Exhibit 10.9
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REGISTRATION RIGHTS AGREEMENT
Between
BIG CITY RADIO, INC.
and
THE STOCKHOLDERS NAMED HEREIN
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Class A Common Stock, par value $.01 per share
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Dated as of December __, 1997
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TABLE OF CONTENTS
PAGE
1. Registration Rights. . . . . . . . . . . . . . . . . . . . . . . . . . . .1
1.1. Registration on Request.. . . . . . . . . . . . . . . . . . . . . . .1
1.2. Piggy-Back Registration . . . . . . . . . . . . . . . . . . . . . . .3
1.4. Preparation; Reasonable Investigation.. . . . . . . . . . . . . . . .6
1.5. Conditions to Obligations of the Company. . . . . . . . . . . . . . .6
1.6. Indemnification.. . . . . . . . . . . . . . . . . . . . . . . . . . .7
1.7. Underwritten Offerings. . . . . . . . . . . . . . . . . . . . . . . 10
2. Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
3. Rule 144 and Rule 144A . . . . . . . . . . . . . . . . . . . . . . . . . 13
4. Amendments and Waivers . . . . . . . . . . . . . . . . . . . . . . . . . 13
5. Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
6. Assignment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
7. Investment Only. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
8. No Inconsistent Agreements . . . . . . . . . . . . . . . . . . . . . . . 14
9. Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
10. Severability. . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
11. Entire Agreement. . . . . . . . . . . . . . . . . . . . . . . . . . 15
12. Descriptive Headings. . . . . . . . . . . . . . . . . . . . . . . . 15
13. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
14. Counterparts. . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
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REGISTRATION RIGHTS AGREEMENT ("Agreement"), dated as of December __,
1997, between Big City Radio, Inc., a Delaware corporation (the "Company"),
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ (together, the "Stockholders").
Capitalized terms used herein but not otherwise defined shall have the meanings
given them in Section 2 of this Agreement.
WHEREAS, in connection with the initial public offering by the Company
of its shares of Class A Common Stock, par value $.01 per share (the "Class A
Common Stock"), the shares of Common Stock, par value $.01 per share, held by
the Stockholders were reclassified into shares of Class B Common Stock, par
value $01 per share, convertible at any time into an equivalent number of shares
of Class A Common Stock (the "Shares");
NOW THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements herein contained, and intending to be legally bound
hereby, the parties hereto hereby agree as follows:
1. REGISTRATION RIGHTS
1.1. REGISTRATION ON REQUEST.
(a) REQUEST. At any time after the Company qualifies to
utilize a Registration Statement on Form S-3 to register its shares of Class A
Common Stock, upon the written request of the Stockholders that the Company
effect the registration under the Securities Act of all or part of the
Stockholders' Registrable Securities, the Company promptly will give written
notice of such requested registration (the "Registration Notice") to the
Executive, and thereupon the Company will use its best efforts to effect, at the
earliest possible date, the registration under the Securities Act, including by
means of a shelf registration pursuant to Rule 415 under the Securities Act if
so requested in such request (but only if the Company is then eligible to use
such a shelf registration), of (i) the Registrable Securities which the Company
has been so requested to register by the Stockholders, and (ii) all other
Registrable Securities which the Company has been requested to register by the
Executive thereof (such holder together with the Stockholders hereinafter are
referred to as the "Selling Holders") by written request given to the Company
within 10 days after the giving of the Registration Notice by the Company, all
to the extent requisite to permit the disposition of the Registrable Securities
so to be registered.
(b) REGISTRATION STATEMENT FORM. Registrations under this
Section 1.1 shall be on such appropriate registration form of the Commission as
shall be reasonably selected by the Company in consultation with the Selling
Holders.
(c) EFFECTIVE REGISTRATION STATEMENT. A registration
requested pursuant to this Section 1.1 shall not be deemed to have been effected
until such time as a registration statement with respect thereto has become
effective and
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remained effective in compliance with the provisions of the Securities Act with
respect to the disposition of all Registrable Securities covered by such
registration statement and all of such Registrable Securities have been disposed
of in accordance with the intended methods of disposition by the seller or
sellers thereof set forth in such registration statement.
(d) SELECTION OF UNDERWRITERS. If a majority of the
Selling Holders of all Registrable Securities to be covered by a registration so
elects, the offering of such Registrable Securities pursuant to this Section 1.1
shall be in the form of an underwritten offering. The underwriter or
underwriters of each underwritten offering of the Registrable Securities so to
be registered shall be a firm or firms of nationally recognized standing
selected by all of the Selling Holders of the Registrable Securities to be
included in such registration and shall be reasonably acceptable to the Company,
it being agreed that ▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇ Securities Corporation is
reasonably acceptable to the Company.
(e) PRIORITY IN REQUESTED REGISTRATION. If the managing
underwriter of an underwritten offering shall advise the Company in writing or
if the Company determines in good faith based upon the advice of its financial
advisor for any offering which is not underwritten (and in each such case the
Company shall promptly advise each Selling Holder of Registrable Securities
requesting registration of such advice) that, in the underwriter's or the
Company's opinion, as the case may be, the total number of Registrable
Securities requested to be included in such registration exceeds the number of
Registrable Securities that can be sold in such offering without adversely
affecting the market for the Company's securities or the price that may be
obtained in such offering, to the extent the underwriter or the Company, as the
case may be, determines that certain of the Registrable Securities requested to
be registered by the Selling Holders must be excluded, they shall be excluded
pro rata among each of the Selling Holders requesting such registration on the
basis of the estimated aggregate gross proceeds to be received by such Selling
Holders from the sale of their Registrable Securities. To the extent
Registrable Securities requested to be registered are excluded from the offering
pursuant to the immediately preceding sentence, the holders of such Registrable
Securities shall have the right to one additional demand registration pursuant
to this Section 1.1.
(f) LIMITATIONS ON REGISTRATION ON REQUEST.
Notwithstanding anything in this Section 1.1 to the contrary (except as provided
in Section 1.1(f)), in no event will the Company be required to effect pursuant
to this Section 1.1, (i) in the aggregate, more than six (6) registrations, (ii)
more than two (2) registrations within any six (6) month period, (iii) any
registration within six (6) months after the effectiveness of a registration
statement by the Company offering its shares of Class A Common Stock (other than
a registration statement on Form S-8 with respect to an employee benefit plan),
or (iv) any registration valued at less than $10,000,000 based upon the then
current market price or fair market values as
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estimated by the Company's Board of Directors, in good faith based upon the
advice of the Company's underwriter in the case of an underwritten offering, or
the Company's financial advisor for any offering which is not underwritten.
(g) EXPENSES. The Company will pay all Registration
Expenses in connection with any registration requested pursuant to this
Section 1.1.
1.2. PIGGY-BACK REGISTRATION.
(a) RIGHT TO INCLUDE REGISTRABLE SECURITIES. Except in
connection with exclusive registration rights of a holder of securities which
are not the Registrable Securities, if the Company at any time proposes to file
a registration statement to register any of its securities under the Securities
Act (except for registration on Form S-4 or S-8 or any successor or similar
forms), whether or not for sale for its own account, it will each such time give
prompt written notice to the Stockholders of its intention to do so and of such
Stockholders' rights under this Section 1.2. Upon the written request of the
Stockholders (which request shall specify the amount of Registrable Securities
intended to be disposed of by the Stockholders) made as promptly as practicable
and in any event within 20 days after the receipt of any such notice, the
Company will use its best efforts to effect the registration under the
Securities Act of all Registrable Securities which the Company has been so
requested to register by the Stockholders thereof. No registration effected
under this Section 1.2 shall relieve the Company of its obligation to effect any
registration upon request under Section 1.1.
(b) PRIORITY IN INCIDENTAL REGISTRATIONS. If the managing
underwriter of any underwritten offering shall advise the Stockholders in
writing that in its opinion the total amount of securities including Registrable
Securities requested to be included in such registration exceeds the number of
securities including Registrable Securities that can be sold in such offering
without adversely affecting the market for the Company's securities or the price
that may be obtained in such offering then the Company will include in such
registration, to the extent of the number which the Company is so advised can
reasonably be expected to be sold in (or during the time of) such offering, (i)
first, all securities proposed by the Company to be sold for its own account,
(ii) then, Registrable Securities requested to be included in such registration
by the Stockholders pursuant to this Agreement, pro rata among the Stockholders
on the basis of the estimated aggregate gross proceeds from the sale thereof,
and (iii) finally, other securities to be sold by holders, pro rata among all
sellers on the basis of the estimated aggregate gross proceeds from the sale
thereof.
(c) EXPENSES. The Company will pay all Registration
Expenses in connection with any registration effected pursuant to this
Section 1.2.
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1.3. REGISTRATION PROCEDURES. If and whenever the Company is
required to effect the registration of any Registrable Securities under the
Securities Act as provided in Sections 1.1 and 1.2, the Company will, as
expeditiously as possible:
(a) subject to Section 1.5 hereof, prepare and file with
the Commission such amendments and supplements to such registration statement
and the prospectus used in connection therewith as may be necessary to keep such
registration statement effective and to comply with the provisions of the
Securities Act with respect to the disposition of all Registrable Securities
covered by such registration statement or as may be reasonably requested by the
Selling Holders, until such time as all of such Registrable Securities have been
disposed of in accordance with the intended methods of disposition by the seller
or sellers thereof set forth in such registration statement;
(b) furnish to each seller of Registrable Securities
covered by such registration statement, such number of conformed copies of such
registration statement and of each such amendment and supplement thereto (in
each case including all exhibits) and such number of copies of the prospectus
contained in such registration statement (including each preliminary prospectus
and any summary prospectus) and any other prospectus filed under Rule 424 under
the Securities Act, in conformity with the requirements of the Securities Act,
and such other documents, as such seller may reasonably request;
(c) use its best efforts (i) 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 States of the
United States of America where an exemption is not available and as the sellers
of Registrable Securities covered by such registration statement shall
reasonably request, (ii) to keep such registration or qualification in effect
for so long as such registration statement remains in effect, and (iii) to take
any other action which may be reasonably necessary or advisable to enable such
sellers to consummate the disposition in such jurisdictions of the securities to
be sold by such sellers, except that the Company shall not for any such purpose
be required to qualify generally to do business as a foreign corporation in any
jurisdiction wherein it would not but for the requirements of this subdivision
(c) be obligated to be so qualified, subject itself to taxation in any such
jurisdiction or to consent to general service of process in any such
jurisdiction;
(d) use its best efforts to cause all Registrable
Securities covered by such registration statement to be registered with or
approved by such other federal or state governmental agencies or authorities as
may be necessary in the opinion of counsel to the Company and counsel to the
Selling Holders to enable the seller or sellers thereof to consummate the
disposition of such Registrable Securities;
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(e) subject to Section 1.5 hereof, promptly notify each
seller of Registrable Securities covered by such registration statement at any
time when a prospectus relating thereto is required to be delivered under the
Securities Act, upon discovery that, or upon the happening of any event as a
result of which, the prospectus included in such registration statement, as then
in effect, includes an untrue statement of a material fact or omits to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading, in the light of the circumstances under which they were
made, and at the request of any such seller promptly prepare and furnish to it a
reasonable number of copies of a supplement to or an amendment of such
prospectus as may be necessary so that, as thereafter delivered to the
purchasers of such securities, 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 not misleading in the
light of the circumstances under which they were made;
(f) otherwise use its best efforts to comply with all
applicable rules and regulations of the Commission, and make available to its
security holders, as soon as reasonably practicable, an earnings statement
covering the period of at least twelve months, but not more than eighteen
months, beginning with the first full calendar month after the effective date of
such registration statement, which earnings statement shall satisfy the
provisions of Section 11(a) of the Securities Act and Rule 158 promulgated
thereunder, and promptly furnish to each such seller of Registrable Securities a
copy of any amendment or supplement to such registration statement or
prospectus; and
(g) use its best efforts to list all Registrable Securities
covered by such registration statement on the NYSE, the AMEX or such other
national securities exchange on which Registrable Securities of the same class
and, if applicable, series, covered by such registration statement are then
listed or on the National Association of Securities Dealers Automated Quotations
System, Inc. ("NASDAQ") if the Registrable Securities are quoted on NASDAQ.
The Company may (i) require the Selling Holders to furnish the Company such
information regarding such sellers and the distribution of such securities as
the Company may from time to time reasonably request in writing and (ii) require
the Selling Holders to agree to comply with the Securities Act and the Exchange
Act in connection with the registration and distribution of the Registrable
Securities.
Notwithstanding the foregoing, if any such registration or comparable
statement refers to any holder by name or otherwise as the holder of any
securities of the Company and in its sole and exclusive judgment such holder is
or might be deemed to be a controlling person of the Company, such holder shall
have the right to require the insertion therein of language, in form and
substance reasonably satisfactory to such holder and the Company, to the effect
that the holding by such
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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.
The Stockholders agree 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 subdivision (e) of this Section 1.3, the Stockholders
will forthwith discontinue such Stockholders' disposition of Registrable
Securities pursuant to the registration statement relating to such Registrable
Securities until the Stockholders' receipt of the copies of the supplemented or
amended prospectus contemplated by subdivision (e) of this Section 1.3 and, if
so directed by the Company, will promptly deliver to the Company (at the
Company's expense) all copies, other than permanent file copies, then in such
holders' possession of the prospectus relating to such Registrable Securities
current at the time of receipt of such notice.
1.4 PREPARATION; REASONABLE INVESTIGATION. In connection with
the preparation and filing of each registration statement under the Securities
Act pursuant to this Agreement, the Company (i) shall give a representative
holder designated in writing to the Company by the Selling Holders (the
"Representative") and counsel and accountants designated by the Representative
the opportunity to participate in the preparation of such registration
statement, each prospectus included therein or filed with the Commission, and
each amendment thereof or supplement thereto, (ii) shall give each of them such
reasonable access to its books and records and such opportunities to discuss the
business of the Company with its officers and the independent public accountants
who have certified its financial statements as shall be necessary, in the
opinion of the Representative and such counsel or accountants, to conduct a
reasonable investigation within the meaning of the Securities Act and (iii)
shall promptly notify the Representative and its counsel of any stop order
issued or threatened by the Commission and promptly take all reasonable actions
required to prevent the entry of such stop order or to remove it if entered.
1.5. CONDITIONS TO OBLIGATIONS OF THE COMPANY. It shall be a
condition precedent to the obligation of the Company to take any action pursuant
to this Agreement in respect of the shares of Class A Common Stock which are to
be registered at the request of the Stockholders that such Stockholders shall
furnish to the Company such information regarding the securities held by such
Stockholders and the intended method of disposition thereof as the Company shall
reasonably request and as shall be required in connection with the action taken
by the Company.
Notwithstanding any provision in this Agreement to the contrary, if
the Board of Directors of the Company determines in its reasonable judgment, at
the time it receives a Registration Notice, that (i) there shall be an adverse
effect on a then contemplated public offering of the Company's securities,
(ii) the registration and
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offering would interfere with any material financing, acquisition, corporate
reorganization or other material corporate transaction or development involving
the Company that is pending or imminent, (iii) the disclosures that would be
required to be made by the Company in connection with such registration would be
materially harmful to the Company because of transactions then being considered
by, or other events then concerning, the Company, or (iv) registration at the
time would require the inclusion of pro forma or other information, which
requirement the Company is reasonably unable to comply with without incurring
material expense, and the Company promptly gives each Selling Holder, in the
case of any registration statement referred to in Section 1.1, notice of that
determination (it being understood, however, that in any such event, the Company
shall use all reasonable efforts to minimize the length of the postponement),
then the Company may defer the filing of the registration statement which is
required to effect any registration pursuant to this Section 1.5 for a
reasonable period of time, but not in excess of [90] calendar days; PROVIDED,
that the Company may not exercise the holdback rights set forth in this
Section 1.5 more frequently than every 3 months. If the Company shall so
postpone the filing of a registration statement, the Stockholders, in the case
of any registration statement referred to in Section 1.1, shall have the right
to withdraw their Registration Notice by giving written notice to the Company
within 30 days after the receipt of the notice of the postponement and, in the
event of the withdrawal, the Registration Notice that was withdrawn shall not be
deemed to have been made.
1.6. INDEMNIFICATION.
(a) INDEMNIFICATION BY THE COMPANY. The Company will, and
hereby does, indemnify and hold harmless, in the case of any registration
statement filed pursuant to Sections 1.1 and 1.2, each seller of any Registrable
Securities covered by such registration statement and each other Person who
participates as an underwriter in the offering or sale of such securities and
each other Person, if any, who controls such seller or any such underwriter
within the meaning of the Securities Act, and their respective directors,
officers, partners, shareholders, employees and affiliates against any losses,
claims, damages or liabilities, joint or several, to which such seller or
underwriter or any such director, officer, partner, shareholder, employee,
affiliate or controlling person may become subject under the Securities Act or
otherwise, including, without limitation, the fees and expenses of legal
counsel, insofar as such losses, claims, damages or liabilities (or actions or
proceedings, whether commenced or threatened, in respect thereof) arise out of
or are based upon any untrue statement or alleged untrue statement of any
material fact contained in any registration statement under which such
securities were registered under the Securities Act, any preliminary prospectus,
final prospectus or summary prospectus contained therein, or any amendment or
supplement thereto, or any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein in light of the circumstances in which they were made not misleading, or
any violation by the Company of the Securities Act or any rule or regulation
thereunder applicable to the Company and the
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Company will reimburse each such seller or underwriter and each such director,
officer, partner, shareholder, employee, affiliate and controlling Person for
any legal or any other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, liability, action or
proceeding; PROVIDED, that the Company shall not be liable in any such case to
the extent that any such loss, claim, damage, liability (or action or proceeding
in respect thereof) or expense arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission made in
such registration statement, any such preliminary prospectus, final prospectus,
summary prospectus, amendment or supplement in reliance upon and in conformity
with written information furnished to the Company through an instrument duly
executed by or on behalf of such seller or underwriter, as the case may be,
specifically stating that it is for use in the preparation thereof. Such
indemnity shall remain in full force and effect regardless of any investigation
made by or on behalf of any such seller or any such director, officer, employee,
affiliate, partner or controlling person and shall survive the transfer of such
securities by such seller.
(b) INDEMNIFICATION BY THE SELLERS. As a condition to
including any Registrable Securities in any registration statement, the Company
shall have received an undertaking satisfactory to it from the prospective
seller of such Registrable Securities, to indemnify and hold harmless (in the
same manner and to the same extent as set forth in subdivision (a) of this
Section 1.6) the Company, and each director, officer, employee and shareholder
of the Company and each other Person, if any, who participates as an underwriter
in the offering or sale of such securities and each other Person who controls
the Company or any such underwriter within the meaning of the Securities Act,
with respect to any untrue statement or alleged untrue statement of a material
fact contained in or any omission or alleged omission to state therein a
material fact in any such registration statement, any preliminary prospectus,
final prospectus or summary prospectus contained therein, or any amendment or
supplement thereto, if 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 through an instrument duly executed
by or on behalf of such seller specifically stating that it is for use in the
preparation of such registration statement, preliminary prospectus, final
prospectus, summary prospectus, amendment or supplement; PROVIDED, HOWEVER, that
the liability of such indemnifying party under this Section 1.6(b) shall be
limited to the amount of proceeds received by such indemnifying party in the
offering giving rise to such liability. Such indemnity shall remain in full
force and effect, regardless of any investigation made by or on behalf of the
Company or any such director, officer, employee, shareholder or controlling
person and shall survive the transfer of such securities by such seller.
(c) NOTICES OF CLAIMS, ETC. Promptly after receipt by an
indemnified party of notice of the commencement of any action or proceeding
involving a claim referred to in the preceding subdivisions of this Section 1.6,
such indemnified party will, if a claim in respect thereof is to be made against
an
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indemnifying party, give written notice to the latter of the commencement of
such action; PROVIDED, HOWEVER, that the failure of any indemnified party to
give notice as provided herein shall not relieve the indemnifying party of its
obligations under the preceding subdivisions of this Section 1.6, except to the
extent that the indemnifying party is actually prejudiced by such failure to
give notice. In case any such action is brought against an indemnified party,
the indemnifying party shall be entitled to participate in and to assume the
defense thereof, jointly with any other indemnifying party similarly notified to
the extent that it may wish, with counsel reasonably satisfactory to such
indemnified party, and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party for any legal
or other expenses subsequently incurred by the latter in connection with the
defense thereof other than reasonable costs of investigation; PROVIDED, HOWEVER,
that if the indemnified party reasonably believes it is advisable for it to be
represented by separate counsel because there exists a conflict of interest
between its interests and those of the indemnifying party with respect to such
claim, or there exist defenses available to such indemnified party which may not
be available to the indemnifying party, or if the indemnifying party shall fail
to assume responsibility for such defense, the indemnified party may retain
counsel satisfactory to it and the indemnifying party shall pay all fees and
expenses of such counsel. No indemnifying party shall be liable for any
settlement of any action or proceeding effected without its written consent,
which consent shall not be unreasonably withheld or delayed. No indemnifying
party shall, without the consent of the indemnified party, consent to entry of
any judgment or enter into any settlement which does not include as an
unconditional term thereof the giving by the claimant or plaintiff to such
indemnified party of a release from all liability in respect to such claim or
litigation or which requires action other than the payment of money by the
indemnifying party. Each indemnified party shall furnish such information
regarding itself or the claim in question as an indemnifying party may
reasonably request in writing and as shall be reasonably requested in connection
with the defense of such claim and litigation resulting therefrom.
(d) CONTRIBUTION. If the indemnification provided for in
this Section 1.6 shall for any reason be held by a court of competent
jurisdiction to be unavailable to an indemnified party under subparagraph (a) or
(b) hereof in respect of any loss, claim, damage or liability, or any action in
respect thereof, then, in lieu of the amount paid or payable under subparagraph
(a) or (b) hereof, the indemnified party and the indemnifying party under
subparagraph (a) or (b) hereof shall contribute to the aggregate losses, claims,
damages and liabilities (including legal or other expenses reasonably incurred
in connection with investigating the same), (i) in such proportion as is
appropriate to reflect the relative fault of the Company and the prospective
sellers of Registrable Securities covered by the registration statement in
connection with the statements or omissions which resulted in such loss, claim,
damage or liability, or action in respect thereof, as well as any other relevant
equitable considerations (the relative fault of the Company and such prospective
sellers to be determined by reference to, among other things, whether the untrue
or
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alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the Company or such
prospective sellers and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission) or
(ii) if the allocation provided by clause (i) above is not permitted by
applicable law; in such proportion as shall be appropriate to reflect the
relative benefits received by the Company and such prospective sellers from the
offering of the securities covered by such registration statement. No Person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any Person who was
not guilty of such fraudulent misrepresentation. Such prospective sellers'
obligations to contribute as provided in this subparagraph (d) are several in
proportion to the relative value of their respective Registrable Securities
covered by such registration statement and not joint and no prospective seller
shall be liable under this subparagraph (d) for any amount in excess of the
proceeds received by the seller in the offering giving rise to the liability
hereunder. In addition, no Person shall be obligated to contribute hereunder
any amounts in payment for any settlement of any action or claim effected
without such Person's consent, which consent shall not be unreasonably withheld
or delayed.
(e) OTHER INDEMNIFICATION. Indemnification and
contribution similar to that specified in the preceding subdivisions of this
Section 1.6 (with appropriate modifications) shall be given by the Company and
each seller of Registrable Securities with respect to any required registration
or other qualification of securities under any federal or state law, rule or
regulation of any governmental authority other than the Securities Act.
(f) INDEMNIFICATION PAYMENTS. The indemnification and
contribution required by this Section 1.6 shall be made by prompt periodic
payments of the amount thereof during the course of the investigation or
defense, as and when bills are received or expense, loss, damage or liability is
incurred.
1.7 UNDERWRITTEN OFFERINGS
(a) REQUESTED UNDERWRITTEN OFFERINGS. If requested by the
underwriters for any underwritten offering by holders of Registrable Securities
pursuant to a registration requested under Section 1.1, the Company will use its
best efforts to enter into an underwriting agreement with such underwriters for
such offering, such agreement to be reasonably satisfactory in form and
substance to such holders, the Company and the underwriters and to contain such
representations and warranties by the Company and such other terms as are
generally prevailing in agreements of that type, including, without limitation,
indemnities to the effect and to the extent provided in Section 1.6. The
holders of the Registrable Securities proposed to be sold by such underwriters
will reasonably cooperate with the Company in the negotiation of the
underwriting agreement. Such holders of Registrable Securities to
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be sold by such underwriters shall be parties to such underwriting agreement and
may, at their 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. Any such holder of Registrable Securities shall not be
required to make any representations or warranties to or agreements with the
Company other than representations, warranties or agreements regarding such
holder, such holder's Registrable Securities and such holder's intended method
of distribution or any other representations required by applicable law.
(b) INCIDENTAL UNDERWRITTEN OFFERINGS. If the Company
proposes to register any of its securities under the Securities Act as
contemplated by Section 1.2 and such securities are to be distributed by or
through one or more underwriters, the Company will, if requested by the
Stockholders and subject to the provisions of Section 1.2(b), use its best
efforts to arrange for such underwriters to include all the Registrable
Securities to be offered and sold by the Stockholders among the securities of
the Company to be distributed by such underwriters. The Stockholders shall be
party to the underwriting agreement between the Company and such underwriters
and may, at his 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
their benefit and that any or all of the conditions precedent to the obligations
of such underwriters under such underwriting agreement be conditions precedent
to their obligations. The Stockholders shall not be required to make any
representations or warranties to or agreements with the Company or the
underwriters other than representations, warranties or agreements regarding the
Stockholders, the Stockholders' Registrable Securities and the Stockholders'
intended method of distribution or any other representations required by
applicable law.
(c) If, in connection with any underwritten offering of
Registrable Securities, any seller of Registrable Securities disapproves of the
terms of any such underwriting, it may elect to withdraw therefrom by written
notice to the Company and the underwriter, delivered at least fifteen (15) days
prior to the effective date of the registration statement effecting the
registration of such Registrable Securities. Any Registrable Securities
excluded or withdrawn from such underwriting shall be withdrawn from the
registration.
2. DEFINITIONS. As used herein, unless the context otherwise
requires, the following terms have the following respective meanings:
"AMEX" means the American Stock Exchange, Inc.
"COMMISSION" means the Securities and Exchange Commission or any
other federal agency at the time administering the Securities Act.
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"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended, or any successor federal statute, and the rules and regulations of the
Commission thereunder, all as the same shall be in effect at the time.
Reference to a particular section of the Securities Exchange Act of 1934, as
amended, shall include a reference to the comparable section, if any, of any
such successor federal statute.
"EXECUTIVE" means ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇.
"NYSE" means the New York Stock Exchange, Inc.
"PERSON" means any individual, corporation, partnership, limited
liability company, trust, incorporated or unincorporated association, joint
venture, joint stock company, government (or an agency, department or political
subdivision thereof) or other entity of any kind.
"REGISTRABLE SECURITIES" means (i) the Shares, (ii) any other
shares of Class A Common Stock owned by the Executive and (iii) any Related
Registrable Securities. As to any particular Registrable Securities, once
issued such securities shall cease to be Registrable Securities when (a) a
registration statement with respect to the sale of such securities shall have
become effective under the Securities Act and such securities shall have been
disposed of in accordance with such registration statement, (b) they shall have
been distributed to the public pursuant to Rule 144 (or any successor provision)
under the Securities Act, (c) they shall have been otherwise transferred, and
new certificates for them not bearing a legend restricting further transfer
shall have been delivered by the Company and subsequent public distribution of
them shall not, in the opinion of counsel to the holders (or in the opinion of
counsel to the Company, which opinion is reasonably satisfactory to the
holders), require registration of them under the Securities Act, or (d) they
shall have ceased to be outstanding.
"REGISTRATION EXPENSES" means all costs, fees and expenses
incident to the Company's performance of or compliance with Section 1,
including, without limitation, all registration, filing and NASD fees, all fees
and expenses of complying with securities or blue sky laws, all printing
expenses, and delivery expenses, the fees and disbursements of counsel for the
Company and of its independent public accountants, and any fees and
disbursements of underwriters customarily paid by issuers or sellers of
securities (excluding any underwriting discounts or commissions or transfer
taxes with respect to the Registrable Securities and the fees and disbursements
of more than one counsel and one accountant for the holders of the Registrable
Securities).
"REGISTRATION NOTICE" is defined in Section 1.1.
"RELATED REGISTRABLE SECURITIES" means any securities of the
Company issued or issuable with respect to the Shares by way of a dividend or
stock
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split or in connection with a combination of shares, recapitalization, merger,
consolidation or other reorganization or otherwise.
"SECURITIES ACT" means the Securities Act of 1933, or any
successor federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time. References to a
particular section of the Securities Act of 1933 shall include a reference to
the comparable section, if any, of any such successor federal statute.
"SELLING HOLDER" is defined in Section 1.1.
"SHARES" is defined in the Whereas clause of this Agreement.
3. RULE 144 AND RULE 144A. The Company shall take all actions
reasonably necessary to enable the Stockholders to sell such securities without
registration under the Securities Act within the limitation of the exemptions
provided by (a) Rule 144 under the Securities Act, as such Rule may be amended
from time to time, (b) Rule 144A under the Securities Act, as such Rule may be
amended from time to time, or (c) any similar rules or regulations hereafter
adopted by the Commission, including, without limiting the generality of the
foregoing, filing on a timely basis all reports required to be filed by the
Exchange Act. Upon the request of the Stockholders, the Company will deliver to
such Stockholders a written statement as to whether it has complied with such
requirements.
4. AMENDMENTS AND WAIVERS. This Agreement may not be amended,
modified or supplemented, except with the written consent of the Company and the
Stockholders.
5. NOTICES. All notices, demands and other communications provided
for or permitted hereunder shall be made in writing and shall be by registered
or certified first-class mail, return receipt requested, telecopier, reputable
courier service or personal delivery to the following addresses (or at such
other address for a party as shall be specified by like notice):
(1) if to the Stockholders
c/▇ ▇▇▇▇▇ & Company
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
(2) if to the Company, to any Vice President at
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Big City Radio, Inc.
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Metromedia Company
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
All such notices and communications shall be deemed to have been duly given:
when delivered by hand, if personally delivered; one business day after being
sent by reputable courier service; five business days after being deposited in
the mail, postage prepaid, if mailed; and when receipt is acknowledged, if
telecopied.
6. ASSIGNMENT. This Agreement shall be binding upon and inure to
the benefit of and be enforceable by the parties hereto and, with respect to the
Company, its respective successors and assigns and, with respect to the
Stockholders, any holder of any Registrable Securities, subject to the
provisions respecting the minimum number of shares of Registrable Securities
required in order to be entitled to certain rights, or to take certain actions,
contained herein.
7. INVESTMENT ONLY. The Stockholders hereby represent and warrant
to the Company that they have acquired the Shares for investment only, their own
account and not for resale or distribution. The Stockholders further
acknowledge that the Shares are being issued pursuant to an exemption from
registration under the Securities Act and agree not to sell or otherwise dispose
of the Shares in any transaction which, in the reasonable opinion of Company's
counsel, would be in violation of the Securities Act. The Stockholders
acknowledge that a legend appears on the certificates for the Shares reflecting
the foregoing restriction and hereby consent to the Company's maintaining "stop
transfer" instructions with its transfer agent with respect thereto.
8. NO INCONSISTENT AGREEMENTS. The Company will not hereafter enter
into any agreement with respect to its securities which is inconsistent with the
rights granted to the holders of Registrable Securities in this Agreement.
9. REMEDIES. Each holder of Registrable Securities, in addition to
being entitled to exercise all rights granted by law, including recovery of
damages, will be entitled to specific performance of its rights under this
Agreement. The Company agrees that monetary damages would not be adequate
compensation for any loss incurred by reason of a breach by it of the provisions
of this Agreement and
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hereby agrees to waive the defense in any action for specific performance that a
remedy at law would be adequate.
10. SEVERABILITY. In the event that any one or more of the
provisions 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 in every other
respect and of the remaining provisions contained herein shall not be in any way
impaired thereby, it being intended and understood that all of the rights and
privileges of the Stockholders shall be enforceable to the fullest extent
permitted by law.
11. ENTIRE AGREEMENT. This Agreement is 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,
warranties or undertakings, other than those set forth or referred to herein and
therein. This Agreement supersedes all prior agreements and understandings
between the parties with respect to such subject matter.
12. DESCRIPTIVE HEADINGS. The descriptive headings of the several
sections and paragraphs of this Agreement are inserted for reference only and
shall not limit or otherwise affect the meaning hereof.
13. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, AND THE RIGHTS OF THE PARTIES SHALL BE GOVERNED BY, THE LAWS OF
THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED ENTIRELY
WITHIN SUCH STATE.
14. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all such
counterparts shall together constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered by their respective officers thereunto duly authorized as
of the date first above written.
BIG CITY RADIO, INC.
By:
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Name:
Title:
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