an amount equal to the present value of the lease payments with respect to the term of the lease remaining on the date as of which the amount is being determined, without regard to any renewal or extension in the lease, discounted at the rate of interest set forth or implicit in the terms of the lease, compounded semi-annually (such amount is referred to as the “attributable debt”).
In addition, permitted sale and leaseback transactions not subject to the limitation above and the provisions described in “—Limitation on Liens” above include:
| • | temporary leases for a term, including renewals at the option of the lessee, of not more than three years; |
| • | leases between only WMH and a subsidiary of WMH or only between subsidiaries of WMH; and |
| • | leases of property executed by the time of, or within 12 months after the latest of, the acquisition, the completion of construction or improvement, or the commencement of commercial operation of the property. |
Consolidation, Merger and Sale of Assets
Neither WMH nor the Parent Guarantor may consolidate or merge with or into, or sell, lease, convey, transfer or otherwise dispose of its property and assets substantially as an entirety to another entity unless:
| • | (1) WMH or the Parent Guarantor is the surviving entity, as applicable, or (2) the successor entity, if other than WMH or the Parent Guarantor is a U.S. corporation, partnership, limited liability company or trust and assumes by supplemental indenture all of WMH’s or the Parent Guarantor’s obligations, as applicable, under the Notes or the guarantee, respectively, and the indenture; immediately after giving effect to the transaction, no Event of Default (as defined below), and no event that, after notice or lapse of time or both, would become an Event of Default, has occurred and is continuing; and |
| • | if as a result of any consolidation, merger, sale or lease, conveyance or transfer described in this covenant, properties or assets of WMH or the Parent Guarantor or any of its subsidiaries would become subject to any lien that would not be permitted by the lien restriction described above without equally and ratably securing the Notes, WMH or the Parent Guarantor or such successor entity, as the case may be, will take the steps as are necessary to secure effectively the Notes equally and ratably with, or prior to, all indebtedness secured by those liens as described above. |
In connection with any transaction that is covered by this covenant, WMH must deliver to the Trustee an officer’s certificate and an opinion of counsel each stating that the transaction complies with the terms of the indenture.
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In the case of any such consolidation, merger, sale, transfer or other conveyance, but not a lease, in a transaction in which there is a successor entity to WMH or the Parent Guarantor, the successor entity will succeed to, and be substituted for, WMH or the Parent Guarantor, respectively, under the indenture and WMH or the Parent Guarantor, respectively, will be released from its obligations under the Notes or the guarantee, as applicable, and the indenture.
Future Subsidiary Guarantors
The Parent Guarantor will cause (1) each wholly-owned Domestic Subsidiary that is a borrower or that guarantees the payment of any debt under the Senior Credit Facilities and (2) each wholly-owned Domestic Subsidiary that is a borrower or issuer or that guarantees the payment of any Material Debt, to execute and deliver to the Trustee within 30 days a supplemental indenture, in form and substance required by the indenture, pursuant to which such wholly-owned Domestic Subsidiary will guarantee payment of the Notes, whereupon such Domestic Subsidiary will become a Subsidiary Guarantor for all purposes under the applicable supplemental indenture. See “—Guarantees—Guarantee by Subsidiaries of the Parent Guarantor” above.
Events of Default
Any one of the following is an “Event of Default” with respect to each series of Notes:
| • | if WMH defaults in the payment of interest, and such default continues for 30 days; |
| • | if WMH defaults in the payment of the principal or any premium when due by declaration, when called for redemption or otherwise; |
| • | if either the Parent Guarantor or WMH fails to perform or breaches any covenant or warranty in the Notes of such series or in the indenture and applicable to the Notes of such series or guarantee continuing for 90 days after notice to WMH by the Trustee or by holders of at least 25% in principal amount of the outstanding Notes (with a copy to the Trustee) of all such series affected thereby; |
| • | if certain events of bankruptcy or insolvency occur with respect to WMH, the Parent Guarantor or any Subsidiary Guarantor (the “bankruptcy or insolvency provision”); |
| • | a guarantee ceases to be in full force and effect (except as contemplated by the terms of the indenture) or is declared null and void in a judicial proceeding or the Parent Guarantor or any Subsidiary Guarantor, as applicable, denies or disaffirms its obligations under the indenture or the applicable guarantee; and |
| • | default under any mortgage, indenture or instrument under which there may be issued or by which there may be secured or evidenced any indebtedness for money borrowed by the Parent Guarantor, WMH or any of their subsidiaries (or the payment of which is guaranteed by the Parent Guarantor, WMH or any of their subsidiaries), whether such indebtedness or guarantee now exists, or is created after the date of this offering memorandum, if that default: |
| (1) | is caused by a failure to pay principal on such indebtedness at its stated final maturity (after giving effect to any applicable grace periods provided in such indebtedness) (a “Payment Default”); or |
| (2) | results in the acceleration of such indebtedness prior to its express maturity (an “Acceleration Event”), and (i) in each case, the principal amount of any such indebtedness, together with the principal amount of any other such indebtedness under which there has been a Payment Default or an Acceleration Event, aggregates $400 million or more and (ii) in the case of a Payment Default, such indebtedness is not discharged and, in the case of an Acceleration Event, such acceleration is not rescinded or annulled, within 10 days after written notice has been given by the Trustee or the holders of at least 25% in principal amount of all of the outstanding Notes of such series. |
If an Event of Default (other than the bankruptcy or insolvency provision) with respect to the Notes of a series occurs and is continuing, the Trustee or the holders of at least 25% in principal amount of all of the outstanding
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Notes of such series may declare the principal of all the Notes of such series to be due and payable. When such declaration is made, such principal will be immediately due and payable. The holders of a majority in principal amount of the Notes of such series may rescind such declaration or acceleration and its consequences if the rescission would not conflict with any judgment or decree and if all existing events of default have been cured or waived (other than nonpayment of principal or interest that has become due solely as a result of acceleration). If a bankruptcy or insolvency event occurs, the principal of and accrued and unpaid interest on the Notes will immediately become due and payable without any declaration or other act on the part of the Trustee or the holders of the Notes.
The holders of at least a majority in aggregate principal amount of a series of Notes may direct the time, method and place of conducting any proceeding for any remedy available to the Trustee or exercising any trust or power conferred on the Trustee with respect to such Notes. However, the Trustee may refuse to follow any direction that conflicts with law or the indenture that may involve the Trustee in personal liability, or that the Trustee determines in good faith may be unduly prejudicial to the rights of holders of such series of Notes not joining in the giving of such direction and may take any other action it deems proper that is not inconsistent with any such direction received from holders of such series of Notes. A holder may not pursue any remedy with respect to the senior indenture or any series of Notes unless:
| • | the holder gives the Trustee written notice of a continuing event of default; |
| • | the holders of at least 25% in aggregate principal amount of such series of Notes make a written request to the Trustee to pursue the remedy in respect of such event of default; |
| • | the requesting holder or holders offer the Trustee indemnity satisfactory to the trustee against any costs, liability or expense; |
| • | the Trustee does not comply with the request within 60 days after receipt of the request and the offer of indemnity; and |
| • | during such 60-day period, the holders of at least a majority in aggregate principal amount of such series of Notes do not give the Trustee a direction that is inconsistent with the request. |
Each holder shall agree in the indenture that no one or more holders of any series shall have any right in any manner whatever by virtue or by availing of any provision of the indenture to affect, disturb or prejudice the rights of any other such holder of Notes, or to obtain or seek to obtain priority over or preference to any other such holder or to enforce any right under the indenture , except in the manner provided above and for the equal, ratable and common benefit of all holders of Notes of the applicable series.
These limitations, however, do not apply to the right of any holder of a Notes to receive payment of the principal of or interest, if any, on such Notes, or to bring suit for the enforcement of any such payment, on or after the due date for the Notes, which right shall not be impaired or affected without the consent of the holder. The trustee may withhold from holders notice of any continuing default (except a default in the payment of principal or interest) if it determines that withholding notice is in their interests.
The indenture requires certain of WMH’s officers to certify, on or before a fixed date in each year in which any Notes are outstanding, as to their knowledge of WMH’s compliance with all conditions and covenants under the indenture.
Amendment and Waiver
WMH, the Guarantors and the Trustee may amend or supplement the indenture or the Notes without the consent of any holder to:
| • | convey, transfer, assign, mortgage or pledge any assets as security for the Notes of one or more series; |
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| • | evidence the succession of another person to WMH or any Guarantor, and the assumption by such successor person of WMH’s or any Guarantor’s covenants, agreements and obligations under the indenture; |
| • | cure any ambiguity, omission, mistake, defect or inconsistency in the indenture or in any supplemental indenture or to conform the indenture or the Notes to the description of Notes of such series set forth in this “Description of Notes” section of this offering memorandum; |
| • | evidence and provide for the acceptance of appointment hereunder by a successor trustee, or to make such changes as shall be necessary to provide for or facilitate the administration of the trusts in the indenture by more than one trustee; |
| • | provide for or add guarantors with respect to the Notes of any series; |
| • | establish the form or forms or terms of the Notes as permitted by the indenture; |
| • | add to, delete from or revise the conditions, limitations and restrictions on the authorized amount, terms, purposes of issue, authentication and delivery of any series of Notes; |
| • | add to WMH’s and the Guarantors’ covenants such new covenants, restrictions, conditions or provisions for the protection of the holders, and to make the occurrence, or the occurrence and continuance, of a default in any such additional covenants, restrictions, conditions or provisions an Event of Default; |
| • | make any change to the Notes of any series so long as no Notes of such series are outstanding; |
| • | to evidence and provide for the acceptance of appointment hereunder by a successor trustee with respect to the Notes of one or more series and to add to or change any of the provisions of the indenture as shall be necessary to provide for or facilitate the administration of the trusts thereunder by more than one trustee; or |
| • | make any change that does not adversely affect the rights of any holder in any material respect (as determined in good faith by WMH). |
Other amendments and modifications of the indenture or the Notes of any series may be made, and WMH’s and the Guarantors’ compliance with any provision of the indenture with respect to any series of Notes may be waived, with the consent of the holders of not less than a majority of the aggregate principal amount of the outstanding Notes of such series affected by the amendment or modification; provided, however, that each affected holder must consent to any modification, amendment or waiver that:
| • | extends the final maturity of any Notes of such series; |
| • | reduces the principal amount of, or premium, if any, on any Notes of such series; |
| • | reduces the rate or extends the time of payment of interest on any Notes of such series; |
| • | reduces the amount payable upon the redemption of any Notes of such series; |
| • | changes the currency of payment of principal of, or premium, if any, or interest on, any Notes of such series; |
| • | changes the provisions relating to the waiver of past defaults or changes or impairs the right of holders to receive payment or to institute suit for the enforcement of any payment or conversion of any Notes of such series on or after the due date therefor; |
| • | reduces the above-stated percentage of outstanding Notes of such series the consent of whose holders is necessary to modify or amend or to waive certain provisions of or defaults under the indenture; |
| • | waives a default in the payment of principal of or interest on the Notes; |
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| • | modifies any of the provisions of this paragraph, except to increase any required percentage or to provide that certain other provisions cannot be modified or waived without the consent of the holder of each Note of such series affected by the modification; |
| • | reduces the amount of Notes whose holders must consent to a supplemental indenture; |
| • | reduce the amount payable upon the repurchase of any Note of such series or change the time at which any Note of such series may be repurchased as described under “—Change of Control Offer to Repurchase,” whether through an amendment or waiver of provisions in the covenants, definitions or otherwise; or |
| • | make any change to a guarantee in any manner materially adverse to the holders of Notes of such series (as determined in good faith by WMH). |
It shall not be necessary for the holders to approve the particular form of any proposed amendment, supplement or waiver, but it shall be sufficient if the holders’ consent approves the substance thereof. After an amendment, supplement or waiver under this section of the indenture becomes effective, the trustee must give to the holders affected thereby certain notice briefly describing the amendment, supplement or waiver. Any failure by the trustee to give such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such supplemental indenture or waiver.
Defeasance and Covenant Defeasance
The indenture provides that WMH (a) may be discharged from its obligations in respect of any series of Notes (“defeasance and discharge”), or (b) may cease to comply with certain restrictive covenants (“covenant defeasance”) when WMH has irrevocably deposited with the Trustee, in trust, (i) sufficient funds to pay the principal of and interest to stated maturity (or redemption) on, such series of Notes or (ii) such amount of direct obligations of, or obligations guaranteed by, the U.S. government (or a combination of amounts deposited in (i) and (ii)), as will, together with the predetermined and certain income to accrue thereon without consideration of any reinvestment, be sufficient to pay when due the principal of and interest to stated maturity (or redemption) on, the Notes of such series. Such defeasance and discharge and covenant defeasance are conditioned upon, among other things, WMH’s delivery of an opinion of counsel that the holders of the applicable series of Notes will not recognize income, gain or loss for United States federal income tax purposes as a result of such defeasance, and will be subject to tax in the same manner as if no defeasance and discharge or covenant defeasance, as the case may be, had occurred. In the case of defeasance and discharge only, such opinion of counsel must be based on a ruling of the IRS or other change in applicable federal income tax law.
If WMH effects covenant defeasance with respect to the Notes of any series as described in the accompanying prospectus, then the covenants described above under “—Certain Covenants” and “—Change of Control Offer to Repurchase” will cease to be applicable to the Notes of such series.
Satisfaction and Discharge
The indenture provides that, when (a) WMH or Parent Guarantor delivers to the Trustee for cancellation all outstanding Notes or all outstanding Notes of any series and all coupons, if any, appertaining thereto (other than (i) Notes or Notes of such series, and coupons, if any, that have been destroyed, lost or stolen and which have been replaced or paid, (ii) coupons called for redemption and maturing after the relevant redemption date, whose surrender has been waived, and (iii) Notes or Notes of such series and coupons, if any, for whose payment money has been deposited in trust or segregated and held in trust by WMH or Parent Guarantor and thereafter repaid to WMH or Parent Guarantor or discharged) or (b) all outstanding Notes have become due and payable or will become due and payable within one year or are to be called for redemption within one year and WMH or Parent Guarantor deposits with the trustee, in trust, (i) sufficient funds to pay the principal of and interest to stated maturity (or redemption) on, all outstanding Notes or all outstanding Notes of such series of Notes or (ii) such
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amount of direct obligations of, or obligations guaranteed by, the U.S. government (or a combination of amounts deposited in (i) and (ii)), the indenture will cease to be of further effect as to all outstanding Notes or any series of Notes (“satisfaction and discharge”).
No Personal Liability of Incorporators, Stockholders, Officers, Directors, Members
The indenture provides that no recourse shall be had under or upon any obligation, covenant or agreement of WMH or any Guarantor in the indenture or any supplemental indenture, or in any of the Notes or because of the creation of any indebtedness represented thereby, against any incorporator, stockholder, officer, director or member, past, present or future, of WMH or any Guarantor or of any predecessor or successor entity of WMH or any Guarantor under any law, statute or constitutional provision or by the enforcement of any assessment or by any legal or equitable proceeding or otherwise. Each holder, by accepting the Notes, waives and releases all such liability.
Governing Law
The indenture, the Notes and the guarantees are governed by, and shall be construed in accordance with, the laws of the State of New York.
The Trustee
The indenture provides that, except during the continuance of an Event of Default, the Trustee will perform only such duties as are specifically set forth in such indenture. If an Event of Default has occurred and is continuing, the Trustee will exercise such rights and powers vested in it under the indenture and use the same degree of care and skill in its exercise as a prudent person would exercise under the circumstances in the conduct of such person’s own affairs.
The indenture and the provisions of the Trust Indenture Act, incorporated by reference therein, contain limitations on the rights of the Trustee thereunder should it become a creditor of the Parent Guarantor, WMH or any of their subsidiaries, to obtain payment of claims in certain cases or to realize on certain property received by it in respect of any such claims, as security or otherwise. The Trustee is permitted to engage in other transactions, provided that if it acquires any conflicting interest (as defined in the Trust Indenture Act), it must eliminate such conflict or resign.
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The New Notes will be issued as fully-registered global senior notes which will be deposited with, or on behalf of, DTC and registered, at the request of DTC, in the name of Cede & Co. Beneficial interests in the global senior notes will be represented through book-entry accounts of financial institutions acting on behalf of beneficial owners as direct or indirect participants in DTC. Investors may elect to hold their interests in the global senior notes through either DTC (in the United States) or (in Europe) through Clearstream or through Euroclear. Investors may hold their interests in the global senior notes directly if they are participants of such systems, or indirectly through organizations that are participants in these systems. Interests held through Clearstream and Euroclear will be recorded on DTC’s books as being held by the U.S. depositary for each of Clearstream and Euroclear (the “U.S. Depositories”), which U.S. Depositories will, in turn, hold interests on behalf of their participants’ customers’ securities accounts. Beneficial interests in the global senior notes will be held in denominations of $2,000 and multiples of $1,000 in excess thereof. Except as set forth below, the global senior notes may be transferred, in whole and not in part, only to another nominee of DTC or to a successor of DTC or its nominee.
The New Notes represented by a global senior note can be exchanged for definitive securities in registered form only if:
| • | DTC notifies us that it is unwilling or unable to continue as depositary for that global senior note and we do not appoint a successor depositary within 90 days after receiving that notice; |
| • | at any time DTC ceases to be a clearing agency registered under the Exchange Act and we do not appoint a successor depositary within 90 days after becoming aware that DTC has ceased to be registered as a clearing agency; |
| • | we, in our sole discretion, notify the Trustee that we elect to cause the issuance of certificated notes and any participant requests a certificated note in accordance with DTC’s procedures; or |
| • | certain other events provided in the indenture should occur. |
A global New Note that can be exchanged as described in the preceding sentence will be exchanged for definitive securities issued in authorized denominations in registered form for the same aggregate amount. The definitive securities will be registered in the names of the owners of the beneficial interests in the global New Note as directed by DTC.
We will make principal and interest payments on all New Notes represented by a global senior note to the paying agent which in turn will make payment to DTC or its nominee, as the case may be, as the sole registered owner and the sole holder of the New Notes represented by a global senior note for all purposes under the indenture. Accordingly, we, the Trustee and any paying agent will have no responsibility or liability for:
| • | any aspect of DTC’s records relating to, or payments made on account of, beneficial ownership interests in a debt security represented by a global senior note; |
| • | any other aspect of the relationship between DTC and its participants or the relationship between those participants and the owners of beneficial interests in a global senior note held through those participants; or |
| • | the maintenance, supervision or review of any of DTC’s records relating to those beneficial ownership interests. |
DTC has advised us that its current practice is to credit participants’ accounts on each payment date with payments in amounts proportionate to their respective beneficial interests in the principal amount of such global senior note as shown on DTC’s records, upon DTC’s receipt of funds and corresponding detail information. The underwriters will initially designate the accounts to be credited. Payments by participants to owners of beneficial
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interests in a global senior note will be governed by standing instructions and customary practices, as is the case with securities held for customer accounts registered in “street name,” and will be the sole responsibility of those participants. Book-entry Notes may be more difficult to pledge because of the lack of a physical note.
Same Day Settlement and Payment
All payments of principal and interest on the New Notes will be made by WBD in immediately available funds. The New Notes will trade in DTC’s Same-Day Funds Settlement System until maturity, and secondary market trading activity in the Notes will therefore be required by DTC to settle in immediately available funds.
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EXCHANGE OFFER; REGISTRATION RIGHTS
The following summary describes the material terms and provisions of the Registration Rights Agreement. This description is qualified in its entirety by reference to the terms and conditions of the Registration Rights Agreement. We urge you to read the Registration Rights Agreement in its entirety because it, not the following summary, will define your rights as a holder of Notes under that agreement. A copy of the Registration Rights Agreement is included as Exhibit 4.3 to the registration statement of which this prospectus constitutes a part and may also be obtained upon request at the address set forth under “Where You Can Find More Information.”
As used in this section, “Guarantors” refers to WBD and each wholly-owned domestic subsidiary of WBD that is a borrower or that guarantees the payment of any debt under the Senior Credit Facilities or any Material Debt.
In connection with the issuance of the Old Notes and the Merger, WMH, the Guarantors and the initial purchasers entered into the Registration Rights Agreement pursuant to which WMH agreed, for the benefit of the holders of Old Notes, to use its commercially reasonable efforts to (1) cause to be filed with the SEC an exchange offer registration statement on an appropriate registration form with respect to an offer to (i) exchange the Old Notes for New Notes having substantially identical terms as the Old Notes of the corresponding series and evidencing the same indebtedness as the Old Notes of the corresponding series (except that the New Notes will be registered under the Securities Act and will not be subject to restrictions on transfer or contain provisions relating to additional interest, will bear different CUSIP numbers than the Notes, will not entitle their holders to registration rights and will be subject to terms relating to book-entry procedures and administrative terms relating to transfers that differ from those of the Notes, as discussed below) and (ii) exchange the guarantees related to the Notes for registered guarantees related to the Notes having substantially the same terms as the original note guarantees, and (2) cause such registration statement to be declared effective under the Securities Act.
When the SEC declares the registration statement effective, WMH will offer (i) the New Notes in return for the Old Notes and (ii) the guarantees related to the New Notes in return for the guarantees related to the Old Notes. The exchange offer will remain open for at least 20 business days (or shorter or longer if required by applicable law) after the date WMH mails notice of the exchange offer to the holders of Old Notes. For each Old Note surrendered to WMH under the exchange offer, the holder will receive a New Note of such series of equal principal amount. Interest on each New Note will accrue from the last interest payment date on which interest was paid on the Old Note surrendered in exchange therefor.
Each holder of Old Notes that participates in the exchange offer will be required to represent:
| • | that any New Notes to be received by it will be acquired in the ordinary course of its business; |
| • | that, it does not engage in, does not intend to engage in, and has no arrangement or understanding with any person to participate in a distribution (within the meaning of the Securities Act) of the New Notes in violation of the provisions of the Securities Act; |
| • | that it is not an “affiliate” of WMH, the Parent Guarantor or any Subsidiary Guarantor within the meaning of Rule 405 under the Securities Act; and |
| • | if it is a broker-dealer that will receive New Notes for its own account in exchange for Old Notes, that the Old Notes were acquired as a result of market-making or other trading activities and that it will deliver a prospectus (or, to the extent permitted by law, make a prospectus available) in connection with any resale of the New Notes. In this case, WMH agrees to maintain the effectiveness of the exchange offer registration statement until the earlier of (i) 120 days from the date the registration statement becomes effective and (ii) the on which no broker-dealer is required to deliver a prospectus in connection with market-making or other trading activities. |
WMH will use its commercially reasonable efforts to complete the exchange offer promptly after the registration statement becomes effective. Under existing interpretations of the SEC contained in several no-action
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letters to third parties, the New Notes will generally be freely transferable after the exchange offer without further registration under the Securities Act, except that any broker-dealer that participates in the exchange must deliver a prospectus meeting the requirements of the Securities Act when it resells the New Notes.
Old Notes of any series not tendered in the exchange offer will bear interest at the rate set forth on the cover page of this prospectus and be subject to all the terms and conditions specified in the indenture, including transfer restrictions, but will not retain any rights under the Registration Rights Agreement (including with respect to additional interest) after the consummation of the exchange offer.
In the event that WMH determines that a registered exchange offer is not available or may not be completed because it would violate any applicable law or applicable interpretations of the staff of the SEC, or, if for any reason, an exchange offer is not completed by July 15, 2023, or any holder shall so request following the consummation of the registered exchange offer with respect to any Old Notes held by it that were not eligible for exchange, WMH and the Guarantors will use their commercially reasonable efforts to cause to become effective a shelf registration statement relating to resales of the Notes, other than Notes held by their affiliates and to keep that shelf registration statement effective until the earliest of (A) the time when any such Notes covered by the shelf registration statement can be sold pursuant to Rule 144 without any limitations by non-affiliates of ours under clause (d) of Rule 144, (B) the date on which all such Notes are disposed of in accordance with the shelf registration statement and (C) one year after its original effective date. WMH and the Guarantors will, in the event of such a shelf registration, provide to each holder of Notes copies of a prospectus, notify each holder of Notes when the shelf registration statement has become effective and take certain other actions to permit resales of the Notes. A holder that sells Notes under the shelf registration statement generally will be required to make certain representations to WMH (as described above), to be named as a selling security holder in the related prospectus and to deliver a prospectus to purchasers, will be subject to certain of the civil liability provisions under the Securities Act in connection with those sales and will be bound by the provisions of the registration rights agreement that are applicable to such a holder (including certain indemnification obligations). Holders of Notes will also be required to suspend their use of the prospectus included in the shelf registration statement under specified circumstances upon receipt of notice from WMH. Under applicable interpretations of the staff of the SEC, WMH’s affiliates will not be permitted to exchange their Old Notes for New Notes in the exchange offer.
A “registration default” will occur if the exchange offer is not for any reason completed by July 15, 2023 (or, if required, the applicable shelf registration statement is not declared effective by the SEC on or prior to July 15, 2023, or if any registration statement required by the registration rights agreement has been declared effective and thereafter either ceases to be effective or the related prospectus ceases to be usable at any time during the required effectiveness period (subject to certain exceptions), and such failure to remain effective or be usable exists for more than 90 days (whether or not consecutive) in any 12-month period. In that case, the annual interest rate borne by the Notes will be increased by 0.25% per annum (which rate will be increased by an additional 0.25% per annum for each subsequent 90-day period that such additional interest continues to accrue, provided that the rate at which such additional interest accrues may in no event exceed 0.50% per annum) until the exchange offer is completed, the shelf registration statement is declared effective or such registration statement and related prospectus become effective or usable again.
Any amounts of additional interest due will be payable in cash on the same original interest payment dates as interest on the Old Notes is payable.
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Each broker-dealer that receives New Notes for its own account pursuant to the exchange offer must acknowledge that it will deliver a prospectus in connection with any resale of such New Notes. This prospectus, as it may be amended or supplemented from time to time, may be used by a broker-dealer in connection with the resale of New Notes received in exchange for Old Notes, where such Old Notes were acquired as a result of market-making activities or other trading activities. We have agreed that the registration statement will remain effective for a period ending on the earlier of (i) 120 days from the date on which the registration statement is declared effective and (ii) the date on which no broker-dealer is required to deliver a prospectus in connection with market-making or other trading activities.
We will not receive any proceeds from any sale of New Notes by broker-dealers. New Notes received by broker-dealers for their own account pursuant to the exchange offer may be sold from time to time, in one or more transactions, through the over-the-counter market, in negotiated transactions, through the writing of options on the New Notes or a combination of such methods of resale, at prevailing market prices at the time of resale, at prices related to such prevailing market prices or at negotiated prices. Any such resale may be made directly to purchasers or, alternatively, to or through brokers or dealers who may receive compensation in the form of commissions or concessions from any such broker-dealer or the purchasers of any such New Notes. Any broker-dealer that resells New Notes that were received by it for its own account pursuant to the exchange offer and any broker or dealer that participates in a distribution of such New Notes may be deemed to be an “underwriter” within the meaning of the Securities Act and must deliver a prospectus meeting the requirements of the Securities Act in connection with any resales of such New Notes, which may be this prospectus. Any profit on any such resale of New Notes and any commission or concessions received by any such persons may be deemed to be underwriting compensation under the Securities Act. The letter of transmittal states that, by acknowledging that it will deliver and by delivering a prospectus, a broker-dealer will not be deemed to admit that it is an “underwriter” within the meaning of the Securities Act. In addition, the letter of transmittal states that if the exchange offeree is a broker-dealer that will receive New Notes for its own account in exchange for Old Notes, where such Old Notes were not acquired as a result of market-making activities or other trading activities, such broker-dealer will not be able to participate in the exchange offer.
For a period ending on the earlier of (i) 90 days from the date on which the registration statement is declared effective and (ii) the date on which no broker-dealer is required to deliver a prospectus in connection with market-making or other trading activities, we will promptly send additional copies of this prospectus and any amendment or supplement to this prospectus to any broker-dealer that requests such documents in the letter of transmittal. We have agreed to pay all expenses incident to the exchange offer (other than the expenses of counsel for the holders of the Old Notes), other than brokerage commissions and applicable transfer taxes, and will indemnify certain holders of the New Notes (including any broker-dealers) against certain liabilities, including liabilities under the Securities Act.
Based on interpretations by the Staff of the SEC as set forth in no-action letters issued to third parties (including Exxon Capital Holdings Corporation (available May 13, 1988), Morgan Stanley & Co. Incorporated (available June 5, 1991), K-111 Communications Corporation (available May 14, 1993) and Shearman & Sterling (available July 2, 1993)), we believe that the New Notes issued pursuant to the exchange offer may be offered for resale, resold and otherwise transferred by any holder of such New Notes, other than any such holder that is a broker-dealer or an “affiliate” of us within the meaning of Rule 405 under the Securities Act, without compliance with the registration and prospectus delivery provisions of the Securities Act, provided that:
| • | such New Notes are acquired in the ordinary course of business; |
| • | at the time of the commencement of the exchange offer such holder has no arrangement or understanding with any person to participate in a distribution of such New Notes; and |
| • | such holder is not engaged in and does not intend to engage in a distribution of such New Notes. |
We have not sought and do not intend to seek a no-action letter from the SEC, with respect to the effects of the exchange offer, and there can be no assurance that the Staff would make a similar determination with respect to the New Notes as it has in such no-action letters.
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MATERIAL UNITED STATES FEDERAL INCOME TAX CONSIDERATIONS
The following is a discussion of material U.S. federal income tax considerations relating to the exchange offer (as described under “The Exchange Offer”). This discussion is based on the U.S. Internal Revenue Code of 1986, as amended, U.S. Treasury regulations promulgated or proposed thereunder and administrative and judicial interpretations thereof, all as in effect on the date hereof, and all of which are subject to change, possibly with retroactive effect, or to different interpretation. This discussion does not address all of the U.S. federal income tax considerations that may be relevant to specific Holders (as defined below) in light of their particular circumstances (including Holders that are directly or indirectly related to us) or to Holders subject to special treatment under U.S. federal income tax law (such as banks, insurance companies, dealers in securities or other Holders that generally mark their securities to market for U.S. federal income tax purposes, tax-exempt entities, retirement plans, regulated investment companies, real estate investment trusts, certain former citizens or residents of the United States, Holders that hold the Notes as part of a straddle, hedge, conversion or other integrated transaction or Holders that are U.S. persons and have a “functional currency” other than the U.S. dollar). This discussion does not address any U.S. state or local or non-U.S. tax considerations or any U.S. federal estate, gift or alternative minimum tax considerations. As used in this discussion, the term “Holder” means a beneficial owner of a Note.
The exchange of an Old Note for a New Note pursuant to the exchange offer will not be treated as a sale or exchange of such Old Note by a Holder for U.S. federal income tax purposes. Accordingly, a Holder of an Old Note will not recognize any gain or loss upon the exchange of such Old Note for a New Note pursuant to the exchange offer. Such Holder’s holding period for such New Note will include such Holder’s holding period for such Old Note, and such Holder’s adjusted tax basis in such New Note will be the same as such Holder’s adjusted tax basis in such Old Note.
There will be no U.S. federal income tax consequences to a Holder of an Old Note that does not participate in the exchange offer.
EACH HOLDER SHOULD CONSULT ITS OWN TAX ADVISOR REGARDING THE U.S. FEDERAL, STATE AND LOCAL AND ANY OTHER TAX CONSIDERATIONS RELATING TO THE EXCHANGE OFFER IN LIGHT OF ITS PARTICULAR CIRCUMSTANCES.
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Debevoise & Plimpton LLP, New York, New York will pass upon the validity of the New Notes and the guarantees. Potter Anderson & Corroon LLP will pass upon certain Delaware legal matters relating to the New Notes and the guarantees. Womble Bond Dickinson (US) LLP will pass upon certain Ohio legal matters relating to the New Notes and the guarantees.
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The consolidated financial statements and management’s assessment of the effectiveness of internal control over financial reporting (which is included in Management’s Report on Internal Control over Financial Reporting) incorporated in this prospectus by reference to the Annual Report on Form 10-K for the year ended December 31, 2022 have been so incorporated in reliance on the report, which contains a paragraph relating to the effectiveness of internal control over financial reporting due to the exclusion of the WarnerMedia Business because it was acquired by the Company in a purchase business combination during 2022, of PricewaterhouseCoopers LLP, an independent registered public accounting firm, given on the authority of said firm as experts in auditing and accounting.
The combined financial statements of the WarnerMedia Business at December 31, 2021 and 2020, and for each of the three years in the period ended December 31, 2021 included in the Current Report on Form 8-K of Discovery, Inc. filed on March 7, 2022 and incorporated by reference in this Prospectus and Registration Statement have been audited by Ernst & Young LLP, independent registered public accounting firm, as set forth in their report thereon incorporated by reference herein, and are incorporated by reference in reliance upon such report given on the authority of such firm as experts in accounting and auditing.
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WHERE YOU CAN FIND MORE INFORMATION
WBD files annual, quarterly and current reports, proxy statements and other information with the SEC. Its SEC filings are available to the public over the Internet at the SEC’s website at http://www.sec.gov. Copies of certain information filed by WBD with the SEC are also available on its website at http://ir.wbd.com. WBD’s website is not a part of this prospectus and is not incorporated by reference into this prospectus.
This prospectus is part of a registration statement we filed with the SEC. This prospectus omits some information contained in the registration statement in accordance with SEC rules and regulations. You should review the information and exhibits in the registration statement for further information about WBD and its consolidated subsidiaries and the securities we are offering. Statements in this prospectus concerning any document we filed as an exhibit to the registration statement or that we otherwise filed with the SEC are not intended to be comprehensive and are qualified by reference to these filings. You should review the complete document to evaluate these statements.
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INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The SEC allows WBD to incorporate by reference much of the information it files with the SEC, which means that we can disclose important information to you by referring you to those publicly available documents. The information that we incorporate by reference in this prospectus is considered to be part of this prospectus. Because we are incorporating by reference future filings with the SEC, this prospectus is continually updated and those future filings may modify or supersede some of the information included or incorporated in this prospectus. This means that you must look at all of the SEC filings that we incorporate by reference to determine if any of the statements in this prospectus or in any document previously incorporated by reference have been modified or superseded. This prospectus incorporates by reference the documents listed below and any future filings WBD makes with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended, or the Exchange Act (in each case, other than those documents or portions of those documents not deemed to be filed) until the offering of the securities under the registration statement is terminated or completed:
| • | Annual Report on Form 10-K for the fiscal year ended December 31, 2022, filed with the SEC on February 24, 2023; |
| • | The information incorporated by reference into the Annual Report on Form 10-K for the fiscal year ended December 31, 2022 from our Proxy Statement for the 2023 Annual Meeting of Stockholders, filed on , 2023; |
| • | Current Reports on Form 8-K filed with the SEC on January 6, 2023, January 20, 2023, February 1, 2023, March 6, 2023, March 6, 2023 and March 10, 2023; |
| • | Audited combined financial statements and related notes of the WarnerMedia Business as of December 31, 2021 and 2020 and for the years ended December 31, 2021, 2020 and 2019, filed as Exhibit 99.1 to the Current Report on Form 8-K of Discovery, Inc. filed on March 7, 2022; and |
| • | Unaudited combined financial statements and related notes of the WarnerMedia Business as of March 31, 2022 and December 31, 2021 and for the three months ended March 31, 2022 and March 31, 2021, filed as Exhibit 99.3 to the Current Report on Form 8-K of Warner Bros. Discovery, Inc. filed on August 4, 2022. |
The consolidated financial statements included in the 2022 WBD Annual Report and other SEC filings, which are incorporated into this prospectus, have been prepared on a consolidated basis and include certain financial information related to WMH, DCL and Scripps. WMH, DCL and Scripps do not produce their own separately audited standalone or consolidated financial statements.
You may request a copy of these filings, at no cost, by writing or telephoning WBD at the following address or telephone number:
230 Park Avenue South
New York, New York 10003
(212) 548-5555
Attention: Investor Relations
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WARNERMEDIA HOLDINGS, INC.
Offer to Exchange
$1,750,000,000 Outstanding 3.428% Senior Notes due 2024
for
$1,750,000,000 Registered 3.428% Senior Notes due 2024
$500,000,000 Outstanding 3.528% Senior Notes due 2024
for
$500,000,000 Registered 3.528% Senior Notes due 2024
$1,750,000,000 Outstanding 3.638% Senior Notes due 2025
for
$1,750,000,000 Registered 3.638% Senior Notes due 2025
$500,000,000 Outstanding 3.788% Senior Notes due 2025
for
$500,000,000 Registered 3.788% Senior Notes due 2025
$4,000,000,000 Outstanding 3.755% Senior Notes due 2027
for
$4,000,000,000 Registered 3.755% Senior Notes due 2027
$1,500,000,000 Outstanding 4.054% Senior Notes due 2029
for
$1,500,000,000 Registered 4.054% Senior Notes due 2029
$5,000,000,000 Outstanding 4.279% Senior Notes due 2032
for
$5,000,000,000 Registered 4.279% Senior Notes due 2032
$4,500,000,000 Outstanding 5.050% Senior Notes due 2042
for
$4,500,000,000 Registered 5.050% Senior Notes due 2042
$7,000,000,000 Outstanding 5.141% Senior Notes due 2052
for
$7,000,000,000 Registered 5.141% Senior Notes due 2052
$3,000,000,000 Outstanding 5.391% Senior Notes due 2062
for
$3,000,000,000 Registered 5.391% Senior Notes due 2062
$500,000,000 Outstanding Floating Rate Senior Notes due 2024
for
$500,000,000 Registered Floating Rate Senior Notes due 2024
PROSPECTUS
, 2023
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PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
ITEM 20. Indemnification of Directors and Officers
WarnerMedia Holdings, Inc. (“WMH”) and Warner Bros. Discovery, Inc. (“WBD”) are incorporated under the laws of the State of Delaware.
Section 145(a) of the DGCL provides, generally, that a corporation shall have the power to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding (except actions by or in the right of the corporation) by reason of the fact that such person is or was a director, officer, employee or agent of the corporation against all expenses, judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding if such person acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the corporation and, with respect to any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful. A corporation may similarly indemnify such person for expenses actually and reasonably incurred by such person in connection with the defense or settlement of any action or suit by or in the right of the corporation, provided that such person acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of the corporation, and, in the case of claims, issues and matters as to which such person shall have been adjudged liable to the corporation, provided that a court shall have determined, upon application, that, despite the adjudication of liability but in view of all of the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which such court shall deem proper.
Section 102(b)(7) of the DGCL provides, generally, that the certificate of incorporation may contain a provision eliminating or limiting the personal liability of a director or officer who has consented to service of process to the registered agent of the corporation (such officer, a “senior officer”) to the corporation or its shareholders for monetary damages for breach of fiduciary duty as a director or senior officer, provided that such provision may not eliminate or limit the liability: (i) for any breach of the director’s or senior officer’s duty of loyalty to the corporation or its shareholders; (ii) of a director or senior officer for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law; (iii) of a director under Section 174 of Title 8 of the DGCL; (iv) for any transaction from which the director or senior officer derived an improper personal benefit; or (v) of a senior officer for any action by or in the right of the corporation. No such provision may eliminate or limit the liability of a director or senior officer for any act or omission occurring prior to the date when such provision became effective.
Warner Bros. Discovery, Inc.
The WBD charter provides that, consistent with Section 102(b)(7) of the DGCL, no director shall be liable to WBD or its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability: (i) for any breach of the director’s duty of loyalty to WBD or its stockholders; (ii) for acts or omissions not in good faith or which involve intentional misconduct or knowing violation of the law; (iii) under Section 174 of the DGCL; or (iv) for any transaction from which a director derived an improper benefit.
Provisions in the WBD bylaws provide that WBD will indemnify any person who was or is a party or is threatened to be made a party to any action, suit or proceeding, whether civil, criminal, administrative or investigative, including any action or suit by WBD or in its right, by reason of the fact that such person is or was its director, officer, employee, or, while such person is or was a director, officer or employee of WBD, is or was serving at WBD’s request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys’ fees and disbursements), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding, but in each case only if and to the extent permitted under applicable state or federal law.
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The WBD bylaws further state that this indemnification shall not be deemed exclusive of any other right to which the indemnified person may be entitled.
WarnerMedia Holdings, Inc.
The WMH charter provides that, consistent with Section 102(b)(7) of the DGCL, no director shall be liable to WMH or its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability: (i) for any breach of the director’s duty of loyalty to WMH or its stockholders; (ii) for acts or omissions not in good faith or which involve intentional misconduct or knowing violation of the law; (iii) under Section 174 of the DGCL; or (iv) for any transaction from which a director derived an improper benefit.
Provisions in the WMH bylaws provide that WMH will indemnify, to the fullest extent permitted by the DGCL and other applicable law, any person who was or is a party or is threatened to be made a party to any action, suit or proceeding, whether civil, criminal, administrative or investigative, including any action or suit by WMH or in its right, by reason of the fact that such person is or was its director, officer, employee, or, while such person is or was a director, officer or employee of WMH, is or was serving at WMH’s request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, such person is or was serving or has agreed to serve at the request of the corporation as a director, officer or manager of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including reasonable attorneys’ fees) incurred in connection with such proceeding.
The WMH bylaws further state that this indemnification shall not be deemed exclusive of any other right to which the indemnified person may be entitled.
Discovery Communications, LLC (“DCL”) is a limited liability company formed in the State of Delaware.
Section 18-303(a) of the Delaware Limited Liability Company Act (the “DLLCA”) provides that, except as otherwise provided by the DLLCA, the debts, obligations and liabilities of a limited liability company shall be solely the limited liability company’s, and no member or manager of a limited liability company shall be obligated personally for any such debt, obligation or liability solely by reason of being a member or acting as a manager.
Section 18-108 of the DLLCA states that subject to such standards and restrictions, if any, as set forth in its limited liability company agreement, a limited liability company has the power to indemnify and hold harmless any member or manager or other person from and against any and all claims and demands whatsoever.
Section 19 of DCL’s Amended and Restated Limited Liability Company Agreement (the “DCL LLC Agreement”) provides that no member, manager or officer shall be liable to DCL, the member or any other person or entity who or that has an interest in DCL for any loss, damage or claim incurred by reason of any act or omission performed or omitted by such member, manager or officer in good faith on behalf of DCL and in a manner reasonably believed to be within the scope of the authority conferred on such member, manager or officer by the DCL LLC Agreement, except that the member, manager or officer shall be liable for any such loss, damage or claim incurred by reason of such member’s, manager’s or officer’s gross negligence or willful misconduct. To the full extent permitted by applicable law, the member, manager or officer shall be entitled to indemnification from DCL for any loss, damage or claim incurred by such member, manager or officer by reason of any act or omission performed or omitted by such member, manager or officer in good faith on behalf of DCL and in a manner reasonably believed to be within the scope of authority conferred on such member, manager or officer by the DCL LLC Agreement, except that no member, manager or officer shall be entitled to be indemnified in respect of any loss, damage or claim incurred by the member, manager or officer by reason of gross negligence or willful misconduct with respect to such acts or omissions; provided, however, that any indemnity under Section 19 of the DCL LLC Agreement shall be provided out of and to the extent of DCL’s assets only, and no member, manager or officer shall have personal liability on the account thereof.
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Scripps Networks Interactive, Inc. (“Scripps”) is incorporated under the laws of the State of Ohio.
Under Ohio law, Ohio corporations are authorized to indemnify directors, officers, employees, and agents within prescribed limits and must indemnify them under certain circumstances. Ohio law does not provide statutory authorization for a corporation to indemnify directors, officers, employees, and agents for settlements, fines, or judgments in the context of derivative suits. However, it provides that directors (but not officers, employees, and agents) are entitled to mandatory advancement of expenses, including attorneys’ fees, incurred in defending any action, including derivative actions, brought against the director, provided the director agrees to cooperate with the corporation concerning the matter and to repay the amount advanced if it is proved by clear and convincing evidence that his act or failure to act was done with deliberate intent to cause injury to the corporation or with reckless disregard to the corporation’s best interests.
Ohio law does not authorize payment of judgments to a director, officer, employee, or agent after a finding of negligence or misconduct in a derivative suit absent a court order. Indemnification is required, however, to the extent such person succeeds on the merits. In all other cases, if a director, officer, employee, or agent acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation, indemnification is discretionary except as otherwise provided by a corporation’s articles, code of regulations, or by contract except with respect to the advancement of expenses of directors.
Under Ohio law, a director is not liable for monetary damages unless it is proved by clear and convincing evidence that his action or failure to act was undertaken with deliberate intent to cause injury to the corporation or with reckless disregard for the best interests of the corporation. There is, however, no comparable provision limiting the liability of officers, employees, or agents of a corporation. The statutory right to indemnification is not exclusive in Ohio, and Ohio corporations may, among other things, procure insurance for such persons.
Scripps’ articles of incorporation provide that Scripps shall indemnify, to the fullest extent authorized by Ohio law, any person made or threatened to be made a party to any action, suit or proceeding by reason of the fact that he or she is or was a director or officer of Scripps, or by reason of the fact that he or she is or was serving, at Scripps’ request, as an officer, director, employee, trustee or agent of another corporation (including a subsidiary of Scripps) or of a partnership, joint venture, trust or other enterprise, including service with respect to employee benefit plans maintained or sponsored by us. Scripps’ articles of incorporation also provide that Scripps shall pay, to the fullest extent authorized by Ohio law, expenses incurred by an officer in defending any proceeding in advance of its final disposition on the same basis as provided for directors under Ohio law. Any amendment of this provision will not reduce indemnification obligations relating to actions taken before such amendment.
ITEM 21. Exhibits and Financial Statements
The Exhibits to this Registration Statement on Form S-4 are listed in the Exhibit Index which precedes the signature pages to this Registration Statement and is incorporated herein by reference.
ITEM 22. Undertakings
| (a) | Each of the undersigned registrants hereby undertakes: |
| (1) | To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: |
| (i) | To include any prospectus required by section 10(a)(3) of the Securities Act of 1933, as amended (the “Securities Act”); |
| (ii) | To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth |
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| in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the SEC pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and |
| (iii) | To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement. |
| (2) | That, for purposes of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. |
| (3) | To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. |
| (4) | That, for purposes of determining liability under the Securities Act to any purchaser: |
each prospectus filed pursuant to Rule 424(b) as part of a registration statement relating to an offering, other than registration statements relying on Rule 430B or other than prospectuses filed in reliance on Rule 430A, shall be deemed to be part of and included in the registration statement as of the date it is first used after effectiveness; provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such first use, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such date of first use.
| (b) | Each of the undersigned registrants hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. |
| (c) | Each of the undersigned registrants hereby undertakes as follows: that prior to any public reoffering of the securities registered hereunder through use of a prospectus which is a part of this registration statement, by any person or party who is deemed to be an underwriter within the meaning of Rule 145(c), the issuer undertakes that such reoffering prospectus will contain the information called for by the applicable registration form with respect to reofferings by persons who may be deemed underwriters, in addition to the information called for by the other Items of the applicable form. |
| (d) | Each registrant undertakes that every prospectus (i) that is filed pursuant to the paragraph immediately preceding, or (ii) that purports to meet the requirements of Section 10(a)(3) of the Securities Act and is used in connection with an offering of securities subject to Rule 415, will be filed as a part of an amendment to the registration statement and will not be used until such amendment is effective, and that, for purposes of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. |
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| (e) | Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrants pursuant to the foregoing provisions, or otherwise, each registrant has been advised that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by each registrant of expenses incurred or paid by a director, officer or controlling person of each registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, each registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue. |
| (f) | Each of the undersigned registrants hereby undertakes to respond to requests for information that is incorporated by reference into the prospectus pursuant to Items 4, 10(b), 11 or 13 of this Form, within one business day of receipt of such request, and to send the incorporated documents by first class mail or other equally prompt means. This includes information contained in documents filed subsequent to the effective date of the registration statement through the date of responding to the request. |
| (g) | Each of the undersigned registrants hereby undertakes to supply by means of post-effective amendment all information concerning a transaction, and the company being acquired involved therein, that was not the subject of and included in the registration statement when it became effective. |
EXHIBIT INDEX
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| ** | Filed herewith. |
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Pursuant to the requirements of the Securities Act of 1933, as amended, WarnerMedia Holdings, Inc. has duly caused this Registration Statement on Form S-4 to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of New York, State of New York on March 22, 2023.
| WARNERMEDIA HOLDINGS, INC. | ||
| By: | /s/ David M. Zaslav | |
| Name: David M. Zaslav Title: President and Chief Executive Officer | ||
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints David M. Zaslav, Savalle Sims and Tara L. Smith, and each of them, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any or all amendments (including post-effective amendments) to this registration statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirement of the Securities Act of 1933, as amended, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
| Signature |
Title |
Date | ||
| /s/ David M. Zaslav David M. Zaslav |
President and Chief Executive Officer (Principal Executive Officer) and Director |
March 22, 2023 | ||
| /s/ Gunnar Wiedenfels Gunnar Wiedenfels |
Chief Financial Officer (Principal Financial Officer and Principal Accounting Officer) and Director |
March 22, 2023 | ||
| /s/ Savalle Sims Savalle Sims |
Executive Vice President and General Counsel and Director |
March 22, 2023 | ||
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, Warner Bros. Discovery, Inc. has duly caused this Registration Statement on Form S-4 to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of New York, State of New York on March 22, 2023.
| WARNER BROS. DISCOVERY, INC. | ||
| By: | /s/ David M. Zaslav | |
| Name: David M. Zaslav Title: President and Chief Executive Officer | ||
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints David M. Zaslav, Savalle Sims and Tara L. Smith, and each of them, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any or all amendments (including post-effective amendments) to this registration statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirement of the Securities Act of 1933, as amended, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
| Signature |
Title |
Date | ||
| /s/ David M. Zaslav David M. Zaslav |
President and Chief Executive Officer, and Director (Principal Executive Officer) |
March 22, 2023 | ||
| /s/ Gunnar Wiedenfels Gunnar Wiedenfels |
Chief Financial Officer (Principal Financial Officer) |
March 22, 2023 | ||
| /s/ Lori C. Locke Lori C. Locke |
Executive Vice President and Chief Accounting Officer (Principal Accounting Officer) |
March 22, 2023 | ||
| /s/ Samuel A. Di Piazza, Jr. Samuel A. Di Piazza, Jr. |
Chairman of the Board |
March 22, 2023 | ||
| /s/ Robert R. Bennett Robert R. Bennett |
Director |
March 22, 2023 | ||
| /s/ Li Haslett Chen Li. Haslett Chen |
Director |
March 22, 2023 | ||
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| Signature |
Title |
Date | ||
| /s/ Richard W. Fisher Richard W. Fisher |
Director |
March 22, 2023 | ||
| /s/ Paul A. Gould Paul A. Gould |
Director |
March 22, 2023 | ||
| /s/ Debra L. Lee Debra L. Lee |
Director |
March 22, 2023 | ||
| /s/ John C. Malone John C. Malone |
Director |
March 22, 2023 | ||
| /s/ Fazal Merchant Fazal Merchant |
Director |
March 22, 2023 | ||
| /s/ Steven A. Miron Steven A. Miron |
Director |
March 22, 2023 | ||
| /s/ Steven O. Newhouse Steven O. Newhouse |
Director |
March 22, 2023 | ||
| /s/ Paula A. Price Paula A. Price |
Director |
March 22, 2023 | ||
| /s/ Geoffrey Y. Yang Geoffrey Y. Yang |
Director |
March 22, 2023 | ||
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, Discovery Communications, LLC has duly caused this Registration Statement on Form S-4 to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of New York, State of New York on March 22, 2023.
| DISCOVERY COMMUNICATIONS, LLC | ||
| By: | /s/ David M. Zaslav | |
| Name: David M. Zaslav Title: President and Chief Executive Officer | ||
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints David M. Zaslav, Savalle Sims and Tara L. Smith, and each of them, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any or all amendments (including post-effective amendments) to this registration statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirement of the Securities Act of 1933, as amended, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
| Signature |
Title |
Date | ||
| /s/ David M. Zaslav David M. Zaslav |
President and Chief Executive Officer (Principal Executive Officer) and Manager |
March 22, 2023 | ||
| /s/ Gunnar Wiedenfels Gunnar Wiedenfels |
Chief Financial Officer (Principal Financial Officer and Principal Accounting Officer) and Manager |
March 22, 2023 | ||
| /s/ Savalle Sims Savalle Sims |
Manager |
March 22, 2023 | ||
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, Scripps Networks Interactive, Inc. has duly caused this Registration Statement on Form S-4 to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of New York, State of New York on March 22, 2023.
| SCRIPPS NETWORKS INTERACTIVE, INC. | ||
| By: | /s/ David M. Zaslav | |
| Name: David M. Zaslav Title: President and Chief Executive Officer | ||
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints David M. Zaslav, Savalle Sims and Tara L. Smith, and each of them, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any or all amendments (including post-effective amendments) to this registration statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirement of the Securities Act of 1933, as amended, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
| Signature |
Title |
Date | ||
| /s/ David M. Zaslav David M. Zaslav |
President and Chief Executive Officer (Principal Executive Officer) and Director |
March 22, 2023 | ||
| /s/ Gunnar Wiedenfels Gunnar Wiedenfels |
Chief Financial Officer (Principal Financial Officer and Principal Accounting Officer) and Director |
March 22, 2023 | ||
| /s/ Savalle Sims Savalle Sims |
Executive Vice President and General Counsel and Director |
March 22, 2023 | ||
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Exhibit 3.1
CONFIDENTIAL
CERTIFICATE OF MERGER
OF
DRAKE SUBSIDIARY, INC.,
(a Delaware corporation)
WITH AND INTO
MAGALLANES, INC.,
(a Delaware corporation)
April 8, 2022
* * * * * * * * * *
Pursuant to Section 251(c) of the General
Corporation Law of the State of Delaware
* * * * * * * * * *
Magallanes, Inc., a corporation duly organized and existing under and by virtue of the laws of the State of Delaware (the “Company”), desiring to merge Drake Subsidiary, Inc., a corporation duly orgadsnized and existing under and by virtue of the laws of the State of Delaware (“Merger Sub”), with and into the Company (the “Merger”), pursuant to the provisions of Title 8, Section 251 of the General Corporation Law of the State of Delaware, as amended (the “DGCL”), does hereby certify as follows:
FIRST: The name and jurisdiction of incorporation of each constituent entity of the Merger (each, a “Constituent Entity”) are as follows: (i) Magallanes, Inc., a Delaware corporation and (ii) Drake Subsidiary, Inc., a Delaware corporation.
SECOND: An Agreement and Plan of Merger, dated as of May 17, 2021 (as amended by Amendment No. 1 to the Agreement and Plan of Merger, dated as of November 18, 2021 and Amendment No. 2 to the Agreement and Plan of Merger, dated April 8, 2022, the “Merger Agreement”), entered into by and among AT&T Inc., a Delaware corporation, the Company, Discovery, Inc. (to be renamed Warner Bros. Discovery, Inc. prior to the effectiveness of the Merger), a Delaware corporation, and Merger Sub has been approved, adopted, executed and acknowledged by each Constituent Entity in accordance with Section 251(c) of the DGCL.
THIRD: The Company shall be the surviving company (the “Surviving Company”) in the Merger. The name of the Surviving Company shall be “Magallanes, Inc.”.
FOURTH: The certificate of incorporation of the Surviving Company shall be amended and restated in its entirety by reason of the Merger herein certified, and the Second Amended and Restated Certificate of Incorporation set forth on Exhibit A attached hereto shall be the Second Amended and Restated Certificate of Incorporation of the Surviving Company and shall continue in full force and effect until thereafter amended as provided therein and by applicable law.
FIFTH: The Merger is to become effective at 5:02 p.m. Eastern Time on April 8, 2022.
SIXTH: An executed copy of the Merger Agreement is on file at the office of the Surviving Company at the following address:
Magallanes, Inc.
c/o Warner Bros. Discovery, Inc.
230 Park Avenue South
New York, New York 10003
SEVENTH: A copy of the Merger Agreement will be furnished by the Surviving Company, upon request and without cost, to any stockholder of any Constituent Entity.
* * * * *
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the Surviving Company has caused this Certificate of Merger to be executed as of the date first written above.
| MAGALLANES, INC. | ||
| By: | /s/ Stephen A. McGaw | |
| Name: | Stephen A. McGaw | |
| Title: | President | |
[Signature Page to Certificate of Merger]
Exhibit A
Second Amended and Restated Certificate of Incorporation
See Attached.
SECOND AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
MAGALLANES, INC.
FIRST: The name of the corporation is Magallanes, Inc. (the “Corporation”).
SECOND: The Corporation’s registered office in the State of Delaware is at Corporation Service Company, 251 Little Falls Drive in the City of Wilmington, County of New Castle 19808. The name of its registered agent at such address is Corporation Service Company.
THIRD: The nature of the business of the Corporation and its purpose is to engage in any lawful act or activity for which corporations may be organized under the Delaware General Corporation Law (“DGCL”).
FOURTH: The total number of shares of stock which the Corporation shall have authority to issue is 1,000 shares of Common Stock, par value $0.01 per share.
FIFTH: The following provisions are inserted for the management of the business and for the conduct of the affairs of the Corporation and for the purpose of creating, defining, limiting and regulating the powers of the Corporation and its directors and stockholders:
1. The number of directors of the Corporation shall be fixed and may be altered from time to time in the manner provided in the Bylaws, and vacancies in the Board of Directors and newly created directorships resulting from any increase in the authorized number of directors may be filled, and directors may be removed, as provided in the Bylaws.
2. The election of directors may be conducted in any manner approved by the stockholders at the time when the election is held and need not be by written ballot.
3. All corporate powers and authority of the Corporation (except as at the time otherwise provided by law, by this Second Amended and Restated Certificate of Incorporation or by the Bylaws) shall be vested in and exercised by the Board of Directors.
4. The Board of Directors shall have the power without the assent or vote of the stockholders to adopt, amend, alter or repeal the Bylaws of the Corporation, except to the extent that the Bylaws or this Second Amended and Restated Certificate of Incorporation otherwise provide.
5. No director of the Corporation shall be liable to the Corporation or its stockholders for monetary damages for breach of his or her fiduciary duty as a director, provided that nothing contained in this Article shall eliminate or limit the liability of a director (i) for any breach of the director’s duty of loyalty to the Corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of the law, (iii) under Section 174 of the DGCL or (iv) for any transaction from which the director derived an improper personal benefit.
SIXTH: The Corporation reserves the right to amend or repeal any provision contained in this Second Amended and Restated Certificate of Incorporation in the manner now or hereafter prescribed by the laws of the State of Delaware, and all rights herein conferred upon stockholders or directors are granted subject to this reservation.
2
Exhibit 3.2
CERTIFICATE OF AMENDMENT
TO
SECOND AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
MAGALLANES, INC.
Pursuant to Section 242 of the
General Corporation Law of the State of Delaware
Magallanes, Inc. (the “Corporation”), a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware, does hereby certify as follows:
This Certificate of Amendment amends the Corporation’s Second Amended and Restated Certificate of Incorporation (the “Certificate”) and was duly adopted by the Corporation’s Board of Directors in accordance with the provisions of Sections 141(f) and 242 of the General Corporation Law of the State of Delaware. The resolutions setting forth the amendment of the Certificate are as follows:
| RESOLVED: | That Article FIRST of the Certificate be and hereby is amended by deleting it in its entirety and substituting the following in lieu thereof: | |
| “FIRST: The name of the corporation is WarnerMedia Holdings, Inc. (the “Corporation”).” | ||
*****
IN WITNESS WHEREOF, the Corporation has caused this Certificate of Amendment to be signed by its duly authorized officer as of this 14 day of April, 2022.
| MAGALLANES, INC. | ||
| By: | /s/ Tara L. Smith | |
| Name: Tara L. Smith | ||
| Title: Senior Vice President & Secretary | ||
2
Exhibit 3.3
Magallanes, Inc.
AMENDED AND RESTATED BYLAWS
As Adopted on April 8, 2022
Magallanes, Inc.
AMENDED AND RESTATED BYLAWS
Table of Contents
| Page | ||||||
| Article I MEETINGS OF STOCKHOLDERS |
1 | |||||
| Section 1.01. |
Annual Meetings |
1 | ||||
| Section 1.02. |
Special Meetings |
1 | ||||
| Section 1.03. |
Participation in Meetings by Remote Communication |
1 | ||||
| Section 1.04. |
Notice of Meetings; Waiver of Notice |
1 | ||||
| Section 1.05. |
Proxies |
2 | ||||
| Section 1.06. |
Voting Lists |
2 | ||||
| Section 1.07. |
Quorum |
3 | ||||
| Section 1.08. |
Voting |
3 | ||||
| Section 1.09. |
Adjournment |
3 | ||||
| Section 1.10. |
Organization; Procedure |
3 | ||||
| Section 1.11. |
Consent of Stockholders in Lieu of Meeting |
4 | ||||
| Article II BOARD OF DIRECTORS |
5 | |||||
| Section 2.01. |
General Powers |
5 | ||||
| Section 2.02. |
Number and Term of Office |
5 | ||||
| Section 2.03. |
Election of Directors |
5 | ||||
| Section 2.04. |
Regular Meetings |
5 | ||||
| Section 2.05. |
Special Meetings |
5 | ||||
| Section 2.06. |
Notice of Meetings; Waiver of Notice |
5 | ||||
| Section 2.07. |
Quorum; Voting |
6 | ||||
| Section 2.08. |
Action by Telephonic Communications |
6 | ||||
| Section 2.09. |
Adjournment |
6 | ||||
| Section 2.10. |
Action Without a Meeting |
6 | ||||
| Section 2.11. |
Regulations |
6 | ||||
| Section 2.12. |
Resignations of Directors |
7 | ||||
| Section 2.13. |
Removal of Directors |
7 | ||||
| Section 2.14. |
Vacancies and Newly Created Directorships |
7 | ||||
| Section 2.15. |
Compensation |
7 | ||||
| Section 2.16. |
Reliance on Accounts and Reports, etc |
7 | ||||
| Article III COMMITTEES |
8 | |||||
| Section 3.01. |
Designation of Committees |
8 | ||||
| Section 3.02. |
Members and Alternate Members |
8 | ||||
| Section 3.03. |
Committee Procedures |
8 | ||||
| Section 3.04. |
Meetings and Actions of Committees |
8 | ||||
| Section 3.05. |
Resignations and Removals |
9 | ||||
| Section 3.06. |
Vacancies |
9 | ||||
| Article IV OFFICERS |
9 | |||||
| Section 4.01. |
Officers |
9 | ||||
| Section 4.02. |
Election |
9 | ||||
| Section 4.03. |
Compensation |
9 | ||||
Table of Contents
(continued)
| Page | ||||||
| Section 4.04. |
Removal and Resignation; Vacancies |
10 | ||||
| Section 4.05. |
Authority and Duties of Officers |
10 | ||||
| Section 4.06. |
President |
10 | ||||
| Section 4.07. |
Vice Presidents |
10 | ||||
| Section 4.08. |
Secretary |
11 | ||||
| Section 4.09. |
Treasurer |
11 | ||||
| Article V CAPITAL STOCK |
12 | |||||
| Section 5.01. |
Certificates of Stock; Uncertificated Shares |
12 | ||||
| Section 5.02. |
Facsimile Signatures |
13 | ||||
| Section 5.03. |
Lost, Stolen or Destroyed Certificates |
13 | ||||
| Section 5.04. |
Transfer of Stock |
13 | ||||
| Section 5.05. |
Registered Stockholders |
13 | ||||
| Article VI |
14 | |||||
| INDEMNIFICATION |
14 | |||||
| Section 6.01. |
Indemnification |
14 | ||||
| Section 6.02. |
Advance of Expenses |
14 | ||||
| Section 6.03. |
Procedure for Indemnification |
15 | ||||
| Section 6.04. |
Burden of Proof |
15 | ||||
| Section 6.05. |
Contract Right; Non-Exclusivity; Survival |
15 | ||||
| Section 6.06. |
Insurance |
16 | ||||
| Section 6.07. |
Employees and Agents |
16 | ||||
| Section 6.08. |
Interpretation; Severability |
16 | ||||
| Article VII OFFICES |
17 | |||||
| Section 7.01. |
Registered Office |
17 | ||||
| Section 7.02. |
Other Offices |
17 | ||||
| Article VIII GENERAL PROVISIONS |
17 | |||||
| Section 8.01. |
Dividends |
17 | ||||
| Section 8.02. |
Reserves |
17 | ||||
| Section 8.03. |
Execution of Instruments |
17 | ||||
| Section 8.04. |
Voting as Stockholder |
17 | ||||
| Section 8.05. |
Fiscal Year |
18 | ||||
| Section 8.06. |
Seal |
18 | ||||
| Section 8.07. |
Books and Records; Inspection |
18 | ||||
| Section 8.08. |
Electronic Transmission |
18 | ||||
| Section 8.09. |
Litigation |
18 | ||||
| Article IX AMENDMENT OF BYLAWS |
18 | |||||
| Section 9.01. |
Amendment |
18 | ||||
| Article X CONSTRUCTION |
19 | |||||
| Section 10.01. |
Construction |
19 | ||||
ii
Magallanes, Inc.
AMENDED AND RESTATED BYLAWS
As adopted on April 8, 2022
ARTICLE I
MEETINGS OF STOCKHOLDERS
Section 1.01. Annual Meetings. An annual meeting of the stockholders of the corporation for the election of directors and for the transaction of such other business as properly may come before such meeting shall be held each year either within or without the State of Delaware on such date and at such place and time as are designated by resolution of the corporation’s board of directors (the “Board”), unless the stockholders have acted by written consent to elect directors as permitted by the General Corporation Law of the State of Delaware, as amended from time to time (the “DGCL”).
Section 1.02. Special Meetings. A special meeting of the stockholders for any purpose may be called at any time by the President (or, in the event of his or her absence or disability, by any Vice President) or by the Secretary pursuant to a resolution of the Board, to be held either within or without the State of Delaware on such date and at such time and place as are designated by such officer or in such resolution.
Section 1.03. Participation in Meetings by Remote Communication. The Board, acting in its sole discretion, may establish guidelines and procedures in accordance with applicable provisions of the DGCL and any other applicable law for the participation by stockholders and proxyholders in a meeting of stockholders by means of remote communications, and may determine that any meeting of stockholders will not be held at any place but will be held solely by means of remote communication. Stockholders and proxyholders complying with such procedures and guidelines and otherwise entitled to vote at a meeting of stockholders shall be deemed present in person and entitled to vote at a meeting of stockholders, whether such meeting is to be held at a designated place or solely by means of remote communication.
Section 1.04. Notice of Meetings; Waiver of Notice.
(a) The Secretary or any Assistant Secretary shall cause notice of each meeting of stockholders to be given in writing in a manner permitted by the DGCL not less than 10 days nor more than 60 days prior to the meeting to each stockholder of record entitled to vote at such meeting, subject to such exclusions as are then permitted by the DGCL. The notice shall specify (i) the place, if any, date and time of such meeting, (ii) the means of remote communications, if any, by which stockholders and proxy holders may be deemed to be present in person and vote at such meeting, (iii) in the case of a special meeting, the purpose or purposes for which such meeting is called, and (iv) such other information as may be required by law or as may be deemed
appropriate by the President or Vice President calling the meeting, or by the Board. If the stockholder list referred to in Section 1.06 of these bylaws is made accessible on an electronic network, the notice of meeting must indicate how the stockholder list can be accessed. If the meeting of stockholders is to be held solely by means of electronic communications, the notice of meeting must provide the information required to access such stockholder list during the meeting.
(b) A written waiver of notice of meeting signed by a stockholder or a waiver by electronic transmission by a stockholder, whether given before or after the meeting time stated in such notice, is deemed equivalent to notice. Attendance of a stockholder at a meeting is a waiver of notice of such meeting, except when the stockholder attends a meeting for the express purpose of objecting at the beginning of the meeting to the transaction of any business at the meeting on the ground that the meeting is not lawfully called or convened.
Section 1.05. Proxies.
(a) Each stockholder entitled to vote at a meeting of stockholders or to express consent to or dissent from corporate action in writing without a meeting may authorize another person or persons to act for such stockholder by proxy.
(b) A stockholder may authorize a valid proxy by executing a written instrument signed by such stockholder, or by causing his or her signature to be affixed to such writing by any reasonable means, including but not limited to by facsimile signature, or by transmitting or authorizing an electronic transmission (as defined in Section 8.08 of these bylaws) setting forth an authorization to act as proxy to the person designated as the holder of the proxy, a proxy solicitation firm or a like authorized agent. Proxies by electronic transmission must either set forth, or be submitted with, information from which it can be determined that the electronic transmission was authorized by the stockholder. Any copy, facsimile telecommunication or other reliable reproduction of a writing or transmission created pursuant to this section may be substituted or used in lieu of the original writing or transmission for any and all purposes for which the original writing or transmission could be used if such copy, facsimile telecommunication or other reproduction is a complete reproduction of the entire original writing or transmission.
(c) No proxy may be voted or acted upon after the expiration of three years from the date of such proxy, unless such proxy provides for a longer period. Every proxy is revocable at the pleasure of the stockholder executing it unless the proxy states that it is irrevocable and applicable law makes it irrevocable. A stockholder may revoke any proxy that is not irrevocable by attending the meeting and voting in person or by filing an instrument in writing revoking the proxy or by filing another duly executed proxy bearing a later date with the Secretary.
Section 1.06. Voting Lists. The officer of the corporation who has charge of the stock ledger of the corporation shall prepare, at least 10 days before every meeting of the stockholders (and before any adjournment thereof for which a new record date has been set), a complete list of the stockholders entitled to vote at the meeting, arranged in
2
alphabetical order and showing the address of each stockholder and the number of shares registered in the name of each stockholder. This list shall be open to the examination of any stockholder prior to and during the meeting for any purpose germane to the meeting as required by the DGCL or other applicable law. The stock ledger shall be the only evidence as to who are the stockholders entitled by this section to examine the list required by this section or to vote in person or by proxy at any meeting of stockholders.
Section 1.07. Quorum. Except as otherwise required by law or by the certificate of incorporation, the presence in person or by proxy of the holders of record of a majority of the shares entitled to vote at a meeting of stockholders shall constitute a quorum for the transaction of business at such meeting. A quorum, once established, is not broken by the withdrawal of enough votes to leave less than a quorum.
Section 1.08. Voting. Every holder of record of shares entitled to vote at a meeting of stockholders is entitled to one vote for each share outstanding in his or her name on the books of the corporation (x) at the close of business on the record date for such meeting, or (y) if no record date has been fixed, at the close of business on the day next preceding the day on which notice of the meeting is given, or if notice is waived, at the close of business on the day next preceding the day on which the meeting is held. All matters at any meeting at which a quorum is present, including the election of directors, shall be decided by the affirmative vote of a majority of the shares of stock present in person or represented by proxy at the meeting and entitled to vote on the subject matter in question, unless otherwise expressly provided by express provision of law or the certificate of incorporation. The stockholders do not have the right to cumulate their votes for the election of directors.
Section 1.09. Adjournment. Any meeting of stockholders may be adjourned from time to time, by the chairperson of the meeting or by the vote of a majority of the shares of stock present in person or represented by proxy at the meeting, to reconvene at the same or some other place, and notice need not be given of any such adjourned meeting if the place, if any, and date and time thereof (and the means of remote communication, if any, by which stockholders and proxy holders may be deemed to be present in person and vote at such meeting) are announced at the meeting at which the adjournment is taken unless (x) the adjournment is for more than 30 days, in which case notice of the adjourned meeting in accordance with Section 1.04 of these bylaws shall be given to each stockholder of record entitled to vote at the meeting, or (y) a new record date for determining the stockholders entitled to vote is fixed for the adjourned meeting after the adjournment, in which case notice of the adjourned meeting in accordance with Section 1.04 of these bylaws shall be given to each stockholder of record entitled to vote at the adjourned meeting as of the record date fixed for determining the stockholders entitled to notice of the adjourned meeting. At the adjourned meeting, the corporation may transact any business that might have been transacted at the original meeting.
Section 1.10. Organization; Procedure. The President shall preside over each meeting of stockholders. If the President is absent or disabled, the presiding officer shall be selected by the Board or, failing action by the Board, by a majority of the stockholders present in person or represented by proxy. The Secretary, or in the event
3
of his or her absence or disability, an appointee of the presiding officer, shall act as secretary of the meeting. The Board may make such rules or regulations for the conduct of meetings of stockholders as it shall deem necessary, appropriate or convenient. Subject to any such rules and regulations, the presiding officer of any meeting shall have the right and authority to prescribe rules, regulations and procedures for such meeting and to take all such actions as in the judgment of the presiding officer are appropriate for the proper conduct of such meeting.
Section 1.11. Consent of Stockholders in Lieu of Meeting.
(a) Unless otherwise provided in the certificate of incorporation, any action required or permitted to be taken at an annual or special meeting of the stockholders may be taken without a meeting, without prior notice and without a vote of stockholders, if a consent or consents in writing, setting forth the action so taken, are (i) signed by the holders of outstanding shares of stock of the corporation having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted (but not less than the minimum number of votes otherwise prescribed by law) and (ii) delivered to the corporation by delivery to its registered office in this State, to its principal place of business or to an officer or agent of the corporation having custody of the book in which proceedings of meetings of stockholders are recorded within 60 days of the earliest dated consent so delivered to the corporation.
(b) If a stockholder consent is to be given without a meeting of stockholders, and the Board has not fixed a record date for the purpose of determining the stockholders entitled to sign such consent, then: (i) if the DGCL does not require action by the Board prior to the proposed stockholder action, the record date shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation at any of the locations referred to in clause (ii) of Section 1.11(a) of these bylaws; and (ii) if the DGCL requires action by the Board prior to the proposed stockholder action, the record date shall be at the close of business on the day on which the Board adopts the resolution taking such prior action. Every written consent to action without a meeting shall be valid if timely delivered to the corporation at any of the locations referred to in Section 1.11(a)(ii) of these bylaws. Any person executing a consent may provide, whether through instruction to an agent or otherwise, that such a consent will be effective at a future time (including a time determined upon the happening of an event), no later than 60 days after such instruction is given or such provision is made, and, for the purposes of this Section 1.11, if evidence of such instruction or provision is provided to the corporation, such later effective time shall serve as the date of signature. Any such consent shall be revocable prior to its becoming effective.
(c) The Secretary shall give prompt notice of the taking of an action without a meeting by less than unanimous written consent to those stockholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such meeting had been the date that written consents signed by holders of a sufficient number of shares of stock of the corporation to take the action were delivered to the corporation in accordance with the DGCL.
4
ARTICLE II
BOARD OF DIRECTORS
Section 2.01. General Powers. Except as may otherwise be provided by law or by the certificate of incorporation, the business and affairs of the corporation shall be managed by or under the direction of the Board. The directors shall act only as a Board, or as Committees authorized by the Board pursuant to Article III below, and the individual directors shall have no power as such.
Section 2.02. Number and Term of Office. The Board shall consist of three directors, or such greater or lesser number as the Board may determine by resolution, each of whom shall be a natural person. Each director (whenever elected) shall hold office until his or her successor has been duly elected and qualified, or until his or her earlier death, resignation or removal.
Section 2.03. Election of Directors. Except as otherwise provided in Sections 2.13 and 2.14 of these bylaws, the directors shall be elected at each annual meeting of the stockholders.
Section 2.04. Regular Meetings. Regular meetings of the Board shall be held on such dates, and at such times and places as are determined from time to time by resolution of the Board.
Section 2.05. Special Meetings. Special meetings of the Board shall be held whenever called by the President, or in the event of his or her absence or disability, by any Vice President, or by a majority of the Board, at such place, date and time as may be specified in the respective notices or waivers of notice of such meetings. Any business may be conducted at a special meeting.
Section 2.06. Notice of Meetings; Waiver of Notice.
(a) Notices of special meetings shall be given to each director, and notice of each resolution or other action affecting the date, time or place of one or more regular meetings shall be given to each director not present at the meeting adopting such resolution or other action, subject to Section 2.09 of these bylaws. Notices shall be given personally, or by telephone confirmed by facsimile or email dispatched promptly thereafter, or by facsimile or email confirmed by a writing delivered by a recognized overnight courier service, directed to each director at the address from time to time designated by such director to the Secretary. Each such notice and confirmation must be given (received in the case of personal service or delivery of written confirmation) at least 24 hours prior to the time of a special meeting, and at least five days prior to the initial regular meeting affected by such resolution or other action, as the case may be.
5
(b) A written waiver of notice of meeting signed by a director or a waiver by electronic transmission by a director, whether given before or after the meeting time stated in such notice, is deemed equivalent to notice. Attendance of a director at a meeting is a waiver of notice of such meeting, except when the director attends a meeting for the express purpose of objecting at the beginning of the meeting to the transaction of any business at the meeting on the ground that the meeting is not lawfully called or convened.
Section 2.07. Quorum; Voting. At all meetings of the Board, the presence of a majority of the total authorized number of directors shall constitute a quorum for the transaction of business. Except as otherwise required by law, the certificate of incorporation or these bylaws, the vote of a majority of the directors present at any meeting at which a quorum is present shall be the act of the Board.
Section 2.08. Action by Telephonic Communications. Members of the Board may participate in a meeting of the Board by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this provision shall constitute presence in person at such meeting.
Section 2.09. Adjournment. A majority of the directors present may adjourn any meeting of the Board to another date, time or place, whether or not a quorum is present. No notice need be given of any adjourned meeting unless (a) the date, time and place of the adjourned meeting are not announced at the time of adjournment, in which case notice conforming to the requirements of Section 2.06 of these bylaws applicable to special meetings shall be given to each director, or (b) the meeting is adjourned for more than 24 hours, in which case the notice referred to in clause (a) shall be given to those directors not present at the announcement of the date, time and place of the adjourned meeting.
Section 2.10. Action Without a Meeting. Any action required or permitted to be taken at any meeting of the Board may be taken without a meeting if all members of the Board consent thereto in writing or by electronic transmission, and such writing or writings or electronic transmissions are filed with the minutes of proceedings of the Board. Such filing shall be in paper form if the minutes are maintained in paper form and shall be in electronic form if the minutes are maintained in electronic form. Any person (whether or not then a director) may provide, whether through instruction to an agent or otherwise, that a consent to action will be effective at a future time (including a time determined upon the happening of an event), no later than 60 days after such instruction is given or such provision is made and such consent shall be deemed to have been given for purposes of this Section 2.10 at such effective time, so long as such person is then a director and did not revoke the consent prior to such time. Any such consent shall be revocable prior to its becoming effective.
Section 2.11. Regulations. To the extent consistent with applicable law, the certificate of incorporation and these bylaws, the Board may adopt such rules and regulations for the conduct of meetings of the Board and for the management of the
6
property, affairs and business of the corporation as the Board may deem appropriate. The Board may elect from among its members a chairperson and one or more vice-chairpersons to preside over meetings and to perform such other duties as may be designated by the Board.
Section 2.12. Resignations of Directors. Any director may resign at any time by submitting an electronic transmission or by delivering a written notice of resignation, signed by such director, to the President or the Secretary. Such resignation shall take effect upon delivery unless the resignation specifies a later effective date or an effective date determined upon the happening of a specified event.
Section 2.13. Removal of Directors. Any director may be removed at any time, either for or without cause, upon the affirmative vote of the holders of a majority of the outstanding shares of stock of the corporation entitled to vote generally for the election of directors, acting at a stockholder meeting or by written consent in accordance with the DGCL and these bylaws. Any vacancy in the Board caused by any such removal may be filled by the affirmative vote of the holders of a majority of the outstanding shares entitled to vote for the election of the director so removed, acting at such meeting or, if the removal was effected by written consent without a meeting, in the written instrument effecting the removal.
Section 2.14. Vacancies and Newly Created Directorships. Except as provided in Section 2.13, any vacancies in the Board or any newly created directorships may be filled only by a vote of the stockholders, acting at any regular or special meeting of the stockholders or by written consent in accordance with the DGCL and these bylaws. A director elected to fill a vacancy or a newly created directorship shall hold office until his or her successor has been elected and qualified or until his or her earlier death, resignation or removal.
Section 2.15. Compensation. The directors shall not be entitled to compensation for their services. The Board may by resolution determine the expenses in the performance of such services for which a director is entitled to reimbursement.
Section 2.16. Reliance on Accounts and Reports, etc. A member of the Board, or a member of any committee designated by the Board, shall in the performance of his or her duties be fully protected in relying in good faith upon the records of the corporation and upon information, opinions, reports or statements presented to the corporation by any of the corporation’s officers or employees, or committees of the Board, or by any other person as to matters the member reasonably believes are within such other person’s professional or expert competence and who has been selected with reasonable care by or on behalf of the corporation.
7
ARTICLE III
COMMITTEES
Section 3.01. Designation of Committees. The Board may designate one or more committees. Each committee shall consist of such number of directors as from time to time may be fixed by resolution of the Board, and shall have and may exercise all the powers and authority of the Board in the management of the business and affairs of the corporation to the extent delegated to such committee by the Board, but no committee shall have any power or authority as to (a) approving or adopting, or recommending to the stockholders, any action or matter (other than the election or removal of directors) expressly required by the DGCL to be submitted to stockholders for approval, (b) adopting, amending or repealing any of these bylaws or (c) as may otherwise be excluded by law or by the certificate of incorporation, and no committee may delegate any of its power or authority to a subcommittee unless so authorized by the Board.
Section 3.02. Members and Alternate Members. The members of each committee and any alternate members shall be selected by the Board. The Board may provide that the members and alternate members serve at the pleasure of the Board or, if the Board shall so determine, for a stated term. An alternate member may replace any absent or disqualified member at any meeting of the committee. An alternate member shall be given all notices of committee meetings, may attend any meeting of the committee, but may count towards a quorum and vote only if a member for whom such person is an alternate is absent or disqualified. Each member (and each alternate member) of any committee shall hold office only until the end of such term, if any, as may have been fixed for such person by the Board, the time he or she shall cease for any reason to be a director, or until his or her earlier death, resignation or removal.
Section 3.03. Committee Procedures. A quorum for each committee shall be a majority of its members, unless the committee has only one or two members, in which case a quorum shall be one member, or unless a greater quorum is established by the Board. Unless the Board shall otherwise determine, the vote of a majority of the committee members present at a meeting at which a quorum is present shall be the act of the committee. Each committee shall keep regular minutes of its meetings and report to the Board when required. The Board may adopt other rules and regulations for the government of any committee not inconsistent with the provisions of these bylaws, and each committee may adopt its own rules and regulations of government, to the extent not inconsistent with these bylaws or rules and regulations adopted by the Board.
Section 3.04. Meetings and Actions of Committees. Meetings and actions of each committee shall be governed by, and held and taken in accordance with, the provisions of the following sections of these bylaws, with such bylaws being deemed to refer to the committee and its members in lieu of the Board and its members:
(a) Section 2.04 (to the extent relating to place and time of regular meetings);
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(b) Section 2.05 (relating to special meetings);
(c) Section 2.06 (relating to notice and waiver of notice);
(d) Sections 2.08 and 2.10 (relating to telephonic communication and action without a meeting); and
(e) Section 2.09 (relating to adjournment and notice of adjournment).
Special meetings of committees may also be called by resolution of the Board.
Section 3.05. Resignations and Removals. Any member (and any alternate member) of any committee may resign from such position at any time by delivering a written notice of resignation, signed by such member, to the President or the Secretary. Unless otherwise specified therein, such resignation shall take effect upon delivery. Any member (and any alternate member) of any committee may be removed from such position by the Board at any time, either for or without cause.
Section 3.06. Vacancies. If a vacancy occurs in any committee for any reason, the remaining members (and any alternate members) may continue to act if a quorum is present. A committee vacancy may be filled only by the Board.
ARTICLE IV
OFFICERS
Section 4.01. Officers. The Board shall elect a President and a Secretary as officers of the corporation. The Board may also elect a Treasurer, one or more Vice Presidents, Assistant Secretaries and Assistant Treasurers, and such other officers and agents as the Board may determine. In addition, the Board from time to time may delegate to any officer the power to appoint subordinate officers or agents and to prescribe their respective rights, terms of office, authorities and duties. Any action by an appointing officer may be superseded by action by the Board. Any number of offices may be held by the same person, except that one person may not hold both the office of President and the office of Secretary. No officer need be a director of the corporation.
Section 4.02. Election. The officers of the corporation elected by the Board shall serve at the pleasure of the Board. Officers and agents appointed pursuant to delegated authority as provided in Section 4.01 (or, in the case of agents, as provided in Section 4.06) shall hold their offices for such terms as may be determined from time to time by the appointing officer. Each officer shall hold office until his or her successor has been elected or appointed and qualified, or until his or her earlier death, resignation or removal.
Section 4.03. Compensation. The salaries and other compensation of all officers and agents of the corporation shall be fixed by the Board or in the manner established by the Board.
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Section 4.04. Removal and Resignation; Vacancies. Any officer may be removed for or without cause at any time by the Board. Any officer granted the power to appoint subordinate officers and agents as provided in Section 4.01 may remove any subordinate officer or agent appointed by such officer, for or without cause. Any officer or agent may resign at any time by delivering notice of resignation, either in writing signed by such officer or by electronic transmission, to the Board or the President. Unless otherwise specified therein, such resignation shall take effect upon delivery. Any vacancy occurring in any office of the corporation by death, resignation, removal or otherwise, may be filled by the Board or by the officer, if any, who appointed the person formerly holding such office.
Section 4.05. Authority and Duties of Officers. An officer of the corporation shall have such authority and shall exercise such powers and perform such duties (a) as may be required by law, (b) to the extent not inconsistent with law, as are specified in these bylaws, (c) to the extent not inconsistent with law or these bylaws, as may be specified by resolution of the Board, and (d) to the extent not inconsistent with any of the foregoing, as may be specified by the appointing officer with respect to a subordinate officer appointed pursuant to delegated authority under Section 4.01.
Section 4.06. President. The President shall preside at all meetings of the stockholders and directors at which he or she is present, and unless otherwise provided by the Board, shall be the chief executive officer and the chief operating officer of the corporation, shall have general control and supervision of the policies and operations of the corporation and shall see that all orders and resolutions of the Board are carried into effect. Unless otherwise provided by the Board, he or she shall manage and administer the corporation’s business and affairs and shall also perform all duties and exercise all powers usually pertaining to the office of a chief executive officer and a chief operating officer of a corporation. He or she shall have the authority to sign, in the name and on behalf of the corporation, checks, orders, contracts, leases, notes, drafts and all other documents and instruments in connection with the business of the corporation. He or she shall have the authority to cause the employment or appointment of such employees or agents of the corporation as the conduct of the business of the corporation may require, to fix their compensation, and to remove or suspend any employee or any agent employed or appointed by any officer or to suspend any agent appointed by the Board. The President shall have the duties and powers of the Treasurer if no Treasurer is elected and shall have such other duties and powers as the Board may from time to time prescribe.
Section 4.07. Vice Presidents. If one or more Vice Presidents have been elected, each Vice President shall perform such duties and exercise such powers as may be assigned to him or her from time to time by the Board or the President pursuant to the power delegated to him or her by the Board pursuant to Section 4.01. In the event of absence or disability of the President, the duties of the President shall be performed, and his or her powers may be exercised, by such Vice President as shall be designated by the Board or, failing such designation, by the Vice President in order of seniority of election to that office.
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Section 4.08. Secretary. Unless otherwise determined by the Board, the Secretary shall have the following powers and duties:
(a) The Secretary shall keep or cause to be kept a record of all the proceedings of the meetings of the stockholders, the Board and any committees thereof in books provided for that purpose.
(b) The Secretary shall cause all notices to be duly given in accordance with the provisions of these bylaws and as required by law.
(c) Whenever any committee shall be appointed pursuant to a resolution of the Board, the Secretary shall furnish a copy of such resolution to the members of such committee.
(d) The Secretary shall be the custodian of the records and of the seal of the corporation and cause such seal (or a facsimile thereof) to be affixed to all certificates representing shares of the corporation prior to the issuance thereof and to all documents and instruments that the Board or any officer of the corporation has determined should be executed under seal, may sign (together with any other authorized officer) any such document or instrument, and when the seal is so affixed he or she may attest the same.
(e) The Secretary shall properly maintain and file all books, reports, statements, certificates and all other documents and records required by law, the certificate of incorporation or these bylaws.
(f) The Secretary shall have charge of the stock books and ledgers of the corporation and shall cause the stock and transfer books to be kept in such manner as to show at any time the number of shares of stock of the corporation of each class issued and outstanding, the names (alphabetically arranged) and the addresses of the holders of record of such shares, the number of shares held by each holder and the date as of which each such holder became a holder of record.
(g) The Secretary shall sign (unless the Treasurer, an Assistant Treasurer or an Assistant Secretary shall have signed) certificates representing shares of the corporation the issuance of which shall have been authorized by the Board.
(h) The Secretary shall perform, in general, all duties incident to the office of secretary and such other duties as may be specified in these bylaws or as may be assigned to the Secretary from time to time by the Board or the President.
Section 4.09. Treasurer. Unless otherwise determined by the Board, the Treasurer, if there be one, shall be the chief financial officer of the corporation and shall have the following powers and duties:
(a) The Treasurer shall have charge and supervision over and be responsible for the moneys, securities, receipts and disbursements of the corporation, and shall keep or cause to be kept full and accurate records thereof.
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(b) The Treasurer shall cause the moneys and other valuable effects of the corporation to be deposited in the name and to the credit of the corporation in such banks or trust companies or with such bankers or other depositaries as shall be determined by the Board or the President, or by such other officers of the corporation as may be authorized by the Board or the President to make such determinations.
(c) The Treasurer shall cause the moneys of the corporation to be disbursed by checks or drafts (signed by such officer or officers or such agent or agents of the corporation, and in such manner, as the Board or the President may determine from time to time) upon the authorized depositaries of the corporation and cause to be taken and preserved proper vouchers for all moneys disbursed.
(d) The Treasurer shall render to the Board or the President, whenever requested, a statement of the financial condition of the corporation and of the transactions of the corporation, and render a full financial report at the annual meeting of the stockholders, if called upon to do so.
(e) The Treasurer shall be empowered from time to time to require from all officers or agents of the corporation reports or statements giving such information as he or she may desire with respect to any and all financial transactions of the corporation.
(f) The Treasurer may sign (unless an Assistant Treasurer or the Secretary or an Assistant Secretary shall have signed) certificates representing shares of stock of the corporation the issuance of which shall have been authorized by the Board.
(g) The Treasurer shall perform, in general, all duties incident to the office of treasurer and such other duties as may be specified in these bylaws or as may be assigned to the Treasurer from time to time by the Board or the President.
ARTICLE V
CAPITAL STOCK
Section 5.01. Certificates of Stock; Uncertificated Shares. The shares of the corporation shall be represented by certificates except to the extent that the Board has provided by resolution that some or all of any or all classes or series of the stock of the corporation shall be uncertificated shares. Any such resolution shall not apply to shares represented by a certificate until such certificate is surrendered to the corporation. Notwithstanding the adoption of such a resolution by the Board, every holder of stock in the corporation represented by certificates shall be entitled to have, and every holder of uncertificated shares may at the direction of the Board be permitted to receive upon request, a certificate signed by, or in the name of the corporation by the President or a Vice President, and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary, representing the number of shares registered in the name of such holder. Such certificate shall be in such form as the Board may determine, to the extent consistent with applicable law, the certificate of incorporation and these bylaws.
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Section 5.02. Facsimile Signatures. Any or all signatures on the certificates referred to in Section 5.01 of these bylaws may be in facsimile form. If any officer who has signed, or whose facsimile signature has been placed upon, a certificate shall have ceased to be such officer before such certificate is issued, it may be issued by the corporation with the same effect as if he or she were such officer at the date of issue.
Section 5.03. Lost, Stolen or Destroyed Certificates. A new certificate may be issued in place of any certificate theretofore issued by the corporation alleged to have been lost, stolen or destroyed only upon delivery to the corporation of an affidavit of the owner or owners (or their legal representatives) of such certificate, setting forth such allegation, and a bond or other undertaking as may be satisfactory to a financial officer of the corporation designated by the Board to indemnify the corporation against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of any such new certificate.
Section 5.04. Transfer of Stock.
(a) Transfer of shares represented by certificates shall be made on the books of the corporation upon surrender to the corporation of a certificate for shares, duly endorsed or accompanied by appropriate evidence of succession, assignment or authority to transfer, and otherwise in compliance with applicable law. Transfers of uncertificated shares shall be made on the books of the corporation as provided by applicable law. Within a reasonable time after the transfer of uncertificated shares, the corporation shall send to the registered owner thereof a written notice containing the information required to be set forth or stated on certificates pursuant to Sections 151, 156, 202(a) and 218(a) of the DGCL. Subject to applicable law, the provisions of the certificate of incorporation and these bylaws, the Board may prescribe such additional rules and regulations as it may deem appropriate relating to the issue, transfer and registration of shares of the corporation.
(b) The corporation may enter into agreements with stockholders to restrict the transfer of stock of the corporation in any manner not prohibited by the DGCL.
Section 5.05. Registered Stockholders. Prior to due surrender of a certificate for registration of transfer, or due delivery of instructions for the registration of transfer of uncertificated shares, the corporation may treat the registered owner as the person exclusively entitled to receive dividends and other distributions, to vote, to receive notice and otherwise to exercise all the rights and powers of the owner of the shares represented by such certificate or of such uncertificated shares, and the corporation shall not be bound to recognize any equitable or legal claim to or interest in such shares on the part of any other person, whether or not the corporation shall have notice of such claim or interests. If a transfer of shares is made for collateral security, and not absolutely, this fact shall be so expressed in the entry of the transfer if, when the certificates are presented to the corporation for transfer or uncertificated shares are requested to be transferred, both the transferor and transferee request the corporation to do so.
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ARTICLE VI
INDEMNIFICATION
Section 6.01. Indemnification.
(a) In General. The corporation shall indemnify, to the fullest extent permitted by the DGCL and other applicable law, any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (each, a “Proceeding”) by reason of the fact that (x) such person is or was serving or has agreed to serve as a director or officer of the corporation, or (y) such person, while serving as a director or officer of the corporation, is or was serving or has agreed to serve at the request of the corporation as a director, officer, employee, manager or agent of another corporation, partnership, joint venture, trust or other enterprise or (z) such person is or was serving or has agreed to serve at the request of the corporation as a director, officer or manager of another corporation, partnership, joint venture, trust or other enterprise, or by reason of any action alleged to have been taken or omitted by such person in such capacity, and who satisfies the applicable standard of conduct set forth in the DGCL or other applicable law:
(i) in a Proceeding other than a Proceeding by or in the right of the corporation, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person or on such person’s behalf in connection with such Proceeding and any appeal therefrom, or
(ii) in a Proceeding by or in the right of the corporation to procure a judgment in its favor, against expenses (including attorneys’ fees) actually and reasonably incurred by such person or on such person’s behalf in connection with the defense or settlement of such Proceeding and any appeal therefrom.
(b) Indemnification in Respect of Successful Defense. To the extent that a present or former director or officer of the corporation has been successful on the merits or otherwise in defense of any Proceeding referred to in Section 6.01(a) or in defense of any claim, issue or matter therein, such person shall be indemnified by the corporation against expenses (including attorneys’ fees) actually and reasonably incurred by such person in connection therewith.
(c) Indemnification in Respect of Proceedings Instituted by Indemnitee. Section 6.01(a) does not require the corporation to indemnify a present or former director or officer of the corporation in respect of a Proceeding (or part thereof) instituted by such person on his or her own behalf, unless such Proceeding (or part thereof) has been authorized by the Board or the indemnification requested is pursuant to the last sentence of Section 6.03 of these bylaws.
Section 6.02. Advance of Expenses. The corporation shall advance all expenses (including reasonable attorneys’ fees) incurred by a present or former director or officer in defending any Proceeding prior to the final disposition of such Proceeding upon
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written request of such person and delivery of an undertaking by such person to repay such amount if it shall ultimately be determined that such person is not entitled to be indemnified by the corporation. The corporation may authorize any counsel for the corporation to represent (subject to applicable conflict of interest considerations) such present or former director or officer in any Proceeding, whether or not the corporation is a party to such Proceeding.
Section 6.03. Procedure for Indemnification. Any indemnification under Section 6.01 of these bylaws or any advance of expenses under Section 6.02 of these bylaws shall be made only against a written request therefor (together with supporting documentation) submitted by or on behalf of the person seeking indemnification or advance of expenses. Indemnification may be sought by a person under Section 6.01 of these bylaws in respect of a Proceeding only to the extent that both the liabilities for which indemnification is sought and all portions of the Proceeding relevant to the determination of whether the person has satisfied any appropriate standard of conduct have become final. A person seeking indemnification or advancement of expenses may seek to enforce such person’s rights to indemnification or advancement of expenses (as the case may be) in the Delaware Court of Chancery to the extent all or any portion of a request for indemnification has not been granted within 90 days of, or to the extent all or any portion of a request for advancement of expenses has not been granted within 20 days of, the submission of such request. To the extent that such person has been successful in establishing such person’s right to indemnification or advancement of expenses under this Article VI, such person shall be indemnified by the corporation against expenses (including reasonable attorneys’ fees) incurred by such person in connection therewith.
Section 6.04. Burden of Proof.
(a) In any Proceeding brought to enforce the right of a person to receive indemnification to which such person is entitled under Section 6.01 of these bylaws, the corporation has the burden of demonstrating that the standard of conduct applicable under the DGCL or other applicable law was not met. A prior determination by the corporation (including its Board or any committee thereof, its independent legal counsel, or its stockholders) that the claimant has not met such applicable standard of conduct does not itself constitute evidence that the claimant has not met the applicable standard of conduct.
(b) In any Proceeding brought to enforce a claim for advances to which a person is entitled under Section 6.02 of these bylaws, the person seeking an advance need only show that he or she has satisfied the requirements expressly set forth in Section 6.02 of these bylaws.
Section 6.05. Contract Right; Non-Exclusivity; Survival.
(a) The rights to indemnification and advancement of expenses provided by this Article VI shall be deemed to be separate contract rights between the corporation and each director and officer who serves in any such capacity at any time while these
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provisions as well as the relevant provisions of the DGCL are in effect, and no repeal or modification of any of these provisions or any relevant provisions of the DGCL shall adversely affect any right or obligation of such director or officer existing at the time of such repeal or modification with respect to any state of facts then or previously existing or any Proceeding previously or thereafter brought or threatened based in whole or in part upon any such state of facts. Such “contract rights” may not be modified retroactively as to any present or former director or officer without the consent of such director or officer.
(b) The rights to indemnification and advancement of expenses provided by this Article VI shall not be deemed exclusive of any other indemnification or advancement of expenses to which a present or former director or officer of the corporation seeking indemnification or advancement of expenses may be entitled by any agreement, vote of stockholders or disinterested directors, or otherwise. The rights to indemnification and advancement of expenses provided by this Article VI to any present or former director or officer of the corporation shall inure to the benefit of the heirs, executors and administrators of such person.
Section 6.06. Insurance. The corporation may purchase and maintain insurance on behalf of any person who is or was or has agreed to become a director or officer of the corporation, or is or was serving at the request of the corporation as a director or officer of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against such person and incurred by such person or on such person’s behalf in any such capacity, or arising out of such person’s status as such, whether or not the corporation would have the power to indemnify such person against such liability under the provisions of this Article VI.
Section 6.07. Employees and Agents. The Board, or any officer authorized by the Board generally or in the specific case to make indemnification decisions, may cause the corporation to indemnify any present or former employee or agent of the corporation in such manner and for such liabilities as the Board may determine, up to the fullest extent permitted by the DGCL and other applicable law.
Section 6.08. Interpretation; Severability. Terms defined in Sections 145(h) or (i) of the DGCL have the meanings set forth in such sections when used in this Article VI. If this Article or any portion hereof shall be invalidated on any ground by any court of competent jurisdiction, then the corporation shall nevertheless indemnify each director or officer of the corporation as to costs, charges and expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement with respect to any action, suit or Proceeding, whether civil, criminal, administrative or investigative, including an action by or in the right of the corporation, to the fullest extent permitted by any applicable portion of this Article VI that shall not have been invalidated and to the fullest extent permitted by applicable law.
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ARTICLE VII
OFFICES
Section 7.01. Registered Office. The registered office of the corporation in the State of Delaware shall be located at the location provided in the corporation’s certificate of incorporation.
Section 7.02. Other Offices. The corporation may maintain offices or places of business at such other locations within or without the State of Delaware as the Board may from time to time determine or as the business of the corporation may require.
ARTICLE VIII
GENERAL PROVISIONS
Section 8.01. Dividends.
(a) Subject to any applicable provisions of law and the certificate of incorporation, dividends upon the shares of the corporation may be declared by the Board at any regular or special meeting of the Board and any such dividend may be paid in cash, property, or shares of the corporation’s stock.
(b) A member of the Board, or a member of any committee designated by the Board, shall be fully protected in relying in good faith upon the records of the corporation and upon such information, opinions, reports or statements presented to the corporation by any of its officers or employees, or committees of the Board, or by any other person as to matters the director reasonably believes are within such other person’s professional or expert competence and who has been selected with reasonable care by or on behalf of the corporation, as to the value and amount of the assets, liabilities and/or net profits of the corporation, or any other facts pertinent to the existence and amount of surplus or other funds from which dividends might properly be declared and paid.
Section 8.02. Reserves. The Board may set apart, out of any of the funds of the corporation available for dividends, a reserve or reserves for any proper purpose and may abolish any such reserve.
Section 8.03. Execution of Instruments. The President may enter into any contract or execute and deliver any instrument in the name and on behalf of the corporation. Except as otherwise required by law or the certificate of incorporation, the Board or, subject to any restrictions imposed by the Board, the President may authorize any other officer or agent of the corporation to enter into any contract or execute and deliver any instrument in the name and on behalf of the corporation. Any such authorization must be in writing or by electronic transmission and may be general or limited to specific contracts or instruments.
Section 8.04. Voting as Stockholder. Unless otherwise determined by resolution of the Board, the President or any Vice President shall have full power and
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authority on behalf of the corporation to attend any meeting of stockholders of any corporation in which the corporation may hold stock, and to act, vote (or execute proxies to vote) and exercise in person or by proxy all other rights, powers and privileges incident to the ownership of such stock at any such meeting, or through action without a meeting. The Board may by resolution from time to time confer such power and authority (in general or confined to specific instances) upon any other person or persons.
Section 8.05. Fiscal Year. The fiscal year of the corporation shall commence on the first day of January of each year (except for the corporation’s first fiscal year which shall commence on the date of incorporation) and shall terminate in each case on December 31 or as otherwise determined by resolution of the Board.
Section 8.06. Seal. The seal of the corporation shall be circular in form and shall contain the name of the corporation, the year of its incorporation and the words “Corporate Seal” and “Delaware”. The form of such seal shall be subject to alteration by the Board. The seal may be used by causing it or a facsimile thereof to be impressed, affixed or reproduced, or may be used in any other lawful manner.
Section 8.07. Books and Records; Inspection. Except to the extent otherwise required by law, the books and records of the corporation shall be kept at such place or places within or without the State of Delaware as may be determined from time to time by the Board.
Section 8.08. Electronic Transmission. “Electronic transmission”, as used in these bylaws, means any form of communication, not directly involving the physical transmission of paper, that creates a record that may be retained, retrieved and reviewed by a recipient thereof, and that may be directly reproduced in paper form by such a recipient through an automated process.
Section 8.09. Litigation. Unless the corporation consents in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware (the “Court of Chancery”) shall be the sole and exclusive forum for (a) any derivative action or Proceeding brought on behalf of the corporation, (b) any action asserting a claim for breach of a fiduciary duty owed by any stockholder, director, officer, employee or agent of the corporation to the corporation or the corporation’s stockholders, (c) any action asserting a claim arising pursuant to any provision of the DGCL, the certificate of incorporation or the bylaws of the corporation or (d) any action asserting a claim governed by the internal affairs doctrine, in each case subject to the Court of Chancery having personal jurisdiction over the indispensable parties named as defendants therein.
ARTICLE IX
AMENDMENT OF BYLAWS
Section 9.01. Amendment. These bylaws may be amended, altered or repealed by the Board at any regular or special meeting of the Board without the assent or vote of the stockholders.
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ARTICLE X
CONSTRUCTION
Section 10.01. Construction. In the event of any conflict between the provisions of these bylaws as in effect from time to time and the provisions of the certificate of incorporation of the corporation as in effect from time to time, the provisions of such certificate of incorporation shall be controlling.
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Exhibit 3.6
AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
OF
DISCOVERY COMMUNICATIONS, LLC
This Amended and Restated Limited Liability Company Agreement (as amended, modified, supplemented and/or restated from time to time, this “Agreement”) of Discovery Communications, LLC, a Delaware limited liability company (the “Company”), dated as of March 9, 2021, is entered into by Discovery Communications Holding, LLC, a Delaware limited liability company, as its sole member (the “Member”).
WHEREAS, pursuant to a Certificate of Formation, dated as of May 14, 2007 (such Certificate of Formation, as the same may be amended from time to time, the “Certificate of Formation”, and such date, the “Formation Date”), the Company was formed as a limited liability company pursuant to and in accordance with the Delaware Limited Liability Company Act (6 Del. C. § 18-101 et seq., as amended from time to time) (the “Act”);
WHEREAS, on May 14, 2007, the Member entered into a Limited Liability Company Operating Agreement of the Company (the “Limited Liability Company Agreement”); and
WHEREAS, the Member desires to amend and restate the Limited Liability Company Agreement in its entirety as set forth herein for the purposes of, and on the terms and conditions set forth in, this Agreement.
NOW, THEREFORE, in consideration of the foregoing premises, the mutual covenants herein contained and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:
1. Name. The name of this limited liability company is Discovery Communications, LLC.
2. Purpose. The purpose of the Company, and the nature of the business to be conducted and promoted by the Company, is engaging in any lawful act or activity for which limited liability companies may be formed under the Act and engaging in any and all activities necessary, advisable or incidental to the foregoing.
3. Powers of the Company. Subject to any limitations set forth in this Agreement, the Company shall have the power and authority to take any and all actions necessary, appropriate, proper, advisable, incidental or convenient to or for the furtherance of the purposes set forth in Section 2 hereof, including without limitation the power to borrow money and issue evidences of indebtedness in furtherance of the purposes of the Company. The Company shall carry on its business in its own right, and its business shall not be carried on by its Members. No property of the Company, whether real, personal, intangible or otherwise, shall be deemed to be owned by any Member by virtue of being a Member of the Company, but shall be owned by and title shall be vested solely in the Company.
4. Principal Place of Business. The address of the principal place of business of the Company is 8403 Colesville Road, Silver Spring, Maryland 20910, or such other address as the Members may determine from time to time.
5. Registered Agent. The name and address of the registered agent of the Company for service of process on the Company in the State of Delaware is Corporation Service Company, 251 Little Falls Drive, Wilmington, County of New Castle, Delaware 19808. The Members may appoint another registered agent and/or office at any time.
6. Term. The term of the Company shall continue in perpetuity unless terminated as provided in Section 16 hereof or otherwise pursuant to the Act (the “Term”).
7. Fiscal Year. The fiscal year of the Company shall end on December 31.
8. Members.
(a) Initial Member. The name and business address of the initial Member is as follows:
| Name |
Address | |
| Discovery Communications Holding, LLC | 8403 Colesville Road, Silver Spring, Maryland 20910 |
(b) Power of Members. Each Member shall have the power to do any and all acts necessary or convenient to or for the furtherance of the purposes described herein, including all powers, statutory or otherwise, possessed by members under the laws of the State of Delaware. Each Member is authorized to execute and deliver any instrument or document on behalf of the Company.
(c) Voting Rights of Members. On all matters submitted to a vote of the Members, each Member shall be entitled to one vote for each Share (defined below) owned by it. Except as otherwise provided by law or in the Certificate of Formation or this Agreement, at any meeting of Members, the holders of a majority of the outstanding Shares entitled to vote at the meeting shall be present or represented by proxy in order to constitute a quorum for the transaction of any business. With respect to any matter, any resolution adopted, decision made or action undertaken by the Members at any meeting at which a quorum is present shall require the affirmative vote of a majority of the Shares present at the meeting; provided, however, that with respect to any action that requires a greater proportion of votes of the Members under nonwaivable provisions of applicable law, such greater proportion of affirmative votes of the Members shall be required to take such action. All meetings of the Members shall be held at such time and place as the Committee may from time to time determine; provided, however, that Members shall be given the opportunity to be present at such meetings in person, by conference telephone or other communications device, or by proxy; and provided further, that in no event shall a meeting of the Members be held in the United Kingdom. Any action required or permitted to be taken at any meeting of the Members may be taken without a meeting, without prior notice and without a vote if a consent in writing, setting forth the action so taken, shall be signed by the Members having not less than the minimum percentage interests that would be necessary to authorize or take such action at a meeting at which all Members having a right to vote thereon were present and voted.
9. Management.
(a) Management by the Committee. Except for those matters for which the approval or consent of any Member is specifically required by this Agreement or by nonwaivable provisions of applicable law, the business and affairs of the Company shall be managed by the Members acting through a Management Committee (the “Committee”), consisting of individuals appointed by the Members to manage the activities and affairs of the Company (each, a “Manager”, and collectively, the “Managers”). The Board shall have, subject to the terms of this Agreement, full, exclusive and complete discretion, power and authority to
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manage, control, administer and operate the business and affairs of the Company and its subsidiaries, including, without limitation, the power to declare and authorize the payment of dividends by the Company. Decisions of the Committee within its scope of authority shall be binding upon the Company and its Members (in their capacity as Members). Actions, decisions, consents and approvals of the Committee shall require the affirmative vote or consent of the Managers in accordance with Section 9(d).
(b) Committee. The number of Managers constituting the entire Committee initially shall be three; provided, however, that the Members, by resolution adopted by vote or consent of a majority of the Members, may increase or decrease the number of Managers constituting the Committee. As of the date hereof, the Managers are: David Zaslav, Gunnar Wiedenfels and Savalle Sims. Each Manager shall hold office until the earliest of his or her death, removal or resignation as provided in Section 9(e).
(c) Committee Vote. A majority of the total number of members of the Committee as constituted from time to time shall constitute a quorum for the transaction of business, but, if at any meeting of the Committee (whether or not adjourned from a previous meeting) there shall be less than a quorum present, a majority of those present may adjourn the meeting to another time and place, and the meeting may be held as adjourned without further notice or waiver. Except as otherwise provided by law or in the Certificate of Formation or this Agreement, a majority of the Managers present at any meeting at which a quorum is present may decide any question brought before such meeting.
(d) Actions by the Committee. In managing the business and affairs of the Company and exercising its powers, the Committee may act collectively through meetings and written consents, or through officers and other agents to whom authority and duties have been delegated by the Committee.
(i) Meetings of the Committee may be held at such place or places as may be determined from time to time by the Committee; provided, however, that Managers shall be given the opportunity to be present at such meetings in person, by conference telephone, or other communications device; and provided further, that in no event shall a meeting of the Committee be held in the United Kingdom.
(ii) Any action permitted or required by the Act or this Agreement to be taken at a meeting of the Committee may be taken without a meeting if a consent in writing, setting forth the action to be taken, is signed by all Managers.
(e) Removal; Resignation. A Manager may be removed by the Members with or without cause, at any time in the sole discretion of the Members. Any Manager may resign at any time, and the acceptance of such resignation shall not be necessary to make it effective. Upon such removal or resignation, or the earlier death of any Manager, the Members shall appoint a successor.
10. Officers. The day-to-day functions of the Company may be performed by one or more persons appointed as an officer of the Company by the Committee. Each such officer shall hold office until his or her successor is elected and qualified or until his or her earlier death, resignation or removal.
11. Members’ Interests Denominated by Shares.
(a) Issuance. Each Member holding or in the future acquiring an interest in the Company shall be issued shares to denominate such Member’s interest (“Shares”). The total number of Shares of all classes which the Company shall have authority to issue is 1,000. Each Share shall have a nominal value of $.01 per Share (the “Nominal Value”) and shall be of a class designated “Common Shares”. From the date hereof, all interests previously issued in the Company, whether classified as shares or otherwise, shall be deemed cancelled. Shares shall reflect the amount initially paid or contributed to the Company for the
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Member’s interest denominated thereby, and may be issued for an amount in excess of the Nominal Value thereof, based on the actual amount so paid or contributed to the Company in respect of the interest so acquired. Any such amount paid in excess of the Nominal Value of such Shares shall be deemed the “Share Premium”. Upon the issuance of Shares, as evidence thereof, the Company shall issue one or more certificates of limited liability company interest in the name of the Member owning such Shares (each, a “Certificate”), in such form as may be determined by the Members from time to time. The rights, preferences, privileges and restrictions granted to and imposed upon the Shares are as set forth in this Agreement. Except as otherwise specifically provided in this Agreement, the Shares shall have the same relative rights and be identical in all respects as to all matters. In the event of any change (by way of recapitalization, subdivision, reclassification, recombination or the like) in the number or kind of Shares, the Member’s interest denominated by such Shares immediately prior to such change shall be ratably adjusted among such Shares immediately after such change and a new Certificate or Certificates shall be issued to reflect the same.
(b) Distributions. Each Member shall be entitled to receive distributions in respect of its Shares when, as and if declared by the Committee in accordance with Section 15 below.
(c) No Right of Redemption. No Member shall have the right to require the Company to redeem any of its Shares.
(d) Outstanding Shares. The number of Shares issued to the Member, and its resulting ownership percentage of issued and outstanding Shares, are set forth on Exhibit A attached hereto.
(e) Cancellation of Certificate. In the event any Certificate must be cancelled, then such Certificate shall be marked cancelled by the Company, with the date of cancellation, and shall be immediately placed in a certificate book maintained by the Company for that purpose, and a new Certificate shall be issued by the Company to the new Person who holds such Shares.
12. Transfer of Shares. No Member shall have the right to transfer, grant, assign, encumber, pledge (other than to a financial institution or insurance company as collateral security for indebtedness for borrowed money) or otherwise commit or dispose of its interest, or of the Shares denominating its interest, to any person (“Transfer”) without the consent of the other Members. Notwithstanding the foregoing, (a) any Member shall have the right to Transfer all or any portion of its interest, or of the Shares denominating its interest, to any person or entity that controls, is controlled by or is under common control with such Member without obtaining the consent of the other Members; and (b) at any time that the Company has only a sole Member, such sole Member may freely Transfer all or any portion of the Shares owned by it without restriction. Any Transfer of Shares shall be reflected on the books and records of the Company and on any corresponding Certificate.
13. Capital Contributions.
(a) Additional Contributions. No Member shall be required to make any additional capital contributions to the Company. A Member may make additional capital contributions to the Company in the form of cash, property, services or otherwise, and upon completion such contribution or payment shall become the property of the Company. Any such contribution or payment shall be evidenced by an issuance of additional Shares by the Company to the Member, which shall be reflected on the books and records of the Company. In addition, Exhibit A hereto shall be amended to reflect the issuance of additional Shares to a Member and any resulting change in such Member’s percentage interest in the Company.
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(b) No Return of Contributions. A Member shall not be entitled to be paid interest in respect of its capital contribution or membership interest. No Member shall have any right to demand the return of its capital contribution, and an un-repaid capital contribution is not a liability of the Company or any Member.
14. Allocation of Profits and Losses. The Company’s profits and losses shall be allocated in proportion to the number of Shares held by the Members.
15. Distributions.
(a) General. Distributions shall be made to the Members at the times and in the aggregate amounts as may be determined by the Committee. Such distributions shall be allocated to the Members in the same proportion as their percentage interests; provided, however, that the Committee may authorize non-pro-rata distributions with the consent of the Members. A Member shall not have the status of a creditor of the Company and shall not be entitled to any remedies available to a creditor of the Company with respect to such distribution upon the determination of the Committee with respect thereto, and the Committee may revoke its determination at any time prior to the time the distribution is made by the Company. For the avoidance of doubt, prior to any such distribution, the profits or losses of the Company shall belong to the Company.
(b) Limitations. Notwithstanding anything to the contrary contained herein, no distribution shall be declared, paid or made unless: (i) after giving effect thereto, the assets of the Company will exceed its liabilities, and (ii) such distribution is otherwise not in violation of section 18 607 of the Act, as the same may be amended from time to time. No distribution made will have the effect of cancelling any Shares.
(c) Allocation. To the extent any distribution is made to the Members, the same shall be deemed to have been made with respect to each of the issued and outstanding Shares first out of the Company’s retained earnings.
16. Dissolution.
(a) General. The Company shall dissolve, and its affairs shall be wound up, upon the first to occur of the following: (a) the affirmative vote or written consent of the Members; (b) at any time there is no member of the Company, unless the Company is continued pursuant to the Act; or (c) the entry of a decree of judicial dissolution under section 18-802 of the Act.
(b) Bankruptcy of a Member. The bankruptcy of any Member will not cause it to cease to be a Member of the Company. Upon the occurrence of such event, the business of the Company shall continue without dissolution.
(c) Effecting Dissolution. In the event of dissolution, the Company shall be wound up and its assets liquidated. In connection with the dissolution and winding up of the Company, the Committee or such other person designated by the Committee shall proceed with the sale, exchange or liquidation of all of the assets of the Company and shall conduct only such other activities as are necessary to wind up the Company’s affairs.
17. Admission of Additional Members. One or more additional members of the Company may be admitted to the Company with the consent of the existing Members.
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18. Liability of the Member. Except as otherwise provided by the Act, the debts, obligations and liabilities of the Company, whether arising in contract, tort or otherwise, shall be solely the debts, obligations and liabilities of the Company, and no Member, Manager or officer shall be obligated personally for any such debt, obligation or liability of the Company solely by reason of being a Member, Manager or officer of the Company.
19. Exculpation and Indemnification. No Member, Manager or officer shall be liable to the Company, any Member or any other person or entity who or that has an interest in the Company for any loss, damage or claim incurred by reason of any act or omission performed or omitted by such Member, Manager or officer in good faith on behalf of the Company and in a manner reasonably believed to be within the scope of the authority conferred on such Member, Manager or officer by this Agreement, except that the Member, Manager or officer shall be liable for any such loss, damage or claim incurred by reason of its gross negligence or willful misconduct. To the full extent permitted by applicable law, each Member, Manager and officer shall be entitled to indemnification from the Company for any loss, damage or claim incurred by such Member, Manager or officer by reason of any act or omission performed or omitted by such Member, Manager or officer in good faith on behalf of the Company and in a manner reasonably believed to be within the scope of the authority conferred on such Member, Manager or officer by this Agreement, except that no Member, Manager or officer shall be entitled to be indemnified in respect of any loss, damage or claim incurred by such Member, Manager or officer by reason of gross negligence or willful misconduct with respect to such acts or omissions; provided, however, that any indemnity under this Section 19 shall be provided out of and to the extent of Company assets only, and no Member, Manager or officer shall have personal liability on account thereof.
20. Amendment. This Agreement may be amended or modified only by written agreement of all of the Members.
21. Counterparts. This Agreement, and any amendment hereto, may be executed in two or more counterparts, each of which shall be deemed an original and all of which shall together constitute one and the same instrument.
22. Governing Law. THIS AGREEMENT SHALL BE GOVERNED IN ALL RESPECTS, INCLUDING AS TO VALIDITY, INTERPRETATION AND EFFECT, BY THE INTERNAL LAWS OF THE STATE OF DELAWARE, WITHOUT GIVING EFFECT TO THE CONFLICT OF LAWS RULES THEREOF.
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IN WITNESS WHEREOF, the undersigned has executed this Agreement as of the date first written above.
| DISCOVERY COMMUNICATIONS HOLDING, LLC | ||
| By: | /s/ Tara L. Smith | |
| Name: Tara L. Smith | ||
| Title: SVP & Secretary | ||
[Signature Page – A&R LLC Agreement of Discovery Communications, LLC]
Exhibit 5.1
March 22, 2023
WarnerMedia Holdings, Inc.
230 Park Avenue South
New York, NY 10003
Warner Bros. Discovery, Inc.
230 Park Avenue South
New York, NY 10003
Discovery Communications, LLC
230 Park Avenue South
New York, NY 10003
Scripps Network Interactive, Inc.
230 Park Avenue South
New York, NY 10003
Registration Statement on Form S-4 of WarnerMedia Holdings, Inc.
Ladies and Gentlemen:
We have acted as special New York counsel to WarnerMedia Holdings, Inc., a Delaware corporation (the “Issuer”), Warner Bros. Discovery, Inc., a Delaware corporation (the “Parent Guarantor”), Discovery Communications, LLC, a Delaware limited liability corporation (“DCL”) and Scripps Networks Interactive, Inc., an Ohio corporation (“Scripps,” and together with DCL, the “Subsidiary Guarantors,” and the Subsidiary Guarantors together with the Parent Guarantor, the “Guarantors”), in connection with the preparation and filing with the U.S. Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Act”) of a Registration Statement on Form S-4 filed with the Commission on March 22, 2023 (the “Registration Statement”) relating to the proposed offering by the Issuer of (i) $1,750,000,000 aggregate principal amount of its 3.428% Senior Notes due 2024 (the “New 2024 Senior Notes”), which are to be registered under the Act pursuant to the Registration Statement, in exchange for an equal principal amount of the Issuer’s outstanding 3.428% Senior Notes due 2024 (the “Old 2024 Senior Notes”), (ii) $500,000,000 aggregate principal amount of its 3.528% Senior Notes due 2024 (the “New 2024 NC1 Senior Notes”), which are to be registered under the Act pursuant to the Registration Statement, in exchange for an equal principal amount of the Issuer’s outstanding 3.528% Senior Notes due 2024 (the “Old 2024 NC1 Senior Notes”), (iii) $1,750,000,000 aggregate principal amount of its 3.638% Senior Notes due 2025 (the “New 2025 Senior Notes”), which are to be registered under the Act pursuant to the Registration Statement, in exchange for an equal principal amount of the Issuer’s
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outstanding 3.638% Senior Notes due 2025 (the “Old 2025 Senior Notes”), (iv) $500,000,000 aggregate principal amount of its 3.788% Senior Notes due 2025 (the “New 2025 NC1 Senior Notes”), which are to be registered under the Act pursuant to the Registration Statement, in exchange for an equal principal amount of the Issuer’s outstanding 3.788% Senior Notes due 2025 (the “Old 2025 NC1 Senior Notes”), (v) $4,000,000,000 aggregate principal amount of its 3.755% Senior Notes due 2027 (the “New 2027 Senior Notes”), which are to be registered under the Act pursuant to the Registration Statement, in exchange for an equal principal amount of the Issuer’s outstanding 3.755% Senior Notes due 2027 (the “Old 2027 Senior Notes”), (vi) $1,500,000,000 aggregate principal amount of its 4.054% Senior Notes due 2029 (the “New 2029 Senior Notes”), which are to be registered under the Act pursuant to the Registration Statement, in exchange for an equal principal amount of the Issuer’s outstanding 4.054% Senior Notes due 2029 (the “Old 2029 Senior Notes”), (vii) $5,000,000,000 aggregate principal amount of its 4.279% Senior Notes due 2032 (the “New 2032 Senior Notes”), which are to be registered under the Act pursuant to the Registration Statement, in exchange for an equal principal amount of the Issuer’s outstanding 4.279% Senior Notes due 2032 (the “Old 2032 Senior Notes”), (viii) $4,500,000,000 aggregate principal amount of its 5.050% Senior Notes due 2042 (the “New 2042 Senior Notes”), which are to be registered under the Act pursuant to the Registration Statement, in exchange for an equal principal amount of the Issuer’s outstanding 5.050% Senior Notes due 2042 (the “Old 2042 Senior Notes”), (ix) $7,000,000,000 aggregate principal amount of its 5.141% Senior Notes due 2052 (the “New 2052 Senior Notes”), which are to be registered under the Act pursuant to the Registration Statement, in exchange for an equal principal amount of the Issuer’s outstanding 5.141% Senior Notes due 2052 (the “Old 2052 Senior Notes”), (x) $3,000,000,000 aggregate principal amount of its 5.391% Senior Notes due 2062 (the “New 2062 Senior Notes”), which are to be registered under the Act pursuant to the Registration Statement, in exchange for an equal principal amount of the Issuer’s 5.391% Senior Notes due 2062 (the “Old 2062 Senior Notes”), and (xi) $500,000,000 Floating Rate Senior Notes due 2024 (the “New Floating Rate Senior Notes” and, together with the New 2024 Senior Notes, the New 2024 NC1 Senior Notes, the New 2025 Senior Notes, the New 2025 NC1 Senior Notes, the New 2027 Senior Notes, the New 2029 Senior Notes, the New 2032 Senior Notes, the New 2042 Senior Notes, the New 2052 Senior Notes and the New 2062 Senior Notes, the “New Notes”), which are to be registered under the Act pursuant to the Registration Statement, in exchange for an equal principal amount of the Issuer’s Floating Rate Senior Notes due 2024 (the “Old Floating Rate Senior Notes” and together with the Old 2024 Senior Notes, the Old 2024 NC1 Senior Notes, the Old 2025 Senior Notes, the Old 2025 NC1 Senior Notes, the Old 2027 Senior Notes, the Old 2029 Senior Notes, the Old 2032 Senior Notes, the Old 2042 Senior Notes, the Old 2052 Senior Notes and the Old 2062 Senior Notes, the “Old Notes”). The New Notes are to be issued pursuant to the indenture, dated as of March 15, 2022 (the “Base Indenture”), among the Issuer, AT&T Inc. and U.S. Bank Trust Company, National Association, as trustee (the “Trustee”), as amended and
| To the Addresses Listed on Page One | 3 | March 22, 2023 |
supplemented by the first supplemental indenture, dated as of April 8, 2022 (the “First Supplemental Indenture”; the Base Indenture as amended and supplemented by the First Supplemental Indenture is referred to herein as the “Indenture”), among the Issuer, the Parent Guarantor, DCL, Scripps and the Trustee. The New Notes are to be fully and unconditionally guaranteed on an unsecured unsubordinated basis by the Guarantors pursuant to and as set forth in the Indenture (each such guarantee, a “Guarantee”).
In arriving at the opinions expressed below, we have (a) examined and relied on the originals, or copies certified or otherwise identified to our satisfaction, of the Indenture, (b) examined and relied on such corporate or other organizational documents and records of the Issuer and the Guarantors and such certificates of public officials, and officers and representatives of the Issuer and the Guarantors and other persons as we have deemed appropriate for the purposes of such opinions, (c) examined and relied as to factual matters upon, and assumed the accuracy of, the statements made in the certificates of public officials, officers and representatives of the Issuer and the Guarantors and other persons delivered to us and (d) made such investigations of law as we have deemed appropriate as a basis for such opinions.
In rendering the opinions expressed below, we have assumed, with your permission, without independent investigation or inquiry, (i) the authenticity and completeness of all documents that we examined, (ii) the genuineness of all signatures on all documents that we examined, (iii) the conformity to authentic originals and completeness of documents examined by us that are certified, conformed, reproduction, photostatic or other copies, (iv) the legal capacity of all natural persons executing documents, (v) the valid existence and good standing of each of the Trustee, the Issuer and the Guarantors, (vi) the corporate or other power and authority of all parties to enter into each of the Indenture and the New Notes and to perform their respective obligations thereunder, (vii) the due authorization, execution and delivery of the Indenture and the New Notes by all parties thereto, except to the extent that due execution and delivery thereof by the Issuer and the Guarantors are governed by the laws of the State of New York, (viii) the enforceability of the Indenture against the Trustee and (ix) the due authentication of the New Notes on behalf of the Trustee in the manner provided in the Indenture.
Based upon and subject to the foregoing and the assumptions, qualifications and limitations hereinafter set forth, we are of the opinion that, upon the execution and issuance of the New Notes by the Issuer and the authentication of the New Notes on behalf of the Trustee in accordance with the Indenture and delivery of the New Notes against exchange therefor of the Old Notes, pursuant to the exchange offer described in the Registration Statement:
1. The New Notes will constitute valid and binding obligations of the Issuer enforceable against the Issuer in accordance with their terms.
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2. The Guarantee by each Guarantor pursuant to the Indenture will constitute the valid and binding obligation of such Guarantor enforceable against each Guarantor in accordance with its terms.
Our opinions set forth above are subject to the effects of (i) bankruptcy, insolvency, fraudulent conveyance, fraudulent transfer, reorganization and moratorium laws, and other similar laws relating to or affecting creditors’ rights or remedies generally, (ii) general equitable principles (whether considered in a proceeding in equity or at law) and (iii) concepts of good faith, diligence, reasonableness and fair dealing, and standards of materiality.
The opinions expressed herein are limited to the laws of the State of New York, as currently in effect, and we do not express any opinion herein concerning any other laws. In rendering the opinions above, we have relied on, with respect to all matters relating to the laws of the State of Delaware and the laws of the State of Ohio, the opinions, delivered to you today, of Potter Anderson & Corroon LLP, special Delaware counsel to the Issuer, the Parent Guarantor and DCL, and Womble Bond Dickinson (US) LLP, special Ohio counsel to Scripps.
We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the reference to our firm under the heading “Validity of the Notes” in the Registration Statement. In giving such consent, we do not hereby concede that we are within the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Commission thereunder.
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Very truly yours, |
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/s/ Debevoise & Plimpton LLP |
Exhibit 5.2
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1313 North Market Street P.O. Box 951 Wilmington, DE 19899-0951 302 984 6000 www.potteranderson.com |
Exhibit 5.2
March 22, 2023
To Each of the Persons Listed
On Schedule A Attached Hereto
RE: WarnerMedia Holdings, Inc. – Registration Statement on Form S-4
Ladies and Gentlemen:
We have acted as Delaware counsel for (i) WarnerMedia Holdings, Inc., a Delaware corporation formerly known as Magallanes, Inc. (the “Issuer”), (ii) Warner Bros. Discovery, Inc., a Delaware corporation formerly known as Discovery, Inc. and as Discovery Communications, Inc. (“WBD”; the Issuer and WBD, each, a “Corporation,” and collectively, the “Corporations”), and (iii) Discovery Communications, LLC, a Delaware limited liability company (“DCL”, and together with each Corporation, a “Delaware Party,” and collectively, the “Delaware Parties”), in connection with the Indenture (as defined below). This opinion is being provided to you at your request. Capitalized terms used herein without definition shall have the meanings ascribed thereto in the Indenture.
For purposes of giving the opinions hereinafter set forth, our examination of documents has been limited to the examination of executed or conformed counterparts, or copies or forms otherwise proved to our satisfaction, of the following:
(a) certain organizational documents for each of the Delaware Parties as set forth on Schedule B hereto;
(b) the Indenture, dated as of March 15, 2022 (the “Initial Indenture”), between the Issuer, AT&T Inc., as Parent Guarantor (as defined therein), and U.S. Bank Trust Company, National Association, as Trustee (as defined therein);
(c) the First Supplemental Indenture, dated as of April 8, 2022 (the “Supplemental Indenture,” and together with the Initial Indenture, collectively, the “Indenture”), among WBD, DCL, Scripps Networks Interactive, Inc., the Issuer, and U.S. Bank Trust Company, National Association, as Trustee under the Indenture (each capitalized term as defined therein);
To Each of the Persons Listed
On Schedule A Attached Hereto
March 22, 2023
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(d) the form of the Exchange Notes to be issued by the Issuer pursuant to the Indenture on the date hereof (the “Exchange Notes”);
(e) the Proposed Resolutions of the Board of Directors of WBD, dated May 16, 2021 (the “Discovery Board Resolutions”);
(f) the Proposed Resolutions of the Finance Committee of the Board of Directors of WBD, dated February 14, 2022 (the “Discovery Finance Committee Resolutions”);
(g) the Written Consent of the Management Committee of DCL, dated March 15, 2022 (the “DCL Consent”);
(h) the Action Without a Meeting by Unanimous Written Consent of the Board of Directors of the Issuer, dated May 17, 2021 (the “Issuer Merger Consent”);
(i) the Action Without a Meeting by Unanimous Written Consent of the Board of Directors of the Issuer, adopted on February 23, 2022 (the “Issuer Schedule of Authorizations Consent”);
(j) the Issuer Unanimous Written Consent of the Board of Directors to Action Without a Meeting, dated April 8, 2022 (the “2022 Issuer Consent”);
(k) the Issuer Unanimous Written Consent of the Board of Directors to Action Without a Meeting, dated March 21, 2023 (the “2023 Issuer Consent;” the Discovery Board Resolutions, the Discovery Finance Committee Resolutions, the DCL Consent, the Issuer Merger Consent, the Issuer Schedule of Authorizations Consent, the 2022 Issuer Consent, and the 2023 Issuer Consent, collectively, the “Resolutions”);
(l) the Assistant Secretary’s Certificate of the Issuer, dated March 15, 2022, including all attachments thereto (the “Existing Issuer Certificate”); the Secretary’s Certificate of WBD, dated April 8, 2022, including all attachments thereto; and the Secretary’s Certificate of DCL, dated April 8, 2022, including all attachments thereto (collectively, the “Existing Officer’s Certificates”);
(m) Officer’s Certificates and Secretary’s Certificates of each of the Issuer, WBD and DCL, dated the date hereof (collectively, the “2023 Officer’s Certificates”), as to certain matters; and
(n) a certificate of good standing for each of the Delaware Parties obtained from the Secretary of State of the State of Delaware (the “Secretary of State”) as of a recent date.
For purposes of this opinion, we have not reviewed any documents other than the documents listed in paragraphs (a) through (n) above. In particular, we have not reviewed any document (other than the documents listed in paragraphs (a) through (n) above) that is referred to
To Each of the Persons Listed
On Schedule A Attached Hereto
March 22, 2023
Page 3
in or incorporated by reference into any document reviewed by us. We have assumed that there exists no provision in any document that we have not reviewed that bears upon or is inconsistent with the opinions stated herein. We have conducted no independent factual investigation of our own but rather have relied solely upon the foregoing documents, the statements and information set forth therein, and the additional matters recited or assumed herein, all of which we have assumed to be true, complete, and accurate in all material respects.
With respect to all documents examined by us, we have assumed that (i) all signatures on documents examined by us are genuine, (ii) all documents submitted to us as originals are authentic, and (iii) all documents submitted to us as copies or drafts conform to the originals of those documents.
For purposes of this opinion, we have assumed (i) the legal capacity of all natural persons who are signatories to the documents examined by us, (ii) except to the extent set forth in opinion paragraphs 1 and 2 below, the due organization or due formation, as the case may be, and valid existence and good standing of each party to the documents examined by us, (iii) except to the extent set forth in opinion paragraphs 3 and 4 below, that each party to the documents examined by us has all necessary power and authority to enter into and deliver such documents and to perform its respective obligations thereunder, (iv) except to the extent set forth in opinion paragraphs 5 and 6 below, the due authorization, execution, and delivery by all parties thereto of all documents examined by us (including, without limitation, the execution of the Certificate of Formation and each Certificate of Merger by an “authorized person” (within the meaning of the Delaware Limited Liability Company Act, 6 Del. C. § 18-101 et seq. (the “LLC Act”))), (v) that (A) the Indenture constitutes the legal, valid, and binding agreement of each of the parties thereto, and is enforceable against each of the parties thereto in accordance with its terms, and (B) each of the Exchange Notes, when duly executed and delivered by the Issuer, shall constitute the legal, valid, and binding agreement of the Issuer, and shall be enforceable against the Issuer in accordance with its terms, (vi) that the documents examined by us set forth the entire understanding among the parties thereto with respect to the subject matter thereof, are in full force and effect, and have not been amended, revoked, or modified (except as herein referenced), (vii) that any amendment or restatement of any document examined by us has been accomplished in accordance with, and was permitted by, the relevant provisions of such document prior to such amendment or restatement, (viii) that no steps have been taken to dissolve or terminate DCL and no event of dissolution has occurred with respect to DCL, (ix) that the Indenture and each Delaware Party’s performance thereunder, including the execution and delivery thereof, are necessary and convenient to the conduct, promotion and attainment of the business of such Delaware Party, and that WBD directly or indirectly owns all of the outstanding stock or limited liability company interests, as applicable, of the Issuer and DCL; and (x) that prior to the filing of the Certificate of Conversion, (A) Discovery Communications, Inc. was duly incorporated, validly existing and in good standing, and (B) the conversion of Discovery Communications, Inc. into DCL and the LLC Agreement were approved in the manner provided for by (X) the document, instrument, agreement or other writing, as the case may be, governing the internal affairs of Discovery Communications, Inc. and the conduct of its business, and (Y) applicable law (including the laws of the State of Delaware), each as in effect
To Each of the Persons Listed
On Schedule A Attached Hereto
March 22, 2023
Page 4
immediately prior to such filing. We have further assumed that the Board of Directors of each of the Issuer and AT&T Inc., as applicable, by adopting the resolutions, the AT&T Affiliate Schedule of Authorizations and AT&T’s Schedule of Authorizations attached to the Existing Issuer Certificate, authorized the entering into and performance by the Issuer of the Initial Indenture and that Andrew B. Keiser was a duly elected Vice President and Assistant Treasurer of the Issuer and of AT&T Inc. at the time he executed the Initial Indenture on behalf of the Issuer.
This opinion is limited to the laws of the State of Delaware (excluding tax, insurance, antitrust, emergency, securities and blue sky laws of the State of Delaware and rules, regulations, orders and decisions related thereto), and we have not considered and express no opinion on the laws of any other jurisdiction, including, without limitation, federal laws and rules and regulations relating thereto. Our opinions are rendered only with respect to Delaware laws and rules, regulations, and orders thereunder that are currently in effect. Our opinions are rendered only as of the date hereof, and we expressly disclaim any obligation to update such opinions with regard to changes in law or events occurring after the date hereof. We have not participated in the preparation of the Registration Statement or any other offering material relating to the Delaware Parties, and we assume no responsibility for the contents of any such material.
Based upon the foregoing, and subject to the assumptions, qualifications, limitations, and exceptions set forth herein, we are of the opinion that, under Delaware law:
1. Each of the Corporations is duly incorporated, validly existing, and in good standing as a corporation under the General Corporation Law of the State of Delaware (the “DGCL”).
2. DCL is duly formed, validly existing, and in good standing as a limited liability company under the LLC Act.
3. (a) Under the DGCL and the applicable Organizational Documents, the Issuer has all necessary corporate power and authority to execute and deliver the Indenture, and to perform its obligations thereunder, including the power and authority to issue the Exchange Notes.
(b) Under the DGCL and the applicable Organizational Documents, WBD has all necessary corporate power and authority to execute and deliver the Supplemental Indenture, and to perform its obligations under the Indenture.
4. Under the LLC Act and the applicable Organizational Documents, DCL has all necessary limited liability company power and authority to execute and deliver the Supplemental Indenture, and to perform its obligations under the Indenture.
5. (a) The Issuer (i) has taken all necessary corporate action to authorize the execution and delivery of, and the performance of its obligations under, the Indenture, including the issuance of the Exchange Notes, and (ii) has duly executed and delivered the Indenture and,
To Each of the Persons Listed
On Schedule A Attached Hereto
March 22, 2023
Page 5
when executed and delivered by an officer (as listed on Exhibit D of the applicable 2023 Officer’s Certificate) by or on behalf of the Issuer, the Exchange Notes.
(b) WBD (i) has taken all necessary corporate action to authorize the execution and delivery of the Supplemental Indenture, and the performance of its obligations under the Indenture, and (ii) has duly executed and delivered the Supplemental Indenture.
6. DCL (a) has taken all necessary limited liability company action to authorize the execution and delivery of the Supplemental Indenture, and the performance of its obligations under the Indenture, and (b) has duly executed and delivered the Supplemental Indenture.
7. The execution and delivery by each Delaware Party of the Initial Indenture or Supplemental Indenture, as applicable, and the performance of its obligations under the Indenture (including, with respect to the Issuer, the issuance of the Exchange Notes), do not (a) result in a breach or violation of the Organizational Documents of such Delaware Party, (b) violate the laws of the State of Delaware applicable to such Delaware Party, or (c) require any consents (other than the Resolutions) under the DGCL or the LLC Act, as applicable.
The opinions in this letter are subject to the following assumptions, qualifications, limitations and exceptions, in addition to those above:
We express no opinion (a) as to the Uniform Commercial Code or as to whether any filings may be required thereunder in connection with any of the documents examined by us (including, without limitation, the Indenture), (b) as to any person’s or entity’s ownership of, title to, or interests in any property, or (c) as to any document that is referred to or incorporated by reference into any document reviewed by us. Our opinions in numbered paragraphs 5 and 6 above regarding execution and delivery are based solely on the 2023 Officer’s Certificates and the Existing Officer’s Certificates.
In connection with the foregoing, we hereby consent to your reliance upon this opinion as to matters of Delaware law. We also consent to the reliance upon this opinion as to matters of Delaware law of Debevoise & Plimpton LLP (“Debevoise”) in connection with any opinions rendered by Debevoise on or about the date hereof in connection with the Indenture and the transactions contemplated thereby. Without our prior written consent, this opinion may not be furnished or quoted to, or relied upon by, any other person or entity for any purpose. Furthermore, we consent to the filing of this opinion with the Securities and Exchange Commission (the “SEC”) as an exhibit to the Form S-4 Registration Statement filed with the SEC on March 22, 2023 (the “Registration Statement”), and to the use of our name in the prospectus forming a part of the Registration Statement under the caption “Validity of the Notes”. In giving the foregoing consent, we do not thereby admit that we come within the category of persons or entities whose consent is required under Section 7 of the Securities Act of 1933, as amended, or the rules and regulations of the SEC thereunder.
To Each of the Persons Listed
On Schedule A Attached Hereto
March 22, 2023
Page 6
| Very truly yours, |
| /s/ Potter Anderson & Corroon LLP |
TAM/AGF
Schedule A
WarnerMedia Holdings, Inc.
Warner Bros. Discovery, Inc.
Discovery Communications, LLC
Schedule B
| 1. | the Certificate of Incorporation of Issuer as filed with the Secretary of State on May 14, 2021; |
| 2. | the Certificate of Amendment to Certificate of Incorporation of the Issuer, as filed with the Secretary of State on May 28, 2021; |
| 3. | the Certificate of Amendment to Certificate of Incorporation of the Issuer, as filed with the Secretary of State on June 1, 2021; |
| 4. | the Amended and Restated Certificate of the Issuer, as filed with the Secretary of State on April 7, 2022; |
| 5. | the Certificate of Merger of Drake Subsidiary, Inc., (a Delaware corporation) with and into Magallanes, Inc., (a Delaware corporation), as filed with the Secretary of State on April 8, 2022 and effective at 5:02 p.m. Eastern Time on April 8, 2022 (including the Second Amended and Restated Certificate of Incorporation attached as Exhibit A thereto, the “Second A&R Issuer Certificate”); |
| 6. | the Certificate of Amendment to Second Amended and Restated Certificate of Incorporation of the Issuer, as filed with the Secretary of State on April 14, 2022 (together with the Second A&R Issuer Certificate, the “Certificate of Incorporation of the Issuer”); |
| 7. | the Amended and Restated Bylaws of the Issuer as adopted on April 8, 2022 (together with the Certificate of Incorporation of Issuer, the “Organizational Documents” of the Issuer); |
| 8. | the Certificate of Incorporation of WBD, as filed with the Secretary of State on April 28, 2008; |
| 9. | the Restated Certificate of Incorporation of WBD, as filed with the Secretary of State on September 17, 2008; |
| 10. | the Certificate of Designation of Series A Junior Participating Preferred Stock of WBD, as filed with the Secretary of State on September 17, 2008; |
| 11. | the Certificate of Designation of Series B Junior Participating Preferred Stock of WBD, as filed with the Secretary of State on September 17, 2008; |
| 12. | the Certificate of Designation of Series C Junior Participating Preferred Stock of WBD, as filed with the Secretary of State on September 17, 2008; |
| 13. | the State of Delaware Certificate of Change of Registered Agent and/or Registered Office relating to WBD, as filed with the Secretary of State on June 3, 2014; |
| 14. | the Certificate of Designation of Series A-1 Convertible Participating Preferred Stock of WBD, as filed with the Secretary of State on August 7, 2017; |
| 15. | the Certificate of Designation of Series C-1 Convertible Participating Preferred Stock of WBD, as filed with the Secretary of State on August 7, 2017; |
| 16. | the Certificate of Amendment of Certificate of Incorporation of WBD, as filed with the Secretary of State on March 6, 2018; |
| 17. | the State of Delaware Certificate of Change of Registered Agent and/or Registered Office relating to WBD, as filed with the Secretary of State on February 25, 2021; |
| 18. | the Second Restated Certificate of Incorporation of WBD, as filed with the Secretary of State on April 8, 2022 effective as of 5:00 p.m. Eastern Time on April 8, 2022 (including Exhibit A attached thereto, the “Second Restated Certificate of Incorporation of WBD”); |
| 19. | the State of Delaware Certificate of Change of Registered Agent and/or Registered Office relating to WBD, as filed with the Secretary of State on December 7, 2022 (together with the Second Restated Certificate of Incorporation of WBD, the “Certificate of Incorporation of WBD”); |
| 20. | the Amended and Restated Bylaws of WBD, as amended and restated as of November 10, 2020; |
| 21. | the Amended and Restated Bylaws of WBD, as amended and restated as of April 8, 2022 (together with the Certificate of Incorporation of WBD, the “Organizational Documents” of WBD); |
| 22. | the Certificate of Incorporation of Discovery Communications, Inc., a Delaware Close Corporation, as filed with the Secretary of State on April 12, 1991; |
| 23. | the Certificate of Ownership and Merger Merging Cable Educational Network, Inc., a Maryland Corporation, with and into Discovery Communications, Inc., a Delaware Close Corporation, as filed with the Secretary of State on November 26, 1991; |
| 24. | the Certificate of Ownership and Merger Merging The Learning Channel, Inc., a Delaware Corporation, with and into Discovery Communications, Inc., a Delaware Close Corporation, as filed with the Secretary of State on December 15, 1993; |
| 25. | the Certificate of Ownership and Merger Merging Your Choice TV, Inc. into Discovery Communications, Inc., as filed with the Secretary of State on December 19, 1997; |
| 26. | the Certificate of Change of Location of Registered Office and Registered Agent of Discovery Communications, Inc., as filed with the Secretary of State on April 29, 1999; |
| 27. | the Certificate of Ownership and Merger Merging Discovery Health Media, Inc. into Discovery Communications, Inc., as filed with the Secretary of State on April 20, 2000; |
| 28. | the Certificate of Ownership and Merger Merging Project Discovery, Inc. into Discovery Communications, Inc., as filed with the Secretary of State on December 29, 2000; |
| 29. | the Certificate of Amendment to Certificate of Incorporation of Discovery Communications, Inc., as filed with the Secretary of State on September 21, 2001; |
| 30. | the Certificate of Ownership and Merger Merging Discovery.com, Inc. into Discovery Communications, Inc., as filed with the Secretary of State on December 31, 2001; |
| 31. | the Certificate of Change of Registered Agent and Registered Office relating to Discovery Communications, Inc., as filed with the Secretary of State on July 26, 2002; |
| 32. | the Certificate of Amendment of Certificate of Incorporation of Discovery Communications, Inc. (a Delaware Close Corporation), as filed with the Secretary of State on June 23, 2003; |
| 33. | the Certificate of Conversion to Limited Liability Company of Discovery Communications, Inc. to DCL, as filed with the Secretary of State on May 14, 2007 (the “Certificate of Conversion”); |
| 34. | the Certificate of Formation of DCL, as filed with the Secretary of State on May 14, 2007 (the “Initial Certificate of Formation”); |
| 35. | the State of Delaware Certificate of Amendment relating to DCL, as filed with the Secretary of State on February 4, 2008 (the “First DCL Amendment”); |
| 36. | the Certificate of Merger of Discovery Europe, LLC with and into DCL, as filed with the Secretary of State on October 11, 2011 (the “First DCL Merger”); |
| 37. | the Certificate of Merger of Discovery Kids North America, Inc. (a Delaware corporation) with and into DCL (a Delaware limited liability company), as filed with the Secretary of State on December 23, 2019 (the “Second DCL Merger”); |
| 38. | the Certificate of Merger of Discovery New York, Inc. (a Delaware corporation) with and into DCL (a Delaware limited liability company), as filed with the Secretary of State on December 23, 2019 (the “Third DCL Merger”); |
| 39. | the Certificate of Merger of Discovery 3D Holding, Inc. (a Delaware corporation) with and into DCL (a Delaware limited liability company), as filed with the Secretary of State on December 23, 2019 (the “Fourth DCL Merger”); |
| 40. | the Certificate of Merger of Discovery World Television, Inc. (a Maryland corporation) with and into DCL (a Delaware limited liability company), as filed with the Secretary of State on September 14, 2020 (the “Fifth DCL Merger”); |
| 41. | the Certificate of Merger of Discovery Publishing, Inc. (a Delaware corporation) with and into DCL (a Delaware limited liability company), as filed with the Secretary of State on September 14, 2020 (the “Sixth DCL Merger”); |
| 42. | the State of Delaware Certificate of Amendment Changing Only the Registered Office or Registered Agent of a Limited Liability Company relating to DCL, as filed with the Secretary of State on January 11, 2021 (the “Second DCL Amendment”); |
| 43. | the Certificate of Merger of Discovery Communications Ventures, LLC (a Delaware limited liability company) with and into DCL (a Delaware limited liability company), as filed with the Secretary of State on September 28, 2021 and effective at 12:01 a.m. EDT on September 30, 2021 (the “Seventh DCL Merger”); |
| 44. | the Certificate of Merger of Discovery Civilization North America, Inc. (a Delaware corporation) with and into DCL (a Delaware limited liability company), as filed with the Secretary of State on September 28, 2021 and effective at 12:01 a.m. EDT on September 30, 2021 (the “Eighth DCL Merger”); |
| 45. | the Certificate of Merger of Discovery Patent Licensing, LLC (a Delaware limited liability company) with and into DCL (a Delaware limited liability company), as filed with the Secretary of State on September 28, 2021 and effective at 12:01 a.m. EDT on September 30, 2021 (the “Ninth DCL Merger”); |
| 46. | the Certificate of Merger of Discovery Health North America, Inc. (a Delaware corporation) with and into DCL (a Delaware limited liability company), as filed with the Secretary of State on September 28, 2021 and effective at 12:01 a.m. EDT on September 30, 2021 (the “Tenth DCL Merger”); |
| 47. | the Certificate of Merger of Discovery SC Investment, Inc. (a Delaware corporation) with and into DCL (a Delaware limited liability company), as filed with the Secretary of State on September 28, 2021 and effective at 12:01 a.m. EDT on September 30, 2021 (the “Eleventh DCL Merger”); |
| 48. | the Certificate of Merger of Beacon Solutions, Inc. (a Delaware corporation) with and into DCL (a Delaware limited liability company), as filed with the Secretary of State on February 18, 2022 and effective as 12:01 a.m. EDT on February 28, 2022 (the “Twelfth DCL Merger;” the First DCL Merger, the Second DCL Merger, the Third DCL Merger, the Fourth DCL Merger, the Fifth DCL Merger, the Sixth DCL Merger, the Seventh DCL Merger, the Eighth DCL Merger, the Ninth DCL Merger, the Tenth DCL Merger, the Eleventh DCL Merger, and the Twelfth DCL Merger, each, a “Certificate of Merger”); |
| 49. | the State of Delaware Certificate of Amendment Changing Only the Registered Office or Registered Agent of a Limited Liability Company relating to DCL, as filed with the Secretary of State on March 9, 2023 (the “Third DCL Amendment;” the Initial Certificate of Formation, the First DCL Amendment, the Second DCL Amendment, and the Third DCL Amendment, collectively, the “Certificate of Formation”); and |
| 50. | the Amended and Restated Limited Liability Company Agreement of DCL, dated as of March 9, 2021 (including Exhibit A thereto, the “LLC Agreement”), by Discovery Communications Holding, LLC, as the sole member (the Certificate of Formation, each Certificate of Merger, and the LLC Agreement, collectively, the “Organizational Documents” of DCL). |
Exhibit 5.3
| March 22, 2023
WarnerMedia Holdings, Inc. 230 Park Avenue South New York, New York 10003
Re: Registration Statement on Form S-4 of WarnerMedia Holdings, Inc. |
|
Ladies and Gentlemen:
We have acted as special Ohio counsel to Scripps Networks Interactive, Inc., an Ohio corporation (the “Opinion Party”), in connection with the filing with the U.S. Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Securities Act”), of the above-referenced Registration Statement on Form S-4 (the “Registration Statement”) relating to the offering by WarnerMedia Holdings, Inc., a Delaware corporation (“WMH”) of (a) up to $1,750,000,000 aggregate principal amount of WMH’s 3.428% Senior Notes due 2024, $500,000,000 aggregate principal amount of WMH’s 3.528% Senior Notes due 2024, $1,750,000,000 aggregate principal amount of WMH’s 3.638% Senior Notes due 2025, $500,000,000 aggregate principal amount of WMH’s 3.788% Senior Notes due 2025, $4,000,000,000 aggregate principal amount of WMH’s 3.755% Senior Notes due 2027, $1,500,000,000 aggregate principal amount of WMH’s 4.054% Senior Notes due 2029, $5,000,000,000 aggregate principal amount of WMH’s 4.279% Senior Notes due 2032, $4,500,000,000 aggregate principal amount of WMH’s 5.050% Senior Notes due 2042, $7,000,000,000 aggregate principal amount of WMH’s 5.141% Senior Notes due 2052, $3,000,000,000 aggregate principal amount of WMH’s 5.391% Senior Notes due 2062, and $500,000,000 aggregate principal amount of WMH’s Floating Rate Senior Notes due 2024 (collectively, the “New Notes”) in exchange for outstanding notes of like principal amounts, rates and due date (collectively, the “Old Notes”) and (b) the full and unconditional guarantee as to the payment of principal and interest on the New Notes by each of the entities listed in the Registration Statement as guarantors, which includes the Opinion Party (the “Guarantors”), in exchange for the full and unconditional guarantees as to the payment of principal and interest on the Old Notes by the Guarantors. The New Notes will be issued by WMH under the indenture, dated as of March 15, 2022, by and among WMH, AT&T Inc., and U.S. Bank Trust Company, National Association (the “Base Indenture”), as supplemented by the first supplemental indenture, dated as of April 8, 2022, by and among the Opinion Party, WMH, Warner Bros. Discovery, Inc., Discovery Communications, LLC, and U.S. Bank Trust Company, National Association (the “Supplemental Indenture”, together with the Base Indenture, the “Indenture”).
In rendering the opinions set forth herein, we have examined originals or copies, certified or otherwise identified to our satisfaction, of the following documents, corporate records and other instruments: (i) the Articles of Incorporation of the Opinion Party, dated as of October 22, 2007, filed in the office of the Secretary of State of the State of Ohio (the “Filing Office”) on October 23, 2007, as amended by the Certificate of Amendment, dated as of December 26, 2007, filed in the Filing Office on December 28, 2007, as amended by the Certificate of Amendment, dated as of June 24, 2008, filed in
| March 22, 2023 Page 2 |
| |
the Filing Office on June 25, 2008, as amended by the Certificate of Merger, effective as of December 31, 2016, filed in the Filing Office on November 15, 2016, as amended by the Certificate of Merger, effective as of March 6, 2018, filed in the Filing Office on March 6, 2018, as amended by the Certificate of Merger, effective as March 31, 2019, filed in the Filing Office on March 28, 2019, as amended by the Certificate of Merger, effective as of December 21, 2020, filed in the Filing Office on December 21, 2020, as amended by the Statutory Agent Update, effective as of January 13, 2021, filed in the Filing Office on January 13, 2021, as amended by the Certificate of Merger, effective as of December 31, 2021, filed in the Filing Office on December 22, 2021 (the “Articles of Incorporation”); (ii) the Amended Code of Regulations of the Opinion Party, dated as of March 6, 2018 (the “Code of Regulations”); (iii) the unanimous written consent of the board of directors of the Opinion Party dated March 15, 2022; (iv) the written consent of the sole shareholder of the Opinion Party dated March 2, 2023; and (v) the Certificate of Good Standing of the Opinion Party issued by the Filing Office on March 1, 2023 (the “Certificate of Good Standing”). As to any facts relevant to our opinions, we have relied upon a certificate from an officer of the Opinion Party.
Subject to the assumptions and other matters set forth below, it is our opinion that as of the date hereof:
| 1. | The Opinion Party is a corporation validly in existence and in good standing under the laws of the State of Ohio with the corporate power to guarantee the obligations of others, and to execute and deliver the Supplemental Indenture and to perform its obligations thereunder. In rendering our opinion that the Opinion Party is a corporation in existence and in good standing under the laws of the State of Ohio, we have relied solely upon the Certificate of Good Standing. |
| 2. | The execution and delivery of the Supplemental Indenture by the Opinion Party and the performance by the Opinion Party of its respective obligations thereunder have been duly authorized by all requisite corporate action on the part of the Opinion Party. |
| 3. | The Supplemental Indenture has been duly executed and delivered by the Opinion Party. |
| 4. | The execution and delivery by the Opinion Party of the Supplemental Indenture did not, and the performance by the Opinion Party of the financial obligations thereunder will not, conflict with or violate (a) applicable provisions of Ohio statutory law or regulation or (b) the Opinion Party’s Articles of Incorporation or Code of Regulations. |
In our examination, we have assumed the legal capacity of all natural persons, the incumbency of all persons designated as officers, directors or similar representatives of legal persons, the genuineness of all signatures, the authenticity of all documents submitted to us as originals and the conformity to original documents of all documents submitted to us as certified, conformed, facsimile, electronic or photostatic copies. In addition, we have relied as to factual matters upon the representations, warranties, and certifications contained in the Indenture, and we have assumed that all such representations, warranties and certifications are accurate and complete.
The opinions set forth herein are limited to matters governed by the laws of the State of Ohio, excluding the following legal issues or the application of any such laws or regulations to the matters on which our opinions are referenced: (i) state securities laws; (ii) the local laws of the State of Ohio (i.e. the statutes, ordinances, the administrative decisions and the rules and regulations of counties and municipalities of the State of Ohio); (iii) state antitrust and unfair competition laws and regulations; (iv)
| March 22, 2023 Page 3 |
| |
state tax laws and regulations; (v) state regulatory laws and regulations applicable to any entity solely as a result of its nonprofit or public benefit status or solely because of the business in which it is engaged (including, without limitation, any business in a regulated industry); (vi) state environmental laws and regulations; (vii) state laws relating to health and safety; building construction; fair housing; and historic preservation; (viii) laws, rules, and regulations relating to racketeering, foreign assets control, sanctions, national security, money laundering, and terrorist groups; (ix) insurance, labor, employment, employee benefit, ERISA or tax laws, rules, regulations, or ordinances; and (x) patent, trademark, copyright, trade secret or other intellectual property or privacy law. No opinion is expressed herein as to the laws of any other jurisdiction. We express no opinion concerning any matter respecting or affected by any laws other than laws that a lawyer in Ohio exercising customary professional diligence would reasonably recognize as being directly applicable to the Opinion Party, the issuance of New Notes or both. Without limitation, we express no opinion regarding the enforceability of the Supplemental Indenture. Our opinions are subject to limitations imposed by the valid exercise of the police power and any emergency powers of the United States or the State of Ohio, or by the valid exercise of any federal or the State of Ohio criminal or civil forfeiture laws. Our opinions expressed herein are as of the date hereof, and we undertake no obligation to advise you of any changes in applicable law or any other matters that may come to our attention after the date hereof that may affect our opinions expressed herein.
This opinion is furnished to you in connection with the filing of the Registration Statement and in accordance with the requirements of the Securities Act. This opinion may be relied upon by Debevoise & Plimpton LLP in connection with the filing of its own opinion as to the New Notes as an exhibit to the Registration Statement.
We hereby consent to the filing of this opinion with the Commission as Exhibit 5.3 to the Registration Statement. We also consent to the reference to our firm under the heading “Validity of the Notes” in the Registration Statement. In giving this consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission.
| Very truly yours, |
| /s/ Womble Bond Dickinson (US) LLP |
SBDB
FRA
JSG
Exhibit 22.1
| Registered Senior Notes Issued Under |
Issuer |
Guarantors | ||
| Indenture dated August 19, 2009 | Discovery Communications, LLC | Warner Bros. Discovery, Inc., Scripps Networks Interactive, Inc., WarnerMedia Holdings, Inc. (f/k/a Magallanes, Inc.) | ||
| Indenture dated March 15, 2022 | WarnerMedia Holdings, Inc. (f/k/a Magallanes, Inc.) | Warner Bros. Discovery, Inc., Discovery Communications, LLC, Scripps Networks Interactive, Inc. | ||
| Indenture dated March 10, 2023 | WarnerMedia Holdings, Inc. (f/k/a Magallanes, Inc.) | Warner Bros. Discovery, Inc., Discovery Communications, LLC, Scripps Networks Interactive, Inc. | ||
Exhibit 23.4
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We hereby consent to the incorporation by reference in this Registration Statement on Form S-4 of Warner Bros. Discovery, Inc. of our report dated February 24, 2023 relating to the financial statements, financial statement schedule and the effectiveness of internal control over financial reporting, which appears in Warner Bros. Discovery, Inc.’s Annual Report on Form 10-K for the year ended December 31, 2022. We also consent to the reference to us under the heading “Experts” in such Registration Statement.
/s/ PricewaterhouseCoopers LLP
Washington, District of Columbia
March 22, 2023
Exhibit 23.5
Consent of Independent Registered Public Accounting Firm
We consent to the reference to our firm under the caption “Experts” and to the use of our report dated March 4, 2022, with respect to the combined financial statements of the WarnerMedia Business included in the Current Report on Form 8-K of Discovery, Inc. (renamed Warner Bros. Discovery, Inc.) filed on March 7, 2022, incorporated by reference in this Registration Statement (Form S-4) and related Prospectus of WarnerMedia Holdings, Inc. for the exchange of its senior notes.
/s/ Ernst & Young LLP
Dallas, Texas
March 22, 2023
Exhibit 25.1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY UNDER
THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
| ☐ | Check if an Application to Determine Eligibility of a Trustee Pursuant to Section 305(b)(2) |
U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION
(Exact name of Trustee as specified in its charter)
91-1821036
I.R.S. Employer Identification No.
| 800 Nicollet Mall Minneapolis, Minnesota |
55402 | |
| (Address of principal executive offices) | (Zip Code) |
Karen R. Beard
U.S. Bank Trust Company, National Association
One Federal Street – 10th Floor
Boston, MA 02110
(617) 603-6565
(Name, address and telephone number of agent for service)
WarnerMedia Holdings, Inc.
(Issuer with respect to the Securities)
Warner Bros. Discovery, Inc.
(as Parent Guarantor)
Discovery Communications, LLC
(as Subsidiary Guarantor)
Scripps Networks Interactive, Inc.
(as Subsidiary Guarantor)
| Issuer – Delaware Parent Guarantor – Delaware Subsidary Guarantor – Delaware Subsidary Guarantor - Ohio |
87-0943087 35-2333914 32-0204298 61-1551890 | |
| (State or other jurisdiction of incorporation or organization) |
(I.R.S. Employer Identification No.) |
| 230 Park Avenue South New York, NY |
10003 | |
| (Address of Principal Executive Offices) | (Zip Code) |
$1,750,000,000 3.428% Senior Notes due 2024
$500,000,000 3.528% Senior Notes due 2024
$1,750,000,000 3.638% Senior Notes Due 2025
$500,000,000 3.788% Senior Notes due 2025
$4,000,000,000 3.755% Senior Notes due 2027
$1,500,000,000 4.054% Senior Notes due 2029
$5,000,000,000 4.279% Senior Notes due 2032
$4,500,000,000 5.050% Senior Notes due 2042
$7,000,000,000 5.141% Senior Notes due 2052
$3,000,000,000 5.391% Senior Notes due 2062
$500,000,000 Floating Rate Senior Notes due 2024
(Title of the Indenture Securities)
FORM T-1
| Item 1. | GENERAL INFORMATION. Furnish the following information as to the Trustee. |
| a) | Name and address of each examining or supervising authority to which it is subject. |
Comptroller of the Currency
Washington, D.C.
| b) | Whether it is authorized to exercise corporate trust powers. |
Yes
| Item 2. | AFFILIATIONS WITH THE OBLIGOR. If the obligor is an affiliate of the Trustee, describe each such affiliation. |
None
| Items 3-15 | Items 3-15 are not applicable because to the best of the Trustee’s knowledge, the obligor is not in default under any Indenture for which the Trustee acts as Trustee. |
| Item 16. | LIST OF EXHIBITS: List below all exhibits filed as a part of this statement of eligibility and qualification. |
| 1. | A copy of the Articles of Association of the Trustee, attached as Exhibit 1. |
| 2. | A copy of the certificate of authority of the Trustee to commence business, attached as Exhibit 2. |
| 3. | A copy of the authorization of the Trustee to exercise corporate trust powers, attached as Exhibit 2. |
| 4. | A copy of the existing bylaws of the Trustee, attached as Exhibit 3. |
| 5. | A copy of each Indenture referred to in Item 4. Not applicable. |
| 6. | The consent of the Trustee required by Section 321(b) of the Trust Indenture Act of 1939, attached as Exhibit 5. |
| 7. | Report of Condition of the Trustee as of December 31, 2022, published pursuant to law or the requirements of its supervising or examining authority, attached as Exhibit 6. |
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the Trustee, U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, a national banking association organized and existing under the laws of the United States of America, has duly caused this statement of eligibility and qualification to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of Boston, Commonwealth of Massachusetts on the 6th of February, 2023.
| By: | /s/ Karen R. Beard | |
| Karen R. Beard | ||
| Vice President |
Exhibit 1
ARTICLES OF ASSOCIATION
OF
U. S. BANK TRUST COMPANY, NATIONAL ASSOCIATION
For the purpose of organizing an association (the “Association) to perform any lawful activities of national banks, the undersigned enter into the following Articles of Association:
FIRST. The title of this Association shall be U. S. Bank Trust Company, National Association.
SECOND. The main office of the Association shall be in the city of Portland, county of Multnomah, state of Oregon. The business of the Association will be limited to fiduciary powers and the support of activities incidental to the exercise of those powers. The Association may not expand or alter its business beyond that stated in this article without the prior approval of the Comptroller of the Currency.
THIRD. The board of directors of the Association shall consist of not less than five nor more than twenty-five persons, the exact number to be fixed and determined from time to time by resolution of a majority of the full board of directors or by resolution of a majority of the shareholders at any annual or special meeting thereof. Each director shall own common or preferred stock of the Association or of a holding company owning the Association, with an aggregate par, fair market, or equity value of not less than $1,000, as of either (i) the date of purchase, (ii) the date the person became a director, or (iii) the date of that person’s most recent election to the board of directors, whichever is more recent. Any combination of common or preferred stock of the Association or holding company may be used.
Any vacancy in the board of directors may be filled by action of a majority of the remaining directors between meetings of shareholders. The board of directors may increase the number of directors up to the maximum permitted by law. Terms of directors, including directors selected to fill vacancies, shall expire at the next regular meeting of shareholders at which directors are elected, unless the directors resign or are removed from office. Despite the expiration of a director’s term, the director shall continue to serve until his or her successor is elected and qualified or until there is a decrease in the number of directors and his or her position is eliminated.
Honorary or advisory members of the board of directors, without voting power or power of final decision in matters concerning the business of the Association, may be appointed by resolution of a majority of the full board of directors, or by resolution of shareholders at any annual or special meeting. Honorary or advisory directors shall not be counted to determined the number of directors of the Association or the presence of a quorum in connection with any board action, and shall not be required to own qualifying shares.
FOURTH. There shall be an annual meeting of the shareholders to elect directors and transact whatever other business may be brought before the meeting. It shall be held at the main office or any other convenient place the board of directors may designate, on the day of each year specified therefor in the Bylaws, or if that day falls on a legal holiday in the state in which the
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Association is located, on the next following banking day. If no election is held on the day fixed or in the event of a legal holiday on the following banking day, an election may be held on any subsequent day within 60 days of the day fixed, to be designated by the board of directors, or, if the directors fail to fix the day, by shareholders representing two-thirds of the shares issued and outstanding. In all cases, at least 10 days’ advance notice of the meeting shall be given to the shareholders by first-class mail.
In all elections of directors, the number of votes each common shareholder may cast will be determined by multiplying the number of shares he or she owns by the number of directors to be elected. Those votes may be cumulated and cast for a single candidate or may be distributed among two or more candidates in the manner selected by the shareholder. On all other questions, each common shareholder shall be entitled to one vote for each share of stock held by him or her.
A director may resign at any time by delivering written notice to the board of directors, its chairperson, or to the Association, which resignation shall be effective when the notice is delivered unless the notice specifies a later effective date.
A director may be removed by the shareholders at a meeting called to remove him or her, when notice of the meeting stating that the purpose or one of the purposes is to remove him or her is provided, if there is a failure to fulfill one of the affirmative requirements for qualification, or for cause; provided, however, that a director may not be removed if the number of votes sufficient to elect him or her under cumulative voting is voted against his or her removal.
FIFTH. The authorized amount of capital stock of the Association shall be 1,000,000 shares of common stock of the par value of ten dollars ($10) each; but said capital stock may be increased or decreased from time to time, according to the provisions of the laws of the United States. The Association shall have only one class of capital stock.
No holder of shares of the capital stock of any class of the Association shall have any preemptive or preferential right of subscription to any shares of any class of stock of the Association, whether now or hereafter authorized, or to any obligations convertible into stock of the Association, issued, or sold, nor any right of subscription to any thereof other than such, if any, as the board of directors, in its discretion, may from time to time determine and at such price as the board of directors may from time to time fix.
Transfers of the Association’s stock are subject to the prior written approval of a federal depository institution regulatory agency. If no other agency approval is required, the approval of the Comptroller of the Currency must be obtained prior to any such transfers.
Unless otherwise specified in the Articles of Association or required by law, (1) all matters requiring shareholder action, including amendments to the Articles of Association must be approved by shareholders owning a majority voting interest in the outstanding voting stock, and (2) each shareholder shall be entitled to one vote per share.
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Unless otherwise specified in the Articles of Association or required by law, all shares of voting stock shall be voted together as a class, on any matters requiring shareholder approval.
Unless otherwise provided in the Bylaws, the record date for determining shareholders entitled to notice of and to vote at any meeting is the close of business on the day before the first notice is mailed or otherwise sent to the shareholders, provided that in no event may a record date be more than 70 days before the meeting.
The Association, at any time and from time to time, may authorize and issue debt obligations, whether subordinated, without the approval of the shareholders. Obligations classified as debt, whether subordinated, which may be issued by the Association without the approval of shareholders, do not carry voting rights on any issue, including an increase or decrease in the aggregate number of the securities, or the exchange or reclassification of all or part of securities into securities of another class or series.
SIXTH. The board of directors shall appoint one of its members president of this Association and one of its members chairperson of the board and shall have the power to appoint one or more vice presidents, a secretary who shall keep minutes of the directors’ and shareholders’ meetings and be responsible for authenticating the records of the Association, and such other officers and employees as may be required to transact the business of this Association. A duly appointed officer may appoint one or more officers or assistant officers if authorized by the board of directors in accordance with the Bylaws.
The board of directors shall have the power to:
| (1) | Define the duties of the officers, employees, and agents of the Association. |
| (2) | Delegate the performance of its duties, but not the responsibility for its duties, to the officers, employees, and agents of the Association. |
| (3) | Fix the compensation and enter employment contracts with its officers and employees upon reasonable terms and conditions consistent with applicable law. |
| (4) | Dismiss officers and employees. |
| (5) | Require bonds from officers and employees and to fix the penalty thereof. |
| (6) | Ratify written policies authorized by the Association’s management or committees of the board. |
| (7) | Regulate the manner any increase or decrease of the capital of the Association shall be made; provided that nothing herein shall restrict the power of shareholders to increase or decrease the capital of the Association in accordance with law, and nothing shall raise or lower from two-thirds the percentage required for shareholder approval to increase or reduce the capital. |
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| (8) | Manage and administer the business and affairs of the Association. |
| (9) | Adopt initial Bylaws, not inconsistent with law or the Articles of Association, for managing the business and regulating the affairs of the Association. |
| (10) | Amend or repeal Bylaws, except to the extent that the Articles of Association reserve this power in whole or in part to the shareholders. |
| (11) | Make contracts. |
| (12) | Generally perform all acts that are legal for a board of directors to perform. |
SEVENTH. The board of directors shall have the power to change the location of the main office to any authorized branch within the limits of the city of Portland, Oregon, without the approval of the shareholders, or with a vote of shareholders owning two-thirds of the stock of the Association for a location outside such limits and upon receipt of a certificate of approval from the Comptroller of the Currency, to any other location within or outside the limits of the city of Portland, Oregon, but not more than thirty miles beyond such limits. The board of directors shall have the power to establish or change the location of any office or offices of the Association to any other location permitted under applicable law, without approval of shareholders, subject to approval by the Comptroller of the Currency.
EIGHTH. The corporate existence of this Association shall continue until termination according to the laws of the United States.
NINTH. The board of directors of the Association, or any shareholder owning, in the aggregate, not less than 25 percent of the stock of the Association, may call a special meeting of shareholders at any time. Unless otherwise provided by the Bylaws or the laws of the United States, or waived by shareholders, a notice of the time, place, and purpose of every annual and special meeting of the shareholders shall be given by first-class mail, postage prepaid, mailed at least 10, and no more than 60, days prior to the date of the meeting to each shareholder of record at his/her address as shown upon the books of the Association. Unless otherwise provided by the Bylaws, any action requiring approval of shareholders must be effected at a duly called annual or special meeting.
TENTH. These Articles of Association may be amended at any regular or special meeting of the shareholders by the affirmative vote of the holders of a majority of the stock of the Association, unless the vote of the holders of a greater amount of stock is required by law, and in that case by the vote of the holders of such greater amount; provided, that the scope of the Association’s activities and services may not be expanded without the prior written approval of the Comptroller of the Currency. The Association’s board of directors may propose one or more amendments to the Articles of Association for submission to the shareholders.
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In witness whereof, we have hereunto set our hands this 11th of June, 1997.
| /s/ Jeffrey T. Grubb | ||
| Jeffrey T. Grubb | ||
| /s/ Robert D. Sznewajs | ||
| Robert D. Sznewajs | ||
| /s/ Dwight V. Board | ||
| Dwight V. Board | ||
| /s/ P. K. Chatterjee | ||
| P. K. Chatterjee | ||
| /s/ Robert Lane | ||
| Robert Lane | ||
Exhibit 2
|
Office of the Comptroller of the Currency
|
|||
| Washington, DC 20219 |
CERTIFICATE OF CORPORATE EXISTENCE AND FIDUCIARY POWERS
I, Michael J. Hsu, Acting Comptroller of the Currency, do hereby certify that:
1. The Comptroller of the Currency, pursuant to Revised Statutes 324, et seq, as amended, and 12 USC 1, et seq, as amended, has possession, custody, and control of all records pertaining to the chartering, regulation, and supervision of all national banking associations.
2. “U.S. Bank Trust Company, National Association,” Portland, Oregon (Charter No. 23412), is a national banking association formed under the laws of the United States and is authorized thereunder to transact the business of banking and exercise fiduciary powers on the date of this certificate.
IN TESTIMONY WHEREOF, today, January 6, 2023, I have hereunto subscribed my name and caused my seal of office to be affixed to these presents at the U.S. Department of the Treasury, in the City of Washington, District of Columbia.
|
||||
| Acting Comptroller of the Currency |
2023-00337-C
Exhibit 3
U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION
AMENDED AND RESTATED BYLAWS
ARTICLE I
Meetings of Shareholders
Section 1.1. Annual Meeting. The annual meeting of the shareholders, for the election of directors and the transaction of any other proper business, shall be held at a time and place as the Chairman or President may designate. Notice of such meeting shall be given not less than ten (10) days or more than sixty (60) days prior to the date thereof, to each shareholder of the Association, unless the Office of the Comptroller of the Currency (the “OCC”) determines that an emergency circumstance exists. In accordance with applicable law, the sole shareholder of the Association is permitted to waive notice of the meeting. If, for any reason, an election of directors is not made on the designated day, the election shall be held on some subsequent day, as soon thereafter as practicable, with prior notice thereof. Failure to hold an annual meeting as required by these Bylaws shall not affect the validity of any corporate action or work a forfeiture or dissolution of the Association.
Section 1.2. Special Meetings. Except as otherwise specially provided by law, special meetings of the shareholders may be called for any purpose, at any time by a majority of the board of directors (the “Board”), or by any shareholder or group of shareholders owning at least ten percent of the outstanding stock.
Every such special meeting, unless otherwise provided by law, shall be called upon not less than ten (10) days nor more than sixty (60) days prior notice stating the purpose of the meeting.
Section 1.3. Nominations for Directors. Nominations for election to the Board may be made by the Board or by any shareholder.
Section 1.4. Proxies. Shareholders may vote at any meeting of the shareholders by proxies duly authorized in writing. Proxies shall be valid only for one meeting and any adjournments of such meeting and shall be filed with the records of the meeting.
Section 1.5. Record Date. The record date for determining shareholders entitled to notice and to vote at any meeting will be thirty days before the date of such meeting, unless otherwise determined by the Board.
Section 1.6. Quorum and Voting. A majority of the outstanding capital stock, represented in person or by proxy, shall constitute a quorum at any
meeting of shareholders, unless otherwise provided by law, but less than a quorum may adjourn any meeting, from time to time, and the meeting may be held as adjourned without further notice. A majority of the votes cast shall decide every question or matter submitted to the shareholders at any meeting, unless otherwise provided by law or by the Articles of Association.
Section 1.7. Inspectors. The Board may, and in the event of its failure so to do, the Chairman of the Board may appoint Inspectors of Election who shall determine the presence of quorum, the validity of proxies, and the results of all elections and all other matters voted upon by shareholders at all annual and special meetings of shareholders.
Section 1.8. Waiver and Consent. The shareholders may act without notice or a meeting by a unanimous written consent by all shareholders.
Section 1.9. Remote Meetings. The Board shall have the right to determine that a shareholder meeting not be held at a place, but instead be held solely by means of remote communication in the manner and to the extent permitted by the General Corporation Law of the State of Delaware.
ARTICLE II
Directors
Section 2.1. Board of Directors. The Board shall have the power to manage and administer the business and affairs of the Association. Except as expressly limited by law, all corporate powers of the Association shall be vested in and may be exercised by the Board.
Section 2.2. Term of Office. The directors of this Association shall hold office for one year and until their successors are duly elected and qualified, or until their earlier resignation or removal.
Section 2.3. Powers. In addition to the foregoing, the Board shall have and may exercise all of the powers granted to or conferred upon it by the Articles of Association, the Bylaws and by law.
Section 2.4. Number. As provided in the Articles of Association, the Board of this Association shall consist of no less than five nor more than twenty-five members, unless the OCC has exempted the Association from the twenty-five- member limit. The Board shall consist of a number of members to be fixed and determined from time to time by resolution of the Board or the shareholders at any meeting thereof, in accordance with the Articles of Association. Between meetings of the shareholders held for the purpose of electing directors, the Board
by a majority vote of the full Board may increase the size of the Board but not to more than a total of twenty-five directors, and fill any vacancy so created in the Board; provided that the Board may increase the number of directors only by up to two directors, when the number of directors last elected by shareholders was fifteen or fewer, and by up to four directors, when the number of directors last elected by shareholders was sixteen or more. Each director shall own a qualifying equity interest in the Association or a company that has control of the Association in each case as required by applicable law. Each director shall own such qualifying equity interest in his or her own right and meet any minimum threshold ownership required by applicable law.
Section 2.5. Organization Meeting. The newly elected Board shall meet for the purpose of organizing the new Board and electing and appointing such officers of the Association as may be appropriate. Such meeting shall be held on the day of the election or as soon thereafter as practicable, and, in any event, within thirty days thereafter, at such time and place as the Chairman or President may designate. If, at the time fixed for such meeting, there shall not be a quorum present, the directors present may adjourn the meeting until a quorum is obtained.
Section 2.6. Regular Meetings. The regular meetings of the Board shall be held, without notice, as the Chairman or President may designate and deem suitable.
Section 2.7. Special Meetings. Special meetings of the Board may be called at any time, at any place and for any purpose by the Chairman of the Board or the President of the Association, or upon the request of a majority of the entire Board. Notice of every special meeting of the Board shall be given to the directors at their usual places of business, or at such other addresses as shall have been furnished by them for the purpose. Such notice shall be given at least twelve hours (three hours if meeting is to be conducted by conference telephone) before the meeting by telephone or by being personally delivered, mailed, or electronically delivered. Such notice need not include a statement of the business to be transacted at, or the purpose of, any such meeting.
Section 2.8. Quorum and Necessary Vote. A majority of the directors shall constitute a quorum at any meeting of the Board, except when otherwise provided by law; but less than a quorum may adjourn any meeting, from time to time, and the meeting may be held as adjourned without further notice. Unless otherwise provided by law or the Articles or Bylaws of this Association, once a quorum is established, any act by a majority of those directors present and voting shall be the act of the Board.
Section 2.9. Written Consent. Except as otherwise required by applicable laws and regulations, the Board may act without a meeting by a unanimous written consent by all directors, to be filed with the Secretary of the Association as part of the corporate records.
Section 2.10. Remote Meetings. Members of the Board, or of any committee thereof, may participate in a meeting of such Board or committee by means of conference telephone, video or similar communications equipment by means of which all persons participating in the meeting can hear each other and such participation shall constitute presence in person at such meeting.
Section 2.11. Vacancies. When any vacancy occurs among the directors, the remaining members of the Board may appoint a director to fill such vacancy at any regular meeting of the Board, or at a special meeting called for that purpose.
ARTICLE III
Committees
Section 3.1. Advisory Board of Directors. The Board may appoint persons, who need not be directors, to serve as advisory directors on an advisory board of directors established with respect to the business affairs of either this Association alone or the business affairs of a group of affiliated organizations of which this Association is one. Advisory directors shall have such powers and duties as may be determined by the Board, provided, that the Board’s responsibility for the business and affairs of this Association shall in no respect be delegated or diminished.
Section 3.2. Trust Audit Committee. At least once during each calendar year, the Association shall arrange for a suitable audit (by internal or external auditors) of all significant fiduciary activities under the direction of its trust audit committee, a function that will be fulfilled by the Audit Committee of the financial holding company that is the ultimate parent of this Association. The Association shall note the results of the audit (including significant actions taken as a result of the audit) in the minutes of the Board. In lieu of annual audits, the Association may adopt a continuous audit system in accordance with 12 C.F.R. § 9.9(b).
The Audit Committee of the financial holding company that is the ultimate parent of this Association, fulfilling the function of the trust audit committee:
(1) Must not include any officers of the Association or an affiliate who participate significantly in the administration of the Association’s fiduciary activities; and
(2) Must consist of a majority of members who are not also members of any committee to which the Board has delegated power to manage and control the fiduciary activities of the Association.
Section 3.3. Executive Committee. The Board may appoint an Executive Committee which shall consist of at least three directors and which shall have, and may exercise, to the extent permitted by applicable law, all the powers of the Board between meetings of the Board or otherwise when the Board is not meeting.
Section 3.4. Trust Management Committee. The Board of this Association shall appoint a Trust Management Committee to provide oversight of the fiduciary activities of the Association. The Trust Management Committee shall determine policies governing fiduciary activities. The Trust Management Committee or such sub-committees, officers or others as may be duly designated by the Trust Management Committee shall oversee the processes related to fiduciary activities to assure conformity with fiduciary policies it establishes, including ratifying the acceptance and the closing out or relinquishment of all trusts. The Trust Management Committee will provide regular reports of its activities to the Board.
Section 3.5. Other Committees. The Board may appoint, from time to time, committees of one or more persons who need not be directors, for such purposes and with such powers as the Board may determine; however, the Board will not delegate to any committee any powers or responsibilities that it is prohibited from delegating under any law or regulation. In addition, either the Chairman or the President may appoint, from time to time, committees of one or more officers, employees, agents or other persons, for such purposes and with such powers as either the Chairman or the President deems appropriate and proper. Whether appointed by the Board, the Chairman, or the President, any such committee shall at all times be subject to the direction and control of the Board.
Section 3.6. Meetings, Minutes and Rules. An advisory board of directors and/or committee shall meet as necessary in consideration of the purpose of the advisory board of directors or committee, and shall maintain minutes in sufficient detail to indicate actions taken or recommendations made; unless required by the members, discussions, votes or other specific details need not be reported. An advisory board of directors or a committee may, in consideration of its purpose, adopt its own rules for the exercise of any of its functions or authority.
ARTICLE IV
Officers
Section 4.1. Chairman of the Board. The Board may appoint one of its members to be Chairman of the Board to serve at the pleasure of the Board. The Chairman shall supervise the carrying out of the policies adopted or approved by the Board; shall have general executive powers, as well as the specific powers conferred by these Bylaws; and shall also have and may exercise such powers and duties as from time to time may be conferred upon or assigned by the Board.
Section 4.2. President. The Board may appoint one of its members to be President of the Association. In the absence of the Chairman, the President shall preside at any meeting of the Board. The President shall have general executive powers, and shall have and may exercise any and all other powers and duties pertaining by law, regulation or practice, to the office of President, or imposed by these Bylaws. The President shall also have and may exercise such powers and duties as from time to time may be conferred or assigned by the Board.
Section 4.3. Vice President. The Board may appoint one or more Vice Presidents who shall have such powers and duties as may be assigned by the Board and to perform the duties of the President on those occasions when the President is absent, including presiding at any meeting of the Board in the absence of both the Chairman and President.
Section 4.4. Secretary. The Board shall appoint a Secretary, or other designated officer who shall be Secretary of the Board and of the Association, and shall keep accurate minutes of all meetings. The Secretary shall attend to the giving of all notices required by these Bylaws to be given; shall be custodian of the corporate seal, records, documents and papers of the Association; shall provide for the keeping of proper records of all transactions of the Association; shall, upon request, authenticate any records of the Association; shall have and may exercise any and all other powers and duties pertaining by law, regulation or practice, to the Secretary, or imposed by these Bylaws; and shall also perform such other duties as may be assigned from time to time by the Board. The Board may appoint one or more Assistant Secretaries with such powers and duties as the Board, the President or the Secretary shall from time to time determine.
Section 4.5. Other Officers. The Board may appoint, and may authorize the Chairman, the President or any other officer to appoint, any officer as from time to time may appear to the Board, the Chairman, the President or such other
officer to be required or desirable to transact the business of the Association. Such officers shall exercise such powers and perform such duties as pertain to their several offices, or as may be conferred upon or assigned to them by these Bylaws, the Board, the Chairman, the President or such other authorized officer. Any person may hold two offices.
Section 4.6. Tenure of Office. The Chairman or the President and all other officers shall hold office until their respective successors are elected and qualified or until their earlier death, resignation, retirement, disqualification or removal from office, subject to the right of the Board or authorized officer to discharge any officer at any time.
ARTICLE V
Stock
Section 5.1. The Board may authorize the issuance of stock either in certificated or in uncertificated form. Certificates for shares of stock shall be in such form as the Board may from time to time prescribe. If the Board issues certificated stock, the certificate shall be signed by the President, Secretary or any other such officer as the Board so determines. Shares of stock shall be transferable on the books of the Association, and a transfer book shall be kept in which all transfers of stock shall be recorded. Every person becoming a shareholder by such transfer shall, in proportion to such person’s shares, succeed to all rights of the prior holder of such shares. Each certificate of stock shall recite on its face that the stock represented thereby is transferable only upon the books of the Association properly endorsed. The Board may impose conditions upon the transfer of the stock reasonably calculated to simplify the work of the Association for stock transfers, voting at shareholder meetings, and related matters, and to protect it against fraudulent transfers.
ARTICLE VI
Corporate Seal
Section 6.1. The Association shall have no corporate seal; provided, however, that if the use of a seal is required by, or is otherwise convenient or advisable pursuant to, the laws or regulations of any jurisdiction, the following seal may be used, and the Chairman, the President, the Secretary and any Assistant Secretary shall have the authority to affix such seal:
ARTICLE VII
Miscellaneous Provisions
Section 7.1. Execution of Instruments. All agreements, checks, drafts, orders, indentures, notes, mortgages, deeds, conveyances, transfers, endorsements, assignments, certificates, declarations, receipts, discharges, releases, satisfactions, settlements, petitions, schedules, accounts, affidavits, bonds, undertakings, guarantees, proxies and other instruments or documents may be signed, countersigned, executed, acknowledged, endorsed, verified, delivered or accepted on behalf of the Association, whether in a fiduciary capacity or otherwise, by any officer of the Association, or such employee or agent as may be designated from time to time by the Board by resolution, or by the Chairman or the President by written instrument, which resolution or instrument shall be certified as in effect by the Secretary or an Assistant Secretary of the Association. The provisions of this section are supplementary to any other provision of the Articles of Association or Bylaws.
Section 7.2. Records. The Articles of Association, the Bylaws as revised or amended from time to time and the proceedings of all meetings of the shareholders, the Board, and standing committees of the Board, shall be recorded in appropriate minute books provided for the purpose. The minutes of each meeting shall be signed by the Secretary, or other officer appointed to act as Secretary of the meeting.
Section 7.3. Trust Files. There shall be maintained in the Association files all fiduciary records necessary to assure that its fiduciary responsibilities have been properly undertaken and discharged.
Section 7.4. Trust Investments. Funds held in a fiduciary capacity shall be invested according to the instrument establishing the fiduciary relationship and according to law. Where such instrument does not specify the character and class of investments to be made and does not vest in the Association a discretion in the matter, funds held pursuant to such instrument shall be invested in investments in which corporate fiduciaries may invest under law.
Section 7.5. Notice. Whenever notice is required by the Articles of Association, the Bylaws or law, such notice shall be by mail, postage prepaid, e- mail, in person, or by any other means by which such notice can reasonably be expected to be received, using the address of the person to receive such notice, or such other personal data, as may appear on the records of the Association.
Except where specified otherwise in these Bylaws, prior notice shall be proper if given not more than 30 days nor less than 10 days prior to the event for which notice is given.
ARTICLE VIII
Indemnification
Section 8.1. The Association shall indemnify such persons for such liabilities in such manner under such circumstances and to such extent as permitted by Section 145 of the Delaware General Corporation Law, as now enacted or hereafter amended. The Board may authorize the purchase and maintenance of insurance and/or the execution of individual agreements for the purpose of such indemnification, and the Association shall advance all reasonable costs and expenses (including attorneys’ fees) incurred in defending any action, suit or proceeding to all persons entitled to indemnification under this Section 8.1. Such insurance shall be consistent with the requirements of 12 C.F.R. § 7.2014 and shall exclude coverage of liability for a formal order assessing civil money penalties against an institution-affiliated party, as defined at 12 U.S.C. § 1813(u).
Section 8.2. Notwithstanding Section 8.1, however, (a) any indemnification payments to an institution-affiliated party, as defined at 12 U.S.C. § 1813(u), for an administrative proceeding or civil action initiated by a federal banking agency, shall be reasonable and consistent with the requirements of 12 U.S.C. § 1828(k) and the implementing regulations thereunder; and (b) any indemnification payments and advancement of costs and expenses to an institution-affiliated party, as defined at 12 U.S.C. § 1813(u), in cases involving an administrative proceeding or civil action not initiated by a federal banking agency, shall be in accordance with Delaware General Corporation Law and consistent with safe and sound banking practices.
ARTICLE IX
Bylaws: Interpretation and Amendment
Section 9.1. These Bylaws shall be interpreted in accordance with and subject to appropriate provisions of law, and may be added to, altered, amended, or repealed, at any regular or special meeting of the Board.
Section 9.2. A copy of the Bylaws and all amendments shall at all times be kept in a convenient place at the principal office of the Association, and shall be open for inspection to all shareholders during Association hours.
ARTICLE X
Miscellaneous Provisions
Section 10.1. Fiscal Year. The fiscal year of the Association shall begin on the first day of January in each year and shall end on the thirty-first day of December following.
Section 10.2. Governing Law. This Association designates the Delaware General Corporation Law, as amended from time to time, as the governing law for its corporate governance procedures, to the extent not inconsistent with Federal banking statutes and regulations or bank safety and soundness.
***
(February 8, 2021)
Exhibit 5
CONSENT
In accordance with Section 321(b) of the Trust Indenture Act of 1939, the undersigned, U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION hereby consents that reports of examination of the undersigned by Federal, State, Territorial or District authorities may be furnished by such authorities to the Securities and Exchange Commission upon its request therefor.
Dated: February 6, 2023
| By: | /s/ Karen R. Beard | |
| Karen R. Beard | ||
| Vice President |
Exhibit 6
U.S. Bank Trust Company, National Association
Statement of Financial Condition
as of 12/31/2022
($000’s)
| 12/31/2022 | ||||
| Assets |
||||
| Cash and Balances Due From |
$ | 741,758 | ||
| Depository Institutions |
||||
| Securities |
4,322 | |||
| Federal Funds |
0 | |||
| Loans & Lease Financing Receivables |
0 | |||
| Fixed Assets |
2,186 | |||
| Intangible Assets |
581,108 | |||
| Other Assets |
163,734 | |||
|
|
|
|||
| Total Assets |
$ | 1,493,108 | ||
| Liabilities |
||||
| Deposits |
$ | 0 | ||
| Fed Funds |
0 | |||
| Treasury Demand Notes |
0 | |||
| Trading Liabilities |
0 | |||
| Other Borrowed Money |
0 | |||
| Acceptances |
0 | |||
| Subordinated Notes and Debentures |
0 | |||
| Other Liabilities |
107,167 | |||
|
|
|
|||
| Total Liabilities |
$ | 107,167 | ||
| Equity |
||||
| Common and Preferred Stock |
200 | |||
| Surplus |
1,171,635 | |||
| Undivided Profits |
214,106 | |||
| Minority Interest in Subsidiaries |
0 | |||
|
|
|
|||
| Total Equity Capital |
$ | 1,385,941 | ||
| Total Liabilities and Equity Capital |
$ | 1,493,108 | ||
Exhibit 99.1
LETTER OF TRANSMITTAL
FOR
WarnerMedia Holdings, Inc.
OFFER TO EXCHANGE ANY AND ALL OUTSTANDING
3.428% SENIOR NOTES DUE 2024, ISSUED ON MARCH 15, 2022,
3.528% SENIOR NOTES DUE 2024, ISSUED ON MARCH 15, 2022,
3.638% SENIOR NOTES DUE 2025, ISSUED ON MARCH 15, 2022,
3.788% SENIOR NOTES DUE 2025, ISSUED ON MARCH 15, 2022,
3.755% SENIOR NOTES DUE 2027, ISSUED ON MARCH 15, 2022,
4.054% SENIOR NOTES DUE 2029, ISSUED ON MARCH 15, 2022,
4.279% SENIOR NOTES DUE 2032, ISSUED ON MARCH 15, 2022,
5.050% SENIOR NOTES DUE 2042, ISSUED ON MARCH 15, 2022,
5.141% SENIOR NOTES DUE 2052, ISSUED ON MARCH 15, 2022,
5.391% SENIOR NOTES DUE 2062, ISSUED ON MARCH 15, 2022, AND
FLOATING RATE SENIOR NOTES DUE 2024, ISSUED ON MARCH 15, 2022,
FOR
A LIKE PRINCIPAL AMOUNT OF CORRESPONDING 3.428% SENIOR NOTES DUE 2024, 3.528% SENIOR NOTES DUE 2024, 3.638% SENIOR NOTES DUE 2025, 3.788% SENIOR NOTES DUE 2025, 3.755% SENIOR NOTES DUE 2027, 4.054% SENIOR NOTES DUE 2029, 4.279% SENIOR NOTES DUE 2032, 5.050% SENIOR NOTES DUE 2042, 5.141% SENIOR NOTES DUE 2052, 5.391% SENIOR NOTES DUE 2062, AND FLOATING RATE SENIOR NOTES DUE 2024, RESPECTIVELY, WHICH HAVE
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
THE EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME, ON , 2023 UNLESS EXTENDED (SUCH TIME AND DATE AS TO THE EXCHANGE OFFER, AS THE SAME MAY BE EXTENDED, THE “EXPIRATION DATE”). TENDERS MAY BE WITHDRAWN PRIOR TO 5:00 P.M., NEW YORK CITY TIME, ON THE EXPIRATION DATE.
The Exchange Agent for the Exchange Offer is:
U.S. Bank Trust Company, National Association
| By registered or certified mail, hand delivery or overnight courier: |
By facsimile (for Eligible Institutions Only): |
To Confirm by Telephone or for Information call: | ||
| U.S. Bank Trust Company, National Association Corporate Actions |
Facsimile: (651) 466-7367 | (800) 934-6802 | ||
| 111 Fillmore Avenue St. Paul, MN 55107-1402 |
DELIVERY OF THIS LETTER OF TRANSMITTAL TO AN ADDRESS, OR TRANSMISSION OF INSTRUCTIONS VIA FACSIMILE TO A NUMBER, OTHER THAN AS SET FORTH ABOVE WILL NOT CONSTITUTE A VALID DELIVERY. THE INSTRUCTIONS ACCOMPANYING THIS LETTER OF TRANSMITTAL SHOULD BE READ CAREFULLY BEFORE THIS LETTER OF TRANSMITTAL IS COMPLETED. YOU MUST SIGN THIS LETTER OF TRANSMITTAL IN THE APPROPRIATE SPACE PROVIDED THEREFOR, WITH SIGNATURE GUARANTEE IF REQUIRED, AND COMPLETE THE ACCOMPANYING IRS FORM W-9 INCLUDED HEREIN OR PROVIDED AN APPROPRIATE IRS FORM W-8, AS APPLICABLE. SEE INSTRUCTION 8.
DESCRIPTION OF OLD NOTES (See Instruction 2 and 3.) List below the Old Notes (as defined below) to which this Letter of Transmittal relates.
| Name(s) and Address(es) of Registered Owner(s) (Please Fill in, if Blank, Exactly as Name(s) Appear(s) on the Old Note(s)) |
Certificate Number (s)(*) |
Aggregate Principal Amount of Old Notes (*) |
Principal Amount Tendered (**) | |||||
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☐ 3.428% Senior Notes due 2024 |
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☐ 3.528% Senior Notes due 2024 |
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☐ 3.638% Senior Notes due 2025 |
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☐ 3.788% Senior Notes due 2025 |
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☐ 3.755% Senior Notes due 2027 |
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☐ 4.054% Senior Notes due 2029 |
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☐ 4.279% Senior Notes due 2032 |
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☐ 5.050% Senior Notes due 2042 |
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☐ 5.141% Senior Notes due 2052 |
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☐ 5.391% Senior Notes due 2062 |
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☐ Floating Rate Senior Notes due 2024 |
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| Total Principal Amount | ||||||||
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(*) Need not be completed if Old Notes are being transferred by book-entry transfer. (**) Unless otherwise indicated, it will be assumed that ALL Old Notes described above are being tendered. See Instruction 3. | ||||||||
The undersigned acknowledges that he, she or it has received the prospectus, dated , 2023 (as the same may be amended, supplemented or modified from time to time, the “Prospectus”), of WarnerMedia Holdings, Inc. (f/k/a/ Magallanes, Inc.), a Delaware corporation (the “Issuer”), and this Letter of Transmittal (or a facsimile thereof, the “Letter of Transmittal”), which together constitute the Issuer’s offer (the “Exchange Offer”) to exchange up to $1,750,000,000 aggregate principal amount of its 3.428% Senior Notes due 2024 (the “Old 2024 Senior Notes”), up to $500,000,000 aggregate principal amount of its 3.528% Senior Notes due 2024 (the “Old 2024 NC1 Senior Notes”), up to $1,750,000,000 aggregate principal amount of its 3.638% Senior Notes due 2025 (the “Old 2025 Senior Notes”), up to $500,000,000 aggregate principal amount of its 3.788% Senior Notes due 2025 (the “Old 2025 NC1 Senior Notes”), up to $4,000,000,000 aggregate principal amount of its 3.755% Senior Notes due 2027 (the “Old 2027 Senior Notes”), up to $1,500,000,000 aggregate principal amount of its 4.054% Senior Notes due 2029 (the “Old 2029 Senior Notes”), up to $5,000,000,000 aggregate principal amount of its 4.279% Senior Notes due 2032 (the “Old 2032 Senior Notes”), up to $4,500,000,000 aggregate principal amount of its 5.050% Senior Notes due 2042 (the “Old 2042 Senior Notes”), up to $7,000,000,000 aggregate principal amount of its 5.141% Senior Notes due 2052 (the “Old 2052 Senior Notes”), up to $3,000,000,000 aggregate principal amount of its 5.391% Senior Notes due 2062 (the “Old 2062 Senior Notes”) and up to $500,000,000 aggregate principal amount of its Floating Rate Senior Notes due 2024 (the “Old Floating Rate Senior Notes” and together with the Old 2024 Senior Notes, the Old 2024 NC1 Senior Notes, the Old 2025 Senior Notes, the Old 2025 NC1 Senior Notes, the Old 2027 Senior Notes, the Old 2029 Senior Notes, the Old 2032 Senior Notes, the Old 2042 Senior Notes, the Old 2052 Senior Notes and the Old 2062 Senior Notes, the “Old Notes”), for a like principal amount of its 3.428% Senior Notes due 2024 (the “New 2024 Senior Notes”), 3.528% Senior Notes due 2024 (the “New 2024 NC1 Senior Notes”), 3.638% Senior Notes due 2025 (the “New 2025 Senior Notes”), 3.788% Senior Notes due 2025 (the “New 2025 NC1 Senior Notes”), 3.755% Senior Notes due 2027 (the “New 2027 Senior Notes”), 4.054% Senior Notes due 2029 (the “New 2029 Senior Notes”), 4.279% Senior Notes due 2032 (the “New 2032 Senior Notes”), 5.050% Senior Notes due 2042 (the “New 2042 Senior Notes”), 5.141% Senior Notes due 2052 (the “New 2052 Senior Notes”), 5.391% Senior Notes due 2062 (the “New 2062 Senior Notes”) and Floating Rate Senior Notes due 2024 (the “New Floating Rate Senior Notes” and together with the New 2024 Senior Notes, the New 2024 NC1 Senior Notes, the New 2025 Senior Notes, the New 2025 NC1 Senior Notes, the New 2027 Senior Notes, the New 2029 Senior Notes, the New 2032 Senior Notes, the New 2042 Senior Notes, the New 2052 Senior Notes and the New 2062 Senior Notes, the “New Notes”) respectively, which have been registered under the Securities Act of 1933, as amended (the “Securities Act”), from the registered holders thereof (each, a “Holder” and, collectively, the “Holders”), upon the terms and subject to the conditions of the Exchange Offer, as set forth in the Prospectus and this Letter of Transmittal.
In the event of any conflict between the Prospectus and the Letter of Transmittal, the Prospectus shall govern. Terms used but not defined herein shall have the same meanings given to them in the Prospectus.
For each Old Note of each series accepted for exchange, the Holder of such Old Note will receive a New Note of the corresponding series having a principal amount equal to that of the surrendered Old Note of such series. The New Notes of each series will accrue interest from the last interest payment date on which interest was paid on the Old Notes of the corresponding series. Accordingly, registered Holders of New Notes of each series on the relevant record date for the first interest payment date following the consummation of the Exchange Offer will receive interest accruing from the last interest payment date on which interest was paid on the Old Notes of the corresponding series. Old Notes accepted for exchange will cease to accrue interest from and after the date of consummation of the Exchange Offer. Holders of Old Notes whose Old Notes are accepted for exchange will not receive any payment in respect of accrued interest on such Old Notes otherwise payable on any interest payment date the record date for which occurs on or after consummation of the Exchange Offer.
This Letter of Transmittal is to be completed by a Holder of Old Notes either if certificates are to be forwarded herewith or if a tender of certificates for Old Notes, if available, is to be made by book-entry transfer (the “Book-Entry Transfer Facility”) to the account maintained by the Exchange Agent at The Depository Trust Company (“DTC”) pursuant to the procedures set forth in “The Exchange Offer—Book-Entry Transfer” section of the Prospectus and an Agent’s Message (as defined below) is not delivered. Holders of Old Notes whose certificates are not immediately available or who are unable to deliver their certificates or confirmation of the book-entry tender of their Old Notes into the Exchange Agent’s account at the Book-Entry Transfer Facility (a “Book-Entry Confirmation”) and all other documents required by this Letter of Transmittal to the Exchange Agent on or prior to the Expiration Date, must tender their Old Notes according to the guaranteed delivery procedures set forth in “The Exchange Offer—Guaranteed Delivery Procedures” section of the Prospectus. See Instruction 1. DELIVERY OF DOCUMENTS TO THE BOOK-ENTRY TRANSFER FACILITY DOES NOT CONSTITUTE DELIVERY TO THE EXCHANGE AGENT.
MUTILATED, LOST, STOLEN OR DESTROYED NOTES
| ☐ | CHECK HERE IF ANY OF THE CERTIFICATES REPRESENTING NOTES THAT YOU OWN HAVE BEEN MUTILATED, LOST, STOLEN OR DESTROYED AND SEE INSTRUCTION 9. |
BOOK-ENTRY TRANSFER
| ☐ | CHECK HERE IF TENDERED NOTES ARE BEING DELIVERED BY BOOK-ENTRY TRANSFER MADE TO AN ACCOUNT MAINTAINED BY THE EXCHANGE AGENT WITH THE BOOK-ENTRY TRANSFER FACILITY AND COMPLETE THE FOLLOWING (ONLY PARTICIPANTS IN THE BOOK-ENTRY TRANSFER FACILITY MAY DELIVER NOTES BY BOOK-ENTRY TRANSFER): |
| Name(s) of Tendering Institution(s) |
| Account Number(s) |
| Transaction Code Number(s) |
GUARANTEED DELIVERY
| ☐ | CHECK HERE IF TENDERED NOTES ARE BEING DELIVERED PURSUANT TO A NOTICE OF GUARANTEED DELIVERY PREVIOUSLY SENT TO THE EXCHANGE AGENT AND COMPLETE THE FOLLOWING. (PLEASE ENCLOSE A PHOTOCOPY OF SUCH NOTICE OF GUARANTEED DELIVERY): |
| Name(s) of Registered Holder(s) |
| Window Ticket Number (if any) |
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Date of Execution of Notice of Guaranteed Delivery |
| Name of Institution that Guaranteed Delivery |
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If delivered by book-entry transfer: |
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Account Number at Book-Entry Transfer Facility |
| Transaction Code Number |
| ☐ | CHECK HERE IF YOU ARE A BROKER-DEALER ENTITLED, PURSUANT TO THE TERMS OF THE REGISTRATION RIGHTS AGREEMENT RELATING TO THE OLD NOTES REFERRED TO IN THE PROSPECTUS, TO RECEIVE, AND WISH TO RECEIVE, TEN (10) ADDITIONAL COPIES OF THE PROSPECTUS AND TEN (10) ADDITIONAL COPIES OF ANY AMENDMENTS OR SUPPLEMENTS THERETO WITHIN 40 DAYS AFTER THE EXPIRATION DATE. |
| Name |
| Address |
| Number of Copies Requested |
If the undersigned is not a broker-dealer, the undersigned represents that it acquired the New Notes in the ordinary course of its business, it is not engaged in, and does not intend to engage in, a distribution of New Notes, and it has no arrangements or understandings with any person to participate in a distribution of the New Notes. If the undersigned is a broker-dealer that will receive New Notes for its own account in exchange for Old Notes, it represents that the Old Notes to be exchanged for New Notes were acquired by it as a result of market-making activities or other trading activities and acknowledges that it will deliver a prospectus in connection with any resale of such New Notes; however, by so acknowledging and by delivering a prospectus, the undersigned will not be deemed to admit that it is an “underwriter” within the meaning of the Securities Act. In addition, such broker-dealer represents that it is not acting on behalf of any person who could not truthfully make the foregoing representations.
NOTE: SIGNATURES MUST BE PROVIDED BELOW. PLEASE READ THE ACCOMPANYING
INSTRUCTIONS CAREFULLY.
LADIES AND GENTLEMEN:
Upon the terms and subject to the conditions of the Exchange Offer, the undersigned hereby tenders to the Issuer the aggregate principal amount of Old Notes described above. Subject to, and effective upon, the acceptance for exchange of the Old Notes tendered hereby, the undersigned hereby sells, assigns and transfers to, or upon the order of, the Issuer all right, title and interest in and to such Old Notes as are being tendered hereby.
The undersigned hereby irrevocably constitutes and appoints the Exchange Agent as the undersigned’s true and lawful agent, attorney-in-fact and proxy with respect to Old Notes tendered hereby, with full power of substitution (such power of attorney being deemed to be an irrevocable power coupled with an interest), among other things, to cause the Old Notes to be assigned, transferred and exchanged.
The undersigned hereby represents and warrants (a) that the undersigned has full power and authority to tender, sell, assign and transfer the Old Notes, (b) that when such Old Notes are accepted for exchange, the Issuer will acquire good and unencumbered title to such Old Notes, free and clear of all liens, restrictions, charges and encumbrances and not subject to any adverse claim and such Old Notes will not have been transferred to the Issuer in violation of any contractual or other restriction on the transfer thereof, (c) that any New Notes acquired in exchange for Old Notes tendered hereby will have been acquired in the ordinary course of business of the person receiving such New Notes, whether or not such person is the undersigned, (d) that neither the Holder of such Old Notes nor any such other person is participating in, intends to participate in, or has an arrangement or understanding with any person to participate in the distribution (within the meaning of the Securities Act) of Old Notes or New Notes, (e) that neither the Holder of such Old Notes nor any such other person is an “affiliate,” as defined in Rule 405 under the Securities Act, of the Issuer and (f) that neither the Holder of such Old Notes nor such other person is acting on behalf of any person who could not truthfully make the foregoing representations and warranties.
The undersigned acknowledges that the Exchange Offer is being made in reliance on interpretations by the staff of the U.S. Securities and Exchange Commission (the “SEC”), as set forth in no-action letters issued to third parties, that the New Notes issued pursuant to the Exchange Offer in exchange for the Old Notes may be offered for resale, resold and otherwise transferred by Holders thereof (other than any such Holder that is a broker-dealer or an “affiliate” of the Issuer within the meaning of Rule 405 of the Securities Act), without compliance with the registration and prospectus delivery provisions of the Securities Act, provided that such New Notes are acquired in the ordinary course of such Holder’s business, at the time of commencement of the Exchange Offer such Holder has no arrangement or understanding with any person to participate in a distribution of such New Notes, and such Holder is not engaged in, and does not intend to engage in, a distribution of such New Notes. However, the SEC has not considered the Exchange Offer in the context of a no-action letter, and there can be no assurance that the staff of the SEC would make a similar determination with respect to the Exchange Offer as made in other circumstances. If the undersigned is not a broker-dealer, the undersigned represents that it is not engaged in, and does not intend to engage in a distribution of New Notes and has no arrangement or understanding to participate in a distribution of New Notes. If the undersigned is a broker-dealer that will receive New Notes for its own account in exchange for Old Notes, it represents that the Old Notes to be exchanged for the New Notes were acquired by it as a result of market-making activities or other trading activities and acknowledges that it will deliver a prospectus meeting the requirements of the Securities Act in connection with any resale of such New Notes; however, by so acknowledging and by delivering a prospectus meeting the requirements of the Securities Act, the undersigned will not be deemed to admit that it is an “underwriter” within the meaning of the Securities Act.
The SEC has taken the position that such broker-dealers may fulfill their prospectus delivery requirements with respect to the New Notes (other than a resale of New Notes received in exchange for an unsold allotment from the original sale of the Old Notes) with the Prospectus. The Prospectus may be used by certain broker-dealers (as specified in the Registration Rights Agreement with respect to the Old Notes referenced in the Prospectus) (“Participating Broker-Dealers”) for a period of time, starting on the Expiration Date and ending on the earlier of (i) 120 days from the date on which the registration statement is declared effective and (ii) the date on which no broker-dealer is required to deliver a prospectus in connection with market-making or other trading activities. The Issuer has agreed that, for such period of time, it will make the Prospectus available to such a broker-dealer which elects to exchange Old Notes, acquired for its own account as a result of market making or other trading activities, for New Notes pursuant to the Exchange Offer for use in connection with any resale of such New Notes. By tendering in the Exchange Offer, each broker-dealer that receives New Notes pursuant to the Exchange Offer acknowledges and agrees to notify the Issuer prior to using the Prospectus in connection with the sale or transfer of New Notes and agrees that, upon receipt of notice from the Issuer of the existence of any fact or the happening of any event that makes any statement of a material fact made in the Prospectus, any amendment or supplement thereto, or any document incorporated by reference therein untrue, or that requires the making of any changes in the Prospectus in order to make the statements therein (in the light of the circumstances under which they were made) not misleading, such broker-dealer will suspend use of the Prospectus until (i) the Issuer has amended or supplemented the Prospectus to correct such misstatement or omission and such broker-dealer has obtained a copy of such amended or supplemented Prospectus or (ii) such broker-dealer is advised in writing by the Issuer
that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings that are incorporated by reference in the Prospectus. Except as described above, the Prospectus may not be used for or in connection with an offer to resell, a resale or any other retransfer of New Notes. A broker-dealer that would receive New Notes for its own account for its Old Notes, where such Old Notes were not acquired as a result of market-making activities or other trading activities, will not be able to participate in the Exchange Offer.
The undersigned will, upon request, execute and deliver any additional documents deemed by the Issuer to be necessary or desirable to complete the sale, assignment and transfer of the Old Notes tendered hereby.
All authority conferred or agreed to be conferred in this Letter of Transmittal and every obligation of the undersigned hereunder shall be binding upon the successors, assigns, heirs, executors, administrators, trustees in bankruptcy and legal representatives of the undersigned and shall not be affected by, and shall survive, the death or incapacity of the undersigned.
Tenders of Old Notes made pursuant to the Exchange Offer are irrevocable, except that Old Notes tendered pursuant to the Exchange Offer may be withdrawn at any time prior to the Expiration Date. See information described in “The Exchange Offer—Withdrawal Rights” section of the Prospectus.
The undersigned understands that tender of Old Notes pursuant to any of the procedures described in the “Procedures for Tendering Old Notes” section of the Prospectus and in the instructions hereto will constitute a binding agreement between the undersigned and the Issuer upon the terms and subject to the conditions set forth in the Prospectus, including the undersigned’s representation that the undersigned owns the Old Notes being tendered. The undersigned recognizes that, under certain circumstances set forth in the Prospectus, the Issuer may not be required to accept for exchange any of the Old Notes tendered hereby.
Unless otherwise indicated herein in the box entitled “Special Issuance Instructions” below, please deliver the New Notes (and, if applicable, substitute certificates representing Old Notes for any Old Notes not exchanged) in the name of the undersigned or, in the case of a book-entry delivery of Old Notes, please credit the account indicated above maintained at the Book-Entry Transfer Facility. Similarly, unless otherwise indicated under the box entitled “Special Delivery Instructions” below, please send the New Notes (and, if applicable, substitute certificates representing Old Notes for any Old Notes not exchanged) to the undersigned at the address shown above in the box entitled “Description of Old Notes.”
THE UNDERSIGNED BY COMPLETING THE BOX ENTITLED “DESCRIPTION OF OLD NOTES” ABOVE AND SIGNING THIS LETTER OF TRANSMITTAL, WILL BE DEEMED TO HAVE TENDERED THE OLD NOTES AS SET FORTH IN SUCH BOX ABOVE.
PLEASE SIGN HERE
(TO BE COMPLETED BY ALL TENDERING HOLDERS)
SIGNATURE(S) OF OWNER)
| Area Code and Telephone Number |
Dated:
If a Holder is tendering an Old Note, this Letter of Transmittal must be signed by the registered Holder(s) exactly as the name(s) appear(s) on the certificate(s) for the Old Note or by any person(s) authorized to become registered Holder(s) by endorsements and documents transmitted herewith. If signature is by a trustee, executor, administrator, guardian, officer or other person acting in a fiduciary or representative capacity, please set forth full title. See Instruction 4.
| Name(s): | ||
| (Please Print or Type) |
| Capacity (full title): |
| Address: | ||
| Zip Code |
| Area Code and Telephone Number: |
| Tax Identification or Social Security Number: | ||
GUARANTEE OF SIGNATURE(S)
(IF REQUIRED BY INSTRUCTION 4)
| SIGNATURE(S) GUARANTEED BY AN ELIGIBLE INSTITUTION | ||||
| (Authorized Signatures) |
| Name: | ||
| (Please Print or Type) |
| Capacity (full title): |
| Name of Firm: |
| Address: | ||
| Zip Code |
| Area Code and Telephone Number: |
Dated:
(PLEASE COMPLETE ACCOMPANYING IRS FORM W-9 INCLUDED HEREIN OR PROVIDED AN APPROPRIATE IRS FORM W-8, AS APPLICABLE. SEE INSTRUCTION 8.)
SPECIAL ISSUANCE INSTRUCTIONS
(See Instructions 4, 5 and 6)
To be completed ONLY if certificates for Old Notes not exchanged and/or New Notes are to be issued in the name of and sent to someone other than the person or persons whose signature(s) appear(s) on this Letter of Transmittal above, or if Old Notes delivered by book-entry transfer which are not accepted for exchange are to be returned by credit to an account maintained at the Book-Entry Transfer Facility other than the account indicated above.
Issue: New Notes and/or Old Notes to:
| Name(s): |
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| (PLEASE TYPE OR PRINT) | ||
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| (PLEASE TYPE OR PRINT) | ||
| Address: |
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| (ZIP CODE) | ||
| (Tax Identification or Social Security No.) (See IRS Form W-9 Included Herein) | ||
| ☐ Credit unexchanged Old Notes delivered by book-entry transfer to the Book-Entry Facility account set forth below: | ||
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| (BOOK-ENTRY TRANSFER FACILITY ACCOUNT NUMBER(S) IF APPLICABLE) | ||
SPECIAL DELIVERY INSTRUCTIONS
(See Instructions 4, 5 and 6)
To be completed ONLY if certificates for Old Notes not exchanged and/or New Notes are to be sent to someone other than the person or persons whose signature(s) appear(s) on this Letter of Transmittal above or to such person or persons at an address other than shown in the box entitled “Description of Old Notes” on this Letter of Transmittal above.
Mail: New Notes and/or Old Notes to:
| Name(s): |
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| (PLEASE TYPE OR PRINT) | ||
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| (PLEASE TYPE OR PRINT) | ||
| Address: |
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| (ZIP CODE) | ||
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| (Tax Identification or Social Security No.) (See IRS Form W-9 Included Herein) | ||
| IMPORTANT: | UNLESS GUARANTEED DELIVERY PROCEDURES ARE COMPLIED WITH, THIS LETTER OF TRANSMITTAL OR A FACSIMILE HEREOF (TOGETHER WITH THE CERTIFICATES FOR OLD NOTES OR A BOOK-ENTRY CONFIRMATION AND ALL OTHER REQUIRED DOCUMENTS) MUST BE RECEIVED BY THE EXCHANGE AGENT PRIOR TO 5:00 P.M., NEW YORK CITY TIME, ON THE EXPIRATION DATE. |
INSTRUCTIONS
FORMING PART OF THE TERMS AND CONDITIONS OF THE OFFER TO EXCHANGE ANY AND ALL OUTSTANDING 3.428% SENIOR NOTES DUE 2024, ISSUED ON MARCH 15, 2022, 3.528% SENIOR NOTES DUE 2024, ISSUED ON MARCH 15, 2022, 3.638% SENIOR NOTES DUE 2025, ISSUED ON MARCH 15, 2022, 3.788% SENIOR NOTES DUE 2025, ISSUED ON MARCH 15, 2022, 3.755% SENIOR NOTES DUE 2027, ISSUED ON MARCH 15, 2022, 4.054% SENIOR NOTES DUE 2029, ISSUED ON MARCH 15, 2022, 4.279% SENIOR NOTES DUE 2032, ISSUED ON MARCH 15, 2022, 5.050% SENIOR NOTES DUE 2042, ISSUED ON MARCH 15, 2022, 5.141% SENIOR NOTES DUE 2052, ISSUED ON MARCH 15, 2022, 5.391% SENIOR NOTES DUE 2062, ISSUED ON MARCH 15, 2022 AND FLOATING RATE SENIOR NOTES DUE 2024, ISSUED ON MARCH 15, 2022, FOR A LIKE PRINCIPAL AMOUNT OF CORRESPONDING 3.428% SENIOR NOTES DUE 2024, 3.528% SENIOR NOTES DUE 2024, 3.638% SENIOR NOTES DUE 2025, 3.788% SENIOR NOTES DUE 2025, 3.755% SENIOR NOTES DUE 2027, 4.054% SENIOR NOTES DUE 2029, 4.279% SENIOR NOTES DUE 2032, 5.050% SENIOR NOTES DUE 2042, 5.141% SENIOR NOTES DUE 2052, 5.391% SENIOR NOTES DUE 2062, AND FLOATING RATE SENIOR NOTES DUE 2024, RESPECTIVELY, WHICH HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
1. Delivery of this Letter of Transmittal and Notes; Guaranteed Delivery Procedures. This Letter of Transmittal is to be completed by Holders of Old Notes either if certificates are to be forwarded herewith or if tenders are to be made pursuant to the procedures for tender by book-entry transfer set forth in “The Exchange Offer—Procedures for Tendering Old Notes” section of the Prospectus and an Agent’s Message (as defined below) is not delivered. Certificates for all physically tendered Old Notes, or Book-Entry Confirmation (as defined below), as the case may be, as well as a properly completed and duly executed Letter of Transmittal (or manually signed facsimile hereof) and any other documents required by this Letter of Transmittal, must be received by the Exchange Agent at the address set forth herein on or prior to the applicable Expiration Date, or the tendering Holder must comply with the guaranteed delivery procedures set forth below. Old Notes tendered hereby must be in minimum denominations of $2,000 and any integral multiple of $1,000 in excess thereof. Tenders by book-entry transfer may also be made by delivering an Agent’s Message in lieu of this Letter of Transmittal. “Agent’s Message” means a message transmitted by the Book-Entry Transfer Facility to, and received by, the Exchange Agent and forming a part of a Book-Entry Confirmation, which message states that the Book-Entry
Transfer Facility has received an express acknowledgment from the participant in the Book-Entry Transfer Facility tendering the Old Notes which are the subject of the Book-Entry Confirmation that such participant has received and agrees to be bound by the Letter of Transmittal and that the Issuer may enforce the Letter of Transmittal against such participant. “Book-Entry Confirmation” means a timely confirmation of book-entry transfer of Notes into the Exchange Agent’s account at the Book-Entry Transfer Facility.
Holders whose certificates are not immediately available or who cannot deliver their certificates and all other required documents to the Exchange Agent prior to 5:00 P.M., New York City time, on the Expiration Date or who cannot complete the procedure for book-entry transfer prior to 5:00 P.M., New York City time, on the Expiration Date may tender their Old Notes by properly completing and duly executing a Notice of Guaranteed Delivery pursuant to the guaranteed delivery procedures set forth in “The Exchange Offer—Guaranteed Delivery Procedures” section of the Prospectus. Pursuant to such procedures: (i) such tender must be made by or through an Eligible Institution (as defined below); (ii) prior to 5:00 P.M., New York City time, on the Expiration Date, the Exchange Agent must receive from such Eligible Institution a properly completed and duly executed Letter of Transmittal (or a facsimile thereof) and Notice of Guaranteed Delivery, substantially in the form provided by the Issuer (by facsimile transmission, mail or hand delivery), setting forth the name and address of the Holder of Old Notes and the aggregate amount of Old Notes tendered, stating that the tender is being made thereby and guaranteeing that within three trading days of the Nasdaq Global Select Market (“Nasdaq”) after the date of execution of the Notice of Guaranteed Delivery, the certificates for all physically-tendered Old Notes, in proper form for transfer, or a Book-Entry Confirmation, as the case may be, and any other documents required by this Letter of Transmittal will be deposited by the Eligible Institution with the Exchange Agent, and (iii) the certificates for all physically-tendered Old Notes, in proper form for transfer, or a Book-Entry Confirmation, as the case may be, and all other documents required by this Letter of Transmittal, are received by the Exchange Agent within three Nasdaq trading days after the date of execution of the Notice of Guaranteed Delivery.
THE METHOD OF DELIVERY OF THIS LETTER OF TRANSMITTAL, THE OLD NOTES AND ALL OTHER REQUIRED DOCUMENTS IS AT THE ELECTION AND RISK OF THE TENDERING HOLDERS, BUT THE DELIVERY WILL BE DEEMED MADE ONLY WHEN ACTUALLY RECEIVED OR CONFIRMED BY THE EXCHANGE AGENT. IF OLD NOTES ARE SENT BY MAIL, IT IS RECOMMENDED THAT THE MAILING BE BY REGISTERED OR CERTIFIED MAIL, PROPERLY INSURED, WITH RETURN RECEIPT REQUESTED, MADE SUFFICIENTLY IN ADVANCE OF THE EXPIRATION DATE TO PERMIT DELIVERY TO THE EXCHANGE AGENT PRIOR TO 5:00 P.M., NEW YORK CITY TIME, ON THE EXPIRATION DATE.
THE ISSUER WILL NOT ACCEPT ANY ALTERNATIVE, CONDITIONAL OR CONTINGENT TENDERS. EACH TENDERING HOLDER, BY EXECUTION OF A LETTER OF TRANSMITTAL (OR FACSIMILE THEREOF OR AGENT’S MESSAGE IN LIEU THEREOF), WAIVES ANY RIGHT TO RECEIVE ANY NOTICE OF THE ACCEPTANCE OF SUCH TENDER.
2. Inadequate Space. If the space provided in the box captioned “Description of Old Notes” above is inadequate, the certificate number(s) and/or the principal amount of Notes and any other required information should be listed on a separate signed schedule and such schedule should be attached to this Letter of Transmittal.
3. Partial Tenders (Not Applicable to Noteholders Who Tender by Book-Entry Transfer). If fewer than all of the Old Notes evidenced by a submitted certificate are to be tendered, the tendering Holder(s) should fill in the aggregate principal amount of Old Notes to be tendered in the box entitled “Description of Old Notes—Principal Amount Tendered.” A reissued certificate or book-entry representing the balance of nontendered Old Notes will be sent to such tendering Holder(s), unless otherwise provided in the appropriate box on this Letter of Transmittal, promptly after the Expiration Date. ALL OF THE OLD NOTES DELIVERED TO THE EXCHANGE AGENT WILL BE DEEMED TO HAVE BEEN TENDERED UNLESS OTHERWISE INDICATED.
4. Signatures on this Letter of Transmittal; Bond Powers and Endorsements. If this Letter of Transmittal is signed by the registered Holder(s) of the Notes tendered hereby, the signature(s) must correspond exactly with the name(s) as written on the face of the certificate(s) without any change whatsoever.
If any of the Old Notes tendered hereby are owned of record by two or more joint owners, all such owners must sign this Letter of Transmittal.
If any of the Old Notes are registered in different name(s) on several certificates, it will be necessary to complete, sign and submit as many separate Letters of Transmittal (or facsimiles thereof or Agent’s Messages in lieu thereof) as there are different registrations of certificates.
If this Letter of Transmittal is signed by the registered Holder(s) of the Old Notes specified herein and tendered hereby, no endorsements of certificates or separate bond powers are required. If, however, the New Notes are to be issued, or any untendered Old Notes are to be reissued, to a person other than the registered Holder, then endorsements of any certificates transmitted hereby or separate bond powers are required. Signatures on such certificate(s) must be guaranteed by an Eligible Institution (as defined below).
If this Letter of Transmittal is signed by a person other than the registered Holder(s) of any certificate(s) specified herein, such certificate(s) must be endorsed or accompanied by appropriate bond powers, in either case signed exactly as the name or names of the registered Holder(s) appear(s) on the certificate(s) and the signatures on such certificate(s) must be guaranteed by an Eligible Institution.
If this Letter of Transmittal or any certificates or bond powers are signed by trustees, executors, administrators, guardians, attorneys-in-fact, officers of corporations or others acting in a fiduciary or representative capacity, such persons should so indicate when signing and must submit proper evidence satisfactory to the Issuer of such persons’ authority to so act, unless such submission is waived by the Issuer.
ENDORSEMENTS ON CERTIFICATES FOR OLD NOTES OR SIGNATURES ON BOND POWERS REQUIRED BY THIS INSTRUCTION 4 MUST BE GUARANTEED BY A FIRM WHICH IS A BANK, BROKER, DEALER, CREDIT UNION, SAVINGS ASSOCIATION OR OTHER ENTITY WHICH IS A MEMBER IN GOOD STANDING OF A RECOGNIZED MEDALLION PROGRAM APPROVED BY THE SECURITIES TRANSFER ASSOCIATION INC., INCLUDING THE SECURITIES TRANSFER AGENTS MEDALLION PROGRAM (STAMP), THE STOCK EXCHANGE MEDALLION PROGRAM (SEMP) AND THE NEW YORK STOCK EXCHANGE MEDALLION SIGNATURE PROGRAM (MSP), OR ANY OTHER “ELIGIBLE GUARANTOR INSTITUTION” (AS DEFINED IN RULE 17AD-15 UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED) (EACH OF THE FOREGOING, AN “ELIGIBLE INSTITUTION”).
SIGNATURES ON THIS LETTER OF TRANSMITTAL NEED NOT BE GUARANTEED BY AN ELIGIBLE INSTITUTION, PROVIDED THE OLD NOTES ARE TENDERED: (I) BY A REGISTERED HOLDER OF OLD NOTES (WHICH TERM, FOR PURPOSES OF THE EXCHANGE OFFER, INCLUDES ANY PARTICIPANT IN THE BOOK-ENTRY TRANSFER FACILITY SYSTEM WHOSE NAME APPEARS ON A SECURITY POSITION LISTING AS THE HOLDER OF SUCH OLD NOTES) WHO HAS NOT COMPLETED THE BOX ENTITLED “SPECIAL ISSUANCE INSTRUCTIONS” OR “SPECIAL DELIVERY INSTRUCTIONS” IN THIS LETTER OF TRANSMITTAL, OR (II) FOR THE ACCOUNT OF AN ELIGIBLE INSTITUTION.
5. Special Issuance and Delivery Instructions. Tendering Holders of Old Notes should indicate in the applicable box the name and address to which New Notes issued pursuant to the Exchange Offer and/or substitute certificates evidencing Old Notes not exchanged are to be issued or sent, if different from the name or address of the person signing this Letter of Transmittal. In the case of issuance in a different name, the employer identification or social security number of the person named must also be indicated. Holders tendering Old Notes by book-entry transfer may request that Old Notes not exchanged be credited to such account maintained at the Book-Entry Transfer Facility as such Holder may designate herein. If no such instructions are given, such Old Notes not exchanged will be returned to the name and address of the person signing this Letter of Transmittal.
6. Transfer Taxes. Except as otherwise provided in this Instruction 6, the Issuer will pay any transfer taxes with respect to the transfer of Old Notes to it or its order pursuant to the Exchange Offer. If, however, New Notes or substitute Old Notes not exchanged are to be delivered to or registered or issued in the name of, any person other than the registered Holder(s) of the Old Notes tendered hereby, or if tendered Old Notes are registered in the name of any person other than the person(s) signing this Letter of Transmittal, or if a transfer tax is imposed for any reason other than the transfer of Old Notes to the Issuer or their order pursuant to the Exchange Offer, the amount of any such transfer taxes (whether imposed on the registered Holder(s) or any other person) payable on account of the transfer to such person will be payable by the Holder(s) tendering hereby. If satisfactory evidence of payment of such taxes or exemption therefrom is not submitted herewith, the amount of such transfer taxes will be billed directly to such tendering Holder(s).
7. Waiver of Conditions. The Issuer reserves the absolute right to waive satisfaction of any or all conditions enumerated in the Prospectus.
8. Taxpayer Identification Number; Backup Withholding; IRS Form W-9. U.S. federal income tax laws generally require that a tendering Holder that is a U.S. person (including a resident alien) provides the Exchange Agent with such Holder’s correct Taxpayer Identification Number (“TIN”) on IRS Form W-9, Request for Taxpayer Identification Number and Certification, below (the “IRS Form W-9”), which in the case of a Holder who is an individual, is his or her social security number. If the tendering Holder is a non-resident alien or a foreign entity, other requirements (as described below) will apply. If the Exchange Agent is not provided with the correct TIN or an adequate basis for an exemption from backup withholding, such tendering Holder may be subject to a $50 penalty imposed by the Internal Revenue Service (the “IRS”). In addition, failure to provide the Exchange Agent with the correct TIN or an adequate basis for an exemption from backup withholding may result in backup withholding on payments made to the tendering Holder pursuant to the Exchange Offer at a current rate of 24%. If withholding results in an overpayment of taxes, the Holder may obtain a refund from the IRS.
Exempt Holders of the Notes (including, among others, all corporations) are not subject to these backup withholding and reporting requirements. See the Instructions for the Requester of Form W-9 (the “W-9 Guidelines”) for additional instructions, which may be obtained via the IRS website at www.irs.gov.
To prevent backup withholding, each tendering Holder that is a U.S. person (including a resident alien) must provide its correct TIN by completing the IRS Form W-9 set forth below, certifying, under penalties of perjury, that such Holder is a U.S. person (including a resident alien), that the TIN provided is correct (or that such Holder is awaiting a TIN) and that (i) such Holder is exempt from backup withholding, (ii) such Holder has not been notified by the IRS that such Holder is subject to backup withholding as a result of a failure to report all interest or dividends, or (iii) the IRS has notified such Holder that such Holder is no longer subject to backup withholding. If the Notes are in more than one name or are not in the name of the actual owner, such Holder should consult the W-9 Guidelines for information on which TIN to report. If such Holder does not have a TIN, such Holder should consult the W-9 Guidelines for instructions on applying for a TIN, write “Applied For” in the space reserved for the TIN, as shown on IRS Form W-9. Note: Writing “Applied For” on the IRS Form W-9 means that such Holder has already applied for a TIN or that such Holder intends to apply for one in the near future. If such Holder does not provide its TIN to the Exchange Agent within 60 days, backup withholding will begin and continue until such Holder furnishes its TIN to the Exchange Agent.
A tendering Holder that is a non-resident alien or a foreign entity must submit the appropriate completed IRS Form W-8 to avoid backup withholding. The appropriate form may be obtained via the IRS website at www.irs.gov or by contacting the Exchange Agent at the address on the face of this Letter of Transmittal.
FAILURE TO COMPLETE THE APPROPRIATE FORM MAY RESULT IN BACKUP WITHHOLDING ON ANY PAYMENTS MADE TO YOU PURSUANT TO THE EXCHANGE OFFER.
9. Mutilated, Lost, Destroyed or Stolen Certificates. Any Holder whose certificate(s) representing Old Notes have been mutilated, lost, destroyed or stolen should promptly notify the Exchange Agent at the address included herein or at (800) 934-6802 for further instructions. This Letter of Transmittal and related documents cannot be processed until the procedures for replacing mutilated, lost, destroyed or stolen certificate(s) have been followed.
10. Withdrawal Rights. Except as otherwise provided herein, tenders of Old Notes may be withdrawn at any time prior to 5:00 P.M., New York City time, on the Expiration Date. For a withdrawal to be effective, a written or facsimile transmission notice of withdrawal must be timely received by the Exchange Agent at the address set forth above prior to 5:00 P.M., New York City time, on the Expiration Date. Any such notice of withdrawal must (i) specify the name of the person who tendered the Old Notes to be withdrawn, (ii) identify the Old Notes to be withdrawn, including the aggregate principal amount of such Old Notes or, in the case of Notes transferred by book-entry transfer, specify the number of the account at the Book-Entry Transfer Facility from which the Old Notes were tendered and specify the name and number of the account at the Book-Entry Transfer Facility to be credited with the withdrawn Old Notes and otherwise comply with the procedures of such facility; (iii) contain a statement that such Holder is withdrawing its election to have such Old Notes exchanged; (iv) specify the name in which such Old Notes are registered, if different from that of the person who tendered the Old Notes.
All questions as to the validity, form and eligibility (including time of receipt) of such notices will be determined by the Issuer, whose determination shall be final and binding on all parties.
Any Old Notes so withdrawn will be deemed not to have been validly tendered for exchange for purposes of the Exchange Offer and no New Notes will be issued with respect thereto unless the Old Notes so withdrawn are validly retendered. Properly withdrawn Old Notes may be retendered by following the procedures described above at any time on or prior to 5:00 P.M., New York City time, on the Expiration Date with respect to such Old Notes.
Any Old Notes that have been tendered for exchange but which are not exchanged for any reason will be returned to the tendering Holder thereof without cost to such Holder (or, in the case of Old Notes tendered by book-entry transfer into the Exchange Agent’s account at the Book-Entry Transfer Facility pursuant to the book-entry transfer procedures set forth in “The Exchange Offer—Book-Entry Transfer” section of the Prospectus, such Old Notes will be credited to an account maintained with the Book-Entry Transfer Facility for the Old Notes) promptly after withdrawal, rejection of tender or termination of the Exchange Offer.
11. Requests For Assistance and Additional Copies. Questions and requests for assistance regarding this Letter of Transmittal, as well as requests for additional copies of the Prospectus, this Letter of Transmittal, Notices of Guaranteed Delivery and other related documents may be directed to the Exchange Agent at its address and telephone number set forth on the front of this Letter of Transmittal.
| IMPORTANT: | THIS LETTER OF TRANSMITTAL (OR FACSIMILE THEREOF) AND ALL OTHER REQUIRED DOCUMENTS MUST BE RECEIVED BY THE EXCHANGE AGENT ON OR PRIOR TO 5:00 P.M., NEW YORK CITY TIME, ON THE EXPIRATION DATE. |
| Form W-9
(Rev. October 2018) Department of the Treasury Internal Revenue Service |
Request for Taxpayer Identification Number and Certification
u Go to www.irs.gov/FormW9 for instructions and the latest information. |
Give Form to the requester. Do not send to the IRS.
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| Print or type. See Specific Instructions on page 3.
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1 Name (as shown on your income tax return). Name is required on this line; do not leave this line blank.
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2 Business name/disregarded entity name, if different from above
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| 3 Check appropriate box for federal tax classification of the
person whose name is entered on line 1. Check only one of the
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4 Exemptions (codes apply only to
Exempt payee code (if any)
Exemption from FATCA reporting code (if any)
(Applies to accounts maintained outside the U.S.)
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| ☐ Individual/sole proprietor or single-member LLC
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☐ | C Corporation | ☐ | S Corporation | ☐ | Partnership | ☐ | Trust/estate | ||||||||||||||
| ☐ Limited liability company. Enter the tax classification (C=C corporation, S=S corporation, P=Partnership) u
Note: Check the appropriate box in the line above for the tax classification of the single-member owner. Do not check LLC
☐ Other (see instructions) u
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5 Address (number, street, and apt. or suite no.) See instructions.
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Requester’s name and address (optional) | |||||||||||||||||||||
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6 City, state, and ZIP code
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7 List account number(s) here (optional)
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Part I |
Taxpayer Identification Number (TIN) | |
| Enter your TIN in the appropriate box. The TIN provided must match the name given on line 1 to avoid backup withholding. For individuals, this is generally your social security number (SSN). However, for a resident alien, sole proprietor, or disregarded entity, see the instructions for Part I, later. For other entities, it is your employer identification number (EIN). If you do not have a number, see How to get a TIN, later.
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Social security number
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| - |
- | |||||||||||||||||||||||
| or | ||||||||||||||||||||||||
| Note: If the account is in more than one name, see the instructions for line 1. Also see What Name and Number To Give the Requester for guidelines on whose number to enter. |
Employer identification number |
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| Part II | Certification |
Under penalties of perjury, I certify that:
| 1. | The number shown on this form is my correct taxpayer identification number (or I am waiting for a number to be issued to me); and |
| 2. | I am not subject to backup withholding because: (a) I am exempt from backup withholding, or (b) I have not been notified by the Internal Revenue Service (IRS) that I am subject to backup withholding as a result of a failure to report all interest or dividends, or (c) the IRS has notified me that I am no longer subject to backup withholding; and |
| 3. | I am a U.S. citizen or other U.S. person (defined below); and |
| 4. | The FATCA code(s) entered on this form (if any) indicating that I am exempt from FATCA reporting is correct. |
Certification instructions. You must cross out item 2 above if you have been notified by the IRS that you are currently subject to backup withholding because you have failed to report all interest and dividends on your tax return. For real estate transactions, item 2 does not apply. For mortgage interest paid, acquisition or abandonment of secured property, cancellation of debt, contributions to an individual retirement arrangement (IRA), and generally, payments other than interest and dividends, you are not required to sign the certification, but you must provide your correct TIN. See the instructions for Part II, later.
| Sign Here |
Signature of U.S. person u |
Date u |
General Instructions
Section references are to the Internal Revenue Code unless otherwise noted.
Future developments. For the latest information about developments related to Form W-9 and its instructions, such as legislation enacted after they were published, go to www.irs.gov/FormW9.
Purpose of Form
An individual or entity (Form W-9 requester) who is required to file an information return with the IRS must obtain your correct taxpayer identification number (TIN) which may be your social security number (SSN), individual taxpayer identification number (ITIN), adoption taxpayer identification number (ATIN), or employer identification number (EIN), to
report on an information return the amount paid to you, or other amount reportable on an information return. Examples of information returns include, but are not limited to, the following.
• Form 1099-INT (interest earned or paid)
• Form 1099-DIV (dividends, including those from stocks or mutual funds)
• Form 1099-MISC (various types of income, prizes, awards, or gross proceeds)
• Form 1099-B (stock or mutual fund sales and certain other transactions by brokers)
• Form 1099-S (proceeds from real estate transactions)
• Form 1099-K (merchant card and third party network transactions)
| Cat. No. 10231X | Form W-9 (Rev. 10-2018) | |||
| Form W-9 (Rev. 10-2018) |
Page 2 |
• Form 1098 (home mortgage interest), 1098-E (student loan interest), 1098-T (tuition)
• Form 1099-C (canceled debt)
• Form 1099-A (acquisition or abandonment of secured property)
Use Form W-9 only if you are a U.S. person (including a resident alien), to provide your correct TIN.
If you do not return Form W-9 to the requester with a TIN, you might be subject to backup withholding. See What is backup withholding, later.
By signing the filled-out form, you:
1. Certify that the TIN you are giving is correct (or you are waiting for a number to be issued),
2. Certify that you are not subject to backup withholding, or
3. Claim exemption from backup withholding if you are a U.S. exempt payee. If applicable, you are also certifying that as a U.S. person, your allocable share of any partnership income from a U.S. trade or business is not subject to the withholding tax on foreign partners’ share of effectively connected income, and
4. Certify that FATCA code(s) entered on this form (if any) indicating that you are exempt from the FATCA reporting, is correct. See What is FATCA reporting, later, for further information.
Note: If you are a U.S. person and a requester gives you a form other than Form W-9 to request your TIN, you must use the requester’s form if it is substantially similar to this Form W-9.
Definition of a U.S. person. For federal tax purposes, you are considered a U.S. person if you are:
• An individual who is a U.S. citizen or U.S. resident alien;
• A partnership, corporation, company, or association created or organized in the United States or under the laws of the United States;
• An estate (other than a foreign estate); or
• A domestic trust (as defined in Regulations section 301.7701-7).
Special rules for partnerships. Partnerships that conduct a trade or business in the United States are generally required to pay a withholding tax under section 1446 on any foreign partners’ share of effectively connected taxable income from such business. Further, in certain cases where a Form W-9 has not been received, the rules under section 1446 require a partnership to presume that a partner is a foreign person, and pay the section 1446 withholding tax. Therefore, if you are a U.S. person that is a partner in a partnership conducting a trade or business in the United States, provide Form W-9 to the partnership to establish your U.S. status and avoid section 1446 withholding on your share of partnership income.
In the cases below, the following person must give Form W-9 to the partnership for purposes of establishing its U.S. status and avoiding withholding on its allocable share of net income from the partnership conducting a trade or business in the United States.
• In the case of a disregarded entity with a U.S. owner, the U.S. owner of the disregarded entity and not the entity;
• In the case of a grantor trust with a U.S. grantor or other U.S. owner, generally, the U.S. grantor or other U.S. owner of the grantor trust and not the trust; and
• In the case of a U.S. trust (other than a grantor trust), the U.S. trust (other than a grantor trust) and not the beneficiaries of the trust.
Foreign person. If you are a foreign person or the U.S. branch of a foreign bank that has elected to be treated as a U.S. person, do not use Form W-9. Instead, use the appropriate Form W-8 or Form 8233 (see Pub. 515, Withholding of Tax on Nonresident Aliens and Foreign Entities).
Nonresident alien who becomes a resident alien. Generally, only a nonresident alien individual may use the terms of a tax treaty to reduce or eliminate U.S. tax on certain types of income. However, most tax treaties contain a provision known as a “saving clause.” Exceptions specified in the saving clause may permit an exemption from tax to continue for certain types of income even after the payee has otherwise become a U.S. resident alien for tax purposes.
If you are a U.S. resident alien who is relying on an exception contained in the saving clause of a tax treaty to claim an exemption from U.S. tax on certain types of income, you must attach a statement to Form W-9 that specifies the following five items.
1. The treaty country. Generally, this must be the same treaty under which you claimed exemption from tax as a nonresident alien.
2. The treaty article addressing the income.
3. The article number (or location) in the tax treaty that contains the saving clause and its exceptions.
4. The type and amount of income that qualifies for the exemption from tax.
5. Sufficient facts to justify the exemption from tax under the terms of the treaty article.
Example. Article 20 of the U.S.-China income tax treaty allows an exemption from tax for scholarship income received by a Chinese student temporarily present in the United States. Under U.S. law, this student will become a resident alien for tax purposes if his or her stay in the United States exceeds 5 calendar years. However, paragraph 2 of the first Protocol to the U.S.-China treaty (dated April 30, 1984) allows the provisions of Article 20 to continue to apply even after the Chinese student becomes a resident alien of the United States. A Chinese student who qualifies for this exception (under paragraph 2 of the first protocol) and is relying on this exception to claim an exemption from tax on his or her scholarship or fellowship income would attach to Form W-9 a statement that includes the information described above to support that exemption.
If you are a nonresident alien or a foreign entity, give the requester the appropriate completed Form W-8 or Form 8233.
Backup Withholding
What is backup withholding? Persons making certain payments to you must under certain conditions withhold and pay to the IRS 24% of such payments. This is called “backup withholding.” Payments that may be subject to backup withholding include interest, tax-exempt interest, dividends, broker and barter exchange transactions, rents, royalties, nonemployee pay, payments made in settlement of payment card and third party network transactions, and certain payments from fishing boat operators. Real estate transactions are not subject to backup withholding.
You will not be subject to backup withholding on payments you receive if you give the requester your correct TIN, make the proper certifications, and report all your taxable interest and dividends on your tax return.
Payments you receive will be subject to backup withholding if:
1. You do not furnish your TIN to the requester,
2. You do not certify your TIN when required (see the instructions for Part II for details),
3. The IRS tells the requester that you furnished an incorrect TIN,
4. The IRS tells you that you are subject to backup withholding because you did not report all your interest and dividends on your tax return (for reportable interest and dividends only), or
5. You do not certify to the requester that you are not subject to backup withholding under 4 above (for reportable interest and dividend accounts opened after 1983 only).
Certain payees and payments are exempt from backup withholding. See Exempt payee code, later, and the separate Instructions for the Requester of Form W-9 for more information.
Also see Special rules for partnerships, earlier.
What is FATCA Reporting?
The Foreign Account Tax Compliance Act (FATCA) requires a participating foreign financial institution to report all United States account holders that are specified United States persons. Certain payees are exempt from FATCA reporting. See Exemption from FATCA reporting code, later, and the Instructions for the Requester of Form W-9 for more information.
Updating Your Information
You must provide updated information to any person to whom you claimed to be an exempt payee if you are no longer an exempt payee and anticipate receiving reportable payments in the future from this person. For example, you may need to provide updated information if you are a
| Form W-9 (Rev. 10-2018) |
Page 3 |
C corporation that elects to be an S corporation, or if you no longer are tax exempt. In addition, you must furnish a new Form W-9 if the name or TIN changes for the account; for example, if the grantor of a grantor trust dies.
Penalties
Failure to furnish TIN. If you fail to furnish your correct TIN to a requester, you are subject to a penalty of $50 for each such failure unless your failure is due to reasonable cause and not to willful neglect.
Civil penalty for false information with respect to withholding. If you make a false statement with no reasonable basis that results in no backup withholding, you are subject to a $500 penalty.
Criminal penalty for falsifying information. Willfully falsifying certifications or affirmations may subject you to criminal penalties including fines and/or imprisonment.
Misuse of TINs. If the requester discloses or uses TINs in violation of federal law, the requester may be subject to civil and criminal penalties.
Specific Instructions
Line 1
You must enter one of the following on this line; do not leave this line blank. The name should match the name on your tax return.
If this Form W-9 is for a joint account (other than an account maintained by a foreign financial institution (FFI)), list first, and then circle, the name of the person or entity whose number you entered in Part I of Form W-9. If you are providing Form W-9 to an FFI to document a joint account, each holder of the account that is a U.S. person must provide a Form W-9.
a. Individual. Generally, enter the name shown on your tax return. If you have changed your last name without informing the Social Security Administration (SSA) of the name change, enter your first name, the last name as shown on your social security card, and your new last name.
Note: ITIN applicant: Enter your individual name as it was entered on your Form W-7 application, line 1a. This should also be the same as the name you entered on the Form 1040/1040A/1040EZ you filed with your application.
b. Sole proprietor or single-member LLC. Enter your individual name as shown on your 1040/1040A/1040EZ on line 1. You may enter your business, trade, or “doing business as” (DBA) name on line 2.
c. Partnership, LLC that is not a single-member LLC, C corporation, or S corporation. Enter the entity’s name as shown on the entity’s tax return on line 1 and any business, trade, or DBA name on line 2.
d. Other entities. Enter your name as shown on required U.S. federal tax documents on line 1. This name should match the name shown on the charter or other legal document creating the entity. You may enter any business, trade, or DBA name on line 2.
e. Disregarded entity. For U.S. federal tax purposes, an entity that is disregarded as an entity separate from its owner is treated as a “disregarded entity.” See Regulations section 301.7701-2(c)(2)(iii). Enter the owner’s name on line 1. The name of the entity entered on line 1 should never be a disregarded entity. The name on line 1 should be the name shown on the income tax return on which the income should be reported. For example, if a foreign LLC that is treated as a disregarded entity for U.S. federal tax purposes has a single owner that is a U.S. person, the U.S. owner’s name is required to be provided on line 1. If the direct owner of the entity is also a disregarded entity, enter the first owner that is not disregarded for federal tax purposes. Enter the disregarded entity’s name on line 2, “Business name/disregarded entity name.” If the owner of the disregarded entity is a foreign person, the owner must complete an appropriate Form W-8 instead of a Form W-9. This is the case even if the foreign person has a U.S. TIN.
Line 2
If you have a business name, trade name, DBA name, or disregarded entity name, you may enter it on line 2.
Line 3
Check the appropriate box on line 3 for the U.S. federal tax classification of the person whose name is entered on line 1. Check only one box on line 3.
| IF the entity/person on line 1 is a(n) . . . |
THEN check the box for . . . | |||
| • Corporation | Corporation | |||
| • Individual
• Sole proprietorship, or
• Single-member limited liability company (LLC) owned by an individual and disregarded for U.S. federal tax purposes. |
Individual/sole proprietor or single-member LLC | |||
| • LLC treated as a partnership for U.S. federal tax purposes,
• LLC that has filed Form 8832 or 2553 to be taxed as a corporation, or
• LLC that is disregarded as an entity separate from its owner but the owner is another LLC that is not disregarded for U.S. federal tax purposes. |
Limited liability company and enter the appropriate tax classification. (P= Partnership; C= C corporation; or S= S corporation) | |||
| • Partnership | Partnership | |||
| • Trust/estate | Trust/estate |
Line 4, Exemptions
If you are exempt from backup withholding and/or FATCA reporting, enter in the appropriate space on line 4 any code(s) that may apply to you.
Exempt payee code.
• Generally, individuals (including sole proprietors) are not exempt from backup withholding.
• Except as provided below, corporations are exempt from backup withholding for certain payments, including interest and dividends.
• Corporations are not exempt from backup withholding for payments made in settlement of payment card or third party network transactions.
• Corporations are not exempt from backup withholding with respect to attorneys’ fees or gross proceeds paid to attorneys, and corporations that provide medical or health care services are not exempt with respect to payments reportable on Form 1099-MISC.
The following codes identify payees that are exempt from backup withholding. Enter the appropriate code in the space in line 4.
1—An organization exempt from tax under section 501(a), any IRA, or a custodial account under section 403(b)(7) if the account satisfies the requirements of section 401(f)(2)
2—The United States or any of its agencies or instrumentalities
3—A state, the District of Columbia, a U.S. commonwealth or possession, or any of their political subdivisions or instrumentalities
4—A foreign government or any of its political subdivisions, agencies, or instrumentalities
5—A corporation
6—A dealer in securities or commodities required to register in the United States, the District of Columbia, or a U.S. commonwealth or possession
7—A futures commission merchant registered with the Commodity Futures Trading Commission
8—A real estate investment trust
9—An entity registered at all times during the tax year under the Investment Company Act of 1940
10—A common trust fund operated by a bank under section 584(a)
11—A financial institution
12—A middleman known in the investment community as a nominee or custodian
13—A trust exempt from tax under section 664 or described in section 4947
| Form W-9 (Rev. 10-2018) |
Page 4 |
The following chart shows types of payments that may be exempt from backup withholding. The chart applies to the exempt payees listed above, 1 through 13.
| IF the payment is for . . . | THEN the payment is exempt for . . . | |
| Interest and dividend payments | All exempt payees except for 7 | |
| Broker transactions | Exempt payees 1 through 4 and 6 through 11 and all C corporations. S corporations must not enter an exempt payee code because they are exempt only for sales of noncovered securities acquired prior to 2012. | |
| Barter exchange transactions and patronage dividends | Exempt payees 1 through 4 | |
| Payments over $600 required to be reported and direct sales over $5,0001 | Generally, exempt payees 1 through 52 | |
| Payments made in settlement of payment card or third party network transactions | Exempt payees 1 through 4 |
| 1 | See Form 1099-MISC, Miscellaneous Income, and its instructions. |
| 2 | However, the following payments made to a corporation and reportable on Form 1099-MISC are not exempt from backup withholding: medical and health care payments, attorneys’ fees, gross proceeds paid to an attorney reportable under section 6045(f), and payments for services paid by a federal executive agency. |
Exemption from FATCA reporting code. The following codes identify payees that are exempt from reporting under FATCA. These codes apply to persons submitting this form for accounts maintained outside of the United States by certain foreign financial institutions. Therefore, if you are only submitting this form for an account you hold in the United States, you may leave this field blank. Consult with the person requesting this form if you are uncertain if the financial institution is subject to these requirements. A requester may indicate that a code is not required by providing you with a Form W-9 with “Not Applicable” (or any similar indication) written or printed on the line for a FATCA exemption code.
A—An organization exempt from tax under section 501(a) or any individual retirement plan as defined in section 7701(a)(37)
B—The United States or any of its agencies or instrumentalities
C—A state, the District of Columbia, a U.S. commonwealth or possession, or any of their political subdivisions or instrumentalities
D—A corporation the stock of which is regularly traded on one or more established securities markets, as described in Regulations section 1.1472-1(c)(1)(i)
E—A corporation that is a member of the same expanded affiliated group as a corporation described in Regulations section 1.1472-1(c)(1)(i)
F—A dealer in securities, commodities, or derivative financial instruments (including notional principal contracts, futures, forwards, and options) that is registered as such under the laws of the United States or any state
G—A real estate investment trust
H—A regulated investment company as defined in section 851 or an entity registered at all times during the tax year under the Investment Company Act of 1940
I—A common trust fund as defined in section 584(a)
J—A bank as defined in section 581
K—A broker
L—A trust exempt from tax under section 664 or described in section 4947(a)(1)
M—A tax exempt trust under a section 403(b) plan or section 457(g) plan
Note: You may wish to consult with the financial institution requesting this form to determine whether the FATCA code and/or exempt payee code should be completed.
Line 5
Enter your address (number, street, and apartment or suite number). This is where the requester of this Form W-9 will mail your information returns. If this address differs from the one the requester already has on file, write NEW at the top. If a new address is provided, there is still a chance the old address will be used until the payor changes your address in their records.
Line 6
Enter your city, state, and ZIP code.
Part I. Taxpayer Identification Number (TIN)
Enter your TIN in the appropriate box. If you are a resident alien and you do not have and are not eligible to get an SSN, your TIN is your IRS individual taxpayer identification number (ITIN). Enter it in the social security number box. If you do not have an ITIN, see How to get a TIN below.
If you are a sole proprietor and you have an EIN, you may enter either your SSN or EIN.
If you are a single-member LLC that is disregarded as an entity separate from its owner, enter the owner’s SSN (or EIN, if the owner has one). Do not enter the disregarded entity’s EIN. If the LLC is classified as a corporation or partnership, enter the entity’s EIN.
Note: See What Name and Number To Give the Requester, later, for further clarification of name and TIN combinations.
How to get a TIN. If you do not have a TIN, apply for one immediately. To apply for an SSN, get Form SS-5, Application for a Social Security Card, from your local SSA office or get this form online at www.SSA.gov. You may also get this form by calling 1-800-772-1213. Use Form W-7, Application for IRS Individual Taxpayer Identification Number, to apply for an ITIN, or Form SS-4, Application for Employer Identification Number, to apply for an EIN. You can apply for an EIN online by accessing the IRS website at www.irs.gov/Businesses and clicking on Employer Identification Number (EIN) under Starting a Business. Go to www.irs.gov/Forms to view, download, or print Form W-7 and/or Form SS-4. Or, you can go to www.irs.gov/OrderForms to place an order and have Form W-7 and/or SS-4 mailed to you within 10 business days.
If you are asked to complete Form W-9 but do not have a TIN, apply for a TIN and write “Applied For” in the space for the TIN, sign and date the form, and give it to the requester. For interest and dividend payments, and certain payments made with respect to readily tradable instruments, generally you will have 60 days to get a TIN and give it to the requester before you are subject to backup withholding on payments. The 60-day rule does not apply to other types of payments. You will be subject to backup withholding on all such payments until you provide your TIN to the requester.
Note: Entering “Applied For” means that you have already applied for a TIN or that you intend to apply for one soon.
Caution: A disregarded U.S. entity that has a foreign owner must use the appropriate Form W-8.
Part II. Certification
To establish to the withholding agent that you are a U.S. person, or resident alien, sign Form W-9. You may be requested to sign by the withholding agent even if item 1, 4, or 5 below indicates otherwise.
For a joint account, only the person whose TIN is shown in Part I should sign (when required). In the case of a disregarded entity, the person identified on line 1 must sign. Exempt payees, see Exempt payee code, earlier.
Signature requirements. Complete the certification as indicated in items 1 through 5 below.
1. Interest, dividend, and barter exchange accounts opened before 1984 and broker accounts considered active during 1983. You must give your correct TIN, but you do not have to sign the certification.
2. Interest, dividend, broker, and barter exchange accounts opened after 1983 and broker accounts considered inactive during 1983. You must sign the certification or backup withholding will apply. If you are subject to backup withholding and you are merely providing your correct
| Form W-9 (Rev. 10-2018) |
Page 5 |
TIN to the requester, you must cross out item 2 in the certification before signing the form.
3. Real estate transactions. You must sign the certification. You may cross out item 2 of the certification.
4. Other payments. You must give your correct TIN, but you do not have to sign the certification unless you have been notified that you have previously given an incorrect TIN. “Other payments” include payments made in the course of the requester’s trade or business for rents, royalties, goods (other than bills for merchandise), medical and health care services (including payments to corporations), payments to a nonemployee for services, payments made in settlement of payment card and third party network transactions, payments to certain fishing boat crew members and fishermen, and gross proceeds paid to attorneys (including payments to corporations).
5. Mortgage interest paid by you, acquisition or abandonment of secured property, cancellation of debt, qualified tuition program payments (under section 529), ABLE accounts (under section 529A), IRA, Coverdell ESA, Archer MSA or HSA contributions or distributions, and pension distributions. You must give your correct TIN, but you do not have to sign the certification.
What Name and Number To Give the Requester
| For this type of account: | Give name and SSN of: | |||||
| 1. | Individual | The individual | ||||
| 2. | Two or more individuals (joint account) other than an account maintained by an FFI | The actual owner of the account or, if combined funds, the first individual on the account1 | ||||
| 3. | Two or more U.S. persons (joint account maintained by an FFI) |
Each holder of the account | ||||
| 4. | Custodial account of a minor (Uniform Gift to Minors Act) | The minor2 | ||||
| 5. | a. The usual revocable savings trust (grantor is also trustee) | The grantor-trustee1 | ||||
| b. So-called trust account that is not a legal or valid trust under state law | The actual owner1 | |||||
| 6. | Sole proprietorship or disregarded entity owned by an individual | The owner3 | ||||
| 7. | Grantor trust filing under Optional Form 1099 Filing Method 1 (see Regulations section 1.671-4(b)(2)(i)(A)) | The grantor* | ||||
| For this type of account: | Give name and EIN of: | |||||
| 8. | Disregarded entity not owned by an individual | The owner | ||||
| 9. | A valid trust, estate, or pension trust | Legal entity4 | ||||
| 10. | Corporation or LLC electing corporate status on Form 8832 or Form 2553 | The corporation | ||||
| 11. | Association, club, religious, charitable, educational, or other tax-exempt organization | The organization | ||||
| 12. | Partnership or multi-member LLC | The partnership | ||||
| 13. | A broker or registered nominee | The broker or nominee | ||||
| 14. | Account with the Department of Agriculture in the name of a public entity (such as a state or local government, school district, or prison) that receives agricultural program payments | The public entity | ||||
| 15. | Grantor trust filing under the Form 1041 Filing Method or the Optional Form 1099 Filing Method 2 (see Regulations section 1.671-4(b)(2)(i)(B)) | The trust | ||||
1 List first and circle the name of the person whose number you furnish. If only one person on a joint account has an SSN, that person’s number must be furnished.
2 Circle the minor’s name and furnish the minor’s SSN.
3 You must show your individual name and you may also enter your business or DBA name on the “Business name/disregarded entity” name line. You may use either your SSN or EIN (if you have one), but the IRS encourages you to use your SSN.
4 List first and circle the name of the trust, estate, or pension trust. (Do not furnish the TIN of the personal representative or trustee unless the legal entity itself is not designated in the account title.) Also see Special rules for partnerships, earlier.
* Note: The grantor also must provide a Form W-9 to trustee of trust.
Note: If no name is circled when more than one name is listed, the number will be considered to be that of the first name listed.
Secure Your Tax Records From Identity Theft
Identity theft occurs when someone uses your personal information such as your name, SSN, or other identifying information, without your permission, to commit fraud or other crimes. An identity thief may use your SSN to get a job or may file a tax return using your SSN to receive a refund.
To reduce your risk:
• Protect your SSN,
• Ensure your employer is protecting your SSN, and
• Be careful when choosing a tax preparer.
If your tax records are affected by identity theft and you receive a notice from the IRS, respond right away to the name and phone number printed on the IRS notice or letter.
If your tax records are not currently affected by identity theft but you think you are at risk due to a lost or stolen purse or wallet, questionable credit card activity or credit report, contact the IRS Identity Theft Hotline at 1-800-908-4490 or submit Form 14039.
For more information, see Pub. 5027, Identity Theft Information for Taxpayers.
Victims of identity theft who are experiencing economic harm or a systemic problem, or are seeking help in resolving tax problems that have not been resolved through normal channels, may be eligible for Taxpayer Advocate Service (TAS) assistance. You can reach TAS by calling the TAS toll-free case intake line at 1-877-777-4778 or TTY/TDD 1-800-829-4059.
Protect yourself from suspicious emails or phishing schemes. Phishing is the creation and use of email and websites designed to mimic legitimate business emails and websites. The most common act is sending an email to a user falsely claiming to be an established legitimate enterprise in an attempt to scam the user into surrendering private information that will be used for identity theft.
The IRS does not initiate contacts with taxpayers via emails. Also, the IRS does not request personal detailed information through email or ask taxpayers for the PIN numbers, passwords, or similar secret access information for their credit card, bank, or other financial accounts.
If you receive an unsolicited email claiming to be from the IRS, forward this message to phishing@irs.gov. You may also report misuse of the IRS name, logo, or other IRS property to the Treasury Inspector General for Tax Administration (TIGTA) at 1-800-366-4484. You can forward suspicious emails to the Federal Trade Commission at spam@uce.gov or report them at www.ftc.gov/complaint. You can contact the FTC at www.ftc.gov/idtheft or 877-IDTHEFT (877-438-4338). If you have been the victim of identity theft, see www.IdentityTheft.gov and Pub. 5027.
Visit www.irs.gov/IdentityTheft to learn more about identity theft and how to reduce your risk.
| Form W-9 (Rev. 10-2018) |
Page 6 |
Privacy Act Notice
Section 6109 of the Internal Revenue Code requires you to provide your correct TIN to persons (including federal agencies) who are required to file information returns with the IRS to report interest, dividends, or certain other income paid to you; mortgage interest you paid; the acquisition or abandonment of secured property; the cancellation of debt; or contributions you made to an IRA, Archer MSA, or HSA. The person collecting this form uses the information on the form to file information returns with the IRS, reporting the above information. Routine uses of this information include giving it to the Department of Justice for civil and
criminal litigation and to cities, states, the District of Columbia, and U.S. commonwealths and possessions for use in administering their laws. The information also may be disclosed to other countries under a treaty, to federal and state agencies to enforce civil and criminal laws, or to federal law enforcement and intelligence agencies to combat terrorism. You must provide your TIN whether or not you are required to file a tax return. Under section 3406, payers must generally withhold a percentage of taxable interest, dividend, and certain other payments to a payee who does not give a TIN to the payer. Certain penalties may also apply for providing false or fraudulent information.
Questions and requests for assistance may be directed to the Exchange Agent at its address and telephone number set forth below. Additional copies of the Prospectus, this Letter of Transmittal or other materials related to the Exchange Offer may be obtained from the Exchange Agent or from brokers, dealers, commercial banks or trust companies.
The Exchange Agent for the Exchange Offer is:
U.S. Bank Trust Company, National Association
| By mail, hand delivery or overnight courier: |
By facsimile (for Eligible Institutions Only): |
To Confirm by Telephone or for Information call: | ||
| U.S. Bank Trust Company, National Association Corporate Actions |
Facsimile: (651) 466-7372 |
(800) 934-6802 | ||
| 111 Fillmore Avenue St. Paul, MN 55107-1402 |
Exhibit 99.2
NOTICE OF GUARANTEED DELIVERY
FOR
WARNERMEDIA HOLDINGS, INC.
OFFER TO EXCHANGE ANY AND ALL OUTSTANDING
3.428% SENIOR NOTES DUE 2024, ISSUED ON MARCH 15, 2022,
3.528% SENIOR NOTES DUE 2024, ISSUED ON MARCH 15, 2022,
3.638% SENIOR NOTES DUE 2025, ISSUED ON MARCH 15, 2022,
3.788% SENIOR NOTES DUE 2025, ISSUED ON MARCH 15, 2022,
3.755% SENIOR NOTES DUE 2027, ISSUED ON MARCH 15, 2022,
4.054% SENIOR NOTES DUE 2029, ISSUED ON MARCH 15, 2022,
4.279% SENIOR NOTES DUE 2032, ISSUED ON MARCH 15, 2022,
5.050% SENIOR NOTES DUE 2042, ISSUED ON MARCH 15, 2022,
5.141% SENIOR NOTES DUE 2052, ISSUED ON MARCH 15, 2022,
5.391% SENIOR NOTES DUE 2062, ISSUED ON MARCH 15, 2022, AND
FLOATING RATE SENIOR NOTES DUE 2024, ISSUED ON MARCH 15, 2022,
FOR
A LIKE PRINCIPAL AMOUNT OF CORRESPONDING 3.428% SENIOR NOTES DUE 2024, 3.528% SENIOR NOTES DUE 2024, 3.638% SENIOR NOTES DUE 2025, 3.788% SENIOR NOTES DUE 2025, 3.755% SENIOR NOTES DUE 2027, 4.054% SENIOR NOTES DUE 2029, 4.279% SENIOR NOTES DUE 2032, 5.050% SENIOR NOTES DUE 2042, 5.141% SENIOR NOTES DUE 2052, 5.391% SENIOR NOTES DUE 2062, AND FLOATING RATE SENIOR NOTES DUE 2024, RESPECTIVELY, WHICH HAVE
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(Not to be used for signature guarantees)
THE EXCHANGE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME ON , 2023, UNLESS EXTENDED.
This Notice of Guaranteed Delivery or one substantially equivalent hereto must be used to accept the Exchange Offer (as defined below) made by WarnerMedia Holdings, Inc. (f/k/a/ Magallanes, Inc.), a Delaware corporation (the “Issuer”), pursuant to the prospectus dated , 2023 (as the same may be amended, supplemented or modified from time to time, the “Prospectus”), if certificates for the outstanding 3.428% Senior Notes due 2024 (the “Old 2024 Senior Notes”), 3.528% Senior Notes due 2024 (the “Old 2024 NC1 Senior Notes”), 3.638% Senior Notes due 2025 (the “Old 2025 Senior Notes”), 3.788% Senior Notes due 2025 (the “Old 2025 NC1 Senior Notes”), 3.755% Senior Notes due 2027 (the “Old 2027 Senior Notes”), 4.054% Senior Notes due 2029 (the “Old 2029 Senior Notes”), 4.279% Senior Notes due 2032 (the “Old 2032 Senior Notes”), 5.050% Senior Notes due 2042 (the “Old 2042 Senior Notes”), 5.141% Senior Notes due 2052 (the “Old 2052 Senior Notes”), 5.391% Senior Notes due 2062 (the “Old 2062 Senior Notes”) and Floating Rate Senior Notes due 2024 (the “Old Floating Rate Senior Notes” and together with the Old 2024 Senior Notes, the Old 2024 NC1 Senior Notes, the Old 2025 Senior Notes, the Old 2025 NC1 Senior Notes, the Old 2027 Senior Notes, the Old 2029 Senior Notes, the Old 2032 Senior Notes, the Old 2042 Senior Notes, the Old 2052 Senior Notes and the Old 2062 Senior Notes, the “Old Notes,” as applicable, and the certificates representing such Old Notes, the “Certificates”) are not immediately available or time will not permit the Certificates and all required documents to reach U.S. Bank Trust Company, National Association, as exchange agent (the “Exchange Agent”), prior to 5:00 P.M., New York City time, on the Expiration Date (as defined in the Prospectus) or if the procedures for delivery by book-entry transfer, as set forth in the Prospectus, cannot be completed on a timely basis. This Notice of Guaranteed Delivery may be delivered by hand or transmitted by facsimile transmission or mailed to the Exchange Agent. See “The Exchange Offer—Guaranteed Delivery Procedures” section of the Prospectus.
In addition, in order to utilize the guaranteed delivery procedure to tender Old Notes pursuant to the Exchange Offer, a completed, signed and dated Letter of Transmittal (or facsimile thereof) relating to the tender for exchange of Old Notes (the “Letter of Transmittal”) must also be received by the Exchange Agent prior to 5:00 P.M., New York City time, on the Expiration Date. Any Old Notes tendered pursuant to the Exchange Offer may be withdrawn at any time before the Expiration Date.
The Exchange Agent for the Exchange Offer is:
U.S. Bank Trust Company, National Association
| By mail, hand delivery or overnight courier: |
By facsimile (for Eligible Institutions Only): |
To Confirm by Telephone or for Information call: | ||
| U.S. Bank Trust Company, National Corporate Actions |
Facsimile: (651) 466-7372 |
(800) 934-6802 | ||
| 111 Fillmore Avenue St. Paul, MN 55107-1402 |
DELIVERY OF THIS NOTICE OF GUARANTEED DELIVERY TO AN ADDRESS, OR TRANSMISSION OF INSTRUCTIONS VIA A FACSIMILE NUMBER, OTHER THAN AS SET FORTH ABOVE WILL NOT CONSTITUTE A VALID DELIVERY.
THIS NOTICE OF GUARANTEED DELIVERY IS NOT TO BE USED TO GUARANTEE SIGNATURES. IF A SIGNATURE ON A LETTER OF TRANSMITTAL IS REQUIRED TO BE GUARANTEED BY AN ELIGIBLE INSTITUTION (AS DEFINED IN THE LETTER OF TRANSMITTAL) UNDER THE INSTRUCTIONS THERETO, SUCH SIGNATURE GUARANTEE MUST APPEAR IN THE APPLICABLE SPACE PROVIDED IN THE SIGNATURE BOX ON THE LETTER OF TRANSMITTAL.
THE GUARANTEE BELOW MUST BE COMPLETED.
Ladies and Gentlemen:
The undersigned hereby tenders to the Issuer, in accordance with the terms and subject to the conditions set forth in the Prospectus, and in the related Letter of Transmittal (which, together with the Prospectus, as each may be amended, supplemented or modified from time to time, collectively constitute the “Exchange Offer”), receipt of which is hereby acknowledged, the principal amount of Old Notes set forth below, pursuant to the guaranteed delivery procedures described in “The Exchange Offer—Guaranteed Delivery Procedures” section of the Prospectus.
(Please type or print)
CHECK ONE:
| ☐ | 3.428% Senior Notes due 2024 |
| ☐ | 3.528% Senior Notes due 2024 |
| ☐ | 3.638% Senior Notes due 2025 |
| ☐ | 3.788% Senior Notes due 2025 |
| ☐ | 3.755% Senior Notes due 2027 |
| ☐ | 4.054% Senior Notes due 2029 |
| ☐ | 4.279% Senior Notes due 2032 |
| ☐ | 5.050% Senior Notes due 2042 |
| ☐ | 5.141% Senior Notes due 2052 |
| ☐ | 5.391% Senior Notes due 2062 |
| ☐ | Floating Rate Senior Notes due 2024 |
|
Certificate Numbers of Old Notes (If Available): |
| OR |
|
Account Number(s) at Book-Entry Transfer Facility: |
|
Aggregate Principal Amount Represented: |
|
Name(s) of Record Holder(s): |
|
Address(es): |
|
Daytime Area Code and Tel. No: |
|
Signature(s): |
|
Dated: |
| ☐ | Check here if Old Notes will be tendered by book-entry transfer. |
GUARANTEE
(NOT TO BE USED FOR SIGNATURE GUARANTEES)
The undersigned, a firm or other entity identified in Rule l7Ad-15 under the Securities Exchange Act of 1934 (“Exchange Act”), as an “Eligible Guarantor Institution,” which definition includes: (i) banks (as that term is defined in Section 3(a) of the Federal Deposit Insurance Act); (ii) brokers, dealers, municipal securities dealers, municipal securities brokers, government securities dealers, and government securities brokers, as those terms are defined under the Act; (iii) credit unions (as that term is defined in Section 19(b)(1)(A) of the Federal Reserve Act); (iv) national securities exchanges, registered securities associations, and clearing agencies, as those terms are used under the Act; and (v) savings associations (as that term is defined in Section 3(b) of the Federal Deposit Insurance Act), hereby guarantees that the Certificates representing the principal amount of Old Notes tendered hereby in proper form for transfer, or timely confirmation of the book-entry transfer of such Old Notes into the Exchange Agent’s account at The Depository Trust Company (“DTC”) pursuant to the procedures set forth in “The Exchange Offer—Guaranteed Delivery Procedures” section of the Prospectus, together with any required signature guarantees and any other documents required by the Letter of Transmittal, will be received by the Exchange Agent at the address set forth above, no later than three trading days of the Nasdaq Global Select Market after the date of execution of this form.
The Eligible Guarantor Institution that completes this form must communicate the guarantee to the Exchange Agent and must deliver either, (i) in the case of Old Notes held in book-entry form, by book-entry transfer into the account of the Exchange Agent at DTC, together with an agent’s message, and any required signature guarantees and other required documents, or (ii) in the case of Old Notes represented by Certificates, by delivering the Letter of Transmittal and Certificates to the Exchange Agent within the time period indicated herein, and any required signature guarantees and other required documents, in either case, within the time period set forth above. Failure to do so may result in financial loss to such Eligible Guarantor Institution.
| Name of Firm: | ||
|
| ||
| Authorized Signature | ||
| Name: | ||
|
| ||
| (Please Print or Type) | ||
| Title: | ||
| Address: |
|
| Zip Code | ||
| Area Code and Tel No.: |
|
| Dated: | ||
| NOTE: | DO NOT SEND CERTIFICATES FOR OLD NOTES WITH THIS NOTICE. CERTIFICATES FOR OLD NOTES SHOULD BE SENT ONLY TO THE EXCHANGE AGENT WITH A COPY OF YOUR PREVIOUSLY EXECUTED LETTER OF TRANSMITTAL. |
INSTRUCTIONS FOR NOTICE OF GUARANTEED DELIVERY
1. Delivery Of This Notice Of Guaranteed Delivery. A properly completed and duly executed copy of this Notice of Guaranteed Delivery and any other documents required by this Notice of Guaranteed Delivery must be received by the Exchange Agent at its address set forth herein prior to 5:00 P.M., New York City time, on the Expiration Date. The method of delivery of this Notice of Guaranteed Delivery and any other required documents to the Exchange Agent is at the election and risk of the Holder(s) (as defined in the Letter of Transmittal) and the delivery will be deemed made only when actually received by the Exchange Agent. If delivery is by mail, it is recommended that the mailing be by registered or certified mail, properly insured, with return receipt requested, made sufficiently in advance of the Expiration Date to permit delivery to the Exchange Agent prior to 5:00 P.M., New York City time, on the Expiration Date. For a description of the guaranteed delivery procedure, see Instruction 1 of the Letter of Transmittal.
2. Signatures Of This Notice Of Guaranteed Delivery. If this Notice of Guaranteed Delivery is signed by the registered Holder(s) of the Old Notes referred to herein, the signature(s) must correspond with the name(s) as written on the face of the Old Notes without any change whatsoever. If this Notice of Guaranteed Delivery is signed by a participant of the Book-Entry Transfer Facility whose name appears on a security position listing as the owner of Old Notes, the signature must correspond with the name shown on the security position listing as the owner of the Old Notes.
If this Notice of Guaranteed Delivery is signed by a person other than the registered Holder(s) of any Old Notes listed or a participant of the Book-Entry Transfer Facility, this Notice of Guaranteed Delivery must be accompanied by appropriate bond powers, signed as the name(s) of the registered Holder(s) appear(s) on the Old Notes or signed as the name of the participant shown on the Book-Entry Facility’s security position listing.
If this Notice of Guaranteed Delivery is signed by a trustee, executor, administrator, guardian, attorney-in-fact, officer of a corporation, or other person acting in a fiduciary or representative capacity, such person should so indicate when signing.
3. Requests For Assistance Or Additional Copies. Questions and requests for assistance and requests for additional copies of the Prospectus may be directed to the Exchange Agent at the address specified in the Prospectus. Holders may also contact their broker, dealer, commercial bank, trust company, or other nominee for assistance concerning the Exchange Offer.
Exhibit 99.3
WARNERMEDIA HOLDINGS, INC.
OFFER TO EXCHANGE ANY AND ALL OUTSTANDING
3.428% SENIOR NOTES DUE 2024, ISSUED ON MARCH 15, 2022.
3.528% SENIOR NOTES DUE 2024, ISSUED ON MARCH 15, 2022.
3.638% SENIOR NOTES DUE 2025, ISSUED ON MARCH 15, 2022.
3.788% SENIOR NOTES DUE 2025, ISSUED ON MARCH 15, 2022.
3.755% SENIOR NOTES DUE 2027, ISSUED ON MARCH 15, 2022.
4.054% SENIOR NOTES DUE 2029, ISSUED ON MARCH 15, 2022.
4.279% SENIOR NOTES DUE 2032, ISSUED ON MARCH 15, 2022.
5.050% SENIOR NOTES DUE 2042, ISSUED ON MARCH 15, 2022.
5.141% SENIOR NOTES DUE 2052, ISSUED ON MARCH 15, 2022.
5.391% SENIOR NOTES DUE 2062, ISSUED ON MARCH 15, 2022, AND
FLOATING RATE SENIOR NOTES DUE 2024, ISSUED ON MARCH 15, 2022,
FOR
A LIKE PRINCIPAL AMOUNT OF CORRESPONDING 3.428% SENIOR NOTES DUE 2024, 3.528% SENIOR NOTES DUE 2024, 3.638% SENIOR NOTES DUE 2025, 3.788% SENIOR NOTES DUE 2025, 3.755% SENIOR NOTES DUE 2027, 4.054% SENIOR NOTES DUE 2029, 4.279% SENIOR NOTES DUE 2032, 5.050% SENIOR NOTES DUE 2042, 5.141% SENIOR NOTES DUE 2052, 5.391% SENIOR NOTES DUE 2062, AND FLOATING RATE SENIOR NOTES DUE 2024, RESPECTIVELY, WHICH HAVE
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
To Our Clients:
Enclosed for your consideration is a prospectus, dated , 2023 (as the same may be amended, supplemented or modified from time to time, the “Prospectus”), and the related Letter of Transmittal (the “Letter of Transmittal”), relating to the offer (the “Exchange Offer”) of WarnerMedia Holdings, Inc. (f/k/a/ Magallanes, Inc.), a Delaware corporation (the “Issuer”), to exchange its 3.428% Senior Notes due 2024 (the “Old 2024 Senior Notes”), 3.528% Senior Notes due 2024 (the “Old 2024 NC1 Senior Notes”), 3.638% Senior Notes due 2025 (the “Old 2025 Senior Notes”), 3.788% Senior Notes due 2025 (the “Old 2025 NC1 Senior Notes”), 3.755% Senior Notes due 2027 (the “Old 2027 Senior Notes”), 4.054% Senior Notes due 2029 (the “Old 2029 Senior Notes”), 4.279% Senior Notes due 2032 (the “Old 2032 Senior Notes”), 5.050% Senior Notes due 2042 (the “Old 2042 Senior Notes”), 5.141% Senior Notes due 2052 (the “Old 2052 Senior Notes”), 5.391% Senior Notes due 2062 (the “Old 2062 Senior Notes”) and Floating Rate Senior Notes due 2024 (the “Old Floating Rate Senior Notes” and together with the Old 2024 Senior Notes, the Old 2024 NC1 Senior Notes, the Old 2025 Senior Notes, the Old 2025 NC1 Senior Notes, the Old 2027 Senior Notes, the Old 2029 Senior Notes, the Old 2032 Senior Notes, the Old 2042 Senior Notes, the Old 2052 Senior Notes and the Old 2062 Senior Notes, the “Old Notes”) for its 3.428% Senior Notes due 2024 (the “New 2024 Senior Notes”), 3.528% Senior Notes due 2024 (the “New 2024 NC1 Senior Notes”), 3.638% Senior Notes due 2025 (the “New 2025 Senior Notes”), 3.788% Senior Notes due 2025 (the “New 2025 NC1 Senior Notes”), 3.755% Senior Notes due 2027 (the “New 2027 Senior Notes”), 4.054% Senior Notes due 2029 (the “New 2029 Senior Notes”), 4.279% Senior Notes due 2032 (the “New 2032 Senior Notes”), 5.050% Senior Notes due 2042 (the “New 2042 Senior Notes”), 5.141% Senior Notes due 2052 (the “New 2052 Senior Notes”), 5.391% Senior Notes due 2062 (the “New 2062 Senior Notes”) and Floating Rate Senior Notes due 2024 (the “New Floating Rate Senior Notes” and together with the New 2024 Senior Notes, the New 2024 NC1 Senior Notes, the New 2025 Senior Notes, the New 2025 NC1 Senior Notes, the New 2027 Senior Notes, the New 2029 Senior Notes, the New 2032 Senior Notes, the New 2042 Senior Notes, the New 2052 Senior Notes and the New 2062 Senior Notes, the “New Notes”), respectively, which have been registered under the Securities Act of 1933, as amended (the “Securities Act”), upon the terms and subject to the conditions described in the Prospectus and the Letter of Transmittal. The Exchange Offer is being made in order to satisfy certain obligations of the Issuer contained in the Registration Rights Agreement, dated March 15, 2022, relating to the Old Notes, by and among the Issuer, J.P. Morgan Securities LLC and Goldman Sachs & Co. LLC, as representatives of the initial purchasers.
This material is being forwarded to you as the beneficial owner of the Old Notes held by us for your account but not registered in your name. A tender of such Old Notes may only be made by us as the holder of record and pursuant to your instructions.
Accordingly, we request instructions as to whether you wish us to tender on your behalf the Old Notes held by us for your account, pursuant to the terms and conditions set forth in the enclosed Prospectus and Letter of Transmittal.
Your instructions should be forwarded to us as promptly as possible in order to permit us to tender the Old Notes on your behalf in accordance with the provisions of the Exchange Offer. The Exchange Offer will expire at 5:00 P.M., New York City time, on , 2023, unless extended by the Issuer (such time and date as to the Exchange Offer, as the same may be extended, the “Expiration Date”). Any Old Notes tendered pursuant to the Exchange Offer may be withdrawn at any time before 5:00 P.M., New York City time, on the Expiration Date.
Your attention is directed to the following:
1. The Exchange Offer is for any and all Old Notes.
2. The Exchange Offer is subject to certain conditions set forth in the Prospectus in the section captioned “The Exchange Offer—Conditions to the Exchange Offer.”
3. Any transfer taxes incident to the transfer of Old Notes from the holder to the Issuers will be paid by the Issuer, except as otherwise provided in the Instructions in the Letter of Transmittal.
4. The Exchange Offer expires at 5:00 P.M., New York City time, on , 2023, unless extended by the Issuer.
If you wish to have us tender your Old Notes, please so instruct us by completing, executing and returning to us the instruction form on the back of this letter. The Letter of Transmittal is furnished to you for information only and may not be used directly by you to tender Old Notes.
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INSTRUCTIONS WITH RESPECT TO THE EXCHANGE OFFER
The undersigned acknowledge(s) receipt of your letter and the enclosed material referred to therein relating to the Exchange Offer made by WarnerMedia Holdings, Inc. with respect to the Old Notes.
This will instruct you to tender the Old Notes held by you for the account of the undersigned, upon and subject to the terms and conditions set forth in the Prospectus and the related Letter of Transmittal.
The aggregate principal amount of Old Notes held by you for the account of the undersigned is (fill in amounts, as applicable):
CHECK ONE:
| ☐ | 3.428% Senior Notes due 2024 | $ | ||
| ☐ | 3.528% Senior Notes due 2024 | $ | ||
| ☐ | 3.638% Senior Notes due 2025 | $ | ||
| ☐ | 3.788% Senior Notes due 2025 | $ | ||
| ☐ | 3.755% Senior Notes due 2027 | $ | ||
| ☐ | 4.054% Senior Notes due 2029 | $ | ||
| ☐ | 4.279% Senior Notes due 2032 | $ | ||
| ☐ | 5.050% Senior Notes due 2042 | $ | ||
| ☐ | 5.141% Senior Notes due 2052 | $ | ||
| ☐ | 5.391% Senior Notes due 2062 | $ | ||
| ☐ | Floating Rate Senior Notes due 2024 | $ |
With respect to the Exchange Offer, the undersigned hereby instructs you (check appropriate box):
☐ To TENDER the aggregate principal amount of Old Notes held by you for the account of the undersigned (insert principal amount of Old Notes to be tendered (if any)):
| ☐ | 3.428% Senior Notes due 2024 | $ | ||
| ☐ | 3.528% Senior Notes due 2024 | $ | ||
| ☐ | 3.638% Senior Notes due 2025 | $ | ||
| ☐ | 3.788% Senior Notes due 2025 | $ | ||
| ☐ | 3.755% Senior Notes due 2027 | $ | ||
| ☐ | 4.054% Senior Notes due 2029 | $ | ||
| ☐ | 4.279% Senior Notes due 2032 | $ | ||
| ☐ | 5.050% Senior Notes due 2042 | $ | ||
| ☐ | 5.141% Senior Notes due 2052 | $ | ||
| ☐ | 5.391% Senior Notes due 2062 | $ | ||
| ☐ | Floating Rate Senior Notes due 2024 | $ |
☐ NOT to TENDER any Old Notes held by you for the account of the undersigned.
If the undersigned instructs you to tender Old Notes held by you for the account of the undersigned, it is understood that you are authorized to make, on behalf of the undersigned (and the undersigned, by its signature below, hereby makes to you), the representations and warranties contained in the Letter of Transmittal that are to be made with respect to the undersigned as a beneficial owner, including but not limited to the representations that (i) the New Notes acquired pursuant to the Exchange Offer are being acquired in the ordinary course of business of the person receiving such New Notes, whether or not such person is the undersigned, (ii) neither the undersigned nor any such other person is participating in, intends to participate in or has an arrangement or understanding with any person to participate in the distribution (within the meaning of the Securities Act) of Old Notes or New Notes, (iii) neither the undersigned nor any such other person is an “affiliate,” as defined in Rule 405 under the Securities Act, of any Issuer, and (iv) neither the undersigned nor any such other person is acting on behalf of any person who could not truthfully make the foregoing representations and warranties. If the undersigned is a broker-dealer that will receive New Notes for its own account in exchange for Old Notes, it represents that the Old Notes to be exchanged for the New Notes were acquired by it as a result of market-making activities or other trading activities and acknowledges that it will deliver a prospectus meeting the requirements of the Securities Act in connection with any resale of such New Notes; however, by so acknowledging and by delivering a prospectus meeting the requirements of the Securities Act, the undersigned will not be deemed to admit that it is an “underwriter” within the meaning of the Securities Act.
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SIGN HERE
Dated:
| Signature(s): |
| Print name(s) here: |
| Print Address(es): |
| Area Code and Telephone Number(s): |
| Tax Identification or Social Security Number(s): |
None of the Old Notes held by us for your account will be tendered unless we receive written instructions from you to do so. Unless a specific contrary instruction is given in the space provided, your signature(s) hereon shall constitute an instruction to us to tender all the Old Notes held by us for your account.
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Exhibit 99.4
Rule 438 Consent of Prospective Director
In accordance with Rule 438 promulgated under the Securities Act of 1933, as amended, I hereby consent to my being named in the Registration Statement on Form S-4 and all amendments (including post-effective amendments) thereto (the “Registration Statement”) filed by Warner Bros. Discovery, Inc. with the Securities and Exchange Commission and any prospectus contained therein and any amendments or supplements thereto, as a person who is to become a director of Warner Bros. Discovery, Inc., effective as of April 2, 2023, and to the filing of this consent as an exhibit to the Registration Statement.
| By: | /s/ Kenneth W. Lowe | |
| Name: Kenneth W. Lowe | ||
| Date: March 22, 2023 | ||