REGISTRATION RIGHTS AGREEMENT
Among
▇▇▇▇▇▇▇▇ Broadcast Group, Inc.,
KDSM, Inc.,
▇▇▇▇▇▇▇▇ Capital,
▇▇▇▇▇ ▇▇▇▇▇▇ Inc. and
Chase Securities Inc.
Dated as of March 5, 1997
Exhibit 4.2
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement"), dated as of March
5, 1997, among ▇▇▇▇▇▇▇▇ Broadcast Group, Inc., a Maryland corporation
("▇▇▇▇▇▇▇▇" or the "Company"), KDSM, Inc., a Maryland corporation and indire t
wholly owned subsidiary of ▇▇▇▇▇▇▇▇ ("KDSM, Inc."), ▇▇▇▇▇▇▇▇ Capital, a Delaware
statutory business trust (the "Trust"), and ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. and Chase
Securities Inc., as the initial purchasers (the "Initial Purchasers") of the 11
5/8% High Yield Trust Offered Preferred Securities of the Trust, which are
guaranteed by the Company.
This Agreement is made pursuant to the Purchase Agreement dated March
5, 1997, among the Trust and the Initial Purchasers (the "Purchase Agreement"),
which provides for the sale by the Trust to the Initial Purchasers of the
Preferred Securities (as defined below). The Preferred Securities are to be
issued by the Trust pursuant to the provisions of Trust Agreement (as defined
below).
In order to induce the Initial Purchasers to enter into the Purchase
Agreement, ▇▇▇▇▇▇▇▇, KDSM, Inc. and the Trust have agreed to provide to the
Initial Purchasers and its direct and indirect transferees the registration
rights with respect to the Preferred Securities and certain other securities as
set forth in this Agreement. The execution of this Agreement is a condition to
the closing under the Purchase Agreement.
1. Definitions.
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As used in this Agreement, the following capitalized defined terms shall have
the following meanings:
"Administrative Trustees" shall mean the Administrative Trustees named
under the Trust Agreement.
"Business Day" means any day other than (i) a Saturday or a Sunday,
(ii) a day on which banking institutions in Maryland or The City of New York are
authorized or obligated by law or executive order to close or (iii) a day on
which the office of the trustee or transfer agent, as the case may be, or an
affiliate or agent thereof at which at any particular time the corporate trust
business for the purposes of the Parent Preferred, the Indenture or the
Preferred Securities shall be principally administered is closed for business.
"Closing Date" shall mean the date on which the Preferred Securities
are initially issued by the Trust to the Initial Purchasers.
"Commission" shall mean the Securities and Exchange Commission, or any
other federal agency at the time administering the Exchange Act or the
Securities Act, whichever is the relevant statute for the particular purpose.
"Company" shall have the meaning set forth in the preamble.
"Debentures" shall mean the 11 5/8% Senior Debentures due 2009 Series
A, of KDSM, Inc. in the aggregate principal amount of $206,200,000 to be issued
under the In enture, and securities issued in exchange therefor or in lieu
thereof pursuant to the Indenture.
"Debenture Trustee" shall mean the trustee under the Indenture.
"Delaware Trustee" shall mean the person so designated pursuant to the
Trust Agreement.
"Effective Time", in the case of (i) an Exchange Offer, shall mean the
time and date as of which the Commission declares the Exchange Offer
Registration Statement effective or as of which the Exchange Offer Registration
Statement otherwise becomes effective and (ii) a Shelf Registration, shall mean
the time and date as of which the Commission declares the Shelf Registration
effective or as of which the Shelf Registration otherwise becomes effective.
"Exchange Act" shall mean the Securities Exchange Act of 1934, or any
successor thereto, and the rules, regulations and forms promulgated thereunder,
all as the same shall be amended from time to time.
"Exchange Date" shall have the meaning set forth in Section 2(a)(ii).
"Exchange Offer" shall have the meaning assigned thereto in Section
2(a) hereof.
"Exchange Offer Registration" shall mean a registration under the
Securities Act effected pursuant to Section 2(a) hereof.
"Exchange Offer Registration Statement" shall mean an exchange offer
registration statement on Form S-4 (or, if applicable, on another appropriate
form) and all amendments and supplements to such registration statement, in each
case including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
"Exchange Securities" shall have the meaning assigned thereto in
Section 2(a) hereof.
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"Holder" shall mean the holders of the Preferred Securities, the
Debentures or the Parent Preferred, as the case may be, for so long as it owns
any Registrable Securities, and each of its successors, assigns and direct and
indirect transferees who become registered owners of Registrable Securities;
provided, that for purposes of Sections 4 and 5 of this Agreement, the term
"Holder" shall include Participating Broker-Dealers (as defined in Section
4(a)).
"Indenture" shall mean the Indenture, dated as of March 12, 1997, among
▇▇▇▇▇▇▇▇, KDSM, Inc. and First Union National Bank of Maryland, as Debenture
Trustee, as the same shall be amended from time to time.
"Initial Purchasers" shall have the meaning set forth in the preamble.
"Issuers" shall mean ▇▇▇▇▇▇▇▇, KDSM, Inc. and the Trust.
"KDSM, Inc." shall have the meaning set forth in the preamble.
"Liquidation Amount" shall mean the stated amount of $100 per share of
the Parent Preferred.
"Liquidation Value" shall mean the stated amount of $100 per Preferred
Security.
"Majority Holders" shall mean the Holders of a majority of the (i)
aggregate principal amount in the case of the Debentures, (ii) the Liquidation
Value in the case of the Preferred Securities or (iii) the Liquidation Amount in
the case of the Parent Preferred, of outstanding Registrable Securities;
provided that, for purposes of Section 6(b), whenever the consent or approval of
Holders of a specified percentage of Registrable Securities is required
hereunder, Registrable Securities held by the Company, its subsidiaries or the
Trust or any of their respective affiliates (as such term is defined in Rule 405
under the Securities Act) (other than the Initial Purchasers or subsequent
Holders of Registrable Securities if such subsequent Holders are deemed to be
such affiliates solely by reason of their holding of such Registrable
Securities) shall not be counted in determining whether such consent or approval
was given by the Holders of such required percentage or amount.
"Offer Termination Date" shall have the meaning set forth in Section
2(a)(iii).
"Parent Guarantee" shall mean the guarantee by ▇▇▇▇▇▇▇▇ of certain
obligations of the Trust pursuant to the Preferred Securities.
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"Parent Debenture Guarantee" shall mean the guarantee by ▇▇▇▇▇▇▇▇ of
the obligations of KDSM, Inc. under the Debentures and the Indenture which may
become effective in certain circumstances.
"Parent Preferred" shall mean the 12 5/8% Series C Preferred Stock, par
value $.01 per share, of ▇▇▇▇▇▇▇▇, Liquidation Amount of $100 per share, to be
issued by ▇▇▇▇▇▇▇▇ to KDSM, Inc.
"Participating Broker-Dealer" shall have the meaning set forth in
Section 4(a) hereof.
"Penalty Amount" shall have the meaning assigned thereto in Section
2(c) hereof.
"Person" shall mean an individual, partnership, corporation, trust or
unincorporated organization, or a government or agency or political subdivision
thereof.
"Preferred Securities" shall mean the 11 5/8% High Yield Trust Offered
Preferred Securities, of the Trust, Liquidation Value $100 per Preferred
Security, to be issued under the Trust Agreement and sold to the Initial
Purchasers, and securities issued in exchange therefor or in lieu thereof
pursuant to the Trust Agreement.
"Prescribed Time Period" shall have the meaning set forth in Section
2(d)(i).
"Property Trustee" shall mean the person so designated pursuant to the
Trust Agreement.
"Prospectus" shall mean the prospectus included in a Registration
Statement, including any preliminary prospectus, and any such prospectus as
amended or supplemented by any prospectus supplement, including a prospectus
supplement with respect to the terms of the offering of any portion of the
Registrable Securities covered by a Shelf Registration Statement, and by all
other amendments and supplements to such prospectus, and in each case including
all material incorporated by reference therein.
"Purchase Agreement" shall have the meaning set forth in the preamble.
"Registrable Securities" shall mean each of the Preferred Securities,
the Debentures, the Parent Preferred, the Parent Guarantee and the Parent
Debenture Guarantee (if effective); provided, however, that any such Securities
shall cease to be Registrable Securities (i) when a Registration Statement with
respect to such Registrable Securities shall have been declared effective under
the Securities Act and such Securities shall have been disposed of or exchanged
pursuant to such Registration Statement, (ii) upon the expiration of the
Exchange Offer period with respect to any Exchange Offer
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Registration Statement if all Registrable Securities validly tendered in
connection with such Exchange Offer shall have been exchanged for Exchange
Securities, (iii) when such Securities have been sold or are eligible for sale
to the public pursuant to Rule 144(k) (or any similar provision then in force,
but not Rule 144A) under the Securities Act or (iv) when such Securities shall
have ceased to be outstanding; provided, however, that if an opinion of counsel
as described in Section 2(d)(i)(B) is delivered to the Company, then such
Securities held by the Initial Purchasers shall not cease to be Registrable
Securities solely by reason of clause (ii) above.
"Registration Default" shall have the meaning assigned thereto in
Section 2(c) hereof.
"Registration Default Interest" shall have the meaning assigned thereto
in Section 2(c) hereof.
"Registration Default Distributions" shall have the meaning assigned
thereto in Section 2(c).
"Registration Expenses" shall mean any and all expenses incident to
performance of or compliance by the Company, KDSM, Inc. and the Trust with this
Agreement, including without limitation: (i) all Commission, stock exchange or
National Association of Securities Dealers, Inc. registration and filing fees,
(ii) all fees and expenses incurred in connection with compliance with state
securities or blue sky laws, (iii) all expenses of any Person in preparing or
assisting in preparing, word processing, printing and distributing, at the
request of the Company, any Registration Statement, any Prospectus, any
amendments or supplements thereto, (iv) all fees and disbursements relating to
the qualification of the Indenture under applicable securities laws, (v) the
fees and disbursements of the Debenture Trustee, the Property Trustee, the
Administrative Trustees and their respective counsels and of any escrow agent as
custodian, (vi) the fees and disbursements of counsel for the Company and the
reasonable fees and disbursements of one counsel for the Holders in connection
with an Exchange Offer Registration Statement and a Shelf Registration
Statement, (vii) the fees and disbursements of the independent public
accountants of the Company, including the expenses of any special audits or
"cold comfort" letters required by or incident to such performance and
compliance, but excluding underwriting discounts, if any, and commissions and
transfer taxes, if any, relating to the sale or disposition of Registrable
Securities by a Holder, (viii) fees, disbursements and expenses of any
"qualified independent underwriter" engaged, if any.
"Registration Statement" shall mean any registration statement of the
Issuers that covers any of the Exchange Securities or Registrable Securities
pursuant to the provisions of this Agreement and all amendments and supplements
to any such
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Registration Statement, including post-effective amendments, in each case
including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
"Resale Period" shall have the meaning assigned thereto in Section 2(a)
hereof.
"Restricted Holder" shall mean (i) a holder that is an affiliate of
▇▇▇▇▇▇▇▇, KDSM, Inc., or the Trust within the meaning of Rule 405, (ii) a holder
who acquires Exchange Securities outside the ordinary course of such holder's
business or (iii) a holder who has arrangements or understandings with any
person to participate in the Exchange Offer for the purpose of distributing
Exchange Securities.
"Rule 144," "Rule 405" and "Rule 415" shall mean, in each case, such
rule promulgated under the Securities Act.
"Securities" shall mean, collectively, the Preferred Securities, the
Debentures, the Parent Preferred, the Parent Guarantee and the Parent Debenture
Guarantee (if effective).
"Shelf Registration" shall have the meaning assigned thereto in Section
2(b) hereof.
"Shelf Registration Statement" shall mean a "shelf" registration
statement of the Issuers pursuant to the provisions of Section 2(b) of this
Agreement which covers all of the Registrable Securities on an appropriate form
under Rule 415 under the Securities Act, or any similar rule that may be adopted
by the Commission, 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.
"Trust" shall have the meaning set forth in the preamble.
"Trust Agreement" shall mean the Amended and Restated Trust Agreement,
dated as of March 12, 1997, among KDSM, Inc. as Depositor, First Union National
Bank of Maryland, as Property Trustee, First Union Bank of Delaware, as Delaware
Trustee, the Administrative Trustees named therein and the holders from time to
time of beneficial interests in the Trust.
"Trust Indenture Act" shall mean the Trust Indenture Act of 1939, or
any successor thereto, and the rules, regulations and forms promulgated
thereunder, all as the same shall be amended from time to time.
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"Trust Securities" shall mean, collectively, the Preferred Securities
and the Common Securities to be issued under the Trust Agreement to KDSM, Inc.
Unless the context otherwise requires, any reference herein to a
"Section" or "clause" refers to a Section or clause, as the case may be, of this
Agreement, and the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any particular
Section or other subdivision. Unless the context otherwise requires, any
reference to a statute, rule or regulation shall be deemed to be a statute, rule
or regulation (including any successor statute, rule or regulation thereto) as
it may be amended from time to time.
2. Registration under the Securities Act.
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(a) Except as set forth in Section 2(b) below, the Issuers
agree to use their best efforts to file under the Securities Act as soon as
practicable after the Closing Date, but in no event later than 60 days, an
Exchange Offer Registration Statement relating to an offer by the Trust, KDSM,
Inc. and the Company, as the case may be, to exchange (the "Exchange Offer") (i)
any and all of the Preferred Securities, the Debentures, and the Parent
Preferred for a like aggregate amount of such securities issued by the Trust,
KDSM, Inc. and ▇▇▇▇▇▇▇▇, respectively, which securities are identical in all
material respects to the Preferred Securities, the Debentures and the Parent
Preferred, respectively, except that the Preferred Securities, the Debentures
and the Parent Preferred have been registered pursuant to an effective
registration statement under the Securities Act, do not contain restrictions on
transfers (except as they may be held by Restricted Holders) and provide for the
additional interest and additional distributions contemplated in Section 2(d)
below for any periods before such exchange and (ii) the Parent Guarantee and the
Parent Debenture Guarantee (if effective) for like guarantees by ▇▇▇▇▇▇▇▇ of the
obligations of the Trust under the Preferred Securities and of the obligations
of KDSM, Inc. under the Debentures, respectively, which guarantees are identical
to the Parent Guarantee and the Parent Debenture Guarantee (if effective),
except that it has been registered pursuant to an effective registration
statement under the Securities Act and does not contain restrictions on
transfers (such new Preferred Securities, Debentures, Parent Preferred, Parent
Guarantee and Parent Debenture Guarantee (if effective) hereinafter called
collectively "Exchange Securities"). The Issuers agree to use their best efforts
to cause the Exchange Offer Registration Statement to become effective under the
Securities Act as soon as practicable after the filing of the Exchange Offer
Registration Statement but in no event later than 120 days after the Closing
Date. The Exchange Offer will be registered under the Securities Act on the
appropriate form and will comply with all applicable tender offer and other
rules and regulations under the Exchange Act. The Issuers further agree to use
their best efforts to commence and consummate the Exchange Offer promptly after
the Exchange Offer Registration Statement has become effective, hold the
Exchange Offer open for
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not less than 20 Business Days (or longer if required by applicable law) after
the date notice of the Exchange Offer has been mailed to Holders and Exchange
Securities for all Securities that have been properly tendered and not withdrawn
on or prior to the expiration of the Exchange Offer and to consummate such
Exchange Offer within 150 days after the Closing Date. In connection with any
Debenture or Parent Debenture Guarantee (if effective) properly tendered and not
withdrawn pursuant to an Exchange Offer, KDSM, Inc. agrees, pursuant to the
provisions of Section 306 of the Indenture, to exchange the certificate
representing the related Debentures for a certificate not bearing legends
related to restrictions on transfers. The Exchange Offer will be deemed to have
been completed, as the case may be, only if the Exchange Securities received by
holders other than Restricted Holders in the Exchange Offer are, upon receipt,
transferable by each such holder without restriction under the Securities Act
and the Exchange Act and without material restrictions under the blue sky or
securities laws of the States of the United States of America. The Exchange
Offer shall be deemed to have been completed upon ▇▇▇▇▇▇▇▇, KDSM, Inc. and the
Trust having exchanged, pursuant to the Exchange Offer, the Exchange Securities
for all outstanding Preferred Securities, Debentures, Parent Preferred, the
Parent Guarantee and Parent Debenture Guarantee (if effective), as the case may
be, pursuant to the Exchange Offer, properly tendered and not withdrawn before
the expiration of the Exchange Offer, which shall be on a date that is not less
than 20 Business Days following the commencement of the Exchange Offer. The
Issuers shall commence the Exchange Offer by mailing the related exchange offer
Prospectus and accompanying documents to each Holder stating, in addition to
such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this
Agreement and that all Registrable Securities validly tendered will be
accepted for exchange;
(ii) the dates of acceptance for exchange (which shall be a
period of at least 20 Business Days from the date such notice is
mailed) (each such date being an "Exchange Date");
(iii) that Holders electing to have a Registrable Security
exchanged pursuant to the Exchange Offer will be required to surrender
such Registrable Security, together with the enclosed letters of
transmittal, to the institution and at the address specified in the
notice prior to the close of business on the last Exchange Date (the
"Offer Termination Date"); and
(iv) that Holders will be entitled to withdraw their election,
not later than the close of business on the Offer Termination Date, by
sending to the institution and at the address specified in the notice a
telegram, telex, facsimile transmission or letter setting forth the
name of such Holder, the principal amount, Liquidation Value or
Liquidation Amount of Registrable Securities delivered for
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exchange and a statement that such Holder is withdrawing its election
to have such Registration Securities exchanged.
As soon as practicable after the Offer Termination Date, the Issuers shall:
(A) accept for exchange Registrable Securities or
portions thereof tendered and not validly withdrawn pursuant
to the Exchange Offer; and
(B) deliver, or cause to be delivered, to the
applicable trustee for cancellation all Registrable Securities
or portions thereof so accepted for exchange by the Issuers
and issue, and cause the applicable trustee to promptly
authenticate and mail to each Holder, an Exchange Security
equal in aggregate principal, Liquidation Value or Liquidation
Amount to the aggregate principal amount, Liquidation Value or
Liquidation Amount, as the case may be, of the Registrable
Securities surrendered by such Holder. The Company shall use
its best efforts to complete the Exchange Offer as provided
above and shall comply with the applicable requirements of the
Securities Act, the Exchange Act and other applicable laws and
regulations in connection with the Exchange Offer. The
Exchange Offer shall not be subject to any conditions, other
than that the Exchange Offer does not violate applicable law
or any applicable interpretation of the staff of the
Commission. The Company shall inform the Initial Purchasers of
the names and addresses of the Holders to whom the Exchange
Offer is made, and the Initial Purchasers shall have the
right, subject to applicable law, to contact such Holders and
otherwise facilitate the tender of Registrable Securities in
the Exchange Offer.
Each Holder of the Preferred Securities participating in the Exchange
Offer shall be required to represent to the Company that at the time of the
consummation of the Exchange Offer (i) such Holder is not an "affiliate" of the
Company within the meaning of Rule 405 under the Securities Act, (ii) the
Exchange Securities being acquired by it pursuant to the Exchange Offer are
being obtained in the ordinary course of the business of the person receiving
such Exchange Securities and (iii) that the Holder has no arrangement or
understanding with any Person to participate in the distribution of the Exchange
Securities. If such Holder is a Participating Broker-Dealer that will receive
Exchange Securities for its own account in exchange for the Registrable
Securities that were acquired as a result of market-making activities or other
trading activities, it will be required to acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Securities.
(b) In the event that (i) due to a change in applicable law or current
interpretations by the Commission, the Issuers are not permitted to effect the
Exchange Offer for all of the Securities, (ii) the Exchange Offer for all of the
Securities is not for any other reason consummated within 150 days after the
Closing Date, or (iii) any
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Holder shall, within 30 days after consummation of the Exchange Offer, notify
the Issuers that such Holder (x) is prohibited by applicable law or Commission
policy from participating in the Exchange Offer, (y) may not resell Exchange
Securities acquired by it in the Exchange Offer to the public without delivering
a prospectus and that the Prospectus contained in the Exchange Offer
Registration Statement is not appropriate or available for such resales by such
Holder or (z) is a broker-dealer and holds Preferred Securities acquired
directly from the Issuers or an "affiliate" of the Issuers, then in addition to
or in lieu of conducting the Exchange Offer contemplated by Section 2(a) or (iv)
at the request of either of the Initial Purchasers, the Issuers will be required
to file a "shelf" registration statement (a "Shelf Registration Statement")
covering resales (a) by the holders of the Registrable Securities in the event
the Issuers are not permitted to effect the Exchange Offer pursuant to the
foregoing clause (i) or the Exchange Offer is not consummated within 150 days
after the Closing Date pursuant to the foregoing clauses (i) or (ii) or (b) by
the Holders of Securities with respect to which the Company receives notice
pursuant to the foregoing clauses (iii) or (iv). The Administrative Trustees
will promptly deliver to the Holders, the Property Trustee and the Delaware
Trustee, or KDSM, Inc. will promptly deliver to the holders of the Debentures,
if not the Trust, written notice that the Issuers will be complying with the
provisions of this Section 2(b). The Issuers agree to use their best efforts to
cause the Shelf Registration to become or be declared effective and to keep such
Shelf Registration continuously effective for a period ending on the second
anniversary of the Effective Time (the "Effective Period") or such shorter
period that will terminate when all of the Registrable Securities covered by the
Shelf Registration Statement have been sold pursuant to the Shelf Registration
Statement. The Issuers shall, if they file a Shelf Registration Statement,
provide to each holder of the Registrable Securities copies of the prospectus
and notify each such holder when the Shelf Registration Statement has become
effective. The Issuers further agree to supplement or make amendments to the
Shelf Registration, as and when required by the rules, regulations or
instructions applicable to the registration form used by the Issuers for such
Shelf Registration or by the Securities Act or rules and regulations thereunder
for shelf registration (including, without limitation, updating the Shelf
Registration Statement upon the distribution of the Debentures as a result of
the liquidation of the Trust pursuant to the terms of the Trust Agreement), and
▇▇▇▇▇▇▇▇, KDSM, Inc. and the Trust agree to furnish to the holders of the
Registrable Securities copies of any such supplement or amendment prior to its
being used or promptly following its filing with the Commission.
(c) The Company and KDSM, Inc. shall, jointly and severally,
pay all Registration Expenses in connection with the registration pursuant to
Section 2(a) or Section 2(b). Each Holder shall pay all underwriting discounts,
if any, and commissions and transfer taxes, if any, relating to the sale or
disposition of such Holder's Registrable Securities pursuant to the Exchange
Offer Registration Statement or a Shelf Registration Statement, as the case may
be.
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(d) An Exchange Offer Registration Statement pursuant to
Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b)
hereof will not be deemed to have become effective unless it has been declared
effective by the Commission; provided, however, that, if, after it has been
declared effective, the offering of Registrable Securities pursuant to a Shelf
Registration Statement is interfered with by any stop order, injunction or other
order or requirement of the Commission or any other governmental agency or
court, such Registration Statement will be deemed not to have been effective
during the period of such interference until the offering of Registrable
Securities pursuant to such Registration Statement may legally resume. If the
Issuers shall fail to comply with this Agreement or if the Exchange Offer
Registration Statement or the Shelf Registration fails to become effective (any
such event a "Registration Default"), then, as liquidated damages, registration
default Distributions (the "Registration Default Distributions"), shall become
payable on the Parent Preferred and the Preferred Securities and registration
default interest (the "Registration Default Interest") shall become payable in
respect of the Debentures as follows (the Registration Default Distributions and
the Registration Default Interest are hereinafter referred to as "Penalty
Amounts"):
(i) (A) if an Exchange Offer Registration Statement or, in the
event of a change in applicable law or due to current interpretations
by the Commission the Issuers are not permitted to effect the Exchange
Offer, a Shelf Registration Statement is not filed within 60 days
following the Closing Date, (B) in the event that within the 30 days
after consummation of the Exchange Offer, any Holder of the Registrable
Securities shall notify the Issuers that such Holder (x) is prohibited
by applicable law or Commission policy from participating in the
Exchange Offer, (y) may not resell Exchange Securities acquired by it
in the Exchange Offer to the public without delivering a prospectus and
that the prospectus contained in the Exchange Offer Registration
Statement is not appropriate or available for such resales by such
holder or (z) is a broker-dealer and holds Securities acquired directly
from the Issuers or an "affiliate" of the Issuers or (C) upon the
request of an Initial Purchaser, a Shelf Registration Statement is not
filed within 60 days after such request, then commencing on either the
61st day after the Closing Date or the expiration of either the time
periods set forth in clauses (B) and (C) above (either a "Prescribed
Time Period"), as the case may be, Penalty Amounts shall be accrued on
the Parent Preferred, the Debentures and the Preferred Securities over
and above the stated payment rates thereon at a rate of .50% per annum
for the first 90 days immediately following either the 61st day after
the Closing Date or the expiration of the Prescribed Time Period, as
the case may be, such Penalty Amount rate increasing by an additional
.25% per annum at the beginning of each subsequent 90-day period;
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(ii) if an Exchange Offer Registration Statement or a Shelf
Registration Statement is filed pursuant to clause (i) of the preceding
full paragraph and is not declared effective within 120 days following
either the Closing Date or the expiration of the Prescribed Time
Period, as the case may be, then commencing on the 121st day after
either the Closing Date or the expiration of the Prescribed Time
Period, as the case may be, Penalty Amounts shall be accrued on the
applicable Securities over and above the accrued stated payment rates
thereon at a rate of .50% per annum for the first 90 days immediately
following the 121st day after either the Closing Date or the expiration
of the Prescribed Time Period, as the case may be, such Penalty Amounts
rate increasing by an additional .25% per annum at the beginning of
each subsequent 90-day period; and
(iii) if either (A) the Issuers have not exchanged Exchange
Securities for all applicable Securities validly tendered in accordance
with the terms of the Exchange Offer on or prior to 150 days after the
Closing Date or the expiration of the Prescribed Time Period, or (B) if
applicable, a Shelf Registration Statement has been declared effective
and such Shelf Registration Statement ceases to be effective prior to
the end of the Effective Period, or such shorter period that will
terminate when all of the Securities covered by the Shelf Registration
Statement have been sold pursuant to the Shelf Registration Statement,
then, subject to certain exceptions, Penalty Amounts shall be accrued
on the Securities over and above the stated payment rates at a rate of
.50% per annum for the first 60 days immediately following the (x) the
31st day after such effective date, in the case of (A) above, or (y)
the day such Shelf Registration Statement ceases to be effective in the
case of (B) above, such Penalty Amounts rate increasing by an
additional .25% per annum at the beginning of each subsequent 90-day
period;provided, however, that the Penalty Amounts rate on any of the
applicable Securities may not exceed 1.5% per annum; and provided
further, that (1) upon the filing of the Exchange Offer Registration
Statement or a Shelf Registration Statement (in the case of (i) above),
(2) upon the effectiveness of the Exchange Offer Registration Statement
or a Shelf Registration Statement (in the case of (ii) above), or (3)
upon the exchange of Exchange Securities for all Securities tendered
into the Exchange Offer or upon the effectiveness of the Shelf
Registration Statement which had ceased to remain effective prior to
the end of the Effective Period (in the case of (iii) above), Penalty
Amounts as a result of such clause (i), (ii) or (iii) shall cease to
accrue.
Any Penalty Amounts due pursuant to Clause (i), (ii) or (iii) above
will be payable in cash on the various payment dates related to the respective
Securities. The Penalty Amounts will be determined by multiplying the applicable
Penalty Amounts rate by the Liquidation Value of the Preferred Securities, the
Liquidation Amount of the Parent Preferred or principal amount of the
Debentures, as the case may be, multiplied
-12-
by a fraction, the numerator of which is the number of days such Penalty Amount
rate was applicable during such period, and the denominator of which is 360.
If the Company effects the Exchange Offer, the Company will be entitled
to close the Exchange Offer provided that it has accepted all Registrable
Securities theretofore validly tendered in accordance with the terms of the
Exchange Offer. Registrable Securities not tendered in the Exchange Offer shall
bear interest at the same rate as in effect at the time of issuance of the
Registrable Securities.
(e) without limiting the remedies available to the Initial
Purchasers and the Holders, each Issuer acknowledges that any failure by such
Issuer to comply with its obligations under Section 2(a) and Section 2(b) hereof
may result in material irreparable injury to the Holders for which there is no
adequate remedy at law, that it will not be possible to measure damage for such
injuries precisely and that, in the event of any such failure, the Initial
Purchasers or any Holder may obtain such relief as may be required to
specifically enforce the Company's obligations under Section 2(a) and Section
2(b) hereof.
3. Registration ▇▇▇▇▇▇▇▇▇▇.▇▇ connection with the obligations of the
Issuers with respect to the Registration Statements pursuant to Section 2(a) and
Section 2(b) hereof, the Issuers shall promptly as practicable:
(a) prepare and file with the Commission a Registration
Statement on the appropriate form under the Securities Act, which form shall (x)
be selected by the Issuers, (y) in the case of a Shelf Registration, be
available for the sale of the Registrable Securities by the selling Holders
thereof and (z) comply as to form in all material respects with the requirements
of the applicable form and include all financial statements required by the
Commission to be filed therewith or incorporated by reference therein, as the
case may be, and use their best efforts to cause such Registration Statement to
become effective and remain effective in accordance with Section 2 hereof;
(b) prepare and file with the Commission such amendments and
post-effective amendments to each Registration Statement as may be necessary to
keep such Registration Statement effective for the applicable period and cause
each Prospectus to be supplemented by any required prospectus supplement and, as
so supplemented, to be filed pursuant to Rule 424 under the Securities Act or,
in the case of a Shelf Registration, file, or cause to be filed, promptly all
reports required to be filed pursuant to Section 13(a), 13(c), 14 or 15(d) of
the Exchange Act required to be incorporated by reference therein; and keep each
Prospectus current during the period described under Section 4(3) and Rule 174
under the Securities Act that is applicable to transactions by brokers or
dealers with respect to the Registrable Securities or Exchange Securities;
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(c) in the case of a Shelf Registration, furnish to each
Holder of Registrable Securities to which such Shelf Registration Statement
relates, to counsel for the Initial Purchasers and to counsel for the Holders,
without charge, one copy of the Registration Statement and exhibits thereto and
as many copies of each Prospectus, including each preliminary Prospectus and any
amendment or supplement thereto, reasonably requested to facilitate the public
sale or other disposition of the Registrable Securities; and the Issuers consent
to the use of such Prospectus and any amendment or supplement thereto in
accordance with applicable law by each of the selling Holders of Registrable
Securities in connection with the offering and sale of the Registrable
Securities covered by and in the manner described in such Prospectus or any
amendment or supplement thereto in accordance with applicable law;
(d) use their best efforts (i) to register or qualify the
Registrable Securities under all applicable state securities or blue sky laws or
such jurisdictions as any Holder of Registrable Securities covered by a
Registration Statement shall reasonably request in writing by the time the
applicable Registration Statement is declared effective by the Commission, (ii)
keep such registrations or qualifications in effect and comply with such laws so
as to permit the continuance of offers, sales and dealings therein in such
jurisdictions during the period the Shelf Registration is required to remain
effective under Section 2(b) above and for so long as may be necessary to enable
any such Holder, agent or underwriter to complete its distribution of Securities
pursuant to such Registration Statement but in no event longer than two years
and (iii) to cooperate with such Holders in connection with any filings required
to be made with the National Association of Securities Dealers, Inc. and do any
and all other acts and things which may be reasonably necessary or advisable to
enable such Holder to consummate the disposition in each such jurisdiction of
such Registrable Securities owned by such Holder; provided, however, that the
Company shall not be required to (A) qualify as a foreign corporation or as a
dealer in securities in any jurisdiction where they would not otherwise be
required to qualify but for this Section 3(d), (B) file any general consent to
service of process or (C) subject themselves to taxation in any such
jurisdiction if they are not so subject;
(e) in the case of a Shelf Registration, notify each Holder of
Registrable Securities, counsel for the Holders and for the Initial Purchasers
(or, if applicable, separate counsel for the Holders) and, if requested by such
Persons, confirm such advice in writing, (i) when a Registration Statement has
become effective and when any post-effective amendment thereto has been filed
and becomes effective, (ii) of any request by the Commission or any state
securities authority for amendments and supplements to a Registration Statement
and Prospectus or for additional information after the Registration Statement
has become effective, (iii) of the issuance by the Commission or any state
securities authority of any stop order suspending the effectiveness of a
Registration Statement or the initiation of any proceedings for that
-14-
purpose, (iv) if the Issuers receive any notification with respect to the
suspension of the qualification of the Registrable Securities for sale in any
jurisdiction or the initiation of any proceeding for such purpose, (v) of the
happening of any event during the period a Shelf Registration Statement is
effective which makes any statement made in such Registration Statement or the
related Prospectus untrue in any material respect or which requires the making
of any changes in such Registration Statement or document incorporated by
reference therein in order to make the statements therein not misleading or
which requires the making of any changes in the Prospectus or documents
incorporated by reference therein in order to make the statements therein, in
light of the circumstances under which they were made, not misleading and (vi)
of any determination by the Issuers that a post-effective amendment to a
Registration Statement would be appropriate;
(f) use their best efforts to obtain the withdrawal of any
order suspending the effectiveness of a Registration Statement at the earliest
possible moment and provide prompt notice to each Holder of the withdrawal of
any such order;
(g) in the case of a Shelf Registration, furnish to each
Holder of Registrable Securities, without charge, at least one conformed copy of
each Registration Statement and any post-effective amendment thereto (without
documents incorporated therein by reference or exhibits thereto, unless
requested);
(h) in the case of a Shelf Registration, cooperate with the
selling Holders of Registrable Securities to facilitate the timely preparation
and delivery of certificates representing Registrable Securities to be sold and
not bearing any restrictive legends (unless required by applicable securities
laws) and enable such Registrable Securities to be in such denominations
(consistent with the provisions of the Indenture, the Trust Agreement or the
Articles Supplementary with respect to the Parent Preferred, as the case may be)
with and registered in such names as the selling Holders may reasonably request
at least two business days prior to the closing of any sale of Registrable
Securities;
(i) in the case of a Shelf Registration, upon the occurrence
of any event contemplated by Section 3(e)(v) hereof, use their best efforts to
prepare a supplement or post-effective amendment to a Registration Statement or
the related Prospectus or any document incorporated therein by reference or file
any other required document so that, as thereafter delivered to the purchasers
of the Registrable Securities, such Prospectus will not contain any untrue
statement of a material fact or omit to state a material fact necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading; provided that the Issuers agree to notify the Holders to
suspend use of the Prospectus as promptly as practicable after the occurrence of
such an event, and the Holders hereby agree to suspend use of the Prospectus
until the Issuers
-15-
have amended or supplemented the Prospectus or any document incorporated by
reference therein to correct such misstatement or omission;
(j) a reasonable time prior to the filing of any Registration
Statement, any Prospectus, any amendment to a Registration Statement or
amendment or supplement to a Prospectus or any document incorporated by
reference therein, provide copies of such document to the Initial Purchasers and
their counsel (and, in the case of a Shelf Registration Statement, counsel for
the Holders) and make such of the representatives of the Issuers as shall be
reasonably requested by the Initial Purchasers or their counsel (and, in the
case of a Shelf Registration Statement, counsel for the Holders) available for
discussion of such document, and shall not at any time file or make any
amendment to the Registration Statement, any Prospectus or any amendment of or
supplement to a Registration Statement or a Prospectus, of which the Initial
Purchasers and their counsel (and, in the case of a Shelf Registration
Statement, counsel for the Holders) shall not have previously been advised and
furnished a copy or to which the Initial Purchasers or their counsel (and, in
the case of a Shelf Registration Statement, counsel for the Holders) shall
reasonably object promptly in light of the circumstances in which made;
(k) obtain a CUSIP number for all Exchange Securities or
Registrable Securities (if applicable), as the case may be, not later than the
Effective Time;
(l) cause the Indenture, the Trust Agreement, the Parent
Guarantee or the Parent Debenture Guarantee (if effective) to be qualified under
the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"), in
connection with the registration of the applicable Exchange Securities or
applicable Registrable Securities, as the case may be, cooperate with the
applicable trustees and the Holders to effect such changes to the Indenture, the
Trust Agreement, the Parent Guarantee or the Parent Debenture Guarantee (if
effective) as may be required for the Indenture, the Trust Agreement, the Parent
Guarantee or the Parent Debenture Guarantee (if effective), as the case may be,
to be so qualified in accordance with the terms of the Trust Indenture Act and
execute, and use their best efforts to cause the applicable trustees to execute,
all documents as may be required to effect such changes and all other forms and
documents required to be filed with the Commission to enable the Indenture, the
Trust Agreement, the Parent Guarantee or the Parent Debenture Guarantee (if
effective), as the case may be, to be so qualified in a timely manner;
(m) in the case of a Shelf Registration, make reasonably
available for inspection by one representative of the Holders of the Registrable
Securities, counsel for the Holders and accountants designated by the Holders
and reasonably acceptable to the Issuers, at reasonable times and in a
reasonable manner and subject to the execution of customary confidentiality
agreements, all financial and other records, pertinent
-16-
documents and properties of the Issuers, and cause the respective officers,
directors and employees of the Issuers to supply all information reasonably
requested, and as is customary for similar due diligence examinations, by any
such representative, attorney or accountant in connection with a Shelf
Registration Statement;
(n) if requested by any Holder of Registrable Securities
covered by a Registration Statement, (i) promptly include in a Prospectus
supplement or post-effective amendment or document incorporated by reference in
such Prospectus such information with respect to such Holder as such Holder
requests to be included therein and (ii) make all required filing of such
Prospectus supplement or such post-effective amendment as soon as the Issuers
have received notification of the matters to be included in such filing; and
(o) in the case of a Shelf Registration or an Exchange Offer
Registration, if the Initial Purchasers on behalf of the Holders shall so
request, enter into such customary agreements and take all such other reasonable
actions in connection therewith (including, those reasonably requested by
counsel for the Holders) in order to expedite or facilitate the disposition of
such Registrable Securities and in such connection, (i) to the extent possible,
make such representations and warranties to the Holders of such Registrable
Securities with respect to the business of the Company and its subsidiaries and
the Trust, the Registration Statement, Prospectus and documents deemed
incorporated by reference, if any, in each case, in form, substance and scope as
are customarily made by issuers to underwriters in underwritten offerings and
confirm the same if and when requested, (ii) use their best efforts to obtain
opinions of counsel to the Issuers (which counsel and opinions, in form, scope
and substance, shall be reasonably satisfactory to counsel to the Holders)
addressed to each selling Holder of Registrable Securities, covering the matters
customarily covered in opinions requested in underwritten offerings, (iii) use
their best efforts to obtain "cold comfort" letters from the independent
certified public accountants of the Company (and, if necessary, any other
certified public accountant of any subsidiary of the Company, or the Trust or
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 selling Holder of Registrable
Securities, such letters to be in customary form and covering matters of the
type customarily covered in "cold comfort" letters in connection with
underwritten offerings, and (iv) deliver such documents and certificates as may
be reasonably requested by counsel for the Holders to evidence the continued
validity of the representations and warranties of the Issuers made pursuant to
clause (i) above and to evidence compliance with any customary conditions in an
underwriting agreement.
In the case of a Shelf Registration Statement, the Issuers may require
each Holder of Registrable Securities to promptly furnish to the Issuers such
information regarding
-17-
the Holder and the proposed distribution by such Holder of such Registrable
Securities as the Company may from time to time reasonably request in writing
and the Company may exclude from such registration the Registrable Securities of
any Holder that unreasonably fails to furnish such information within a
reasonable time after receiving such request.
In the case of a Shelf Registration Statement, each Holder agrees that,
upon receipt of any notice from the Issuers of the happening of any event of the
kind described in Section 3(e)(ii) through (v) hereof, such Holder will
forthwith discontinue disposition of Registrable Securities pursuant to a
Registration Statement until such Holder's receipt of the copies of the
supplemented or amended Prospectus contemplated by Section 3(i) hereof, and, if
so directed by the Company, such Holder will deliver to the Issuers (at its
expense) all copies in its possession, other than permanent file copies then in
such Holder's possession, of the Prospectus covering such Registrable Securities
current at the time of receipt of such notice. Each Holder agrees to indemnify
the Company, KDSM, Inc., the Trust, the Initial Purchasers and the other selling
Holders and each of their respective officers and directors who sign the
Registration Statement and each person, if any, who controls any such person for
any losses, claims, damages and liabilities caused by the failure of such Holder
to discontinue disposition of Registrable Securities after receipt of the notice
referred to in the preceding sentence or the failure of such Holder to comply
with applicable prospectus delivery requirements with respect to any Prospectus
(including, but not limited to, any amended or supplemented Prospectus) provided
by the Issuers for such use.
(p) comply, as to all matters within the Issuers' control,
with the provisions of the Securities Act with respect to the disposition of all
of the Registrable Securities covered by such Registration Statement in
accordance with the intended methods of disposition by the Holders thereof
provided for in such Registration Statement;
(q) use their best efforts to obtain the consent or approval
of each governmental agency or authority, whether federal, state or local, which
may be required to be obtained by the Issuers to effect the Shelf Registration
or the offering or sale in connection therewith or to enable the selling Holder
or Holders to offer, or to consummate the disposition of, their Registrable
Securities;
(r) notify in writing each Holder of Registrable Securities of
any proposal by ▇▇▇▇▇▇▇▇, KDSM, Inc. and/or the Trust to amend or waive any
provision of this Agreement pursuant to Section 7(b) hereof and of any amendment
or waiver effected pursuant thereto, each of which notices shall contain the
text of the amendment or waiver proposed or effected, as the case may be;
-18-
(s) in the event that any broker-dealer registered under the
Exchange Act shall underwrite any Registrable Securities or participate as a
member of an underwriting syndicate or selling group or "assist in the
distribution" (within the meaning of the Conduct Rules and the By-Laws of the
National Association of Securities Dealers, Inc. ("NASD") or any successor
thereto, as amended from time to time) thereof, whether as a Holder of such
Registrable Securities or as an underwriter, a placement or sales agent or a
broker or dealer in respect thereof, or otherwise, assist such broker-dealer in
complying with the requirements of such Rules and By-Laws, including by (A) if
such Rules shall so require, permitting a "qualified independent underwriter"
(as defined in such Rules (or any successor thereto)) to participate in the
preparation of the Registration Statement relating to such Registrable
Securities, to exercise usual standards of due diligence in respect thereto and,
if any portion of the offering contemplated by such Registration Statement is an
underwritten offering or is made through a placement or sales agent, to
recommend the yield of such Registrable Securities, (B) indemnifying any such
qualified independent underwriter to the extent of the indemnification of
underwriters provided in Section 5 hereof, and (C) providing such information to
such broker-dealer as may be required in order for such broker-dealer to comply
with the requirements of the Conduct Rules of the NASD; and
(t) make generally available to its security holders as soon
as practicable but in any event not later than eighteen months after the
effective date of such registration statement, an earning statement of ▇▇▇▇▇▇▇▇
and its subsidiaries complying with Section 11(a) of the Securities Act
(including, at the option of ▇▇▇▇▇▇▇▇, Rule 158 thereunder).
4. Participation of broker-dealers in exchange offer.
--------------------------------------------------
(a) Each of the Issuers understands that the staff of the
Commission has taken the position that any broker-dealer that receives Exchange
Securities for its own account in the Exchange Offer in exchange for Securities
that were acquired by such broker-dealer as a result of market-making or other
trading activities (a "Participating Broker-Dealer"), may be deemed to be an
"underwriter" within the meaning of the Securities Act in connection with any
resale of such Exchange Securities and, therefore, must deliver a Prospectus
meeting the requirements of the Securities Act in connection with any resales of
the Exchange Securities received by it in the Exchange Offer.
Each of the Issuers understands that it is the staff's position that if
the Prospectus contained in the Exchange Offer Registration Statement includes a
plan of distribution containing a statement to the above effect and the means by
which Participating Broker- Dealers may resell the Exchange Securities, without
naming the Participating Broker- Dealers or specifying the amount of Exchange
Securities owned by them, such Prospectus may be delivered by Participating
Broker-Dealers to satisfy their prospectus
-19-
delivery obligation under the Securities Act in connection with resales of
Exchange Securities for their own accounts, so long as the Prospectus otherwise
meets the requirements of the Securities Act.
(b) In light of the above, notwithstanding the other
provisions of this Agreement, the Issuers agree: to cause the Exchange Offer
Registration Statement to remain effective for a period 180 days after the Offer
Termination Date (or such earlier date as each Participating Broker-Dealer shall
have notified the Issuers in writing that such Participating Broker-Dealer has
resold all such Exchange Securities received in the Exchange Offer) and shall
amend or supplement the Prospectus or document incorporated by reference
therein, as the case may be, contained in the Exchange Offer Registration
Statement, as would otherwise be contemplated by Section 3(i) for such a period,
and Participating Broker-Dealers shall not be authorized by the Company to
deliver and shall not deliver such Prospectus after such period in connection
with the resales contemplated by this Section 4.
(c) The Initial Purchasers shall have no liability to the
Company, KDSM, Inc., the Trust or any Holder for costs and expenses of the
Exchange Offer Registration with respect to any request that they make pursuant
to Section 4(b) above.
5. Indemnification and Contribution.
--------------------------------
(a) The Issuers, jointly and severally, agree to indemnify and
hold harmless the Initial Purchasers, each Holder and each Person, if any who
controls the Initial Purchasers or any Holder within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act, from and
against any and all losses, claims, damages, liabilities and expenses (including
the reasonable fees and expenses of counsel and other expenses in connection
with investigating, defending or settling such action or claim) arising out of
or based upon any untrue statement or alleged untrue statement of a material
fact contained in any Registration Statement (or any amendment or supplement
thereto) pursuant to which Exchange Securities or Registrable Securities were
registered under the Securities Act (including all documents incorporated
therein by reference) or arising out of or based upon any omissions or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, or arising out of or
based upon any untrue statement or alleged untrue statement of a material fact
contained in any Prospectus (as amended or supplemented if the Issuers shall
have furnished any amendments or supplements thereto), or arising out of or
based upon any omission or alleged omission to state therein a material fact
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading, except insofar as such losses, claims,
damages, liabilities or expenses arise out of or are based upon any untrue
statement or omission or alleged untrue statement or omission which has been
made
-20-
therein or omitted therefrom in reliance upon and in conformity with the
information furnished in writing to the Company by or on behalf of any Holder
expressly for use in connection therewith ("Holders' Information"); provided,
however, that the indemnification contained in this paragraph (a) with respect
to any preliminary prospectus shall not inure to the benefit of the Holders (or
to the benefit of any person controlling the Holders) on account of any such
loss, claim, damage, liability or expense arising from the sale of such
Registrable or Exchange Securities by the Holders to any person if a copy of
such preliminary prospectus shall not have been delivered or sent to such person
at or prior to written confirmation of such sale, and the untrue statement or
alleged untrue statement or omission or alleged omission of a material fact
contained in the preliminary prospectus was corrected in the Prospectus,
provided that the Company has delivered the Prospectus in requisite quantity on
a timely basis to permit delivering and sending. The foregoing indemnity
agreement shall be in addition to any liability which the Issuers may otherwise
have.
(b) If any action, suit or proceeding shall be brought against
the Holders or any person controlling the Holders in respect of which indemnity
may be sought against the Issuers, such Holders or such controlling person shall
promptly notify the parties against whom indemnification is being sought (the
"indemnifying parties"), and such indemnifying parties shall assume the defense
thereof, including the employment of counsel and payment of all fees and
expenses. Such Holders or any such controlling person shall have the right to
employ separate counsel in any such action, suit or proceeding and to
participate in the defense thereof, but the fees and expenses of such counsel
shall be at the expense of such Holders or such controlling person unless (i)
the indemnifying parties have agreed in writing to pay such fees and expenses,
(ii) the indemnifying parties have failed to assume the defense and employ
counsel, or (iii) the named parties to any such action, suit or proceeding
(including any impleaded parties) include both such Holders or such controlling
person and the indemnifying parties and such Holders or such controlling person
shall have been advised by its counsel that representation of such indemnified
party and any indemnifying party by the same counsel would be inappropriate
under applicable standards of professional conduct (whether or not such
representation by the same counsel has been proposed) due to actual or potential
differing interests between them (in which case the indemnifying party shall not
have the right to assume the defense of such action, suit or proceeding on
behalf of such Holders or such controlling person). It is understood, however,
that the indemnifying parties shall, in connection with any one such action,
suit or proceeding or separate but substantially similar or related actions,
suits or proceedings in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the reasonable fees and expenses of
only one separate firm of attorneys (in addition to any local counsel) at any
time for such Holders and controlling persons not having actual or potential
differing interests with such Holder or among themselves, which firm shall be
designated in writing by ▇▇▇▇▇ ▇▇▇▇▇▇ Inc., and
-21-
that all such fees and expenses shall be reimbursed as they are incurred. The
indemnifying parties shall not be liable for any settlement of any such action,
suit or proceeding effected without their written consent, but if settled with
such written consent, or if there be a final judgment for the plaintiff in any
such action, suit or proceeding, the indemnifying parties agree to indemnify and
hold harmless any Holders, to the extent provided in the preceding paragraph,
and any such controlling person from and against any loss, claim, damage,
liability or expense by reason of such settlement or judgment.
(c) Each Holder agrees, severally and not jointly, to
indemnify and hold harmless the Issuers, each of their respective directors and
officers, and any person who controls such Issuers 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 Issuers to each Holder, but only with
respect to the Holders' Information. If any action, suit or proceeding shall be
brought against the Issuers, any of their respective directors or officers, or
any such controlling persons based on any Registration Statement (or any
amendment thereto) or any Prospectus (or any amendment or supplement thereto),
and in respect of which indemnity may be sought against any Holder pursuant to
this paragraph (c), such Holder shall have the rights and duties given to the
Issuers by paragraph (b) above (except that if the Issuers shall have assumed
the defense thereof such Holder shall not be required to do so, but may employ
separate counsel therein and participate in the defense thereof, but the fees
and expenses of such counsel shall be at such Holder's expense), and the
Issuers, their respective directors and officers, and any such controlling
persons shall have the rights and duties given to the Holders by paragraph (b)
above. The foregoing indemnity agreement shall be in addition to any liability
which any Holders may otherwise have.
(d) If the indemnification provided for in this Section 5 is
unavailable to an indemnified party under paragraphs (a) or (c) hereof in
respect of any losses, claims, damages, liabilities or expenses referred to
therein, then an indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the amount paid or payable by such indemnified party
as a result of such losses, claims, damages, liabilities or expenses (i) in such
proportion as is appropriate to reflect the relative benefits of the Issuers on
the one hand, the Holders on another hand, and the Initial Purchasers on another
hand, from the offering of the Securities 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 Issuers on the one hand, the Holders on
another hand, and the Initial Purchasers on another hand, in connection with the
statements or omissions that resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company from the offering of the
Securities included in such offering shall in each case be deemed to
-22-
include the proceeds received by the Company in connection with the offering of
the Securities pursuant to the Purchase Agreement. The parties hereto agree that
any underwriting discount or commission or reimbursement of fees paid to the
Initial Purchasers pursuant to the Purchase Agreement shall not be deemed to be
a benefit received by the Initial Purchasers in connection with the offering of
the Securities included in such offering. The relative fault of the Issuers on
the one hand, the Holders on another hand, and the Initial Purchasers on another
hand, 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 Issuers
on the one hand, by the Holders on another hand, and the Initial Purchasers on
another hand, and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
(e) The Issuers and each Holder agree that it would not be
just or equitable if contribution pursuant to this Section 5 were determined by
pro rata allocation or by any other method of allocation that does not take
account of the equitable considerations referred to in paragraph (d) above. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages, liabilities and expenses referred to in paragraph (d) above
shall be deemed to include, subject to the limitations set forth above, any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 5, no Holder shall be required to
indemnify or contribute any amount in excess of the amount by which the total
price at which Registrable Securities were sold by such Holder exceeds the
amount of any damages that such Holder 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 Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The Holders'
obligations to contribute pursuant to this Section 5 are several in proportion
to the number of Preferred Securities purchased by such Holder and not joint.
(f) No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened action, suit or proceeding 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 (i) includes an unconditional
release of such indemnified party from all liability or claims that are the
subject matter of such action, suit or proceeding and (ii) does not include a
statement as to, or an admission of, fault, culpability or a failure to act by
or on behalf of any indemnified party.
-23-
(g) Any losses, claims, damages, liabilities or expenses
(including counsel fees pursuant to paragraph (b) above) for which an
indemnified party is entitled to indemnification or contribution under this
Section 5 shall be paid by the indemnifying party to the indemnified party as
such losses, claims, damages, liabilities or expenses are incurred. The
indemnity and contribution agreements contained in this Section 5 shall remain
operative and in full force and effect, regardless of (i) any investigation made
by or on behalf of any Holder or any person controlling any Holder, the Issuers'
respective directors or officers or any person controlling the Issuers, (ii)
acceptance of any Exchange Securities and (iii) any sale of Registrable
Securities pursuant to a Shelf Registration Statement.
6. Underwritten Offerings; Rule 144.
--------------------------------
(a) Selection of Underwriters. If any of the Registrable
Securities covered by the Shelf Registration are to be sold pursuant to an
underwritten offering, the managing underwriter or underwriters thereof shall be
designated by the Holders of at least a majority in aggregate principal amount
the Liquidation Value, or the Liquidation Amount, as the case may be, of the
Registrable Securities to be included in such offering, provided that such
designated managing underwriter or underwriters is or are reasonably acceptable
to the Company.
(b) Participation by Holders. Each Holder of Registrable
Securities hereby agrees with each other such Holder that no such Holder may
participate in any underwritten offering hereunder unless such Holder (i) agrees
to sell such Holder's Registrable Securities on the basis provided in any
underwriting arrangements approved by the persons entitled hereunder to approve
such arrangements and (ii) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents reasonably
required under the terms of such underwriting arrangements.
(c) Rule 144. For so long as the Company is subject to the
reporting requirements of Section 13 or 15 of the Exchange Act, the Issuers
covenant to the Holders of Registrable Securities that the Company shall timely
file the reports required to be filed by it under the Exchange Act or the
Securities Act (including the reports under Sections 13 and 15(d) of the
Exchange Act referred to in subparagraph (c)(1) of Rule 144 adopted by the
Commission under the Securities Act) and the rules and regulations adopted by
the Commission thereunder, that if it ceases to be so required to file such
reports, it will upon the request of any Holder of Registrable Securities (i)
make publicly available such information as is necessary to permit sales
pursuant to Rule 144 under the Securities Act, (ii) deliver such information to
a prospective purchaser as is necessary to permit sales pursuant to Rule 144
under the Securities Act and it will take such further action as any Holder of
Registrable Securities may
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reasonably request, and shall take such further action as any Holder of
Registrable Securities may reasonably request, all to the extent required from
time to time to enable such Holder to sell Registrable Securities without
registration under the Securities Act within the limitations of the exemption
provided by Rule 144 under the Securities Act, as such Rule may be amended from
time to time, or any similar or successor rule or regulation hereafter adopted
by the Commission. Upon the request of any Holder of Registrable Securities in
connection with that Holder's sale pursuant to Rule 144, the Company shall
deliver to such Holder a written statement as to whether it has complied with
such requirements.
7. Miscellaneous.
--------------
(a) No Inconsistent Agreements. The Issuers have not entered
into, and on or after the date of this Agreement will not enter into, any
agreement which is inconsistent with the rights granted to the Holders of
Registrable Securities in this Agreement or otherwise conflicts with the
provisions hereof. The rights granted to the Holders hereunder do not in any way
conflict with and are not inconsistent with the rights granted to the holders of
the Company's other issued and outstanding securities under any such agreements.
(b) Entire Agreement; Amendments and Waivers. This Agreement
and the other writings referred to herein (including the Trust Agreement, the
Parent Guarantee, the Indenture and the Parent Debenture Guarantee (if
effective)) or delivered pursuant hereto which form a part hereof contain the
entire understanding of the parties with respect to its subject matter. This
Agreement supersedes all prior agreements and understandings between the parties
with respect to its subject matter. The provisions of this Agreement, including
the provisions of this sentence, may not be amended, modified or supplemented,
and waivers or consents to departures from the provisions hereof may not be
given unless the Issuers have obtained the written consent of the Majority
Holders of whatever Securities are publicly held; provided, however, that no
departure from the provisions of Section 5 hereof shall be effective as against
any Holder of Registrable Securities unless consented to in writing by such
Holder.
(c) Notices. All notices and other communications provided for
or permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, telex, telecopier, or any courier guaranteeing overnight
delivery (i) if to a Holder, at the most current address given by such Holder to
the Company by means of a notice given in accordance with the provisions of this
Section 7(c), which address initially is, with respect to the Initial
Purchasers, the address set forth in the Purchase Agreement; and (ii) if to the
Company, KDSM, Inc. or the Trust, initially at the Company's address set forth
in the Purchase Agreement and thereafter at such other address, notice of which
is given in accordance with the provisions of this Section 7(c).
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All such notices and communications shall be deemed to have been duly
given at the time delivered, if personally delivered; five business days after
being deposited in the mail, postage pre-paid, if mailed; when answered back, if
telexed; when receipt is acknowledged, if telecopied; and on the next business
day if timely delivered to an air courier guaranteeing overnight delivery.
Copies of all such notices, demands, or other communications shall be
concurrently delivered by the person giving the same to the applicable trustees,
at the address specified in the Indenture, the Trust Agreement, the Parent
Guarantee and the Parent Debenture Guarantee (if effective).
(d) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors, assigns and transferees of each
of the parties, including, without limitation and without the need for an
express assignment or assumption, subsequent Holders; provided that nothing
herein shall be deemed to permit any assignment, transfer or other disposition
of Registrable Securities in violation of the terms of the Purchase Agreement.
If any transferees of any Holder shall acquire Registrable Securities, in any
manner, whether by operation of law or otherwise, such Registrable Securities,
shall be held subject to all of the terms of this Agreement, and by taking and
holding such Registrable Securities such person shall be conclusively deemed to
have agreed to be bound by and to perform all of the terms and provisions of
this Agreement and such person shall be entitled to receive the benefits hereof.
The Initial Purchasers shall have no liability or obligation to the Issuers with
respect to any failure by a Holder (other than the Initial Purchasers) to comply
with, or any breach by any Holder of, the obligations of such Holder under this
Agreement.
(e) Third Party Beneficiary. The Holders shall be third party
beneficiaries to the agreements made hereunder between the Issuers and the
Initial Purchasers and shall have the right to enforce such agreement directly
to the extent it deems such enforcement necessary or advisable to protect its
rights or the rights of Holders hereunder.
(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.
(h) Governing Law. This Agreement shall be governed by laws of
the State of New York.
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(i) Severability. In the event that one or more of the
provisions contained herein, or the application thereof in any circumstances, is
held invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions contained herein shall not be affected or impaired thereby.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
▇▇▇▇▇▇▇▇ CAPITAL
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇
------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇
Title: Administrative Trustee
KDSM, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President
▇▇▇▇▇▇▇▇ BROADCAST GROUP, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇
------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇
Title: Chief Financial Officer
Confirmed and accepted as of
the date first above written:
▇▇▇▇▇ ▇▇▇▇▇▇ INC.
CHASE SECURITIES INC.
By: ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
------------------------
▇▇▇▇▇▇▇ ▇▇▇▇
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