Exhibit 99.6
REGISTRATION RIGHTS AGREEMENT
Dated as of January 30, 1997
Among
AMERICAN RADIO SYSTEMS CORPORATION
as Issuer
and
CREDIT SUISSE FIRST BOSTON CORPORATION
ALEX. ▇▇▇▇▇ & SONS INCORPORATED
BT SECURITIES CORPORATION
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
▇▇▇▇▇ ▇▇▇▇▇▇ INC.
as Initial Purchasers
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is dated as of
January 30, 1997, among American Radio Systems Corporation, a Delaware
corporation (the "Company"), and Credit Suisse First Boston Corporation, Alex.
▇▇▇▇▇ & Sons Incorporated, BT Securities Corporation, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co.
Incorporated and ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. (individually, an "Initial Purchaser";
together, the "Initial Purchasers").
This Agreement is entered into in connection with the Purchase
Agreement, dated as of January 27, 1997, among the Company and the Initial
Purchasers (the "Purchase Agreement"), which provides for the issuance and sale
by the Company to the Initial Purchasers of the Company's 11 3/8% Cumulative
Exchangeable Preferred Stock, par value $.01 per share (the "Exchangeable
Preferred Stock"). In order to induce the Initial Purchasers to enter into the
Purchase Agreement, the Company has agreed to provide the registration rights
set forth in this Agreement for the benefit of the Initial Purchasers and their
direct and indirect transferees and assigns. The execution and delivery of this
Agreement is a condition to the Initial Purchasers' obligation to purchase the
Exchangeable Preferred Stock under the Purchase Agreement.
The parties hereby agree as follows:
1. Definitions.
As used in this Agreement, the following terms shall have the following
meanings:
Additional Dividends: See Section 4 hereof.
Advice: See Section 5 hereof.
Agreement: See the introductory paragraphs hereto.
Applicable Period: See Section 2(b) hereof.
Certificate of Designation: The Certificate of Designation governing
the Exchangeable Preferred Stock as filed with the Secretary of State of the
State of Delaware, as amended from time to time.
Certificate Shares: See Section 10 hereof.
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Closing Date: The Closing Date as defined in the Purchase
Agreement.
Company: See the first introductory paragraph hereto.
Depositary: The Depository Trust Company until a successor
is appointed by the Company and the Transfer Agent.
Effectiveness Date: The 180th day after the Issue Date or, in the case
of a Shelf Registration Statement that is filed after the 90th day after the
Issue Date in accordance with the terms hereof, the 90th day after a Shelf
Registration Trigger.
Effectiveness Period: See Section 3 hereof.
Event Date: See Section 4 hereof.
Exchange Act: The Securities Exchange Act of 1934, as amended, and the
rules and regulations of the SEC promulgated thereunder.
Exchange Debentures: The Company's 11 3/8% Subordinated Exchange
Debentures due 2009 issuable in exchange for the Exchangeable Preferred Stock or
Exchange Preferred Stock.
Exchange Preferred Stock: See Section 2(a) hereof.
Exchange Offer: See Section 2(a) hereof.
Exchange Registration Statement: See Section 2(a) hereof.
Filing Date: The 90th day after the Issue Date or, in the case of a
Shelf Registration Statement, if later, the 30th day after a Shelf Registration
Trigger.
Global Certificate: See Section 10 hereof.
Holder: Any holder of shares of Registrable Preferred Stock.
Indemnified Person: See Section 7(c) hereof.
Indemnifying Person: See Section 7(c) hereof.
Initial Purchaser: See the first introductory paragraph hereto.
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Initial Purchasers: See the first introductory paragraph hereto.
Initial Shelf Registration: See Section 3(a) hereof.
Inspectors: See Section 5(n) hereof.
Issue Date: The date on which the original Exchangeable Preferred Stock
was issued and sold to the Initial Purchasers pursuant to the Purchase
Agreement.
NASD: See Section 5(r) hereof.
Participant: See Section 7(a) hereof.
Participating Broker-Dealer: See Section 2(b) hereof.
Person: An individual, partnership, corporation, limited liability
company, unincorporated association, trust or joint venture, or a governmental
agency or political subdivision thereof.
Prospectus: The prospectus included in any Registration Statement
(including, without limitation, any prospectus subject to completion and a
prospectus that includes any information previously omitted from a prospectus
filed as part of an effective registration statement in reliance upon Rule 430A
promulgated under the Securities Act), as amended or supplemented by any
prospectus supplement, and all other amendments and supplements to the
Prospectus, including post-effective amendments, and all material incorporated
by reference or deemed to be incorporated by reference in such Prospectus.
Purchase Agreement: See the second introductory paragraph hereto.
Records: See Section 5(n) hereof.
Registrable Preferred Stock: Each share of Exchangeable Preferred Stock
upon original issuance thereof and at all times subsequent thereto and each
share of Exchange Preferred Stock as to which Section 2(c)(iv) hereof is
applicable upon original issuance and at all times subsequent thereto until the
earliest to occur of (i) a Registration Statement (other than, with respect to
any Exchange Preferred Stock as to which Section 2(c)(iv) hereof is applicable,
the Exchange Registration Statement) covering such shares of Exchangeable
Preferred Stock
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or Exchange Preferred Stock, as the case may be, has been declared effective by
the SEC and such shares of Exchangeable Preferred Stock or Exchange Preferred
Stock, as the case may be, have been disposed of in accordance with such
effective Registration Statement, (ii) such shares of Exchangeable Preferred
Stock or Exchange Preferred Stock, as the case may be, are sold in compliance
with Rule 144 or could (except with respect to affiliates of the Company within
the meaning of the Securities Act) be sold in compliance with paragraph (k) of
such Rule 144, (iii) in the case of Exchangeable Preferred Stock, such shares of
Exchangeable Preferred Stock have been exchanged pursuant to an Exchange Offer
for shares of Exchange Preferred Stock that may be resold without restriction
under state and federal securities laws, or (iv) such shares of Exchangeable
Preferred Stock or Exchange Preferred Stock, as the case may be, cease to be
outstanding. For purposes of this Agreement and the registration requirements
contained herein, Registrable Preferred Stock shall be deemed to include, and
all Registration Statements required to be filed in accordance with the terms of
this Agreement shall cover, the Exchange Debentures into which the Exchange
Preferred Stock that is Registrable Preferred Stock is exchangeable.
Registration Statement: Any registration statement of the Company,
including, but not limited to, the Exchange Registration Statement, filed with
the SEC pursuant to the provisions of this Agreement, including the Prospectus,
amendments and supplements to such registration statement, including
post-effective amendments, all exhibits, and all material incorporated by
reference or deemed to be incorporated by reference in such registration
statement.
Rule 144: Rule 144 promulgated under the Securities Act, as such Rule
may be amended from time to time, or any similar rule (other than Rule 144A) or
regulation hereafter adopted by the SEC providing for offers and sales of
securities made in compliance therewith resulting in offers and sales by
subsequent holders that are not affiliates of an issuer of such securities being
free of the registration and prospectus delivery requirements of the Securities
Act.
Rule 144A: Rule 144A promulgated under the Securities Act, as such Rule
may be amended from time to time, or any similar rule (other than Rule 144) or
regulation hereafter adopted by the SEC.
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Rule 415: Rule 415 promulgated under the Securities Act, as such Rule
may be amended from time to time, or any similar rule or regulation hereafter
adopted by the SEC.
SEC: The Securities and Exchange Commission.
Securities Act: The Securities Act of 1933, as amended, and the rules
and regulations of the SEC promulgated thereunder.
Shelf Notice: See Section 2(c) hereof.
Shelf Registration: See Section 3(b) hereof.
Shelf Registration Trigger: See Section 2(c) hereof.
Subsequent Shelf Registration: See Section 3(b) hereof.
Transfer Agent: The Transfer Agent for the Exchangeable Preferred Stock
and/or the Exchange Preferred Stock as the context may require.
Underwritten registration or underwritten offering: A registration in
which securities of the Company are sold to an underwriter for reoffering to the
public.
2. Exchange Offer.
(a) The Company shall file with the SEC no later than the Filing Date,
an offer to exchange (the "Exchange Offer") any and all shares of the
Exchangeable Preferred Stock for a like number of shares (with a liquidation
preference equal to that of the surrendered shares) of another series of
exchangeable preferred stock of the Company that will have terms identical in
all material respects to the Exchangeable Preferred Stock (the "Exchange
Preferred Stock"), except that (i) the Exchange Preferred Stock shall have been
registered pursuant to an effective Registration Statement under the Securities
Act and the certificates therefor shall not contain terms with respect to
transfer restrictions and shall contain no restrictive legend thereon and (ii)
the certificate of designation governing such Exchange Preferred Stock does not
need to contain the provisions set forth in the Certificate of Designation
concerning Additional Dividends including, without limitation, Section 3(c)
thereof. The Exchange Offer shall be registered under the Securities Act on the
appropriate form (the "Exchange Registration Statement") and shall comply in all
material respects with all applicable tender offer rules and regulations under
the Exchange Act. The
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Company agrees to use its best efforts to (x) cause the Exchange Registration
Statement to be declared effective under the Securities Act on or before the
Effectiveness Date; (y) keep the Exchange Offer open for at least 20 business
days (or longer if required by applicable law) after the date that notice of the
Exchange Offer is mailed to Holders; and (z) consummate the Exchange Offer on or
prior to the 225th day following the Issue Date. If after such Exchange
Registration Statement is initially declared effective by the SEC, the Exchange
Offer or the issuance of the Exchange Preferred Stock thereunder is interfered
with by any stop order, injunction or other order or requirement of the SEC or
any other governmental agency or court, such Exchange Registration Statement
shall be deemed not to have become effective for purposes of this Agreement.
Each Holder who participates in the Exchange Offer will be required to represent
that any Exchange Preferred Stock received by it will be acquired in the
ordinary course of its business, that at the time of the consummation of the
Exchange Offer such Holder will have no arrangement or understanding with any
Person to participate in the distribution of the Exchange Preferred Stock in
violation of the provisions of the Securities Act, and that such Holder is not
an affiliate of the Company within the meaning of the Securities Act. Upon
consummation of the Exchange Offer in accordance with this Section 2, the
provisions of this Agreement shall continue to apply, mutatis mutandis, solely
with respect to Exchange Preferred Stock held by Participating Broker-Dealers,
and the Company shall have no further obligation to register Registrable
Preferred Stock (other than in respect of any Exchange Preferred Stock as to
which clause 2(c)(iv) hereof applies) pursuant to Section 3 hereof. No
securities other than the Exchange Preferred Stock (and the Exchange Debentures)
shall be included in the Exchange Registration Statement.
(b) The Company shall include within the Prospectus contained in the
Exchange Registration Statement a section entitled "Plan of Distribution,"
reasonably acceptable to the Initial Purchasers, that shall contain a summary
statement of the positions taken or policies made by the Staff of the SEC with
respect to the potential "underwriter" status of any broker-dealer that is the
beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of Exchange
Preferred Stock received by such broker-dealer (a "Participating Broker-Dealer")
in the Exchange Offer (other than with respect to any shares of Exchangeable
Preferred Stock acquired by them and having, or that is reasonably likely to be
determined to have, the status of an unsold allotment in the initial
distribution), whether such positions or policies have been publicly
disseminated by the
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Staff of the SEC or such positions or policies, in the judgment of the Initial
Purchasers, represent the prevailing views of the Staff of the SEC. Such "Plan
of Distribution" section shall also expressly permit the use of the Prospectus
by all Persons subject to the prospectus delivery requirements of the Securities
Act, including all Participating Broker-Dealers, and include a statement
describing the means by which Participating Broker- Dealers may resell the
Exchange Preferred Stock.
The Company shall use its reasonable best efforts to keep the Exchange
Registration Statement effective and to amend and supplement the Prospectus
contained therein, in order to permit such Prospectus to be lawfully delivered
by all Persons subject to the prospectus delivery requirements of the Securities
Act for such period of time as is necessary to comply with applicable law in
connection with any resale of the Exchange Preferred Stock; provided, however,
that such period shall not exceed 180 days after the Exchange Registration
Statement is declared effective (or such longer period if extended pursuant to
the penultimate paragraph of Section 5 hereof) (the "Applicable Period").
Dividends on the Exchange Preferred Stock will accumulate from the last
dividend payment date on which dividends were paid (or deemed paid through the
issuance of additional shares) on the Exchangeable Preferred Stock surrendered
in exchange therefor or, if no dividends have been paid (or deemed to have been
paid through the issuance of additional shares) on the Exchangeable Preferred
Stock, from the Issue Date.
In connection with the Exchange Offer, the Company shall:
(1) mail to each Holder a copy of the Prospectus forming part
of the Exchange Registration Statement, together with an appropriate
letter of transmittal and related documents;
(2) utilize the services of a depositary for the
Exchange Offer with an address in the Borough of
Manhattan, The City of New York;
(3) permit Holders to withdraw tendered shares of Exchangeable
Preferred Stock at any time prior to the close of business, New York
time, on the last business day on which the Exchange Offer shall remain
open; and
(4) otherwise comply in all material respects
with all applicable laws, rules and regulations.
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As soon as practicable after the close of the Exchange Offer the
Company shall:
(1) accept for exchange all shares of
Exchangeable Preferred Stock tendered and not validly
withdrawn pursuant to the Exchange Offer;
(2) deliver to the Transfer Agent for
cancellation and retirement certificates representing
all shares of Exchangeable Preferred Stock so accepted
for exchange; and
(3) cause the Transfer Agent to countersign and deliver
promptly to each Holder of shares of Exchangeable Preferred Stock,
certificates for the shares of Exchange Preferred Stock equal in
liquidation preference to the shares of Exchangeable Preferred Stock of
such Holder so accepted for exchange.
(c) If, (i) because of any change in law or in currently prevailing
interpretations of the Staff of the SEC, the Company is not permitted to effect
an Exchange Offer, (ii) the Exchange Offer is not consummated within 225 days of
the Issue Date, (iii) the Holders of not less than a majority of shares of the
Registrable Preferred Stock determine that the interests of the Holders would be
adversely affected by consummation of the Exchange Offer (in which event the
Company shall not proceed with or consummate the Exchange Offer), or (iv) upon
determination by the Corporation, or in the absence of such determination, upon
notification by the relevant Holder, that any Holder is unable to participate in
the Exchange Offer or that, after the Exchange Offer, a Holder would not receive
Exchange Preferred Stock on the date of the exchange that may be sold without
restriction under state and federal securities laws (other than due solely to
the status of such Holder as an affiliate of the Company within the meaning of
the Securities Act), then in the case of each of clauses (i) to and including
(iv) of this sentence (each event described in such clauses, a "Shelf
Registration Trigger"), the Company shall promptly deliver to the Holders
written notice thereof (the "Shelf Notice") and shall file a Shelf Registration
pursuant to Section 3 hereof.
(d) Anything in this Section to the contrary notwithstanding, the
Company shall not be required to (i) file or have declared effective any
Exchange Registration Statement (ii) proceed with or consummate any Exchange
Offer or (iii) otherwise comply with the provisions of this Section 2, if a
Shelf
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Registration Trigger of the nature described in Section 2(c)(iii) shall have
occurred.
3. Shelf Registration
Upon the occurrence of a Shelf Registration Trigger:
(a) Shelf Registration. The Company shall as promptly as reasonably
practicable file with the SEC a Registration Statement for an offering to be
made on a continuous basis pursuant to Rule 415 covering all of the Registrable
Preferred Stock or, in the case of a Shelf Registration Trigger pursuant to
clause (iv), such shares as are the subject of the Company's determination or
held by such Holder as described therein (the "Initial Shelf Registration"). The
Company shall use its best efforts to file with the SEC the Initial Shelf
Registration on or prior to the Filing Date. The Initial Shelf Registration
shall be on Form S-1 or another appropriate form permitting registration of such
Registrable Preferred Stock for resale by Holders in the manner or manners
designated by them (including, without limitation, one or more underwritten
offerings). The Company shall not permit any securities other than the
Registrable Preferred Stock to be included in the Initial Shelf Registration or
any Subsequent Shelf Registration (as defined below).
The Company shall use its best efforts to cause the Initial Shelf
Registration to be declared effective under the Securities Act on or prior to
the Effectiveness Date and to keep the Initial Shelf Registration continuously
effective under the Securities Act until the date that is 36 months from the
Effectiveness Date, subject to extension pursuant to the last paragraph of
Section 5 hereof, or such shorter period ending when (i) all the shares of
Registrable Preferred Stock covered by the Initial Shelf Registration have been
sold in the manner set forth and as con templated in the Initial Shelf
Registration, (ii) the date on which all the Exchangeable Preferred Stock held
by persons who are not affiliates of the Company may be resold pursuant to Rule
144(k) under the Securities Act, or (iii) a Subsequent Shelf Registration
covering all of the Registrable Preferred Stock has been declared effective
under the Securities Act (the "Effectiveness Period").
(b) Subsequent Shelf Registrations. If the Initial Shelf Registration
or any Subsequent Shelf Registration ceases to be effective for any reason at
any time during the Effectiveness Period (other than because of the sale of all
of the securities registered thereunder), the Company shall use its reasonable
best
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efforts to obtain the prompt withdrawal of any order suspending the
effectiveness thereof, and in any event shall within 45 days of such cessation
of effectiveness amend the Initial Shelf Registration in a manner to obtain the
withdrawal of the order suspending the effectiveness thereof, or file an
additional "shelf" Registration Statement pursuant to Rule 415 covering all of
the Registrable Preferred Stock (a "Subsequent Shelf Registration"). If a
Subsequent Shelf Registration is filed, the Company shall use its reasonable
best efforts to cause the Subsequent Shelf Registration to be declared effective
under the Securities Act as soon as practicable after such filing and to keep
such Registration Statement continuously effective for a period equal to the
number of days in the Effectiveness Period less the aggregate number of days
during which the Initial Shelf Registration or any Subsequent Shelf Registration
was previously continuously effective or, if less, the number of days until
there are no shares of Registrable Preferred Stock outstanding. As used herein
the term "Shelf Registration" means the Initial Shelf Registration and any
Subsequent Shelf Registration.
(c) Supplements and Amendments. The Company shall promptly supplement
and amend the Shelf Registration if required by the rules, regulations or
instructions applicable to the registration form used for such Shelf
Registration, if required by the Securities Act, or if reasonably requested by
the Holders of a majority of shares of the Registrable Preferred Stock covered
by such Registration Statement or by any underwriter of such Registrable
Preferred Stock.
4. Additional Dividends
The Company and the Initial Purchasers agree that the Holders of
Exchangeable Preferred Stock will suffer damages if the Company fails to fulfill
its obligations under Section 2 or Section 3 hereof and that it would not be
feasible to ascertain the extent of such damages with precision. Accordingly,
the Company agrees to pay, as liquidated damages, additional dividends on the
Exchangeable Preferred Stock ("Additional Dividends") under the circumstances
and to the extent set forth in the Certificate of Designation. The Company shall
notify the Transfer Agent within one business day after each and every date on
which an event occurs in respect of which Additional Dividends are required to
be paid (an "Event Date"). Any Additional Dividends will be payable in
accordance with the Certificate of Designation on the next following dividend
payment date.
5. Registration Procedures
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In connection with the filing of any Registration Statement pursuant to
Sections 2 or 3 hereof, the Company shall effect such registrations to permit
the sale of the securities covered thereby in accordance with the intended
method or methods of disposition thereof, and pursuant thereto and in connection
with any Registration Statement filed by the Company hereunder the Company
shall:
(a) Prepare and file with the SEC prior to the Filing Date, a
Registration Statement or Registration Statements as prescribed by Sections 2 or
3 hereof, and use its best efforts to cause each such Registration Statement to
become effective and remain effective as provided herein; provided, however,
that, if (1) such filing is pursuant to Section 3 hereof, or (2) a Prospectus
contained in an Exchange Registration Statement filed pursuant to Section 2
hereof is required to be delivered under the Securities Act by any Participating
Broker-Dealer who seeks to sell Exchange Preferred Stock during the Applicable
Period, before filing any Registration Statement or Prospectus or any amendments
or supplements thereto, the Company shall furnish to and afford the Holders of
the Registrable Preferred Stock covered by such Registration Statement or each
such Participating Broker-Dealer, as the case may be, their counsel and the
managing underwriters, if any, a reasonable opportunity to review copies of all
such documents (including copies of any documents to be incorporated by
reference therein and all exhibits thereto) proposed to be filed (in each case
where possible at least five business days prior to such filing and where not
possible as promptly as possible). The Company shall not file any Registration
Statement or Prospectus or any amendments or supplements thereto if the Holders
of a majority in aggregate principal amount of the shares of Registrable
Preferred Stock covered by such Registration Statement, or any such
Participating Broker-Dealer, as the case may be, their counsel, or the managing
underwriters, if any, shall reasonably object.
(b) Prepare and file with the SEC such amendments and post-effective
amendments to each Shelf Registration or Exchange Registration Statement, as the
case may be, as may be necessary to keep such Registration Statement
continuously effective for the Effectiveness Period or the Applicable Period, as
the case may be; cause the related Prospectus to be supplemented by any
Prospectus supplement required by applicable law, and as so supplemented to be
filed pursuant to Rule 424 (or any similar provisions then in force) promulgated
under the Securities Act; and comply with the provisions of the Securities Act
and the Exchange Act applicable to it with respect to the disposition of
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all securities covered by such Registration Statement as so amended or in such
Prospectus as so supplemented and with respect to the subsequent resale of any
securities being sold by a Participating Broker-Dealer covered by any such
Prospectus. The Company shall be deemed not to have used its reasonable best
efforts to keep a Registration Statement effective during the Applicable Period
if it voluntarily takes any action that would result in selling Holders of the
Registrable Preferred Stock covered thereby or Participating Broker-Dealers
seeking to sell Exchange Preferred Stock not being able to sell such Registrable
Preferred Stock or such Exchange Preferred Stock during that period unless such
action is required by applicable law or unless the Company complies with this
Agreement, including without limitation, the provisions of paragraph 5(k) hereof
and the penultimate paragraph of this Section 5.
(c) If (1) a Shelf Registration is filed pursuant to Section 3 hereof,
or (2) a Prospectus contained in an Exchange Registration Statement filed
pursuant to Section 2 hereof is required to be delivered under the Securities
Act by any Participating Broker-Dealer who seeks to sell Exchange Preferred
Stock during the Applicable Period, notify the selling Holders of shares of
Registrable Preferred Stock, or each such Participating Broker-Dealer, as the
case may be, their counsel and the managing underwriters, if any, promptly (but
in any event within two business days), and confirm such notice in writing, (i)
when a Prospectus or any Prospectus supplement or post-effective amendment has
been filed, and, with respect to a Registration Statement or any post-effective
amendment, when the same has become effective under the Securities Act
(including in such notice a written statement that any Holder may, upon request,
obtain, at the sole expense of the Company, one conformed copy of such
Registration Statement or post-effective amendment including financial
statements and schedules, documents incorporated or deemed to be incorporated by
reference and exhibits), (ii) (A) of the receipt of any written comments by the
SEC or its staff, (B) of the request by the SEC or its staff for amendments or
supplements to a Registration Statement of a Prospectus, or (C) of the issuance
by the SEC of any stop order suspending the effectiveness of a Registration
Statement or of any order preventing or suspending the use of any preliminary
prospectus or the initiation of any proceedings for that purpose, (iii) if at
any time when a prospectus is required by the Securities Act to be delivered in
connection with sales of the Registrable Preferred Stock or resales of Exchange
Preferred Stock by Participating Broker-Dealers the representations and
warranties of the Company contained in any agreement (including any
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underwriting agreement), contemplated by Section 5(m) hereof cease to be true
and correct in all material respects, (iv) of the receipt by the Company of any
notification with respect to the suspension of the qualification or exemption
from qualifi cation of a Registration Statement or any of the Registrable
Preferred Stock to be sold by any Participating Broker-Dealer for offer or sale
in any jurisdiction or the initiation or threatening of any proceeding for such
purpose, (v) of the happening of any event, the existence of any condition or
any information becoming known that makes any statement made in such
Registration Statement or related Prospectus or any document incorporated or
deemed to be incorporated therein by reference untrue in any material respect or
that requires the making of any changes in or amendments or supplements to such
Registration Statement, Prospectus or documents so that, in the case of the
Registration Statement, it will not contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, and that in the case of
the Prospectus, it will not contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading and (vi) of the Company's determination that a
post-effective amendment to a Registration Statement would be appropriate.
(d) If (1) a Shelf Registration is filed pursuant to Section 3 hereof,
or (2) a Prospectus contained in an Exchange Registration Statement filed
pursuant to Section 2 hereof is required to be delivered under the Securities
Act by any Participating Broker-Dealer who seeks to sell Exchange Preferred
Stock during the Applicable Period, use its reasonable best efforts to prevent
the issuance of any order suspending the effectiveness of a Registration
Statement or of any order preventing or suspending the use of a Prospectus or
suspending the qualification (or exemption from qualification) of any of the
Registrable Preferred Stock to be sold by any Participating Broker-Dealer, for
sale in any jurisdiction and, if any such order is issued, to use its reasonable
best efforts to obtain the withdrawal of any such order at the earliest possible
moment.
(e) If a Shelf Registration is filed pursuant to Section 3 and if
requested by the managing underwriter or underwriters (if any), or the Holders
of a majority of shares of the Registrable Preferred Stock being sold in
connection with an underwritten offering or any Participating Broker-Dealer, (i)
promptly incorporate in a prospectus supplement or post-effective
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amendment such information as the managing underwriter or underwriters (if any),
such Holders, any Participating Broker- Dealer or counsel for any of them
determine is reasonably necessary to be included therein, (ii) make all required
filings of such prospectus supplement or such post-effective amendment as soon
as practicable after the Company has received notification of the matters to be
incorporated in such prospectus supplement or post-effective amendment and (iii)
supplement or make amendments to such Registration Statement.
(f) If (1) a Shelf Registration is filed pursuant to Section 3 hereof,
or (2) a Prospectus contained in an Exchange Registration Statement filed
pursuant to Section 2 hereof is required to be delivered under the Securities
Act by any Participating Broker-Dealer who seeks to sell Exchange Preferred
Stock during the Applicable Period, furnish to each selling Holder of
Registrable Preferred Stock and to each such Partici pating Broker-Dealer who so
requests and to counsel and each managing underwriter, if any, at the sole
expense of the Company, one conformed copy of the Registration Statement or
Registration Statements and each post-effective amendment thereto, including
financial statements and schedules, and, if requested, all documents
incorporated or deemed to be incorporated therein by reference and all exhibits.
(g) If (1) a Shelf Registration is filed pursuant to Section 3 hereof,
or (2) a Prospectus contained in an Exchange Registration Statement filed
pursuant to Section 2 hereof is required to be delivered under the Securities
Act by any Par ticipating Broker-Dealer who seeks to sell Exchange Preferred
Stock during the Applicable Period, deliver to each selling Holder of
Registrable Preferred Stock, or each such Participating Broker-Dealer, as the
case may be, their respective counsel, and the underwriters, if any, at the sole
expense of the Company, as many copies of the Prospectus (including each form of
preliminary prospectus) and each amendment or supplement thereto and any
documents incorporated by reference therein as such Persons may reasonably
request; and, subject to the penultimate paragraph of this Section 5, the
Company hereby consents to the use of such Prospectus and each amendment or
supplement thereto by each of the selling Holders of Registrable Preferred Stock
or each such Participating Broker-Dealer, as the case may be, and the
underwriters or agents, if any, and dealers (if any), in connection with the
offering and sale of the Registrable Preferred Stock covered by, or the sale by
Participating Broker- Dealers of the Exchange Preferred Stock pursuant to, such
Prospectus and any amendment or supplement thereto.
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(h) Prior to any public offering of Registrable Preferred Stock or any
delivery of a Prospectus contained in the Exchange Registration Statement by any
Participating Broker-Dealer who seeks to sell Exchange Preferred Stock during
the Applicable Period, to use its reasonable best efforts to register or
qualify, to the extent required by applicable law, and to cooperate with the
selling Holders of a Registrable Preferred Stock or each such Participating
Broker-Dealer, as the case may be, the managing underwriter or underwriters, if
any, and their respective counsel in connection with the registration or
qualification (or exemption from such registration or qualification) of such
Registrable Preferred Stock or offer and sale under the securities or Blue Sky
laws of such jurisdictions within the United States as any selling Holder,
Participating Broker-Dealer, or the managing underwriter or underwriters
reasonably request; provided, however, that where Exchange Preferred Stock held
by Participating Broker-Dealers or Registrable Preferred Stock is offered other
than through an underwritten offering, the Company agrees to cause the Company's
counsel to perform Blue Sky investigations and file registrations and
qualifications required to be filed pursuant to this Section 5(h); keep each
such registration or qualification (or exemption therefrom) effective during the
period such Registration Statement is required to be kept effective and do any
and all other acts or things reasonably necessary or advisable to enable the
disposition in such jurisdictions of the Exchange Preferred Stock held by
Participating Broker-Dealers or the Registrable Preferred Stock covered by the
applicable Registration Statement; provided, however, that the Company shall not
be required to qualify as a foreign corporation or to execute a general consent
to service of process in any jurisdiction or subject itself to taxation
generally in any jurisdiction.
(i) If a Shelf Registration is filed pursuant to Section 3 hereof,
cooperate with the selling Holders of Registrable Preferred Stock and the
managing underwriter or underwriters, if any, to facilitate the timely
preparation and delivery of certificates representing shares of Registrable
Preferred Stock to be sold, which certificates shall not bear any restrictive
legends and shall be in a form eligible for deposit with The Depository Trust
Company; and enable such shares of Registrable Preferred Stock to be in such
denominations and registered in such names as the managing underwriter or
underwriters, if any, or Holders may reasonably request.
(j) Use its reasonable best efforts to cause the Registrable Preferred
Stock covered by the Shelf Registration
-15-
Statement or Exchange Registration Statement to be registered with or approved
by such other governmental agencies or authorities as may be necessary to enable
the seller or sellers thereof or the underwriter or underwriters, if any, to
consummate the disposition of such Registrable Preferred Stock, except as may be
required solely as a consequence of the nature of such selling Holder's
business, in which case the Company will cooperate in all reasonable respects
with the filing of such Registration Statement and the granting of such
approvals.
(k) If (1) a Shelf Registration is filed pursuant to Section 3 hereof,
or (2) a Prospectus contained in an Exchange Registration Statement filed
pursuant to Section 2 hereof is required to be delivered under the Securities
Act by any Participating Broker-Dealer who seeks to sell Exchange Preferred
Stock during the Applicable Period, upon the occurrence of any event
contemplated by paragraph 5(c)(ii)(C), 5(c)(v) or 5(c)(vi) hereof, as promptly
as practicable prepare and (subject to Section 5(a) hereof) file with the SEC,
at the sole expense of the Company, a Supplement or post-effective amendment to
the Registration Statement or a supplement to the related Prospectus or any
document incorporated or deemed to be incorporated therein by reference, or file
any other required document so that, as thereafter delivered to the purchasers
of the Registrable Preferred Stock being sold thereunder or to the purchasers of
the Exchange Preferred Stock to whom such Prospectus will be deliv ered by a
Participating Broker-Dealer, any such Prospectus will not contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(l) Prior to the effective date of the first Registration Statement
relating to the Registrable Preferred Stock, (i) provide the Transfer Agent with
certificates for the Registrable Preferred Stock in a form eligible for deposit
with The Depository Trust Company and (ii) provide a CUSIP number for the
Registrable Preferred Stock.
(m) In connection with any underwritten offering of Registrable
Preferred Stock pursuant to a Shelf Registration, enter into an underwriting
agreement as is customary in underwritten offerings of preferred stock similar
to the Exchangeable Preferred Stock and take all such other actions as are
reasonably requested by the managing underwriter or underwriters; in order to
expedite or facilitate the registration or the disposition of such Registrable
Preferred Stock and, in
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such connection, (i) make such representations and warranties to, and covenants
with, the underwriters with respect to the business of the Company and its
subsidiaries (including any acquired business, properties or entity, if
applicable) and the Registration Statement, Prospectus and documents, if any,
incorporated or deemed to be incorporated by reference therein, in each case, as
are customarily made by issuers to underwriters in underwritten offerings of
preferred stock similar to the Exchangeable Preferred Stock, and confirm the
same in writing if and when requested; (ii) obtain the written opinion of
counsel to the Company and written updates thereof in form, scope and substance
reasonably satisfactory to the managing underwriter or underwriters, addressed
to the underwriters covering the matters customarily covered in opinions
requested in underwritten offerings of preferred stock similar to the
Exchangeable Preferred Stock and such other matters as may be reasonably
requested by the managing underwriter or underwriters; (iii) obtain "cold
comfort" letters and updates thereof in form, scope and substance reasonably
satisfactory to the managing underwriter or underwriters from the independent
certified public accountants of the Company (and, if necessary, any other
independent certified public accountants of any subsidiary the Company or of any
business acquired by the Company for which financial statements and financial
data are, or are required to be, included or incorporated by reference in the
Registration Statement), addressed to each of the underwriters, such letters to
be in customary form and covering matters of the type customarily covered in
"cold comfort" letters in connection with underwritten offerings of preferred
stock similar to the Exchangeable Preferred Stock and such other matters as
reasonably requested by the managing underwriter or underwriters; and (iv) if an
underwriting agreement is entered into, the same shall contain indemnification
provisions and procedures no less favorable than those set forth in Section 7
hereof (or such other provisions and procedures acceptable to Holders of a
majority in aggregate principal amount of shares of Registrable Preferred Stock
covered by such Registration Statement and the managing underwriter or
underwriters or agents) with respect to all parties to be indemnified pursuant
to said Section. The above shall be done at each closing under such underwriting
agreement, or as and to the extent required thereunder.
(n) If (1) a Shelf Registration is filed pursuant to Section 3 hereof,
or (2) a Prospectus contained in an Exchange Registration Statement filed
pursuant to Section 2 hereof is required to be delivered under the Securities
Act by any Participating Broker-Dealer who seeks to sell Exchange Preferred
-17-
Stock during the Applicable Period, make available for inspection by any selling
Holder of such Registrable Preferred Stock being sold, or each such
Participating Broker-Dealer, as the case may be, any underwriter participating
in any such disposition of Registrable Preferred Stock, if any, and any
attorney, accountant or other agent retained by any such selling Holder or each
such Participating Broker-Dealer, as the case may be, or underwriter
(collectively, the "Inspectors"), at the offices where normally kept, during
reasonable business hours at such time or times as shall be mutually convenient
for the Company and the Inspectors as a group, all financial and other records,
pertinent corporate documents and instruments of the Company and its
subsidiaries (collectively, the "Records") as shall be reasonably necessary to
enable them to exercise any applicable due diligence responsibilities, and cause
the officers, directors and employees of the Company and its subsidiaries to
supply all information reasonably requested by any such Inspector in connection
with such Registration Statement. Records that the Company determines, in good
faith, to be confidential and any Records that it notifies the Inspectors are
confidential shall not be disclosed by any Inspector unless (i) the disclosure
of such Records is necessary to avoid or correct a misstatement or omission in
such Registration Statement, (ii) the release of such Records is ordered
pursuant to a subpoena or other order from a court of competent jurisdiction,
(iii) disclosure of such information is, in the opinion of counsel for any
Inspector, necessary or advisable in connection with any action, claim, suit or
proceeding, directly, involving or potentially involving such Inspector and
arising out of, based upon, relating to, or involving this Agreement or any
transactions contemplated hereby or arising hereunder or (iv) the information in
such Records has been made generally available to the public other than through
the acts of such Inspector. Each selling Holder of such Registrable Securities
and each such Participating Broker-Dealer will be required to agree that
information obtained by it as a result of such inspections shall be deemed
confidential and shall not be used by it as the basis for any market
transactions in the securities of the Company unless and until such information
is generally available to the public. Each selling Holder of such Registrable
Preferred Stock and each such Participating Broker- Dealer will be required to
further agree that it will, upon learning that disclosure of such Records is
sought in a court of competent jurisdiction, give notice to the Company and
allow the Company to undertake appropriate action to prevent disclosure of the
Records deemed confidential at the Company's sole expense.
-18-
(o) Provide (A) the Holders of the Registrable Preferred Stock to be
included in such registration statement and not more than one counsel for all
the Holders of such Registrable Preferred Stock, (B) the underwriters (which
term, for purposes of this Exchange and Registration Rights Agreement, shall
include a person deemed to be an underwriter within the meaning of Section 2(11)
of the Securities Act), if any, thereof, (C) the sales or placement agent, if
any, thereof, (D) each Participating Broker-Dealer, and (E) one counsel for such
underwriters or agents and Participating Broker-Dealers, if any, reasonable
opportunity to participate in the preparation of such registration statement,
each prospectus included therein or filed with the Commission, and each
amendment or supplement thereto;
(p) Comply with all applicable rules and regulations of the SEC and
make generally available to its securityholders earning statements satisfying
the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder
(or any similar rule promulgated under the Securities Act) no later than 45 days
after the end of any 12-month period (or 90 days after the end of any 12-month
period if such period is a fiscal year) (i) commencing at the end of any fiscal
quarter in which Registrable Preferred Stock is sold to underwriters in a firm
commitment or best efforts underwritten offering and (ii) if not sold to
underwriters in such an offering, commencing on the first day of the first
fiscal quarter of the Company after the effective date of a Registration
Statement, which statements shall cover said 12-month periods.
(q) Upon consummation of an Exchange Offer, obtain an opinion of
counsel to the Company, in a form customary for underwritten transactions,
addressed to the Transfer Agent for the benefit of all Holders of Registrable
Preferred Stock participating in the Exchange Offer that the Exchange Preferred
Stock is duly authorized, validly issued, fully paid and non-assessable.
(r) If an Exchange Offer is to be consummated, upon delivery of shares
of Registrable Preferred Stock by Holders to the Company (or to such other
Person as directed by the Company) in exchange for shares of Exchange Preferred
Stock, the Company shall ▇▇▇▇, or cause to be marked, on the certificates
representing such shares of Registrable Preferred Stock that such shares of
Registrable Preferred Stock are being cancelled in exchange for the Exchange
Preferred Stock.
-19-
(s) Cooperate with each seller of Registrable Preferred Stock covered
by any Registration Statement and each underwriter, if any, participating in the
disposition of such Registrable Preferred Stock and their respective counsel in
connection with any filings required to be made with the National Association of
Securities Dealers, Inc. (the "NASD"), including if the Rules of Fair Practice
and the By-Laws of the NASD or any successor thereto, as amended from time to
time (including Schedule E thereto) so require, engaging a "qualified
independent underwriter" ("QIU") as contemplated therein and making Records
available to such QIU as though it were a participating underwriter for the
purposes of Section 5(n) and otherwise applying the provisions of this Agreement
to such QIU (including indemnification) as though it were a participating
underwriter.
(t) Provide an indenture trustee for the Exchange Indenture (as defined
in the Purchase Agreement) and cause the Exchange Indenture to be qualified
under the TIA not later than the effective date of the Exchange Offer or the
first Registration Statement relating to the Registrable Preferred Stock; and in
connection therewith, cooperate with the trustee under the Exchange Indenture
and the Holders of the Registrable Preferred Stock to effect such changes to
such indenture as may be required for such indenture to be so qualified in
accordance with the terms of the TIA; and execute, and use its best efforts to
cause such trustee to execute, all documents as may be required to effect such
changes, and all other forms and documents required to be filed with the SEC to
enable the Exchange Indenture to be so qualified in a timely manner.
(u) Use its reasonable best efforts to cause the Registrable Preferred
Stock covered by a Registration Statement or the Exchange Preferred Stock, as
the case may be, to be rated with the appropriate rating agencies, if so
requested by the Holders of a majority of shares of Registrable Preferred Stock
covered by such Registration Statement or the Exchange Preferred Stock, as the
case may be, or the managing underwriter or underwriters, if any.
(v) Use its best efforts to take all other steps necessary or advisable
to effect the registration of the Exchange Preferred Stock and/or Registrable
Preferred Stock covered by a Registration Statement contemplated hereby.
The Company may require each seller of Registrable Preferred Stock as
to which any registration is being effected to furnish to the Company such
information regarding such seller and the
-20-
distribution of such Registrable Preferred Stock as the Company may, from time
to time, reasonably request to the extent necessary to comply with the
Securities Act. The Company may exclude from such registration the Registrable
Preferred Stock of any seller who unreasonably fails to furnish such information
within a reasonable time after receiving such request. Each seller as to which
any Shelf Registration is being effected agrees to furnish promptly to the
Company all information required to be disclosed in order to make the
information previously furnished to the Company by such seller not materially
misleading or to omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading in light of the
circumstances under which they were made.
Each Holder of Registrable Preferred Stock and each Participating
Broker-Dealer agrees by acquisition of such Registrable Preferred Stock or
Exchange Preferred Stock to be sold by such Participating Broker-Dealer, as the
case may be, that, upon actual receipt of any notice from the Company of the
happening of any event of the kind described in Section 5(c)(ii)(C), 5(c)(iv),
5(c)(v), or 5(c)(vi) hereof, such Holder will forthwith discontinue disposition
of such Registrable Preferred Stock covered by such Registration Statement or
Prospectus or Exchange Preferred Stock to be sold by such Holder or
Participating Broker-Dealer, as the case may be, until such Holder's or
Participating Broker-Dealer's receipt of the copies of the supplemented or
amended Prospectus contemplated by Section 5(k) hereof, or until it is advised
in writing (the "Advice") by the Company that the use of the applicable
Prospectus may be resumed, and has received copies of any amendments or
supplements thereto. In the event the Company shall give any such notice, each
of the Effectiveness Period and the Applicable Period shall be extended by the
number of days during such periods from and including the date of the giving of
such notice to and including the date when each seller of Registrable Preferred
Stock covered by such Registration Statement or Exchange Preferred Stock to be
sold by such Participating Broker-Dealer, as the case may be, shall have
received (x) the copies of the supplemented or amended Prospectus contemplated
by Section 5(k) hereof or (y) the Advice.
6. Registration Expenses
(a) All fees and expenses incident to the performance of or
compliance with this Agreement by the Company shall be borne by the Company
whether or not the Exchange Offer or a Shelf Registration is filed or becomes
effective, including, without
-21-
limitation, (i) all registration and filing fees (including, without limitation,
(A) fees with respect to filings required to be made with the NASD in connection
with an underwritten offering and (B) fees and expenses of compliance with state
securities or Blue Sky laws (including, without limitation, reasonable fees and
disbursements of counsel in connection with Blue Sky qualifications of the
Registrable Preferred Stock and determination of the eligibility of the
Registrable Preferred Stock for investment under the laws of such jurisdictions
as provided in Section 5(h) hereof, in the case of Registrable Preferred Stock
or Exchange Preferred Stock to be sold by a Participating Broker-Dealer during
the Applicable Period)), (ii) printing expenses, including, without limitation,
expenses of printing certificates for Registrable Preferred Stock in a form
eligible for deposit with The Depository Trust Company and of printing
prospectuses if the printing of prospectuses is requested by the managing
underwriter or underwriters, if any, by the Holders of a majority of shares of
the Registrable Preferred Stock included in any Registration Statement or sold
by any Participating Broker-Dealer as the case may be, (iii) messenger,
telephone and delivery expenses, (iv) fees and disbursements of counsel for the
Company and fees and disbursements of special counsel for the sellers of
Registrable Preferred Stock (subject to the provisions of Section 6(b) hereof),
(v) fees and disbursements of all independent certified public accountants
referred to in Section 5(m)(iii) hereof (including, without limitation, the
expenses of any special audit and "cold comfort" letters required by or incident
to such performance), (vi) rating agency fees, (vii) Securities Act liability
insurance, if the Company desires such insurance, (viii) fees and expenses of
all other Persons retained by the Company, (ix) internal expenses of the Company
(including, without limitation, all salaries and expenses of officers and
employees of the Company performing legal or accounting duties), (x) the expense
of any annual audit, (xi) the fees and expenses incurred in connection with the
listing of the securities to be registered on any securities exchange, if
applicable, and (xii) the expenses relating to printing, word processing and
distributing all Registration Statements, underwriting agreements, securities
sales agreements, indentures and any other documents necessary in order to
comply with this Agreement.
(b) The Company shall reimburse the Holders of the Registrable
Preferred Stock being registered in a Shelf Regis tration for the reasonable
fees and disbursements of not more than one counsel (in addition to appropriate
local counsel) chosen by the Holders of a majority of shares of the Registrable
-22-
Preferred Stock to be included in such Registration Statement and other
reasonable out-of-pocket expenses of such Holders of Registrable Preferred Stock
incurred in connection with the registration and sale of the Registrable
Preferred Stock pursuant to the Exchange Offer.
7. Indemnification
(a) The Company will indemnify and hold harmless each Holder of
Registrable Preferred Stock, each Person that participates as an underwriter or
sales agent in any sale of such Registered Preferred Stock and each
Participating Broker-Dealer selling Exchange Preferred Stock during the
Applicable Period (each a "Participant") against any losses, claims, damages or
liabilities, joint or several, to which such Participant may become subject,
under the Securities Act or the Exchange Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of any
material fact contained in any Registration Statement or Prospectus, or any
amendment or supplement thereto or any related preliminary prospectus or arise
out of or are based upon the omission or alleged omission to state therein a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading, and will reimburse
each Purchaser for any legal or other expenses reasonably incurred by such
Purchaser in connection with investigating or defending any such loss, claim,
damage, liability or action as such expenses are incurred; provided, however,
that the Company will not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement in or omission or alleged omission from
any of such documents in reliance upon and in conformity with written
information furnished to the Company by any Purchaser specifically for use
therein; provided, further, that the Company will not be liable if such untrue
statement or omission or alleged untrue statement or omission was contained or
made in any preliminary prospectus and corrected in the Prospectus or any
amendment or supplement thereto and the Prospectus does not contain any other
untrue statement or omission or alleged untrue statement or omission of a
material fact that was the subject matter of the related proceeding and any such
loss, liability, claim, damage or expense suffered or incurred by the
Participants resulted from any action, claim or suit by any Person who purchased
Registrable Preferred Stock or Exchange Preferred Stock that is the subject
thereof from such Participant and it is
-23-
established in the related proceeding that such Participant failed to deliver or
provide a copy of the Prospectus (as amended or supplemented) to such Person
with or prior to the confirmation of the sale of such Registrable Preferred
Stock or Exchange Preferred Stock sold to such Person if required by applicable
law, unless such failure to deliver or provide a copy of the Prospectus (as
amended or supplemented) was a result of noncompliance by the Company with
Section 5 of this Agreement.
(b) The Company may require, as a condition to including Registrable
Preferred Stock in any Registration Statement, that the related Participant
agree severally and not jointly to indemnify and hold harmless the Company
against any losses, claims, damages or liabilities to which the Company may
become subject, under the Securities Act or the Exchange Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in the any Registration Statement or
Prospectus, or any amendment or supplement thereto, or any related prospectus,
or arise out of or are based upon the omission or the alleged omission to state
therein a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading, in
each case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with written information furnished to the Company by such
Participant speci fically for use therein, and will reimburse any legal or other
expenses reasonably incurred by the Company in connection with investigating or
defending any such loss, claim, damage, liability or action as such expenses are
incurred. The liability of any Participant under this paragraph shall in no
event exceed the net proceeds received by such Participant from sales of
Registrable Preferred Stock or Exchange Preferred Stock giving rise to such
obligations.
(c) Promptly after receipt by an indemnified party under this
Section of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under subsection (a) or (b) above, notify the indemnifying party of the
commencement thereof; but the omission so to notify the indemnifying party will
not relieve it from any liability which it may have to any indemnified party
otherwise than under subsection (a) or (b) above. In case any such action is
brought against any indemnified party and it notifies the indemnifying party of
the commencement
-24-
thereof, the indemnifying party will be entitled to participate therein and, to
the extent that it may wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel satisfactory to such
indemnified party (who shall not, except with the consent of the indemnified
party, be counsel to the indemnifying party), and after notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party will not be liable to such indemnified
party under this Section for any legal or other expenses subsequently incurred
by such indemnified party in connection with the defense thereof other than
reasonable costs of investigation. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement of any
pending or threatened action in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder by such
indemnified party unless such settlement includes an unconditional release of
such indemnified party from all liability on any claims that are the subject
matter of such action.
(d) If the indemnification provided for in this Section is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities referred to in subsection (a) or (b) above (i) in
such proportion as is appropriate to reflect the relative benefits received by
the Company on the one hand and the Participants on the other from the offering
of the Registrable Preferred Stock or Exchange Preferred Stock or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company on
the one hand and the Participants on the other in connection with the statements
or omissions which resulted in such losses, claims, damages or liabilities as
well as any other relevant equitable considera tions. The relative benefits
received by the Company on the one hand and any Participant on the other shall
be deemed to be in the same proportion as the total net proceeds from the
initial offering of the Exchangeable Preferred Stock (before deducting expenses)
received by the Company bear to the total net proceeds received by such
Participant from sales of Registerable Preferred Stock or Exchange Preferred
Stock giving rise to such obligations. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue
-25-
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company or such Participant
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission. The amount
paid by an indemnified party as a result of the losses, claims, damages or
liabilities referred to in the first sentence of this subsection (d) shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any action or
claim which is the subject of this subsection (d). Notwithstanding the
provisions of this subsection (d), no Participant shall be required to
contribute any amount in excess of the amount by which the net proceeds received
by such Participant from sales of Registrable Preferred Stock or Exchange
Preferred Stock exceeds the amount of any damages which such Participant has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Participants' obligations in this subsection (d) to
contribute are several in proportion to their respective liquidation preferences
of Registrable Preferred Stock or Exchange Preferred Stock registered pursuant
to this Agreement, and not joint.
(e) The obligations of the Company under this Section shall be
in addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each officer, director and
partner of each Participant and to each Person, if any, who controls any
Participant within the meaning of the Securities Act or the Exchange Act; and
the obligations of the Participant under this Section shall be in addition to
any liability which the respective Participant otherwise have and shall extend,
upon the same terms and conditions, to each officer and director of the Company
and to each Person, if any, who controls the Company within the meaning of the
Securities Act or the Exchange Act.
8. Rules 144 and 144A.
The Company covenants that it will file the reports required to be
filed by it under the Securities Act and the Exchange Act and the rules and
regulations adopted by the SEC thereunder in a timely manner in accordance with
the requirements of the Securities Act and the Exchange Act and such rules and
regulations and, if at any time the Company is not required to
-26-
file such reports, it will, upon the request of any Holder of Registrable
Preferred Stock, make publicly available annual reports and such information,
documents and other reports of the type specified in Sections 13 and 15(d) of
the Exchange Act. The Company further covenants for so long as any Registrable
Preferred Stock remains outstanding, to make available to any Holder or
beneficial owner of Registrable Preferred Stock in connection with any sale
thereof and any prospective purchaser of such Registrable Preferred Stock from
such Holder or beneficial owner, the information required by Rule 144A(d)(4)
under the Securities Act in order to permit resales of such Registrable
Preferred Stock pursuant to Rule 144A.
9. Underwritten Registrations.
If any of the Registrable Preferred Stock covered by any Shelf
Registration is to be sold in an underwritten offering, the investment banker or
investment bankers and manager or managers that will manage the offering will be
selected by the Holders of a majority of shares of such Registrable Preferred
Stock included in such offering and reasonably acceptable to the Company.
No Holder of Registrable Preferred Stock may participate in any
underwritten registration hereunder unless such Holder (a) agrees to sell such
Holder's Registrable Preferred Stock on the basis provided in any underwriting
arrangements approved by the Persons entitled hereunder to approve such
arrangements and (b) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents required
under the terms of such underwriting arrangements.
10. Representations and Warranties.
The Company represents and warrants to, and agrees with, each Purchaser
and each of the Holders from time to time of Registrable Securities that:
(a) Each registration statement covering Registrable Preferred Stock
and each prospectus (including any preliminary or summary prospectus) contained
therein or furnished pursuant to this Agreement and any further amendments or
supplements to any such registration statement or prospectus, when it becomes
effective or is filed with the Commission, as the case may be, and, in the case
of an underwritten offering of Registrable Preferred Stock, at the time of the
closing under the underwriting agreement relating thereto, will conform in all
material respects to the requirements of the Act and the Trust
-27-
Indenture Act and the rules and regulations of the Commission and any such
registration statement and any amendment thereto will not include any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not misleading and
any such prospectus or any amendment or supplement thereto will not include any
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 not misleading in
light of the circumstances then existing; and at all times subsequent to the
Effective Time of any such registration statement when a prospectus would be
required to be delivered under the Act, other than from (i) such time as a
notice has been given to holders of Registrable Preferred Stock pursuant to the
penultimate paragraph of Section 5 or Section 5(k) hereof until (ii) such time
as the Company furnishes an amended or supplemented prospectus pursuant to
Section 5(k) hereof or otherwise gives an Advice, each such registration
statement, and each prospectus (including any summary prospectus) contained
therein or furnished pursuant to Section 5(k) or Section 5(g) hereof, as then
amended or supple mented, will conform in all material respects to the
requirements of the Act and the Trust Indenture Act and the rules and
regulations of the Commission and will not include any untrue statement of any
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in the light of the
circumstances then existing; provided, however, that this representation and
warranty does not apply to any statements or omissions from a registration
statement or prospectus (including any preliminary or summary prospectus) based
upon written information furnished to the Company by any underwriter, sales
agent, Holder or Participating Broker-Dealer specifically for use therein.
(b) Any documents incorporated by reference in any prospectus referred
to in Section 5(a) hereof, when they become or became effective or are or were
filed with the Commission, as the case may be, will conform or conformed in all
material respects to the requirements of the Securities Act or the Exchange Act,
as applicable, and none of such documents will include or included an untrue
statement of any material fact or will omit or omitted to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading; provided, however, that this representation and warranty does not
apply to any statements or omissions from a registration statement or the
prospectus (including any preliminary or summary prospectus) based upon written
information
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furnished to the Company by any underwriter, sales agent, Holder or
Participating Broker-Dealer specifically for use therein.
(c) The issuance and sale of the Registrable Preferred Stock did not
and will not, and the execution, delivery and performance of this Agreement and
the consummation of the trans actions herein contemplated will not, result in a
breach or violation of any of the terms and provisions of, or constitute a
default under, any statute, any rule, regulation, order or policy of any
governmental agency or body or any court, domestic or foreign, having
jurisdiction over the Company or any subsidiary of the Company or any of their
properties, the Credit Agreements as defined in the Purchase Agreement or any
other agreement or instrument to which the Company or any such subsidiary is a
party or by which the Company or any such subsidiary is bound or to which the
Company or any such subsidiary has agreed to become bound, or to which any of
the properties of the Company or any such subsidiary is subject, or the charter
or by-laws (or other constituent document) of the Company or any such
subsidiary.
11. Miscellaneous
(a) No Inconsistent Agreements. The Company has not, as of the date
hereof, and the Company shall not, after the date of this Agreement, enter into
any agreement with respect to any of its securities that is inconsistent with
the rights granted to the Holders of Registrable Preferred Stock in this
Agreement or otherwise conflicts with the provisions hereof. The Company has not
entered and will not enter into any agreement with respect to any of its
securities that will grant to any Person piggyback registration rights with
respect to a Registration Statement.
(b) Adjustments Affecting Registrable Preferred Stock. The Company
shall not, directly or indirectly, take any action with respect to the
Registrable Preferred Stock as a class that would adversely affect the ability
of the Holders of Registrable Preferred Stock to include such Registrable
Preferred Stock in a registration undertaken pursuant to this Agreement.
(c) Amendments and Waivers. The provisions of this Agreement may not be
amended, modified or supplemented, and waivers or consents to departures from
the provisions hereof may not be given, otherwise than with the prior written
consent of the Company and (A) the Holders of not less than a majority of shares
of the then outstanding Registrable Preferred Stock and (B) in circumstances
that would adversely affect the
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Participating Broker-Dealers, the Participating Broker-Dealers holding not less
than a majority of shares of the Exchange Preferred Stock held by all
Participating Broker-Dealers; provided, however, that Section 7 and this Section
11(c) may not be amended, modified or supplemented without the prior written
consent of the Company and each Holder and each Participating Broker-Dealer
(including any person who was a Holder or Participating Broker-Dealer of
Registrable Preferred Stock or Exchange Preferred Stock, as the case may be,
disposed of pursuant to any Registration Statement). Notwithstanding the
foregoing, a waiver or consent to depart from the provisions hereof with respect
to a matter that relates exclusively to the rights of Holders of Registrable
Preferred Stock whose securities are being sold pursuant to a Registration
Statement and that does not directly or indirectly affect, impair, limit or
compromise the rights of other Holders of Registrable Preferred Stock may be
given by Holders of at least a majority of shares of the Registrable Preferred
Stock being sold by such Holders pursuant to such Registration Statement;
provided, however, that the provisions of this sentence may not be amended,
modified or supplemented except in accordance with the provisions of the
immediately preceding sentence.
(d) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand- delivery, registered
first-class mail, next-day air courier or facsimile:
1. if to a Holder of the Registrable Preferred Stock or any
Participating Broker-Dealer, at the most current address of such Holder or
Participating Broker-Dealer, as the case may be, on the stock books of the
Company with a copy in like manner to the Initial Purchasers as follows:
CREDIT SUISSE FIRST BOSTON CORPORATION,
BT SECURITIES CORPORATION,
ALEX. ▇▇▇▇▇ & SONS INCORPORATED,
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
▇▇▇▇▇ ▇▇▇▇▇▇ INC.
c/o Credit Suisse First Boston Corporation
Eleven ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile No: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Investment Banking Department
Transactions Advisory Group
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with a copy to:
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile No: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
(2) if to the Initial Purchasers, at the addresses specified in Section
11(d)(1);
(3) if to the Company, at the addresses as follows:
American Radio Systems Corporation
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile No: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
with copies to:
▇▇▇▇▇▇▇▇ & Worcester
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile No: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
All such notices and communications shall be deemed to have been duly
given: when delivered by hand, if personally delivered; five business days after
being deposited in the mail, postage prepaid, if mailed; one business day after
being timely delivered to a next-day air courier; and when receipt is
acknowledged by the addressee, if sent by facsimile.
(e) Successors and Assigns. This Agreement shall inure to the benefit
of and be binding upon the successors and assigns of each of the parties hereto,
including the Holders; provided, however, that this Agreement shall not inure to
the benefit of or be binding upon a successor or assign of a Holder unless and
except to the extent such successor or assign holds Registrable Preferred Stock.
(f) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate
-31-
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
(g) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(h) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE
AND PERFORMED WHOLLY WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES
OF CONFLICTS OF LAW. EACH OF THE PARTIES HERETO AGREES TO SUBMIT TO THE
JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK IN ANY ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT.
(i) Severability. If any term, provision, covenant or restriction of
this Agreement is held by a court of competent jurisdiction to be invalid,
illegal, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full force and
effect and shall in no way be affected, impaired or invalidated, and the parties
hereto shall use their best efforts to find and employ an alternative means to
achieve the same or substantially the same result as that contemplated by such
term, provision, covenant or restriction. It is hereby stipulated and declared
to be the intention of the parties that they would have executed the remaining
terms, provisions, covenants and restrictions without including any of such that
may be hereafter declared invalid, illegal, void or unenforceable.
(j) Securities Held by the Company or Its Affiliates. Whenever the
consent or approval of Holders of a specified percentage of shares of
Registrable Preferred Stock is required hereunder, shares of Registrable
Preferred Stock held by the Company or its affiliates (as such term is defined
in Rule 405 under the Securities Act) shall not be counted in determining
whether such consent or approval was given by the Holders of such required
percentage.
(k) Third Party Beneficiaries. Holders of Registrable Preferred Stock
and Participating Broker-Dealers are intended third party beneficiaries of this
Agreement and this Agreement may be enforced by such Persons.
(l) Entire Agreement. This Agreement, together with the Purchase
Agreement and the Certificate of Designation, is
-32-
intended by the parties as a final and exclusive statement of the agreement and
understanding of the parties hereto in respect of the subject matter contained
herein and therein and any and all prior oral or written agreements,
representations, or warranties, contracts, understandings, correspondence,
conversations and memoranda between the Initial Purchasers on the one hand and
the Company on the other, or between or among any agents, representatives,
parents, subsidiaries, affiliates, predecessors in interest or successors in
interest with respect to the subject matter hereof and thereof are merged herein
and replaced hereby.
-33-
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
AMERICAN RADIO SYSTEMS CORPORATION
By: ____________________________
Name:
Title:
CREDIT SUISSE FIRST BOSTON
CORPORATION
By: ____________________________
Name:
Title:
BT SECURITIES CORPORATION
By: ____________________________
Name:
Title:
ALEX. ▇▇▇▇▇ & SONS INCORPORATED
By: ____________________________
Name:
Title:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
By: ____________________________
Name:
-34-
Title:
▇▇▇▇▇ ▇▇▇▇▇▇ INC.
By: ____________________________
Name:
Title:
-35-
TABLE OF CONTENTS
Page
1. Definitions....................................................... 1
2. Exchange Offer.................................................... 5
3. Shelf Registration................................................ 8
4. Additional Dividends.............................................. 9
5. Registration Procedures........................................... 10
6. Registration Expenses............................................. 20
7. Indemnification................................................... 21
8. Rules 144 and 144A................................................ 24
9. Underwritten Registrations........................................ 25
10. Representations and Warranties.................................... 25
11. Miscellaneous..................................................... 27
(a) No Inconsistent Agreements............................... 27
(b) Adjustments Affecting Registrable Preferred Stock........ 27
(c) Amendments and Waivers................................... 27
(d) Notices.................................................. 28
(e) Successors and Assigns................................... 29
(f) Counterparts............................................. 29
(g) Headings................................................. 29
(h) Governing Law............................................ 29
(i) Severability............................................. 29
(j) Securities Held by the Company or Its Affiliates......... 30
(k) Third Party Beneficiaries................................ 30
(l) Entire Agreement......................................... 30
-i-