EXHIBIT 10.2
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EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
Dated as of May 7, 1998
By and Among
BENEDEK COMMUNICATIONS CORPORATION,
as Issuer,
and
TD SECURITIES (USA) INC.,
and
BT ALEX. ▇▇▇▇▇ INCORPORATED,
as Initial Purchasers
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$100,000,000
11 1/2% SENIOR EXCHANGEABLE PREFERRED STOCK
TABLE OF CONTENTS
Page
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1. Definitions..........................................................................1
2. Exchange Offer.......................................................................5
3. Shelf Registration...................................................................8
4. Additional Interest.................................................................10
5. Registration Procedures.............................................................11
6. Registration Expenses...............................................................20
7. Indemnification.....................................................................21
8. Rules 144 and 144A..................................................................24
9. Underwritten Registrations..........................................................24
10. Miscellaneous.......................................................................25
(a) No Inconsistent Agreements...................................................25
(b) Adjustments Affecting Transfer Restricted Securities.........................25
(c) Amendments and Waivers.......................................................25
(d) Notices......................................................................26
(e) Successors and Assigns.......................................................27
(f) Counterparts.................................................................27
(g) Headings.....................................................................27
(h) GOVERNING LAW................................................................27
(i) Severability.................................................................27
(j) Notes Held by the Company or its Affiliates..................................27
(k) Third Party Beneficiaries....................................................28
EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
This Exchange and Registration Rights Agreement (the "Agreement")
is dated as of May 7, 1998, by and among BENEDEK COMMUNICATIONS CORPORATION, a
corporation organized under the laws of the State of Delaware (the "Company"),
TD SECURITIES (USA) INC. and BT ALEX. ▇▇▇▇▇ INCORPORATED (the "Initial
Purchasers").
This Agreement is being entered into in connection with the
Purchase Agreement, dated as of May 7, 1998, by and among the Company and the
Initial Purchasers (the "Purchase Agreement"), which provides for the sale by
the Company to the Initial Purchasers of $100,000,000 aggregate liquidation
preference of the Company's 11 1/2% Senior Exchangeable Preferred Stock (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. The execution and delivery
of this Agreement is a condition to the obligation of the Initial Purchasers 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 Interest" has the meaning ascribed to such term in
Section 4(a) hereof.
"Advice" has the meaning ascribed to such term in Section 5
hereof.
"Agreement" has the meaning ascribed to such term in the
introductory paragraph hereto.
"Applicable Period" has the meaning ascribed to such term in
Section 2(b) hereof.
"Certificate of Designation" means the Certificate of Designation
of the Powers, Preferences and Relative, Participating, Optional and
Other Special Rights of the 11 1/2% Senior Exchangeable Preferred Stock
and Qualifications, Limitations and Restrictions Thereof.
2
"Closing Date" has the meaning ascribed to such term in the
Purchase Agreement.
"Company" has the meaning ascribed to such term in the first
introductory paragraph hereto.
"Damages Payment Date" has the meaning ascribed to such term in
Section 4(a) hereof.
"Effectiveness Date" means the 90th day after the Issue Date.
"Effectiveness Period" has the meaning ascribed to such term in
Section 3(a) hereof.
"Exchangeable Preferred Stock" has the meaning ascribed to such
term in the second introductory paragraph hereto.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the SEC promulgated
thereunder, all as the same shall be in effect from time to time.
"Exchange Debentures" means the 11 1/2% Exchange Debentures due
2008 to be issued in exchange for the Exchangeable Preferred Stock in
accordance with the provisions of the Certificate of Designation.
"Exchange Indenture" means the Indenture to be entered into by
the Company and IBJ ▇▇▇▇▇▇▇▇ Bank & Trust Company, as trustee, pursuant
to which the Exchange Debentures may be issued in exchange for the
Exchangeable Preferred Stock.
"Exchange Offer" has the meaning ascribed to such term in Section
2(a) hereof.
"Exchange Offer Registration Statement" has the meaning ascribed
to such term in Section 2(a) hereof.
"Exchange Securities" means a second series of Exchangeable
Preferred Stock or Exchange Debentures, as the case may be, identical in
all material respects to the Exchangeable Preferred Stock or Exchange
Debentures, as the case may be, except that the Exchange Securities
shall have been registered pursuant to an effective Registration
Statement under the Securities Act and shall contain no restrictive
legend thereon.
3
"Filing Date" means (A) if no Registration Statement has been
filed by the Company pursuant to this Agreement, the 45th day after the
Issue Date; provided, however, that if a Shelf Notice is given within 10
days of the Filing Date, then the Filing Date with respect to the Shelf
Registration shall be the 15th calendar day after the date of the giving
of such Shelf Notice; or (B) in each other case (which may be applicable
notwithstanding the consummation of the Exchange Offer), the 30th day
after the delivery of a Shelf Notice.
"Holder" means any holder of a Transfer Restricted Security or
Transfer Restricted Securities.
"Indemnified Person" has the meaning ascribed to such term in
Section 7(c) hereof.
"Indemnifying Person" has the meaning ascribed to such term in
Section 7(c) hereof.
"Initial Purchasers" has the meaning ascribed to such term in the
first introductory paragraph hereto.
"Inspectors" has the meaning ascribed to such term in Section
5(o) hereof.
"Issue Date" means the date of original issuance of the
Exchangeable Preferred Stock sold to the Initial Purchasers pursuant to
the Purchase Agreement.
"Liquidated Damages" has the meaning ascribed to such term in
Section 4(a) hereof.
"NASD" has the meaning ascribed to such term in Section 5(s)
hereof.
"Participant" has the meaning ascribed to such term in Section
7(a) hereof.
"Participating Broker-Dealer" has the meaning ascribed to such
term in Section 2(b) hereof.
"Person" means any individual, firm, trustee, corporation,
partnership, limited liability company, joint venture, joint stock
company, trust or trustee, incorporated or unincorporated association,
union, business association, government (or any department, agency or
political subdivision thereof), firm or other entity of any kind, and
shall include any successor (by merger or otherwise) of such entity.
4
"Prospectus" means 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, with respect to the
terms of the offering of any portion of the Transfer Restricted
Securities covered by such Registration Statement including
post-effective amendments, all exhibits and all material incorporated by
reference or deemed to be incorporated by reference in such Prospectus.
"Purchase Agreement" has the meaning provided in the second
introductory paragraph hereto.
"Records" has the meaning ascribed to such term in Section 5(o)
hereof.
"Registration Default" has the meaning ascribed to such term in
Section 4(a) hereof.
"Registration Statement" means any registration statement of the
Company, including, but not limited to, the Exchange Offer Registration
Statement and all amendments and supplements to such registration
statement, including post-effective amendments, that covers any of the
Transfer Restricted Securities filed with the SEC under the Securities
Act, including the Prospectus included in such registration statement,
all exhibits thereto and all material incorporated by reference therein.
"Rule 144" means 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,
all as the same shall be in effect from time to time.
"Rule 144A" means 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, all as
the same shall be in effect from time to time.
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"Rule 415" means 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" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended,
and the rules and regulations of the SEC promulgated thereunder, all as
the same shall be in effect from time to time.
"Shelf Notice" has the meaning ascribed to such term in Section
2(c) hereof.
"Shelf Registration" has the meaning ascribed to such term in
Section 3(a) hereof.
"Shelf Registration Statement" means a "shelf" registration
statement of the Company which covers all of the Transfer Restricted
Securities on an appropriate form for an offering to be made on a
continuous basis under Rule 415, and all amendments and supplements to
such registration statement, including post-effective amendments, in
each case including the Prospectus contained therein, all exhibits
thereto and all material incorporated by reference therein.
"TIA" means the Trust Indenture Act of 1939, as amended, and the
rules and regulations promulgated thereunder, all as the same shall be
in effect from time to time.
"Transfer Agent" means the transfer agent under the Certificate
of Designation.
"Transfer Restricted Securities" means each share of Exchangeable
Preferred Stock, Exchange Debenture or Exchange Security until (i) the
date on which such Transfer Restricted Security has been exchanged by a
person other than a broker-dealer for a freely transferrable Exchange
Security in the Exchange Offer, (ii) following the exchange by a
broker-dealer in the Exchange Offer of a Transfer Restricted Security
for an Exchange Security, the date on which such Exchange Security is
sold to a purchaser who receives from such broker-dealer on or prior to
the date of such sale a copy of the Prospectus contained in the Exchange
Offer Registration Statement, (iii) the date on which such Transfer
Restricted Security has been effectively registered under the Securities
Act and disposed of in accordance with the Shelf Registration Statement
or (iv) the date on which such Transfer Restricted Security is
distributed to the public pursuant to Rule 144 under the Securities Act
or is saleable pursuant to Rule 144(k) under the Securities Act.
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"Underwritten Registration or Underwritten Offering" means a
registration in which securities of the Company are sold to an
underwriter for reoffering to the public.
2. Exchange Offer.
(a) The Company agrees to file with the SEC no later than the
Filing Date an offer to exchange (the "Exchange Offer") any and all of the
Transfer Restricted Securities for a like aggregate liquidation preference or
aggregate principal amount, as the case may be, of Exchange Securities. The
Exchange Offer shall be registered under the Securities Act on Form S-1 or Form
S-4 (the "Exchange Offer Registration Statement") and shall comply with all
applicable tender offer rules and regulations under the Exchange Act. The
Company agrees to (x) use its best efforts to cause the Exchange Offer
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) use its best efforts
to consummate the Exchange Offer on or prior to the 120th day following the
Issue Date. If after such Exchange Offer Registration Statement is declared
effective by the SEC, the Exchange Offer or the issuance of the Exchange
Securities 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 Offer Registration Statement shall be deemed not to have become
effective for purposes of this Agreement.
Each Holder that participates in the Exchange Offer will be
required to represent that any Exchange Securities 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
Securities 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 Company shall have no further obligation to register Transfer
Restricted Securities other than in respect of any Exchange Securities as to
which clause 2(c)(v) hereof applies) pursuant to Section 3 hereof. No securities
other than the Exchange Securities shall be included in the Exchange Offer
Registration Statement.
(b) The Company shall include within the Prospectus included in
the Exchange Offer Registration Statement a section entitled "Plan of
Distribution," reasonably acceptable to the Initial Purchasers, which shall
contain a summary statement of the positions taken or policies made by the Staff
of the SEC with respect to the potential "underwriter" status of any
broker-dealer that is the beneficial owner (as defined in Rule 13d-3 under the
Exchange Act) of Exchange Securities received by such broker-dealer in the
Exchange Offer (a
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"Participating Broker-Dealer"), whether such positions or policies have been
publicly disseminated by the Staff of the SEC or such positions or policies, in
the reasonable judgment of the Initial 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 BrokerDealers may resell the Exchange Securities. The
Company shall consent to the use of the Prospectus forming part of the Exchange
Offer Registration Statement or any amendment or supplement thereto, by any
broker-dealer in connection with the sale or transfer of the Exchange Securities
covered by the Prospectus or any amendment or supplement thereto in accordance
with the Securities Act. The Company shall include in the transmittal letter or
similar documentation to be executed by an exchange offeree in order to
participate in the Exchange Offer a provision substantially as follows:
If the undersigned is not a broker-dealer, the undersigned represents
that it is not engaged in, and does not intend to engage in, a
distribution of Exchange Securities. If the undersigned is a
broker-dealer, the undersigned represents that it will receive Exchange
Securities for its own account in exchange for Transfer Restricted
Securities and that the Transfer Restricted Securities to be exchanged
for Exchange Securities were acquired by it as a result of market-making
activities or other trading activities and acknowledges that it will
deliver a prospectus meeting the requirements of the Securities Act in
connection with any resale of such Exchange Securities pursuant to the
Exchange Offer; however, by so acknowledging and by delivering a
prospectus, the undersigned will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act.
The Company shall use its best efforts to keep the Exchange Offer
Registration Statement effective and to amend and supplement the Prospectus
contained therein for a period of 90 days after consummation of the Exchange
Offer (or such longer period if extended pursuant to the last paragraph of
Section 5 hereof) (the "Applicable Period"), in order to permit such Prospectus
to be lawfully delivered by any Participating Broker-Dealer 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 Securities.
Interest on the Exchange Securities will accrue from either (i)
the last interest payment date on which interest was paid on the Transfer
Restricted Securities surrendered in exchange therefor or (ii) if no interest
has been paid on the Transfer Restricted Securities, from the Issue Date.
8
In connection with the Exchange Offer, the Company shall:
(1) mail to each Holder a copy of the Prospectus forming part of
the Exchange Offer Registration Statement, together with an appropriate
letter of transmittal and related documents;
(2) 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 the Holders;
(3) utilize the services of a depositary for the Exchange Offer
with an address in the Borough of Manhattan, The City of New York;
(4) permit Holders to withdraw tendered Exchangeable Preferred
Stock or Exchange Debentures, as the case may be, 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
(5) otherwise comply in all material respects with all applicable
laws, rules and regulations.
As soon as practicable after the close of the Exchange Offer, as
the case may be, the Company shall:
(1) accept for exchange all Transfer Restricted Securities
validly tendered and not validly withdrawn pursuant to the Exchange
Offer;
(2) deliver to the Transfer Agent for cancellation all Transfer
Restricted Securities so accepted for exchange; and
(3) cause the Transfer Agent to authenticate and deliver promptly
to each Holder that has validly tendered and not validly withdrawn such
tender Exchange Securities equal in liquidation preference or principal
amount, as applicable, to the Transfer Restricted Securities of such
Holder so accepted for exchange.
The Exchange Offer shall not be subject to any conditions, other
than that the Exchange Offer, or the making of any exchange by a Holder, does
not violate applicable law or any applicable interpretation of the Staff of the
SEC. The Company shall instruct the exchange agent for the Exchange Offer to
inform the Initial Purchasers of the names and addresses of the Holders to whom
the Exchange Offer is made, and the Initial Purchasers shall
9
have the right to contact such Holders and otherwise facilitate the tender of
Transfer Restricted Securities in the Exchange Offer.
(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
180 days after the Issue Date, (iii) a Holder so requests with respect to
Exchangeable Preferred Stock or Exchange Debentures not eligible to be exchanged
for Exchange Securities in an Exchange Offer and held by it following completion
of the Exchange Offer, (iv) any Holder (other than the Initial Purchasers) gives
the Company written notice that it is not eligible to participate in the
Exchange Offer, or (v) in the case of any Holder that participates in the
Exchange Offer, such Holder does not receive Exchange Securities 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 the Holder as an
affiliate of the Company within the meaning of the Securities Act and other than
the obligation of a broker-dealer to deliver the Prospectus contained in the
Exchange Offer Registration Statement), then the Company shall promptly deliver
written notice thereof (the "Shelf Notice") to, in the case of clauses (i) and
(ii) above, all Holders, and in the case of clauses (iii), (iv) and (v) above,
the affected Holder and shall file a Shelf Registration Statement pursuant to
Section 3 hereof.
3. Shelf Registration.
If a Shelf Notice is delivered as contemplated by Section 2(c)
hereof, then:
(a) Shelf Registration. The Company shall, at its cost, as
promptly as practicable file with the SEC a shelf registration statement
(the "Shelf Registration" and a "Shelf Registration Statement"). If the
Company shall not have yet filed an Exchange Offer Registration
Statement, the Company shall use its best efforts to file with the SEC
the Shelf Registration on or prior to the applicable Filing Date. The
Shelf Registration shall be on an appropriate form permitting
registration of such Transfer Restricted Securities 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 Transfer Restricted Securities to
be included in the Shelf Registration.
The Company shall use its best efforts to ensure that (1) any
Shelf Registration Statement and any amendment thereto and any
Prospectus forming part thereof and any supplement thereto complies in
all material respects with the Securities Act and the rules and
regulations thereunder, (2) any Shelf Registration Statement and any
amendment thereto does not, when it becomes effective, contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary
10
to make the statements therein, in light of the circumstances under
which they were made, not misleading and (3) any Prospectus forming part
of any Shelf Registration Statement, and any supplement to such
Prospectus (as amended or supplemented from time to time), does not
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order to
make the statements therein, in light of the circumstances under which
they were made, not misleading.
The Company shall use its best efforts to cause the Shelf
Registration to be declared effective under the Securities Act on or
prior to the Effectiveness Date and to keep the Shelf Registration
continuously effective under the Securities Act until the date which is
three years from the Issue Date, subject to extension pursuant to the
last paragraph of Section 5 hereof (the "Effectiveness Period"), or such
shorter period ending when all Transfer Restricted Securities covered by
the Shelf Registration have been sold in the manner set forth and as
contemplated in the Shelf Registration.
(b) Withdrawal of Stop Orders. If the 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 best efforts to obtain
the prompt withdrawal of any order suspending the effectiveness thereof.
(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 in aggregate
liquidation preference or principal amount, as applicable, of the
Transfer Restricted Securities covered by such Shelf Registration
Statement or by any underwriter of such Transfer Restricted Securities.
4. Additional Interest.
(a) The Company and the Initial Purchasers agree that the Holders
of Transfer Restricted Securities will suffer damages if the Company fails to
fulfill its obligations under Sections 2 or 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 or interest on the Exchange Debentures, as the case
may be ("Additional Interest"), under the circumstances and to the extent set
forth below:
(i) if the applicable Registration Statement is not filed with
the Commission within 45 days after the Issue Date;
11
(ii) unless the Exchange Offer would not be permitted by a policy
of the SEC, the Exchange Offer is not declared effective on or before
the Effectiveness Date;
(iii) neither the Exchange Offer is consummated nor the Shelf
Registration Statement is declared effective within 120 days after the
Issue Date;
(iv) after a Registration Statement is declared effective, such
Registration Statement thereafter ceases to be effective or such
Registration Statement or the related prospectus ceased to be usable
(except as permitted by the following paragraph) in connection with
resales of Transfer Restricted Securities during the periods specified
herein (each such event referred to in clauses (i) through (iv), a
"Registration Default"),
then (A) additional cash dividends will accrue on the Exchangeable Preferred
Stock at a rate of 0.5% per annum from and including the date on which any
Registration Default shall occur to but excluding the date on which all
Registration Defaults have been cured calculated on the liquidation preference
of the Exchangeable Preferred Stock or (B) additional cash interest will accrue
on the Exchange Debentures at a rate of 0.5% per annum from and including the
date on which any Registration Default shall occur to but excluding the date on
which all Registration Defaults have been cured calculated on the principal
amount of the Exchange Debentures, as the case may be ("Liquidated Damages").
All accrued Liquidated Damages will be paid by the Company in cash on each
scheduled dividend payment date for the Exchangeable Preferred Stock, or on the
date interest is payable for the Exchange Debentures, as the case may be (the
"Damages Payment Date"), to any holder of Transfer Restricted Securities who has
given wire transfer instructions to the Company at least 10 business days prior
the Damages Payment Date by wire transfer of immediately available funds and to
all other holders of Transfer Restricted Securities by mailing checks to their
registered addresses. Following the cure of all Registration Defaults, the
accrual of Liquidated Damages will cease.
A Registration Default described in clause (iv) of the
immediately preceding paragraph shall be deemed not to have occurred and be
continuing by reason of a Shelf Registration Statement or prospectus ceasing to
be usable if (i) such Shelf Registration Statement or prospectus has ceased to
be usable solely as a result of (A) the filing of a post-effective amendment
thereto to incorporate annual audited financial information with respect to the
Company where such post-effective amendment is not yet effective and needs to be
declared effective to permit Holders to use the related prospectus or (B) other
material events, with respect to the Company, that would need to be described in
such Shelf Registration Statement or the related prospectus and (ii) in the case
of clause (B), the Company is proceeding promptly and in good faith to amend or
supplement such Shelf Registration Statement and related prospectus to describe
such events; provided, however, that in any case if such Shelf Registration
Statement or prospectus is not usable for a continuous period in
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excess of 30 days, a Registration Default shall be deemed to have occurred on
the day following such 30-day period and to be continuing until such
Registration Default is cured.
5. Registration Procedures.
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 on or prior to the applicable
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 Offer Registration Statement filed pursuant to Section 2
hereof is required to be delivered under the Securities Act by any
Participating Broker-Dealer that seeks to sell Exchange Securities
during the Applicable Period, before filing any Registration Statement
or Prospectus or any amendments or supplements thereto, the Company
shall, if requested, furnish to and afford the Holders of the Transfer
Restricted Securities covered by such Registration Statement or each
such Participating BrokerDealer, 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 at least five business days prior to such
filing). The Company shall not file any Registration Statement or
Prospectus or any amendments or supplements thereto in respect of which
the Holders have not been afforded an opportunity to review prior to the
filing of such document, if the Holders of a majority in aggregate
liquidation preference or principal amount, as applicable, of the
Transfer Restricted Securities 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 Statement or
Exchange Offer 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 or until consummation
of the Exchange Offer, 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)
13
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 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 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 Transfer
Restricted Securities covered thereby or Participating Broker-Dealers
seeking to sell Exchange Securities not being able to sell such Transfer
Restricted Securities or such Exchange Securities 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 last paragraph of this
Section 5.
(c) If (1) a Shelf Registration is filed pursuant to Section 3
hereof, or (2) a Prospectus contained in the Exchange Offer Registration
Statement filed pursuant to Section 2 hereof is required to be delivered
under the Securities Act by any Participating Broker-Dealer that seeks
to sell Exchange Securities during the Applicable Period, notify the
selling Holders of Transfer Restricted Securities, 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) of the issuance by the SEC of any stop order or any state
securities authority 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 Transfer
Restricted Securities or resales of Exchange Securities by Participating
Broker-Dealers upon written notice by any such Participating
Broker-Dealer of a resale the representations and warranties of the
Company contained in any agreement (including any underwriting
agreement), contemplated by Section 5(n) hereof cease to be true and
correct, (iv) of the receipt by the Company of any notification with
respect to the suspension of the qualification or exemption from
qualification of a Registration Statement or any of the Transfer
Restricted Securities or the Exchange Securities to be sold by any
Participating BrokerDealer for offer or sale in any jurisdiction, or the
initiation or threatening of any
14
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
light of the circumstances under which they were made, not misleading,
and (vi) of the determination by the Company that a post-effective
amendment and supplement to a Registration Statement or Prospectus would
be appropriate, or a request by the SEC or any state securities
authority for such an amendment or for additional information after the
Registration Statement has become effective.
(d) Use its 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 Transfer
Restricted Securities or the Exchange Securities for sale in any
jurisdiction, and, if any such order issued, to use its 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 in liquidation preference or principal amount, as
applicable, of the Transfer Restricted Securities being sold in
connection with an underwritten offering, (i) promptly incorporate in a
prospectus supplement or post-effective amendment such information as
the managing underwriter or underwriters (if any), such Holders, or
counsel for any of them reasonably request 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 the Exchange Offer Registration
Statement filed pursuant to Section 2 hereof is required to be delivered
under the Securities Act by any Participating Broker-Dealer that seeks
to sell Exchange Securities during the Applicable Period, furnish to
each selling Holder of Transfer Restricted Securities and to each such
15
Participating Broker-Dealer who so requests and to their respective
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 Offer Registration
Statement filed pursuant to Section 2 hereof is required to be delivered
under the Securities Act by any Participating Broker-Dealer that seeks
to sell Exchange Securities during the Applicable Period, deliver to
each selling Holder of Transfer Restricted Securities, 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 or Prospectuses (including
each form of preliminary prospectus) and each amendment or supplement
thereto and any documents incorporated by reference therein as such
Persons may reasonably request; and, subject to the last paragraph of
this Section 5, the Company hereby consents to the use of such
Prospectus and each amendment or supplement thereto by each of the
selling Holders of Transfer Restricted Securities 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 Transfer Restricted Securities covered by, or the sale
by Participating Broker-Dealers of the Exchange Securities pursuant to,
such Prospectus and any amendment or supplement thereto.
(h) Prior to any public offering of Transfer Restricted
Securities or any delivery of a Prospectus contained in the Exchange
Offer Registration Statement by any Participating Broker-Dealer who
seeks to sell Exchange Securities during the Applicable Period, use its
best efforts to register or qualify such Transfer Restricted Securities
(and to cooperate with selling Holders of Transfer Restricted Securities
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 Transfer
Restricted Securities) for offer and sale under the securities or Blue
Sky laws of such jurisdictions within the United States as any selling
Holder, Participating BrokerDealer, or the managing underwriter or
underwriters reasonably request in writing; provided, however, that
where Exchange Securities held by Participating BrokerDealers or
Transfer Restricted Securities are offered other than through an
underwritten offering, the Company agrees to cause its 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
16
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 Securities held by Participating Broker-Dealers or the Transfer
Restricted Securities covered by the applicable Registration Statement;
provided, however, that the Company shall not be required to (A) qualify
generally to do business in any jurisdiction where it is not then so
qualified, (B) take any action that would subject it to general service
of process in any such jurisdiction where it is not then so subject or
(C) subject themselves to taxation in excess of a nominal dollar amount
in any such jurisdiction where it is not then so subject.
(i) If a Shelf Registration is filed pursuant to Section 3
hereof, cooperate with the selling Holders of Transfer Restricted
Securities and the managing underwriter or underwriters, if any, to
facilitate the timely preparation and delivery of certificates
representing Transfer Restricted Securities 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 Transfer Restricted Securities 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 best efforts to cause the Transfer Restricted
Securities covered by the Registration Statement to be registered with
or approved by such other federal or state governmental agencies or
authorities as may be necessary to enable the Holders thereof or the
underwriter or underwriters, if any, to dispose of such Transfer
Restricted Securities, except as may be required solely as a consequence
of the nature of a 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 the Exchange Offer Registration
Statement filed pursuant to Section 2 hereof is required to be delivered
under the Securities Act by any Participating Broker-Dealer that seeks
to sell Transfer Restricted Securities during the Applicable Period,
upon the occurrence of any event contemplated by paragraph 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 Transfer Restricted Securities being sold thereunder
or to the purchasers of the Exchange Securities to whom such Prospectus
will be delivered by a
17
Participating Broker-Dealer, any such Prospectus will not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading. Notwithstanding the foregoing, the Company shall not be
required to amend or supplement a Registration Statement, any related
Prospectus or any document incorporated therein by reference, in the
event that, and for a period not to exceed an aggregate of 60 days in
any calendar year if (i) an event occurs and is continuing as a result
of which the Shelf Registration would, in the Company's good faith
judgment, contain an untrue statement of a material fact or omit to
state a material fact necessary in order to make statements therein, in
light of the circumstances under which they were made, not misleading
and (ii) (A) the Company determines in its good faith judgment that the
disclosure of such event at such time would have a material adverse
effect on the business, operations or prospects of the Company or (B)
the disclosure otherwise relates to a pending material business
transaction that has not yet been publicly disclosed.
(l) Use its best efforts to cause the Transfer Restricted
Securities covered by a Registration Statement or the Exchange
Securities, as the case may be, to be rated with the appropriate rating
agencies, if so requested by the Holders of a majority in aggregate
liquidation preference or principal amount, as applicable, of Transfer
Restricted Securities covered by such Registration Statement or the
Exchange Securities, as the case may be, or the managing underwriter or
underwriters, if any.
(m) Prior to the effective date of the first Registration
Statement relating to the Transfer Restricted Securities, (i) provide
the Transfer Agent with certificates for the Transfer Restricted
Securities or Exchange Securities, as the case may be, in a form
eligible for deposit with The Depository Trust Company and (ii) provide
a CUSIP number for the Transfer Restricted Securities or Exchange
Securities, as the case may be.
(n) In connection with any underwritten offering of Transfer
Restricted Securities pursuant to a Shelf Registration, enter into an
underwriting agreement as is customary in underwritten offerings of
securities similar to the Exchangeable Preferred Stock or the Exchange
Debentures, as the case may be, and take all such other actions as are
reasonably requested by the managing underwriter or underwriters in
order to facilitate the registration or the disposition of such Transfer
Restricted Securities and, in 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 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
securities similar to the
18
Exchangeable Preferred Stock or the Exchange Debentures, as the case may
be, 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 securities similar to the Exchangeable
Preferred Stock or the Exchange Debentures, as the case may be, and such
other matters as may be reasonably requested by the managing underwriter
or underwriters; (iii) use its reasonable best efforts to 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 of 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
securities similar to the Exchangeable Preferred Stock or the Exchange
Debentures, as the case may be; (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 liquidation preference or principal amount, as
applicable, of Transfer Restricted Securities 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; and (v) deliver such documents and certificates as may be
reasonably requested in writing and as are customarily delivered in
similar offerings. The above shall be done at each closing under such
underwriting agreement, or as and to the extent required thereunder.
(o) If (1) a Shelf Registration is filed pursuant to Section 3
hereof, or (2) a Prospectus contained in the Exchange Offer Registration
Statement filed pursuant to Section 2 hereof is required to be delivered
under the Securities Act by any Participating Broker-Dealer that seeks
to sell Exchange Securities during the Applicable Period, make available
for inspection by any selling Holder of such Transfer Restricted
Securities being sold, or each such Participating Broker-Dealer, as the
case may be, any underwriter participating in any such disposition of
Transfer Restricted Securities, 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, all financial and other records,
pertinent corporate documents and instruments of the Company and its
subsidiaries (collectively, the "Records") as shall be reasonably
19
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 and Prospectus. 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 the Inspectors
unless (i) the disclosure of such Records is necessary to avoid or
correct a material misstatement or material omission in such
Registration Statement, (ii) the release of such Records is ordered
pursuant to a subpoena or other order from a court of competent
jurisdiction, (iii) disclosure of such information is, in the reasonable
opinion of counsel for any Inspector, necessary or advisable in
connection with any action, claim, suit or proceeding, directly or
indirectly, 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. Each selling Holder of such Transfer Restricted 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 Transfer Restricted Securities 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.
(p) The Company will cause the Exchange Indenture to be qualified
under the TIA as required by applicable law in a timely manner. In the
event that such qualification would require the appointment of a new
trustee under the Exchange Indenture, the Company shall appoint a new
trustee thereunder pursuant to the applicable provisions of the Exchange
Indenture.
(q) Comply with all applicable rules and regulations of the SEC
and make generally available to its securityholders earnings statements
satisfying the provisions of Section 11(a) of the Securities Act and
Rule 158 thereunder (or any similar rule promulgated under the
Securities Act) no later than 45 days after the end of any 12-month
period (or 90 days after the end of any 12-month period if such period
is a fiscal year) (i) commencing at the end of any fiscal quarter in
which Transfer Restricted Securities are sold to underwriters in a firm
commitment or best efforts underwritten offering and (ii) if not sold to
underwriters in such an offering, commencing on the first day of the
first fiscal quarter of the Company after the effective date of a
Registration Statement, which statements shall cover said 12-month
periods.
20
(r) If an Exchange Offer is to be consummated, upon delivery of
the Transfer Restricted Securities by Holders to the Company (or to such
other Person as directed by the Company) in exchange for the Exchange
Securities, the Company shall ▇▇▇▇, or cause to be marked, on such
Transfer Restricted Securities that such Transfer Restricted Securities
are being canceled in exchange for the Exchange Securities; in no event
shall such Transfer Restricted Securities be marked as paid or otherwise
satisfied.
(s) Cooperate with each seller of Transfer Restricted Securities
covered by any Registration Statement and each underwriter, if any,
participating in the disposition of such Transfer Restricted Securities
and their respective counsel in connection with any filings required to
be made with the National Association of Securities Dealers, Inc. (the
"NASD").
(t) To the extent any Participating Broker-Dealer notifies the
Company in writing that it is participating in the Exchange Offer, use
its reasonable best efforts to cause to be delivered at the request of
an entity stating that it represents the Participating Broker-Dealers
(which entity shall be TD Securities (USA) Inc., unless it elects not to
act as such representative) only one, if any, "cold comfort" letter with
respect to the Prospectus in the form existing on the last date for
which exchanges are accepted pursuant to the Exchange Offer and with
respect to each subsequent amendment or supplement, if any, effected
during the Applicable Period.
(u) Use its best efforts to take all other steps necessary or
advisable to effect the registration of the Transfer Restricted
Securities covered by a Registration Statement contemplated hereby.
The Company may require each seller of Transfer Restricted
Securities as to which any Registration Statement is being filed to furnish to
the Company such information regarding such seller and the distribution of such
Transfer Restricted Securities as the Company may, from time to time, reasonably
request. The Company may exclude from such registration the Transfer Restricted
Securities 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.
Each Holder of Transfer Restricted Securities and each
Participating BrokerDealer agrees by acquisition of such Transfer Restricted
Securities or Exchange Securities 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), 5(c)(iv), 5(c)(v), or 5(c)(vi) hereof, such Holder will forthwith
discontinue disposition
21
of such Transfer Restricted Securities covered by such Registration Statement or
Prospectus or Exchange Securities 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 Transfer Restricted Securities covered by
such Registration Statement or Exchange Securities 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 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 Transfer Restricted Securities or Exchange
Securities and determination of the eligibility of the Transfer Restricted
Securities or Exchange Securities for investment under the laws of such
jurisdictions (x) where the holders of Transfer Restricted Securities are
located, in the case of the Exchange Securities, or (y) as provided in Section
5(h) hereof, in the case of Transfer Restricted Securities or Exchange
Securities to be sold by a Participating Broker-Dealer during the Applicable
Period)), (ii) printing expenses, including, without limitation, expenses of
printing certificates for Transfer Restricted Securities or Exchange Securities
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 in aggregate
liquidation preference or principal amount, as applicable, of the Transfer
Restricted Securities 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, (v)
fees and disbursements of all independent certified public accountants referred
to in Section 5(n)(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, if any, and any fees associated with
making the Transfer Restricted Securities or Exchange Securities eligible for
trading through The Depository Trust Company, (vii) Securities Act
22
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 of the Company and its subsidiaries, (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, indentures and any other documents
necessary in order to comply with this Agreement. Notwithstanding the foregoing,
if any of the Transfer Restricted Securities covered by any Shelf Registration
are to be sold in an underwritten offering, the Company shall have no obligation
to pay any discounts or underwriting commission.
(b) The Company shall reimburse the Holders for the reasonable
fees and disbursements of one counsel chosen by the Holders of a majority in
aggregate liquidation preference or principal amount, as applicable, of the
securities to be included in a Registration Statement and reimburse reasonable
out-of-pocket expenses (other than legal expenses) of Holders incurred in
connection with the registration and sale of Transfer Restricted Securities
pursuant to such Registration Statement.
7. Indemnification.
(a) The Company agrees to indemnify and hold harmless each Holder
of Transfer Restricted Securities offered pursuant to a Shelf Registration
Statement and each Participating Broker-Dealer selling Exchange Securities
during the Applicable Period, the affiliates, directors, officers, agents,
representatives and employees of each such Person, and each other Person, if
any, who controls, any such Person or its affiliates within the meaning of
either Section 15 of the Securities Act or Section 20 of the Exchange Act (each,
a "Participant"), from and against any and all losses, claims, damages and
liabilities (including, without limitation, the reasonable legal fees and other
expenses actually incurred in connection with any suit, action or proceeding or
any claim asserted) caused by, arising out of or based upon any untrue statement
or alleged untrue statement of a material fact contained in any Registration
Statement pursuant to which the offering of such Transfer Restricted Securities
or Exchange Securities, as the case may be, is registered (or any amendment
thereto) or related Prospectus (or any amendments or supplements thereto) or any
related preliminary prospectus, or caused by, arising out of or based upon any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; provided, however,
that the Company will not be required to indemnify a Participant if (i) such
losses, claims, damages or liabilities are caused by any untrue statement or
omission or alleged untrue statement or omission made in reliance upon and in
conformity with information relating to any Participant furnished to the Company
in writing by or on behalf of such Participant expressly for use
23
therein or (ii) if such Participant sold to the person asserting the claim the
Transfer Restricted Securities or Exchange Securities that are the subject of
such claim and 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 it is established by the Company 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 Transfer Restricted Securities or Exchange Securities 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) Each Participant agrees, severally and not jointly, to
indemnify and hold harmless the Company, its affiliates, directors, officers,
agents, representatives and employees and each Person who controls the Company
within the meaning of Section 15 of the Securities Act or Section 20(a) of the
Exchange Act to the same extent as the foregoing indemnity from the Company to
each Participant, but only (i) with reference to information relating to such
Participant furnished to the Company in writing by or on behalf of such
Participant expressly for use in any Registration Statement or Prospectus, any
amendment or supplement thereto, or any preliminary prospectus or (ii) with
respect to any untrue statement or representation made by such Participant in
writing to the Company. The liability of any Participant under this paragraph
shall in no event exceed the proceeds received by such Participant from sales of
Transfer Restricted Securities or Exchange Securities giving rise to such
obligations.
(c) If any suit, action, proceeding (including any governmental
or regulatory investigation), claim or demand shall be brought or asserted
against any Person in respect of which indemnity may be sought pursuant to
either of the two preceding paragraphs, such Person (the "Indemnified Person")
shall promptly notify the Person against whom such indemnity may be sought (the
"Indemnifying Person") in writing, and the Indemnifying Person, upon request of
the Indemnified Person, shall retain counsel reasonably satisfactory to the
Indemnified Person to represent the Indemnified Person and any others the
Indemnifying Person may reasonably designate in such proceeding and shall pay
the reasonable fees and expenses actually incurred by such counsel related to
such proceeding; provided, however, that the failure to so notify the
Indemnifying Person shall not relieve it of any obligation or liability which it
may have hereunder or otherwise (unless and only to the extent that such failure
directly results in the loss or compromise of any material rights or defenses by
the Indemnifying Person and the Indemnifying Person was not otherwise aware of
such action or claim). In any such proceeding, any Indemnified Person shall have
the right to retain its own counsel, but the fees and expenses of such counsel
shall be at the expense of such Indemnified Person unless (i) the Indemnifying
Person and the Indemnified Person shall have mutually
24
agreed in writing to the contrary, (ii) the Indemnifying Person shall have
failed within a reasonable period of time to retain counsel reasonably
satisfactory to the Indemnified Person or (iii) the named parties in any such
proceeding (including any impleaded parties) include both the Indemnifying
Person and the Indemnified Person and representation of both parties by the same
counsel would be inappropriate due to actual or potential differing interests
between them. It is understood that, unless there exists a conflict among
Indemnified Persons, the Indemnifying Person shall not, in connection with any
one such proceeding or separate but substantially similar related proceeding in
the same jurisdiction arising out of the same general allegations, be liable for
the fees and expenses of more than one separate firm (in addition to any local
counsel) for all Indemnified Persons, and that all such fees and expenses shall
be reimbursed promptly as they are incurred. Any such separate firm for the
Participants and such control Persons of Participants shall be designated in
writing by Participants who sold a majority in interest of Transfer Restricted
Securities and Exchange Securities sold by all such Participants and any such
separate firm for the Company, its directors, its officers and such control
Persons of the Company shall be designated in writing by the Company. The
Indemnifying Person shall not be liable for any settlement of any proceeding
effected without its prior written consent, but if settled with such consent or
if there be a final non-appealable judgment for the plaintiff for which the
Indemnified Person is entitled to indemnification pursuant to this Agreement,
the Indemnifying Person agrees to indemnify and hold harmless each Indemnified
Person from and against any loss or liability by reason of such settlement or
judgment. Notwithstanding the foregoing sentence, if at any time an Indemnified
Person shall have requested an Indemnifying Person to reimburse the Indemnified
Person for reasonable fees and expenses actually incurred by counsel as
contemplated by the third sentence of this paragraph, the Indemnifying Person
agrees that it shall be liable for any settlement of any proceeding effected
without its written consent if (i) such settlement is entered into more than 30
days after receipt by such Indemnifying Person of the aforesaid request and (ii)
such Indemnifying Person shall not have reimbursed the Indemnified Person in
accordance with such request prior to the date of such settlement; provided,
however, that the Indemnifying Person shall not be liable for any settlement
effected without its consent pursuant to this sentence if the Indemnifying
Person is contesting, in good faith, the request for reimbursement. No
Indemnifying Person shall, without the prior written consent of the Indemnified
Person, effect any settlement or compromise of any pending or threatened
proceeding in respect of which any Indemnified Person is or could have been a
party, and indemnity could have been sought hereunder by such Indemnified
Person, unless such settlement (A) includes an unconditional written release of
such Indemnified Person, in form and substance reasonably satisfactory to such
Indemnified Person, from all liability on claims that are the subject matter of
such proceeding and (B) does not include any statement as to an admission of
fault, culpability or failure to act by or on behalf of any Indemnified Person.
(d) If the indemnification provided for in paragraphs (a) and (b)
of this Section 7 is for any reason unavailable to, or insufficient to hold
harmless, an Indemnified
25
Person in respect of any losses, claims, damages or liabilities referred to
therein, then each Indemnifying Person under such paragraphs, in lieu of
indemnifying such Indemnified Person thereunder and in order to provide for just
and equitable contribution, shall contribute to the amount paid or payable by
such Indemnified Person as a result of such losses, claims, damages or
liabilities in such proportion as is appropriate to reflect (i) the relative
benefits received by the Indemnifying Person or Persons on the one hand and the
Indemnified Person or Persons on the other from the offering of the Transfer
Restricted Securities or Exchange Securities or (ii) if the allocation provided
by the foregoing clause (i) is not permitted by applicable law, not only such
relative benefits but also the relative fault of the Indemnifying Person or
Persons on the one hand and the Indemnified Person or Persons on the other in
connection with the statements or omissions or alleged statements or omissions
that resulted in such losses, claims, damages or liabilities (or actions in
respect thereof). The relative fault of the parties 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, on the one hand, or such
Participant or such other Indemnified Person, as the case may be, on the other,
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission, and any other equitable
considerations appropriate in the circumstances.
(e) The parties agree that it would not be just and equitable if
contribution pursuant to this Section 7 were determined by pro rata allocation
(even if the Participants were treated as one entity for such purpose) or by any
other method of allocation that does not take account of the equitable
considerations referred to in the immediately preceding paragraph. The amount
paid or payable by an Indemnified Person as a result of the losses, claims,
damages and liabilities referred to in the immediately preceding paragraph shall
be deemed to include, subject to the limitations set forth above, any reasonable
legal or other expenses actually incurred by such Indemnified Person in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 7, in no event shall a
Participant be required to contribute any amount in excess of the amount by
which proceeds received by such Participant from sales of Transfer Restricted
Securities or Exchange Securities, as the case may be, exceeds the amount of any
damages that such Participant has otherwise been required to pay or has paid by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No Person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any Person who was not guilty of such fraudulent misrepresentation.
(f) The indemnity and contribution agreements contained in this
Section 7 will be in addition to any liability which the Indemnifying Persons
may otherwise have to the Indemnified Persons referred to above.
8. Rules 144 and 144A.
26
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, if at any time
the Company is not required to file such reports, it will, upon the request of
any Holder of Transfer Restricted Securities, 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 Transfer Restricted Securities remain outstanding, to make
available to any Holder or beneficial owner of Transfer Restricted Securities in
connection with any sale thereof and any prospective purchaser of such Transfer
Restricted Securities 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 Transfer Restricted Securities pursuant to Rule 144A.
9. Underwritten Registrations.
If any of the Transfer Restricted Securities covered by any Shelf
Registration are to be sold in an underwritten offering, the investment banker
or investment bankers and manager or managers that will manage the offering will
be selected by the Holders of a majority in liquidation preference or aggregate
principal amount, as applicable, of such Transfer Restricted Securities included
in such offering and reasonably acceptable to the Company.
No Holder of Transfer Restricted Securities may participate in
any underwritten registration hereunder unless such Holder (a) agrees to sell
such Holder's Transfer Restricted Securities 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. Miscellaneous.
(a) No Inconsistent Agreements. The Company has not entered, as
of the date hereof, and the Company will 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 Transfer Restricted
Securities in this Agreement or otherwise conflicts with the provisions hereof.
The Company has not entered and the Company will not enter into any agreement
with respect to any of its securities which will grant to any Person piggy-back
registration rights with respect to any Registration Statement, other than the
Common Stock Registration Rights Agreement, dated as of June 5, 1996, among the
Company, ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co. and BT Securities Corporation.
27
(b) Adjustments Affecting Transfer Restricted Securities. The
Company will not, directly or indirectly, take any action with respect to the
Transfer Restricted Securities as a class that would adversely affect the
ability of the Holders of Transfer Restricted Securities to include such
Transfer Restricted Securities 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 Holders of not less than a majority in aggregate
liquidation preference or principal amount, as applicable, of the then
outstanding Transfer Restricted Securities. 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 Transfer Restricted
Securities 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 Transfer Restricted Securities may be given by
Holders of at least a majority in aggregate liquidation preference or principal
amount, as applicable, of the Transfer Restricted Securities 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:
(i) if to a Holder of the Transfer Restricted Securities or any
Participating Broker-Dealer, at the most current address of such Holder
or Participating BrokerDealer, as the case may be, given by such Holder
or Participating Broker-Dealer to the Company in accordance with this
Section 10(d)(i) with a copy to the Initial Purchasers as follows:
TD Securities (USA) Inc.
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile No: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
with a copy to:
Shearman & Sterling
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile No: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, Esq.
(ii) if to the Initial Purchasers, at the address specified in
Section 10(d)(i);
(iii) if to the Company, as follows:
Benedek Communications Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile No: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Senior Vice President-Finance
with a copy to:
Shack & ▇▇▇▇▇▇, P.C.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
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; 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 to the extent
such successor or assign holds Transfer Restricted Securities.
(f) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(g) Headings. The headings in this Agreement are for convenience
of reference only and shall not limit or otherwise affect the meaning hereof.
29
(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. 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) Transfer Restricted Securities Held by the Company or its
Affiliates. Whenever the consent or approval of Holders of a specified
percentage of Transfer Restricted Securities is required hereunder, Transfer
Restricted Securities 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 Transfer Restricted
Securities and Participating Broker-Dealers are intended third party
beneficiaries of this Agreement and this Agreement may be enforced by such
Persons.
30
IN WITNESS WHEREOF, the parties have executed this Agreement as
of the date first written above.
BENEDEK COMMUNICATIONS CORPORATION
By: /s/ K. ▇▇▇▇▇ ▇▇▇▇▇
___________________________________
Name: K. ▇▇▇▇▇ ▇▇▇▇▇
Title: President
TD SECURITIES (USA) INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
___________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Title: Managing Director
BT ALEX. ▇▇▇▇▇ INCORPORATED
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
___________________________________
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President