-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, JUeMtdKyi62paKLVRQCHy+w4hbpAOCLKfncXonCh3I4RRmsFGjqnlRH3jyZZWoVp /+le0v1qr5p8InRQAzS/hA== 0000912057-95-009117.txt : 19951101 0000912057-95-009117.hdr.sgml : 19951101 ACCESSION NUMBER: 0000912057-95-009117 CONFORMED SUBMISSION TYPE: S-3/A PUBLIC DOCUMENT COUNT: 9 FILED AS OF DATE: 19951031 SROS: NONE FILER: COMPANY DATA: COMPANY CONFORMED NAME: DISNEY WALT CO CENTRAL INDEX KEY: 0000029082 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-MISCELLANEOUS AMUSEMENT & RECREATION [7990] IRS NUMBER: 950684440 STATE OF INCORPORATION: DE FISCAL YEAR END: 0930 FILING VALUES: FORM TYPE: S-3/A SEC ACT: 1933 Act SEC FILE NUMBER: 033-62777 FILM NUMBER: 95585754 BUSINESS ADDRESS: STREET 1: 500 S BUENA VISTA ST CITY: BURBANK STATE: CA ZIP: 91521-6205 BUSINESS PHONE: 8185697903 MAIL ADDRESS: STREET 1: 500 SOUTH BUENA VISTA STREET CITY: BURBANK STATE: CA ZIP: 91521- FORMER COMPANY: FORMER CONFORMED NAME: DISNEY WALT PRODUCTIONS DATE OF NAME CHANGE: 19860221 FILER: COMPANY DATA: COMPANY CONFORMED NAME: DC HOLDCO INC CENTRAL INDEX KEY: 0001001039 STANDARD INDUSTRIAL CLASSIFICATION: [] IRS NUMBER: 954545390 STATE OF INCORPORATION: DE FISCAL YEAR END: 0930 FILING VALUES: FORM TYPE: S-3/A SEC ACT: 1933 Act SEC FILE NUMBER: 033-62777-01 FILM NUMBER: 95585755 BUSINESS ADDRESS: STREET 1: 500 SOUTH BUENA VISTA ST CITY: BURBANK STATE: CA ZIP: 91521 BUSINESS PHONE: 8185601000 MAIL ADDRESS: STREET 1: 500 SOUTH BUENA VISTA ST CITY: BURBANK STATE: CA ZIP: 91521 S-3/A 1 S-3 AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 31, 1995 REGISTRATION NO. 33-62777 - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ------------------------ AMENDMENT NO. 1 TO FORM S-3 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ------------------------ THE WALT DISNEY COMPANY DELAWARE 95-0684440 DC HOLDCO, INC. DELAWARE 95-4545390 (Exact name of registrant (State or other jurisdiction of (I.R.S. employer as specified in its charter) incorporation or organization) identification number)
DAVID K. THOMPSON SENIOR VICE PRESIDENT -- ASSISTANT GENERAL COUNSEL 500 SOUTH BUENA VISTA STREET THE WALT DISNEY COMPANY BURBANK, CALIFORNIA 91521 500 SOUTH BUENA VISTA STREET (818) 560-1000 BURBANK, CALIFORNIA 91521 (Address, including zip code and telephone number, (818) 560-1000 including area code, of registrant's (Name, address, including zip code and principal executive offices) telephone number, including area code, of agent for service)
COPY TO: Thomas C. Janson, Jr. Skadden, Arps, Slate, Meagher & Flom 300 South Grand Avenue, Suite 3400 Los Angeles, California 90071 (213) 687-5000 ------------------------ APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time to time after this Registration Statement becomes effective. If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. / / If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. /X/ If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please 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(c) 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 delivery of the prospectus is expected to be made pursuant to Rule 434, please check the following box. /X/ ------------------------ THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANTS 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 THIS REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A), MAY DETERMINE. - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE. SUBJECT TO COMPLETION, DATED OCTOBER 31, 1995 PROSPECTUS THE WALT DISNEY COMPANY DC HOLDCO, INC. SECURITIES ------------------ This Prospectus relates to the offering of securities described herein of The Walt Disney Company, a Delaware corporation ("Disney"), and of DC Holdco, Inc., a Delaware corporation ("New Disney"). New Disney is currently a wholly owned subsidiary of Disney and, upon completion of the acquisition (the "Acquisition") by Disney of Capital Cities/ABC, Inc. ("Capital Cities"), New Disney will become the parent corporation of Disney and Capital Cities and be renamed "The Walt Disney Company." See "The Acquisition." New Disney may offer from time to time (i) debt securities (the "Debt Securities"), which may be any of senior debt securities ("Senior Debt Securities"), senior subordinated debt securities ("Senior Subordinated Debt Securities") or subordinated debt securities ("Subordinated Debt Securities"), in each case consisting of debentures, notes and/or other unsecured evidences of indebtedness, (ii) shares of preferred stock (the "Preferred Stock"), which may be issued in the form of depositary receipts (the "Depositary Shares"), each of which will represent a fraction of a share of Preferred Stock, and (iii) warrants to purchase Debt Securities or Preferred Stock as shall be designated by New Disney at the time of the offering (the "Warrants"). The Debt Securities, the Preferred Stock, the Depositary Shares, the Warrants and any guarantees of the foregoing by Disney are collectively referred to as the "Securities" and will have an aggregate initial offering price of up to $5,000,000,000 or the equivalent thereof in U.S. dollars if any Securities are denominated in a currency other than U.S. dollars or in currency units. If any Securities are issued by New Disney prior to the consummation of the Acquisition, then the payment of principal, interest and dividends thereon, together with any amounts payable upon liquidation or upon redemption of such Securities, will be guaranteed by Disney to the extent and on the terms described herein and in the accompanying Prospectus Supplement (as defined below). Upon consummation of the Acquisition, any such guarantees by Disney will be released. The Securities may be offered separately or together (in any combination) and as separate series, in any case in amounts, at prices and on terms to be determined at the time of sale. The form in which the Securities are to be issued, their specific designation, aggregate principal amount or aggregate initial offering price, maturity, if any, rate and times of payment of interest or dividends, if any, redemption, conversion, exchange and sinking fund terms, if any, voting or other rights, if any, exercise price and detachability, if any, and other specific terms will be set forth in a Prospectus Supplement (including any related term sheet) relating to such Securities (the "Prospectus Supplement"), together with the terms of offering of such Securities. If so specified in the applicable Prospectus Supplement, Debt Securities of a series may be issued in whole or in part in the form of one or more temporary or permanent global securities. The Prospectus Supplement will also contain information, as applicable, about certain material United States Federal income tax considerations relating to the particular Securities offered thereby. The Prospectus Supplement will also contain information, where applicable, as to any listing on a national securities exchange of the Securities covered by such Prospectus Supplement. ------------------------ THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE. ------------------------ The Securities may be sold directly, through agents designated from time to time or to or through underwriters or dealers. See "Plan of Distribution." If any agents of an issuer or any underwriters are involved in the sale of any Securities in respect of which this Prospectus is being delivered, the names of such agents or underwriters and any applicable commissions or discounts will be set forth in a Prospectus Supplement. The net proceeds to the applicable issuer(s) from such sale also will be set forth in a Prospectus Supplement. ------------------------ , 1995 AVAILABLE INFORMATION Disney and Capital Cities are each subject to the informational requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance therewith, file reports, proxy statements and other information with the Securities and Exchange Commission (the "Commission"). Such reports, proxy statements and other information can be inspected and copied at the public reference facilities maintained by the Commission at Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549; 7 World Trade Center, 13th Floor, New York, New York 10048; and Citicorp Center, 500 West Madison Street, Suite 1400, Chicago, Illinois 60661. Copies of such material can be obtained at prescribed rates from the Public Reference Section of the Commission at 450 Fifth Street, N.W., Washington, D.C. 20549. Such reports and other information concerning Disney and Capital Cities may also be inspected at the offices of the New York Stock Exchange, 20 Broad Street, New York, New York 10005 and the Pacific Stock Exchange, 115 Sansome Street, 2nd Floor, San Francisco, California 94104. Information set forth herein relating to Capital Cities is derived entirely from public filings made by Capital Cities and is being provided in contemplation of the Acquisition. Consummation of the Acquisition is subject to a number of important contingencies, and no assurances can be given that it will occur. An investment in the Securities prior to the consummation of the Acquisition should not be made in reliance upon the Acquisition occurring. See "The Acquisition." If the Acquisition is consummated, Disney and Capital Cities intend to terminate or suspend, to the extent permitted by applicable law, their reporting obligations under the Exchange Act and, accordingly, may no longer file reports or other information with the Commission. Instead, following the Acquisition, New Disney will become subject to the informational requirements under the Exchange Act and information would be provided, to the extent required, in filings made by New Disney thereunder. Disney and New Disney (collectively, the "Issuers") have filed with the Commission in Washington, D.C. a registration statement on Form S-3 (including all amendments thereto, the "Registration Statement") under the Securities Act of 1933, as amended (the "Securities Act"), with respect to the Securities offered hereby. As permitted by the rules and regulations of the Commission, this Prospectus does not contain all of the information set forth in the Registration Statement and the exhibits and schedules thereto. Such additional information is available for inspection and copying at the offices of the Commission. Statements contained in this Prospectus, in any Prospectus Supplement or in any document incorporated by reference herein or therein as to the contents of any contract or other document referred to herein or therein are not necessarily complete, and in each instance reference is made to the copy of such contract or other document filed as an exhibit to, or incorporated by reference in, the Registration Statement, each such statement being qualified in all respects by such reference. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE The following documents previously filed by Disney (File No. 1-4083) with the Commission under the Exchange Act are incorporated herein by reference: (a) Disney's Annual Report on Form 10-K for the fiscal year ended September 30, 1994 (the "Disney Form 10-K"); (b) Disney's Quarterly Reports on Form 10-Q for the quarters ended December 31, 1994, March 31, 1995 and June 30, 1995 (the "Disney Form 10-Qs"); and (c) Disney's Current Reports on Form 8-K, dated July 31, 1995 and October 6, 1995 (collectively with the Disney Form 10-K and the Disney Form 10-Qs, the "Disney Reports"). The following documents previously filed by Capital Cities (File No. 1-4278) with the Commission under the Exchange Act are incorporated herein by reference: (a) Capital Cities' Annual Report on Form 10-K for the year ended December 31, 1994 (the "Capital Cities Form 10-K"); 2 (b) Capital Cities' Quarterly Reports on Form 10-Q for the quarters ended April 2, 1995 and July 2, 1995 (the "Capital Cities Form 10-Qs"); and (c) Capital Cities' Current Reports on Form 8-K, dated July 31, 1995 and October 6, 1995 (collectively with the Capital Cities Form 10-K and the Capital Cities Form 10-Qs, the "Capital Cities Reports"). The Joint Proxy Statement/Prospectus of Disney and Capital Cities, previously filed with the Commission under the Exchange Act, is also incorporated herein by reference. All documents filed by Disney or Capital Cities pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this Prospectus and prior to the termination of the offering of the Securities made hereby shall be deemed to be incorporated by reference into this Prospectus and to be a part hereof from the date of filing of such documents. If the Acquisition is consummated, Disney and Capital Cities intend to terminate or suspend, to the extent permitted by applicable law, their reporting obligations under the Exchange Act and, accordingly, may no longer file reports or other information with the Commission. Instead, following the Acquisition, New Disney will become subject to the informational requirements under the Exchange Act and information would be provided, to the extent required, in filings made by New Disney thereunder. Accordingly, all documents filed by New Disney, pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act from and after the consummation of the Acquisition, and prior to the termination of the offering of the Securities made hereby, shall be deemed to be incorporated by reference into this Prospectus and to be a part hereof from the date of filing of such documents. Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes hereof to the extent that a statement contained herein (or in any other subsequently filed document that is or is deemed to be incorporated by reference herein) modifies or supersedes such previous statement. Any statement so modified or superseded shall not be deemed to constitute a part hereof except as so modified or superseded. Disney or, after the consummation of the Acquisition, New Disney will provide without charge to each person to whom a copy of this Prospectus has been delivered, on the written or oral request of such person, a copy of any or all of the documents referred to above which have been or may be incorporated by reference in this Prospectus other than exhibits to such documents, unless such exhibits are also specifically incorporated by reference herein. Requests for such copies should be directed to The Walt Disney Company, 500 South Buena Vista Street, Burbank, California 91521, Attention: Corporate Secretary; telephone number (818) 560-1000. ------------------------ Unless otherwise indicated, currency amounts in this Prospectus and any Prospectus Supplement are stated in United States dollars ("$," "dollars," "U.S. dollars" or "U.S.$"). ------------------------ NO DEALER, SALESMAN OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY REPRESENTATION NOT CONTAINED IN THIS PROSPECTUS OR ANY PROSPECTUS SUPPLEMENT AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY ANY OF THE ISSUERS OR ANY UNDERWRITER OR AGENT. THIS PROSPECTUS AND ANY PROSPECTUS SUPPLEMENT DO NOT CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO BUY ANY OF THE SECURITIES OFFERED HEREBY IN ANY JURISDICTION TO ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER IN SUCH JURISDICTION. NEITHER THE DELIVERY OF THIS PROSPECTUS OR ANY PROSPECTUS SUPPLEMENT NOR ANY SALE MADE HEREUNDER AND THEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THE INFORMATION HEREIN OR THEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO THEIR RESPECTIVE DATES. 3 BUSINESS OF DISNEY Disney is a diversified international entertainment company with operations in three business segments: Filmed Entertainment, Theme Parks and Resorts, and Consumer Products. Disney employs approximately 69,000 people. In its Filmed Entertainment business segment, Disney produces and acquires live-action and animated motion pictures for distribution to the theatrical, television and home video markets. Disney also produces original television programming for the network and first-run syndication markets. In addition, Disney provides programming for and operates The Disney Channel, a pay television programming service, and KCAL-TV, a Los Angeles, California television station. The success of all of Disney's theatrical motion pictures and television programming is heavily dependent upon public taste, which is unpredictable and subject to change without warning. In addition, filmed entertainment operating results fluctuate due to the timing of theatrical and home video releases. Release dates are determined by several factors, including timing of vacation and holiday periods and competition in the market. The Theme Parks and Resorts business segment includes Disney's operation of the Walt Disney World-Registered Trademark- destination resort in Florida and the Disneyland Park-Registered Trademark- and the Disneyland Hotel in California. In addition, Disney earns royalties on revenues generated by the Tokyo Disneyland theme park. All of the theme parks and most of the associated resort facilities are operated on a year-round basis. Historically, the theme parks and resorts business experiences fluctuations in park attendance and resort occupancy resulting from the nature of vacation travel. Peak attendance and resort occupancy generally occur during the summer months when school vacations occur and during early-winter and spring holiday periods. Disney's Consumer Products business segment involves the licensing of the name "Walt Disney," as well as Disney's characters, visual and literary properties and songs and music, to various consumer manufacturers, retailers, show promoters and publishers throughout the world. Disney also engages in direct retail distribution through The Disney Stores and consumer catalogs, and is a publisher of books, magazines and comics in the United States and Europe. In addition, Disney produces audio and computer software for all markets, as well as film and video products for the educational marketplace. Operating results for the consumer products business are influenced by seasonal consumer purchasing behavior and by the timing of animated theatrical releases. Disney is a Delaware corporation organized in 1986 as a successor to a California corporation organized in 1938. As used herein, unless otherwise specified or unless the context otherwise requires, the term "Disney" includes The Walt Disney Company and its subsidiaries. Disney's principal executive offices are located at 500 South Buena Vista Street, Burbank, California 91521, and its telephone number is (818) 560-1000. BUSINESS OF NEW DISNEY New Disney, a wholly owned subsidiary of Disney, has not conducted any substantial business activities to date, other than those incident to its formation, its execution of the Merger Agreements (as defined below), its participation in the preparation of the Registration Statement and this Prospectus and other actions taken in contemplation of the consummation of the Acquisition or in connection herewith. Immediately following the consummation of the Acquisition, New Disney will become a holding company for Disney and Capital Cities and their respective subsidiaries. Accordingly, the business of New Disney, through its wholly owned subsidiaries Disney and Capital Cities and their respective subsidiaries, will be the business currently conducted by Disney and Capital Cities and their respective subsidiaries. Consummation of the Acquisition is subject to a number of important contingencies, and no assurances can be given that it will occur. An investment in the Securities prior to the consummation of the Acquisition should not be made in reliance upon the Acquisition occurring. See "The Acquisition," "Business of Disney" and "Business of Capital Cities." 4 New Disney is a Delaware corporation organized in 1995. As used herein, unless otherwise specified or unless the context otherwise requires, the term "New Disney" refers to DC Holdco, Inc. and includes its subsidiaries, including, after the consummation of the Acquisition, Disney and Capital Cities. New Disney's principal executive offices are located at 500 South Buena Vista Street, Burbank, California 91521, and its telephone number is (818) 560-1000. THE ACQUISITION Disney and Capital Cities have entered into an Amended and Restated Agreement and Plan of Reorganization, dated as of July 31, 1995 (the "Reorganization Agreement"), which, together with related merger agreements (the "Merger Agreements"), provides for the merger of DCA Merger Corp., a Delaware corporation and a wholly owned subsidiary of New Disney (the "Disney Merger"), with and into Disney and the merger of DCB Merger Corp., a Delaware corporation and a wholly owned subsidiary of New Disney, with and into Capital Cities (the "Capital Cities Merger"). The reorganization of the business of Disney and Capital Cities contemplated by the Reorganization Agreement and the Merger Agreements is referred to herein as the "Acquisition." As a result of the Acquisition, each of Disney and Capital Cities will become a wholly owned subsidiary of New Disney. Following the consummation of the Acquisition, New Disney will be renamed "The Walt Disney Company." Upon consummation of the Capital Cities Merger, each Outstanding Capital Cities Share (as defined below) will be converted into the right to receive cash, shares of common stock, par value $0.01 per share, of New Disney ("New Disney Common Stock") or a combination of both cash and New Disney Common Stock. Each Capital Cities shareholder will have the opportunity to indicate, on a form of election (the "Election Form"), whether such shareholder wishes to make a Standard Election, a Stock Election or a Cash Election (as such terms are defined below) for each share of common stock, par value $0.10 per share, of Capital Cities ("Capital Cities Common Stock") held by such shareholder. The allocation of cash and/or shares of New Disney Common Stock that a shareholder of Capital Cities may receive will depend on (i) the stated preferences of the Capital Cities shareholders on the Election Forms and (ii) the proration procedures to be applied if the Requested Stock Amount exceeds the Stock Component or the Requested Cash Amount exceeds the Cash Component (as such terms are defined below). Shareholders of Capital Cities who make an effective "Standard Election" will receive, for each share of Capital Cities Common Stock for which such election is made, one share of New Disney Common Stock plus $65 in cash (collectively, the "Standard Consideration"). The number of shares of New Disney Common Stock and the amount of cash to be distributed to Capital Cities shareholders who make an effective Standard Election will not be affected in any way by the proration procedures described below. Shareholders of Capital Cities who make an effective "Stock Election" will receive (subject to the proration procedures described below), for each share of Capital Cities Common Stock for which such election is made, (i) one share of New Disney Common Stock plus (ii) a number of shares of New Disney Common Stock equal to a fraction, the numerator of which is $65 and the denominator of which is the Disney Common Stock Price (collectively, the "Stock Consideration"). The "Disney Common Stock Price" is an amount equal to the average of the closing sales prices of Disney Common Stock on the New York Stock Exchange Composite Tape on each of the ten consecutive trading days immediately preceding the second trading day prior to the Effective Time. "Effective Time" means the time and date which is the later of (a) the date and time of the filing of the certificate of merger relating to the Disney Merger with the Secretary of State of the State of Delaware (or such other date and time as may be specified in such certificate as permitted by Delaware law) and (b) the date and time of the filing of a certificate of merger by the Department of State of the State of New York with respect to the Capital Cities Merger (or such other date and time as may be specified in such certificate as permitted by New York law). Shareholders of Capital Cities who make an effective "Cash Election" will receive (subject to the proration procedures described below) for each share of Capital Cities Common Stock for which such election is made, in cash, an amount equal to $65 plus the Disney Common Stock Price (collectively, the "Cash Consideration"). If a holder of Capital Cities Common 5 Stock does not make a Standard Election, a Cash Election or a Stock Election, or properly revokes an effective, properly completed Election Form without timely submitting a revised, properly completed Election Form, such Capital Cities shareholder will be deemed to have made a Cash Election. In the event that the aggregate number of shares of New Disney Common Stock requested by shareholders of Capital Cities pursuant to effective Stock Elections (the "Requested Stock Amount") exceeds the Stock Component, each holder making an effective Stock Election will receive, for each share of Capital Cities Common Stock for which a Stock Election has been made, (x) a number of shares of New Disney Common Stock equal to the product of the Stock Consideration and a fraction, the numerator of which is the Stock Component and the denominator of which is the Requested Stock Amount (such product, the "Prorated Stock Amount") and (y) cash in an amount equal to the product of (a) the Stock Consideration minus the Prorated Stock Amount and (b) the Disney Common Stock Price. The "Stock Component" is the number of Outstanding Capital Cities Shares minus the aggregate number of Outstanding Capital Cities Shares with respect to which effective Standard Elections have been received by the Exchange Agent (as defined below). The "Outstanding Capital Cities Shares" consist of the shares of Capital Cities Common Stock outstanding immediately prior to the Effective Time (which is exclusive of shares of Capital Cities Common Stock held in the Capital Cities treasury) minus the number of shares of Capital Cities Common Stock with respect to which dissenters' rights have been perfected pursuant to Section 623 of the New York Business Corporation Law ("Dissenting Shares"). In the event that the aggregate amount of cash requested by shareholders of Capital Cities pursuant to effective or deemed Cash Elections (the "Requested Cash Amount") exceeds the Cash Component, each such holder will receive, for each share of Capital Cities Common Stock for which a Cash Election has been made or deemed to be made, (x) cash in an amount equal to the product of the Cash Consideration and a fraction, the numerator of which is the Cash Component and the denominator of which is the Requested Cash Amount (such product, the "Prorated Cash Amount") and (y) a number of shares of New Disney Common Stock equal to a fraction, the numerator of which is equal to the Cash Consideration minus the Prorated Cash Amount and the denominator of which is the Disney Common Stock Price. The "Maximum Cash Amount" is equal to the product of the number of Outstanding Capital Cities Shares and $65; PROVIDED, HOWEVER, that the Maximum Cash Amount may be increased in Disney's sole discretion at any time prior to the fifth business day after the deadline (the "Election Deadline") for Capital Cities shareholders to submit to the Exchange Agent appointed pursuant to the Reorganization Agreement (the "Exchange Agent") their completed Election Forms. The Election Deadline will be no later than the 20th business day after the Effective Time. The "Cash Component" is equal to the Maximum Cash Amount minus the product of (i) the number of shares of Capital Cities Common Stock for which effective Standard Elections have been made and (ii) $65. See "Unaudited Pro Forma Combined Condensed Financial Statements." No fractional shares of New Disney Common Stock will be issued pursuant to the Capital Cities Merger. In lieu of the issuance of any fractional shares of New Disney Common Stock, cash equal to the product of such fractional share amount and the Disney Common Stock Price will be paid to holders in respect of any fractional share of New Disney Common Stock that would otherwise be issuable. The obligations of Disney and Capital Cities to consummate the Acquisition are subject to the fulfillment of various conditions, including, among others: (i) the effectiveness of the Registration Statement relating to the Acquisition and the absence of any stop order suspending the effectiveness thereof and no proceeding for that purpose having been initiated by the Commission; (ii) approval by the stockholders of Disney and the shareholders of Capital Cities; (iii) expiration or termination of the applicable waiting period under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended; (iv) receipt of all requisite orders and approvals of the Federal Communications Commission; and (v) listing of the New Disney Common Stock on the New York Stock Exchange, subject only to official notice of issuance. Consummation of the Acquisition is subject to a number of important 6 contingencies, and no assurances can be given that it will occur. An investment in the Securities prior to the consummation of the Acquisition should not be made in reliance upon the Acquisition occurring. BUSINESS OF CAPITAL CITIES Capital Cities, directly or through its subsidiaries, operates the ABC Television Network, ten television stations, the ABC Radio Networks and 21 radio stations, and provides programming for cable television. Capital Cities, through joint ventures, is engaged in international broadcast/cable services and television production and distribution. Capital Cities also publishes daily and weekly newspapers, shopping guides, various specialized and business periodicals and books, provides research services and also distributes information from databases. Capital Cities' assets include the ABC Television Network, which as of June 30, 1995 had 224 primary affiliated stations reaching 99.9% of all U.S. television households. A number of secondary affiliated stations add to the primary coverage. In addition, Capital Cities owns nine very high frequency (VHF) television stations, one ultra high frequency (UHF) television station, eleven standard (AM) radio stations and ten frequency modulation (FM) radio stations. All but one television station are affiliated with the ABC Television Network and all but four radio stations are affiliated with the ABC Radio Networks. Generally, Capital Cities pays the cost of producing its own programs or acquiring broadcast rights from other producers for its network programming and pays varying amounts of compensation to its affiliated stations for broadcasting the programs and commercial announcements included therein. Substantially all revenues from network operations are derived from the sale to advertisers of time in network programs for commercial announcements. Capital Cities' Cable and International Broadcast operations are principally involved in the production and distribution of cable television programming, in the licensing of programming to domestic and international markets and in joint ventures in foreign-based television operations and television production and distribution entities. The primary domestic cable programming services are ESPN, A&E Television Network and Lifetime Television. Capital Cities' publishing operations (i) publish seven daily newspapers (five of which have Sunday editions); weekly community newspapers in four states; shopping guides and real estate magazines in eleven states; specialized publications that involve news and ideas for various industries; and consumer, special interest, trade and agricultural publications; and (ii) engage in research and database services. USE OF PROCEEDS Unless otherwise indicated in an accompanying Prospectus Supplement, New Disney intends to use the net proceeds from the sale of the Securities for general corporate purposes, including, without limitation, to finance a portion of the Acquisition or to repay commercial paper or other indebtedness incurred by New Disney to finance the Acquisition. If the Acquisition is not consummated, the net proceeds of any Securities issued by New Disney will be transferred to Disney and will be used by Disney for general corporate purposes. 7 RATIOS OF EARNINGS TO FIXED CHARGES Set forth below are the consolidated ratios of earnings to fixed charges for Disney for the nine-month periods ended June 30, 1995 and 1994 and for each of the years in the five-year period ended September 30, 1994. Also set forth below are the unaudited pro forma combined ratios of earnings to fixed charges for New Disney for the nine months ended June 30, 1995 and for the year ended September 30, 1994:
NINE MONTHS ENDED JUNE 30, YEAR ENDED SEPTEMBER 30, --------------- ------------------------------------- 1995 1994 1994 1993 1992 1991 1990 ----- ----- ----- ----- ----- ----- ----- Actual (1).................... 8x 8x 9x 7x 8x 6x 11x Pro forma (1)(2): Scenario 1.................. x x Scenario 2.................. x x - ------------------------ (1) For purposes of these ratios, earnings are calculated by adding to (subtracting from) income from continuing operations before income taxes and cumulative effect of accounting changes, the following: fixed charges, excluding capitalized interest; and losses and (undistributed earnings) recognized with respect to less than 50% owned equity investments. Fixed charges consist of interest on borrowings and that portion of rental expense that represents interest. (2) [Provided supplementally to the Staff of the Commission]
8 UNAUDITED PRO FORMA COMBINED CONDENSED FINANCIAL STATEMENTS [Provided supplementally to the Staff of the Commission] 9 DESCRIPTION OF THE DEBT SECURITIES The following description sets forth certain general terms and provisions of the Debt Securities to which any Prospectus Supplement may relate. The particular terms of the Debt Securities offered by any Prospectus Supplement and the extent, if any, to which such general provisions may apply to the Debt Securities so offered will be described in the Prospectus Supplement relating to such Debt Securities. The Debt Securities may be issued, from time to time, in one or more series, and will constitute either Senior Debt Securities, Senior Subordinated Debt Securities or Subordinated Debt Securities. Senior Debt Securities may be issued under an Indenture (the "Senior Debt Securities Indenture") to be entered into between New Disney, Disney, as guarantor, and Citibank, N.A., a national association, as trustee (the "Senior Debt Securities Trustee"). The Senior Subordinated Debt Securities may be issued from time to time under an Indenture (the "Senior Subordinated Debt Securities Indenture") to be entered into between New Disney, Disney, as guarantor, and a trustee to be named in the applicable Prospectus Supplement (the "Senior Subordinated Debt Securities Trustee"). The Subordinated Debt Securities may be issued from time to time under an Indenture (the "Subordinated Debt Securities Indenture") to be entered into between New Disney, Disney, as guarantor, and a trustee to be named in the applicable Prospectus Supplement (the "Subordinated Debt Securities Trustee"). The Senior Debt Securities Indenture, the Senior Subordinated Debt Securities Indenture, and the Subordinated Debt Securities Indenture are referred to herein individually as an "Indenture" and, collectively, as the "Indentures," and the Senior Debt Securities Trustee, the Senior Subordinated Debt Securities Trustee and the Subordinated Debt Securities Trustee are referred to herein individually as the "Trustee" and collectively as the "Trustees." Copies of the Indentures are filed as exhibits to the Registration Statement. Capitalized terms used in this section which are not otherwise defined in this Prospectus shall have the meanings set forth in the Indentures to which they relate. The following summaries of certain provisions of the Debt Securities and the Indentures do not purport to be complete and are subject to, and are qualified in their entirety by express reference to, all the provisions of the Indentures, including the definitions therein of certain terms. As used in this section of the Prospectus, "New Disney" refers to DC Holdco, Inc. and does not include its subsidiaries, including, after consummation of the Acquisition, Disney or Capital Cities. GENERAL The Debt Securities will be direct, unsecured obligations of New Disney. The Indentures do not limit the aggregate principal amount of Debt Securities that may be issued thereunder and provide that Debt Securities may be issued thereunder from time to time in one or more series. Under the Indentures, New Disney will have the ability to issue Debt Securities with terms different from those of Debt Securities previously issued, without the consent of the holders of previously issued series of Debt Securities, in an aggregate principal amount determined by New Disney. Securities may be issued as Discount Securities, which may be sold at a discount below their principal amount. Even if Securities are not issued at a discount below their principal amount, such Securities may, for United States Federal income tax purposes, be deemed to have been issued with "original issue discount" ("OID") because of certain interest payment characteristics. Special United States Federal income tax considerations applicable to Securities issued with original issue discount, including Discount Securities, will be described in more detail in any applicable Prospectus Supplement. In addition, special United States Federal tax considerations or other restrictions or terms applicable to any Debt Securities which are issuable in bearer form, offered exclusively to United States Aliens or denominated in a currency other than United States dollars will be set forth in a Prospectus Supplement relating thereto. 10 The applicable Prospectus Supplement or Prospectus Supplements will describe, among other things, the following terms of the Debt Securities offered thereby (the "Offered Debt Securities"): (i) the title of the Offered Debt Securities; (ii) any limit on the aggregate principal amount of the Offered Debt Securities; (iii) whether the Offered Debt Securities are to be issuable as registered securities or bearer securities or both and whether the Offered Debt Securities may be represented initially by a Debt Security in temporary or permanent global form, and if so, the initial Depositary with respect to such temporary or permanent global Debt Security and whether and the circumstances under which beneficial owners of interests in any such temporary or permanent global Debt Security may exchange such interests for Debt Securities of such series and of like tenor of any authorized form and denomination; (iv) the price or prices at which the Offered Debt Securities will be issued; (v) the date or dates on which the principal of the Offered Debt Securities is payable or the method of determination thereof; (vi) the place or places where and the manner in which the principal of and premium, if any, and interest, if any, on such Offered Debt Securities will be payable and the place or places where such Offered Debt Securities may be presented for transfer and, if applicable, conversion or exchange; (vii) the rate or rates at which the Offered Debt Securities will bear interest, or the method of calculating such rate or rates, if any, and the date or dates from which such interest, if any, will accrue; (viii) the Stated Maturities (as defined below) of installments of interest (the "Interest Payment Dates"), if any, on which any interest on the Offered Debt Securities will be payable, and the Regular Record Date for any interest payable on any Offered Debt Securities which are registered securities; (ix) the right or obligation, if any, of New Disney to redeem or purchase Debt Securities of the series pursuant to any sinking fund or analogous provisions or at the option of a holder thereof, the conditions, if any, giving rise to such right or obligation, and the period or periods within which, and the price or prices at which and the terms and conditions upon which Debt Securities of the series shall be redeemed or purchased, in whole or part, and any provisions for the remarketing of such Debt Securities; (x) whether such Offered Debt Securities are convertible or exchangeable into other debt or equity securities, and, if so, the terms and conditions upon which such conversion or exchange will be effected including the initial conversion or exchange price or rate and any adjustments thereto, the conversion or exchange period and other conversion or exchange provisions; (xi) the currency or currencies, including composite currencies or currency units, of payment of principal of and interest, if any, on the Offered Debt Securities, if other than U.S. dollars, and, if other than U.S. dollars, whether the Offered Debt Securities may be satisfied and discharged other than as provided in the Indenture and whether New Disney or the holders of any such Offered Debt Securities may elect to receive payments in respect of such Offered Debt Securities in a currency or currency units other than that in which such Offered Debt Securities are stated to be payable; (xii) any terms applicable to such Offered Debt Securities issued at an issue price below their stated principal amount, including the issue price thereof and the rate or rates at which such original issue discount will accrue; (xiii) if the amount of payments of principal of and interest, if any, on the Offered Debt Securities is to be determined by reference to an index or formula, or based on a coin or currency or currency unit other than that in which the Offered Debt Securities are stated to be payable, the manner in which such amounts are to be determined and the calculation agent, if any, with respect thereto; (xiv) if other than the principal amount thereof, the portion of the principal amount of the Offered Debt Securities which will be payable upon declaration or acceleration of the maturity thereof pursuant to an Event of Default; (xv) any deletions from, modifications of or additions to the Events of Default or covenants of New Disney with respect to such Offered Debt Securities, whether or not such Events of Default or covenants are consistent with the Events of Default or covenants set forth herein; (xvi) the terms and conditions of any Debt Guarantees (as defined below) of Disney with respect to the Offered Debt Securities, including the terms upon which any such guarantee may be released; (xvii) any special United States Federal income tax considerations applicable to the Offered Debt Securities; and (xviii) any other terms of the Offered Debt Securities not inconsistent with the provisions of any applicable Indenture. The applicable Prospectus Supplement will also describe the following terms of any series of Subordinated or Senior Subordinated Debt Securities offered hereby in respect of which this Prospectus is being delivered: (a) the rights, if any, to defer payments of interest on the Subordinated or Senior Subordinated Debt Securities of such series by extending the interest payment period, 11 and the duration of such extensions, and (b) the subordination terms of the Subordinated or Senior Subordinated Debt Securities of such series. The foregoing is not intended to be an exclusive list of the terms that may be applicable to any Offered Debt Securities and shall not limit in any respect the ability of New Disney to issue Debt Securities with terms different from or in addition to those described above or elsewhere in this Prospectus provided that such terms are not inconsistent with the applicable Indenture and this Prospectus. Any such Prospectus Supplement will also describe any special provisions for the payment of additional amounts with respect to the Offered Debt Securities. The operations of New Disney, if the Acquisition is consummated will be conducted almost entirely through subsidiaries. The operations of Disney are currently conducted in significant part through subsidiaries. Accordingly, the cash flow and the consequent ability to service debt of New Disney and Disney, including the Debt Securities and any Debt Guarantees of Disney, are dependent upon the earnings of their subsidiaries and the distribution of those earnings to New Disney or Disney, as the case may be, whether by dividends, loans or otherwise. The payment of dividends and the making of loans and advances to New Disney and Disney by their subsidiaries may be subject to statutory or contractual restrictions, are contingent upon the earnings of those subsidiaries and are subject to various business considerations. Any right of New Disney and Disney to receive assets of any of its subsidiaries upon their liquidation or reorganization (and the consequent right of the holders of the Debt Securities to participate in those assets) will be effectively subordinated to the claims of that subsidiary's creditors (including trade creditors), except to the extent that New Disney or Disney, as the case may be, is itself recognized as a creditor of such subsidiary, in which case the claims of New Disney or Disney, as the case may be, would still be subordinate to any security interests in the assets of such subsidiary and any indebtedness of such subsidiary senior to that held by New Disney or Disney. FORM, EXCHANGE, REGISTRATION AND TRANSFER The Debt Securities of a series may be issued solely as registered securities, solely as bearer securities (with or without coupons attached) or as both registered securities and bearer securities. Debt Securities of a series may be issuable in whole or in part in the form of one or more global Debt Securities, as described below under "Global Debt Securities." Unless otherwise indicated in an applicable Prospectus Supplement, registered securities will be issuable in denominations of $1,000 and integral multiples thereof, and bearer securities will be issuable in denominations of $5,000 and $100,000. Registered securities of any series will be exchangeable for other registered securities of the same series of any authorized denominations and of a like aggregate principal amount and tenor. In addition, if Debt Securities of any series are issuable as both registered securities and as bearer securities, at the option of the holder, subject to the terms of the applicable Indenture, bearer securities (accompanied by all unmatured coupons, except as provided below, and all matured coupons in default) of such series will be exchangeable for registered securities of the same series of any authorized denominations and of a like aggregate principal amount and tenor. Unless otherwise indicated in an applicable Prospectus Supplement, any bearer security surrendered in exchange for a registered security between a Regular Record Date or a Special Record Date and the relevant date for payment of interest will be surrendered without the coupon relating to such date for payment of interest and interest will not be payable in respect of the registered security issued in exchange for such bearer security, but will be payable only to the holder of such coupon when due in accordance with the terms of the applicable Indenture. Bearer securities may not be issued in exchange for registered securities. Debt Securities may be presented for exchange as provided above, and unless otherwise indicated in an applicable Prospectus Supplement, registered securities may be presented for registration of transfer, at the office or agency of New Disney designated as registrar or co-registrar with respect to any series of Debt Securities, without service charge and upon payment of any taxes, assessments or other governmental charges as described in the applicable Indenture. Such transfer or exchange will 12 be effected on the books of the registrar or any other transfer agent appointed by New Disney upon such registrar or transfer agent, as the case may be, being satisfied with the documents of title and identity of the person making the request. New Disney intends to initially appoint the Trustee as registrar and the name of any different or additional registrar designated by New Disney with respect to the Offered Debt Securities will be included in the Prospectus Supplement relating thereto. If a Prospectus Supplement refers to any transfer agents (in addition to the registrar) designated by New Disney with respect to any series of Debt Securities, New Disney may at any time rescind the designation of any such transfer agent or approve a change in the location through which any such transfer agent acts, except that, if Debt Securities of a series are issuable only as registered securities, New Disney will be required to maintain a transfer agent in each Place of Payment for such series and, if Debt Securities of a series are issuable as bearer securities, New Disney will be required to maintain (in addition to the registrar) a transfer agent in a Place of Payment for such series located outside the United States. New Disney may at any time designate additional transfer agents with respect to any series of Debt Securities. Unless otherwise indicated in an applicable Prospectus Supplement, the Indentures do not include covenants limiting the amount of indebtedness that may be incurred or otherwise restricting New Disney's or Disney's ability to enter into a highly leveraged transaction, including a reorganization, restructuring, merger or similar transaction involving New Disney or Disney, that may adversely affect the holders of the Debt Securities, if such transaction is a permissible consolidation, merger or similar transaction. In addition, unless otherwise specified in an applicable Prospectus Supplement, the Indentures do not afford the holders of the Debt Securities the right to require New Disney or Disney to repurchase or redeem the Debt Securities in the event of a highly leveraged transaction. See "Mergers and Sale of Assets." In the event of any partial redemption of Debt Securities of any series, New Disney will not be required to (i) issue, register the transfer of or exchange Debt Securities of that series during a period beginning at the opening of business 15 days before any selection of Debt Securities of that series to be redeemed and ending at the close of business on (a) if Debt Securities of the series are issuable only as registered securities, the day of mailing of the relevant notice of redemption, and (b) if Debt Securities of the series are issuable as bearer securities, the day of the first publication of the relevant notice of redemption or, if Debt Securities of the series are also issuable as registered securities and there is no publication, the mailing of the relevant notice of redemption; (ii) register the transfer of or exchange any registered security, or portion thereof, called for redemption, except the unredeemed portion of any registered security being redeemed in part; or (iii) exchange any bearer security called for redemption, except to exchange such bearer security for a registered security of that series and of like tenor and principal amount that is immediately surrendered for redemption. PAYMENT AND PAYING AGENTS Unless otherwise indicated in an applicable Prospectus Supplement, payment of principal of and interest, if any, on registered securities will be made at the office of such paying agent or paying agents as New Disney may designate from time to time, except that at the option of New Disney payment of principal or interest may be made by check or by wire transfer to an account maintained by the payee. Unless otherwise indicated in an applicable Prospectus Supplement, payment of any installment of interest on registered securities will be made to the person in whose name such registered security is registered at the close of business on the Regular Record Date for such interest. Unless otherwise indicated in an applicable Prospectus Supplement, payment of principal of and interest, if any, on bearer securities will be payable, subject to any applicable laws and regulations, at the offices of such paying agents outside the United States as New Disney may designate from time to time, or by check or by transfer to an account maintained by the payee outside the United States. Unless otherwise indicated in an applicable Prospectus Supplement, any payment of interest on any bearer securities will be made only against surrender of the coupon relating to such interest installment. 13 Unless otherwise indicated in an applicable Prospectus Supplement, the Trustee will be designated as New Disney's sole paying agent for payments with respect to Debt Securities which are issuable solely as registered securities and as New Disney's paying agent in the Borough of Manhattan, The City of New York, for payments with respect to Debt Securities (subject to any limitations described in any applicable Prospectus Supplement) which are issuable as bearer securities. Any paying agents outside the United States and any other paying agents in the United States initially designated by New Disney for the Offered Debt Securities will be named in an applicable Prospectus Supplement. New Disney may at any time designate additional paying agents or rescind the designation of any paying agent or approve a change in the office through which any paying agent acts, except that, if Debt Securities of a series are issuable only as registered securities, New Disney will be required to maintain a paying agent in each Place of Payment for such series and, if Debt Securities of a series are issuable as bearer securities, New Disney will be required to maintain (i) a paying agent in the Borough of Manhattan, The City of New York for payments with respect to any registered securities of the series (and for payments with respect to bearer securities of the series in the circumstances described in the Indenture, but not otherwise), and (ii) a paying agent in a Place of Payment located outside the United States where Debt Securities of such series and any related coupons may be presented and surrendered for payment. All moneys paid by New Disney to a paying agent for the payment of principal of or interest, if any, on any Debt Security which remains unclaimed at the end of two years after such principal or interest shall have become due and payable will be repaid to New Disney, and the holder of such Debt Security or any coupon will thereafter look only to New Disney for payment thereof. GLOBAL DEBT SECURITIES The Debt Securities of a series may be issued in whole or in part in global form. A Debt Security in global form will be deposited with, or on behalf of, a Depositary, which will be identified in an applicable Prospectus Supplement. A global Debt Security may be issued in either registered or bearer form and in either temporary or permanent form. A Debt Security in global form may not be transferred except as a whole to the Depositary for such Debt Security or to a nominee or successor of such Depositary. If any Debt Securities of a series are issuable in global form, the applicable Prospectus Supplement will describe the circumstances, if any, under which beneficial owners of interests in any such global Debt Security may exchange such interests for definitive Debt Securities of such series and of like tenor and principal amount in any authorized form and denomination, the manner of payment of principal of and interest, if any, on any such global Debt Security and the specific terms of the depositary arrangement with respect to any such global Debt Security. GUARANTEES OF DEBT SECURITIES Under the terms of the Indentures and subject to the provisions thereof, prior to the consummation of the Acquisition, Disney will, and subsequent to the consummation of the Acquisition, Disney may, at its option, unconditionally guarantee to the holders from time to time of specified series of Debt Securities the full and prompt payment of principal, premium, if any, and interest when and as the same shall become due and payable, whether at maturity, upon redemption or otherwise. Any such guarantees (each, a "Debt Guarantee") will be unsecured obligations of Disney. Any right of payment of the holders of Senior Debt Securities under the related Debt Guarantee will be prior to the right of payment of the holders of Senior Subordinated Debt Securities or Subordinated Debt Securities under the related Debt Guarantee, and any right of payment of the holders of Senior Subordinated Debt Securities under the related Debt Guarantee will be prior to the right of payment of the holders of Subordinated Debt Securities under the related Debt Guarantee, in each case upon the terms set forth in the applicable Prospectus Supplement. The Debt Guarantees may be subordinated to other indebtedness and obligations of Disney to the extent set forth in the applicable Prospectus Supplement. Unless otherwise stated in the applicable Prospectus Supplement, upon consummation of the Acquisition, without any action by Disney, New Disney, the Trustees or any other person, all obligations of 14 Disney under the Indentures and any Debt Guarantees will terminate and any event related to Disney which would otherwise constitute an Event of Default under the Indenture shall not constitute an Event of Default. If a Debt Guarantee is applicable to Debt Securities offered hereby, reference is made to the applicable Indenture and the accompanying Prospectus Supplement for a description of the specific terms of such Debt Guarantee, including events of default relating thereto, the outstanding principal amount of indebtedness and other obligations that will rank senior to such Debt Guarantee and, where applicable, subordination provisions of such Debt Guarantee and covenants of the Guarantor. MERGERS AND SALES OF ASSETS New Disney may not consolidate with or merge into any other person or convey, transfer or lease its properties and assets substantially as an entirety to another person, unless, among other things, (i) the resulting, surviving or transferee person (if other than New Disney) is organized and existing under the laws of the United States, any state thereof or the District of Columbia and such person expressly assumes all obligations of New Disney under the Debt Securities and the Indenture, and (ii) immediately after giving effect to such transaction, no event which is, or after notice or passage of time or both would be, an Event of Default (any such event, a "Default") or Event of Default shall have occurred or be continuing under the Indenture. Upon the assumption of New Disney's obligations by a person to whom such properties or assets are conveyed, transferred or leased, subject to certain exceptions, New Disney shall be discharged from all obligations under the Debt Securities and the Indenture. Notwithstanding the foregoing, in the event the Acquisition does not occur, New Disney may consolidate with or merge into Disney and, upon such consolidation or merger, the Debt Securities will thereafter be obligations solely of Disney without any action on the part of Disney, New Disney or any other person. So long as any Debt Guarantee is in effect with respect to a series of Debt Securities, Disney may not consolidate with or merge into any other person or convey, transfer or lease its properties and assets substantially as an entirety to another person, unless, among other things, (i) the resulting, surviving or transferee person (if other than Disney) is organized and existing under the laws of the United States, any state thereof or the District of Columbia and such person expressly assumes all obligations of Disney under the Debt Guarantees and the Indenture, and (ii) immediately after giving effect to such transaction, no Default or Event of Default shall have occurred or be continuing under the Indenture. Upon the assumption of Disney's obligations by a person to whom such properties or assets are conveyed, transferred or leased, subject to certain exceptions, Disney shall be discharged from all obligations under the Debt Guarantees and the Indenture. EVENTS OF DEFAULT Each Indenture provides that, if an Event of Default specified therein shall have occurred and be continuing, with respect to each series of the Debt Securities outstanding thereunder individually, the Trustee or the holders of not less than 25% in aggregate principal amount of the outstanding Debt Securities of such series may declare the principal amount (or, if any of the Debt Securities of such series are Discount Securities, such portion of the principal amount of such Debt Securities as may be specified by the terms thereof) of the Debt Securities of such series to be immediately due and payable. Under certain circumstances, the holders of a majority in aggregate principal amount of the outstanding Debt Securities of such series may rescind such a declaration. Under each Indenture, an Event of Default is defined as, with respect to each series of Securities outstanding thereunder individually, any of the following: (i) default in payment of the principal of any Debt Security of such series; (ii) default in payment of any interest on any Debt Security of such series when due, continuing for 30 days (or 60 days, in the case of Senior Subordinated or Subordinated Debt Securities); (iii) failure by New Disney to comply with its other agreements in the Debt Securities of such series or such Indenture for the benefit of the holders of Debt Securities of such series upon the receipt by New Disney of notice of such Default by the Trustee or the holders of at least 25% in aggregate principal amount of the outstanding Debt Securities of such series and New Disney's failure 15 to cure such Default within 60 days after receipt by New Disney of such notice; (iv) certain events of bankruptcy or insolvency; (v) in the case of Debt Securities guaranteed by Disney, any Debt Guarantee shall for any reason cease to be, or be asserted in writing by a responsible officer of Disney not to be, in full force and effect, except to the extent contemplated by the Indenture and such Debt Guarantee; and (vi) any other Event of Default set forth in an applicable Prospectus Supplement. The Trustee shall give notice to holders of the Debt Securities of any continuing Default known to the Trustee within 90 days after the occurrence thereof; PROVIDED, that the Trustee may withhold such notice, as to any Default other than a payment Default, if it determines in good faith that withholding the notice is in the interests of the holders. The holders of a majority in principal amount of the outstanding Debt Securities of any series 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 the Debt Securities of such series; PROVIDED that such direction shall not be in conflict with any law or the Indenture and subject to certain other limitations. Before proceeding to exercise any right or power under the Indenture at the direction of such holders, the Trustee shall be entitled to receive from such holders reasonable security or indemnity satisfactory to it against the costs, expenses and liabilities which might be incurred by it in complying with any such direction. With respect to each series of Debt Securities, no holder will have any right to pursue any remedy with respect to the Indenture or the Debt Securities, unless (i) such holder shall have previously given the Trustee written notice of a continuing Event of Default with respect to the Debt Securities of such series; (ii) the holders of at least 25% in aggregate principal amount of the outstanding Debt Securities of such series shall have made a written request to the Trustee to pursue such remedy; (iii) such holder or holders have offered to the Trustee reasonable indemnity satisfactory to the Trustee; (iv) the holders of a majority in aggregate principal amount of the outstanding Debt Securities of such series have not given the Trustee a direction inconsistent with such request within 60 days after receipt of such request; and (v) the Trustee shall have failed to comply with the request within such 60-day period. Notwithstanding the foregoing, the right of any holder of any Debt Security or coupon to receive payment of the principal of and interest in respect of such Debt Security or payment of such coupon on the date specified in such Debt Security or coupon representing such installment of interest as the fixed date on which an amount equal to the principal of such Debt Security or an installment of principal thereof or interest thereon is due and payable (the "Stated Maturity" or "Stated Maturities") or to institute suit for the enforcement of any such payments shall not be impaired or adversely affected without such holder's consent. The holders of at least a majority in aggregate principal amount of the outstanding Debt Securities of any series may waive an existing Default with respect to such series and its consequences, other than (i) any Default in any payment of the principal of, or interest on, any Debt Security of such series or (ii) any Default in respect of certain covenants or provisions in the Indenture which may not be modified without the consent of the holder of each outstanding Debt Security of such series affected as described in "Modification and Waiver," below. Each Indenture provides that the Company shall deliver to the Trustee within 120 days after the end of each fiscal year of the Company (beginning with the fiscal year ending September 30, 1996) an officers' certificate stating whether or not the signers know of any Default that occurred during such period. MODIFICATION AND WAIVER New Disney, Disney and the Trustee may execute a supplemental indenture without the consent of the holders of the Debt Securities or any related coupons (i) to add to the covenants, agreements and obligations of New Disney or Disney for the benefit of the holders of all the Debt Securities of any series and any related Debt Guarantees or to surrender any right or power conferred in the Indenture upon New Disney or Disney; (ii) to evidence the succession of another corporation to New Disney and the assumption by it of the obligations of New Disney under the Indenture and the Debt Securities or to evidence the succession of another corporation to Disney and the assumption by it of the obligations 16 of Disney under the Indenture and the Debt Guarantees; (iii) to provide that bearer securities may be registrable as to principal, to change or eliminate any restrictions (including restrictions relating to payment in the United States) on the payment of principal of or interest, if any, on bearer securities, to permit bearer securities to be issued in exchange for registered securities, to permit bearer securities to be issued in exchange for bearer securities of other authorized denominations or to permit the issuance of Debt Securities in uncertificated form; (iv) to establish the form or terms of Debt Securities of any series and any related Debt Guarantees or coupons as permitted by the Indenture; (v) to provide for the acceptance of appointment under the Indenture of a successor Trustee with respect to the Debt Securities of one or more series and to add to or change any provisions of the Indenture as shall be necessary to provide for or facilitate the administration of the trusts by more than one Trustee; (vi) to cure any ambiguity, defect or inconsistency; (vii) to add to, change or eliminate any provisions (which addition, change or elimination may apply to one or more series of Debt Securities), PROVIDED that any such addition, change or elimination neither (a) applies to any Debt Security of any series created prior to the execution of such supplemental indenture and is entitled to the benefit of such provision nor (b) modifies the rights of the holder of any such Debt Security with respect to such provision; (viii) to secure the Debt Securities; or (ix) to make any other change that does not adversely affect the rights of any Securityholder. Each Indenture provides that, with the consent of the holders of not less than a majority in aggregate principal amount of the outstanding Debt Securities of the series affected by such supplemental indenture, New Disney, Disney and the Trustee may also execute a supplemental indenture to add provisions to, or change in any manner or eliminate any provisions of, the Indenture with respect to such series of Debt Securities or modify in any manner the rights of the holders of the Debt Securities of such series and any related coupons under such Indenture; PROVIDED that no such supplemental indenture will, without the consent of the holder of each such outstanding Debt Security affected thereby (i) change the stated maturity of the principal of, or any installment of principal or interest on, any such Debt Security or any premium payable upon redemption thereof, or reduce the amount of principal of any Debt Security that is a Discount Security and that would be due and payable upon declaration of acceleration of maturity thereof; (ii) reduce the principal amount of, or the rate of interest on, any such Debt Security; (iii) change the place or currency of payment of principal or interest, if any, on any such Debt Security; (iv) impair the right to institute suit for the enforcement of any payment on or with respect to any such Debt Security; (v) reduce the above-stated percentage of holders of Debt Securities of any series necessary to modify or amend such Indenture; (vi) modify the foregoing requirements or reduce the percentage in principal amount of outstanding Debt Securities of any series necessary to waive any covenant or past default; (vii) make any change in the terms of any Debt Guaranty with respect to the Debt Securities of any series in any manner adverse to the rights of the holders of Debt Securities of such series; or (viii) in the case of Senior Subordinated or Subordinated Debt Securities, amend or modify any of the provisions of such Indenture relating to subordination of the Debt Securities in any manner adverse to the holders of such Debt Securities. Holders of not less than a majority in principal amount of the outstanding Debt Securities of any series may waive certain past Defaults and may waive compliance by New Disney with certain of the restrictive covenants described above with respect to the Debt Securities of such series. DISCHARGE AND DEFEASANCE Unless otherwise indicated in an applicable Prospectus Supplement, each Indenture provides that New Disney may satisfy and discharge obligations thereunder with respect to the Debt Securities of any series by delivering to the Trustee for cancellation all outstanding Debt Securities of such series or depositing with the Trustee, after such outstanding Debt Securities have become due and payable, cash sufficient to pay at Stated Maturity all of the outstanding Debt Securities of such series and paying all other sums payable under the Indenture with respect to such series. In addition, unless otherwise indicated in an applicable Prospectus Supplement, each Indenture provides that: New Disney and Disney (a) shall be discharged from its obligations in respect of the 17 Debt Securities of such series ("defeasance and discharge"), or (b) may cease to comply with certain restrictive covenants ("covenant defeasance") including those described under "Mergers and Sales of Assets" and any such omission shall not be an Event of Default with respect to the Debt Securities of such series, in each case at any time prior to the Stated Maturity or redemption thereof, when New Disney has irrevocably deposited with the Trustee, in trust, (i) sufficient funds in the currency or currency unit in which the Debt Securities are denominated to pay the principal of (and premium, if any) and interest to Stated Maturity (or redemption) on, the Debt Securities of such series, or (ii) such amount of direct obligations of, or obligations the principal of (and premium, if any) and interest on which are fully guaranteed by, the government which issued the currency in which the Debt Securities are denominated, and which are not subject to prepayment, redemption or call, as will, together with the predetermined and certain income to accrue thereon without consideration of any reinvestment thereof, be sufficient to pay when due the principal of (and premium, if any) and interest to Stated Maturity (or redemption) on, the Debt Securities of such series. Such defeasance and discharge and covenant defeasance are conditioned upon, among other things, New Disney's delivery of an opinion of counsel that the holders of the Debt Securities of such series 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. Upon such defeasance and discharge, the holders of the Debt Securities of such series shall no longer be entitled to the benefits of the Indenture, except for the purposes of registration of transfer and exchange of the Debt Securities of such series and replacement of lost, stolen or mutilated Debt Securities and shall look only to such deposited funds or obligations for payment. THE TRUSTEES The Senior Debt Securities Trustee is a national banking association, is a participating lender under various credit arrangements with Disney and its subsidiaries and is also the fiscal agent with respect to certain debt securities of Disney. The Senior Subordinated Debt Securities Trustee and the Subordinated Debt Securities Trustee will be named in the applicable Prospectus Supplement. Each Trustee will be permitted to engage in other transactions with Disney, New Disney and each of their subsidiaries; HOWEVER, if the Trustee acquires any conflicting interest, it must eliminate such conflict or resign. DESCRIPTION OF PREFERRED STOCK New Disney may issue, from time to time, shares of one or more series or classes of Preferred Stock. The obligation of New Disney to make dividend payments and payments upon liquidation or redemption with respect to Preferred Stock issued prior to the consummation of the Acquisition will be guaranteed, to the extent set forth herein and in any applicable Prospectus Supplement, by Disney, which guarantee will be released upon the consummation of the Acquisition. See "Guarantees of Preferred Stock." The following description sets forth certain general terms and provisions of the Preferred Stock to which any Prospectus Supplement may relate. The particular terms of any series of Preferred Stock and the extent, if any, to which such general provisions may apply to the series of Preferred Stock so offered will be described in the Prospectus Supplement relating to such Preferred Stock. The following summary of certain provisions of the Preferred Stock do not purport to be complete and is subject to, and is qualified in its entirety by express reference to, the provisions of New Disney's Restated Certificate of Incorporation (the "New Disney Certificate of Incorporation") and the Certificate of Designation relating to a specific series of the Preferred Stock (the "Certificate of Designation"), which will be in the form filed as an exhibit to, or incorporated by reference in, the Registration Statement of which this Prospectus is a part at or prior to the time of issuance of such series of Preferred Stock. Under the New Disney Certificate of Incorporation, New Disney has the authority to issue 100,000,000 shares of Preferred Stock. The Board of Directors of New Disney is authorized to issue 18 shares of Preferred Stock, in one or more series or classes, and to fix for each such series voting powers and such preferences and relative, participating, optional or other special rights and such qualifications, limitations or restrictions as are permitted by the Delaware General Corporation Law. The Board of Directors of New Disney shall be authorized to determine for each series of Preferred Stock, and the Prospectus Supplement shall set forth with respect to such series: (i) the designation of such shares and the number of shares that constitute such series, (ii) the dividend rate (or the method of calculation thereof), if any, on the shares of such series and the priority as to payment of dividends with respect to other classes or series of capital stock of New Disney, (iii) the dividend periods (or the method of calculation thereof), (iv) the voting rights of the shares, (v) the liquidation preference and the priority as to payment of such liquidation preference with respect to other classes or series of capital stock of New Disney and any other rights of the shares of such series upon any liquidation or winding-up of New Disney, (vi) whether or not and on what terms the shares of such series will be subject to redemption or repurchase at the option of New Disney, (vii) whether and on what terms the shares of such series will be convertible into or exchangeable for other debt or equity securities, (viii) whether depositary shares representing shares of such series of Preferred Stock will be offered and, if so, the fraction of a share of such series of Preferred Stock represented by each depositary share (see "Description of Depositary Shares" below), (ix) whether the shares of such series of Preferred Stock will be listed on a securities exchange, (x) any special United States Federal income tax considerations applicable to such series, and (xi) the other rights and privileges and any qualifications, limitations or restrictions of such rights or privileges of such series. DIVIDENDS Holders of shares of Preferred Stock shall be entitled to receive, when and as declared by the Board of Directors of New Disney out of funds of New Disney legally available therefor, an annual cash dividend payable at such dates and at such rates, if any, per share per annum as set forth in the applicable Prospectus Supplement. Unless otherwise set forth in the applicable Prospectus Supplement, each series of Preferred Stock will rank junior as to dividends to any Preferred Stock that may be issued in the future that is expressly senior as to dividends to the Preferred Stock. If at any time New Disney has failed to pay accrued dividends on any such senior shares at the time such dividends are payable, New Disney may not pay any dividend on the Preferred Stock or redeem or otherwise repurchase shares of Preferred Stock until such accumulated but unpaid dividends on such senior shares have been paid or set aside for payment in full by New Disney. Unless otherwise set forth in the applicable Prospectus Supplement, no dividends (other than in common stock or other capital stock ranking junior to the Preferred Stock of any series as to dividends and upon liquidation) shall be declared or paid or set aside for payment, nor shall any other distribution be declared or made upon the common stock, or any other capital stock of New Disney ranking junior to or on a parity with the Preferred Stock of such series as to dividends, nor shall any common stock or any other capital stock of New Disney ranking junior to or on a parity with the Preferred Stock of such series as to dividends be redeemed, purchased or otherwise acquired for any consideration (or any moneys be paid to or made available for a sinking fund for the redemption of any shares of any such stock) by New Disney (except by conversion into or exchange for other capital stock of New Disney ranking junior to the Preferred Stock of such series as to dividends) unless (i) if such series of Preferred Stock has a cumulative dividend, full cumulative dividends on the Preferred Stock of such series have been or contemporaneously are declared and paid or declared and a sum sufficient for the payment thereof set apart for all past dividend periods and the then current dividend period and (ii) if such series of Preferred Stock does not have a cumulative dividend, full dividends on the Preferred Stock of such series have been or contemporaneously are declared and paid or declared and a sum sufficient for the payment thereof set apart for payment for the then current dividend period; provided, however, that any monies theretofore deposited in any sinking fund with respect to any preferred stock in compliance with the provisions of such sinking fund may thereafter be applied to 19 the purchase or redemption of such preferred stock in accordance with the terms of such sinking fund, regardless of whether at the time of such application full cumulative dividends upon shares of the Preferred Stock outstanding on the last dividend payment date shall have been paid or declared and set apart for payment; and provided, further, that any such junior or parity preferred stock or common stock may be converted into or exchanged for stock of New Disney ranking junior to the Preferred Stock as to dividends. The amount of dividends payable for the initial dividend period or any period shorter than a full dividend period shall be computed on the basis of a 360-day year of twelve 30-day months. Accrued but unpaid dividends will not bear interest. CONVERTIBILITY No series of Preferred Stock will be convertible into, or exchangeable for, other securities or property except as set forth in the applicable Prospectus Supplement. REDEMPTION AND SINKING FUND No series of Preferred Stock will be redeemable or receive the benefit of a sinking fund except as set forth in the applicable Prospectus Supplement. LIQUIDATION RIGHTS Unless otherwise set forth in the applicable Prospectus Supplement, in the event of any liquidation, dissolution or winding up of New Disney, the holders of shares of each series of Preferred Stock are entitled to receive out of assets of New Disney available for distribution to stockholders, before any distribution of assets is made to holders of: (i) any other shares of preferred stock ranking junior to such series of Preferred Stock as to rights upon liquidation, dissolution or winding up; and (ii) shares of common stock, liquidating distributions per share in the amount of the liquidation preference specified in the applicable Prospectus Supplement for such series of Preferred Stock plus any dividends accrued and accumulated but unpaid to the date of final distribution; but the holders of each series of Preferred Stock will not be entitled to receive the liquidating distribution of, plus such dividends on, such shares until the liquidation preference of any shares of New Disney's capital stock ranking senior to such series of the Preferred Stock as to the rights upon liquidation, dissolution or winding up shall have been paid (or a sum set aside therefor sufficient to provide for payment) in full. If upon any liquidation, dissolution or winding up of New Disney, the amounts payable with respect to the Preferred Stock, and any other Preferred Stock ranking as to any such distribution on a parity with the Preferred Stock are not paid in full, the holders of the preferred stock and such other parity preferred stock will share ratably in any such distribution of assets in proportion to the full respective preferential amount to which they are entitled. Unless otherwise specified in a Prospectus Supplement for a series of Preferred Stock, after payment of the full amount of the liquidating distribution to which they are entitled, the holders of shares of Preferred Stock will not be entitled to any further participation in any distribution of assets by New Disney. Neither a consolidation or merger of New Disney with another corporation nor a sale of securities shall be considered a liquidation, dissolution or winding up of New Disney. VOTING RIGHTS Holders of Preferred Stock will not have any voting right except as set forth below or in the applicable Prospectus Supplement or as otherwise from time to time required by law. Whenever dividends on any applicable series of Preferred Stock or any other class or series of stock ranking on a parity with the applicable series of Preferred Stock with respect to the payment of dividends shall be in arrears for the equivalent of six quarterly dividend periods, whether or not consecutive, the holders of shares of such series of Preferred Stock (voting separately as a class with all other series of Preferred Stock then entitled to such voting rights) will be entitled to vote for the election of two of the authorized number of directors of New Disney at the next annual meeting of stockholders and at each subsequent meeting until all dividends accumulated on such series of Preferred Stock shall have been fully paid or set apart for payment. The term of office of all directors elected by the holders of such 20 Preferred Stock shall terminate immediately upon the termination of the right of the holders of such Preferred Stock to vote for directors. Unless otherwise set forth in the applicable Prospectus Supplement, holders of shares of Preferred Stock will have one vote for each share held. So long as any shares of any series of Preferred Stock remain outstanding, New Disney shall not, without the consent of holders of at least two-thirds of the shares of such series of Preferred Stock outstanding at the time, voting separately as a class with all other series of Preferred Stock of New Disney upon which like voting rights have been conferred and are exercisable, (i) issue or increase the authorized amount of any class or series of stock ranking prior to the outstanding Preferred Stock as to dividends or upon liquidation or (ii) amend, alter or repeal the provisions of New Disney's Certificate of Incorporation or of the resolutions contained in the Certificate of Designation relating to such series of Preferred Stock, whether by merger, consolidation or otherwise, so as to materially adversely affect any power, preference or special right of such series of Preferred Stock or the holders thereof; PROVIDED, HOWEVER, that any increase in the amount of the authorized common stock or authorized preferred stock or any increase or decrease in the number of shares of any series of preferred stock or the creation and issuance of other series of common stock or preferred stock ranking on a parity with or junior to Preferred Stock as to dividends and upon liquidation, dissolution or winding up shall not be deemed to materially adversely affect such powers, preferences or special rights. GUARANTEES OF PREFERRED STOCK Under the terms of a guarantee to be issued by Disney in favor of the holders of Preferred Stock, and subject to the provisions thereof, prior to the consummation of the Acquisition, Disney will, and subsequent to the consummation of the Acquisition, Disney may, at its option, unconditionally guarantee to the holders from time to time of specified series or classes of Preferred Stock the full and prompt payment of dividend payments and payments upon liquidation or redemption or otherwise. Any such guarantees (each, a "Preferred Stock Guarantee") will be unsecured obligations of Disney. The Preferred Stock Guarantees may be subordinated to other indebtedness and obligations of Disney to the extent set forth in the applicable Prospectus Supplement. Unless otherwise stated in the applicable Prospectus Supplement, upon consummation of the Acquisition, without any action by Disney, New Disney, or any other person, all obligations of Disney under any Preferred Stock Guarantees will terminate. If a Preferred Stock Guarantee is applicable to Preferred Stock offered hereby, reference is made to the applicable accompanying Prospectus Supplement for a description of the specific terms of such Preferred Stock Guarantee and covenants, if any, of Disney. MISCELLANEOUS The holders of Preferred Stock will have no preemptive rights. The Preferred Stock, upon issuance against full payment of the purchase price therefor, will be fully paid and nonassessable. Shares of Preferred Stock redeemed or otherwise reacquired by New Disney shall resume the status of authorized and unissued shares of Preferred Stock undesignated as to series, and shall be available for subsequent issuance. There are no restrictions on repurchase or redemption of the Preferred Stock while there is any arrearage on sinking fund installments except as may be set forth in an applicable Prospectus Supplement. Payment of dividends on any series of Preferred Stock may be restricted by loan agreements, indentures and other transactions entered into by New Disney. The accompanying Prospectus Supplement will describe any material contractual restrictions on dividend payments. NO OTHER RIGHTS The shares of a series of Preferred Stock will not have any preferences, voting powers or relative, participating, optional or other special rights except as set forth above or in the applicable Prospectus Supplement, the Certificate of Incorporation or the applicable Certificate of Designation or as otherwise required by law. 21 TRANSFER AGENT AND REGISTRAR The transfer agent and registrar for each series of Preferred Stock will be designated in the applicable Prospectus Supplement. DESCRIPTION OF DEPOSITARY SHARES GENERAL New Disney may, at its option, elect to offer fractional shares of the Preferred Stock of a series, rather than full shares of the Preferred Stock of such series. In the event such option is exercised, New Disney will issue receipts for Depositary Shares, each of which will represent a fraction (to be set forth in the Prospectus Supplement relating to a particular series of Preferred Stock) of a share of a particular series of Preferred Stock as described below. The shares of any series of Preferred Stock represented by Depositary Shares will be deposited under a Deposit Agreement (the "Deposit Agreement") among New Disney, a depositary to be named in the applicable Prospectus Supplement (the "Preferred Stock Depositary"), and the holders from time to time of depositary receipts issued thereunder. Subject to the terms of the Deposit Agreement, each holder of a Depositary Share will be entitled, in proportion to the applicable fraction of a share of Preferred Stock represented by such Depositary Share, to all the rights and preferences of the Preferred Stock represented thereby (including dividend, voting, redemption, subscription and liquidation rights). The Depositary Shares will be evidenced by depositary receipts issued pursuant to the Deposit Agreement ("Depositary Receipts"). Depositary Receipts will be distributed to those persons purchasing the fractional shares of the related series of Preferred Stock. The following description sets forth certain general terms and provisions of the Depositary Shares to which any Prospectus Supplement may relate. The particular terms of the Depositary Shares to which any Prospectus Supplement may relate and the extent, if any, to which such general provisions may apply to the Depositary Shares so offered will be described in the applicable Prospectus Supplement. The forms of Deposit Agreement and Depositary Receipt are filed as exhibits to the Registration Statement. The following summary of certain provisions of the Depositary Shares and Deposit Agreement does not purport to be complete and is subject to, and is qualified in its entirety by express reference to, all the provisions of the Deposit Agreement, including the definitions therein of certain terms. Immediately following the issuance of shares of a series of Preferred Stock by New Disney, New Disney will deposit such shares with the Preferred Stock Depositary, which will then issue and deliver the Depositary Receipts to the purchasers thereof. Depositary Receipts will only be issued evidencing whole Depositary Shares. A Depositary Receipt may evidence any number of whole Depositary Shares. Pending the preparation of definitive engraved Depositary Receipts, the Preferred Stock Depositary may, upon the written order of New Disney, issue temporary Depositary Receipts substantially identical to (and entitling the holders thereof to all the rights pertaining to) the definitive Depositary Receipts but not in definitive form. Definitive Depositary Receipts will be prepared thereafter without unreasonable delay, and such temporary Depositary Receipts will be exchangeable for definitive Depositary Receipts at New Disney's expense. DIVIDENDS AND OTHER DISTRIBUTIONS The Preferred Stock Depositary will distribute all cash dividends or other cash distributions received in respect of the related series of Preferred Stock to the record holders of Depositary Shares relating to such series of Preferred Stock in proportion to the number of such Depositary Shares owned by such holders. In the event of a distribution other than in cash, the Preferred Stock Depositary will distribute property received by it to the record holders of Depositary Shares entitled thereto in proportion to the 22 number of Depositary Shares owned by such holders, unless the Preferred Stock Depositary determines that such distribution cannot be made proportionately among such holders or that it is not feasible to make such distributions, in which case the Preferred Stock Depositary may, with the approval of New Disney, adopt such method as it deems equitable and practicable for the purpose of effecting such distribution, including the sale (at public or private sale) of the securities or property thus received, or any part thereof, at such place or places and upon such terms as it may deem proper. The amount distributed in any of the foregoing cases will be reduced by any amounts required to be withheld by New Disney or the Preferred Stock Depositary on account of taxes or other governmental charges. REDEMPTION OF DEPOSITARY SHARES If a series of the Preferred Stock underlying the Depositary Shares is subject to redemption, the Depositary Shares will be redeemed from the proceeds received by the Preferred Stock Depositary resulting from any redemption, in whole or in part, of such series of the Preferred Stock held by the Preferred Stock Depositary. The redemption price per Depositary Share will be equal to the applicable fraction of the redemption price per share payable with respect to such series of the Preferred Stock. If New Disney redeems shares of a series of Preferred Stock held by the Preferred Stock Depositary, the Preferred Stock Depositary will redeem as of the same redemption date the number of Depositary Shares representing the shares of Preferred Stock so redeemed. If less than all the Depositary Shares are to be redeemed, the Depositary Shares to be redeemed will be selected by lot or substantially equivalent method determined by the Preferred Stock Depositary. After the date fixed for redemption, the Depositary Shares so called for redemption will no longer be deemed to be outstanding and all rights of the holders of the Depositary Shares will cease, except the right to receive the moneys payable upon such redemption and any money or other property to which the holders of such Depositary Shares were entitled upon such redemption, upon surrender to the Preferred Stock Depositary of the Depositary Receipts evidencing such Depositary Shares. Any funds deposited by New Disney with the Preferred Stock Depositary for any Depositary Shares that the holders thereof fail to redeem will be returned to New Disney after a period of two years from the date such funds are so deposited. VOTING THE PREFERRED STOCK Upon receipt of notice of any meeting at which the holders of any series of the Preferred Stock are entitled to vote, the Preferred Stock Depositary will mail the information contained in such notice of meeting to the record holders of the Depositary Shares relating to such series of Preferred Stock. Each record holder of such Depositary Shares on the record date (which will be the same date as the record date for the related series of Preferred Stock) will be entitled to instruct the Preferred Stock Depositary as to the exercise of the voting rights pertaining to the number of shares of the series of Preferred Stock represented by such holder's Depositary Shares. The Preferred Stock Depositary will endeavor, insofar as practicable, to vote or cause to be voted the number of shares of the Preferred Stock represented by such Depositary Shares in accordance with such instructions, provided the Preferred Stock Depositary receives such instructions sufficiently in advance of such meeting to enable it to so vote or cause to be voted the shares of Preferred Stock, and New Disney will agree to take all reasonable action that may be deemed necessary by the Preferred Stock Depositary in order to enable the Preferred Stock Depositary to do so. The Preferred Stock Depositary will abstain from voting shares of the Preferred Stock to the extent it does not receive specific instructions from the holders of Depositary Shares representing such Preferred Stock. WITHDRAWAL OF STOCK Upon surrender of the Depositary Receipts at the corporate trust office of the Preferred Stock Depositary and upon payment of the taxes, charges and fees provided for in the Deposit Agreement and subject to the terms thereof, the holder of the Depositary Shares evidenced thereby is entitled to delivery at such office, to or upon his or her order, of the number of whole shares of the related series of Preferred Stock and any money or other property, if any, represented by such Depositary Shares. 23 Holders of Depositary Shares will be entitled to receive whole shares of the related series of Preferred Stock, but holders of such whole shares of Preferred Stock will not thereafter be entitled to deposit such shares of Preferred Stock with the Preferred Stock Depositary or to receive Depositary Shares therefor. If the Depositary Receipts delivered by the holder evidence a number of Depositary Shares in excess of the number of Depositary Shares representing the number of whole shares of the related series of Preferred Stock to be withdrawn, the Preferred Stock Depositary will deliver to such holder or upon his or her order at the same time a new Depositary Receipt evidencing such excess number of Depositary Shares. AMENDMENT AND TERMINATION OF THE DEPOSIT AGREEMENT The form of Depositary Receipt evidencing the Depositary Shares and any provision of the Deposit Agreement may at any time and from time to time be amended by agreement between New Disney and the Preferred Stock Depositary. However, any amendment that materially adversely alters the rights of the holders of Depositary Shares will not be effective unless such amendment has been approved by the holders of at least a majority of the Depositary Shares then outstanding. Every holder of a Depositary Receipt at the time such amendment becomes effective will be deemed, by continuing to hold such Depositary Receipt, to be bound by the Deposit Agreement as so amended. Notwithstanding the foregoing, in no event may any amendment impair the right of any holder of any Depositary Shares, upon surrender of the Depositary Receipts evidencing such Depositary Shares and subject to any conditions specified in the Deposit Agreement, to receive shares of the related series of Preferred Stock and any money or other property represented thereby, except in order to comply with mandatory provisions of applicable law. The Deposit Agreement may be terminated by New Disney at any time upon not less than 60 days prior written notice to the Preferred Stock Depositary, in which case, on a date that is not later than 30 days after the date of such notice, the Preferred Stock Depositary shall deliver or make available for delivery to holders of Depositary Shares, upon surrender of the Depositary Receipts evidencing such Depositary Shares, such number of whole or fractional shares of the related series of Preferred Stock as are represented by such Depositary Shares. The Deposit Agreement shall automatically terminate after all outstanding Depositary Shares have been redeemed or there has been a final distribution in respect of the related series of Preferred Stock in connection with any liquidation, dissolution or winding up of New Disney and such distribution has been distributed to the holders of Depositary Shares. CHARGES OF DEPOSITARY New Disney will pay all transfer and other taxes and the governmental charges arising solely from the existence of the depositary arrangements. New Disney will pay the charges of the Preferred Stock Depositary, including charges in connection with the initial deposit of the related series of Preferred Stock and the initial issuance of the Depositary Shares and all withdrawals of shares of the related series of Preferred Stock, except that holders of Depositary Shares will pay other transfer and other taxes and governmental charges and such other charges as are expressly provided in the Deposit Agreement to be for their accounts. RESIGNATION AND REMOVAL OF DEPOSITARY The Preferred Stock Depositary may resign at any time by delivering to New Disney written notice of its election to do so, and New Disney may at any time remove the Depositary, any such resignation or removal to take effect upon the appointment of a successor Preferred Stock Depositary, which successor Preferred Stock Depositary must be appointed within 60 days after delivery of the notice of resignation or removal and must be a bank or trust company having its principal office in the United States and having a combined capital and surplus of at least $50,000,000. MISCELLANEOUS The Preferred Stock Depositary will forward to the holders of Depositary Shares all reports and communications from New Disney that are delivered to the Preferred Stock Depositary and which New Disney is required to furnish to the holders of the Preferred Stock. 24 The Preferred Stock Depositary's corporate trust office will be identified in the applicable Prospectus Supplement. Unless otherwise set forth in the applicable Prospectus Supplement, the Preferred Stock Depositary will act as transfer agent and registrar for Depositary Receipts and if shares of a series of Preferred Stock are redeemable, the Preferred Stock Depositary will act as redemption agent for the corresponding Depositary Receipts. DESCRIPTION OF WARRANTS GENERAL New Disney may issue, together with other Securities or separately, warrants for the purchase of (i) Debt Securities ("Debt Warrants") or (ii) Preferred Stock ("Preferred Stock Warrants" and, together with the Debt Warrants, the "Warrants"). The Warrants will be issued under Warrant Agreements (as defined below) to be entered into between New Disney and a bank or trust company, as warrant agent (the "Warrant Agent"), all to be set forth in the applicable Prospectus Supplement relating to any or all Warrants in respect of which this Prospectus is being delivered. Copies of the form of agreement for each Warrant (each a "Debt Securities Warrant Agreement" or "Preferred Stock Warrant Agreement," as the case may be, or collectively the "Warrant Agreements"), including the forms of certificates representing the Warrants ("Debt Warrant Certificates" or "Preferred Stock Warrant Certificates," as the case may be, or collectively, the "Warrant Certificates") reflecting the provisions to be included in such agreements that will be entered into with respect to the particular offerings of each type of warrant are filed as exhibits to the Registration Statement of which this Prospectus forms a part. The following description sets forth certain general terms and provisions of the Warrants to which any Prospectus Supplement may relate. The particular terms of the Warrants to which any Prospectus Supplement may relate and the extent, if any, to which such general provisions may apply to the Warrants so offered will be described in the applicable Prospectus Supplement. The following summary of certain provisions of the Warrants, Warrant Agreements and Warrant Certificates does not purport to be complete and is subject to, and is qualified in its entirety by express reference to, all the provisions of the Warrant Agreements and Warrant Certificates, including the definitions therein of certain terms. DEBT WARRANTS GENERAL. Reference is made to the applicable Prospectus Supplement for the terms of Debt Warrants in respect of which this Prospectus is being delivered, the Debt Securities Warrant Agreement relating to such Debt Warrants and the Debt Warrant Certificates representing such Debt Warrants, including the following: (i) the designation, aggregate principal amount and terms of the Debt Securities purchasable upon exercise of such Debt Warrants and the procedures and conditions relating to the exercise of such Debt Warrants; (ii) the designation and terms of any related Debt Securities with which such Debt Warrants are issued and the number of such Debt Warrants issued with each such Debt Security; (iii) the date, if any, on and after which such Debt Warrants and the related Debt Securities will be separately transferable; (iv) the principal amount of Debt Securities purchasable upon exercise of each Debt Warrant and the price at which such principal amount of Debt Securities may be purchased upon such exercise; (v) the date on which the right to exercise such Debt Warrants shall commence and the date on which such right shall expire; (vi) a discussion of the material United States Federal income tax considerations applicable to the exercise of Debt Warrants; (vii) whether the Debt Warrants represented by the Debt Warrant Certificates will be issued in registered or bearer form, and, if registered, where they may be transferred and registered; (viii) call provisions of such Debt Warrants, if any; and (ix) any other terms of the Debt Warrants. Debt Warrant Certificates will be exchangeable for new Debt Warrant Certificates of different denominations and Debt Warrants may be exercised at the corporate trust office of the Warrant Agent or any other office indicated in the applicable Prospectus Supplement. Prior to the exercise of their 25 Debt Warrants, holders of Debt Warrants will not have any of the rights of holders of the Debt Securities purchasable upon such exercise and will not be entitled to payments of principal of (and premium, if any) or interest, if any, on the Debt Securities purchasable upon such exercise. EXERCISE OF DEBT WARRANTS. Each Debt Warrant will entitle the holder to purchase for cash such principal amount of Debt Securities at such exercise price as shall in each case be set forth in, or be determinable as set forth in, the applicable Prospectus Supplement relating to the Debt Warrants offered thereby. Debt Warrants may be exercised at any time up to 5:00 p.m. New York City time on the expiration date set forth in the applicable Prospectus Supplement. After 5:00 p.m. New York City time on the expiration date, unexercised Debt Warrants will become void. Debt Warrants may be exercised as set forth in the applicable Prospectus Supplement relating to the Debt Warrants. Upon receipt of payment and the Debt Warrant Certificate properly completed and duly executed at the corporate trust office of the Warrant Agent or any other office indicated in the applicable Prospectus Supplement, New Disney will, as soon as practicable, forward the Debt Securities purchasable upon such exercise. If less than all of the Debt Warrants represented by such Debt Warrant Certificate are exercised, a new Debt Warrant Certificate will be issued for the remaining amount of Debt Warrants. PREFERRED STOCK WARRANTS GENERAL. Reference is made to the applicable Prospectus Supplement for the terms of Preferred Stock Warrants in respect of which this Prospectus is being delivered, the Preferred Stock Warrant Agreement relating to such Preferred Stock Warrants and the Preferred Stock Warrant Certificates representing such Preferred Stock Warrants, including the following: (i) the designation and terms of the shares of Preferred Stock purchasable upon exercise of such Preferred Stock Warrants and the procedures and conditions relating to the exercise of such Preferred Stock Warrants; (ii) the designation and terms of any related shares of Preferred Stock with which such Preferred Stock Warrants are issued and the number of such Preferred Stock Warrants issued with each such share of Preferred Stock; (iii) the date, if any, on and after which such Preferred Stock Warrants and the related shares of Preferred Stock will be separately tradeable; (iv) the offering price of such Preferred Stock Warrants, if any; (v) the number of shares of Preferred Stock purchasable upon exercise of such Preferred Stock Warrants and the initial price at which such shares may be purchased upon exercise; (vi) the date on which the right to exercise such Preferred Stock Warrants shall commence and the date on which such right shall expire; (vii) a discussion of the material United States Federal income tax considerations applicable to the exercise of Preferred Stock Warrants; (viii) call provisions of such Preferred Stock Warrants, if any; and (ix) any other terms of the Preferred Stock Warrants. Preferred Stock Warrant Certificates will be exchangeable for new Preferred Stock Warrant Certificates of different denominations and Preferred Stock Warrants may be exercised at the corporate trust office of the Warrant Agent or any other office indicated in the applicable Prospectus Supplement. Prior to the exercise of their Preferred Stock Warrants, holders of Preferred Stock Warrants will not have any of the rights of holders of Preferred Stock purchasable upon such exercise, and will not be entitled to any dividend payments on the Preferred Stock purchasable upon such exercise. EXERCISE OF STOCK WARRANTS. Each Preferred Stock Warrant will entitle the holder to purchase for cash such number of shares of Preferred Stock at such exercise price as shall in each case be set forth in, or be determinable as set forth in, the applicable Prospectus Supplement relating to the Preferred Stock Warrants offered thereby. Unless otherwise specified in the applicable Prospectus Supplement, Preferred Stock Warrants may be exercised at any time up to 5:00 p.m. New York City time on the expiration date set forth in the applicable Prospectus Supplement. After 5:00 p.m. New York City time on the expiration date, unexercised Preferred Stock Warrants will become void. Preferred Stock Warrants may be exercised as set forth in the applicable Prospectus Supplement relating to the Preferred Stock Warrants. Upon receipt of payment and the Preferred Stock Warrant 26 Certificates properly completed and duly executed at the corporate trust office of the Warrant Agent or any other office indicated in the applicable Prospectus Supplement, New Disney will, as soon as practicable, forward a certificate representing the number of shares of Preferred Stock purchasable upon such exercise. If less than all of the Preferred Stock Warrants represented by such Preferred Stock Warrant Certificate are exercised, a new Preferred Stock Warrant Certificate will be issued for the remaining amount of Preferred Stock Warrants. PLAN OF DISTRIBUTION New Disney may sell Securities to one or more underwriters for public offering and sale by them or may sell Securities to investors directly or through agents or dealers. Any such underwriter, agent or dealer involved in the offer and sale of the Securities will be named in an applicable Prospectus Supplement. Securities offered pursuant to a particular Prospectus Supplement are referred to herein as "Offered Securities." Underwriters may offer and sell the Offered Securities at a fixed price or prices, which may be changed, or from time to time at market prices prevailing at the time of sale, at prices related to such prevailing market prices or at negotiated prices. New Disney also may, from time to time, authorize underwriters acting as its agents to offer and sell the Offered Securities upon the terms and conditions set forth in any Prospectus Supplement. In connection with the sale of Offered Securities, underwriters may be deemed to have received compensation from New Disney in the form of underwriting discounts or commissions and may also receive commissions from purchasers of Offered Securities for whom they may act as agent. Underwriters may sell Offered Securities to or through dealers, and such dealers may receive compensation in the form of discounts, concessions or commissions from the underwriters and/or commissions (which may be changed from time to time) from the purchasers for whom they may act as agent. Any underwriting compensation paid by New Disney to underwriters or agents in connection with the offering of Offered Securities, and any discounts, concessions or commissions allowed by underwriters to participating dealers, will be set forth in an applicable Prospectus Supplement. Underwriters, dealers and agents participating in the distribution of the Offered Securities may be deemed to be underwriters under the Securities Act, and any discounts and commissions received by them and any profit realized by them on resale of the Offered Securities may be deemed to be underwriting discounts and commissions under the Securities Act. Underwriters, dealers and agents may be entitled, under agreements with New Disney and, under certain circumstances, Disney, to indemnification against and contribution toward certain civil liabilities, including liabilities, under the Securities Act, and to reimbursement by New Disney and, under certain circumstances, Disney for certain expenses. If a dealer is utilized in the sale of the Securities in respect of which this Prospectus is delivered, New Disney will sell such Securities to such dealer, as principal. The dealer may then resell such Securities to the public at varying prices to be determined by such dealer at the time of resale. If so indicated in an applicable Prospectus Supplement, New Disney will authorize dealers acting as its agents to solicit offers by certain institutions to purchase Offered Securities from New Disney at the public offering price set forth in such Prospectus Supplement pursuant to Delayed Delivery Contracts ("Contracts") providing for payment and delivery on the date or dates stated in such Prospectus Supplement. Each Contract will be for an amount not less than, and the aggregate principal amount of Offered Securities sold pursuant to Contracts shall not be less nor more than, the respective amounts stated in such Prospectus Supplement. Institutions with whom Contracts, when authorized, may be made include commercial and savings banks, insurance companies, pension funds, investment companies, educational and charitable institutions and other institutions, but will in all cases be subject to the approval of New Disney. Contracts will not be subject to any conditions except (i) the purchase by an institution of the Offered Securities covered by its Contracts shall not at the time of delivery be prohibited under the laws of any jurisdiction in the United States to which such 27 institution is subject, and (ii) if the Offered Securities are being sold to underwriters, New Disney shall have sold to such underwriters the total principal amount of the Offered Securities less the principal amount thereof covered by Contracts. Agents and underwriters will have no responsibility in respect of the delivery or performance of Contracts. The Securities may or may not be listed on a national securities exchange or a foreign securities exchange. No assurances can be given that there will be a market for any of the Securities. LEGAL MATTERS Certain legal matters with respect to the legality of the Securities being offered hereby will be passed upon for New Disney and Disney by Skadden, Arps, Slate, Meagher & Flom, Los Angeles, California. EXPERTS The consolidated financial statements and related schedules of Disney incorporated in this Prospectus by reference to the Annual Report on Form 10-K for the year ended September 30, 1994 have been so incorporated in reliance on the report of Price Waterhouse LLP, independent accountants, given on the authority of said firm as experts in auditing and accounting. The consolidated financial statements and related schedule of Capital Cities incorporated in this Prospectus by reference to the Capital Cities Annual Report on Form 10-K for the year ended December 31, 1994 have been audited by Ernst & Young LLP, independent auditors, as set forth in their reports therein and incorporated herein by reference. Such consolidated financial statements and schedule are incorporated herein by reference in reliance upon such reports, given upon the authority of said firm as experts in auditing and accounting. 28 PART II INFORMATION NOT REQUIRED IN PROSPECTUS ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION All expenses other than the Securities and Exchange Commission filing fees are estimated. SEC registration fee........................................... $1,559,207 Accountants' fees and expenses................................. 20,000 Legal fees and expenses........................................ 50,000 Blue Sky fees and expenses..................................... 20,000 Printing and engraving expenses................................ 75,000 Rating agencies' fees.......................................... 750,000 Trustee's and registrar's fees and expenses.................... 25,000 Miscellaneous.................................................. 250,793 ---------- Total:..................................................... $2,750,000 ---------- ----------
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS Section 145 of the Delaware General Corporation Law (the "DGCL") empowers a Delaware corporation to indemnify its directors, officers, employees and agents under certain circumstances. Disney's Restated Certificate of Incorporation (the "Disney Certificate") and bylaws and the New Disney Certificate of Incorporation (together with the Disney Certificate, the "Certificates") and bylaws (together with Disney's bylaws, the "Bylaws") each provide that Disney or New Disney, as the case may be, shall indemnify to the full extent authorized or permitted by law (as now or hereafter in effect) any person made, or threatened to be made, a defendant or a witness to any action, suit or proceeding (whether civil or criminal or otherwise) by reason of the fact that he, his testator or intestate, is or was a director or officer of Disney or New Disney, as the case may be, or by reason of the fact that such director or officer, at the request of Disney or New Disney, as the case may be, is or was serving any other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, in any capacity. The Certificates and Bylaws further provide that Disney or New Disney, as the case may be, may purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of Disney or New Disney, as the case may be, or is serving at the request of Disney or New Disney, as the case may be, as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise against any liability asserted against him and incurred by him in any such capacity, or arising out of his status as such, whether or not Disney or New Disney, as the case may be, would have the power to indemnify him against such liability under the provisions of law. In addition, the Certificates and Bylaws provide that Disney or New Disney, as the case may be, may create a trust fund, grant a security interest and/ or use other means (including, without limitation, letters of credit, surety bonds and/or similar arrangements), as well as enter into contracts providing for indemnification to the full extent authorized or permitted by law and including as part thereof provisions with respect to any and all of the foregoing to ensure the payment of such amounts as may become necessary to effect indemnification as provided therein, or elsewhere. Moreover, the Certificates further provide that no director of Disney or New Disney, as the case may be, shall be personally liable to Disney (or New Disney, as the case may be) or its stockholders for monetary damages for any breach of fiduciary duty as a director, except a director shall be liable to the extent provided by applicable law (i) for any breach of the director's duty of loyalty to Disney (or New Disney, as the case may be) or its stockholder; (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law; (iii) for liability under Section 174 of the DGCL (involving certain unlawful dividends or stock repurchases); or (iv) for any transaction from which the director derived an improper personal benefit. II-1 Each of Disney and New Disney maintains an officer's and director's liability insurance policy insuring its officers and directors against certain liabilities and expenses incurred by them in their capacities as such, and insuring Disney or New Disney, as the case may be, under certain circumstances, in the event that indemnification payments are made by Disney to such officers and directors. Disney has entered into indemnification agreements (the "Indemnification Agreements") with certain of its directors and officers (individually, the "Indemnitee"). The Indemnification Agreements, among other things, provide for indemnification to the fullest extent permitted by law against any and all expenses, judgments, fines, penalties and amounts paid in settlement of any claim. The Indemnification Agreements provide for the prompt advancement of all expenses to the Indemnitee and for reimbursement to Disney if it is found that such Indemnitee is not entitled to such indemnification under applicable law. The Indemnification Agreements also provide that after a Change in Control (as defined in the Indemnification Agreements) of Disney which is not approved by the Disney Board of Directors, all determinations regarding a right to indemnity and the right to advancement of expenses shall be made by independent legal counsel selected by the Indemnitee and approved by the Board of Directors. In addition, the event of a Potential Change In Control (as defined in the Indemnification Agreements), the Indemnitee may require Disney to establish a trust for his or her benefit and to fund such trust in amounts reasonably anticipated or proposed to be paid to satisfy Disney's indemnification obligations under the Indemnification Agreements. New Disney expects to enter into substantially identical indemnification agreements with certain of its directors and officers. ITEM 16. EXHIBITS
EXHIBIT NO. DESCRIPTION - ---------- ------------------------------------------------------------------------------------------------- *1.1 Form of Underwriting Agreement between Disney, New Disney and the Underwriter(s) with respect to Debt Securities. 1.2 Form of Underwriting Agreement between Disney, New Disney and the Underwriter(s) with respect to Preferred Stock. *1.3 Form of Distribution Agreement between Disney, New Disney and the Agent(s) with respect to Debt Securities. 2.1 Amended and Restated Agreement and Plan of Reorganization, dated as of July 31, 1995, between Disney and Capital Cities (incorporated by reference to Exhibit 2.1 to Disney's Current Report on Form 8-K, dated October 6, 1995). 2.2 Form of Agreement and Plan of Merger, dated as of , among New Disney, DCA Merger Corp. and Disney. *4.1 Form of Senior Debt Securities Indenture, dated as of , 1995 between New Disney, Disney, as Guarantor, and Citibank, N.A., as Trustee (including form of Debt Guarantee by Disney). *4.2 Form of Senior Subordinated Debt Securities Indenture, dated as of , 1995, between New Disney, Disney, as Guarantor, and , as Trustee (including form of Debt Guarantee by Disney). *4.3 Form of Subordinated Debt Securities Indenture, dated as of , 1995 between New Disney, Disney, as Guarantor, and , as Trustee (including form of Debt Guarantee by Disney). 4.4 Form of Debt Securities Warrant Agreement (including form of Debt Warrant Certificate). 4.5 Form of Preferred Stock Warrant Agreement (including Form of Preferred Stock Warrant Certificate).
II-2
EXHIBIT NO. DESCRIPTION - ---------- ------------------------------------------------------------------------------------------------- *4.6 Form of Deposit Agreement (including form of Depositary Receipts). ***4.7 Form of Disney guarantee of New Disney Preferred Stock. 5.1 Opinion of Skadden, Arps, Slate, Meagher & Flom regarding the Securities. *12.1 Computation of Ratio of Earnings to Fixed Charges. **12.2 Computation of Pro Forma Combined Ratio of Earnings to Fixed Charges. 23.1 Consent of Skadden, Arps, Slate, Meagher & Flom (included in their opinion filed as Exhibit 5.1). 23.2 Consent of Independent Accountants (Price Waterhouse LLP). 23.3 Consent of Independent Auditors (Ernst & Young LLP). *24 Powers of Attorney (included on pages II-5 and II-7). 25.1 Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of Citibank, N.A., as Trustee under the Senior Debt Securities Indenture. ***25.2 Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of , as Trustee under the Senior Subordinated Debt Securities Indenture. ***25.3 Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of , as Trustee under the Subordinated Debt Securities Indenture. **99 Consents of persons to be named directors of New Disney.
- ------------------------ * Previously filed ** To be filed by amendment *** To be filed by amendment or incorporated by reference from a Current Report on Form 8-K ITEM 17. UNDERTAKINGS (a) The undersigned Registrants each hereby undertake: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement 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 the purpose of determining any liability under the Securities Act of 1933, as amended (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; and (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. (b) The undersigned Registrants each hereby undertake that, for purposes of determining any liability under the Securities Act, each filing of an annual report pursuant to Section 13(a) or 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) 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 Securities and Exchange Commission 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 II-3 than the payment by a Registrant of expenses incurred or paid by a director, officer or controlling person of such 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, such 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. (d) The undersigned Registrants hereby undertake to file an application for the purpose of determining the eligibility of trustees to act under subsection (a) of Section 310 of the Trust Indenture Act in accordance with the rules and regulations prescribed by the Commission under Section 305(b)(2) of the Securities Act. II-4 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements of filing on Form S-3 and has duly caused this Amendment to the Registration Statement to be signed on its behalf by the undersigned, thereunder duly authorized, in the City of Burbank, State of California, on the 30th day of October, 1995. THE WALT DISNEY COMPANY By /s/ MICHAEL D. EISNER* -------------------------------------- Michael D. Eisner CHAIRMAN AND CHIEF EXECUTIVE OFFICER Pursuant to the requirements of the Securities Act of 1933, this Amendment to the Registration Statement has been signed below by the following persons in the capacities and on the dates indicated.
SIGNATURE TITLE DATE - ------------------------------------------------------ ----------------------------------- -------------------- /s/ MICHAEL D. EISNER* ------------------------------------------- Chairman of the Board and Chief October 30, 1995 (Michael D. Eisner) Executive Officer /s/ STEPHEN F. BOLLENBACH* Senior Executive Vice President and ------------------------------------------- Chief Financial Officer and a October 30, 1995 (Stephen F. Bollenbach) Director /s/ SANFORD M. LITVACK* Senior Executive Vice President and ------------------------------------------- Chief of Corporate Operations and October 30, 1995 (Sanford M. Litvack) a Director /s/ JOHN J. GARAND* Senior Vice President -- Planning ------------------------------------------- and Control (Chief Accounting October 30, 1995 (John J. Garand) Officer) /s/ REVETA F. BOWERS* ------------------------------------------- Director October 30, 1995 (Reveta F. Bowers) /s/ ROY E. DISNEY* ------------------------------------------- Director October 30, 1995 (Roy E. Disney) /s/ STANLEY P. GOLD* ------------------------------------------- Director October 30, 1995 (Stanley P. Gold)
II-5
SIGNATURE TITLE DATE - ------------------------------------------------------ ----------------------------------- -------------------- /s/ IGNACIO E. LOZANO, JR.* ------------------------------------------- Director October 30, 1995 (Ignacio E. Lozano, Jr.) /s/ GEORGE J. MITCHELL* ------------------------------------------- Director October 30, 1995 (George J. Mitchell) /s/ RICHARD A. NUNIS* ------------------------------------------- Director October 30, 1995 (Richard A. Nunis) /s/ SIDNEY POITIER* ------------------------------------------- Director October 30, 1995 (Sidney Poitier) /s/ IRWIN E. RUSSELL* ------------------------------------------- Director October 30, 1995 (Irwin E. Russell) /s/ ROBERT A.M. STERN* ------------------------------------------- Director October 30, 1995 (Robert A.M. Stern) /s/ E. CARDON WALKER* ------------------------------------------- Director October 30, 1995 (E. Cardon Walker) /s/ RAYMOND L. WATSON* ------------------------------------------- Director October 30, 1995 (Raymond L. Watson) /s/ GARY L. WILSON* ------------------------------------------- Director October 30, 1995 (Gary L. Wilson) *By: /s/ DAVID K. THOMPSON ------------------------------------------- David K. Thompson Attorney-in-fact
II-6 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements of filing on Form S-3 and has duly caused this Amendment to the Registration Statement to be signed on its behalf by the undersigned, thereunder duly authorized, in the City of Burbank, State of California, on the 30th day of October, 1995. DC HOLDCO, INC. By /s/ SANFORD M. LITVACK* ----------------------------------- Sanford M. Litvack PRESIDENT Pursuant to the requirements of the Securities Act of 1933, this Amendment to the Registration Statement has been signed below by the following persons in the capacities and on the dates indicated.
SIGNATURE TITLE DATE ------------------------- --------------------------------- ------------------ /s/ SANFORD M. LITVACK* President and a Director October 30, 1995 ------------------------- (Sanford M. Litvack) /s/ STEPHEN F. BOLLENBACH* Senior Executive Vice President October 30, 1995 ------------------------- and Chief Financial Officer (Stephen F. Bollenbach) /s/ JOHN J. Senior Vice President -- Planning GARAND* and Control (Chief Accounting October 30, 1995 ------------------------- Officer) (John J. Garand) /s/ DAVID K. THOMPSON Director October 30, 1995 ------------------------- (David K. Thompson) /s/ MARSHA L. REED* Director October 30, 1995 ------------------------- (Marsha L. Reed) *By: /s/ DAVID K. THOMPSON ------------------------- David K. Thompson Attorney-in-fact
II-7 INDEX TO EXHIBITS
EXHIBIT NO. DESCRIPTION PAGE - ---------- ----------------------------------------------------------------------------------------------- ----- *1.1 Form of Underwriting Agreement between Disney, New Disney and the Underwriter(s) with respect to Debt Securities 1.2 Form of Underwriting Agreement between Disney, New Disney and the Underwriter(s) with respect to Preferred Stock............................................................................ *1.3 Form of Distribution Agreement between Disney, New Disney and the Agent(s) with respect to Debt Securities 2.1 Amended and Restated Agreement and Plan of Reorganization, dated as of July 31, 1995, between Disney and Capital Cities (incorporated by reference to Exhibit 2.1 to Disney's Current Report on Form 8-K, dated October 6, 1995)........................................................... 2.2 Form of Agreement and Plan of Merger, dated as of , among New Disney, DCA Merger Corp. and Disney.................................................................................... *4.1 Form of Senior Debt Securities Indenture, dated as of , 1995 between New Disney, Disney, as Guarantor, and Citibank, N.A., as Trustee (including form of Debt Guarantee by Disney) *4.2 Form of Senior Subordinated Debt Securities Indenture, dated as of , 1995, between New Disney, Disney, as Guarantor, and , as Trustee (including form of Debt Guarantee by Disney) *4.3 Form of Subordinated Debt Securities Indenture, dated as of , 1995 between New Disney, Disney, as Guarantor, and , as Trustee (including form of Debt Guarantee by Disney) 4.4 Form of Debt Securities Warrant Agreement (including form of Debt Warrant Certificate)......... 4.5 Form of Preferred Stock Warrant Agreement (including Form of Preferred Stock Warrant Certificate).................................................................................. *4.6 Form of Deposit Agreement (including form of Depositary Receipts) ***4.7 Form of Disney guarantee of New Disney Preferred Stock 5.1 Opinion of Skadden, Arps, Slate, Meagher & Flom regarding the Securities....................... *12.1 Computation of Ratio of Earnings to Fixed Charges **12.2 Computation of Pro Forma Combined Ratio of Earnings to Fixed Charges........................... 23.1 Consent of Skadden, Arps, Slate, Meagher & Flom (included in their opinion filed as Exhibit 5.1).......................................................................................... 23.2 Consent of Independent Accountants (Price Waterhouse LLP) 23.3 Consent of Independent Auditors (Ernst & Young LLP) *24 Powers of Attorney (included on pages II-5 and II-7) 25.1 Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of Citibank, N.A., as Trustee under the Senior Debt Securities Indenture......................................... ***25.2 Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of , as Trustee under the Senior Subordinated Debt Securities Indenture............................... ***25.3 Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of , as Trustee under the Subordinated Debt Securities Indenture...................................... **99 Consents of persons to be named directors of New Disney........................................
- ------------------------ * Previously filed ** To be filed by amendment *** To be filed by amendment or incorporated by reference from a Current Report on Form 8-K EX-1.2 2 EXHIBIT 1.2 DC HOLDCO, INC. [THE WALT DISNEY COMPANY] UNDERWRITING AGREEMENT STANDARD PROVISIONS (PREFERRED STOCK AND DEPOSITARY SHARES) , 1995 ----------- From time to time, DC Holdco, Inc., a Delaware corporation (the "Company"), may enter into one or more underwriting agreements that provide for the sale of designated securities to the several underwriters named therein. The standard provisions set forth herein may be incorporated by reference in any such underwriting agreement (an "Underwriting Agreement"). The Underwriting Agreement, including the provisions incorporated therein by reference, is herein referred to as "this Agreement". Terms defined in the Underwriting Agreement are used herein as therein defined. The Company has filed with the Securities and Exchange Commission (the "Commission") a registration statement including a prospectus, which, among other things, relates to the Preferred Stock [Depositary Shares] and has filed with, or transmitted for filing to, or shall promptly hereafter file with or transmit for filing to, the Commission a prospectus supplement (the "Prospectus Supplement") specifically relating to the Preferred Stock [Depositary Shares], pursuant to Rule 424 of the Commission's regulations under the Securities Act of 1933, as amended (the "1933 Act") and/or a term sheet or an abbreviated term sheet (each a "Term Sheet"), pursuant to Rule 434 of the Commission's regulations under the Securities Act (the "1993 Act Regulations"), specifically relating to the Preferred Stock [Depositary Shares]. The payment of dividends on the redemption price of and the liquidation preference of the Preferred Stock [Underlying Preferred Shares] may be guaranteed by The Walt Disney Company, a Delaware corporation ("Disney").(1) The term Registration Statement means - --------------------- (1) Each reference to Disney will be included only if the Preferred Stock [Underlying Preferred Shares] is guaranteed by Disney. the registration statement as amended to the date of this Agreement. The term Basic Prospectus means the prospectus included in the Registration Statement. The term Prospectus means the Basic Prospectus together with the Prospectus Supplement and Term Sheet, if any. The term preliminary prospectus means a preliminary prospectus supplement specifically relating to the Shares together with the Basic Prospectus. As used herein, the term Incorporated Documents shall mean all the documents, financial statements and schedules incorporated by reference in the Registration Statement or Prospectus or deemed to be incorporated by reference therein pursuant to Item 12 of Form S-3 under the 1933 Act, and any reference to any amendment or supplement to the Registration Statement or the Prospectus shall be deemed to refer to and include any documents, financial statements and schedules filed by the Company, Disney [or Capital Cities/ABC, Inc. ("Capital Cities")] with the Commission under the Securities Exchange Act of 1934 (the "1934") Act and so incorporated by reference or deemed to be incorporated therein. Notwithstanding the foregoing, for purposes of this Agreement any prospectus, prospectus supplement, term sheet or abbreviated term sheet prepared or filed with respect to an offering pursuant to the Registration Statement of a series of securities other than the Shares shall not be deemed to have supplemented the Prospectus. 1. REPRESENTATIONS AND WARRANTIES. The Company [and Disney, jointly and severally] represents and warrants to each of the Underwriters that: (a) The Incorporated Documents, when they became effective or were filed (or, if an amendment with respect to any such Incorporated Document was filed or became effective, when such amendment was filed or became effective) with the Commission, as the case may be, complied in all material respects with the requirements of the 1934 Act, and any Incorporated Documents filed subsequent to the date of the Underwriting Agreement and prior to the Closing Date, will, when they are filed with the Commission, comply in all material respects with the requirements of the 1934 Act; no such Incorporated Document, when it became effective or was filed (or, if an amendment with respect to any such incorporated Document was filed or became effective, when such amendment was filed or became effective) with the Commission, contained, and no Incorporated Document filed subsequent to the date of the Underwriting Agreement and prior to the Closing Date will contain, an untrue statement of a material fact or omitted, or will omit, to state a material fact required to be stated therein or necessary to make the statements therein not misleading. 2 (b) The Registration Statement, at the time it became effective, complied in all material respects with the provisions of the 1933 Act and the 1933 Act Regulations; as of the date of the Underwriting Agreement, the Registration Statement and the Prospectus, and any supplements or amendments thereto, complied in all material respects with the provisions of the 1933 Act and the 1933 Act Regulations; and the Registration Statement and the Prospectus, and any such supplement or amendment thereto, at all such times did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; except that this representation and warranty does not apply to statements or omissions in the Registration Statement, the Prospectus or any preliminary prospectus, or any amendment or supplement thereto, made in reliance upon information furnished to the Company in writing by or on behalf of the Underwriters expressly for use therein or to those parts of the Registration Statement which constitute the Trustee's Statement of Eligibility and Qualification on Form T-1 (the "Form T-1") under the Trust Indenture Act of 1939, as amended (the "1939 Act"). There is no contract or document of a character required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement which is not described or filed as required. (c) The authorized, issued and outstanding capital stock of the Company is as set forth in the Prospectus under "Capitalization" (except for subsequent issuances, if any, pursuant to reservations, stock option agreements, employee benefit plans or the exercise of convertible securities referred to in the Prospectus); all of the issued and outstanding shares of the Common stock, par value $0. per share, of the Company (the "Common Stock") have been duly authorized and validly issued and are fully paid and nonassessable; the Shares [Underlying Preferred Shares] have been duly authorized; when delivered by the Company pursuant to the Underwriting Agreement against payment of the consideration set forth in the Underwriting Agreement, the Preferred Stock [Underlying Preferred Shares] will be validly issued and fully paid and nonassessable; and the issuance of the Preferred Stock [Underlying Preferred Shares] is not subject to preemptive or other similar rights. 3 (d) The Shares [and Underlying Preferred Shares] conform in all material respects to the description thereof contained in the Prospectus and the Registration Statement. (e) This Agreement has been duly authorized and validly executed and delivered by the Company [and Disney]. (f) Assuming due authorization, execution and delivery of the Deposit Agreement by the Depositary, each Depositary Share will represent an interest in [fraction] of a share of a validly issued, outstanding, fully paid and nonassessable Underlying Preferred Share; and assuming due execution and delivery of the Depositary Receipts by the Depositary pursuant to the Deposit Agreement, the Depositary Receipts will entitle the holders thereof to the benefits provided therein and in the Deposit Agreement. [(g) The Deposit Agreement has been duly authorized and, as of the Closing Date, will have been duly executed and delivered by the Company.] (h) The Company [and Disney each] is a validly existing corporation in good standing under the laws of Delaware. The Company [and Disney each] has full corporate power and authority to own, lease and operate its properties and to conduct its business as presently conducted and as described in the Prospectus; and the Company [and Disney each] is duly qualified as a foreign corporation to transact business and is in good standing in each jurisdiction in which such qualification is required whether by reason of the ownership or leasing of property or the conduct of business, except where the failure to so qualify would not have a material adverse effect on the consolidated financial condition or earnings of the Company [Disney] and its subsidiaries, considered as one enterprise. (i) Except as contemplated in the Prospectus or reflected therein by the filing of any amendment or supplement thereto or any Incorporated Document, since the date of the most recent consolidated financial statements included or incorporated by reference in the Registration Statement and the Prospectus there has not been any material adverse change in the consolidated financial condition or earnings of the Company [Disney] and its subsidiaries, considered as one enterprise. 4 (j) [Neither] the Company [nor Disney] is [not] in violation of its certificate of incorporation or bylaws. The execution and delivery of this Agreement and the Deposit Agreement by the Company [and Disney, as the case may be], the issuance and sale of the Shares [the issuance and deposit of the Underlying Preferred Shares in accordance with the Deposit Agreement] [and the Guarantees] [and the issuance of the related Guarantees] and the performance by the Company [and Disney] of its [their] obligations under this Agreement and the Deposit Agreement will not conflict with or constitute a breach of or a default (with the passage of time or otherwise) under (A) the certificate of incorporation or bylaws of the Company [or Disney], (B) subject to the Company's [or Disney's, as the case may be,] compliance with any applicable covenants pertaining to its issuance of Preferred Stock contained therein, any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Company [or Disney] is a party or by which it may be bound, or to which any of the properties or assets of the Company [or Disney] is subject, which breach or default would, singly or in the aggregate, reasonably be expected to have a material adverse effect on the consolidated financial condition or earnings of the Company [Disney] and its subsidiaries, considered as one enterprise, or (C) any applicable law, administrative regulation or administrative or court decree, except for orders, permits and similar authorizations required under or by the securities or Blue Sky laws of certain jurisdictions, any securities exchange on which any of the Shares might be listed. [As of the date of the Underwriting Agreement and the Closing Date, Disney both immediately before and immediately after giving effect to the delivery of the Guarantees, will be in compliance with the requirements of any applicable covenants pertaining to its incurrence of unsecured indebtedness contained in the agreements or instruments referred to in clause (B) above.] (k) To the best of the Company's [and Disney's] knowledge, the accountants who have audited and reported upon the financial statements filed with the Commission as part of the Registration Statement and the Prospectus are independent accountants as required by the 1933 Act. The financial statements included in the Registration Statement or Prospectus or incorporated therein by reference fairly present the consolidated financial position and results of operations of the Company [Disney] and its subsidiaries at the respective dates and for the respective periods to which they apply. Such financial statements have been prepared in accordance 5 with generally accepted accounting principles consistently applied, except as set forth in the Registration Statement and Prospectus. (l) Each of [ ] (collectively the "Significant Subsidiaries") is a validly existing corporation in good standing in the state of its incorporation. Each of the Significant Subsidiaries has full corporate power and authority to own, lease and operate its properties and to conduct its business as presently conducted and as described in the prospectus; and each of the Significant Subsidiaries is duly qualified as a foreign corporation to transact business and is in good standing in each United States jurisdiction in which such qualification is required whether by reason of the ownership or leasing of property or the conduct of business, except where a failure to so qualify would not have a material adverse effect on the consolidated financial condition or earnings of the Company [Disney] and its subsidiaries, considered as one enterprise. (m) The Company [and Disney, each] has complied with, and is and will be in compliance with, the provisions of that certain Florida act relating to disclosure of doing business with Cuba, codified as Section 517.075 of the Florida statutes, and the rules and regulations thereunder or is exempt therefrom. 2. PUBLIC OFFERING. The Company is advised by the Manager that the Underwriters propose to make a public offering of their respective portions of the Shares as soon after this Agreement has been entered into as in the Manager's judgment is advisable. The terms of the public offering of the Shares [Depositary Shares] have been provided by the Manager to the Company and are in all material respects completely set forth in the Prospectus. 3. PURCHASE AND DELIVERY Except as otherwise provided in this Agreement, payment for the Shares shall be made by wire transfer, of immediately available funds, by the Underwriters to the order of the Company, at the time set forth in the Underwriting Agreement, upon delivery to the Manager for the respective accounts of the several Underwriters of the Preferred Stock [Depositary Receipts], registered in such names and in such denominations as the Manager shall request in writing not less than two full business days prior to the date of delivery, with any transfer taxes payable in connection with the sale of the Shares to the Underwriters duly paid. 6 4. CONDITIONS TO CLOSING The several obligations of the Underwriters hereunder are subject to the following conditions: (a) OPINION OF COUNSEL TO COMPANY. On the Closing Date, the Underwriters shall have received an opinion from Skadden, Arps, Slate, Meagher & Flom, counsel to the Company, dated as of the Closing Date and in form and substance satisfactory to counsel for the Underwriters to the effect that: (i) The Company [Disney] and each of the Significant Subsidiaries is a corporation validly existing and in good standing under the laws of its state of incorporation. (ii) The Company [and Disney each] has full corporate power and corporate authority to enter into and perform its obligations under this Agreement [and the Deposit Agreement, to issue and deliver the Underlying Preferred Shares and to sell and deliver the Depositary Shares]. (iii) This Agreement has been duly authorized, executed and delivered by the Company [and Disney]. (iv) The Shares [the Underlying Preferred Shares and the deposit of the Underlying Preferred Shares in accordance with the Deposit Agreement] have been duly authorized and, when issued and delivered by the Company pursuant to this Agreement, the [Underlying] Preferred Stock will be validly issued and fully paid and nonassessable. [(v) The Deposit Agreement has been duly authorized, executed and delivered by the Company and (assuming due authorization, execution and delivery by the Depositary) is a valid and binding agreement of the Company enforceable against the Company in accordance with its terms, except that such enforceability may be limited by (A) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to or affecting creditors' rights generally, (B) general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law).] (vi) No consent or approval of any United States governmental authority or other United States person or United States entity is required in connection with the issuance or sale of the Shares other than registration 7 thereof under the 1933 Act, and such registrations or qualifications as may be necessary under the securities or Blue Sky laws of the various United States jurisdictions in which the Shares are to be offered or sold. [(vii) The Guarantees, when executed by Disney and issued to and paid for by the purchasers thereof, will be valid and binding obligations of Disney enforceable against Disney in accordance with their respective terms, except that such enforceability may be limited by (A) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to or affecting creditors' rights generally and (B) general principles of equity (regardless of whether such enforcement is sought in a proceeding in equity or at law).] (viii) The Registration Statement has become effective under the 1933 Act, and, to the best of such counsel's knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or contemplated. (ix) The execution and delivery of this Agreement and the Deposit Agreement by the Company [and Disney], the issuance and sale of the Shares [and issuance of the Guarantees] and the performance of this Agreement[, and the Guarantees] by the Company [and Disney] will not conflict with or constitute a breach of or a default (with the passage of time or otherwise) under (A) the certificate of incorporation or bylaws of the Company [or Disney], (B) any statute, law or regulation to which the Company [or Disney] or any of its [respective] properties may be subject or (C) any judgment, decree or order, known to such counsel, of any court or government agency or authority entered in any proceeding to which the Company [or Disney] was or is now a party or by which it is bound; provided, that such counsel may state that (1) the opinion set forth in clause (B) of this paragraph (ix) is limited to those United States statutes, laws or regulations currently in effect which, in such counsel's experience, are normally applicable to transactions of the type contemplated by this Agreement, and (2) no opinion is expressed as to the securities or Blue Sky laws of the various jurisdictions in which the Shares are to be offered (3) no opinion is expressed with respect to such clause (B) with respect to the Shares [and the related Guarantees] which are indexed or linked to any foreign currency, composite currency, commodity, equity index or similar index. 8 (x) The Registration Statement, as of the date it became effective, and the Prospectus, as of the date of the Underwriting Agreement, appear on their face to be appropriately responsive in all material respects to the requirements of the 1933 Act, except that in each case such counsel need not express an opinion as to (i) the Incorporated Documents, (ii) the financial statements and schedules and other financial data included or incorporated by reference therein or (iii) the Form T-1. (xi) The statements in the Prospectus under the caption "Description of the Preferred Stock" ["Description of the Depositary Shares"], insofar as they purport to summarize certain provisions of documents specifically referred to therein, are in all material respects accurate summaries of such provisions. (xii) The authorized, issued and outstanding capital stock of the Company is as set forth in the Prospectus under "Capitalization" (except for subsequent issuances, if any, pursuant to reservations, stock option agreements, employee benefit plans or the exercise of convertible securities referred to in the Prospectus); all of the issued and outstanding shares of the Common stock, par value $0. per share, of the Company (the "Common Stock") have been duly authorized and validly issued and are fully paid and nonassessable; the Shares [and the Underlying Preferred Shares] have been duly authorized; when delivered by the Company pursuant to the Underwriting Agreement against payment of the consideration set forth in the Underwriting Agreement, the [Underlying] Preferred Shares will be validly issued and fully paid and nonassessable; and the issuance of the [Underlying] Preferred Shares is not subject to preemptive or other similar rights. [(xiii) Assuming due authorization, execution and delivery of the Deposit Agreement by the Depositary, each Share will represent an interest in [fraction] of a share of a validly issued, outstanding, fully paid and nonassessable Underlying Preferred Share; assuming due execution and delivery of the Depositary Receipts by the Depositary pursuant to the Deposit Agreement, the Depositary Receipts will entitle the holders thereof to the benefits provided therein and in the Deposit Agreement.] [(xiv) The Deposit Agreement has been duly authorized and, as of the Closing Date, will have been duly executed and delivered by the Company.] 9 In addition, such counsel shall state that they have participated in conferences with officers and other representatives of the Company, counsel employed by the Company, representatives of the independent public accountants for the Company, representatives of the Underwriters and counsel for the Underwriters, at which conferences the contents of the Registration Statement and Prospectus and related matters were discussed and, although such counsel is not passing upon, and does not assume any responsibility for, the accuracy, completeness or fairness of the statements contained in the Registration Statement or the Prospectus and have not made any independent check or verification thereof, on the basis of the foregoing, no facts have come to such counsel's attention that lead them to believe that either the Registration Statement (excluding the Incorporated Documents) at the time such Registration Statement became effective (which, for the purposes of this paragraph, shall have the meaning set forth in Rule 158(c) of the 1933 Act Regulations) contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, or the Prospectus (excluding the Incorporated Documents) as of the date of the Underwriting Agreement contained an untrue statement of a material fact or omitted to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, except that such counsel need express no opinion with respect to (i) the Incorporated Documents, (ii) the financial statements, schedules and other financial data included or incorporated by reference in the Registration Statement or the Prospectus or (iii) the Form T-1. (b) OPINION OF COUNSEL EMPLOYED BY COMPANY. On the Closing Date, the Underwriters shall have received an opinion from David K. Thompson, Senior Vice President-Assistant General Counsel or from other counsel employed by the Company (provided that such counsel is a similarly senior officer of the Company), dated as of the date hereof and in form and substance satisfactory to counsel for the Underwriters, to the effect that: (i) Except as set forth in the Prospectus (including the Incorporated Documents), there is not pending or, to the best of such counsel's knowledge, after reasonable inquiry, threatened any action, suit or proceeding against the Company [Disney] or any of its subsidiaries before or by any court or governmental agency or body, which is likely (to the extent not 10 covered by insurance) to have a material adverse effect on the consolidated financial condition or earnings of the Company [Disney] and its subsidiaries, considered as one enterprise. (ii) To the best of such counsel's knowledge, after reasonable inquiry, there is no contract or document of a character required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement which is not described or filed as required. (iii) To the best of such counsel's knowledge, after reasonable inquiry, [neither] the Company [nor Disney] is [not] in violation of its Certificate of Incorporation or Bylaws. (iv) To the best of such counsel's knowledge, after reasonable inquiry, (x) the execution and delivery, and (y) the performance, of this Agreement [and the Deposit Agreement] will not conflict with or constitute a breach of, or default (with the passage of time or otherwise) under, any material contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Company [or Disney] is a party or by which it may be bound, or to which any of the property or assets of the Company [Disney] or any of its subsidiaries is subject. (v) To the best of such counsel's knowledge, after reasonable inquiry, the Shares [Underlying Preferred Shares, as the case may be,] when issued and delivered as contemplated by the terms of the Underwriting Agreement [and the Deposit Agreement], will be validly issued, fully paid and non- assessable, and the issuance of such shares is not subject to any preemptive or similar rights. The authorized capital stock of the Company conforms with the statements in the Prospectus Supplement under the caption "Capitalization." (vi) The Incorporated Documents, as of the date of the Underwriting Agreement, complied as to form in all material respects with the requirements of the 1933 Act, except that in each case such counsel need not express an opinion as to the financial statements and schedules and other financial data included or incorporated by reference therein. (vii) To the best of such counsel's knowledge, after reasonable inquiry, there are no holders of securities of the Company with currently exercisable registration rights to have any securities registered as part of the 11 Registration Statement or included in the offering contemplated by this Agreement. In addition, such counsel shall state that nothing has come to such counsel's attention that leads him to believe that either the Registration Statement (including the Incorporated Documents) at the time such Registration Statement became effective (which, for the purposes of this paragraph, shall have the meaning set forth in Rule 158(c) of the 1933 Act Regulations) contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, or the Prospectus (including the Incorporated Documents) as of the date of the Underwriting Agreement contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, except that such counsel need express no opinion with respect to the financial statements, schedules and other financial data included or incorporated by reference in the Registration Statement or Prospectus or with respect to the Form T-1. (c) OPINION OF UNDERWRITERS' COUNSEL. On the Closing Date, the Underwriters shall have received an opinion from counsel to the Underwriters dated as of the Closing Date and in form and substance satisfactory to the Underwriters. (d) OFFICER'S CERTIFICATE. [(x)] On the Closing Date the Underwriters shall have received a certificate signed by an officer of the Company, dated the Closing Date, to the effect that (i) the representations and warranties of the Company contained in Section 1. hereof are true and correct in all material respects with the same force and effect as though expressly made at and as of the date of such certificate, (ii) the Company has complied with all agreements and satisfied all conditions required by this Agreement [or the Deposit Agreement] on its part to be performed or satisfied at or prior to the date of such certificate and (iii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or, to the best of such officer's knowledge, threatened by the Commission. The Officers Certificate shall further state that except as contemplated in the Prospectus or reflected therein by the filing of any amendment or supplement thereto or any Incorporated Document, at the Closing Date, there shall not have 12 been, since the date of the most recent consolidated financial statements of the Company included or incorporated by reference in the Prospectus, any material adverse change in the consolidated financial condition or earnings of the Company and its subsidiaries, considered as one enterprise [; (y) On the Closing Date the Underwriters shall have received a certificate signed by an officer of Disney, dated the Closing Date, to the effect that (i) the representations and warranties of Disney contained in Section 1(a) hereof (other than Section 1(a)(vii)) are true and correct in all material respects with the same force and effect as though expressly made at and as of the date of such certificate and (ii) Disney has complied with all agreements and satisfied all conditions required by this Agreement on its part to be performed or satisfied at or prior to the date of such certificate. The Officers Certificate shall further state that except as contemplated in the Prospectus or reflected therein by the filing of any amendment or supplement thereto or any Incorporated Document, at the Closing Date, there shall not have been, since the date of the most recent consolidated financial statements of Disney included or incorporated by reference in the Prospectus, any material adverse change in the consolidated financial condition or earnings of Disney and its subsidiaries, considered as one enterprise]. (e) COMFORT LETTER. On the date of the Underwriting Agreement, the Underwriters shall have received a letter from the Company's [Disney's] [and Capital Cities] independent certified public accountants, dated as of the date of the Underwriting Agreement and in form and substance reasonably satisfactory to the Underwriters. On the Closing Date, the Underwriters shall have received a letter from such accountants, dated the Closing Date, updating the foregoing letter[s] and in form and substance reasonably acceptable to the Underwriters. (f) OTHER DOCUMENTS. On the Closing Date, counsel to the Underwriters shall have been furnished with such documents and opinions as such counsel may reasonably require for the purpose of enabling such counsel to pass upon the issuance and sale of the Shares [and the issuance of the Underlying Preferred Shares] as herein contemplated and related proceedings, or in order to evidence the accuracy and completeness of any of the representations and warranties or the fulfillment of any of the conditions herein contained. 13 If any condition specified in this Section 4 shall not have been fulfilled when and as required to be fulfilled, this Agreement may be terminated by any of the Underwriters (as to itself only), except that the covenants set forth in Section 5(f) hereof, the indemnity and contribution agreement set forth in Sections 6, 7, 8 and 9 hereof and the provisions of Section 13 hereof shall remain in effect. 5. COVENANTS OF THE COMPANY [AND DISNEY]. In further consideration of the agreements of the Underwriters contained herein, the Company [and Disney, jointly and severally] covenant as follows: (a) NOTICE OF CERTAIN EVENTS. The Company will notify the Manager promptly of (i) the effectiveness of any post-effective amendment to the Registration Statement (other than a post-effective amendment relating solely to an offering of securities other than the Preferred Stock [ Depositary Shares]), (ii) the transmittal to the Commission for filing of any supplement to the Prospectus (other than a Pricing Supplement or a supplement relating solely to an offering of securities other than the Preferred Stock [Depositary Shares]), (iii) the receipt of any comments from the Commission with respect to the Registration Statement or the Prospectus (other than any comments relating solely to an offering of securities other than the Preferred Stock [Depositary Shares]), (iv) any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information (other than any such request relating solely to an offering of securities other than the Shares) and (v) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose. The Company will make every reasonable effort to prevent the issuance of any such stop order and, if any such stop order is issued, to obtain the lifting thereof at the earliest possible time unless the Company shall, in its sole discretion, determine that it is not in its best interest to do so. (b) NOTICE OF CERTAIN PROPOSED FILINGS. At or prior to the filing thereof, the Company will give the Manager notice of its intention to file any additional registration statement with respect to the registration of additional shares of Preferred Stock [Depositary Shares] to be covered by this Agreement, any amendment to the Registration Statement or any amendment or supplement to the Prospectus (other than a Pricing Supplement or an amendment or supplement relating solely to an offering of securities other than the Preferred Stock [Depositary Shares]), whether by 14 the filing of documents pursuant to the 1934 Act, the 1933 Act or otherwise, and will furnish the Underwriters with copies of any such amendment or supplement or other documents promptly after the filing thereof. (c) COPIES OF THE REGISTRATION STATEMENT AND THE PROSPECTUS. The Company will deliver to the Underwriters one copy of a signed copy of, and as many conformed copies of, the Registration Statement (as originally filed) and of each amendment thereto (including the Incorporated Documents and any exhibits filed therewith or incorporated by reference therein) as the Manager may reasonably request. The Company will furnish to the Underwriters as many copies of the Prospectus (as amended or supplemented) as the Manager shall reasonably request so long as the Underwriters are required to deliver a Prospectus in connection with sales or solicitations of offers to purchase the Shares. (d) REVISIONS OF PROSPECTUS -- MATERIAL CHANGES So long as the Underwriters are required to deliver a Prospectus in connection with sales or solicitations of offers to purchase the Shares, if any event shall occur or condition exist as a result of which it is necessary, in the opinion of counsel for the Company, after consultation with counsel for the Underwriters, to further amend or supplement the Prospectus in order that the Prospectus will not include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein not misleading in light of the circumstances existing at the time it is delivered to a purchaser, or if it shall be necessary, in the opinion of counsel for the Company, to amend or supplement the Registration Statement or the Prospectus in order to comply with the requirements of the 1933 Act or the 1933 Act Regulations, prompt notice shall be given, and confirmed in writing, to the Manager, and the Company will prepare and file as soon as practicable an amendment or supplement to the Prospectus so that the Prospectus, as amended or supplemented, will not include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein not misleading in light of the circumstances existing at the time it is delivered to the Underwriters. (e) COMPLIANCE WITH 1934 ACT; ACCOUNTANTS' CONSENTS. [(x)] The Company will (i) comply, in a timely manner, with all applicable requirements under the 1934 Act relating to the filing with the Commission of the Company's reports pursuant to Section 13(a), 13(c) or 15(d) of the 1934 Act and, if then applicable, of the Company's proxy statements pursuant 15 to Section 14(a) of the 1934 Act and (ii) use its best efforts to obtain the written consent of the Company's [and Capital Cities'] independent accountants as to the incorporation by reference in the Registration Statement of the audited financial statements reported on by them and contained in the Company's [and Capital Cities'] annual reports on Form 10- K under the 1934 Act[; and (y) Disney will (i) comply, in a timely manner, with all applicable requirements under the 1934 Act relating to the filing with the Commission of Disney's reports pursuant to Section 13(a), 13(c) or 15(d) of the 1934 Act and, if then applicable, of Disney's proxy statements pursuant to Section 14(a) of the 1934 Act and (ii) use its best efforts to obtain the written consent of Disney's independent accountants as to the incorporation by reference in the Registration Statement of the audited financial statements reported on by them and contained in Disney's annual reports on Form 10-K under the 1934 Act.] (f) EARNINGS STATEMENTS. The Company [Disney] will make generally available to its security holders, in each case as soon as practicable but in any event not later than 15 months after the Closing Date, a consolidated earnings statement (which need not be audited) covering the twelve-month period beginning after the latest of (i) the effective date of the Registration Statement, (ii) the effective date of the most recent post-effective amendment to the Registration Statement to become effective, (iii) the Company's [Disney's] most recent annual report on Form 10-K filed with the Commission prior to the Closing Date, which earnings statement shall satisfy the provisions of Section 11(a) of the 1933 Act. The Company [Disney] may elect to rely upon Rule 158 under the 1933 Act and may elect to make such earnings statement available more frequently than once in any period of twelve months. (g) BLUE SKY QUALIFICATIONS. The Company will endeavor, in cooperation with the Underwriters, to qualify the Preferred Stock [Depositary Shares] for offering and sale under the applicable securities laws of such states and other jurisdictions of the United States as the Manager may reasonably designate, and will maintain such qualifications in effect for as long as may be required for the distribution of the Shares; PROVIDED, HOWEVER, that the Company will promptly notify the Manager of any suspension or termination of any such qualifications, and PROVIDED, FURTHER, that the Company shall not be obligated to register or qualify as a foreign 16 corporation or take any action which would subject it to general service of process in any jurisdiction where it is not now so subject. 6. INDEMNIFICATION OF THE UNDERWRITERS. The Company [and Disney, jointly and severally,] agrees to indemnify and hold harmless each Underwriter and each person, if any, who controls an Underwriter within the meaning of Section 15 of the 1933 Act as follows: (a) against any and all loss, liability, claim, damage and expense whatsoever (including, subject to the limitations set forth in subsection (c) below, the reasonable fees and disbursements of counsel chosen by the Manager), as incurred, insofar as such loss, liability, claim, damage or expense arises out of any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleading, or arises out of any untrue statement or alleged untrue statement of a material fact contained in the Prospectus or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; (b) against any and all loss, liability, claim, damage and expense whatsoever (including, subject to the limitations set forth in subsection (c) below, the reasonable fees and disbursements of counsel chosen by the Manager), as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or investigation or proceeding by any governmental agency or body, commenced or threatened, or of any claim whatsoever insofar as such loss, liability, claim, damage or expense arises out of any such untrue statement or omission, or any such alleged untrue statement or omission, if such settlement is effected with the written consent of the Company [and Disney]; and (c) against any and all expense whatsoever (including, subject to the limitations set forth in subsection (C) below, the reasonable fees and disbursements of counsel chosen by the Manager), as incurred, reasonably incurred in investigating, preparing or defending against any litigation, or investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever, based upon any such untrue statement or omission, or any such alleged untrue statement or omission; 17 PROVIDED, HOWEVER, that this indemnity shall not apply to any loss, liability, claim, damage or expense (A) to the extent arising out of or based upon any untrue statement or omission or alleged untrue statement or omission made in reliance upon the Form T-1 under the 1939 Act filed as an exhibit to the Registration Statement; or (B) to the extent arising out of any untrue statement or omission or alleged untrue statement or omission in the Prospectus if such untrue statement or alleged untrue statement or omission or alleged omission is corrected in all material respects in an amendment or supplement to the Prospectus and if, having previously been furnished by or on behalf of the Company with copies of the Prospectus, as so amended or supplemented, such Underwriter thereafter failed to deliver such Prospectus, as so amended or supplemented, prior to or concurrently with the sale of the Shares to the person asserting such loss, liability, claim, damage or expense who purchased the Shares which are the subject thereof from such Underwriter; or (C) as to which such Underwriter may be required to indemnify the Company [and Disney] pursuant to the provisions of Section 7. 7. INDEMNIFICATION OF THE COMPANY [AND DISNEY]. Each Underwriter agrees to indemnify and hold harmless the Company [, Disney and] its respective directors, each of its respective officers who signed the Registration Statement, and each person, if any, who controls the Company [or Disney] within the meaning of Section 15 of the 1933 Act against any and all loss, liability, claim, damage and expense described in the indemnity contained in Section 6 hereof, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement or the Prospectus in reliance upon and in conformity with written information furnished to the Company [or Disney] by or on behalf of such Underwriter expressly for use in the Registration Statement or the Prospectus. 8. GENERAL. In case any action, suit or proceeding (including any governmental or regulatory investigation or proceeding) shall be brought against any Underwriter or any person controlling such Underwriter, based upon the Registration Statement or the Prospectus and with respect to which indemnity may be sought against the Company [and Disney] pursuant to Section 6, such Underwriter or controlling person shall promptly notify the Company [and Disney] in writing, and the Company [or Disney] shall assume the defense thereof, including the employment of counsel (such counsel to be reasonably acceptable to such Underwriter) and payment of all expenses. Any such Underwriter or any such controlling person shall have the right to employ separate counsel in any 18 such action, suit or proceeding and to participate in the defense thereof, but the fees and expenses of such separate counsel shall be at the expense of such Underwriter or such controlling person unless (A) the employment of such counsel shall have been specifically authorized in writing by the Company [and Disney], (B) the Company [and Disney] shall have failed to assume the defense and employ counsel or (C) the named parties to any such action, suit or proceeding (including any impleaded parties) shall include both such Underwriter or such controlling person and the Company [or Disney], and such Underwriter or such controlling person shall have been advised by counsel that there may be one or more legal defenses available to it which are different from, or additional to, those available to the Company [or Disney] (in which case, if such Underwriter or such controlling person notifies the Company [and Disney] in writing that it elects to employ separate counsel at the expense of the Company [and Disney], [neither] the Company [nor Disney] shall [not] have the right to assume the defense of such action, suit or proceeding on behalf of such Underwriter or such controlling person, it being understood, however, that the Company [and Disney] shall not, in connection with any one such action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the reasonable fees and expenses of more than one separate firm of attorneys (in addition to any local counsel) for all such Underwriters and such controlling persons, which firm shall be designated in writing by the Manager on behalf of all of such Underwriters and such controlling persons). In case any action, suit or proceeding (including any governmental or regulatory investigation or proceeding) shall be brought against the Company [, Disney], any of the Company's [or Disney's] directors or officers, or any person controlling the Company [or Disney], with respect to which indemnity may be sought against any Underwriter pursuant to Section 7, such Underwriter shall have the rights and duties given to the Company [and Disney] by this Section 8, and the Company [, Disney], the Company's [and Disney's] directors and officers and any such controlling person shall have the rights and duties given to the Underwriters by this Section 8. 9. CONTRIBUTION. In order to provide for just and equitable contribution in circumstances in which the indemnity agreement provided for in Sections 6 and 7 hereof is for any reason held to be unenforceable with respect to the indemnified parties although applicable in accordance with its terms, the Company [and Disney, on the one hand,] and each Underwriter [, on the other hand,] shall contribute to the aggregate losses, liabilities, claims, damages and expenses of the 19 nature contemplated by said indemnity agreement incurred by the Company and the Underwriters, as incurred, in such proportion as is appropriate to reflect the relative benefits received by the Company [and Disney] on the one hand and each of the Underwriters participating in the offering that gave rise to such losses, liabilities, claims, damages and expenses on the other hand from the offering of such Shares. If, however, the allocation provided by the immediately preceding sentence is not permitted by applicable law or if the indemnified party failed to give the notice required pursuant to Section 8 hereof or pursuant to the last sentence of this Section 9, then the Company [, Disney] and each Underwriter shall contribute to such aggregate losses, liabilities, claims, damages and expenses incurred by the Company [, Disney] and the Underwriters, as incurred, in such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the Company [and Disney] on the one hand and each Underwriter on the other hand in connection with the statements or omissions which resulted in such losses, liabilities, claims, damages or expenses, as well as any other relevant equitable considerations. The relative benefits received by the Company [and Disney], on the one hand, and each Underwriter, on the other hand, in connection with the offering of such Shares shall be deemed to be in the same proportion as the total net proceeds from the sale of such Shares by such Underwriter received by the Company (before deducting expenses) bear to the total commissions or other compensation or remuneration received by such Underwriter in respect thereof. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company [or Disney] or such Underwriter and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. If there is more than one Underwriter in respect of a proceeding, each Underwriter's obligation to contribute pursuant to this Section 9 shall be several and not joint, and shall be in the proportion that the number of Shares that are the subject of such proceeding and that were offered and sold through such Underwriter bears to the total number of Shares offered. Notwithstanding the provisions of this Section 9, no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Shares purchased by or through it were sold exceeds the amount of any damages which such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the 1933 Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. For purposes of this Section 9, each person, if any, who controls an Underwriter within the meaning 20 of Section 15 of the 1933 Act shall have the same rights to contribution as such Underwriter, and each director of the Company [or Disney], each officer of the Company [or Disney] who sign the Registration Statement, within the meaning of Section 15 of the 1933 Act, shall have the same rights to contribution as the Company [or Disney, as the case may be]. Any party entitled to contribution pursuant to the first sentence of this Section 9 will, promptly after receipt of notice of commencement of any action, suit or proceeding against such party in respect of which a claim for contribution may be made against another party or parties under this Section 9, notify such party or parties from whom contribution may be sought, but the omission to so notify such party or parties shall not relieve the party or parties from whom contribution may be sought, from any other obligation it or they may have otherwise than under this Section 9; PROVIDED, HOWEVER, that such notice need not be given if such party entitled to contribution hereunder has previously given notice pursuant to Section 8 hereof with respect to the same action, suit or proceeding. 10. TERMINATION. The Underwriters may terminate the Underwriting Agreement immediately upon notice to the Company, at any time prior to the Closing Date, if (i) there has been, since the date of the Underwriting Agreement or since the respective dates as of which information is given in the Registration Statement, any material adverse change in the consolidated financial condition or earnings of the Company [Disney] and its subsidiaries, considered as one enterprise, (ii) there has occurred any material adverse change in the financial markets in the United States or any outbreak or escalation of hostilities or other calamity or crisis, the effect of which is such as to make it, in the reasonable judgment of the Manager, impracticable to market the Shares or to enforce contracts for the sale of the Shares, (iii) if trading in any securities of the Company [or Disney] has been suspended (other than pursuant to a request by the Company [or Disney] with respect to an announcement by the Company [or Disney] of certain information not constituting a material adverse change, since the date of the Underwriting Agreement or the respective date as of which information is given in the Registration Statement, in the consolidated financial condition or earnings of the Company [Disney] and its subsidiaries, considered as one enterprise), the effect of which is such as to make it, in the reasonable judgment of such Underwriter, impracticable to market the Shares or to enforce contracts for the sale of the Shares, (iv) if trading generally on the New York Stock Exchange has been suspended, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities shall have been required, by such exchange or by order of the Commission or any other governmental authority, or if a 21 banking moratorium has been declared by either Federal or New York authorities. 11. DEFAULTING' UNDERWRITERS. If on the Closing Date any one or more of the Underwriters shall fail or refuse to purchase Shares that it has or they have agreed to purchase on such date, and the aggregate number of Shares which such defaulting Underwriter or Underwriters agreed but failed or refused to purchase is not more than one-tenth of the aggregate number of the Shares to be purchased on such date, the other Underwriters shall be obligated severally in the proportions that the number of Shares set forth opposite their respective names above bears to the aggregate number of Shares set forth opposite the names of all such non-defaulting Underwriters, or in such other proportions as the Manager may specify, to purchase the Shares which such defaulting Underwriter or Underwriters agreed but failed or refused to purchase on such date. If on the Closing Date any Underwriter or Underwriters shall fail or refuse to purchase Shares and the aggregate number of Shares with respect to which such default occurs is more than one-tenth of the aggregate number of Shares to be purchased on such date, and arrangements satisfactory to the Manager and the Company for the purchase of such Shares are not made within 36 hours after such default, this Agreement shall terminate without liability on the part of any non- defaulting Underwriter or the Company. In any such case, either the Manager or the Company shall have the right to postpone the Closing Date but in no event for longer then seven days, in order that the required changes, if any, in the Registration Statement and in the Prospectus or in any other documents or arrangements may be effected. Any action taken under this paragraph shall not relieve any defaulting Underwriter from liability in respect of any default of such Underwriter under this Agreement. 12. MISCELLANEOUS. The Underwriting Agreement may be signed in any number of counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument. 13. CHOICE OF LAW. THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITH RESPECT TO CONTRACTS MADE IN AND TO BE PERFORMED WHOLLY WITHIN THE STATE OF NEW YORK WITHOUT REGARD TO THE CONFLICTS OF LAWS PRINCIPLES THEREOF. 14. HEADINGS. The headings of the sections of this Agreement have been inserted for convenience of reference only and shall not be deemed a part of this Agreement. 22 UNDERWRITING AGREEMENT [ ] DC Holdco, Inc. 500 South Buena Vista Street Burbank, California 91521 Dear Sirs: We (the "Manager") are acting on behalf of the underwriter or underwriters (including ourselves) named below (such underwriter or underwriters being herein called the ("Underwriter")), and we understand that DC Holdco, Inc., a Delaware corporation (the "Company") proposes to issue and sell [number of shares] shares (the "Firm Shares") of its [title] Preferred Stock, $ par value, stated value $ per share (the "Preferred Stock") [ Depositary Shares ("the Depositary Shares"), to be issued under a Deposit Agreement (the "Deposit Agreement") dated by and among the Company, (as defined below) issued thereunder, ,as Depositary (the "Depositary"), and the holders from time to time of the Depositary Receipts. Each Depositary Share will represent [insert fraction] of a share of the Company's [title] Preferred Stock, $ par value, $ stated value (the "Underlying Preferred Shares"). The Underlying Preferred shares will, when issued, be deposited by the Company against delivery of Depositary Receipts ("Depositary Receipts") to be issued by the Depositary under the Deposit Agreement. Each Depositary Receipt will represent one or more Depositary Shares]. Subject to the terms and conditions set forth or incorporated by reference herein, the Company hereby agrees to sell and the Underwriters agree to purchase, severally and not jointly, the number of shares of Preferred Stock [DepositaryShares] set forth below opposite their names at a purchase price of $ per share [plus accrued dividends, if any, from __________, 199_) to the date of payment and delivery(1)] (the "Offering Price") Number of Firm Name Shares to be Purchased ---- ------------------------- [Lead Underwriter] . . . . . . . - --------------------- (1) To be added only if transaction does not close flat. [Insert syndicate list]. . . . . ---------------- ---------------- ---------------- The Underwriters will pay for the Preferred Stock [Depositary Shares] upon delivery thereof at [office] at _____ a.m. (New York time) on ____________, 199__, or at such other time, not later than 5:00 p.m. (New York time) on ____________, 199__, as shall be designated by the Manager. The time and date of such payment and delivery are hereinafter referred to as the Closing Date. The Preferred Stock [Depositary Shares] shall have the terms set forth in the Prospectus dated _________, 1995, the Prospectus Supplement dated _________, 199_[, and the Term Sheet dated ________ 199_ ] including the following: Terms of Preferred Stock [Underlying Preferred Shares] Annual Dividend: Redemption Provisions: Dividend Payment Dates: Liquidation Preference: $ [Guaranty: The payment of dividends on, the redemption price of, and the liquidation preference of the Preferred Stock [Underlying Preferred Shares] will be guaranteed by The Walt Disney Company (2)] All provisions contained in the document entitled DC Holdco, Inc. Underwriting Agreement Standard Provisions (Preferred Stock and Depositary Shares) - -------------------- (2) To be included only if the Preferred Stock [Underlying Preferred Shares] are to be guaranteed by The Walt Disney Company. 2 dated ______________, 1995, a copy of which is attached hereto, are hereby incorporated by reference in their entirety and shall be deemed to be a part of this Agreement to the same extent as if such provisions had been set forth in full herein, except that if any term defined in such document is otherwise defined herein, the definition set forth herein shall control. Subject to the terms and conditions set forth or incorporated by reference herein, the Company hereby grants to the Underwriters the option to purchase shares of Preferred Stock [Depositary Shares] (the "Option Shares" and, together with the Firm Shares, the "Shares") at the Offering Price. The option hereby granted will expire 30 days after the date hereof and may be executed in whole or in part (but not more than once) only for the purpose of covering overallotments which may be made in connection with the offering and distributions of the Firm Shares upon written notice to the Company by the Manager setting forth the number of Option Shares as to which the several Underwriters are then exercising the option and the time and date of payment and delivery for such Option shares, which shall be determined by the Manager but shall not be later than seven full business days after the execise of such option, nor in any event prior to the Closing Date for the Firm Shares. The time and date of such payment and delivery shall hereinafter also be referred to as the Closing Date. If the option is exercised as to all or any portion of the Option Shares, each of the Underwriters, acting severally and not jointly, will purchase that proportion of the total number of Option Shares being purchased which the number of Firm Shares set forth above opposite the name of such Underwriter bears to the total number of Firm Shares, subject to such adjustments as the Manager in its discretion shall make to eliminate any sales or purchases of fractional shares. Please confirm your agreement by having an authorized officer sign a copy of this Agreement in the space set forth below. Very truly yours, [LEAD UNDERWRITER] [NAME OF CO-MANAGERS], acting Severally on behalf of themselves and the several Underwriters named herein BY: [LEAD UNDERWRITER] By: ----------------------------------- 3 Name: Title: Accepted: DC HOLDCO, INC. By:______________________ Name: Title: THE WALT DISNEY COMPANY(3) By:______________________ Name: Title: - ---------------------- (3) To be included only if the Preferred Stock [Underlying Preferred Shares] are to be guaranteed by The Walt Disney Company. 4 EX-2.2 3 EXHIBIT 2.2 EXHIBIT 2.2 Purchaser Merger Agreement AGREEMENT AND PLAN OF MERGER AGREEMENT AND PLAN OF MERGER (the "Agreement and Plan of Merger"), dated as of __________ ___, 1995, by and among DC Holdco, Inc., a Delaware corporation (the "Holding Company"), The Walt Disney Company, a Delaware corporation (the "Purchaser"), and DCA Merger Corp., a Delaware corporation and a wholly-owned subsidiary of the Holding Company ("Merger Sub A"). The Purchaser and Merger Sub A are hereinafter sometimes collectively referred to as the "Constituent Corporations." This Agreement and Plan of Merger is being entered into pursuant to an Amended and Restated Agreement and Plan of Reorganization, dated as of July 31, 1995 (the "Reorganization Agreement"), by and between the Purchaser and Capital Cities/ABC, Inc., a New York corporation (the "Company"). The Reorganization Agreement provides for, among other things, the merger of Merger Sub A with and into the Purchaser and for the merger of DCB Merger Corp., a New York corporation and a wholly-owned subsidiary of the Holding Company, with and into the Company (the "Company Merger"). NOW, THEREFORE, in consideration of the premises and the representations, warranties, covenants and agreements contained herein, the parties hereto, intending to be legally bound hereby, agree as follows: ARTICLE I THE MERGER Section 1.1. THE MERGER. In accordance with the provisions of this Agreement and Plan of Merger and the Delaware General Corporation Law (the "DGCL"), at the Effective Time (as defined in Section 1.4 hereof), Merger Sub A shall be merged with and into the Purchaser (the "Purchaser Merger") and the separate corporate existence of Merger Sub A shall cease. The Purchaser shall be the surviving corporation in the Purchaser Merger (hereinafter sometimes referred to as the "Surviving Corporation") and shall continue its corporate existence under the laws of the State of Delaware. The name of the Surviving Corporation shall be "_________________". The Purchaser Merger shall have the effects set forth in the DGCL. Section 1.2. CERTIFICATE OF INCORPORATION AND BY-LAWS. (a) The Certificate of Incorporation of the Purchaser shall be amended at the Effective Time to read in its entirety as set forth in Exhibit A. (b) The By-Laws of Merger Sub A immediately prior to the Effective Time shall be the By-Laws of the Surviving Corporation (the "By-Laws") immediately after the Effective Time. Section 1.3. DIRECTORS AND OFFICERS. (a) The directors of the Purchaser immediately prior to the Effective Time shall be the directors of the Surviving Corporation as of the Effective Time and until their successors are duly appointed or elected in accordance with applicable law. (b) The officers of the Purchaser immediately prior to the Effective Time shall be the officers of the Surviving Corporation as of the Effective Time and until their successors are duly appointed or elected in accordance with applicable law. Section 1.4. EFFECTIVE TIME; CONDITIONS. Upon the later of (i) January 3, 1996 and (ii) the first business day following the day on which the last to be fulfilled or waived of the conditions set forth in Article 8 of the Reorganization Agreement shall have been fulfilled or waived or at such other time as the Purchaser and the Company may agree, and provided that this Agreement and Plan of Merger is not terminated under Section 3.1 hereof, a certificate of merger complying with the DGCL shall be filed with the Secretary of State of the State of Delaware in accordance with the DGCL. The Purchaser Merger shall become effective at the time and date of the filing of the certificate of merger relating to the Purchaser Merger with the Secretary of State of Delaware or at such later time and date as provided for in such certificate of merger as may be permitted by the DGCL (such time and date is herein referred to as the "Effective Time"). ARTICLE II CONVERSION OF SHARES Section 2.1. MERGER SUB A COMMON STOCK. Each share of common stock, par value $.01 per share, of Merger Sub A (the "Merger Sub A Common Stock") outstanding immediately prior to the Effective Time shall, by virtue of the Purchaser Merger and without any further action by the holder thereof, be converted into and become one share of common stock, par value $.01 per share, of the Surviving Corporation (the "Surviving Corporation Common Stock"). Each certificate which immediately prior to the Effective Time represented outstanding shares of Merger Sub A Common Stock shall, on and after the Effective Time, be deemed for all purposes to represent the number of shares of Surviving Corporation Common Stock into which the shares of Merger Sub A Common Stock 2 represented by such certificate shall have been converted pursuant to this Section 2.1. Section 2.2. HOLDING COMPANY CAPITAL STOCK. At the earlier of the effective time of the Company Merger and the Effective Time, each share of the capital stock of the Holding Company issued and outstanding immediately prior to such time shall be converted into the right to receive in cash at the fair market value thereof, as agreed upon by the Purchaser and the Holding Company. Section 2.3. CONVERSION OF PURCHASER STOCK. (a) At the Effective Time, each share of common stock, par value $.025 per share, of the Purchaser (the "Purchaser Common Stock"), issued and outstanding at the Effective Time shall be converted into one share of common stock, $0.01 par value, of the Holding Company (the "Holding Company Common Stock"). Upon such conversion, all such shares of Purchaser Common Stock shall be cancelled and cease to exist, and each certificate theretofore representing any such shares shall, without any action on the part of the holder thereof, be deemed to represent an equivalent number of shares of Holding Company Common Stock. (b) At the Effective Time, each share of Purchaser Common Stock which is held in the treasury of the Purchaser immediately prior to the Effective Time shall, by virtue of the Purchaser Merger, cease to be outstanding and shall be cancelled and retired without payment of any consideration therefor. ARTICLE III TERMINATION AND AMENDMENT Section 3.1. TERMINATION. Notwithstanding the approval and adoption of this Agreement and Plan of Merger by the stockholders of the Constituent Corporations, this Agreement and Plan of Merger shall terminate forthwith in the event that the Reorganization Agreement shall be terminated as therein provided. In the event of the termination of this Agreement and Plan of Merger as provided above, this Agreement and Plan of Merger shall forthwith become void and there shall be no liability on the part of any of the parties hereto except as otherwise provided in the Reorganization Agreement. Section 3.2. AMENDMENT. This Agreement and Plan of Merger shall not be amended other than pursuant to an amendment to the Reorganization Agreement approved in the manner therein provided. If any such amendment to the Reorganization Agreement is so approved, any amendment to this Agreement and Plan of Merger required by such amendment to the Reorganization Agreement shall be 3 effected by the parties hereto by action taken by their respective Board of Directors. ARTICLE IV MISCELLANEOUS Section 4.1. GOVERNING LAW. This Agreement and Plan of Merger shall be governed by the laws of the State of Delaware. Section 4.2 COUNTERPARTS. This Agreement and Plan of Merger may be executed in two or more counterparts, each of which shall be deemed to be an original, but all of which shall constitute one and the same agreement. IN WITNESS WHEREOF, the parties hereto have caused this Agreement and Plan of Merger to be signed by their respective officers thereunto duly authorized as of the date first written above. THE WALT DISNEY COMPANY, By:________________________________ Name: Title: DC HOLDCO, INC., By:________________________________ Name: Title: DCA MERGER CORP., By:________________________________ Name: Title: 4 EX-4.4 4 EXHIBIT 4.4 EXHIBIT 4.4 FORM OF DEBT SECURITIES WARRANT AGREEMENT ___________________________________________________ DC HOLDCO, INC. and ____________________ As Warrant Agent _________________ WARRANT AGREEMENT Dated as of _________ __, 199_ _________________ ___________________________________________________ TABLE OF CONTENTS(1) Page ---- Parties. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Recitals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 ARTICLE I ISSUANCE, EXECUTION AND COUNTERSIGNATURE OF WARRANT CERTIFICATES Section 1.1 Issuance of Warrant Certificates. . . . . . . . . . . . . . . . 2 Section 1.2 Form of Warrant Certificates. . . . . . . . . . . . . . . . . . 2 Section 1.3 Execution and Authentication of Warrant Certificates. . . . . . . . . . . . . . . . . . . 2 Section 1.4 Temporary Warrant Certificates. . . . . . . . . . . . . . . . . 4 Section 1.5 Payment of Taxes. . . . . . . . . . . . . . . . . . . . . . . . 4 Section 1.6 Definition of Holder. . . . . . . . . . . . . . . . . . . . . . 4 ARTICLE II WARRANT PRICE, DURATION AND EXERCISE OF WARRANTS Section 2.1 Warrant Price . . . . . . . . . . . . . . . . . . . . . . . . . 5 Section 2.2 Duration of Warrants. . . . . . . . . . . . . . . . . . . . . . 5 Section 2.3 Exercise of Warrants. . . . . . . . . . . . . . . . . . . . . . 6 ARTICLE III OTHER TERMS OF WARRANTS Section 3.1 Call of Warrants by the Company . . . . . . . . . . . . . . . 7 - ------------------------ (1) The Table of Contents is not a part of the Warrant Agreement. i Page ---- ARTICLE IV [REGISTRATION,] EXCHANGE, TRANSFER AND SUBSTITUTION OF WARRANT CERTIFICATES Section 4.1 [Registration,] Exchange and Transfer of Warrant Certificates . . . . . . . . . . . . . . . . . . 7 Section 4.2 Mutilated, Destroyed, Lost or Stolen Warrant Certificates. . . . . . . . . . . . . . . . . . . . 8 Section 4.3 Persons Deemed Owners . . . . . . . . . . . . . . . . . . . . . 9 Section 4.4 Cancellation of Warrant Certificates. . . . . . . . . . . . . . 10 ARTICLE V OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS OF WARRANT CERTIFICATES Section 5.1 No Rights as Holders of Warrant Debt Securities Conferred by Warrants or Warrant Certificates. . . . . . . . . . . . . . . . . . . . 10 Section 5.2 Holder of Warrant Certificate May Enforce Rights. . . . . . . . . . . . . . . . . . . . . . . 10 ARTICLE VI CONCERNING THE WARRANT AGENT Section 6.1 Warrant Agent . . . . . . . . . . . . . . . . . . . . . . . . . 11 Section 6.2 Conditions of Warrant Agent's Obligations . . . . . . . . . . . . . . . . . . . . . . . . 11 Section 6.3 Resignation, Removal and Appointment of Successor. . . . . . . . . . . . . . . . . . . . . . . . 14 ARTICLE VII MISCELLANEOUS Section 7.1 Consolidations and Mergers of the ii Page ---- Company and Sales, Leases and Conveyances Permitted Subject to Certain Conditions. . . . . . . . . . . . . . . . . . . . . 15 Section 7.2 Rights and Duties of Successor Corporation . . . . . . . . . . . . . . . . . . . . . . . . 16 Section 7.3 Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Section 7.4 Notice and Demands to the Company and Warrant Agent . . . . . . . . . . . . . . . . . . . . . 16 Section 7.5 Notices to Warrantholders . . . . . . . . . . . . . . . . . . . 16 Section 7.6 Addresses . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Section 7.7 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . 17 Section 7.8 Delivery of Prospectus. . . . . . . . . . . . . . . . . . . . . 17 Section 7.9 Obtaining of Governmental Approvals . . . . . . . . . . . . . . 17 Section 7.10 Persons Having Rights under Warrant Agreement . . . . . . . . . . . . . . . . . . . . . . . . . 17 Section 7.11 Headings. . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Section 7.12 Counterparts. . . . . . . . . . . . . . . . . . . . . . . . . . 18 Section 7.13 Inspection of Agreement . . . . . . . . . . . . . . . . . . . . 18 Testimonium. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .19 Signatures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .19 Exhibit A - Form of Warrant Certificate iii THIS WARRANT AGREEMENT, dated as of __________, 19__, between DC Holdco, Inc., a corporation duly organized and existing under the laws of the State of Delaware (the "Company") and _____________________, a [corporation] [national banking association] organized and existing under the laws of _______________, as Warrant Agent (herein called the "Warrant Agent"). WHEREAS, the Company has entered into an Indenture (the "Indenture") dated as of ____________, ____ with [ ] as trustee (such trustee, and any successors to such trustee, herein called the "Trustee"), providing for the issuance from time to time, in one or more series, of its [Senior] [Senior Subordinated] [Subordinated] Debt Securities; and WHEREAS, the Company proposes to sell [IF OFFERED DEBT SECURITIES AND WARRANTS -- [title of Debt Securities being offered] (the "Offered Debt Securities") with] warrant certificates (such warrant certificates and other warrant certificates issued pursuant to this Agreement herein called the "Warrant Certificates") evidencing one or more warrants ("Warrants" or, individually, a "Warrant") representing the right to purchase [title of Debt Securities purchasable through exercise of Warrants ] (the "Warrant Debt Securities"); and WHEREAS, the Company desires the Warrant Agent to act on behalf of the Company, and the Warrant Agent is willing to so act, in connection with the issuance, exchange, exercise and replacement of the Warrant Certificates, and in this Agreement wishes to set forth, among other things, the form and provisions of the Warrant Certificates and the terms and conditions on which they may be issued, exchanged, exercised and replaced; NOW, THEREFORE, in consideration of the premises and of the mutual agreements herein contained, the parties hereto agree as follows: 1 ARTICLE I ISSUANCE, EXECUTION AND COUNTERSIGNATURE OF WARRANT CERTIFICATES Section 1.1 ISSUANCE OF WARRANT CERTIFICATES. [IF WARRANTS ALONE -- Upon issuance, each Warrant Certificate shall evidence one or more Warrants.] [IF OFFERED DEBT SECURITIES AND WARRANTS -- Warrant Certificates shall be [initially] issued in units with the Offered Debt Securities and shall [not] be separately transferable [before ____________, 19__ (the "Detachable Date")]. Each such unit shall consist of a Warrant Certificate or Certificates evidencing an aggregate of ____ Warrants for each $___________ principal amount of Offered Debt Securities.] Each Warrant evidenced thereby shall represent the right, subject to the provisions contained herein and therein, to purchase Warrant Debt Securities in the aggregate principal amount of $________. Section 1.2 FORM OF WARRANT CERTIFICATES. The Warrant Certificates (including the Form[s] of Exercise [and Assignment] to be set forth on the reverse thereof) shall be in substantially the form set forth in Exhibit A hereto, shall be printed, lithographed or engraved on steel engraved borders (or in any other manner determined by the officers executing such Warrant Certificates, with the execution thereof by such officers conclusively evidencing such determination) and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may be required to comply with any law or with any rule or regulation made pursuant thereto or with any rule or regulation of any securities exchange on which the Warrant Certificates may be listed or as may, consistently herewith, be determined by the officers executing such Warrant Certificates, with the execution thereof by such officers conclusively evidencing such determination. Section 1.3 EXECUTION AND AUTHENTICATION OF WARRANT CERTIFICATES. The Warrant Certificates shall be executed on behalf of the Company by its Chairman, its Chief Executive Officer, it President or one of its Vice Presidents (any reference to a Vice President of the Company herein shall be deemed to include any Vice President of the Company whether or not designated by a number or a word or words added before or after the title "Vice President") under its corporate seal reproduced thereon attested to by its Treasurer or Secretary or one of its Assistant Treasurers or Assistant Secretaries. The signature of any of these officers on the Warrant Certificates may be manual or facsimile. 2 Warrant Certificates evidencing the right to purchase an aggregate principal amount not exceeding $____________ of Warrant Debt Securities (except as provided in Sections 1.4, 2.3(c), 4.1 and 4.2) may be executed by the Company and delivered to the Warrant Agent upon the execution of this Warrant Agreement or from time to time thereafter. The Warrant Agent shall, upon receipt of Warrant Certificates duly executed on behalf of the Company, authenticate Warrant Certificates evidencing Warrants representing the right to purchase up to $_____________ aggregate principal amount of Warrant Debt Securities and shall deliver such Warrant Certificates to or upon the order of the Company. Subsequent to such original issuance of the Warrant Certificates, the Warrant Agent shall authenticate a Warrant Certificate only if the Warrant Certificate is issued in exchange or substitution for one or more previously authenticated Warrant Certificates [IF REGISTERED WARRANTS -- or in connection with their transfer], as hereinafter provided. Each Warrant Certificate shall be dated the date of its authentication by the Warrant Agent. No Warrant Certificate shall be entitled to any benefit under this Agreement or be valid or obligatory for any purpose, and no Warrant evidenced thereby shall be exercisable, until such Warrant Certificate has been authenticated by the manual signature of the Warrant Agent. Such signature by the Warrant Agent upon any Warrant Certificate executed by the Company shall be conclusive evidence, and the only evidence, that the Warrant Certificate so authenticated has been duly issued hereunder. Warrant Certificates bearing the manual or facsimile signatures of individuals who were at the time the proper officers of the Company shall bind the Company, notwithstanding that such individuals or any of them have ceased to hold such offices prior to the authentication and delivery of such Warrant Certificates or did not hold such offices at the date of such Warrant Certificates. Section 1.4 TEMPORARY WARRANT CERTIFICATES. Pending the preparation of definitive Warrant Certificates, the Company may execute, and upon the order of the Company the Warrant Agent shall authenticate and deliver, temporary Warrant Certificates which are printed, lithographed, typewritten, mimeographed or otherwise produced, substantially of the tenor of the definitive Warrant Certificates in lieu of which they are issued and with such appropriate insertions, omissions, substitutions and other variations as the officers executing 3 such Warrant Certificates may determine, with the execution thereof by such officers conclusively evidencing such determination. If temporary Warrant Certificates are issued, the Company will cause definitive Warrant Certificates to be prepared without unreasonable delay. After the preparation of definitive Warrant Certificates, the temporary Warrant Certificates shall be exchangeable for definitive Warrant Certificates upon surrender of the temporary Warrant Certificates at the corporate trust office of the Warrant Agent [or ], without charge to the Holder (as defined in Section 1.6 below). Upon surrender for cancellation of any one or more temporary Warrant Certificates the Company shall execute and the Warrant Agent shall authenticate and deliver in exchange therefor definitive Warrant Certificates representing the same aggregate number of Warrants. Until so exchanged, the temporary Warrant Certificates shall in all respects be entitled to the same benefits under this Agreement as definitive Warrant Certificates. Section 1.5 PAYMENT OF TAXES. The Company will pay all stamp taxes and other duties, if any, to which, under the laws of the United States of America or any State or political subdivision thereof, this Agreement or the original issuance of the Warrant Certificates may be subject. Section 1.6 DEFINITION OF HOLDER. The term "Holder" as used herein shall mean [IF OFFERED DEBT SECURITIES AND WARRANTS WHICH ARE NOT IMMEDIATELY DETACHABLE --, prior to the Detachable Date, the registered owner of the Offered Debt Security to which such Warrant Certificate was initially attached, and, after such Detachable Date,] [if bearer Warrants, the bearer of such Warrant Certificates] [if registered Warrants, the person in whose name at the time such Warrant Certificate shall be registered upon the books to be maintained by the Warrant Agent for that purpose pursuant to Section 4.1]. [IF OFFERED DEBT SECURITIES AND WARRANTS WHICH ARE NOT IMMEDIATELY DETACHABLE -- Prior to the Detachable Date, the Company will, or will cause the registrar of the Offered Debt Securities to, make available to the Warrant Agent current information as to Holders of the Offered Debt Securities.] 4 ARTICLE II WARRANT PRICE, DURATION AND EXERCISE OF WARRANTS Section 2.1 WARRANT PRICE.(2) During the period from ____________, 19__ through and including ____________, 19__, each Warrant shall entitle the Holder thereof, subject to the provisions of this Agreement, to purchase from the Company the principal amount of Warrant Debt Securities stated in the Warrant Certificate at the exercise price of __% of the principal amount thereof [plus accrued amortization, if any, of the original issue discount of the Warrant Debt Securities] [plus accrued interest, if any, from the most recent date from which interest shall have been paid on the Warrant Debt Securities or, if no interest shall have been paid on the Warrant Debt Securities, from ____________, 19__]. [In each case, the original issue discount ($__________ for each $1,000 principal amount of Warrant Debt Securities) will be amortized at a % annual rate, computed on a[n] [semi-]annual basis [using a 360-day year consisting of twelve 30-day months].] Such exercise price of each Warrant is referred to in this Agreement as the "Exercise Price." Section 2.2 DURATION OF WARRANTS. Any Warrant evidenced by a Warrant Certificate may be exercised at any time, as specified herein, on or after [the date thereof] [ , 19__] and at or before the close of business on , 19__ (the "Expiration Date"). Each Warrant not exercised at or before the close of business on the Expiration Date shall become void, and all rights of the Holder of the Warrant Certificate evidencing such Warrant under this Agreement or otherwise shall cease. Section 2.3 EXERCISE OF WARRANTS. (a) During the period specified in Section 2.2, any whole number of Warrants may be exercised by surrendering the Warrant Certificate evidencing such Warrants at the place or at the places set forth in the Warrant Certificate, with the purchase form set forth in the Warrant Certificate duly executed, accompanied by payment in full, in lawful money of the United States of America, [in cash or by certified check or official bank check in New York Clearing House funds]] [by surrender of the [specified aggregate amount of [identified securities]] [by bank wire transfer in immediately available funds], of the Exercise Price for each Warrant exercised. The date on __________________________ (2) Complete and modify the provisions of this Section as appropriate to reflect the exact terms of the Warrants and the Warrant Debt Securities. 5 which payment in full of the Exercise Price for a Warrant and the duly executed and completed Warrant Certificate are received by the Warrant Agent shall be deemed to be the date on which such Warrant is exercised. The Warrant Agent shall deposit all funds received by it as payment for the exercise of Warrants to the account of the Company maintained with it for such purpose and shall advise the Company by telephone at the end of each day on which such a payment is received of the amount so deposited to its account. The Warrant Agent shall promptly confirm such telephonic advice to the Company in writing. (b) The Warrant Agent shall from time to time, as promptly as practicable after the exercise of any Warrants in accordance with the terms and conditions of this Agreement and the Warrant Certificates, advise the Company and the Trustee of (i) the number of Warrants so exercised, (ii) the instructions of each Holder of the Warrant Certificates evidencing such Warrants with respect to delivery of the Warrant Debt Securities to which such Holder is entitled upon such exercise, and instructions of such Holder as to delivery of Warrant Certificates evidencing the balance, if any, of the Warrants remaining after such exercise, and (iii) such other information as the Company or the Trustee shall reasonably require. (c) As soon as practicable after the exercise of any Warrants, the Company shall issue, pursuant to the Indenture, in authorized denominations, to or upon the order of the Holder of the Warrant Certificate evidencing such Warrants, the Warrant Debt Security or Warrant Debt Securities to which such Holder is entitled in fully registered form, registered in such name or names as may be directed by such Holder; and, if fewer than all of the Warrants evidenced by such Warrant Certificate were exercised, the Company shall execute and an authorized officer of the Warrant Agent shall manually authenticate and deliver a new Warrant Certificate evidencing the number of Warrants remaining unexercised. (d) The Company shall not be required to pay any stamp or other tax or other governmental charge required to be paid in connection with any transfer involved in the issue of the Warrant Debt Securities; and in the event that any such transfer is involved, the Company shall not be required to issue or deliver any Warrant Debt Securities until such tax or other charge shall have been paid or it has been established to the Company's satisfaction that no such tax or other charge is due. 6 ARTICLE III OTHER TERMS OF WARRANTS Section 3.1 [CALL OF WARRANTS BY THE COMPANY.(3) IF WARRANTS ISSUED HEREUNDER ARE CALLABLE BY THE COMPANY -- The Company shall have the right to call and repurchase any or all Warrants on or after ________, 19__ (the "Call Date") and upon the occurrence of [discuss events or circumstances under which Company may call the Warrants] (the "Call Terms") at a price of $ ________ per Warrant (the "Call Price"). Notice of such Call Price, Call Date and Call Terms shall be given to registered holders of Warrants in the manner provided in Section 7.5.] ARTICLE IV [REGISTRATION,] EXCHANGE, TRANSFER AND SUBSTITUTION OF WARRANT CERTIFICATES Section 4.1 [REGISTRATION,] EXCHANGE AND TRANSFER OF WARRANT CERTIFICATES. [IF REGISTERED WARRANTS -- The Warrant Agent shall keep, at its corporate trust office [and at ], books in which, subject to such reasonable regulations as it may prescribe, it shall register Warrant Certificates and transfers of outstanding Warrant Certificates]. [IF OFFERED DEBT SECURITIES AND WARRANTS WHICH ARE NOT IMMEDIATELY DETACHABLE -- Prior to the Detachable Date, a Warrant Certificate may be exchanged or transferred only together with the Offered Debt Security to which such Warrant Certificate was initially attached, and only for the purpose of effecting, or in conjunction with, an exchange or transfer of such Offered Debt Security. Additionally, on or prior to the Detachable Date, each transfer or exchange of an Offered Debt Security [on the register of the Offered Debt Securities] shall operate also to transfer or exchange the Warrant Certificate or Certificates to which such Offered Debt Security was initially attached. After the Detachable Date, upon] [IF OFFERED DEBT SECURITIES AND WARRANTS WHICH ARE IMMEDIATELY DETACHABLE OR IF WARRANTS ALONE - Upon] surrender at the corporate ________________________ (3) Complete and modify the provisions of this Section as appropriate to reflect the exact terms of the Warrants. 7 trust office of the Warrant Agent [or____ ____ ______] of Warrant Certificates properly endorsed [or accompanied by appropriate instruments of transfer] and accompanied by written instructions for [transfer or] exchange, all in a form satisfactory to the Company and the Warrant Agent, such Warrant Certificates may be exchanged for other Warrant Certificates [IF REGISTERED WARRANTS -- or may be transferred in whole or in part]; provided that Warrant Certificates issued in exchange for [or upon transfer of] surrendered Warrant Certificates shall evidence the same aggregate number of Warrants as the Warrant Certificates so surrendered. No service charge shall be made for any exchange [or transfer] of Warrant Certificates, but the Company may require payment of a sum sufficient to cover any stamp or other tax or governmental charge that may be imposed in connection with any such exchange [or transfer]. Whenever any Warrant Certificates are so surrendered for exchange [or transfer], the Company shall execute and an authorized officer of the Warrant Agent shall manually authenticate and deliver to the person or persons entitled thereto a Warrant Certificate or Warrant Certificates as so requested. The Warrant Agent shall not be required to effect any exchange [or transfer] which would result in the issuance of a Warrant Certificate evidencing a fraction of a Warrant or a number of full Warrants and a fraction of a Warrant. All Warrant Certificates issued upon any exchange [or transfer] of Warrant Certificates shall evidence the same obligations, and be entitled to the same benefits under this Agreement, as the Warrant Certificates surrendered for such exchange [or transfer]. Section 4.2 MUTILATED, DESTROYED, LOST OR STOLEN WARRANT CERTIFICATES. If any mutilated Warrant Certificate is surrendered to the Warrant Agent, the Company shall execute and an officer of the Warrant Agent shall manually authenticate and deliver in exchange therefor a new Warrant Certificate of like tenor and bearing a number not contemporaneously outstanding. If there shall be delivered to the Company and the Warrant Agent (i) evidence to their satisfaction of the destruction, loss or theft of any Warrant Certificate and of the ownership thereof and (ii) such security or indemnity as may be required by them to save each of them and any agent of either of them harmless, then, in the absence of notice to the Company or the Warrant Agent that such Warrant Certificate has been acquired by a bona fide purchaser, the Company shall execute and upon its request an officer of the Warrant Agent shall manually authenticate and deliver, in lieu of any such destroyed, lost or stolen Warrant Certificate, a new Warrant Certificate of like tenor and bearing a number not contemporaneously outstanding. Upon the issuance of any new Warrant Certificate under this Section, the Company may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other 8 expenses (including the fees and expenses of the Warrant Agent) connected therewith. Every new Warrant Certificate issued pursuant to this Section in lieu of any destroyed, lost or stolen Warrant Certificate shall evidence an original additional contractual obligation of the Company, whether or not the destroyed, lost or stolen Warrant Certificate shall be at any time enforceable by anyone, and shall be entitled to all the benefits of this Agreement equally and proportionately with any and all other Warrant Certificates duly issued hereunder. The provisions of this Section are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Warrant Certificates. Section 4.3 PERSONS DEEMED OWNERS. [IF OFFERED DEBT SECURITIES AND WARRANTS WHICH ARE NOT IMMEDIATELY DETACHABLE -- Prior to the Detachable Date, the Company, the Warrant Agent and all other persons may treat the registered owner of any Offered Debt Security as the owner of the Warrant Certificates initially attached thereto for any purpose and as the person entitled to exercise the rights represented by the Warrants evidenced by such Warrant Certificates, any notice to the contrary notwithstanding. After the Detachable Date,] [IF REGISTERED WARRANTS -- and prior to due presentment of a Warrant Certificate for registration of transfer, the] [IF OFFERED DEBT SECURITIES AND WARRANTS WHICH ARE IMMEDIATELY DETACHABLE OR WARRANTS ALONE -- The] Company, the Warrant Agent and all other persons may treat the Holder as the owner thereof for any purpose and as the person entitled to exercise the rights represented by the Warrants evidenced thereby, any notice to the contrary notwithstanding. Section 4.4 CANCELLATION OF WARRANT CERTIFICATES. Any Warrant Certificate surrendered for exchange [, transfer] or exercise of the Warrants evidenced thereby shall, if surrendered to the Company, be delivered to the Warrant Agent, and [IF WARRANT CERTIFICATES ARE ISSUED IN BEARER FORM -- , except as provided below,] all Warrant Certificates surrendered or so delivered to the Warrant Agent shall be promptly cancelled by it and shall not be reissued and, except as expressly permitted by this Agreement, no Warrant Certificate shall be issued hereunder in lieu or in exchange thereof. [IF WARRANT CERTIFICATES ARE ISSUED IN BEARER FORM -- Warrant Certificates delivered to the Warrant Agent in exchange for Warrant Certificates of other denominations may be retained by the Warrant Agent for reissue as authorized hereunder.] The Company may at any time deliver to the Warrant Agent for cancellation any Warrant Certificates previously issued hereunder which the Company may have acquired in any manner whatsoever, and all Warrant Certificates so delivered shall be promptly cancelled by the Warrant Agent. All cancelled Warrant Certificates held by the 9 Warrant Agent shall be disposed of, as instructed by the Company, subject to applicable law. ARTICLE V OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS OF WARRANT CERTIFICATES Section 5.1 NO RIGHTS AS HOLDERS OF WARRANT DEBT SECURITIES CONFERRED BY WARRANTS OR WARRANT CERTIFICATES. No Warrant Certificate or Warrant evidenced thereby shall entitle the Holder thereof to any of the rights of a Holder of the Warrant Debt Securities, including, without limitation, the right to receive the payment of principal of (or premium, if any) or interest, if any, on the Warrant Debt Securities or to enforce any of the covenants in the Indenture. Section 5.2 HOLDER OF WARRANT CERTIFICATE MAY ENFORCE RIGHTS. Notwithstanding any of the provisions of this Agreement, any Holder of any Warrant Certificate, without the consent of the Warrant Agent, the Trustee, the holder of any Warrant Debt Securities or the Holder of any other Warrant Certificate, may, on its own behalf and for its own benefit, enforce, and may institute and maintain any suit, action or proceeding against the Company suitable to enforce or otherwise in respect of its right to exercise the Warrant or Warrants evidenced by his or her Warrant Certificate in the manner provided in the Warrant Certificates and in this Agreement. ARTICLE VI CONCERNING THE WARRANT AGENT Section 6.1 WARRANT AGENT. The Company hereby appoints ________________________ as Warrant Agent of the Company in respect of the Warrants and the Warrant Certificates upon the terms and subject to the conditions herein set forth, and ____________________________ hereby accepts such appointment. The Warrant Agent shall have the power and authority granted to and conferred upon it in the Warrant Certificates and hereby and such further power and authority to act on behalf of the Company as the Company may hereafter grant to or confer upon it. All of the terms and provisions with respect 10 to such power and authority contained in the Warrant Certificates are subject to and governed by the terms and provisions hereof. Section 6.2 CONDITIONS OF WARRANT AGENT'S OBLIGATIONS. The Warrant Agent accepts its obligations herein set forth, upon the terms and conditions hereof, including the following, to all of which the Company agrees and to all of which the rights hereunder of the Holders from time to time of the Warrant Certificates shall be subject: (a) COMPENSATION AND INDEMNIFICATION. The Company agrees promptly to pay the Warrant Agent the compensation to be agreed upon with the Company for all services rendered by the Warrant Agent and to reimburse the Warrant Agent for reasonable out-of-pocket expenses (including reasonable counsel fees) incurred by the Warrant Agent in connection with the services rendered hereunder by the Warrant Agent. The Company also agrees to indemnify the Warrant Agent for, and to hold it harmless against, any loss, liability or expense incurred without negligence or bad faith on the part of the Warrant Agent, arising out of or in connection with its acting as such Warrant Agent hereunder, including the reasonable costs and expenses of defending itself against any claim or liability in connection with the exercise or performance at any time of its powers or duties hereunder. The obligations of the Company under this subsection (a) shall survive the exercise of the Warrant Certificates and the resignation or removal of the Warrant Agent. (b) AGENT FOR THE COMPANY. In acting under this Warrant Agreement and in connection with the Warrant Certificates, the Warrant Agent is acting solely as agent of the Company and does not assume any obligation or relationship of agency or trust for or with any of the owners or Holders of the Warrant Certificates. (c) COUNSEL. The Warrant Agent may consult with counsel, which may include counsel for the Company, and the written advice of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon. (d) DOCUMENTS. The Warrant Agent shall be protected and shall incur no liability for or in respect of any action taken or omitted by it in reliance upon any notice, direction, consent, certificate, affidavit, statement or 11 other paper or document reasonably believed by it to be genuine and to have been presented or signed by the proper parties. (e) CERTAIN TRANSACTIONS. The Warrant Agent, any of its officers, directors and employees, or any other agent of the Company, in its individual or any other capacity, may become the owner of, or acquire any interest in, any Warrant Certificates, with the same rights that it would have if it were not such Warrant Agent, officer, director, employee or other agent, and, to the extent permitted by applicable law, it may engage or be interested in any financial or other transaction with the Company and may act on, or as depositary, trustee or agent for, any committee or body of holders of Warrant Debt Securities or other obligations of the Company as freely as if it were not such Warrant Agent, officer, director, employee or other agent. Nothing in this Warrant Agreement shall be deemed to prevent the Warrant Agent from acting as Trustee under the Indenture. (f) NO LIABILITY FOR INTEREST. The Warrant Agent shall not be under any liability for interest on any monies at any time received by it pursuant to any of the provisions of this Agreement or of the Warrant Certificates unless otherwise agreed to in writing by the Company and the Warrant Agent and except for the negligence of the Warrant Agent. (g) NO LIABILITY FOR INVALIDITY. The Warrant Agent shall not incur any liability with respect to the validity of this Agreement or any of the Warrant Certificates. (h) NO RESPONSIBILITY FOR REPRESENTATIONS. The Warrant Agent shall not be responsible for any of the recitals or representations contained herein or in the Warrant Certificates (except as to the Warrant Agent's Certificate of Authentication thereon), all of which are made solely by the Company. (i) NO IMPLIED OBLIGATIONS. The Warrant Agent shall be obligated to perform such duties as are herein and in the Warrant Certificates specifically set forth and no implied duties or obligations shall be read into this Agreement or the Warrant Certificates against the Warrant Agent. The Warrant Agent shall not be under any obligation to take any action hereunder which may tend to involve it in any expense or liability, the payment of which within a reasonable time is not, in its reasonable opinion, assured to it. The Warrant Agent shall not be accountable or under any duty or responsibility for the use by the Company of any of the Warrant Certificates authenticated by the Warrant 12 Agent and delivered by it to the Company pursuant to this Agreement or for the application by the Company of the proceeds of the Warrant Certificates or any exercise of the Warrants evidenced thereby. The Warrant Agent shall have no duty or responsibility in case of any default by the Company in the performance of its covenants or agreements contained herein or in the Warrant Certificates or in the Warrant Debt Securities or in the case of the receipt of any written demand from a Holder of a Warrant Certificate with respect to such default, including, without limiting the generality of the foregoing, any duty or responsibility to initiate or attempt to initiate any proceeding at law or otherwise or, except as provided in Section 7.4 hereof, to make any demand upon the Company. Section 6.3 RESIGNATION, REMOVAL AND APPOINTMENT OF SUCCESSOR. (a) The Company agrees, for the benefit of the Holders from time to time of the Warrant Certificates, that there shall at all times be a Warrant Agent hereunder until all of the Warrant Certificates are no longer exercisable. (b) The Warrant Agent may at any time resign as such agent by giving written notice to the Company of such intention on its part, specifying the date on which it desires its resignation to become effective; provided that, without the consent of the Company, such date shall not be less than three months after the date on which such notice is given. The Warrant Agent hereunder may be removed at any time by the filing with it of an instrument in writing signed by or on behalf of the Company and specifying such removal and the date on which the Company expects such removal to become effective. Such resignation or removal shall take effect upon the appointment by the Company of a successor Warrant Agent (which shall be a bank or trust company organized and doing business under the laws of the United States of America, any State thereof or the District of Columbia and authorized under such laws to exercise corporate trust powers) by an instrument in writing filed with such successor Warrant Agent and the acceptance of such appointment by such successor Warrant Agent pursuant to Section 6.3(d). (c) In case at any time the Warrant Agent shall resign, or be removed, or shall become incapable of acting, or shall be adjudged bankrupt or insolvent, or shall file a voluntary petition in bankruptcy or make an assignment for the benefit of its creditors or consent to the appointment of a receiver or custodian of all or any substantial part of its property, or shall admit in writing its inability to pay or meet its debts as they mature, or if a receiver or custodian of it or of all or any substantial part of its property shall be appointed, or if an order of any court shall be entered approving any petition filed by or against it under 13 the provisions of any applicable bankruptcy or similar law, or if any public officer shall have taken charge or control of the Warrant Agent or of its property or affairs, a successor Warrant Agent, qualified as aforesaid, shall be appointed by the Company by an instrument in writing, filed with the successor Warrant Agent. Upon the appointment as aforesaid of a successor Warrant Agent and acceptance by the latter of such appointment, the Warrant Agent so superseded shall cease to be Warrant Agent hereunder. (d) Any successor Warrant Agent appointed hereunder shall execute, acknowledge and deliver to its predecessor and to the Company an instrument accepting such appointment hereunder, and thereupon such successor Warrant Agent, without any further act, deed or conveyance, shall become vested with all the authority, rights, powers, trusts, immunities, duties and obligations of such predecessor with like effect as if originally named as Warrant Agent hereunder, and such predecessor, upon payment of its charges and disbursements then unpaid, shall thereupon become obligated to transfer, deliver and pay over, and such successor Warrant Agent shall be entitled to receive, all monies, securities and other property on deposit with or held by such predecessor, as Warrant Agent hereunder. (e) Any corporation into which the Warrant Agent hereunder may be merged or converted or any corporation with which the Warrant Agent may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Warrant Agent shall be a party, or any corporation succeeding to all or substantially all the corporate trust business of the Warrant Agent, provided that it shall be qualified as aforesaid, shall be the successor Warrant Agent under this Agreement without the execution or filing of any paper or any further act on the part of any of the parties hereto. ARTICLE VII MISCELLANEOUS Section 7.1 CONSOLIDATIONS AND MERGERS OF THE COMPANY AND SALES, LEASES AND CONVEYANCES PERMITTED SUBJECT TO CERTAIN CONDITIONS. To the extent permitted in the Indenture, the Company may consolidate with, or sell or convey all or substantially all of its assets to, or merge with or into any other corporation. 14 Section 7.2 RIGHTS AND DUTIES OF SUCCESSOR CORPORATION. In case of any such consolidation, merger, sale, lease or conveyance and upon any such assumption by the successor corporation, such successor corporation shall succeed to and be substituted for the Company, with the same effect as if it had been named herein, and the predecessor corporation, except in the event of a lease, shall be relieved of any further obligation under this Agreement and the Warrants. Such successor corporation thereupon may cause to be signed, and may issue either in its own name or in the name of the Company, any or all of the Warrant Debt Securities issuable pursuant to the terms hereof. All the Warrant Debt Securities so issued shall in all respects have the same legal rank and benefit under the Indenture as the Warrant Debt Securities theretofore or thereafter issued in accordance with the terms of this Agreement and the Indenture. In case of any such consolidation, merger, sale, lease or conveyance, such changes in phraseology and form (but not in substance) may be made in the Warrant Debt Securities thereafter to be issued as may be appropriate. Section 7.3 AMENDMENT. This Agreement may be amended by the parties hereto, without the consent of the Holder of any Warrant Certificate, for the purpose of curing any ambiguity, or of curing, correcting or supplementing any defective provision contained herein, or making such provisions in regard to matters or questions arising under this Agreement as the Company may deem necessary or desirable; provided that such action shall not adversely affect the interests of the Holders of the Warrant Certificates in any material respect. Any amendment or supplement to this Agreement or the Warrants that has a material adverse effect on the interests of Holders of any series of Warrants shall require the written consent of Holders of a majority of the then outstanding Warrants of such series. The consent of each Holder of a Warrant affected shall be required for any amendment pursuant to which the Warrant Price would be increased or the number of Debt Securities purchasable upon exercise of Warrants would be decreased. The Warrant Agent may, but shall not be obligated to, enter into any amendment to this Agreement which affects the Warrant Agent's own rights, duties or immunities under this Agreement or otherwise. Section 7.4 NOTICE AND DEMANDS TO THE COMPANY AND WARRANT AGENT. If the Warrant Agent shall receive any notice or demand addressed to the Company by the Holder of a Warrant Certificate pursuant to the provisions of the Warrant Certificates, the Warrant Agent shall promptly forward such notice or demand to the Company. 15 Section 7.5 NOTICES TO WARRANTHOLDERS. Pursuant to Sections 3.1 [add other sections as applicable], the Company shall cause written notice of such Call Price, Call Date and Call Terms [reference other items as applicable], as the case may be, to be given as soon as practicable to the Warrant Agent and to each of the registered holders of the Warrant Certificates by first class mail, postage prepaid, at such holder's address appearing on the Warrant Register. In addition to the written notice referred to in the preceding sentence, the Company shall make a public announcement in a daily morning newspaper of general circulation in __________ of such Call Price, Call Date, and Call Terms [reference other items as applicable], as the case may be, at least once a week for two successive weeks prior to the implementation of such terms. Section 7.6 ADDRESSES. Any communications from the Company to the Warrant Agent with respect to this Agreement shall be addressed to , Attention: _______________, and any communications from the Warrant Agent to the Company with respect to this Agreement shall be addressed to DC Holdco, Inc. c/o The Walt Disney Company, 500 South Buena Vista Street, Burbank, California 91521, Attention: Corporate Secretary (or such other address as shall be specified in writing by the Warrant Agent or by the Company). Section 7.7 GOVERNING LAW. This Agreement and each Warrant Certificate issued hereunder shall be governed by and construed in accordance with the laws of the State of New York. Section 7.8 DELIVERY OF PROSPECTUS. The Company will furnish to the Warrant Agent sufficient copies of a prospectus, appropriately supplemented, relating to the Warrant Debt Securities (the "Prospectus"), and the Warrant Agent agrees that, upon the exercise of any Warrant Certificate, the Warrant Agent will deliver to the person designated to receive Warrant Debt Securities, prior to or concurrently with the delivery of such Securities, a Prospectus. Section 7.9 OBTAINING OF GOVERNMENTAL APPROVALS. The Company will from time to time take all action which may be necessary to obtain and keep effective any and all permits, consents and approvals of governmental agencies and authorities and securities acts filings under United States Federal and State laws (including, without limitation, to the extent required, the maintenance of the effectiveness of a registration statement in respect of the Warrant Debt Securities under the Securities Act of 1933, as amended), which may be or become required in connection with the exercise of the Warrant Certificates and the original issuance and delivery of the Warrant Debt Securities. 16 Section 7.10 PERSONS HAVING RIGHTS UNDER WARRANT AGREEMENT. Nothing in this Agreement expressed or implied and nothing that may be inferred from any of the provisions hereof is intended, or shall be construed, to confer upon, or give to, any person or corporation other than the Company, the Warrant Agent and the Holders of the Warrant Certificates any right, remedy or claim under or by reason of this Agreement or of any covenant, condition, stipulation, promise or agreement hereof; and all covenants, conditions, stipulations, promises and agreements contained in this Agreement shall be for the sole and exclusive benefit of the Company and the Warrant Agent and their successors and of the Holders of the Warrant Certificates. Section 7.11 HEADINGS. The Article and Section headings herein and the Table of Contents are for convenience of reference only and shall not affect the construction hereof. Section 7.12 COUNTERPARTS. This Agreement may be executed in any number of counterparts, each of which so executed shall be deemed to be an original; but such counterparts shall together constitute but one and the same instrument. Section 7.13 INSPECTION OF AGREEMENT. A copy of this Agreement shall be available at all reasonable times at the principal corporate trust office of the Warrant Agent [and at ___________] for inspection by the Holder of any Warrant Certificate. The Warrant Agent may require such Holder to submit its Warrant Certificate for inspection by it. 17 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed, and their respective corporate seal to be hereunto affixed and attested, all as of the day and year first above written. DC HOLDCO, INC. By ___________________________ [SEAL] Attest: _______________________ [NAME OF WARRANT AGENT] By ___________________________ [SEAL] Attest: _________________________ [Assistant Secretary] 18 EXHIBIT A [FORM OF WARRANT CERTIFICATE] [Face] FORM OF LEGEND IF OFFERED [Prior to __________, this DEBT SECURITIES WITH Warrant Certificate may be WARRANTS WHICH ARE NOT transferred or exchanged IMMEDIATELY DETACHABLE: if and only if the [Title of Offered Debt Security] to which it was initially attached is so transferred or exchanged.] FORM OF LEGEND IF WARRANTS [Prior to ____________, ARE NOT IMMEDIATELY Warrants evidenced by this EXERCISABLE: Warrant Certificate cannot be exercised.] EXERCISABLE ONLY IF AUTHENTICATED BY THE WARRANT AGENT AS PROVIDED HEREIN VOID AFTER THE CLOSE OF BUSINESS ON _______, 19__ DC HOLDCO, INC. Warrant Certificate representing Warrants to purchase [Title of Warrant Debt Securities] as described herein ________________________ No. _________ Warrants This certifies that [the bearer is the] [_______________________ or registered assigns is the registered] owner of the above indicated number of Warrants, each Warrant entitling such [bearer [IF OFFERED DEBT SECURITIES AND WARRANTS WHICH ARE NOT IMMEDIATELY DETACHABLE --, subject to the bearer qualifying as a "Holder" of this Warrant Certificate, as hereinafter defined] [registered owner] to purchase, at any time [after the close of business on _________, 19__, A - 1 and] on or before the close of business on __________, 19__, $_______ principal amount of [Title of Warrant Debt Securities] (the "Warrant Debt Securities") of DC Holdco, Inc. (the "Company"), issued or to be issued under the Indenture (as hereinafter defined), on the following basis.* [During the period from ________, 19__ through and including ________ 19__, each Warrant shall entitle the Holder thereof, subject to the provisions of the Warrant Agreement (as defined below), to purchase from the Company the principal amount of Warrant Debt Securities stated above in this Warrant Certificate at the exercise price of ___% of the principal amount thereof [plus accrued amortization, if any, of the original issue discount of the Warrant Debt Securities] [plus accrued interest, if any, from the most recent date from which interest shall have been paid on the Warrant Debt Securities or, if no interest shall have been paid on the Warrant Debt Securities, from __________, 19__]; [in each case, the original issue discount ($________ for each $1,000 principal amount of Warrant Debt Securities) will be amortized at a ___% annual rate, computed on a[n] [semi-] annual basis[, using a 360-day year consisting of twelve 30-day months] [(the "Exercise Price")]. The Holder of this Warrant Certificate may exercise the Warrants evidenced hereby, in whole or in part, by surrendering this Warrant Certificate, with the purchase form set forth hereon duly completed, accompanied [by payment in full, in lawful money of the United States of America, [in cash or by certified check or official bank check in New York Clearing House funds] [by bank wire transfer in immediately available funds]] [by surrender of the [specified aggregate principal amount of [identified securities]], the Exercise Price for each Warrant exercised, to the Warrant Agent (as hereinafter defined), at the corporate trust office of [name of Warrant Agent], or its successor as warrant agent (the "Warrant Agent") [or at ________,] at the addresses specified on the reverse hereof and upon compliance with and subject to the conditions set forth herein and in the Warrant Agreement. This Warrant Certificate may be exercised only for the purchase of Warrant Debt Securities in the principal amount of [$1,000] or any integral multiple thereof. The term "Holder" as used herein shall mean [IF OFFERED DEBT SECURITIES AND WARRANTS WHICH ARE NOT IMMEDIATELY DETACHABLE -- , prior to ___________, 19__ (the "Detachable Date"), the registered owner of the Company's [title of Offered Debt Securities] to which such Warrant Certificate was initially attached, and after such Detachable Date,] [the bearer of such Warrant Certificate] [the person in whose name at the time such Warrant Cer- ___________________________ * Complete and modify the following provisions as appropriate to reflect the terms of the Warrants and the Warrant Debt Securities. A - 2 tificate shall be registered upon the books to be maintained by the Warrant Agent for that purpose pursuant to Section 3.01 of the Warrant Agreement]. Any whole number of Warrants evidenced by this Warrant Certificate may be exercised to purchase Warrant Debt Securities in registered form. Upon any exercise of fewer than all of the Warrants evidenced by this Warrant Certificate, there shall be issued to the [bearer] [registered owner] hereof a new Warrant Certificate evidencing the number of Warrants remaining unexercised. This Warrant Certificate is issued under and in accordance with the Warrant Agreement dated as of ____________, 19__ (the "Warrant Agreement"), between the Company and the Warrant Agent and is subject to the terms and provisions contained in the Warrant Agreement, to all of which terms and provisions the Holder of this Warrant Certificate consents by acceptance hereof. Copies of the Warrant Agreement are on file at the above-mentioned office at the Warrant Agent [and at ____________]. The Warrant Debt Securities to be issued and delivered upon the exercise of warrants evidenced by this Warrant Certificate will be issued under and in accordance with an Indenture (the "Indenture"), dated as of ___________, ___ between the Company and _________________________________________, as trustee (such trustee, and any successors to such trustee, the "Trustee") and will be subject to the terms and provisions contained in the Warrant Debt Securities and in the Indenture. Copies of the Indenture, including the form of the Warrant Debt Securities, are on file at the corporate trust office of the Trustee [and at ____________________]. [IF OFFERED DEBT SECURITIES AND WARRANTS WHICH ARE NOT IMMEDIATELY DETACHABLE -- Prior to ___________, 19__ (the "Detachable Date"), this Warrant Certificate may be exchanged or transferred only together with the [title of Offered Debt Security] (the "Offered Debt Security") to which this Warrant Certificate was initially attached, and only for the purpose of effecting, or in conjunction with, an exchange or transfer of such Offered Debt Security. Additionally, on or prior to the Detachable Date each transfer of such Offered Debt Security on the register of the Offered Debt Securities shall operate also to transfer this Warrant Certificate. After the Detachable Date, this] [IF OFFERED DEBT SECURITIES AND WARRANTS WHICH ARE IMMEDIATELY DETACHABLE OR WARRANTS ALONE -- This] Warrant Certificate, and all rights hereunder, may be transferred [IF BEARER WARRANTS -- by delivery and the Company and the Warrant Agent may treat the bearer hereof as the owner for all purposes] [IF REGISTERED WARRANTS -- A - 3 when surrendered at the corporate trust office of the Warrant Agent [or ___________] by the registered owner or his assigns, in person or by an attorney duly authorized in writing, in the manner and subject to the limitations provided in the Warrant Agreement]. [IF OFFERED DEBT SECURITIES AND WARRANTS WHICH ARE NOT IMMEDIATELY DETACHABLE -- Except as provided in the immediately preceding paragraph, after] [IF OFFERED DEBT SECURITIES AND WARRANTS WHICH ARE IMMEDIATELY DETACHABLE OR WARRANTS ALONE -- After] authentication by the Warrant Agent and prior to the expiration of this Warrant Certificate, this Warrant Certificate may be exchanged at the corporate trust office at the Warrant Agent [or at _______________] for Warrant Certificates representing the same aggregate number of Warrants. This Warrant Certificate shall not entitle the [bearer] [registered owner] hereof to any of the rights of a [registered] [holder] of the Warrant Debt Securities, including, without limitation, the right to receive payments of principal (and premium, if any) or interest, if any, on the Warrant Debt Securities or to enforce any of the covenants of the Indenture. Reference is hereby made to the further provisions of this Warrant Certificate set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place. This Warrant Certificate shall not be valid or obligatory for any purpose until authenticated by the Warrant Agent. A - 4 IN WITNESS WHEREOF, the Company has caused this Warrant Certificate to be duly executed under its corporate seal. Dated:_______________ DC HOLDCO, INC. By: ___________________________ Attest: ________________________________ Certificate of Authentication This is one of the Warrant Certificates referred to in the within- mentioned Warrant Agreement. ________________________________ As Warrant Agent By: ____________________________ Authorized Signature A - 5 [FORM OF WARRANT CERTIFICATE] [REVERSE] (Instructions for Exercise of Warrants) To exercise any Warrants evidenced hereby, the Holder of this Warrant Certificate must pay [in cash or by certified check or official bank check in New York Clearing House funds or by bank wire transfer in immediately available funds], the Exercise Price in full for each of the Warrants exercised, to _______________, Corporate Trust Department, ______________, Attn: _____________ [or ________________], which payment should specify the name of the Holder of this Warrant Certificate and the number of Warrants exercised by such Holder. In addition, the Holder of this Warrant Certificate should complete the information required below and present in person or mail by registered mail this Warrant Certificate to the Warrant Agent at the addresses set forth below. [FORM OF EXERCISE] (To be executed upon exercise of Warrants.) The undersigned hereby irrevocably elects to exercise ____ Warrants, represented by this Warrant Certificate, to purchase $________ principal amount of the [Title of Warrant Debt Securities] (the "Warrant Debt Securities") of DC Holdco, Inc. and represents that he has tendered payment for such Warrant Debt Securities [in cash or by certified check or official bank check in New York Clearing House funds or by bank wire transfer in immediately available funds] to the order of DC Holdco, Inc., c/o Treasurer, in the amount of $_________ in accordance with the terms hereof. The undersigned requests that said principal amount of Warrant Debt Securities be in fully registered form, in the authorized denominations, registered in such names and delivered, all as specified in accordance with the instructions set forth below. If said principal amount of Warrant Debt Securities is less than all of the Warrant Debt Securities purchasable hereunder, the undersigned requests that a new Warrant Certificate representing the remaining balance of the Warrants evidenced hereby be issued and delivered to the undersigned unless otherwise specified in the instructions below. A - 6 Dated: Name _________________________ _________________________________ (Insert Social Security or Other Identifying Number of Holder) Address ______________________ ______________________ Signature ____________________ [If registered warrant -- (Signature must conform in all respects to name of holder as specified on the face of the Warrant Certificate and must bear a signature guarantee by a bank, trust company or member broker of the New York, Chicago or Pacific Stock Exchange.)] This Warrant may be exercised at the following addresses: By hand at _________________________ _________________________ _________________________ _________________________ By mail at _________________________ _________________________ _________________________ _________________________ (Instructions as to form and delivery of Warrant Debt Securities and/or Warrant Certificates): A - 7 [FORM OF ASSIGNMENT] (TO BE EXECUTED TO TRANSFER THE WARRANT CERTIFICATE) FOR VALUE RECEIVED ____________________ hereby sells, assigns and transfers unto ___________________________________ (Please print name and address including zip code) Please insert social security or other identifying number ______________________________ __________________________________________________________________________ the right represented by the within Warrant Certificate and does hereby irrevocably constitute and appoint ________________, Attorney, to transfer said Warrant Certificate on the books of the Warrant Agent with full power of substitution. Dated: ____________________________________________ Signature (Signature must conform in all respects to name of holder as specified on the face of this Warrant Certificate and must bear a signature guarantee by a bank, trust company or member broker of the New York, Chicago or Pacific Stock Exchange) Signature Guaranteed: _____________________________ A - 8 EX-4.5 5 EXHIBIT 4.5 EXHIBIT 4.5 FORM OF PREFERRED STOCK WARRANT AGREEMENT _________________________________________________________ DC HOLDCO, INC. and ______________________ As Warrant Agent ______________________ WARRANT AGREEMENT Dated as of ____________, 199__ ______________________ _________________________________________________________ Page ---- TABLE OF CONTENTS(1) Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Recitals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 ARTICLE I ISSUANCE, EXECUTION AND AUTHENTICATION OF WARRANT CERTIFICATES Section 1.1 Issuance of Warrant Certificates . . . . . . . . . . . . . . . 1 Section 1.2 Form of Warrant Certificate . . . . . . . . . . . . . . . . . 2 Section 1.3 Execution and Authentication of Warrant Certificates . . . . . 2 Section 1.4 Temporary Warrant Certificates . . . . . . . . . . . . . . . . 3 Section 1.5 Payment of Taxes . . . . . . . . . . . . . . . . . . . . . . . 4 Section 1.6 Definition of Holder . . . . . . . . . . . . . . . . . . . . . 4 ARTICLE II WARRANT PRICE, DURATION AND EXERCISE OF WARRANTS Section 2.1 Warrant Price . . . . . . . . . . . . . . . . . . . . . . . . 5 Section 2.2 Duration of Warrants . . . . . . . . . . . . . . . . . . . . . 5 Section 2.3 Exercise of Warrants . . . . . . . . . . . . . . . . . . . . . 5 Section 2.4 Reservation of Shares . . . . . . . . . . . . . . . . . . . . 7 ARTICLE III OTHER TERMS OF WARRANTS Section 3.1 Call of Warrants by the Company . . . . . . . . . . . . . . . 7 Section 3.2 Adjustment of Exercise Price and Number of Shares Purchasable or Number of Warrants . . . . . . . . . 7 ____________________________ (1) The Table of Contents is not a part of the Warrant Agreement. i Page ---- ARTICLE IV REGISTRATION, EXCHANGE, TRANSFER AND SUBSTITUTION OF WARRANT CERTIFICATES Section 4.1 Registration, Exchange and Transfer of Warrant Certificates . . . . . . . . . . . . . . . . . . . . . 12 Section 4.2 Mutilated, Destroyed, Lost or Stolen Warrant Certificates . . . . . . . . . . . . . . . . . . . . . 13 Section 4.3 Persons Deemed Owners . . . . . . . . . . . . . . . . . . . . . 14 Section 4.4 Cancellation of Warrant Certificates . . . . . . . . . . . . . 14 ARTICLE V OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS OF WARRANT CERTIFICATES Section 5.1 No Rights as Stockholders Conferred by Warrants or Warrant Certificates . . . . . . . . . . . . . . . 15 Section 5.2 Holder of Warrant Certificate May Enforce Rights . . . . . . . . . . . . . . . . . . . . . . . . 15 ARTICLE VI CONCERNING THE WARRANT AGENT Section 6.1 Warrant Agent . . . . . . . . . . . . . . . . . . . . . . . . . 15 Section 6.2 Conditions of Warrant Agent's Obligations . . . . . . . . . . . 16 Section 6.3 Resignation, Removal and Appointment of Successor . . . . . . . 18 ARTICLE VII MISCELLANEOUS Section 7.1 Consolidations and Mergers of the Company and Sales, Leases and Conveyances Permitted Subject to Certain Conditions . . . . . . . . . . . . . . . . . . . . . 20 Section 7.2 Rights and Duties of Successor Corporation . . . . . . . . . . 20 ii Page ---- Section 7.3 Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Section 7.4 Notices and Demands to the Company and Warrant Agent . . . . . . . . . . . . . . . . . . . . . . . . 21 Section 7.5 Notices to Warrantholders . . . . . . . . . . . . . . . . . . 21 Section 7.6 Addresses . . . . . . . . . . . . . . . . . . . . . . . . . . 23 Section 7.7 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . 23 Section 7.8 Delivery of Prospectus . . . . . . . . . . . . . . . . . . . 23 Section 7.9 Obtaining of Governmental Approvals . . . . . . . . . . . . . 23 Section 7.10 Persons Having Rights under Warrant Agreement . . . . . . . 23 Section 7.11 Headings . . . . . . . . . . . . . . . . . . . . . . . . . . 24 Section 7.12 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . 24 Section 7.13 Inspection of Agreement . . . . . . . . . . . . . . . . . . . 24 Testimonium. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 Signatures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 Exhibit A - Form of Warrant Certificate iii THIS WARRANT AGREEMENT, dated as of __________, 199__, between DC Holdco, Inc., a corporation duly organized and existing under the laws of the State of Delaware (the "Company") and ____________, a [corporation] [national banking association] organized and existing under the laws of _____________, as Warrant Agent (herein called the "Warrant Agent"). WHEREAS, the Company proposes to sell [IF OFFERED SECURITIES AND WARRANTS - [title of Offered Securities being offered] (the "Offered Securities") with] warrant certificates (such warrant certificates and other warrant certificates issued pursuant to this Agreement herein called the "Warrant Certificates") evidencing one or more warrants (the "Warrants" or, individually, a "Warrant") representing the right to purchase shares of [designation of Preferred Stock] (the "Preferred Stock"); and WHEREAS, the Company desires the Warrant Agent to act on behalf of the Company, and the Warrant Agent is willing to so act, in connection with the issuance, exchange, exercise and replacement of the Warrant Certificates, and in this Agreement wishes to set forth, among other things, the form and provisions of the Warrant Certificates and the terms and conditions on which they may be issued, exchanged, exercised and replaced; NOW, THEREFORE, in consideration of the premises and of the mutual agreements herein contained, the parties hereto agree as follows: ARTICLE I ISSUANCE, EXECUTION AND AUTHENTICATION OF WARRANT CERTIFICATES Section 1.1 ISSUANCE OF WARRANT CERTIFICATES. [IF WARRANTS ALONE -- Upon issuance, each Warrant Certificate shall evidence one or more Warrants.] [IF OFFERED SECURITIES AND WARRANTS -- Warrant Certificates shall be [initially] issued in units with the Offered Securities and shall [not] be separately transferable [before __________, 19__ (the "Detachable Date")]. Each such unit shall consist of a Warrant Certificate or Certificates evidencing an aggregate of __________ Warrants.] Each Warrant evidenced thereby shall represent the right, subject to the provisions contained herein and therein, to purchase one share of Preferred Stock. Section 1.2 FORM OF WARRANT CERTIFICATE. The Warrant Certificates (including the Form(s) of Exercise [and Assignment] to be set forth on the reverse thereof) shall be in substantially the form set forth in Exhibit A hereto, shall be printed, lithographed or engraved on steel engraved borders (or in any other manner determined by the officers executing such Warrant Certificates, with the execution thereof by such officers conclusively evidencing such determination) and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may be required to comply with any law or with any rule or regulation made pursuant thereto or with any rule or regulation of any securities exchange on which the Warrant Certificates may be listed or as may, consistently herewith, be determined by the officers executing such Warrant Certificates, with the execution thereof by such officers conclusively evidencing such determination. Section 1.3 EXECUTION AND AUTHENTICATION OF WARRANT CERTIFICATES. The Warrant Certificates shall be executed on behalf of the Company by its Chairman, its Chief Executive Officer, its President or one of its Vice Presidents (any reference to a Vice President of the Company herein shall be deemed to include any Vice President of the Company whether or not designated by a number or a word or words added before or after the title "Vice President"), under its corporate seal reproduced thereon attested to by its Treasurer or Secretary or one of its Assistant Treasurers or Assistant Secretaries. The signature of any of these officers on the Warrant Certificates may be manual or facsimile. Warrant Certificates evidencing the right to purchase a number of shares of Preferred Stock having an aggregate liquidation value not exceeding $ __________ (except as provided in Sections 1.4, 2.3(c), 4.1 and 4.2) may be executed by the Company and delivered to the Warrant Agent upon the execution of this Warrant Agreement or from time to time thereafter. The Warrant Agent shall, upon receipt of Warrant Certificates duly executed on behalf of the Company, authenticate Warrant Certificates evidencing Warrants representing the right to purchase a number of shares of Preferred Stock having an aggregate liquidation value not exceeding $ _________ and shall deliver such Warrant Certificates to or upon the order of the Company. Subsequent to such original issuance of the Warrant Certificates, the Warrant Agent shall authenticate a Warrant Certificate only if the Warrant Certificate is issued in exchange or in substitution for one or more previously authenticated Warrant Certificates or in connection with their transfer, as hereinafter provided. 2 Each Warrant Certificate shall be dated the date of its authentication by the Warrant Agent. No Warrant Certificate shall be entitled to any benefit under this Agreement or be valid or obligatory for any purpose, and no Warrant evidenced thereby shall be exercisable, until such Warrant Certificate has been authenticated by the manual signature of the Warrant Agent. Such signature by the Warrant Agent upon any Warrant Certificate executed by the Company shall be conclusive evidence, and the only evidence, that the Warrant Certificate so authenticated has been duly issued hereunder. Warrant Certificates bearing the manual or facsimile signatures of individuals who were at the time the proper officers of the Company shall bind the Company, notwithstanding that such individuals or any of them have ceased to hold such offices prior to the authentication and delivery of such Warrant Certificates or did not hold such offices at the date of such Warrant Certificates. Section 1.4 TEMPORARY WARRANT CERTIFICATES. Pending the preparation of definitive Warrant Certificates, the Company may execute, and upon the order of the Company the Warrant Agent shall authenticate and deliver, temporary Warrant Certificates which are printed, lithographed, typewritten, mimeographed or otherwise produced substantially of the tenor of the definitive Warrant Certificates in lieu of which they are issued and with such appropriate insertions, omissions, substitutions and other variations as the officers executing such Warrant Certificates may determine, with the execution thereof by such officers conclusively evidencing such determination. If temporary Warrant Certificates are issued, the Company will cause definitive Warrant Certificates to be prepared without unreasonable delay. After the preparation of definitive Warrant Certificates, the temporary Warrant Certificates shall be exchangeable for definitive Warrant Certificates upon surrender of the temporary Warrant Certificates at the corporate trust office of the Warrant Agent [or ], without charge to the Holder (as defined in Section 1.6 below). Upon surrender for cancellation of any one or more temporary Warrant Certificates, the Company shall execute and the Warrant Agent shall authenticate and deliver in exchange therefor definitive Warrant Certificates representing the same aggregate number of Warrants. Until so exchanged, the temporary Warrant Certificates shall in all respects be entitled to the same benefits under this Agreement as definitive Warrant Certificates. 3 Section 1.5 PAYMENT OF TAXES. The Company will pay all stamp taxes and other duties, if any, to which, under the laws of the United States of America or any State or political subdivision thereof, this Agreement or the original issuance of the Warrant Certificates may be subject. Section 1.6 DEFINITION OF HOLDER. The term "Holder" as used herein shall mean [IF OFFERED SECURITIES AND WARRANTS WHICH ARE NOT IMMEDIATELY DETACHABLE -- prior to the Detachable Date, the registered owner of the Offered Security to which such Warrant Certificate was initially attached, and, after such Detachable Date,] the person in whose name at the time such Warrant Certificate shall be registered upon the books to be maintained by the Warrant Agent for that purpose pursuant to Section 4.1. [IF OFFERED SECURITIES AND WARRANTS WHICH ARE NOT IMMEDIATELY DETACHABLE -- Prior to the Detachable Date, the Company will, or will cause the registrar of the Offered Securities to, make available to the Warrant Agent current information as to Holders of the Offered Securities.] 4 ARTICLE II WARRANT PRICE, DURATION AND EXERCISE OF WARRANTS Section 2.1 WARRANT PRICE.(2) During the period set forth in Section 2.2, each Warrant shall entitle the Holder thereof, subject to the provisions of this Agreement, to purchase from the Company one share of Preferred Stock at the exercise price of $ _________. Such exercise price of each Warrant is referred to in this Agreement as the "Exercise Price." Section 2.2 DURATION OF WARRANTS. Any Warrant evidenced by a Warrant Certificate may be exercised at any time, as specified herein, on or after [the date thereof] [________, 19__] and at or before the close of business on ________, 19__ (the "Expiration Date"). Each Warrant not exercised at or before the close of business on the Expiration Date shall become void, and all rights of the Holder of the Warrant Certificate evidencing such Warrant under this Agreement or otherwise shall cease. Section 2.3 EXERCISE OF WARRANTS. (a) During the period specified in Section 2.2, any whole number of Warrants may be exercised by surrendering the Warrant Certificate evidencing such Warrants at the place or at the places set forth in the Warrant Certificate, with the purchase form set forth in the Warrant Certificate duly executed, accompanied by payment in full, in lawful money of the United States of America, [in cash or by certified check or official bank check in New York Clearing House funds] [by bank wire transfer in immediately available funds,] of the Exercise Price for each Warrant exercised. The date on which payment in full of the Exercise Price for a Warrant and the duly executed and completed Warrant Certificate are received by the Warrant Agent shall be deemed to be the date on which such Warrant is exercised. The Warrant Agent shall deposit all funds received by it as payment for the exercise of Warrants to the account of the Company maintained with it for such purpose and shall advise the Company by telephone at the end of each day on which such a payment is received of the amount so deposited to its account. The Warrant Agent shall promptly confirm such telephonic advice to the Company in writing. _________________________ (2) Complete and modify the provisions of this Section as appropriate to reflect the exact terms of the Warrants. 5 (b) The Warrant Agent shall from time to time, as promptly as practicable after the exercise of any Warrants in accordance with the terms and conditions of this Agreement and the Warrant Certificates, advise the Company of (i) the number of Warrants so exercised, (ii) the instructions of each Holder of the Warrant Certificates evidencing such Warrants with respect to delivery of the certificate or certificates representing shares of Preferred Stock to which such Holder is entitled upon such exercise, and instructions of such Holder as to delivery of Warrant Certificates evidencing the balance, if any, of the Warrants remaining after such exercise, and (iii) such other information as the Company shall reasonably require. (c) As soon as practicable after the exercise of any Warrants, the Company shall issue to or upon the order of the Holder of the Warrant Certificate evidencing such Warrants, a certificate or certificates representing the number of shares of Preferred Stock to which such Holder is entitled in such name or names as may be directed by such Holder; and, if fewer than all of the Warrants evidenced by such Warrant Certificate were exercised, the Company shall execute and an authorized officer of the Warrant Agent shall manually authenticate and deliver a new Warrant Certificate evidencing the number of Warrants remaining unexercised. (d) The Company shall not be required to pay any stamp or other tax or other governmental charge required to be paid in connection with any transfer involved in the issuance of the Preferred Stock; and in the event that any such transfer is involved, the Company shall not be required to issue or deliver any shares of Preferred Stock until such tax or other charge shall have been paid or it has been established to the Company's satisfaction that no such tax or other charge is due. Section 2.4 RESERVATION OF SHARES. For the purpose of enabling it to satisfy any obligation to issue shares of Preferred Stock upon exercise of Warrants, the Company will, at all times through the close of business on the Expiration Date, reserve and keep available, free from preemptive rights and out of its aggregate authorized but unissued shares of Preferred Stock, the number of shares of Preferred Stock deliverable upon the exercise of all outstanding Warrants. The Company covenants that all shares of Preferred Stock issued upon exercise of the Warrants will, upon issuance in accordance with the terms of this Agreement, be fully paid and nonassessable and free from all taxes, liens, 6 charges and security interests created by or imposed upon the Company with respect to the issuance and holding thereof. ARTICLE III OTHER TERMS OF WARRANTS Section 3.1 [CALL OF WARRANTS BY THE COMPANY.(3) IF WARRANTS ISSUED HEREUNDER ARE CALLABLE BY THE COMPANY -- The Company shall have the right to call and repurchase any or all Warrants on or after ________, 19__ (the "Call Date") and upon the occurrence of [discuss events or circumstances under which Company may call the Warrants] (the "Call Terms") at a price of $ ________ per Warrant (the "Call Price"). Notice of such Call Price, Call Date and Call Terms shall be given to registered holders of Warrants in the manner provided in Section 7.5.] Section 3.2 ADJUSTMENT OF EXERCISE PRICE AND NUMBER OF SHARES PURCHASABLE OR NUMBER OF WARRANTS. The Exercise Price, the number of shares of Preferred Stock purchasable upon the exercise of each Warrant and the number of Warrants outstanding are subject to adjustment from time to time upon the occurrence of the events enumerated in this Section 3.2. (a) If the Company shall (i) pay a dividend in or make a distribution of shares of its capital stock, whether shares of Preferred Stock or shares of its capital stock of any other class, (ii) subdivide its outstanding shares of Preferred Stock, (iii) combine its outstanding shares of Preferred Stock into a smaller number of shares of Preferred Stock or (iv) issue any shares of its capital stock in a reclassification of the Preferred Stock (including any such reclassification in connection with a consolidation or merger in which the Company is the continuing corporation), the number of shares of Preferred Stock purchasable upon exercise of each Warrant immediately prior thereto shall be adjusted so that the holder of each Warrant shall be entitled to receive the kind and number of shares of Preferred Stock or other securities of the Company which such holder would have owned or have been entitled to receive after the happening of any of the events described above, had such Warrant been exercised immediately prior to the happening of such event or any record date with respect thereto. An ad- _____________________________ (3) Complete and modify the provisions of this Section as appropriate to reflect the exact terms of the Warrants. 7 justment made pursuant to this paragraph (a) shall become effective immediately after the effective date of such event, retroactive to immediately after the record date, if any, for such event. (b) If the Company shall issue rights, options or warrants to all holders of its outstanding Preferred Stock, without any charge to such holders, entitling them to subscribe for or purchase shares of Preferred Stock at a price per share that is lower than the market price per share of Preferred Stock (as defined in paragraph (e) below) at the record date mentioned below, the number of shares of Preferred Stock thereafter purchasable upon the exercise of each Warrant shall be determined by multiplying the number of shares of Preferred Stock theretofore purchasable upon exercise of each Warrant by a fraction, of which the numerator shall be (i) the number of shares of Preferred Stock outstanding on the date of issuance of such rights, options or warrants plus the number of additional shares of Preferred Stock offered for subscription or purchase, and of which the denominator shall be (ii) the number of shares of Preferred Stock outstanding on the date of issuance of such rights, options or warrants plus the number of shares which the aggregate offering price of the total number of shares of Preferred Stock so offered would purchase at the market price per share of Preferred Stock at such record date. Such adjustment shall be made whenever such rights, options or warrants are issued, and shall become effective retroactive to immediately after the record date for the determination of stockholders entitled to receive such rights, options or warrants. (c) If the Company shall distribute to all holders of its shares of Preferred Stock evidences of its indebtedness or assets (excluding cash dividends or distributions payable out of capital surplus and dividends or distributions referred to in paragraph (a) above) or rights, options or warrants or convertible or exchangeable securities containing the right to subscribe for or purchase shares of Preferred Stock (excluding those referred to in paragraph (b) above), then in each case the number of shares of Preferred Stock thereafter purchasable upon the exercise of each Warrant shall be determined by multiplying the number of shares of Preferred Stock theretofore purchasable upon the exercise of each Warrant, by a fraction, of which the numerator shall be (i) the then current market price per share of Preferred Stock (as defined in paragraph (e) below) on the date of such distribution, and of which the denominator shall be (ii) the then current market price per share of Preferred Stock less the then fair value (as determined by the Board of Directors of the Company, whose determination shall be conclusive) of the portion of the assets or evidences of indebtedness so distributed or of such subscription rights, options or warrants or convertible or 8 exchangeable securities applicable to one share of Preferred Stock. Such adjustment shall be made whenever any such distribution is made, and shall become effective on the date of distribution retroactive to immediately after the record date for the determination of stockholders entitled to receive such distribution. (d) In the event of any capital reorganization or any reclassification of the Preferred Stock (except as provided in paragraphs (a) through (c) above), any holder of Warrants upon exercise thereof shall be entitled to receive, in lieu of the Preferred Stock to which he or she would have become entitled upon exercise immediately prior to such reorganization or reclassification, the shares (of any class or classes) or other securities or property of the Company that he or she would have been entitled to receive at the same aggregate Exercise Price upon such reorganization or reclassification if his or her Warrants had been exercised immediately prior thereto. (e) For the purpose of any computation under paragraphs (b) and (c) of this Section 3.02, the current or closing market price per share of Preferred Stock at any date shall be deemed to be the average of the daily closing prices for consecutive trading days commencing __________ trading days before the date of such computation. The closing price for each day shall be [the last sale price] for such day, in either case as reported in the principal consolidated transaction reporting system with respect to securities listed or admitted to trading on the New York Stock Exchange (the "NYSE") or if the Preferred Stock is not listed on the NYSE, then on the principal United States national securities exchange on which the Preferred Stock is listed or quoted. If the Preferred Stock is not listed or quoted on any United States national securities exchange, then the current or closing market price per share of Preferred Stock shall be determined by the Board of Directors of the Company in good faith. (f) Whenever the number of shares of Preferred Stock purchasable upon the exercise of each Warrant is adjusted as herein provided, the Exercise Price payable upon the exercise of each Warrant shall be adjusted by multiplying such Exercise Price immediately prior to such adjustment by a fraction, of which the numerator shall be the number of shares purchasable upon the exercise of each Warrant immediately prior to such adjustment, and of which the denominator shall be the number of shares so purchasable immediately thereafter. (g) The Company may elect, on or after the date of any adjustment required by paragraphs (a) through (d) of this Section 3.2, to adjust 9 the number of Warrants in substitution for an adjustment in the number of shares of Preferred Stock purchasable upon the exercise of a Warrant. Each of the Warrants outstanding after such adjustment of the number of Warrants shall be exercisable for the same number of shares of Preferred Stock as immediately prior to such adjustment. Each Warrant held of record prior to such adjustment of the number of Warrants shall become that number of Warrants (calculated to the nearest hundredth) obtained by dividing the Exercise Price in effect prior to adjustment of the Exercise Price by the Exercise Price in effect after adjustment of the Exercise Price. The Company shall notify the holders of Warrants, in the same manner as provided in the first paragraph of Section 7.5, of its election to adjust the number of Warrants, indicating the record date for the adjustment, and, if known at the time, the amount of the adjustment to be made. This record date may be the date on which the Exercise Price is adjusted or any day thereafter. Upon each adjustment of the number of Warrants pursuant to this paragraph (g) the Company shall, as promptly as practicable, cause to be distributed to holders of record of Warrants on such record date Warrant Certificates evidencing, subject to paragraph (h), the additional Warrants to which such holders shall be entitled as a result of such adjustment, or, at the option of the Company, shall cause to be distributed to such holders of record in substitution and replacement for the Warrant Certificates held by such holders prior to the date of adjustment, and upon surrender thereof, if required by the Company, new Warrant Certificates evidencing all the Warrants to be issued, executed and registered in the manner specified in Section 1 (and which may bear, at the option of the Company, the adjusted Exercise Price) and shall be registered in the names of the holders of record of Warrant Certificates on the record date specified in the notice. (h) The Company shall not be required to issue fractions of Warrants on any distribution of Warrants to holders of Warrant Certificates pursuant to paragraph (g) or to distribute Warrant Certificates that evidence fractional Warrants. In lieu of such fractional Warrants, there shall be paid to the registered holders of the Warrant Certificates with regard to which such fractional Warrants would otherwise be issuable, an amount in cash equal to the same fraction of the current market value of a full Warrant on the trading day immediately prior to the date on which such fractional Warrant would have been otherwise issuable (the "Valuation Date"). For purposes of this paragraph (h), the current market value of a Warrant shall be the aggregate closing market price on the Valuation Date (determined as set forth in paragraph (e)) of all shares of Preferred Stock issuable upon exercise of one Warrant plus the fair value (as determined by the Board of Directors of the Company, whose determination shall 10 be conclusive) of any other assets or securities purchasable upon exercise of one Warrant less the Exercise Price of one Warrant. (i) Notwithstanding any adjustment pursuant to Section 3.2 in the number of shares of Preferred Stock purchasable upon the exercise of a Warrant, the Company shall not be required to issue fractions of shares of Preferred Stock upon exercise of the Warrants or to distribute certificates which evidence fractional shares. In lieu of fractional shares, there shall be paid to the registered holders of Warrant Certificates at the time such Warrant Certificates are exercised as herein provided an amount in cash equal to the same fraction of the current market value of a share of Preferred Stock. For purposes of this paragraph (i), the current market value of a share of Preferred Stock shall be the closing market price (determined as set forth in paragraph (e)) of a share of Preferred Stock for the trading day immediately prior to the date of such exercise. ARTICLE IV REGISTRATION, EXCHANGE, TRANSFER AND SUBSTITUTION OF WARRANT CERTIFICATES Section 4.1 REGISTRATION, EXCHANGE AND TRANSFER OF WARRANT CERTIFICATES. The Warrant Agent shall keep, at its corporate trust office [and at _________], books in which, subject to such reasonable regulations as it may prescribe, it shall register Warrant Certificates and transfers of outstanding Warrant Certificates. [IF OFFERED SECURITIES AND WARRANTS WHICH ARE IMMEDIATELY DETACHABLE - - - Prior to the Detachable Date, a Warrant Certificate may be exchanged or transferred only together with the Offered Security to which such Warrant Certificate was initially attached, and only for the purpose of effecting, or in conjunction with, an exchange or transfer of such Offered Security. Additionally, on or prior to the Detachable Date, each transfer or exchange of an Offered Security [on the register of the Offered Securities] shall operate also to transfer or exchange the Warrant Certificate or Certificates to which such Offered Security was initially attached. After the Detachable Date, upon] [IF OFFERED SECURITIES AND WARRANTS WHICH ARE IMMEDIATELY DETACHABLE OR IF WARRANTS ALONE -- Upon] surrender at the corporate trust office of the Warrant Agent [or _________] of Warrant Certificates properly endorsed [or accompanied by appropriate instruments of transfer] and accompanied by written instructions for [transfer or] exchange, all in form satisfactory to the Company and the Warrant Agent, such 11 Warrant Certificates may be exchanged for other Warrant Certificates or may be transferred in whole or in part; provided that Warrant Certificates issued in exchange for [or upon transfer of] surrendered Warrant Certificates shall evidence the same aggregate number of Warrants as the Warrant Certificates so surrendered. No service charge shall be made for any exchange [or transfer] of Warrant Certificates, but the Company may require payment of a sum sufficient to cover any stamp or other tax or governmental charge that may be imposed in connection with any such exchange [or transfer]. Whenever any Warrant Certificates are so surrendered for exchange [or transfer], the Company shall execute and an authorized officer of the Warrant Agent shall manually authenticate and deliver to the person or persons entitled thereto a Warrant Certificate or Warrant Certificates as so requested. The Warrant Agent shall not be required to effect any exchange [or transfer] which would result in the issuance of a Warrant Certificate evidencing a fraction of a Warrant or a number of full Warrants and a fraction of a Warrant. All Warrant Certificates issued upon any exchange [or transfer] of Warrant Certificates shall evidence the same obligations, and be entitled to the same benefits under this Agreement, as the Warrant Certificates surrendered for such exchange [or transfer]. Section 4.2 MUTILATED, DESTROYED, LOST OR STOLEN WARRANT CERTIFICATES. If any mutilated Warrant Certificate is surrendered to the Warrant Agent, the Company shall execute and an officer of the Warrant Agent shall manually authenticate and deliver in exchange therefor a new Warrant Certificate of like tenor and bearing a number not contemporaneously outstanding. If there shall be delivered to the Company and the Warrant Agent (i) evidence to their satisfaction of the destruction, loss or theft of any Warrant Certificate and of the ownership thereof and (ii) such security or indemnity as may be required by them to save each of them and any agent of either of them harmless, then, in the absence of notice to the Company or the Warrant Agent that such Warrant Certificate has been acquired by a bona fide purchaser, the Company shall execute and upon its request an officer of the Warrant Agent shall manually authenticate and deliver, in lieu of any such destroyed, lost or stolen Warrant Certificate, a new Warrant Certificate of like tenor and bearing a number not contemporaneously outstanding. Upon the issuance of any new Warrant Certificate under this Section, the Company may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Warrant Agent) connected therewith. Every new Warrant Certificate issued pursuant to this Section in lieu of any destroyed, lost or stolen Warrant Certificate shall evidence an original additional contractual obligation of the Company, whether or not the destroyed, 12 lost or stolen Warrant Certificate shall be at any time enforceable by anyone, and shall be entitled to all the benefits of this Agreement equally and proportionately with any and all other Warrant Certificates duly issued hereunder. The provisions of this Section are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Warrant Certificates. Section 4.3 PERSONS DEEMED OWNERS. [IF OFFERED SECURITIES AND WARRANTS WHICH ARE NOT IMMEDIATELY DETACHABLE -- Prior to the Detachable Date, the Company, the Warrant Agent and all other persons may treat the owner of any Offered Security as the owner of the Warrant Certificates initially attached thereto for any purpose and as the person entitled to exercise the rights represented by the Warrants evidenced by such Warrant Certificates, any notice to the contrary notwithstanding. After the Detachable Date, and] Prior to due presentment of a Warrant Certificate for registration of transfer, the Company, the Warrant Agent and all other persons may treat the Holder as the owner thereof for any purpose and as the person entitled to exercise the rights represented by the Warrants evidenced thereby, any notice to the contrary notwithstanding. Section 4.4 CANCELLATION OF WARRANT CERTIFICATES. Any Warrant Certificate surrendered for exchange[, transfer] or exercise of the Warrants evidenced thereby shall, if surrendered to the Company, be delivered to the Warrant Agent, and all Warrant Certificates surrendered or so delivered to the Warrant Agent shall be promptly cancelled by it and shall not be reissued and, except as expressly permitted by this Agreement, no Warrant Certificate shall be issued hereunder in lieu or in exchange thereof. The Company may at any time deliver to the Warrant Agent for cancellation any Warrant Certificates previously issued hereunder which the Company may have acquired in any manner whatsoever, and all Warrant Certificates so delivered shall be promptly cancelled by the Warrant Agent. All cancelled Warrant Certificates held by the Warrant Agent shall be destroyed by it unless by written order the Company requests their return to it. 13 ARTICLE V OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS OF WARRANT CERTIFICATES Section 5.1 NO RIGHTS AS STOCKHOLDERS CONFERRED BY WARRANTS OR WARRANT CERTIFICATES. No Warrant Certificate or Warrant evidenced thereby shall entitle the Holder thereof to any of the rights of a stockholder, including, without limitation, the right to receive dividends. Section 5.2 HOLDER OF WARRANT CERTIFICATE MAY ENFORCE RIGHTS. Notwithstanding any of the provisions of this Agreement, any Holder of any Warrant Certificate, without the consent of the Warrant Agent, any stockholder or the Holder of any other Warrant Certificate, may, on its own behalf and for its own benefit, enforce, and may institute and maintain any suit, action or proceeding against the Company suitable to enforce or otherwise in respect of its right to exercise the Warrant or Warrants evidenced by his or her Warrant Certificate in the manner provided in the Warrant Certificates and in this Agreement. ARTICLE VI CONCERNING THE WARRANT AGENT Section 6.1 WARRANT AGENT. The Company hereby appoints ____________ as Warrant Agent of the Company in respect of the Warrants and the Warrant Certificates upon the terms and subject to the conditions herein set forth, and ___________ hereby accepts such appointment. The Warrant Agent shall have the power and authority granted to and conferred upon it in the Warrant Certificates and hereby and such further power and authority to act on behalf of the Company as the Company may hereafter grant to or confer upon it. All of the terms and provisions with respect to such power and authority contained in the Warrant Certificates are subject to and governed by the terms and provisions hereof. Section 6.2 CONDITIONS OF WARRANT AGENT'S OBLIGATIONS. The Warrant Agent accepts its obligations herein set forth, upon the terms and conditions hereof, including the following, to all of which the Company agrees and to all of which the rights hereunder of the Holders from time to time of the Warrant Certificates shall be subject: 14 (a) COMPENSATION AND INDEMNIFICATION. The Company agrees promptly to pay the Warrant Agent the compensation to be agreed upon with the Company for all services rendered by the Warrant Agent and to reimburse the Warrant Agent for reasonable out-of-pocket expenses (including reasonable counsel fees) incurred by the Warrant Agent in connection with the services rendered hereunder by the Warrant Agent. The Company also agrees to indemnify the Warrant Agent for, and hold it harmless against, any loss, liability or expense incurred without negligence or bad faith on the part of the Warrant Agent, arising out of or in connection with its acting as such Warrant Agent hereunder, including the reasonable costs and expenses of defending itself against any claim or liability in connection with the exercise or performance at any time of its powers or duties hereunder. The obligations of the Company under this subsection (a) shall survive the exercise of the Warrant Certificates and the resignation or removal of the Warrant Agent. (b) AGENT FOR THE COMPANY. In acting under this Warrant Agreement and in connection with the Warrant Certificates, the Warrant Agent is acting solely as agent of the Company and does not assume any obligation or relationship of agency or trust for or with any of the owners or holders of the Warrant Certificates. (c) COUNSEL. The Warrant Agent may consult with counsel, which may include counsel for the Company, and the written advice of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered, or omitted by it hereunder in good faith and in reliance thereon. (d) DOCUMENTS. The Warrant Agent shall be protected and shall incur no liability for or in respect of any action taken or omitted by it in reliance upon any notice, direction, consent, certificate, affidavit, statement or other paper or document reasonably believed by it to be genuine and to have been presented or signed by the proper parties. (e) CERTAIN TRANSACTIONS. The Warrant Agent, any of its officers, directors and employees, or any other agent of the Company, in its individual or any other capacity, may become the owner of, or acquire any interest in, any Warrant Certificates, with the same rights that it would have if it were not such Warrant Agent, officer, director, employee or other agent, and, to the extent permitted by applicable law, it may engage or be interested in any financial or other transaction with the Company and may act on, or as depositary, 15 trustee or agent for, any committee or body of holders of securities or other obligations of the Company as freely as if it were not such Warrant Agent, officer, director, employee or other agent. (f) NO LIABILITY FOR INTEREST. The Warrant Agent shall not be under any liability for interest on any monies at any time received by it pursuant to any of the provisions of this Agreement or of the Warrant Certificates unless otherwise agreed to in writing by the Company and the Warrant Agent and except for the negligence of the Warrant Agent. (g) NO LIABILITY FOR INVALIDITY. The Warrant Agent shall not incur any liability with respect to the validity of this Agreement or any of the Warrant Certificates. (h) NO RESPONSIBILITY FOR REPRESENTATIONS. The Warrant Agent shall not be responsible for any of the Recitals or representations contained herein or in the Warrant Certificates (except as to the Warrant Agent's Certificate of Authentication thereon), all of which are made solely by the Company. (i) NO IMPLIED OBLIGATIONS. The Warrant Agent shall be obligated to perform such duties as are herein and in the Warrant Certificates specifically set forth and no implied duties or obligations shall be read into this Agreement or the Warrant Certificates against the Warrant Agent. The Warrant Agent shall not be under any obligation to take any action hereunder which may tend to involve it in any expense or liability, the payment of which within a reasonable time is not, in its reasonable opinion, assured to it. The Warrant Agent shall not be accountable or under any duty or responsibility for the use by the Company of any of the Warrant Certificates authenticated by the Warrant Agent and delivered by it to the Company pursuant to this Agreement or for the application by the Company of the proceeds of the Warrant Certificates or any exercise of the Warrants evidenced thereby. The Warrant Agent shall have no duty or responsibility in case of any default by the Company in the performance of its covenants or agreements contained herein or in the Warrant Certificates or in the case of the receipt of any written demand from a Holder of a Warrant Certificate with respect to such default, including, without limiting the generality of the foregoing, any duty or responsibility to initiate or attempt to initiate any proceedings at law or otherwise or, except as provided in Section 7.4 hereof, to make any demand upon the Company. 16 Section 6.3 RESIGNATION, REMOVAL AND ASSIGNMENT OF SUCCESSOR. (a) The Company agrees, for the benefit of the Holders from time to time of the Warrant Certificates, that there shall at all times be a Warrant Agent hereunder until all of the Warrant Certificates are no longer exercisable. (b) The Warrant Agent may at any time resign as such agent by giving written notice to the Company of such intention on its part, specifying the date on which it desires its resignation to become effective; provided that, without the consent of the Company, such date shall not be less than three months after the date on which such notice is given. The Warrant Agent hereunder may be removed at any time by the filing with it of an instrument in writing signed by or on behalf of the Company and specifying such removal and the date on which the Company expects such removal to become effective. Such resignation or removal shall take effect upon the appointment by the Company of a successor Warrant Agent (which shall be a bank or trust company organized and doing business under the laws of the United States of America, any State thereof or the District of Columbia and authorized under such laws to exercise corporate trust powers) by an instrument in writing filed with such successor Warrant Agent and the acceptance of such appointment by such successor Warrant Agent pursuant to Section 6.3(d). (c) In case at any time the Warrant Agent shall resign, or be removed, or shall become incapable of acting, or shall be adjudged a bankrupt or insolvent, or shall file a voluntary petition in bankruptcy or make an assignment for the benefit of its creditors or consent to the appointment of a receiver or custodian of all or any substantial part of its property, or shall admit in writing its inability to pay or meet its debts as they mature, or if a receiver or custodian of it or of all or any substantial part of its property shall be appointed, or if an order of any court shall be entered approving any petition filed by or against it under the provisions of any applicable bankruptcy or similar law, or if any public officer shall have taken charge or control of the Warrant Agent or of its property or affairs, a successor Warrant Agent, qualified as aforesaid, shall be appointed by the Company by an instrument in writing filed with the successor Warrant Agent. Upon the appointment as aforesaid of a successor Warrant Agent and acceptance by the latter of such appointment, the Warrant Agent so superseded shall cease to be the Warrant Agent hereunder. (d) Any successor Warrant Agent appointed hereunder shall execute, acknowledge and deliver to its predecessor and to the Company an instrument accepting such appointment hereunder, and thereupon such successor 17 Warrant Agent, without any further act, deed or conveyance, shall become vested with all the authority, rights, powers, trusts, immunities, duties and obligations of such predecessor with like effect as if originally named as Warrant Agent hereunder, and such predecessor, upon payment of its charges and disbursements then unpaid, shall thereupon become obligated to transfer, deliver and pay over, and such successor Warrant Agent shall be entitled to receive, all monies, securities and other property on deposit with or held by such predecessor, as Warrant Agent hereunder. (e) Any corporation into which the Warrant Agent hereunder may be merged or converted or any corporation with which the Warrant Agent may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Warrant Agent shall be a party, or any corporation succeeding to all or substantially all of the corporate trust business of the Warrant Agent, provided that it shall be qualified as aforesaid, shall be the successor Warrant Agent under this Agreement without the execution or filing of any paper or any further act on the part of any of the parties hereto. ARTICLE VII MISCELLANEOUS Section 7.1 CONSOLIDATIONS AND MERGERS OF THE COMPANY AND SALES, LEASES AND CONVEYANCES PERMITTED SUBJECT TO CERTAIN CONDITIONS. The Company may consolidate with, or sell or convey all or substantially all of its assets to, or merge with or into any other corporation, provided that in any such case, either the Company shall be the continuing corporation, or the corporation (if other than the Company) formed by such consolidation or into which the Company is merged or the corporation which acquired by purchase or conveyance all or substantially all of the assets of the Company shall expressly assume the obligations of the Company hereunder. Section 7.2 RIGHTS AND DUTIES OF SUCCESSOR CORPORATION. In case of any such consolidation, merger, sale, lease or conveyance and upon any such assumption by the successor corporation, such successor corporation shall succeed to and be substituted for the Company, with the same effect as if it had been named herein, and the predecessor corporation, except in the event of a lease, shall be relieved of any further obligation under this Agreement and the Warrants. Such successor corporation thereupon may cause to be signed, and may 18 issue either in its own name or in the name of the Company, any or all of the shares of Preferred Stock issuable pursuant to the terms hereof. Section 7.3 AMENDMENT. This Agreement may be amended by the parties hereto, without the consent of the Holder of any Warrant Certificate, for the purpose of curing any ambiguity, or curing, correcting or supplementing any defective provision contained herein, or making such provisions in regard to matters or questions arising under this Agreement as the Company may deem necessary or desirable; provided that such action shall not adversely affect the interests of the Holders of the Warrant Certificates in any material respect. Any amendment or supplement to this Agreement or the Warrants that has a material adverse effect on the interests of Holders of any series of Warrants shall require the written consent of the Holders of a majority of the then outstanding Warrants of such series. The consent of each Holder of a Warrant affected shall be required for any amendment pursuant to which the Warrant Price would be increased or the number of shares of Preferred Stock purchasable upon exercise of Warrants would be decreased. The Warrant Agent may, but shall not be obligated to, enter into any amendment to this Agreement which affects the Warrant Agent's own rights, duties or immunities under this Agreement or otherwise. Section 7.4 NOTICES AND DEMANDS TO THE COMPANY AND WARRANT AGENT. If the Warrant Agent shall receive any notice or demand addressed to the Company by the Holder of a Warrant Certificate pursuant to the provisions of the Warrant Certificates, the Warrant Agent shall promptly forward such notice or demand to the Company. Section 7.5 NOTICES TO WARRANTHOLDERS. Upon any adjustment of the number of shares purchasable upon exercise of each Warrant, the Exercise Price or the number of Warrants outstanding pursuant to Section 3.2, the Company within _______ calendar days thereafter shall (i) cause to be filed with the Warrant Agent a certificate of a firm of independent public accountants of recognized standing selected by the Company (who may be the regular auditors of the Company) setting forth the Exercise Price and either the number of shares of Preferred Stock and other securities or assets purchasable upon exercise of each Warrant or the additional number of Warrants to be issued for each previously outstanding Warrant, as the case may be, after such adjustment and setting forth in reasonable detail the method of calculation and the facts upon which such adjustment are made, which certificate shall be conclusive evidence of the correctness of the matters set forth therein, and (ii) cause to be given to each of 19 the registered holders of the Warrant Certificates at such holder's address appearing on the Warrant Register written notice of such adjustments by first- class mail, postage prepaid. Where appropriate, such notice may be given in advance and included as part of the notice required to be mailed under the provisions of this Section 7.5. Pursuant to Sections 3.1 [add other sections as applicable], the Company shall cause written notice of such Call Price, Call Date and Call Terms [reference other items as applicable], as the case may be, to be given as soon as practicable to the Warrant Agent and to each of the registered holders of the Warrant Certificates by first class mail, postage prepaid, at such holder's address appearing on the Warrant Register. In addition to the written notice referred to in the preceding sentence, the Company shall make a public announcement in a daily morning newspaper of general circulation in __________ of such Call Price, Call Date, and Call Terms [reference other items as applicable], as the case may be, at least once a week for two successive weeks prior to the implementation of such terms. If: (a) the Company shall declare any dividend payable in any securities upon its shares of Preferred Stock or make any distribution (other than a cash dividend) to the holders of its shares of Preferred Stock; or (b) the Company shall offer to the holders of its shares of Preferred Stock any additional shares of Preferred Stock or securities convertible into shares of Preferred Stock or any right to subscribe thereto; or (c) there shall be a dissolution, liquidation or winding up of the Company (other than in connection with a consolidation, merger, or sale of all substantially all of its property, assets, and business as an entirety); then the Company shall (i) cause written notice of such event to be filed with the Warrant Agent and shall cause written notice of such event to be given to each of the registered holders of the Warrant Certificates at such holder's address appearing on the Warrant Register, by first-class mail, postage prepaid, and (ii) make a public announcement in a daily newspaper of general circulation in ___________________ of such event, such giving of notice and publication to be completed at least ________ calendar days prior to the date fixed as a record date or the date of closing the transfer books for the determination of the stockholders 20 entitled to such dividend, distribution, or subscription rights, or for the determination of stockholders entitled to vote on such proposed dissolution, liquidation or winding up. Such notice shall specify such record date or the date of closing the transfer books, as the case may be. The failure to give the notice required by this Section 7.5 or any defect therein shall not affect the legality or validity of any distribution, right, warrant, dissolution, liquidation or winding up or the vote upon or any other action taken in connection therewith. Section 7.6 ADDRESSES. Any communications from the Company to the Warrant Agent with respect to this Agreement shall be addressed to _______________, Attention: ________________, and any communications from the Warrant Agent to the Company with respect to this Agreement shall be addressed to DC Holdco, Inc., c/o The Walt Disney Company, 500 South Buena Vista Street, Burbank, California 91521, Attention: Corporate Secretary (or such other address as shall be specified in writing by the Warrant Agent or by the Company). Section 7.7 GOVERNING LAW. This Agreement and each Warrant Certificate issued hereunder shall be governed by and construed in accordance with the laws of the State of New York. Section 7.8 DELIVERY OF PROSPECTUS. The Company will furnish to the Warrant Agent sufficient copies of a prospectus, appropriately supplemented, relating to the Preferred Stock (the "Prospectus"), and the Warrant Agent agrees that upon the exercise of any Warrant Certificate, the Warrant Agent will deliver to the person designated to receive a certificate representing shares of Preferred Stock, prior to or concurrently with the delivery of such Securities, a Prospectus. Section 7.9 OBTAINING OF GOVERNMENTAL APPROVALS. The Company will from time to time take all action which may be necessary to obtain and keep effective any and all permits, consents and approvals of governmental agencies and authorities and securities acts filings under United States Federal and State laws (including, without limitation, to the extent required, the maintenance of the effectiveness of a registration statement in respect of the Preferred Stock under the Securities Act of 1933, as amended), which may be or become required in connection with exercise of the Warrant Certificates and the original issuance and delivery of the Preferred Stock. Section 7.10 PERSONS HAVING RIGHTS UNDER WARRANT AGREEMENT. Nothing in this Agreement expressed or implied and nothing that may be inferred 21 from any of the provisions herein is intended, or shall be construed, to confer upon, or give to, any person or corporation other than the Company, the Warrant Agent and the Holders of the Warrant Certificates any right, remedy or claim under or by reason of this Agreement or of any covenant, condition, stipulation, promise or agreement hereof; and all covenants, conditions, stipulations, promises and agreements contained in this Agreement shall be for the sole and exclusive benefit of the Company and the Warrant Agent and their successors and of the Holders of the Warrant Certificates. Section 7.11 HEADINGS. The Article and Section headings herein and the Table of Contents are for convenience of reference only and shall not affect the construction hereof. Section 7.12 COUNTERPARTS. This Agreement may be executed in any number of counterparts, each of which so executed shall be deemed to be an original; but such counterparts shall together constitute but one and the same instrument. Section 7.13 INSPECTION OF AGREEMENT. A copy of this Agreement shall be available at all reasonable times at the principal corporate trust office of the Warrant Agent [and at ___________] for inspection by the Holder of any Warrant Certificate. The Warrant Agent may require such Holder to submit its Warrant Certificate for inspection by it. 22 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed, and their respective corporate seal to be hereunto affixed and attested, all as of the day and year first above written. DC HOLDCO, INC. By: ____________________________________ [SEAL] Attest ______________________________ [Assistant] Secretary [SEAL] Attest: [Assistant] Secretary [NAME OF WARRANT AGENT] By: __________________________ [SEAL] Attest: ________________________ [Assistant] Secretary 23 EXHIBIT A [FORM OF WARRANT CERTIFICATE] [Face]
FORM OF LEGEND IF OFFERED [Prior to ___________, this SECURITIES WITH WARRANTS Warrant Certificate may be WHICH ARE NOT IMMEDIATELY transferred or exchanged if DETACHABLE and only if the [Title of Security] to which it was initially attached is so transferred or exchanged.] FORM OF LEGEND IF WARRANTS [Prior to ARE NOT IMMEDIATELY EXER- _________________, Warrants CISABLE evidenced by this Warrant Certificate cannot be exer- cised.]
EXERCISABLE ONLY IF AUTHENTICATED BY THE WARRANT AGENT AS PROVIDED HEREIN VOID AFTER THE CLOSE OF BUSINESS ON ____________, 199__ DC HOLDCO, INC. Warrant Certificate representing Warrants to purchase Preferred Stock as described herein. ___________________ No. __________ Warrants This certifies that __________ or registered assigns is the registered owner of the above indicated number of Warrants, each Warrant entitling such registered owner to purchase, at any time [after the close of business on _________, 19__, and] on or before the close of business on ________, 19__, one share of the [designation of Preferred Stock] ("Preferred stock") of DC A-1 Holdco, Inc. (the "Company"), on the following basis.* During such period, each Warrant shall entitle the Holder thereof, subject to the provisions of the Warrant Agreement (as defined below), to purchase from the Company one share of Preferred Stock at the exercise price of $ ________ (the "Exercise Price"). The Holder of this Warrant Certificate may exercise the Warrants evidenced hereby, in whole or in part, by surrendering this Warrant Certificate, with the purchase form set forth hereon duly completed, accompanied by payment in full, in lawful money of the United States of America, [in cash or by certified check or official bank check in New York Clearing House funds or by bank wire transfer in immediately available funds], the Exercise Price for each Warrant exercised, to the Warrant Agent (as hereinafter defined), at the corporate trust office of [name of Warrant Agent], or its successor, as warrant agent (the "Warrant Agent") [or at ________], the addresses specified on the reverse hereof and upon compliance with and subject to the conditions set forth herein and in the Warrant Agreement. The term "Holder" as used herein shall mean [IF OFFERED DEBT SECURITIES WITH WARRANTS WHICH ARE NOT IMMEDIATELY DETACHABLE -- prior to ________, 19__ (the "Detachable Date"), the registered owner of the Company's [title of Offered Securities] to which such Warrant Certificate was initially attached, and after such Detachable Date,] the person in whose name at the time such Warrant Certificate shall be registered upon the books to be maintained by the Warrant Agent for that purpose pursuant to Section 4.1 of the Warrant Agreement. Any whole number of Warrants evidenced by this Warrant Certificate may be exercised to purchase shares of Preferred Stock. Upon any exercise of fewer than all of the Warrants evidenced by this Warrant Certificate, there shall be issued to the registered owner hereof a new Warrant Certificate evidencing the number of Warrants remaining unexercised. This Warrant Certificate is issued under and in accordance with the Warrant Agreement dated as of ________, 19__ (the "Warrant Agreement"), between the Company and the Warrant Agent and is subject to the terms and provisions contained in the Warrant Agreement, to all of which terms and __________________________ * Complete and modify the following provisions as appropriate to reflect the terms of the Warrants. A-2 provisions the holder of this Warrant Certificate consents by acceptance hereof. Copies of the Warrant Agreement are on file at the above-mentioned office of the Warrant Agent [and at ________]. [IF OFFERED SECURITIES WITH WARRANTS WHICH ARE NOT IMMEDIATELY DETACHABLE--prior to ________, 19__ (the "Detachable Date"), this Warrant Certificate may be exchanged or transferred only together with the [title of Offered Security] (the "Offered Security") to which this Warrant Certificate was initially attached, and only for the purpose of effecting, or in conjunction with, an exchange or transfer of such Offered Security. Additionally, on or prior to the Detachable Date, each transfer of such Offered Security on the register of the Offered Securities shall operate also to transfer this Warrant Certificate. After the Detachable Date, this] [IF OFFERED DEBT SECURITIES WITH WARRANTS WHICH ARE IMMEDIATELY DETACHABLE OR WARRANTS ALONE--This] Warrant Certificate and all rights hereunder, may be transferred when surrendered at the corporate trust office of the Warrant Agent [or ________] by the registered owner or his assigns, in person or by an attorney duly authorized in writing, in the manner and subject to the limitations provided in the Warrant Agreement. [IF OFFERED SECURITIES WITH WARRANTS WHICH ARE NOT IMMEDIATELY DETACHABLE--Except as provided in the immediately preceding paragraph, after] [IF OFFERED DEBT SECURITIES WITH WARRANTS WHICH ARE IMMEDIATELY DETACHABLE OR WARRANTS ALONE-After] authentication by the Warrant Agent and prior to the expiration of this Warrant Certificate, this Warrant Certificate may be exchanged at the corporate trust office of the Warrant Agent [or at ______________________] for Warrant Certificates representing the same aggregate number of Warrants. This Warrant Certificate shall not entitle the registered owner hereof to any of the rights of a stockholder, including, without limitation, the right to receive dividends. Reference is hereby made to the further provisions of this Warrant Certificate set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place. This Warrant Certificate shall not be valid obligatory for any purpose until authenticated by the Warrant Agent. A-3 IN WITNESS WHEREOF, the Company has caused this Warrant Certificate to be duly executed under its corporate seal. Dated: _______________________ DC HOLDCO, INC. By: _______________________________ Attest: _____________________________ Certificate of Authentication This is one of the Warrant Certificates referred to in the within- mentioned Warrant Agreement. _____________________________ As Warrant Agent By: _________________________ Authorized Signature A-4 [FORM OF WARRANT CERTIFICATE] [REVERSE] (Instructions for Exercise of Warrants) To exercise any Warrants evidenced hereby, the Holder of this Warrant Certificate must pay [in cash or by certified check or official bank check in New York Clearing House funds or by bank wire transfer in immediately available funds], the Exercise Price in full for each of the Warrants exercised, to _________, Corporate Trust Department, ____________, Attn: [or ____________], which payment should specify the name of the Holder of this Warrant Certificate and the number of Warrants exercised by such Holder. In addition, the Holder of this Warrant Certificate should complete the information required below and present in person or mail by registered mail this Warrant Certificate to the Warrant Agent at the addresses set forth below. [FORM OF EXERCISE] (To be executed upon exercise of Warrants.) The undersigned hereby irrevocably elects to exercise Warrants, represented by this Warrant Certificate, to purchase ________ shares of the [designation of Preferred Stock] ("Preferred Stock") of DC Holdco, Inc. and represents that he or she has tendered payment for such shares of Preferred Stock [in cash or by certified check or official bank check in New York Clearing House funds or by bank wire transfer in immediately available funds] to the order of DC Holdco, Inc., c/o Treasurer, in the amount of $________ in accordance with the terms hereof. The undersigned requests that said shares of Preferred Stock be registered in such names and delivered, all as specified in accordance with the instructions set forth below. If said number of shares of Preferred Stock is less than all of the shares of Preferred Stock purchasable hereunder, the undersigned requests that a new Warrant Certificate representing the remaining balance of the Warrants evidenced hereby be issued and delivered to the undersigned unless otherwise specified in the instructions below. A-5 Dated: Name ___________________________ (Please Print) _________________________ (Insert Social Security or Other Identifying Number of Holder) Address ________________________ ________________________________ ________________________________ Signature (Signature must conform in all respects to name of holder as specified on the face of this Warrant Certificate and must bear a signature guarantee by a bank, trust company or member broker of the New York, Chicago or Pacific Stock Exchange.) This Warrant may be exercised at the following addresses: By hand at _______________________________ _______________________________ _______________________________ By mail at _______________________________ _______________________________ _______________________________ (Instructions as to form and delivery of certificates representing shares of Preferred Stock and/or Warrant Certificates): A-6 [FORM OF ASSIGNMENT] (TO BE EXECUTED TO TRANSFER THE WARRANT CERTIFICATE) FOR VALUE RECEIVED ____________________________ hereby sells, assigns and transfers unto ___________________________________ Please print name and address (including zip code) Please insert social security or other identifying number ______________________ _________________________________________________________ the right represented by the within Warrant Certificate and does hereby irrevocably constitute and appoint __________, Attorney, to transfer said Warrant Certificate on the books of the Warrant Agent with full power of substitution. Dated: ___________________________ Signature (Signature must conform in all respects to name of holder as specified on the face of this Warrant Certificate and must bear a signature guarantee by a bank, trust company or member broker of the New York, Chicago or Pacific Stock Exchange.) Signature Guaranteed: _________________________ A-7 EX-5.1 6 EXHIBIT 5.1 Exhibit 5.1 October 31, 1995 DC Holdco, Inc. The Walt Disney Company 500 South Buena Vista Street Burbank, California 91521 Re: DC Holdco, Inc. and The Walt Disney Company REGISTRATION STATEMENT ON FORM S-3 Dear Ladies and Gentlemen: We have acted as special counsel to DC Holdco, Inc., a Delaware corporation ("New Disney"), and The Walt Disney Company, a Delaware corporation ("Disney"), in connection with the preparation of the Registration Statement on Form S-3 (No. 33-62777) (the "Registration Statement") filed by New Disney and Disney with the Securities and Exchange Commission (the "Commission"). The Registration Statement relates to the issuance and sale from time to time, pursuant to Rule 415 of the General Rules and Regulations of the Commission promulgated under the Securities Act of 1933, as amended (the "Securities Act"), of the following securities of New Disney and Disney with an aggregate initial public offering price of up to $5,000,000,000 or the equivalent thereof in one or more foreign currencies or composite currencies: (i) senior, senior subordinated or subordinated debt securities, in one or more series (the "Debt Securities"), which may be issued under Indentures (the "Indentures") proposed to be entered into among New Disney, Disney and trustees (the "Trustees") to be appointed prior to the issuance of Debt Securities; (ii) shares of New Disney preferred stock, par value $.10 per share (the "Preferred Stock"), in one or more series, which may also be issued in the form of depositary shares (the "Depositary Shares") evidenced by depositary receipts (the "Receipts"); (iii) warrants to purchase debt securities of New Disney (the "Debt Warrants") to be issued pursuant to a warrant agreement (the "Debt Warrant Agreement") between Disney and a warrant agent (the "Debt Warrant Agent") to be appointed prior to the issuance of Debt Warrants; (iv) warrants to purchase preferred stock of New Disney (the "Preferred Stock Warrants" and, together with the Debt Warrants, the "Warrants") to be issued pursuant to a warrant agreement (the "Preferred Stock Warrant Agreement") between Disney and a warrant agent (the "Preferred Stock Warrant Agent") to be appointed prior to the issuance of Preferred Stock Warrants; and (v) guarantees of the Debt Securities or of the dividends, redemption price or liquidation preference of the Preferred Stock by Disney (the "Guarantees"). The Debt Securities, the Preferred Stock, the Depositary Shares, the Warrants and the Guarantees are collectively referred to herein as the "Offered Securities." This opinion is delivered in accordance with the requirements of Item 601(b)(5) of Regulation S-K promulgated under the Securities Act. We have examined (i) the Registration Statement relating to the Offered Securities; (ii) the forms of the Indentures filed as an exhibit to the Registration Statement; (iii) the form of an underwriting agreement filed as an exhibit to the Registration Statement that may be entered into between or among New Disney and Disney, if applicable, and one or more underwriters to be named therein in connection with any offering of the Debt Securities (the "Debt Underwriting Agreement"); (iv) the form of a distribution agreement filed as an exhibit to the Registration Statement that may be entered into between or among New Disney and Disney, if applicable, and one or more agents to be named therein in connection with the sale of certain Debt Securities (the "Distribution Agreement"); (v) the form of an underwriting agreement filed as an exhibit to the Registration Statement that may be entered into between or among New Disney and Disney, if applicable, and one or more underwriters to be named therein in connection with any offering of Preferred Stock or Depositary Shares (the "Preferred Stock Underwriting Agreement"); (vi) the form of a deposit agreement (the "Deposit Agreement") filed as an exhibit to the Registration Statement that may be entered into among New Disney, a depositary to be appointed by New Disney (the "Depositary") and the holders from time to time of Receipts issued thereunder in connection with any offering of Depositary Shares, including the form of Receipt evidencing the Depositary Shares included as Annex A to the Deposit Agreement; (vii) the Certificate of Incorporation of New Disney, as amended to date, as certified by the Secretary of State of the State of Delaware; (viii) the By-laws of New Disney as currently in effect; (ix) resolutions adopted to date by the Board of Directors of New Disney (the "Board of Directors") relating to the issuance of 2 the Offered Securities; (x) the Certificate of Incorporation of Disney, as amended to date, as certified by the Secretary of State of the State of Delaware; (xi) the By-laws of Disney as currently in effect; and (xii) resolutions adopted to date by the Board of Directors of Disney (the "Disney Board of Directors") relating to the issuance of the Offered Securities and the Guarantees. We have also examined originals or copies, certified or otherwise identified to our satisfaction, of such records of New Disney and Disney and such agreements, certificates of public officials, certificates of officers or other representatives of New Disney, Disney and others, and such other documents, certificates and records as we have deemed necessary or appropriate as a basis for the opinions set forth herein. In our examination, we have assumed the legal capacity of all natural persons, the genuineness of all signatures, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as certified, conformed or photostatic copies and the authenticity of the originals of such latter documents. As to any facts material to the opinions expressed herein which were not independently established or verified, we have relied upon oral or written statements and representations of officers and other representatives of New Disney, Disney and others. Members of our firm are admitted to the Bar in the States of New York and Delaware and we do not express any opinion as to the laws of any other jurisdiction other than the laws of the United States of America to the extent referred to specifically herein. The Offered Securities may be issued from time to time on a delayed or continuous basis, and this opinion is limited to the laws, including the rules and regulations, as in effect on the date hereof. Based upon and subject to the foregoing, we are of the opinion that: 1. Each of the Indentures has been duly authorized and, when executed and delivered by New Disney and Disney and assuming due authorization, execution and delivery by the applicable Trustee, will be a valid and binding agreement, enforceable against New Disney and Disney in accordance with its terms, except to the extent that enforcement thereof may be limited by (a) bankruptcy, insolvency, reorganization, fraudulent transfer, moratorium or other similar laws now or hereafter in effect relating to or affecting creditors' rights generally, (b) general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity), (c) requirements that a claim with respect to any Debt Securities denominated other than in United States dollars (or a judgment denominated other than in United States dollars in respect of such 3 claim) be converted into United States dollars at a rate of exchange prevailing on a date determined pursuant to applicable law, and (d) governmental authority to limit, delay or prohibit the making of payments outside the United States or in foreign currency or composite currency. 2. With respect to any series of Debt Securities (the "Offered Debt Securities"), when (i) if the Offered Debt Securities are to be sold pursuant to a firm commitment underwritten offering, the Debt Underwriting Agreement with respect to the Offered Debt Securities has been duly authorized, executed and delivered by New Disney and the other parties thereto; (ii) if the Offered Debt Securities are to be sold on an agency basis, the Distribution Agreement with respect to the Offered Debt Securities has been duly authorized, executed and delivered by New Disney and the other parties thereto; (iii) the Board of Directors, including any appropriate committee appointed thereby, and appropriate officers of New Disney have taken all necessary corporate action to approve the issuance and terms of the Offered Debt Securities and related matters; (iv) the terms of the Offered Debt Securities and of their issuance and sale have been duly established in conformity with the Indenture so as not to violate any applicable law, the Certificate of Incorporation or By-laws of New Disney or result in a default under or breach of any agreement or instrument binding upon New Disney and so as to comply with any requirement or restriction imposed by any court or governmental body having jurisdiction over New Disney and Disney; (v) the applicable Indenture has been duly executed and delivered by New Disney and the Trustee thereunder; and (vi) the Offered Debt Securities have been duly executed and authenticated in accordance with the provisions of the applicable Indenture and duly delivered to the purchasers thereof upon payment of the agreed-upon consideration therefor, the Offered Debt Securities, when issued and sold in accordance with the applicable Indenture and the related Debt Underwriting Agreement or Distribution Agreement, if any, or any other duly authorized, executed and delivered applicable purchase agreement, will be valid and binding obligations of New Disney, enforceable against New Disney in accordance with their respective terms, except to the extent that enforcement thereof may be limited by (a) bankruptcy, insolvency, reorganization, fraudulent transfer, moratorium or other similar laws now or hereafter in effect relating to or affecting creditors' rights generally, (b) general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in 4 equity), (c) requirements that a claim with respect to any Debt Securities denominated other than in United States dollars (or a judgment denominated other than in United States dollars in respect of such claim) be converted into United States dollars at a rate of exchange prevailing on a date determined pursuant to applicable law, and (d) governmental authority to limit, delay or prohibit the making of payments outside the United States or in foreign currency or composite currency. We note that, as of the date of this opinion, a judgment for money in an action based on a Debt Security denominated in a foreign currency, currency unit or composite currency in a federal or state court in the United States ordinarily would be enforced in the United States only in United States dollars. The date used to determine the rate of conversion of the foreign currency, currency unit or composite currency in which a particular Debt Security is denominated into United States dollars will depend upon various factors, including which court renders the judgment. 3. With respect to the shares of any series of Preferred Stock (the "Offered Preferred Stock"), when (i) if the Offered Preferred Stock is to be sold pursuant to a firm commitment underwritten offering, the Preferred Stock Underwriting Agreement with respect to the shares of the Offered Preferred Stock has been duly authorized, executed and delivered by New Disney and the other parties thereto; (ii) the Board of Directors, including any appropriate committee appointed thereby, and appropriate officers of New Disney have taken all necessary corporate action to approve the issuance and terms of the shares of the Offered Preferred Stock and related matters, including the adoption of a Certificate of Designation for the Offered Preferred Stock in the form required by applicable law (the "Certificate of Designation"); (iii) the filing of the Certificate of Designation with the Secretary of State of the State of Delaware has duly occurred; (iv) the terms of the Offered Preferred Stock and of their issuance and sale have been duly established in conformity with New Disney's Certificate of Incorporation, including the Certificate of Designation and the By-laws of New Disney, so as not to violate any applicable law, the Certificate of Incorporation or By-laws of New Disney or result in a default under or breach of any agreement or instrument binding upon New Disney and so as to comply with any requirement or restriction imposed by any 5 court or governmental body having jurisdiction over New Disney; and (v) certificates representing the shares of the Offered Preferred Stock are duly executed, countersigned, registered and delivered upon payment of the agreed-upon consideration therefor, the shares of the Offered Preferred Stock, when issued and sold in accordance with the related Preferred Stock Underwriting Agreement or any other duly authorized, executed and delivered applicable purchase agreement, will be duly authorized, validly issued, fully paid and nonassessable, provided that the consideration therefor is not less than the par value thereof. 4. With respect to Depositary Shares representing fractional interests in any series of Preferred Stock, when (i) if the Depositary Shares are to be sold pursuant to a firm commitment underwritten offering, the Preferred Stock Underwriting Agreement with respect to the Depositary Shares has been duly authorized, executed and delivered by New Disney and the other parties thereto; (ii) the Board of Directors, including any appropriate committee appointed thereby, and appropriate officers of New Disney have taken all necessary corporate action to approve the issuance and terms of the Depositary Shares and related matters, including the adoption of the Certificate of Designation for the related series of Preferred Stock in the form required by applicable law (the "Underlying Preferred Stock Certificate of Designation"); (iii) the filing of the Underlying Preferred Stock Certificate of Designation with the Secretary of State of the State of Delaware has duly occurred; (iv) the Deposit Agreement has been duly executed and delivered; (v) the Depositary has duly authorized, executed and delivered the Deposit Agreement; (vi) the terms of the Depositary Shares and of their issuance and sale have been duly established in conformity with the Deposit Agreement so as not to violate any applicable law, the Certificate of Incorporation or By-laws of New Disney or result in a default under or breach of any agreement or instrument binding upon New Disney and so as to comply with any requirement or restriction imposed by any court or governmental body having jurisdiction over New Disney; (vii) the related series of Preferred Stock has been duly authorized, validly issued and delivered to the Depositary for deposit in accordance with the laws of the States of Delaware and New York; and (viii) the Receipts evidencing the Depositary Shares are duly issued against the deposit of the Preferred Stock in accordance with the Deposit Agree- 6 ment, such Depositary Shares will be validly issued and the Receipts will entitle the holders thereof to the rights specified therein and in the Deposit Agreement. 5. With respect to any Debt Warrants (the "Offered Debt Warrants"), when (i) if the Offered Debt Warrants are to be sold pursuant to a firm commitment underwritten offering, the Debt Underwriting Agreement with respect to the Offered Debt Warrants has been duly authorized, executed and delivered by New Disney and the other parties thereto; (ii) if the Offered Debt Warrants are to be sold on an agency basis, the Distribution Agreement with respect to the Offered Debt Securities has been duly authorized, executed and delivered by New Disney and the other parties thereto; (iii) the Board of Directors, including any appropriate committee appointed thereby, and appropriate officers of New Disney have taken all necessary corporate action to approve the issuance and terms of the Offered Debt Warrants and related matters; (iv) the terms of the Offered Debt Warrants and of their issuance and sale have been duly established in conformity with the Debt Warrant Agreement so as not to violate any applicable law, the certificate of incorporation or by-laws of New Disney or result in a default under or breach of any agreement or instrument binding upon New Disney and so as to comply with any requirement or restriction imposed by any court or governmental body having jurisdiction over New Disney; (v) the Debt Warrant Agreement has been duly authorized and executed and delivered by New Disney to the Debt Warrant Agent; (vi) the Debt Warrant Agreement has been duly authorized, delivered and executed by the Debt Warrant Agent; and (vii) the Offered Debt Warrants have been duly executed and authenticated in accordance with the provisions of the Debt Warrant Agreement and duly delivered to the purchasers thereof upon payment of the agreed-upon consideration therefor, the Offered Debt Warrants, when issued and sold in accordance with the Debt Warrant Agreement and the related Debt Underwriting Agreement or Distribution Agreement, if any, or any other duly authorized, executed and delivered applicable purchase agreement, will be valid and binding obligations of New Disney, enforceable against New Disney in accordance with their respective terms, except to the extent that enforcement thereof may be limited by (a) bankruptcy, insolvency, reorganization, fraudulent transfer, moratorium or other similar laws now or hereafter in effect relating to or affecting creditors' rights generally, (b) general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity), (c) requirements that a claim with 7 respect to any Debt Warrants to purchase Debt Securities denominated other than in United States dollars (or a judgment denominated other than in United States dollars in respect of such claim) be converted into United States dollars at a rate of exchange prevailing on a date determined pursuant to applicable law, and (d) governmental authority to limit, delay or prohibit the making of payments outside the United States or in foreign currency or composite currency. We note that, as of the date of this opinion, a judgment for money in an action based on a Debt Warrant to purchase a Debt Security denominated in a foreign currency, currency unit or composite currency in a federal or state court in the United States ordinarily would be enforced in the United States only in United States dollars. The date used to determine the rate of conversion of the foreign currency, currency unit or composite currency in which a particular Debt Security is denominated into United States dollars will depend upon various factors, including which court renders the judgment. 6. With respect to any Preferred Stock Warrants (the "Offered Preferred Stock Warrants"), when (i) if the Offered Preferred Stock Warrants are to be sold pursuant to a firm commitment underwritten offering, the Preferred Underwriting Agreement with respect to the Offered Preferred Stock Warrants has been duly authorized, executed and delivered by New Disney and the other parties thereto; (ii) the Board of Directors, including any appropriate committee appointed thereby, and appropriate officers of New Disney have taken all necessary corporate action to approve the issuance and terms of the Offered Preferred Stock Warrants and related matters; (iii) the terms of the Offered Preferred Stock Warrants and of their issuance and sale have been duly established in conformity with the Preferred Stock Warrant Agreement so as not to violate any applicable law, the certificate of incorporation or by-laws of New Disney or result in a default under or breach of any agreement or instrument binding upon New Disney and so as to comply with any requirement or restriction imposed by any court or governmental body having jurisdiction over New Disney; (iv) the Preferred Stock Warrant Agreement has been duly authorized and executed and delivered by New Disney to the Preferred Stock Warrant Agent and (v) the Preferred Stock Warrant Agreement has been duly authorized, delivered and executed by the Preferred Stock Warrant Agent; and (vi) the Offered Preferred Stock Warrants have been duly executed and authen- 8 ticated in accordance with the provisions of the Preferred Stock Warrant Agreement and duly delivered to the purchasers thereof upon payment of the agreed-upon consideration therefor, the Offered Preferred Stock Warrants, when issued and sold in accordance with the Preferred Stock Warrant Agreement and the related Preferred Stock Underwriting Agreement, if any, or any other duly authorized, executed and delivered applicable purchase agreement, will be valid and binding obligations of New Disney, enforceable against New Disney in accordance with their respective terms, except to the extent that enforcement thereof may be limited by (a) bankruptcy, insolvency, reorganization, fraudulent transfer, moratorium or other similar laws now or hereafter in effect relating to or affecting creditors' rights generally, (b) general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity). 7. With respect to any Guarantees, when (i) if such Guarantees relate to Offered Debt Securities which are to be sold pursuant to a firm commitment underwritten offering, the Debt Underwriting Agreement with respect to the Offered Debt Securities has been duly authorized, executed and delivered by Disney and the other parties thereto; (ii) if such Guarantees relate to Offered Debt Securities which are to be sold on an agency basis, the Distribution Agreement with respect to the Offered Debt Securities has been duly authorized, executed and delivered by Disney and the other parties thereto; (iii) if such Guarantees relate to Offered Preferred Stock or a series of preferred stock underlying Depositary Shares which are to be sold pursuant to a firm commitment underwritten offering, the Preferred Stock Underwriting Agreement has been duly authorized, executed and delivered by Disney and the other parties thereto; (iv) the Disney Board of Directors, including any appropriate committee appointed thereby, and appropriate officers of Disney have taken all necessary corporate action to approve the issuance and terms of such Guarantees and related matters; (v) the terms of such Guarantees and of their issuance and sale have been duly established in conformity with the applicable Indenture, in the case of Guarantees relating to Offered Debt Securities, and so as not to violate any applicable law, the Certificate of Incorporation or By-laws of Disney or result in a default under or breach of any agreement or instrument binding upon Disney and so as to comply with any requirement or restriction imposed by any court or governmental body having jurisdiction over Disney; (vi) the applicable Indenture has been duly executed and delivered by Disney to the applicable Trustee; and (vii) such 9 Guarantees have been duly executed and authenticated in accordance with the provisions of the applicable Indenture, in the case of Guarantees relating to Offered Debt Securities, and duly delivered to the purchasers thereof upon payment of the agreed-upon consideration therefor, such Guarantees, when issued and sold in accordance with the Indenture and the related Debt Underwriting Agreement, Distribution Agreement or Preferred Underwriting Agreement, as the case may be, if any, or any other duly authorized, executed and delivered applicable purchase agreement, will be valid and binding obligations of Disney, enforceable against Disney in accordance with their respective terms, except to the extent that enforcement thereof may be limited by (a) bankruptcy, insolvency, reorganization, fraudulent transfer, moratorium or other similar laws now or hereafter in effect relating to or affecting creditors' rights generally, (b) general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity), (c) requirements that a claim with respect to any Debt Securities denominated other than in United States dollars (or a judgment denominated other than in United States dollars in respect of such claim) be converted into United States dollars at a rate of exchange prevailing on a date determined pursuant to applicable law, and (d) governmental authority to limit, delay or prohibit the making of payments outside the United States or in foreign currency or composite currency. We note that, as of the date of this opinion, a judgment for money in an action based on a Guarantee of a Debt Security denominated in a foreign currency, currency unit or composite currency in a federal or state court in the United States ordinarily would be enforced in the United States only in United States dollars. The date used to determine the rate of conversion of the foreign currency, currency unit or composite currency, in which a particular Guarantee of a Debt Security is denominated, into United States dollars will depend upon various factors, including which court renders the judgment. We hereby consent to the filing of this opinion with the Commission as Exhibit 5.1 to the Registration Statement. We also consent to the reference to our firm under the heading "Legal Matters" 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, Skadden, Arps, Slate, Meagher & Flom 10 EX-23.2 7 EXHIBIT 23.2 EXHIBIT 23.2 CONSENT OF INDEPENDENT ACCOUNTANTS We hereby consent to the incorporation by reference in the Prospectus constituting part of this Registration Statement on Form S-3 of our report dated November 21, 1994 appearing on page 25 of The Walt Disney Company's Annual Report on Form 10-K for the year ended September 30, 1994. We also consent to the reference to us under the heading "Experts" in such Prospectus. PRICE WATERHOUSE LLP Los Angeles, California October 27, 1995 EX-23.3 8 EXHIBIT 23.3 EXHIBIT 23.3 CONSENT OF INDEPENDENT AUDITORS We consent to the reference to our firm under the caption "Experts" in Amendment No. 1 to the Registration Statement (Form S-3 No. 62777) dated October 31, 1995 and the related Prospectus of The Walt Disney Company and DC Holdco, Inc. and to the incorporation by reference therein of our reports dated February 28, 1995 with respect to the consolidated financial statements and schedule of Capital Cities/ABC, Inc. included in its Annual Report and Form 10-K for the year ended December 31, 1994, filed with the Securities and Exchange Commission. ERNST & YOUNG LLP New York, New York October 27, 1995 EX-25.1 9 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) ____ ________________________ CITIBANK, N.A. (Exact name of trustee as specified in its charter) 13-5266470 (I.R.S. employer identification no.) 399 Park Avenue, New York, New York 10043 (Address of principal executive office) (Zip Code) _______________________ DC Holdco, Inc. (Exact name of Issuer as specified in its charter) Delaware 95-4545390 (State or other jurisdiction of (I.R.S. employer incorporation or organization) identification no.) 500 South Buena Vista Street Burbank, California 91521 (Address of principal executive offices) (Zip Code) The Walt Disney Company (Exact name of Guarantor as specified in its charter) Delaware 95-0684440 (State or other jurisdiction of (I.R.S. employer incorporation or organization) identification no.) 500 South Buena Vista Street Burbank, California 91521 (Address of principal executive offices) (Zip Code) _________________________ Senior Debt Securities (Title of the indenture securities) 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. Name Address ---- ------- Comptroller of the Currency Washington, D.C. Federal Reserve Bank of New York New York, NY 33 Liberty Street New York, NY Federal Deposit Insurance Corporation Washington, D.C. (b) Whether it is authorized to exercise corporate trust powers. Yes. Item 2. Affiliations with Obligor or Guarantor. If the Obligor or Guarantor is an affiliate of the trustee, describe each such affiliation. None. Item 16. List of Exhibits. List below all exhibits filed as a part of this Statement of Eligibility. Exhibits identified in parentheses below, on file with the Commission, are incorporated herein by reference as exhibits hereto. Exhibit 1 - Copy of Articles of Association of the Trustee, as now in effect. (Exhibit 1 to T-1 to Registration Statement No. 2-79983) Exhibit 2 - Copy of certificate of authority of the Trustee to commence business. (Exhibit 2 to T-1 to Registration Statement No. 2-29577). Exhibit 3 - Copy of authorization of the Trustee to exercise corporate trust powers. (Exhibit 3 to T-1 to Registration Statement No. 2-55519) Exhibit 4 - Copy of existing By-Laws of the Trustee. (Exhibit 4 to T-1 to Registration Statement No. 33-34988) Exhibit 5 - Not applicable. 2 Exhibit 6 - The consent of the Trustee required by Section 321(b) of the Trust Indenture Act of 1939. (Exhibit 6 to T-1 to Registration Statement No. 33-19227.) Exhibit 7 - Copy of the latest Report of Condition of Citibank, N.A. (as of June 30, 1995 - attached) Exhibit 8 - Not applicable. Exhibit 9 - Not applicable. __________________ SIGNATURE Pursuant to the requirements of the Trust Indenture Act of 1939, the Trustee, Citibank, N.A., a national banking association organized and existing under the laws of the United States of America, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in The City of New York and State of New York, on the 26th day of October, 1995. CITIBANK, N.A. By /s/Carol Ng _________________________ Carol Ng Assistant Vice President 3 Charter No. 1461 Comptroller of the Currency Northeastern District REPORT OF CONDITION CONSOLIDATING DOMESTIC AND FOREIGN SUBSIDIARIES OF CITIBANK, N.A. of New York in the State of New York, at the close of business on June 30, 1995, published in response to call made by Comptroller of the Currency, under Title 12, United States Code, Section 161. Charter Number 1461 Comptroller of the Currency Northeastern District.
ASSETS Thousands of dollars Cash and balances due from de- pository institutions: Noninterest-bearing balances and currency and coin . . . . . . . . . . . . . $ 7,397,000 Interest-bearing balances . . . . . . . . . . . 9,242,000 Securities: Held-to-maturity securities . . . . . . . . . . 4,013,000 Available-for-sale securities. . . . . . . . . . . . 12,199,000 Federal funds sold and securities purchased under agreements to resell in domestic offices of the bank and of its Edge and Agree- ment subsidiaries, and in IBFs: Federal funds sold . . . . . . . . . . . . . . 3,468,000 Securities purchased under agreements to resell. . . . . . . . . . . . . . 519,000 Loans and leases financing receiv- ables: Loans and leases, net of un- earned income . . . . . . . .$136,294,000 LESS: Allowance for loan and lease losses. . . . . . . 4,401,000 ------------ Loans and leases, net of un- earned income, allowance, and reserve . . . . . . . . . . . . . . . . . . 131,893,000 Trading assets . . . . . . . . . . . . . . . . . . . 33,328,000 Premises and fixed assets (includ- ing capitalized leases) . . . . . . . . . . . . 3,463,000 Other real estate owned . . . . . . . . . . . . . . 1,299,000 Investments in unconsolidated subsidiaries and associated com- panies. . . . . . . . . . . . . . . . . . . . . 1,039,000 Customers liability to this bank on acceptances outstanding. . . . . . . . . . . 1,408,000 Intangible assets . . . . . . . . . . . . . . . . . 14,000 Other assets . . . . . . . . . . . . . . . . . . . . 7,825,000 -------------- TOTAL ASSETS . . . . . . . . . . . . . . . . . . . . $ 217,107,000 -------------- -------------- LIABILITIES Deposits: In domestic offices . . . . . . . . . . . . . . $ 33,302,000 Noninterest- bearing . . . . . . . . . . $ 11,799,000 Interest- bearing . . . . . . . . . . 21,503,000 ------------ In foreign offices, Edge and Agreement subsidiaries, and IBFs. . . . . . . . . . . . . . . . . . . . . . 116,776,000 Noninterest- bearing . . . . . . . . . . 8,429,000 Interest- bearing . . . . . . . . . . 108,347,000 ----------- Federal funds purchased and se- curities sold under agreements to repurchase in domestic offices of the bank and of its Edge and Agreement subsidiaries, and in IBFs: Federal funds purchased . . . . . . . . . . . . 1,756,000 Securities sold under agree- ments to repurchase . . . . . . . . . . . . . . 675,000 Trading liabilities. . . . . . . . . . . . . . . . . 22,079,000 Other borrowed money: With original maturity of one year or less. . . . . . . . . . . . . . . . . . 8,224,000 With original maturity of more than one year . . . . . . . . . . . . . . . . . 4,321,000 Mortgage indebtedness and obli- gations under capitalized leases. . . . . . . . 107,000 Banks liability on acceptances ex- ecuted and outstanding. . . . . . . . . . . . . 1,418,000 Subordinated notes and debentures . . . . . . . . . . . . . . . . . . . . . 5,700,000 Other liabilities. . . . . . . . . . . . . . . . . . 7,752,000 -------------- TOTAL LIABILITIES. . . . . . . . . . . . . . . . . . $ 202,110,000 -------------- -------------- EQUITY CAPITAL Common stock . . . . . . . . . . . . . . . . . . . . $ 751,000 Surplus. . . . . . . . . . . . . . . . . . . . . . . 6,686,000 Undivided profits and capital re- serves. . . . . . . . . . . . . . . . . . . . . 7,855,000 Net unrealized holding gains (losses) on available-for-sale securities. . . . . . . . 246,000 Cumulative foreign currency translation adjustments . . . . . . . . . . . . (541,000) --------------- TOTAL EQUITY CAPITAL . . . . . . . . . . . . . . . . $ 14,997,000 --------------- TOTAL LIABILITIES, LIMITED- LIFE PREFERRED STOCK, AND EQUITY CAPITAL . . . . . . . . . . . . . . . . $ 217,107,000 --------------- ---------------
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