EXHIBIT 10.14
REGISTRATION RIGHTS AGREEMENT
by and between
VIACOM INC.
and
WORLD WRESTLING FEDERATION ENTERTAINMENT, INC.
Dated as of July 28, 2000
REGISTRATION RIGHTS AGREEMENT (this or the "Agreement") dated as of
July 28, 2000, by and between Viacom Inc., a Delaware corporation ("Viacom") and
World Wrestling Federation Entertainment, Inc., a Delaware corporation (the
"Company").
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, Viacom and the Company have entered into a Stock Purchase
Agreement, dated as of July 28, 2000 (such Stock Purchase Agreement, as amended
or otherwise modified from time to time, the "Purchase Agreement"), pursuant to
which the Company will sell, and Viacom will purchase, 2,307,692 newly-issued
shares of Class A Common Stock, par value $.01 per share, of the Company (the
"Common Shares").
WHEREAS, the Company has further agreed to provide certain
registration rights in respect of the Registrable Securities (as defined below)
on the terms and subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements contained herein, and for other good and valuable consideration the
receipt and sufficiency of which are hereby acknowledged, and intending to be
legally bound hereby, the parties hereto agree as follows:
1. DEFINITIONS. As used in this Agreement, the following terms shall have the
following meanings:
"Affiliate" shall mean (i) with respect to any Person, any other
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Person directly or indirectly controlling or controlled by or under direct or
indirect common control with such Person, and (ii) with respect to any
individual, shall also mean the spouse, sibling, child, stepchild, grandchild,
niece, nephew or parent of such Person, or the spouse thereof.
"Blackout Period" shall have the meaning set forth in Section 2.6.
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"Common Shares" shall have the meaning set forth in the recitals
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hereto.
"Company" shall have the meaning set forth in the preamble.
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"Demand Registration" shall mean a registration required to be
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effected by the Company pursuant to Section 2.1.
"Demand Registration Statement" shall mean a registration statement of
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the Company which covers the Registrable Securities requested to be included
therein pursuant to the provisions of Section 2.1 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 (or deemed to be incorporated by
reference) therein.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
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amended from time to time, and the rules and regulations thereunder, or any
successor statute.
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"Holders" shall mean the Initial Holder for so long as it owns any
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Registrable Securities and such of its respective successors and permitted
assigns (including any permitted transferees of Registrable Securities) who
acquire or are otherwise the transferee of Registrable Securities, directly or
indirectly, from such Initial Holder (or any subsequent Holder), for so long as
such successors and permitted assigns own any Registrable Securities.
"Holders' Counsel" shall mean one firm of legal counsel (per
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registration) representing the Holders of Registrable Securities participating
in such registration, which counsel shall be selected (i) in the case of a
Demand Registration, by the Initiating Holders holding a majority of the
Registrable Securities for which registration was requested in the Request, and
(ii) in all other cases, by the Majority Holders of the Registration.
"Incidental Registration" shall mean a registration required to be
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effected by the Company pursuant to Section 2.2.
"Incidental Registration Statement" shall mean a registration
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statement of the Company which covers the Registrable Securities requested to be
included therein pursuant to the provisions of Section 2.2 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 (or deemed to be
incorporated by reference) therein.
"Initial Holder" shall mean Viacom.
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"Initiating Holders" shall mean, with respect to a particular
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registration, the Holders who initiated the Request for such registration.
"Inspectors" shall have the meaning set forth in Section 4.1(g).
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"Majority Holders" shall mean one or more Holders of Registrable
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Securities who would hold a majority of the Registrable Securities then
outstanding.
"Majority Holders of the Registration" shall mean, with respect to a
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particular registration, one or more Holders of Registrable Securities who would
hold a majority of the Registrable Securities to be included in such
registration.
"NASD" shall mean the National Association of Securities Dealers, Inc.
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"Person" shall mean any individual, firm, partnership, corporation,
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trust, joint venture, association, joint stock company, limited liability
company, unincorporated organization or any other entity or organization,
including a government or agency or political subdivision thereof, and shall
include any successor (by merger or otherwise) of such entity.
"Prospectus" shall mean the prospectus included in a Registration
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Statement (including, without limitation, any preliminary prospectus and any
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), and any such
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Prospectus as amended or supplemented by any prospectus supplement, and all
other amendments and supplements to such Prospectus, including post-effective
amendments, and in each case including all material incorporated by reference
(or deemed to be incorporated by reference) therein.
"Registrable Securities" shall mean (i) the Common Shares issued
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pursuant to the Purchase Agreement and (ii) any other securities of the Company
(or any successor or assign of the Company, whether by merger, consolidation,
sale of assets or otherwise) which may be issued or issuable with respect to, in
exchange for, or in substitution of, the Registrable Securities referenced in
clause (i) above by reason of any dividend or stock split, combination of
shares, merger, consolidation, recapitalization, reclassification,
reorganization, sale of assets or similar transaction. As to any particular
Registrable Securities, such securities shall cease to be Registrable Securities
when (A) a registration statement with respect to the sale of such securities
shall have been declared effective under the Securities Act and such securities
shall have been disposed of in accordance with such registration statement, (B)
such securities have been otherwise transferred, a new certificate or other
evidence of ownership for them not bearing the legend restricting further
transfer shall have been delivered by the Company and subsequent public
distribution of them shall not require registration under the Securities Act,
(C) such securities shall have ceased to be outstanding, or (D) such securities
become eligible for sale under Rule 144(k) without any volume, manner of sale or
other restrictions.
"Registration Expenses" shall mean any and all expenses incident to
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performance of or compliance with this Agreement by the Company and its
subsidiaries, including, without limitation, (i) all SEC, stock exchange, NASD
and other registration, listing and filing fees, (ii) all fees and expenses
incurred in connection with compliance with state securities or blue sky laws
and compliance with the rules of any stock exchange (including fees and
disbursements of counsel in connection with such compliance and the preparation
of a blue sky memorandum and legal investment survey), (iii) all expenses of any
Persons retained by the Company in preparing or assisting in preparing, word
processing, printing, distributing, mailing and delivering any Registration
Statement, any Prospectus, any underwriting agreements, transmittal letters,
securities sales agreements, securities certificates and other documents
relating to the performance of or compliance with this Agreement, (iv) the fees
and disbursements of counsel for the Company, (v) the fees and disbursements of
all independent public accountants (including the expenses of any audit and/or
"cold comfort" letters) and the fees and expenses of other Persons, including
experts, retained by the Company, (vi) the expenses incurred in connection with
making road show presentations and holding meetings with potential investors to
facilitate the distribution and sale of Registrable Securities which are
customarily borne by the issuer, (vii) any fees and disbursements of
underwriters customarily paid by issuers, and (viii) premiums and other costs of
policies of insurance against liabilities arising out of the public offering of
the Registrable Securities being registered; provided, however, Registration
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Expenses shall not include discounts and commissions payable to underwriters,
selling brokers, dealer managers or other similar Persons engaged in the
distribution of any of the Registrable Securities or the fees and disbursements
of Holders' Counsel; and provided, further, that in any case where Registration
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Expenses are not to be borne by the Company, such expenses shall not include
salaries of Company personnel or general overhead expenses of the Company,
auditing fees, premiums or other expenses relating to liability insurance
required by underwriters of the Company or other expenses for the preparation of
financial statements or other data normally
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prepared by the Company in the ordinary course of its business or which the
Company would have incurred in any event.
"Registration Statement" shall mean any registration statement of the
----------------------
Company which covers any Registrable Securities and all amendments and
supplements to any such Registration Statement, including post-effective
amendments, in each case including the Prospectus contained therein, all
exhibits thereto and all material incorporated by reference (or deemed to be
incorporated by reference) therein.
"Request" shall have the meaning set forth in Section 2.1(a).
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"SEC" shall mean the Securities and Exchange Commission, or any
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successor agency having jurisdiction to enforce the Securities Act.
"Securities Act" shall mean the Securities Act of 1933, as amended
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from time to time, and the rules and regulations thereunder, or any successor
statute.
"Shelf Registration" shall have the meaning set forth in Section
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2.1(a).
"Shelf Registration Period" shall have the meaning set forth in
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Section 2.3(b).
"Underwriters" shall mean the underwriters, if any, of the offering
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being registered under the Securities Act.
"Underwritten Offering" shall mean a sale of securities of the Company
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to an Underwriter or Underwriters for reoffering to the public.
"Withdrawn Demand Registration" shall have the meaning set forth in
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Section 2.1(a).
"Withdrawn Request" shall have the meaning set forth in Section
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2.1(a).
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2. REGISTRATION UNDER THE SECURITIES ACT.
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2.1 Demand Registration.
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(a) Right to Demand Registration. Commencing December 15, 2000, at
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any time or from time to time when the Shelf Registration Statement provided for
in Section 2.3 has not become or is not effective under the Securities Act, the
Majority Holders shall have the right to request in writing that the Company
register all or part of such Holders' Registrable Securities (a "Request")
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(which Request shall specify the amount of Registrable Securities intended to be
disposed of by such Holders and the intended method or methods of disposition
thereof) by filing with the SEC a Demand Registration Statement. As promptly as
practicable, but no later than 10 days after receipt of a Request, the Company
shall give written notice of such requested registration to all Holders of
Registrable Securities. Subject to Section 2.1(b), the Company shall include in
a Demand Registration (i) the Registrable Securities intended to be disposed of
by the Initiating Holders and (ii) the Registrable Securities intended to be
disposed of by any other Holder which shall have made a written request (which
request shall specify the amount of Registrable Securities to be registered) to
the Company for inclusion thereof in such registration within 20 days after the
receipt of such written notice from the Company. The Company shall, as
expeditiously as possible following a Request, use its best efforts to cause to
be filed with the SEC a Demand Registration Statement providing for the
registration under the Securities Act of the Registrable Securities which the
Company has been so requested to register by all such Holders, to the extent
necessary to permit the disposition of such Registrable Securities so to be
registered in accordance with the intended method of disposition thereof
specified in such Request (including, without limitation, by means of a shelf
registration pursuant to Rule 415 under the Securities Act (a "Shelf
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Registration") if so requested and if the Company is then eligible to use such a
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registration). The Company shall use its best efforts to have such Demand
Registration Statement declared effective by the SEC as soon as practicable
thereafter and to keep such Demand Registration Statement continuously effective
for the period specified in Section 4.1(b).
A Request may be withdrawn prior to the filing of the Demand
Registration Statement by the Majority Holders of the Registration (a "Withdrawn
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Request") and a Demand Registration Statement may be withdrawn prior to the
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effectiveness thereof by the Majority Holders of the Registration (a "Withdrawn
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Demand Registration"), and such withdrawals shall be treated as a Demand
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Registration which shall have been effected pursuant to this Section 2.1, unless
the Holders of Registrable Securities to be included in such Registration
Statement reimburse the Company for its reasonable out-of-pocket Registration
Expenses relating to the preparation and filing of such Demand Registration
Statement (to the extent actually incurred); provided, however, that if a
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Withdrawn Request or Withdrawn Demand Registration is made (A) because of a
material adverse change in the business, financial condition or prospects of the
Company determined, in the case of an Underwritten Offering, by the sole or lead
managing Underwriter in its reasonable discretion, or (B) because the sole or
lead managing Underwriter advises that the amount of Registrable Securities to
be sold in such offering be reduced pursuant to Section 2.1(b) by more than 20%
of the Registrable Securities to be included in such Registration Statement, or
(C) because of a postponement of such registration pursuant to Section 2.6, then
such withdrawal shall not be treated as a Demand Registration effected pursuant
to this Section 2.1 (and shall not be counted toward the number of Demand
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Registrations), and the Company shall pay all Registration Expenses in
connection therewith. Any Holder requesting inclusion in a Demand Registration
may, at any time prior to the effective date of the Demand Registration
Statement (and for any reason) revoke such request by delivering written notice
to the Company revoking such requested inclusion.
There is no limitation on the number of Demand Registrations pursuant
to this Section 2.1 which the Company is obligated to effect. The registration
rights granted pursuant to the provisions of this Section 2.1 shall be in
addition to the registration rights granted pursuant to the other provisions of
Section 2 hereof.
(b) Priority in Demand Registrations. If a Demand Registration
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involves an Underwritten Offering, and the sole or lead managing Underwriter, as
the case may be, of such Underwritten Offering shall advise the Company in
writing (with a copy to each Holder requesting registration) on or before the
date five days prior to the date then scheduled for such offering that, in its
opinion, the amount of Registrable Securities requested to be included in such
Demand Registration exceeds the number which can be sold in such offering within
a price range acceptable to the Majority Holders of the Registration (such
writing to state the basis of such opinion and the approximate number of
Registrable Securities which may be included in such offering), the Company
shall include in such Demand Registration, to the extent of the number which the
Company is so advised may be included in such offering, the Registrable
Securities requested to be included in the Demand Registration by the Holders
allocated pro rata in proportion to the number of Registrable Securities
requested to be included in such Demand Registration by each of them. In the
event the Company shall not, by virtue of this Section 2.1(b), include in any
Demand Registration all of the Registrable Securities of any Holder requesting
to be included in such Demand Registration, such Holder may, upon written notice
to the Company given within five days of the time such Holder first is notified
of such matter, reduce the amount of Registrable Securities it desires to have
included in such Demand Registration, whereupon only the Registrable Securities,
if any, it desires to have included will be so included and the Holders not so
reducing shall be entitled to a corresponding increase in the amount of
Registrable Securities to be included in such Demand Registration.
(c) Underwriting; Selection of Underwriters. Notwithstanding anything
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to the contrary contained in Section 2.1(a), if the Initiating Holders holding a
majority of the Registrable Securities for which registration was requested in
the Request so elect, the offering of such Registrable Securities pursuant to
such Demand Registration shall be in the form of a firm commitment Underwritten
Offering; and such Initiating Holders may require that all Persons (including
other Holders) participating in such registration sell their Registrable
Securities to the Underwriters at the same price and on the same terms of
underwriting applicable to the Initiating Holders. If any Demand Registration
involves an Underwritten Offering, the sole or managing Underwriters and any
additional investment bankers and managers to be used in connection with such
registration shall be selected by the Company, subject to the approval of the
Initiating Holders holding a majority of the Registrable Securities for which
registration was requested in the Request (such approval not to be unreasonably
withheld).
(d) Registration of Other Securities. Whenever the Company shall
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effect a Demand Registration, no securities other than the Registrable
Securities shall be covered by such
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registration unless the Majority Holders shall have consented in writing to the
inclusion of such other securities.
(e) Effective Registration Statement; Suspension. A Demand
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Registration Statement shall not be deemed to have become effective (and the
related registration will not be deemed to have been effected) (i) unless it has
been declared effective by the SEC and remains effective in compliance with the
provisions of the Securities Act with respect to the disposition of all
Registrable Securities covered by such Demand Registration Statement for the
time period specified in Section 4.1(b), (ii) if the offering of any Registrable
Securities pursuant to such Demand Registration Statement is interfered with by
any stop order, injunction or other order or requirement of the SEC or any other
governmental agency or court, or (iii) if, in the case of an Underwritten
Offering, the conditions to closing specified in an underwriting agreement to
which the Company is a party are not satisfied other than by the sole reason of
any breach or failure by the Holders of Registrable Securities or are not
otherwise waived.
(f) Other Registrations. During the period (i) beginning on the date
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of a Request and (ii) ending on the date that is 90 days after the date that a
Demand Registration Statement filed pursuant to such Request has been declared
effective by the SEC or, if the Holders shall withdraw such Request or such
Demand Registration Statement, on the date of such Withdrawn Request or such
Withdrawn Demand Registration, the Company shall not, without the consent of the
Majority Holders, file a registration statement (other than a registration
statement on Form S-4 or S-8 or any successor form to such forms) pertaining to
any other securities of the Company.
(g) Registration Statement Form. Registrations under this Section 2.1
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shall be on such appropriate registration form of the SEC (i) as shall be
selected by the Initiating Holders holding a majority of the Registrable
Securities for which registration was requested in the Request and as shall be
reasonably acceptable to the Company, and (ii) which shall be available for the
sale of Registrable Securities in accordance with the intended method of
disposition specified in the requests for registration; provided, however, that
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if the Company is then a registrant entitled to use Form S-3 or any successor
form thereto to register such securities, such registration shall be effected on
such form. The Company agrees to include in any such Registration Statement all
information which any selling Holder, upon advice of counsel, shall reasonably
request.
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2.2 Incidental Registration.
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(a) Right to Include Registrable Securities. If the Company at any
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time or from time to time proposes to register any of its equity securities
under the Securities Act (other than in a registration on Form S-4 or S-8 or any
successor form to such forms and other than pursuant to Section 2.1 or 2.3)
whether or not pursuant to registration rights granted to other holders of its
securities and whether or not for sale for its own account, the Company shall
deliver prompt written notice (which notice shall be given at least 30 days
prior to such proposed registration) to all Holders of Registrable Securities of
its intention to undertake such registration, describing in reasonable detail
the proposed registration and distribution (including the anticipated range of
the proposed offering price, the class and number of securities proposed to be
registered and the distribution arrangements) and of such Holders' right to
participate in such registration under this Section 2.2 as hereinafter provided.
Subject to the other provisions of this paragraph (a) and Section 2.2(b), upon
the written request of any Holder made within 20 days after the receipt of such
written notice (which request shall specify the amount of Registrable Securities
to be registered), the Company shall effect the registration under the
Securities Act of all Registrable Securities requested by Holders to be so
registered (an "Incidental Registration"), to the extent requisite to permit the
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disposition of the Registrable Securities so to be registered, by inclusion of
such Registrable Securities in the Registration Statement which covers the
securities which the Company proposes to register and shall cause such
Registration Statement to become and remain effective with respect to such
Registrable Securities in accordance with the registration procedures set forth
in Section 4. If an Incidental Registration involves an Underwritten Offering,
immediately upon notification to the Company from the Underwriter of the price
at which such securities are to be sold, the Company shall so advise each
participating Holder. The Holders requesting inclusion in an Incidental
Registration may, at any time prior to the effective date of the Incidental
Registration Statement (and for any reason), revoke such request by delivering
written notice to the Company revoking such requested inclusion.
If at any time after giving written notice of its intention to
register any securities and prior to the effective date of the Incidental
Registration Statement filed in connection with such registration, the Company
shall determine for any reason not to register or to delay registration of such
securities, the Company may, at its election, give written notice of such
determination to each Holder of Registrable Securities and, thereupon, (A) in
the case of a determination not to register, the Company shall be relieved of
its obligation to register any Registrable Securities in connection with such
registration (but not from its obligation to pay the Registration Expenses
incurred in connection therewith), without prejudice, however, to the rights of
Holders to cause such registration to be effected as a registration under
Section 2.1 or 2.3, and (B) in the case of a determination to delay such
registration, the Company shall be permitted to delay the registration of such
Registrable Securities for the same period as the delay in registering such
other securities; provided, however, that if such delay shall extend beyond 120
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days from the date the Company received a request to include Registrable
Securities in such Incidental Registration, then the Company shall again give
all Holders the opportunity to participate therein and shall follow the
notification procedures set forth in the preceding paragraph. There is no
limitation on the number of such Incidental Registrations pursuant to this
Section 2.2 which the Company is obligated to effect.
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The registration rights granted pursuant to the provisions of this
Section 2.2 shall be in addition to the registration rights granted pursuant to
the other provisions of Section 2 hereof.
(b) Priority in Incidental Registration. If an Incidental
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Registration involves an Underwritten Offering (on a firm commitment basis), and
the sole or the lead managing Underwriter, as the case may be, of such
Underwritten Offering shall advise the Company in writing (with a copy to each
Holder requesting registration) on or before the date five days prior to the
date then scheduled for such offering that, in its opinion, the amount of
securities (including Registrable Securities) requested to be included in such
registration exceeds the amount which can be sold in such offering without
materially interfering with the successful marketing of the securities being
offered (such writing to state the basis of such opinion and the approximate
number of such securities which may be included in such offering without such
effect), the Company shall include in such registration, to the extent of the
number which the Company is so advised may be included in such offering without
such effect, (i) in the case of a registration initiated by the Company, (A)
first, the securities that the Company proposes to register for its own account,
(B) second, the Registrable Securities requested to be included in such
registration by the Holders, allocated pro rata in proportion to the number of
Registrable Securities requested to be included in such registration by each of
them, and (C) third, other securities of the Company to be registered on behalf
of any other Person, and (ii) in the case of a registration initiated by a
Person other than the Company, (A) first, the securities requested to be
included in such registration by any Persons initiating such registration,
allocated pro rata in proportion to the number of securities requested to be
included in such registration by each of them, (B) second, the Registrable
Securities requested to be included in such registration by the Holders,
allocated pro rata in proportion to the number of Registrable Securities
requested to be included in such registration by each of them, (C) third, if the
Company was not the Person initiating such registration, the securities that the
Company proposes to register for its own account, and (D) fourth, other
securities of the Company to be registered on behalf of any other Person;
provided, however, that in the event the Company will not, by virtue of this
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Section 2.2(b), include in any such registration all of the Registrable
Securities of any Holder requested to be included in such registration, such
Holder may, upon written notice to the Company given within three days of the
time such Holder first is notified of such matter, reduce the amount of
Registrable Securities it desires to have included in such registration,
whereupon only the Registrable Securities, if any, it desires to have included
will be so included and the Holders not so reducing shall be entitled to a
corresponding increase in the amount of Registrable Securities to be included in
such registration.
2.3 Shelf Registration Statement.
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(a) The Company: (A) shall cause to be filed with the SEC, on or
before November 1, 2000, a shelf registration statement (the "Shelf Registration
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Statement") on an appropriate form under the Securities Act, relating solely to
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the offer and sale of all the Registrable Securities by the Holders thereof from
time to time in accordance with the methods of distribution specified by the
Initial Holder as set forth in the Registration Statement and Rule 415 under the
Securities Act; and (B) shall use its best efforts to have such Shelf
Registration declared effective by the SEC as soon as practicable thereafter,
but in no event later than
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December 15, 2000; provided, however, that no Holder (other than the Initial
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Holder) shall be entitled to have the Registrable Securities held by it covered
by such Registration Statement unless such Holder agrees in writing to be bound
by all the provisions of this Agreement applicable to such Holder.
(b) The Company shall use its best efforts to keep the Shelf
Registration Statement continuously effective, supplemented and amended in order
to permit the Prospectus included therein to be lawfully delivered by the
Holders of the Registrable Securities through the date on which all of the
Registrable Securities covered by such Shelf Registration may be sold pursuant
to Rule 144(k) under the Securities Act (or any successor provision having
similar effect) without any volume, manner of sale or other restrictions, or
such shorter period that will terminate on the date on which all of the
Registrable Securities have been sold pursuant to the Shelf Registration
Statement (in any such case, such period being called the "Shelf Registration
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Period"); provided, however, that prior to the termination of such Shelf
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Registration, the Company shall first furnish to each Holder of Registrable
Securities participating in such Shelf Registration (i) an opinion, in form and
substance satisfactory to the Majority Holders of the Registration, of counsel
for the Company satisfactory to the Majority Holders stating that such
Registrable Securities are freely saleable pursuant to Rule 144(k) under the
Securities Act (or any successor provision having similar effect) without any
volume, manner of sale or other restrictions or (ii) a "No-Action Letter" from
the staff of the SEC stating that the SEC would not recommend enforcement action
if the Registrable Securities included in such Shelf Registration were sold in a
public sale other than pursuant to an effective registration statement. The
Company shall be deemed not to have used its best efforts to keep the
Registration Statement effective during the Shelf Registration Period if it
voluntarily takes any action that would result in Holders of the Registrable
Securities covered thereby not being able to offer and sell such Registrable
Securities during the Shelf Registration Period, unless such action is required
by applicable law.
(c) If at any time the Majority Holders request in writing that
all or any part of the Registrable Securities covered by the Shelf Registration
Statement be offered by means of a firm commitment Underwritten Offering, the
Company shall cause to be filed with the SEC as soon as practicable any
necessary or appropriate supplement to the Shelf Registration Statement in order
to effect such Underwritten Offering. In such case, the sole or managing
Underwriters and any additional investment bankers and managers to be used in
connection with such registration shall be selected by the Company, subject to
the approval of such Majority Holders (such approval not to be unreasonably
withheld).
2.4 Expenses. The Company shall pay all Registration Expenses in
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connection with any Demand Registration, Incidental Registration, or Shelf
Registration, whether or not such registration shall become effective and
whether or not all Registrable Securities originally requested to be included in
such registration are withdrawn or otherwise ultimately not included in such
registration, except as otherwise provided with respect to a Withdrawn Request
and a Withdrawn Demand Registration in Section 2.1(a). Each Holder shall pay all
discounts and commissions payable to underwriters, selling brokers, managers or
other similar Persons engaged in the distribution of such Holder's Registrable
Securities pursuant to any registration pursuant to this Section 2.
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2.5 Underwritten Offerings.
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(a) Underwritten Offerings. If requested by the sole or lead managing
----------------------
Underwriter for any Underwritten Offering effected pursuant to a Demand
Registration or the Shelf Registration Statement, the Company shall enter into a
customary underwriting agreement with the Underwriters for such offering, such
agreement to be reasonably satisfactory in substance and form to the Company and
to each Holder of Registrable Securities participating in such offering, and to
contain such representations and warranties by the Company and such other terms
as are customary in agreements of that type, including, without limitation,
indemnification and contribution to the effect and to the extent provided in
Section 5.
(b) Holders of Registrable Securities to be Parties to Underwriting
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Agreement. The Holders of Registrable Securities to be distributed by
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Underwriters in an Underwritten Offering contemplated by Section 2 shall be
parties to the underwriting agreement between the Company and such Underwriters
and may, at such Holders' option, require that any or all of the representations
and warranties by, and the other agreements on the part of, the Company to and
for the benefit of such Underwriters shall also be made to and for the benefit
of such Holders of Registrable Securities and that any or all of the conditions
precedent to the obligations of such Underwriters under such underwriting
agreement be conditions precedent to the obligations of such Holders of
Registrable Securities; provided, however, that the Company shall not be
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required to make any representations or warranties with respect to written
information specifically provided by a selling Holder for inclusion in the
Registration Statement. No Holder shall be required to make any representations
or warranties to, or agreements with, the Company or the Underwriters other than
representations, warranties or agreements regarding such Holder and such
Holder's Registrable Securities.
(c) Participation in Underwritten Registration. Notwithstanding
------------------------------------------
anything herein to the contrary, no Person may participate in any underwritten
registration hereunder unless such Person (i) agrees to sell its securities on
the same terms and conditions provided in any underwriting arrangements approved
by the Persons entitled hereunder to approve such arrangement and (ii)
accurately completes and executes in a timely manner all questionnaires, powers
of attorney, indemnities, custody agreements, underwriting agreements and other
documents reasonably required under the terms of such underwriting arrangements.
(d) Limitations on Underwritten Offerings. In no event shall the
-------------------------------------
Company be required to effect more than two (2) Underwritten Offerings pursuant
to this Agreement (whether as a Demand Registration pursuant to Section 2.1(a)
or a Shelf Registration Statement pursuant to Section 2.3), provided, however,
-------- -------
that such Holders shall be entitled to an additional Underwritten Offering in
the event any Underwritten Offering by the Holders under this Agreement is cut
back for any reason.
2.6 Postponements. The Company shall be entitled to postpone a Demand
-------------
Registration and to require the Holders of Registrable Securities to discontinue
the disposition of their securities covered by a Shelf Registration during any
Blackout Period (as defined below) (i) if the Board of Directors of the Company
determines in good faith that effecting such a registration or continuing such
disposition at such time would have an adverse effect upon a proposed sale of
all (or substantially all) of the assets of the Company or a merger,
11
reorganization, recapitalization or similar current transaction materially
affecting the capital, structure or equity ownership of the Company, or (ii) if
the Company is in possession of material information which the Board of
Directors of the Company determines in good faith is not in the best interests
of the Company to disclose in a registration statement at such time provided,
--------
however, that the Company may delay a Demand Registration and require the
-------
Holders of Registrable Securities to discontinue the disposition of their
securities covered by a Shelf Registration only for a reasonable period of time
not to exceed 90 days (or such earlier time as such transaction is consummated
or no longer proposed or the material information has been made public) (the
"Blackout Period"); provided, further, that the effectiveness period shall be
---------------- -------- -------
extended by the number of days in any Blackout Period to the extent that the
Registration Statement already was effective at the commencement of the Blackout
Period. There shall not be more than one Blackout Period in any 12 month period.
The Company shall promptly notify the Holders in writing (a "Blackout Notice")
---------------
of any decision to postpone a Demand Registration or to discontinue sales of
Registrable Securities covered by a Shelf Registration pursuant to this Section
2.6 and shall include an undertaking by the Company to promptly notify the
Holders as soon as a Demand Registration may be effected or sales of Registrable
Securities covered by a Shelf Registration may resume. In making any such
determination to initiate or terminate a Blackout Period, the Company shall not
be required to consult with or obtain the consent of any Holder, and any such
determination shall be the Company's sole responsibility. Each Holder shall
treat all notices received from the Company pursuant to this Section 2.6 in the
strictest confidence and shall not disseminate such information. If the Company
shall postpone the filing of a Demand Registration Statement pursuant to this
Section 2.6, the Majority Holders shall have the right to withdraw the request
for registration. Any such withdrawal shall be made by giving written notice to
the Company within 30 days after receipt of the Blackout Notice. Such withdrawn
registration request shall not be treated as a Demand Registration effected
pursuant to Section 2.1 (and shall not be counted towards the number of Demand
Registrations effected), and the Company shall pay all Registration Expenses in
connection therewith.
3. RESTRICTIONS ON SALE.
--------------------
3.1 Restrictions on Sale by Holders of Common Shares.
------------------------------------------------
(a) Each of the Holders agrees not to sell, transfer or otherwise
dispose of any Shares to any Person other than an Affiliate of such Holder,
except in accordance with the following schedule:
Date Maximum percentage of Common Shares which the Holders may
----
sell, transfer or otherwise dispose of following such date
----------------------------------------------------------
November 1, 2000 50%
March 16, 2001 100%
(b) If the Company shall at any time hereafter provide to any holder
of any securities of the Company restrictions with respect to the sale of such
securities on terms or conditions more favorable to such holder than the terms
and conditions provided in this Agreement, the Company shall provide (by way of
amendment to this Agreement or otherwise) such more favorable terms or
conditions to the Holders.
12
3.2 Offers to the Company. Notwithstanding Section 3.1(a) hereof, in the
---------------------
event that USA Cable's appeal of the decision rendered by the trial court on
June 27, 2000 (the "Decision") in that certain Civil Action No. 17983 in the
Court of Chancery of the State of Delaware in and for the New Castle County (USA
Cable v. World Wrestling Federation Entertainment, Inc., Viacom Inc. and CBS
Corporation) results in a final nonappealable judgment that is, in substance,
favorable to USA Cable (a "Final Adverse Judgment"), Viacom may, for a period of
thirty (30) days after the entry of the Final Adverse Judgment, offer to sell
all (but no less than all) of the Common Shares to the Company at a purchase
price equal to $13.00 per share (such Common Shares and purchase price subject
to normal adjustment upon the occurrence of any event described in clause (ii)
of the definition of Registrable Securities), and the Company shall purchase
such Common Shares at such purchase price from Viacom.
3.3 Restrictions on Sale by the Company and Others. The Company agrees
----------------------------------------------
that (i) if timely requested in writing by the sole or lead managing Underwriter
in an Underwritten Offering of any Registrable Securities, it will not make any
short sale of, loan, grant any option for the purchase of or effect any public
sale or distribution of any of the Company's equity securities (or any security
convertible into or exchangeable or exercisable for any of the Company's equity
securities) during the nine business days (as such term is used in Rule 10b-6
under the Exchange Act) prior to, and during the time period reasonably
requested by the sole or lead managing Underwriter not to exceed 90 days,
beginning on the effective date of the applicable Registration Statement (except
as part of such underwritten registration or pursuant to registrations on Forms
S-4 or S-8 or any successor form to such forms), and (ii) it will cause each
officer and director of the Company and each Affiliate that holds 5% or more of
equity securities (or any security convertible into or exchangeable or
exercisable for any of its equity securities) of the Company purchased from the
Company at any time after the date of this Agreement (other than in a registered
public offering) to so agree.
4. REGISTRATION PROCEDURES.
-----------------------
4.1 Obligations of the Company. Subject to Section 2.6, whenever the
--------------------------
Company is required to effect the registration of Registrable Securities under
the Securities Act pursuant to Section 2 of this Agreement, the Company shall,
as expeditiously as possible:
(a) prepare and file with the SEC (promptly, and in any event within
60 days after receipt of a request to register Registrable Securities) the
requisite Registration Statement to effect such registration, which Registration
Statement shall comply as to form in all material respects with the requirements
of the applicable form and include all financial statements required by the SEC
to be filed therewith, and the Company shall use its best efforts to cause such
Registration Statement to become effective (provided, that the Company may
--------
discontinue any registration of its securities that are not Registrable
Securities, and, under the circumstances specified in Section 2.2, its
securities that are Registrable Securities); provided, however, that before
-------- -------
filing a Registration Statement or Prospectus or any amendments or supplements
thereto, or comparable statements under securities or blue sky laws of any
jurisdiction, the Company shall (i) provide Holders' Counsel and any other
Inspector with an adequate and appropriate opportunity to participate in the
preparation of such Registration Statement and each Prospectus included therein
(and each amendment or supplement thereto or comparable statement) to be
13
filed with the SEC, which documents shall be subject to the review and comment
of Holders' Counsel, and (ii) not file any such Registration Statement or
Prospectus (or amendment or supplement thereto or comparable statement) with the
SEC to which Holder's Counsel, any selling Holder or any other Inspector shall
have reasonably objected on the grounds that such filing does not comply in all
material respects with the requirements of the Securities Act or of the rules or
regulations thereunder;
(b) prepare and file with the SEC such amendments and supplements to
such Registration Statement and the Prospectus used in connection therewith as
may be necessary (i) to keep such Registration Statement effective, and (ii) to
comply with the provisions of the Securities Act with respect to the disposition
of all Registrable Securities covered by such Registration Statement, in each
case until such time as all of such Registrable Securities have been disposed of
in accordance with the intended methods of disposition set forth in such
Registration Statement; provided, that except with respect to any Shelf
--------
Registration, such period need not extend beyond six months after the effective
date of the Registration Statement; and provided, further, that with respect to
-------- -------
any Shelf Registration, such period need not extend beyond the time period
provided in Section 2.3, and which periods, in any event, shall terminate when
all Registrable Securities covered by such Registration Statement have been sold
(but not before the expiration of the 90 day period referred to in Section 4(3)
of the Securities Act and Rule 174 thereunder, if applicable);
(c) furnish, without charge, to each selling Holder of such
Registrable Securities and each Underwriter, if any, of the securities covered
by such Registration Statement, such number of copies of such Registration
Statement, each amendment and supplement thereto (in each case including all
exhibits), and the Prospectus included in such Registration Statement (including
each preliminary Prospectus) in conformity with the requirements of the
Securities Act, and other documents, as such selling Holder and Underwriter may
reasonably request in order to facilitate the public sale or other disposition
of the Registrable Securities owned by such selling Holder (the Company hereby
consenting to the use in accordance with applicable law of each such
Registration Statement (or amendment or post-effective amendment thereto) and
each such Prospectus (or preliminary prospectus or supplement thereto) by each
such selling Holder of Registrable Securities and the Underwriters, if any, in
connection with the offering and sale of the Registrable Securities covered by
such Registration Statement or Prospectus);
(d) prior to any public offering of Registrable Securities, use its
best efforts to register or qualify all Registrable Securities and other
securities covered by such Registration Statement under such other securities or
blue sky laws of such jurisdictions as any selling Holder of Registrable
Securities covered by such Registration Statement or the sole or lead managing
Underwriter, if any, may reasonably request to enable such selling Holder to
consummate the disposition in such jurisdictions of the Registrable Securities
owned by such selling Holder and to continue such registration or qualification
in effect in each such jurisdiction for as long as such Registration Statement
remains in effect (including through new filings or amendments or renewals), and
do any and all other acts and things which may be necessary or advisable to
enable any such selling Holder to consummate the disposition in such
jurisdictions of the Registrable Securities owned by such selling Holder;
provided, however, that the Company shall not be required to (i) qualify
-------- -------
generally to do business in any jurisdiction where it would not
14
otherwise be required to qualify but for this Section 4.1(d), (ii) subject
itself to taxation in any such jurisdiction, or (iii) consent to general service
of process in any such jurisdiction;
(e) use its best efforts to obtain all other approvals, consents,
exemptions or authorizations from such governmental agencies or authorities as
may be necessary to enable the selling Holders of such Registrable Securities to
consummate the disposition of such Registrable Securities;
(f) promptly notify Holders' Counsel, each Holder of Registrable
Securities covered by such Registration Statement and the sole or lead managing
Underwriter, if any: (i) when the Registration Statement, any pre-effective
amendment, the Prospectus or any prospectus supplement related thereto or post-
effective amendment to the Registration Statement has been filed and, with
respect to the Registration Statement or any post-effective amendment, when the
same has become effective, (ii) of any request by the SEC or any state
securities or blue sky authority for amendments or supplements to the
Registration Statement or the Prospectus related thereto or for additional
information, (iii) of the issuance by the SEC of any stop order suspending the
effectiveness of the Registration Statement or the initiation or threat of any
proceedings for that purpose, (iv) of the receipt by the Company of any
notification with respect to the suspension of the qualification of any
Registrable Securities for sale under the securities or blue sky laws of any
jurisdiction or the initiation of any proceeding for such purpose, (v) of the
existence of any fact of which the Company becomes aware or the happening of any
event which results in (A) the Registration Statement containing an untrue
statement of a material fact or omitting to state a material fact required to be
stated therein or necessary to make any statements therein not misleading, or
(B) the Prospectus included in such Registration Statement containing an untrue
statement of a material fact or omitting to state a material fact required to be
stated therein or necessary to make any statements therein, in the light of the
circumstances under which they were made, not misleading, (vi) if at any time
the representations and warranties contemplated by Section 2.5(b) cease to be
true and correct in all material respects, and (vii) of the Company's reasonable
determination that a post-effective amendment to a Registration Statement would
be appropriate or that there exists circumstances not yet disclosed to the
public which make further sales under such Registration Statement inadvisable
pending such disclosure and post-effective amendment; and, if the notification
relates to an event described in any of the clauses (ii) through (vii) of this
Section 4.1, the Company shall promptly prepare a supplement or post-effective
amendment to such Registration Statement or related Prospectus or any document
incorporated therein by reference or file any other required document so that
(1) such Registration Statement shall not contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, and (2) as thereafter
delivered to the purchasers of the Registrable Securities being sold thereunder,
such Prospectus shall not include an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make the
statements therein in the light of the circumstances under which they were made
not misleading (and shall furnish to each such Holder and each Underwriter, if
any, a reasonable number of copies of such Prospectus so supplemented or
amended); and if the notification relates to an event described in clause (iii)
of this Section 4.1(f), the Company shall take all reasonable action required to
prevent the entry of such stop order or to remove it if entered;
15
(g) make available for inspection by any selling Holder of
Registrable Securities, any sole or lead managing Underwriter participating in
any disposition pursuant to such Registration Statement, Holders' Counsel and
any attorney, accountant or other agent retained by any such seller or any
Underwriter (each, an "Inspector" and, collectively, the "Inspectors"), all
--------- ----------
financial and other records, pertinent corporate documents and properties of the
Company and any subsidiaries thereof as may be in existence at such time
(collectively, the "Records") as shall be necessary, in the opinion of such
-------
Holders' and such Underwriters' respective counsel, to enable them to exercise
their due diligence responsibility and to conduct a reasonable investigation
within the meaning of the Securities Act, and cause the Company's and any
subsidiaries' officers, directors and employees, and the independent public
accountants of the Company, to supply all information reasonably requested by
any such Inspectors in connection with such Registration Statement;
(h) obtain an opinion from the Company's counsel and a "cold comfort"
letter from the Company's independent public accountants who have certified the
Company's financial statements included or incorporated by reference in such
Registration Statement, in each case dated the effective date of such
Registration Statement (and if such registration involves an Underwritten
Offering, dated the date of the closing under the underwriting agreement), in
customary form and covering such matters as are customarily covered by such
opinions and "cold comfort" letters delivered to underwriters in underwritten
public offerings, which opinion and letter shall be reasonably satisfactory to
the sole or lead managing Underwriter, if any, and to the Majority Holders, and
furnish to each Holder participating in the offering and to each Underwriter, if
any, a copy of such opinion and letter addressed to such Holder (in the case of
the opinion) and Underwriter (in the case of the opinion and the "cold comfort"
letter);
(i) provide and cause to be maintained a transfer agent and registrar
for all such Registrable Securities covered by such Registration Statement not
later than the effectiveness of such Registration Statement;
(j) otherwise use its best efforts to comply with all applicable
rules and regulations of the SEC and any other governmental agency or authority
having jurisdiction over the offering, and make available to its security
holders, as soon as reasonably practicable but no later than 90 days after the
end of any 12-month period, an earnings statement (i) commencing at the end of
any month in which Registrable Securities are sold to Underwriters in an
Underwritten Offering and (ii) commencing with the first day of the Company's
calendar month next succeeding each sale of Registrable Securities after the
effective date of a Registration Statement, which statement shall cover such 12-
month periods, in a manner which satisfies the provisions of Section 11(a) of
the Securities Act and Rule 158 thereunder;
(k) if so requested by the Majority Holders of the Registration, use
its best efforts to cause all such Registrable Securities to be listed (i) on
each national securities exchange on which the Company's securities are then
listed or (ii) if securities of the Company are not at the time listed on any
national securities exchange (or if the listing of Registrable Securities is not
permitted under the rules of each national securities exchange on which the
Company's securities are then listed), on a national securities exchange or The
Nasdaq Stock Market's National Market, as designated by the Majority Holders;
16
(l) keep each selling Holder of Registrable Securities advised in
writing as to the initiation and progress of any registration under Section 2
hereunder;
(m) enter into and perform customary agreements (including, if
applicable, an underwriting agreement in customary form) and provide officers'
certificates and other customary closing documents;
(n) cooperate with each selling Holder of Registrable Securities and
each Underwriter participating in the disposition of such Registrable Securities
and their respective counsel in connection with any filings required to be made
with the NASD and make reasonably available its employees and personnel and
otherwise provide reasonable assistance to the Underwriters (taking into account
the needs of the Company's businesses and the requirements of the marketing
process) in the marketing of Registrable Securities in any Underwritten
Offering;
(o) furnish to each Holder participating in the offering and the sole
or lead managing Underwriter, if any, without charge, at least one manually-
signed copy of the Registration Statement and any post-effective amendments
thereto, including financial statements and schedules, all documents
incorporated therein by reference and all exhibits (including those deemed to be
incorporated by reference);
(p) cooperate with the selling Holders of Registrable Securities and
the sole or lead managing Underwriter, if any, to facilitate the timely
preparation and delivery of certificates not bearing any restrictive legends
representing the Registrable Securities to be sold, and cause such Registrable
Securities to be issued in such denominations and registered in such names in
accordance with the underwriting agreement prior to any sale of Registrable
Securities to the Underwriters or, if not an Underwritten Offering, in
accordance with the instructions of the selling Holders of Registrable
Securities at least three business days prior to any sale of Registrable
Securities;
(q) if requested by the sole or lead managing Underwriter or any
selling Holder of Registrable Securities, immediately incorporate in a
prospectus supplement or post-effective amendment such information concerning
such Holder of Registrable Securities, or the Underwriters or the intended
method of distribution as the sole or lead managing Underwriter or the selling
Holder of Registrable Securities reasonably requests to be included therein and
as is appropriate in the reasonable judgment of the Company, including, without
limitation, information with respect to the number of shares of the Registrable
Securities being sold to the Underwriters, the purchase price being paid
therefor by such Underwriters and with respect to any other terms of the
Underwritten Offering of the Registrable Securities to be sold in such offering;
make all required filings of such Prospectus supplement or post-effective
amendment as soon as notified of the matters to be incorporated in such
Prospectus supplement or post-effective amendment; and supplement or make
amendments to any Registration Statement if requested by the sole or lead
managing Underwriter of such Registrable Securities; and
(r) use its best efforts to take all other steps necessary to
expedite or facilitate the registration and disposition of the Registrable
Securities contemplated hereby.
17
4.2 Seller Information. The Company may require each selling Holder of
------------------
Registrable Securities as to which any registration is being effected to furnish
to the Company such information regarding such Holder, such Holder's Registrable
Securities and such Holder's intended method of disposition as the Company may
from time to time reasonably request in writing; provided that such information
--------
shall be used only in connection with such registration.
If any Registration Statement or comparable statement under "blue sky"
laws refers to any Holder by name or otherwise as the Holder of any securities
of the Company, then such Holder shall have the right to require (i) the
insertion therein of language, in form and substance satisfactory to such Holder
and the Company, to the effect that the holding by such Holder of such
securities is not to be construed as a recommendation by such Holder of the
investment quality of the Company's securities covered thereby and that such
holding does not imply that such Holder will assist in meeting any future
financial requirements of the Company, and (ii) in the event that such reference
to such Holder by name or otherwise is not in the judgment of the Company, as
advised by counsel, required by the Securities Act or any similar federal
statute or any state "blue sky" or securities law then in force, the deletion of
the reference to such Holder.
4.3 Notice to Discontinue. Each Holder of Registrable Securities agrees by
---------------------
acquisition of such Registrable Securities that, upon receipt of any notice from
the Company of the happening of any event of the kind described in Section
4.1(f)(ii) through (vii), such Holder shall forthwith discontinue disposition of
Registrable Securities pursuant to the Registration Statement covering such
Registrable Securities until such Holder's receipt of the copies of the
supplemented or amended prospectus contemplated by Section 4.1(f) and, if so
directed by the Company, such Holder shall deliver to the Company (at the
Company's expense) all copies, other than permanent file copies, then in such
Holder's possession of the Prospectus covering such Registrable Securities which
is current at the time of receipt of such notice. If the Company shall give any
such notice, the Company shall extend the period during which such Registration
Statement shall be maintained effective pursuant to this Agreement (including,
without limitation, the period referred to in Section 4.1(b)) by the number of
days during the period from and including the date of the giving of such notice
pursuant to Section 4.1(f) to and including the date when the Holder shall have
received the copies of the supplemented or amended prospectus contemplated by
and meeting the requirements of Section 4.1(f).
5. INDEMNIFICATION; CONTRIBUTION.
-----------------------------
5.1 Indemnification by the Company. The Company agrees to indemnify and
------------------------------
hold harmless, to the fullest extent permitted by law, each Holder of
Registrable Securities, its officers, directors, partners, members,
shareholders, employees, Affiliates and agents (collectively, "Agents") and each
------
Person who controls such Holder (within the meaning of the Securities Act) and
its Agents with respect to each registration which has been effected pursuant to
this Agreement, against any and all losses, claims, damages or liabilities,
joint or several, actions or proceedings (whether commenced or threatened) in
respect thereof, and expenses (as incurred or suffered and including, but not
limited to, any and all expenses incurred in investigating, preparing or
defending any litigation or proceeding, whether commenced or threatened, and the
reasonable fees, disbursements and other charges of legal counsel) in respect
thereof (collectively, "Claims"), insofar as such Claims arise out of or are
------
based upon any untrue
18
or alleged untrue statement of a material fact contained in any Registration
Statement or Prospectus (including any preliminary, final or summary prospectus
and any amendment or supplement thereto) related to any such registration or any
omission or alleged omission to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, or any
violation by the Company of the Securities Act or any rule or regulation
thereunder applicable to the Company and relating to action or inaction required
of the Company in connection with any such registration, or any qualification or
compliance incident thereto; provided, however, that the Company will not be
-------- -------
liable in any such case to the extent that any such Claims arise out of or are
based upon any untrue statement or alleged untrue statement of a material fact
or omission or alleged omission of a material fact so made in reliance upon and
in conformity with written information furnished to the Company in an instrument
duly executed by such Holder specifically stating that it was expressly for use
therein. The Company shall also indemnify any Underwriters of the Registrable
Securities, their Agents and each Person who controls any such Underwriter
(within the meaning of the Securities Act) to the same extent as provided above
with respect to the indemnification of the Holders of Registrable Securities.
Such indemnity shall remain in full force and effect regardless of any
investigation made by or on behalf of any Person who may be entitled to
indemnification pursuant to this Section 5 and shall survive the transfer of
securities by such Holder or Underwriter.
5.2 Indemnification by Holders. Each Holder, if Registrable Securities
--------------------------
held by it are included in the securities as to which a registration is being
effected, agrees to, severally and not jointly, indemnify and hold harmless, to
the fullest extent permitted by law, the Company, its directors and officers,
each other Person who participates as an Underwriter in the offering or sale of
such securities and its Agents and each Person who controls the Company or any
such Underwriter (within the meaning of the Securities Act) and its Agents
against any and all Claims, insofar as such Claims arise out of or are based
upon any untrue or alleged untrue statement of a material fact contained in any
Registration Statement or Prospectus (including any preliminary, final or
summary prospectus and any amendment or supplement thereto) related to such
registration, or any omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading, to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged omission was made
in reliance upon and in conformity with written information furnished to the
Company in an instrument duly executed by such Holder specifically stating that
it was expressly for use therein; provided, however, that the aggregate amount
-------- -------
which any such Holder shall be required to pay pursuant to this Section 5.2
shall in no event be greater than the amount of the net proceeds received by
such Holder upon the sale of the Registrable Securities pursuant to the
Registration Statement giving rise to such Claims less all amounts previously
paid by such Holder with respect to any such Claims. Such indemnity shall remain
in full force and effect regardless of any investigation made by or on behalf of
such indemnified party and shall survive the transfer of such securities by such
Holder or Underwriter.
5.3 Conduct of Indemnification Proceedings. Promptly after receipt by an
--------------------------------------
indemnified party of notice of any Claim or the commencement of any action or
proceeding involving a Claim under this Section 5, such indemnified party shall,
if a claim in respect thereof is to be made against the indemnifying party
pursuant to Section 5, (i) notify the indemnifying party in writing of the Claim
or the commencement of such action or proceeding; provided, that the failure of
--------
any indemnified party to provide such notice shall not relieve the indemnifying
19
party of its obligations under this Section 5, except to the extent the
indemnifying party is materially and actually prejudiced thereby and shall not
relieve the indemnifying party from any liability which it may have to any
indemnified party otherwise than under this Section 5, and (ii) permit such
indemnifying party to assume the defense of such claim with counsel reasonably
satisfactory to the indemnified party; provided, however, that any indemnified
-------- -------
party shall have the right to employ separate counsel and to participate in the
defense of such claim, but the fees and expenses of such counsel shall be at the
expense of such indemnified party unless (A) the indemnifying party has agreed
in writing to pay such fees and expenses, (B) the indemnifying party shall have
failed to assume the defense of such claim and employ counsel reasonably
satisfactory to such indemnified party within 10 days after receiving notice
from such indemnified party that the indemnified party believes it has failed to
do so, (C) in the reasonable judgment of any such indemnified party, based upon
advice of counsel, a conflict of interest may exist between such indemnified
party and the indemnifying party with respect to such claims (in which case, if
the indemnified party notifies the indemnifying party in writing that it elects
to employ separate counsel at the expense of the indemnifying party, the
indemnifying party shall not have the right to assume the defense of such claim
on behalf of such indemnified party) or (D) such indemnified party is a
defendant in an action or proceeding which is also brought against the
indemnifying party and reasonably shall have concluded that there may be one or
more legal defenses available to such indemnified party which are not available
to the indemnifying party. No indemnifying party shall be liable for any
settlement of any such claim or action effected without its written consent,
which consent shall not be unreasonably withheld. In addition, without the
consent of the indemnified party (which consent shall not be unreasonably
withheld), no indemnifying party shall be permitted to consent to entry of any
judgment with respect to, or to effect the settlement or compromise of any
pending or threatened action or claim in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified party is an
actual or potential party to such action or claim), unless such settlement,
compromise or judgment (1) includes an unconditional release of the indemnified
party from all liability arising out of such action or claim, (2) 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, and (3) does not provide for any
action on the part of any party other than the payment of money damages which is
to be paid in full by the indemnifying party.
5.4 Contribution. If the indemnification provided for in Section 5.1 or
------------
5.2 from the indemnifying party for any reason is unavailable to (other than by
reason of exceptions provided therein), or is insufficient to hold harmless, an
indemnified party hereunder in respect of any Claim, then the 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 Claim in
such proportion as is appropriate to reflect the relative fault of the
indemnifying party, on the one hand, and the indemnified party, on the other
hand, in connection with the actions which resulted in such Claim, as well as
any other relevant equitable considerations. The relative fault of such
indemnifying party and indemnified party shall be determined by reference to,
among other things, whether any action in question, including any untrue or
alleged untrue statement of a material fact or omission or alleged omission to
state a material fact, has been made by, or relates to information supplied by,
such indemnifying party or indemnified party, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
action. If, however, the foregoing allocation is not permitted by applicable
law, then each indemnifying party shall contribute to the amount paid or payable
by such indemnified party in
20
such proportion as is appropriate to reflect not only such relative faults but
also the relative benefits of the indemnifying party and the indemnified party
as well as any other relevant equitable considerations.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 5.4 were determined by pro rata allocation
or by any other method of allocation which does not take into account the
equitable considerations referred to in the immediately preceding paragraph. The
amount paid or payable by a party as a result of any Claim referred to in the
immediately preceding paragraph shall be deemed to include, subject to the
limitations set forth in Section 5.3, any legal or other fees, costs or expenses
reasonably incurred by such party in connection with any investigation or
proceeding. Notwithstanding anything in this Section 5.4 to the contrary, no
indemnifying party (other than the Company) shall be required pursuant to this
Section 5.4 to contribute any amount in excess of the net proceeds received by
such indemnifying party from the sale of the Registrable Securities pursuant to
the Registration Statement giving rise to such Claims, less all amounts
previously paid by such indemnifying party with respect to such Claims. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(a) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
5.5 Other Indemnification. Indemnification similar to that specified in
---------------------
the preceding Sections 5.1 and 5.2 (with appropriate modifications) shall be
given by the Company and each selling Holder of Registrable Securities with
respect to any required registration or other qualification of securities under
any Federal or state law or regulation of any governmental authority, other than
the Securities Act. The indemnity agreements contained herein shall be in
addition to any other rights to indemnification or contribution which any
indemnified party may have pursuant to law or contract.
5.6 Indemnification Payments. The indemnification and contribution
------------------------
required by this Section 5 shall be made by periodic payments of the amount
thereof during the course of any investigation or defense, as and when bills are
received or any expense, loss, damage or liability is incurred.
6. GENERAL.
-------
6.1 Adjustments Affecting Registrable Securities. The Company agrees that
--------------------------------------------
it shall not effect or permit to occur any combination or subdivision of shares
which would materially adversely affect the ability of the Holder of any
Registrable Securities to include such Registrable Securities in any
registration contemplated by this Agreement or the marketability of such
Registrable Securities in any such registration.
6.2 Registration Rights to Others. Other than as set forth on Schedule A
-----------------------------
attached hereto, the Company is not party to any agreement with respect to its
securities granting any registration rights to any Person. If the Company shall
at any time hereafter provide to any holder of any securities of the Company
rights with respect to the registration of such securities under the Securities
Act, (i) such rights shall not be in conflict with or adversely affect any of
the rights provided in this Agreement to the Holders and (ii) if such rights are
provided on terms or conditions more favorable to such holder than the terms and
conditions provided in this
21
Agreement, the Company shall provide (by way of amendment to this Agreement or
otherwise) such more favorable terms or conditions to the Holders.
6.3 Availability of Information. The Company covenants that it shall
---------------------------
timely file any reports required to be filed by it under the Securities Act or
the Exchange Act (including, but not limited to, the reports under Sections 13
and 15(d) of the Exchange Act referred to in subparagraph (c) of Rule 144 under
the Securities Act), and that it 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 limitation of the exemptions
provided by (i) Rule 144 under the Securities Act, as such rule may be amended
from time to time, or (ii) any other rule or regulation now existing or
hereafter adopted by the SEC. Upon the request of any Holder of Registrable
Securities, the Company shall deliver to such Holder a written statement as to
whether it has complied with such requirements.
6.4 Amendments and Waivers. The provisions of this Agreement may not be
----------------------
amended, modified, supplemented or terminated, and waivers or consents to
departures from the provisions hereof may not be given, without the written
consent of the Company and the Holders holding more than 50% of the Registrable
Securities then outstanding; provided, however, that no such amendment,
-------- -------
modification, supplement, waiver or consent to departure shall reduce the
aforesaid percentage of Registrable Securities without the written consent of
all of the Holders of Registrable Securities; and provided, further, that
-------- -------
nothing herein shall prohibit any amendment, modification, supplement,
termination, waiver or consent to departure the effect of which is limited only
to those Holders who have agreed to such amendment, modification, supplement,
termination, waiver or consent to departure.
6.5 Notices. All notices and other communications provided for or
-------
permitted hereunder shall be made in writing by hand delivery, telecopier, any
courier guaranteeing overnight delivery or first class registered or certified
mail, return receipt requested, postage prepaid, addressed to the applicable
party at the address set forth below or such other address as may hereafter be
designated in writing by such party to the other parties in accordance with the
provisions of this Section:
(i) If to the Company, to:
World Wrestling Federation Entertainment, Inc.
ββββ ββββ ββββ ββββββ
β.β. βββ ββββ
ββββββββ, ββ βββββ
Attn: ββββββ β. βββββββ
Telecopy: βββ-βββ-ββββ
Telephone: βββ-βββ-ββββ
With a copy to:
βββββββββββ & ββββββββ LLP
βββββ β. ββββββ Building
22
βββ ββββββββββ ββββββ
ββββββββββ, ββ βββββ-ββββ
Attn: W. βββββ ββββββ, Esq.
Telecopy: 412-355-6501
Telephone: βββ-βββ-ββββ
(ii) If to the Initial Holder, to:
Viacom Inc.
ββββ ββββββββ
βββ ββββ, ββ βββββ
Attn: General Counsel
Telecopy: βββ-βββ-ββββ
Telephone: βββ-βββ-ββββ
(iii) If to any subsequent Holder, to the address of such Person set
forth in the records of the Company.
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; when receipt is
acknowledged, if telecopied; on the next business day, if timely delivered to a
courier guaranteeing overnight delivery; and five days after being deposited in
the mail, if sent first class or certified mail, return receipt requested,
postage prepaid.
6.6 Successors and Assigns. This Agreement shall inure to the benefit of
----------------------
and be binding upon the parties hereto and their respective successors and
permitted assigns. Any Holder may assign to any Affiliate or to any other
transferee of at least 350,000 Common Shares (subject to any adjustment for
stock splits, dividends, recapitalizations and similar corporate events) (other
than a transferee that acquires such Registrable Securities in a registered
public offering or pursuant to a sale under Rule 144 of the Securities Act (or
any successor rule)), its rights and obligations under this Agreement; provided,
--------
however, if any such transferee shall take and hold Registrable Securities, such
-------
transferee shall promptly notify the Company and by taking and holding such
Registrable Securities such transferee shall automatically be entitled to
receive the benefits of and be conclusively deemed to have agreed to be bound by
and to perform all of the terms and provisions of this Agreement as if it were a
party hereto (and shall, for all purposes, be deemed a Holder under this
Agreement). If the Company shall so request, any successor or permitted assign
(including any permitted transferee) shall agree in writing to acquire and hold
the Registrable Securities subject to all of the terms hereof. For purposes of
this Agreement, "successor" for any entity other than a natural person shall
---------
mean a successor to such entity as a result of such entity's merger,
consolidation, sale of substantially all of its assets, or similar transaction.
Except as provided above or otherwise permitted by this Agreement, neither this
Agreement nor any right, remedy, obligation or liability arising hereunder or by
reason hereof shall be assignable by any Holder or by the Company without the
consent of the other parties hereto.
23
6.7 Counterparts. This Agreement may be executed in two or more
------------
counterparts, each of which, when so executed and delivered, shall be deemed to
be an original, but all of which counterparts, taken together, shall constitute
one and the same instrument.
6.8 Descriptive Headings, Etc. The headings in this Agreement are for
-------------------------
convenience of reference only and shall not limit or otherwise affect the
meaning of terms contained herein. Unless the context of this Agreement
otherwise requires: (1) words of any gender shall be deemed to include each
other gender; (2) words using the singular or plural number shall also include
the plural or singular number, respectively; (3) the words "hereof', "herein"
and "hereunder" and words of similar import when used in this Agreement shall
refer to this Agreement as a whole and not to any particular provision of this
Agreement, and Section and paragraph references are to the Sections and
paragraphs of this Agreement unless otherwise specified; (4) the word
"including" and words of similar import when used in this Agreement shall mean
"including, without limitation," unless otherwise specified; (5) "or" is not
exclusive; and (6) provisions apply to successive events and transactions.
6.9 Severability. In the event that any one or more of the provisions,
------------
paragraphs, words, clauses, phrases or sentences contained herein, or the
application thereof in any circumstances, is held invalid, illegal or
unenforceable in any respect for any reason, the validity, legality and
enforceability of any such provision, paragraph, word, clause, phrase or
sentence in every other respect and of the other remaining provisions,
paragraphs, words, clauses, phrases or sentences hereof shall not be in any way
impaired, it being intended that all rights, powers and privileges of the
parties hereto shall be enforceable to the fullest extent permitted by law.
6.10 Governing Law. This Agreement shall be governed by, and construed in
-------------
accordance with, the laws of the State of New York (without giving effect to the
conflict of laws principles thereof).
6.11 Remedies; Specific Performance. The parties hereto acknowledge that
------------------------------
money damages would not be an adequate remedy at law if any party fails to
perform in any material respect any of its obligations hereunder, and
accordingly agree that each party, in addition to any other remedy to which it
may be entitled at law or in equity, shall be entitled to seek to compel
specific performance of the obligations of any other party under this Agreement,
without the posting of any bond, in accordance with the terms and conditions of
this Agreement in any court of the United States or any State thereof having
jurisdiction, and if any action should be brought in equity to enforce any of
the provisions of this Agreement, none of the parties hereto shall raise the
defense that there is an adequate remedy at law. Except as otherwise provided by
law, a delay or omission by a party hereto in exercising any right or remedy
accruing upon any such breach shall not impair the right or remedy or constitute
a waiver of or acquiescence in any such breach. No remedy shall be exclusive of
any other remedy. All available remedies shall be cumulative.
6.12 Entire Agreement. This Agreement and the Purchase Agreement are
----------------
intended by the parties as a final expression of their agreement and intended to
be a complete and exclusive statement of the agreement and understanding of the
parties hereto in respect of the subject matter contained herein. There are no
restrictions, promises, representations, warranties, covenants or undertakings
relating to such subject matter, other than those set forth or referred to
herein or in the Purchase Agreement. This Agreement and the Purchase Agreement
supersede all
24
prior agreements and understandings between the Company and the other parties to
this Agreement with respect to such subject matter.
6.13 Nominees for Beneficial Owners. In the event that any Registrable
------------------------------
Securities are held by a nominee for the beneficial owner thereof, the
beneficial owner thereof may, at its election in writing delivered to the
Company, be treated as the holder of such Registrable Securities for purposes of
any request or other action by any holder or holders of Registrable Securities
pursuant to this Agreement or any determination of any number or percentage of
shares of Registrable Securities held by any holder or holders of Registrable
Securities contemplated by this Agreement. If the beneficial owner of any
Registrable Securities so elects, the Company may require assurances reasonably
satisfactory to it of such owner's beneficial ownership of such Registrable
Securities.
6.14 Consent to Jurisdiction; Waiver of Jury. Each party to this Agreement
---------------------------------------
hereby irrevocably and unconditionally agrees that any legal action, suit or
proceeding arising out of or relating to this Agreement or any agreements or
transactions contemplated hereby may be brought in any federal court of the
Southern District of New York or any state court located in New York County,
State of New York, and hereby irrevocably and unconditionally expressly submits
to the personal jurisdiction and venue of such courts for the purposes thereof
and hereby irrevocably and unconditionally waives any claim (by way of motion,
as a defense or otherwise) of improper venue, that it is not subject personally
to the jurisdiction of such court, that such courts are an inconvenient forum or
that this Agreement or the subject matter may not be enforced in or by such
court. Each party hereby irrevocably and unconditionally consents to the service
of process of any of the aforementioned courts in any such action, suit or
proceeding by the mailing of copies thereof by registered or certified mail,
postage prepaid, to the address set forth or provided for in Section 6.5 of this
Agreement, such service to become effective 10 days after such mailing. Nothing
herein contained shall be deemed to affect the right of any party to serve
process in any manner permitted by law or commence legal proceedings or
otherwise proceed against any other party in any other jurisdiction to enforce
judgments obtained in any action, suit or proceeding brought pursuant to this
Section. Each of the parties hereby irrevocably waives trial by jury in any
action, suit or proceeding, whether at law or equity, brought by any of them in
connection with this Agreement or the transactions contemplated hereby.
6.15 Further Assurances. Each party hereto shall do and perform or cause to
------------------
be done and performed all such further acts and things and shall execute and
deliver all such other agreements, certificates, instruments and documents as
any other party hereto reasonably may request in order to carry out the intent
and accomplish the purposes of this Agreement and the consummation of the
transactions contemplated hereby.
6.16 No Inconsistent Agreements. The Company will not hereafter enter into
--------------------------
any agreement which is inconsistent with the rights granted to the Holders in
this Agreement.
6.17 Construction. The Company and the Holders acknowledge that each of
------------
them has had the benefit of legal counsel of its own choice and has been
afforded an opportunity to review this Agreement with its legal counsel and that
this Agreement shall be construed as if jointly drafted by the Company and the
Holders.
25
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first written above.
VIACOM INC.
By: ______________________________
Name: βββββββ β. ββββββββ
Title: Executive Vice President and
General Counsel
WORLD WRESTLING FEDERATION ENTERTAINMENT,
INC.
By: ______________________________
Name:
Title:
26
Schedule A
Other Registration Rights Granted by the Company
------------------------------------------------
NBC-WWFE HOLDING, INC. (attached hereto)
27