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EXHIBIT 10.6
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PREFERRED STOCK REGISTRATION RIGHTS AGREEMENT
Dated as of March 15, 1997
by and among
SPANISH BROADCASTING SYSTEM, INC.,
THE GUARANTORS NAMED HEREIN
and
CIBC WOOD GUNDY SECURITIES CORP.
(as Initial Purchaser)
175,000 Shares
of
14-1/4% Senior Exchangeable Preferred Stock, Series A
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This Preferred Stock Registration Rights Agreement is dated as of
March 15, 1997, by and among Spanish Broadcasting System, Inc., a Delaware
corporation (the "Company"), each of the subsidiaries of the Company listed on
the signature pages hereto as a Guarantor (collectively, the "Guarantors" and,
together with the Company, the "Issuers") and CIBC Wood Gundy Securities Corp.
(the "Initial Purchaser").
This Agreement is made pursuant to the Purchase Agreement, dated
March 24, 1997, among the Company, the Guarantors and Initial Purchaser (the
"Purchase Agreement"). In order to induce the Initial Purchaser to enter into
the Purchase Agreement, the Issuers have agreed to provide the registration
rights provided for in this Agreement to the Initial Purchaser and its direct
and indirect transferees and assigns. The execution and delivery of this
Agreement is a condition to the closing of the transactions contemplated by the
Purchase Agreement.
The parties hereby agree as follows:
1. Definitions
As used in this Agreement, the following terms shall have the
following meanings:
Additional Dividends: As defined in Section 4(a) hereof.
Affiliate: With respect to any specified person, "Affiliate" shall
mean any other person directly or indirectly through one or more intermediaries
controlling or controlled by or under direct or indirect common control with
such specified person. For the purposes of this definition, "control," when used
with respect to any person, means the power to direct the management and
policies of such person, directly or indirectly, whether through the ownership
of voting securities, by contract or otherwise and the terms "affiliated",
"controlling" and "controlled" have meanings correlative to the foregoing.
Agreement: This Preferred Stock Registration Rights Agreement, as
the same may be amended, supplemented or modified from time to time in
accordance with the terms hereof.
Business Day: Any day except a Saturday, a Sunday or a day on which
banking institutions in New York, New York
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generally are required or authorized by law or other government action to be
closed.
Certificate of Designation: means the certificate of designation
governing the 14-1/4% Senior Exchangeable Preferred Stock, par value $.01 per
share, Series A, of the Company.
Class A Shelf Registration: As defined in Section 3A.
Class A Shelf Registration Statement: As defined in Section 3A.
Company: As defined in the preamble hereof.
Consummate or consummate: When used to qualify the term "Exchange
Offer", shall mean validly and lawfully to issue and deliver the Exchange
Preferred Stock pursuant to the Exchange Offer for all Preferred Stock validly
tendered and not validly withdrawn pursuant thereto in accordance with the terms
of this Agreement.
Consummation Date: The date that is 60 days immediately following
the date that the Exchange Registration Statement shall have been declared
effective by the SEC.
Contingent Class A Shares: means shares of Class A Common Stock, par
value $0.01, of the Company issued to holders of Preferred Stock, Exchange
Preferred Stock, Private Exchange Preferred Stock and Debentures pursuant to the
terms thereof.
Debentures: means the 14-1/4% Exchange Debentures of the Company
issuable under the Indenture, guaranteed by each of the Guarantors.
Effectiveness Period: As defined in Section 3(a) hereof.
Exchange Act: The Securities Exchange Act of 1934, as amended, and
the rules and regulations promulgated by the SEC pursuant thereto.
Exchange Date: As defined in Section 2(d) hereof.
Exchange Preferred Stock: The shares of 14-1/4% Senior Exchangeable
Preferred Stock, par value $.01 per share, Series B, of the Company that are
identical to the Preferred
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Stock in all material respects, except that the provisions regarding
restrictions on transfer shall be modified, as provided in the Certificate of
Designation, and the issuance thereof pursuant to the Exchange Offer shall have
been registered pursuant to an effective Registration Statement in compliance
with the Securities Act.
Exchange Offer: An offer to issue, in exchange for any and all of
the Preferred Stock, a like number of shares of Exchange Preferred Stock, which
offer shall be made by the Company pursuant to Section 2 hereof.
Exchange Offer Filing Date: As defined in Section 2(a).
Exchange Registration Statement: As defined in Section 2(a) hereof.
Guarantors: As defined in the preamble hereof.
Indemnified Person: As defined in Section 7(a) hereof.
Indenture: The Indenture, dated as of March 15, 1997, among the
Issuers and U.S. Trust Company of New York, as trustee thereunder, pursuant to
which the Debentures are issuable, as amended or supplemented from time to time
in accordance with the terms thereof.
Initial Purchaser: As defined in the preamble hereof.
Issue Date: As defined in Section 2(a).
Issuers: As defined in the preamble hereof.
Participating Broker-Dealer: As defined in Section 2(e) hereof.
"Preferred Stock" means the 14-1/4% Senior Exchangeable Preferred
Stock, Series A, of the Company.
Private Exchange: As defined in Section 2(c) hereof.
Private Exchange Preferred Stock: As defined in Section 2(c) hereof.
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Prospectus: The prospectus included in any Registration Statement
(including, without limitation, a prospectus that discloses information
previously omitted from a prospectus filed as part of an effective registration
statement in reliance upon Rule 430A promulgated pursuant to the Securities
Act), as amended or supplemented by any prospectus supplement, with respect to
the terms of the offering of any portion of the Preferred Stock, Exchange
Preferred Stock, Private Exchange Preferred Stock, Debentures or Contingent
Class A Shares covered by such Registration Statement, and all other amendments
and supplements to any such prospectus, including post-effective amendments, and
all material incorporated by reference or deemed to be incorporated by
reference, if any, in such prospectus.
Registration Default: As defined in Section 4(a) hereof.
Registration Statement: Any registration statement of the Company
and the Guarantors that covers any of the Preferred Stock, Exchange Preferred
Stock, Private Exchange Preferred Stock, Debentures or Contingent Class A Shares
pursuant to the provisions of this Agreement, including the Prospectus,
amendments and supplements to such registration statement or Prospectus,
including pre- and post-effective amendments, all exhibits thereto, and all
material incorporated by reference or deemed to be incorporated by reference, if
any, in such registration statement.
Rule 144(k): Rule 144(k) promulgated by the SEC pursuant to the
Securities Act, as such Rule may be amended from time to time, or any similar
rule or regulation hereafter adopted by the SEC as a replacement thereto having
substantially the same effect as such Rule.
Rule 144A: Rule 144A promulgated by the SEC pursuant to the
Securities Act, as such Rule may be amended from time to time, or any similar
rule or regulation hereafter adopted by the SEC as a replacement thereto having
substantially the same effect as such Rule.
Rule 158: Rule 158 promulgated by the SEC pursuant to the Securities
Act, as such Rule may be amended from time to time, or any similar rule or
regulation hereafter adopted by the SEC as a replacement thereto having
substantially the same effect as such Rule.
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Rule 174: Rule 174 promulgated by the SEC pursuant to the Securities
Act, as such Rule may be amended from time to time, or any similar rule or
regulation hereafter adopted by the SEC as a replacement thereto having
substantially the same effect as such Rule.
Rule 415: Rule 415 promulgated by the SEC pursuant to the Securities
Act, as such Rule may be amended from time to time, or any similar rule or
regulation hereafter adopted by the SEC as a replacement thereto having
substantially the same effect as such Rule.
Rule 424: Rule 424 promulgated by the SEC pursuant to the Securities
Act, as such Rule may be amended from time to time, or any similar rule or
regulation hereafter adopted by the SEC as a replacement thereto having
substantially the same effect as such Rule.
SEC: The Securities and Exchange Commission.
Securities Act: The Securities Act of 1933, as amended, and the
rules and regulations promulgated by the SEC thereunder.
Shelf Filing Event: As defined in Section 3(a) hereof.
Shelf Registration: As defined in Section 3(a) hereof.
Shelf Registration Statement: As defined in Section 3(a) hereof.
Special Counsel: Cahill Gordon & Reindel, special counsel to the
holders of Transfer Restricted Preferred Stock and Contingent Class A Shares, or
such other counsel as shall be agreed upon by the Issuers and holders of a
majority of outstanding shares of Transfer Restricted Preferred Stock or
Contingent Class A Shares, as the case may be, the reasonable expenses of which
holders of Transfer Restricted Preferred Stock or Contingent Class A Shares, as
the case may be, will be reimbursed by the Issuers pursuant to Section 6 hereof.
TIA: The Trust Indenture Act of 1939, as amended.
Transfer Restricted Preferred Stock: Each share of Preferred Stock,
upon original issuance thereof, and at all
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times subsequent thereto, each share of Exchange Preferred Stock as to which
Section 3(a)(ii) hereof is applicable upon original issuance and at all times
subsequent thereto, and each share of Private Exchange Preferred Stock upon
original issuance thereof and at all times subsequent thereto, until in the case
of any such share of Preferred Stock, Exchange Preferred Stock or Private
Exchange Preferred Stock, as the case may be, the earliest to occur of (i) the
date on which any such share of Preferred Stock has been exchanged by a person
other than a Participating Broker-Dealer for a share of Exchange Preferred Stock
(other than with respect to a share of Exchange Preferred Stock as to which
Section 3(a)(ii) hereof applies) pursuant to the Exchange Offer, (ii) with
respect to any share of Exchange Preferred Stock received by Participating
Broker-Dealers in the Exchange Offer, the earlier of (x) the date on which such
share has been sold by such Participating Broker-Dealer by means of the
Prospectus contained in the Exchange Registration Statement and (y) the date on
which the Exchange Registration Statement has been effective under the
Securities Act for a period of 180 days after the Consummation Date, (iii) the
date on which a Shelf Registration Statement covering such share of Preferred
Stock, Exchange Preferred Stock or Private Exchange Preferred Stock has been
declared effective by the SEC and such share has been disposed of in accordance
with such effective Shelf Registration Statement, (iv) the date on which such
share of Preferred Stock, Exchange Preferred Stock or Private Exchange Preferred
Stock, as the case may be, is eligible for distribution to the public without
volume or manner of sale restrictions pursuant to Rule 144(k) or (v) the date on
which such share of Preferred Stock, Exchange Preferred Stock or Private
Exchange Preferred Stock, as the case may be, ceases to be outstanding.
Trustee: The trustee under the Indenture.
underwritten registration or underwritten offering: A registration
in connection with which securities are sold to an underwriter for reoffering to
the public pursuant to an effective Registration Statement.
2. Exchange Offer
(a) To the extent not prohibited by any applicable law or applicable
interpretation of the staff of the SEC, the Issuers shall (A) prepare and, on or
prior to 45 days after (the "Exchange Offer Filing Date") the date of original
issuance of the Preferred Stock (the "Issue Date"), file, or cause to be filed,
with the SEC a Registration Statement under the
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Securities Act with respect to an offer by the Company to the holders of the
Preferred Stock to issue and deliver to such holders, in exchange for Preferred
Stock, a like number of shares of Exchange Preferred Stock, (B) use their best
efforts to cause the Registration Statement relating to the Exchange Offer to be
declared effective by the SEC under the Securities Act on or prior to the 120th
day after the Issue Date, and (C) commence the Exchange Offer and use their best
efforts to issue, on or prior to the Consummation Date, the Exchange Preferred
Stock. The offer and sale of the Exchange Preferred Stock pursuant to the
Exchange Offer shall be registered pursuant to the Securities Act on an
appropriate form (the "Exchange Registration Statement") and duly registered or
qualified under all applicable state securities or Blue Sky laws and will comply
with all applicable tender offer rules and regulations under the Exchange Act
and state securities or Blue Sky laws. The Exchange Offer Registration Statement
will also register any deemed offering of the Debentures by the Issuers pursuant
to the Exchange Offer. The Exchange Offer shall not be subject to any condition,
other than that the Exchange Offer does not violate any applicable law or
interpretation of the staff of the SEC. Upon consummation of the Exchange Offer
in accordance with this Section 2, the Issuers shall have no further
registration obligations other than with respect to (i) Private Exchange
Preferred Stock, (ii) Exchange Preferred Stock held by Participating
Broker-Dealers, (iii) Preferred Stock or Exchange Preferred Stock as to which
Section 3(a)(iii) hereof applies and (iv) if required, registration of the
issuance of the Debentures as contemplated by Section 3(c). Other than in
connection with a deemed offering of the Debentures required by this Section
2(a), no securities shall be included in the Exchange Registration Statement
other than the Exchange Preferred Stock.
(b) The Issuers may require each holder of Preferred Stock, as a
condition to its participation in the Exchange Offer, to represent to the
Issuers and their counsel in writing (which may be contained in the applicable
letter of transmittal) that at the time of the consummation of the Exchange
Offer (i) any Exchange Preferred Stock received by such holder will be acquired
in the ordinary course of its business, (ii) such holder will have no
arrangement or understanding with any person to participate in the distribution
(within the meaning of the Securities Act) of the Exchange Preferred Stock and
(iii) such holder is not an Affiliate of an Issuer, or if it is an Affiliate of
an Issuer, it will comply with the registration
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and prospectus delivery requirements of the Securities Act, to the extent
applicable.
(c) If, prior to consummation of the Exchange Offer, the Initial
Purchaser holds any Preferred Stock acquired by it and having, or which are
reasonably likely to be determined to have, the status of an unsold allotment in
the initial distribution, or any other holder of Preferred Stock is not entitled
to participate in the Exchange Offer, the Company, upon the request of the
Initial Purchaser or any such holder, shall, simultaneously with the delivery of
the Exchange Preferred Stock in the Exchange Offer, issue and deliver to such
Initial Purchaser and any such holder, in exchange (the "Private Exchange") for
such Preferred Stock held by the Initial Purchaser and any such holder, a like
number of shares of 14-1/4% Senior Exchangeable Preferred Stock, par value $.01,
of the Company that are identical in all material respects to the Exchange
Preferred Stock (the "Private Exchange Preferred Stock"). The Private Exchange
Preferred Stock shall bear the same CUSIP number as the Exchange Preferred
Stock.
(d) Unless the Exchange Offer would not be permitted by any
applicable law or interpretation of the staff of the SEC, the Company shall mail
the Exchange Offer Prospectus and appropriate accompanying documents, including
appropriate letters of transmittal, to each holder of Preferred Stock providing,
in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this
Agreement and that all Preferred Stock validly tendered will be
accepted for exchange;
(ii) the date of acceptance for exchange (the "Exchange
Date"), which date shall in no event be later than the Consummation
Date (unless otherwise required by applicable law);
(iii) that a holder of Preferred Stock electing to have
Preferred Stock exchanged pursuant to the Exchange Offer will be
required to surrender such Preferred Stock, together with the enclosed
letters of transmittal, to the institution and at the address (located
in the Borough of Manhattan, The City of New York) specified in the
notice prior to the close of business on the Exchange Date; and
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(iv) that holders of Preferred Stock that do not tender all
such securities pursuant to the Exchange Offer may no longer have any
registration rights hereunder with respect to Preferred Stock not
tendered.
Promptly after the Exchange Date, the Company shall:
(i) accept for exchange all Preferred Stock or portions
thereof validly tendered and not validly withdrawn pursuant to the
Exchange Offer; and
(ii) cancel all Preferred Stock or portions thereof so
accepted for exchange by the Company, and issue to and mail to each
holder of Preferred Stock, shares of Exchange Preferred Stock equal in
number to the shares of Preferred Stock surrendered by such holder.
(e) The Issuers and the Initial Purchaser acknowledge that the staff
of the SEC has taken the position that any broker-dealer that owns Exchange
Preferred Stock that was received by such broker-dealer for its own account in
the Exchange Offer (a "Participating Broker-Dealer") may be deemed to be an
"underwriter" within the meaning of the Securities Act and must deliver a
prospectus meeting the requirements of the Securities Act in connection with any
resale of such Exchange Preferred Stock (other than a resale of an unsold
allotment resulting from the original offering of the Preferred Stock).
The Issuers and the Initial Purchaser also acknowledge that it is
the SEC staff's position that if the Prospectus contained in the Exchange
Registration Statement includes a plan of distribution containing a statement to
the above effect and the means by which Participating Broker- Dealers may resell
the Exchange Preferred Stock, without naming the Participating Broker-Dealers or
specifying the amount of Exchange Preferred Stock owned by them, such Prospectus
may be delivered by Participating Broker-Dealers to satisfy their prospectus
delivery obligations under the Securities Act in connection with resales of
Exchange Preferred Stock for their own accounts, so long as the Prospectus
otherwise meets the requirements of the Securities Act.
In light of the foregoing, if requested by a Participating
Broker-Dealer, the Issuers agree (x) to use their best efforts to keep the
Exchange Registration Statement continuously effective for a period of up to 180
days after the Consummation Date or such earlier date as each Participating
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Broker-Dealer shall have notified the Company in writing that such Participating
Broker-Dealer has resold all Exchange Preferred Stock acquired in the Exchange
Offer, (y) to comply with the provisions of Section 5 of this Agreement, as they
relate to the Exchange Offer and the Exchange Registration Statement, and (z) to
deliver to such Participating Broker-Dealer a "cold comfort" letter of the
independent public accountants of the Issuers and a legal opinion as to matters
reasonably requested by such Participating Broker-Dealer relating to the
Exchange Registration Statement and the related Prospectus and any amendments or
supplements thereto.
(f) The Initial Purchaser shall have no liability to any
Participating Broker-Dealer with respect to any request made pursuant to Section
2(e).
(g) Dividends on the Exchange Preferred Stock and the Private
Exchange Preferred Stock will accumulate from the last dividend payment date on
which dividends were paid on the Preferred Stock surrendered in exchange
therefor or, if no dividends have been paid on the Preferred Stock, from the
date of the original issuance of the Preferred Stock.
3. Shelf Registration
(a) If (i) the Company is not permitted to file the Exchange Offer
Registration Statement or to consummate the Exchange Offer because the Exchange
Offer is not permitted by any applicable law or applicable interpretation of the
staff of the SEC or (ii) any holder of Preferred Stock notifies the Company on
or prior to the 30th day following the Issue Date that (A) due to a change in
law or policy it is not entitled to participate in the Exchange Offer, (B) due
to a change in law or policy it may not resell Exchange Preferred Stock acquired
by it in the Exchange Offer to the public without delivering a prospectus and
the Prospectus contained in the Exchange Registration Statement is not
appropriate or available for such resales by such holder or (C) it owns
Preferred Stock (including the Initial Purchaser that holds Preferred Stock as
part of an unsold allotment from the original offering of the Preferred Stock)
acquired directly from an Issuer or an Affiliate of an Issuer or (iii) any
holder of Private Exchange Preferred Stock so requests after the consummation of
the Private Exchange or (iv) the Company has not consummated the Exchange Offer
within 180 days after the Issue Date (each such event referred to in clauses (i)
through (iv), a "Shelf Filing Event"), the Issuers shall cause to be filed with
the SEC pursuant to Rule 415 a
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shelf registration statement (the "Shelf Registration Statement") prior to the
later of (x) 60 days after the Issue Date or (y) 45 days after the occurrence of
such Shelf Filing Event, relating to all Transfer Restricted Preferred Stock
(the "Shelf Registration") the holders of which have provided the information
required pursuant to Section 3(b) hereof (provided that if the Shelf Filing
Event arises pursuant to clause (iv) above, the Issuers shall file the Shelf
Registration Statement on the 181st day after the Issue Date), and shall use
their best efforts to have the Shelf Registration Statement declared effective
by the SEC on or prior to 90 days after the filing of such Shelf Filing Event.
The Shelf Registration Statement will also register any deemed offering of the
Debentures pursuant to resale of Preferred Stock, Exchange Preferred Stock or
Private Exchange Preferred Stock, as the case may be. In such circumstances, the
Issuers shall use their best efforts to keep the Shelf Registration Statement
continuously effective under the Securities Act, until (A) 36 months following
the Issue Date or (B) if sooner, the date immediately following the date that
all Transfer Restricted Preferred Stock covered by the Shelf Registration
Statement has been sold pursuant thereto or otherwise cease to be Transfer
Restricted Preferred Stock (the "Effectiveness Period"); provided that the
Effectiveness Period shall be extended to the extent required to permit dealers
to comply with the applicable prospectus delivery requirements of Rule 174.
(b) No holder of Transfer Restricted Preferred Stock may include any
of its Transfer Restricted Preferred Stock in any Shelf Registration Statement
pursuant to this Agreement unless and until such holder furnishes to the Company
in writing, within 30 days after receipt of a request therefor, such information
as the Company may reasonably request for use in connection with any Shelf
Registration Statement or Prospectus or preliminary prospectus included therein,
including, without limitation, such information specified in item 507 of
Regulation S-K under the Securities Act. No holder of Transfer Restricted
Preferred Stock shall be entitled to Additional Dividends pursuant to Section 4
hereof unless and until such holder shall have provided all such reasonably
requested information. Each holder of Transfer Restricted Preferred Stock as to
which any Shelf Registration Statement is being effected agrees to furnish
promptly to the Company all information required to be disclosed in order to
make the information previously furnished to the Company by such holder not
materially misleading.
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(c) If the issuance of the Debentures requires registration under
the Securities Act and any such issuance shall not have been effectively
registered under the Securities Act pursuant to the Exchange Offer Registration
Statement or a Shelf Registration Statement, then, prior to any issuance of
Debentures, the Issuers shall file with the SEC and cause to become effective a
Registration Statement registering the issuance of such Debentures.
3A. Class A Shelf Registration
The Company shall use its best efforts to (i) file with the SEC a
Registration Statement on the appropriate form within 45 days of the Issue Date
registering the issuance of all Contingent Class A Shares, (ii) cause such
Registration Statement to become effective within 120 days after the Issue Date
and (iii) keep such Registration Statement continuously effective so long as any
shares of Preferred Stock, Exchange Preferred Stock or Private Exchange
Preferred Stock or Debentures (for so long as Contingent Class A Shares are
issuable with respect to the Debentures) remain outstanding. If any Contingent
Class A Shares are issued prior to the effectiveness of such Registration
Statement, the Company will use its best efforts to cause to become effective
within 120 days after the Issue Date a Registration Statement (the "Class A
Shelf Registration Statement") registering the resale of such Contingent Class A
Shares, including a Prospectus that made delivered by such holders upon any such
resale (a "Class A Shelf Registration"). The Company shall use its best efforts
to cause the Class A Shelf Registration Statement to remain continuously
effective until the earlier of (x) two years after the latest issuance of such
Contingent Class A Shares and (y) the date on which all such Contingent Class A
Shares have been resold pursuant to an effective Class A Shelf Registration.
4. Additional Dividends
(a) The parties hereto agree that the holders of Transfer Restricted
Preferred Stock will suffer damages if the Issuers fail to fulfill their
obligations pursuant to Section 2 or Section 3, as applicable, and that it would
not be feasible to ascertain the extent of such damages. Accordingly, in the
event that (i) the Exchange Offer Registration Statement or the Shelf
Registration Statement is not filed with the SEC on or prior to the date
specified herein for such filing, (ii) any such Registration Statement has not
been declared effective by
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the SEC on or prior to the date specified herein for such effectiveness after
such obligation arises, (iii) if the Exchange Offer is required to be
Consummated hereunder, the Company has not exchanged Exchange Preferred Stock
for all Preferred Stock validly tendered and not validly withdrawn in accordance
with the terms of the Exchange Offer by the Consummation Date or (iv) any such
Registration Statement is filed and declared effective but shall thereafter
cease to be effective or usable in connection with the Exchange Offer or resales
of Transfer Restricted Preferred Stock during a period in which it is required
to be effective hereunder without being succeeded immediately by any additional
Registration Statement covering the Preferred Stock, the Exchange Preferred
Stock or the Private Exchange Preferred Stock, as the case may be, which has
been filed and declared effective (each such event referred to in clauses (i)
through (iv), a "Registration Default"), then the dividend rate on Transfer
Restricted Preferred Stock will increase ("Additional Interest"), with respect
to the first 90-day period immediately following the occurrence of such
Registration Default, by 0.5% per annum and will increase by an additional 0.25%
per annum with respect to each subsequent 90-day period until such Registration
Default has been cured, up to a maximum amount of 2.0% per annum with respect to
all Registration Defaults. Following the cure of a Registration Default, the
accumulation of Additional Dividends with respect to such Registration Default
will cease and upon the cure of all Registration Defaults the dividend rate will
revert to the original rate.
(b) The Additional Dividends due shall be payable on each dividend
payment date specified by the Certificate of Designation to the record holders
entitled to receive the dividend payment to be made on such date. Each
obligation to pay Additional Dividends shall be deemed to accumulate from and
including the applicable Registration Default.
(c) The parties hereto agree that the Additional Dividends provided
for in this Section 4 constitute a reasonable estimate of the damages that will
be suffered by holders of Transfer Restricted Preferred Stock by reason of the
happening of any Registration Default.
5. Registration Procedures
In connection with the Issuers' registration obligations hereunder,
the Issuers shall effect such registrations on the appropriate form available
for the sale of the Preferred
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Stock, the Exchange Preferred Stock, the Private Exchange Preferred Stock, the
Debentures or Contingent Class A Shares, as applicable, to (i) in the case of
the Exchange Offer, permit the exchange of Exchange Preferred Stock for
Preferred Stock in the Exchange Offer, if applicable, resales of Exchange
Preferred Stock by Participating Broker-Dealers and to permit the issuance and
resale of the Debentures without registration under the Securities Act, (ii) in
the case of registration of the issuance by the Company of Contingent Class A
Shares, to permit resales of such Contingent Class A Shares without registration
under the Securities Act, and (iii) in the case of a Shelf Registration or Class
A Shelf Registration, permit the sale of the applicable Transfer Restricted
Preferred Stock or Contingent Class A Shares, as the case may be, in accordance
with the method or methods of disposition thereof specified by the holders of
such Transfer Restricted Preferred Stock or Contingent Class A Shares, as the
case may be, and to permit the issuance and resale of the Debentures without
registration under the Securities Act, and pursuant thereto the Issuers shall:
(a) In the case of a Shelf Registration or Class A Shelf
Registration, a reasonable period of time prior to the initial filing
of a Shelf Registration Statement or Class A Shelf Registration
Statement, as the case may be, or a related Prospectus and a reasonable
period of time prior to the filing of any amendment or supplement
thereto (including any document that would be incorporated or deemed to
be incorporated therein by reference), furnish to the holders of the
Transfer Restricted Preferred Stock or Contingent Class A Shares, as
the case may be, included in such Shelf Registration Statement or Class
A Shelf Registration Statement, as the case may be, their Special
Counsel and the managing underwriters, if any, copies of all such
documents proposed to be filed, which documents (other than those
incorporated or deemed to be incorporated by reference) will be subject
to the review of such holders, their Special Counsel and such
underwriters, if any, and cause the officers and directors of the
Issuers, counsel to the Issuers and independent certified public
accountants to the Issuers to respond to such reasonable inquiries as
shall be necessary, in the opinion of respective counsel to such
holders and such underwriters, to conduct a reasonable investigation
within the meaning of the Securities Act; provided that the foregoing
inspection and information gathering shall be coordinated on behalf of
any other persons, by one counsel designated by and on
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behalf of such other persons; provided, however, that the Issuers shall
not be deemed to have kept a Shelf Registration Statement or Class A
Shelf Registration Statement, as the case may be, effective during the
applicable period if any of them voluntarily takes any unreasonable
action or voluntarily fails to take any reasonable action that results
in holders of the Transfer Restricted Preferred Stock or Contingent
Class A Shares, as the case may be, covered thereby not being able to
sell such Transfer Restricted Preferred Stock or Contingent Class A
Shares, as the case may be, pursuant to Federal securities laws during
that period. The Issuers shall not file any such Shelf Registration
Statement or Class A Shelf Registration Statement or related Prospectus
or any amendments or supplements thereto which the holders of a
majority of the shares of the Transfer Restricted Preferred Stock or
Contingent Class A Shares, as the case may be, included in such Shelf
Registration Statement shall reasonably object in writing within five
days of receipt of the information described above;
(b) Prepare and file with the SEC such amendments, including
post-effective amendments, to each Registration Statement as may be
necessary to keep such Registration Statement continuously effective
for the applicable time period required hereunder; cause the related
Prospectus to be supplemented by any required Prospectus supplement,
and as so supplemented to be filed pursuant to Rule 424; and comply
with the provisions of the Securities Act and the Exchange Act with
respect to the disposition of all securities covered by such
Registration Statement during such period in accordance with the
intended methods of disposition by the sellers thereof set forth in
such Registration Statement as so amended or in such Prospectus as so
supplemented;
(c) Notify the holders of Transfer Restricted Preferred Stock
or Contingent Class A Shares, as the case may be, to be sold or, in the
case of an Exchange Offer, tendered for, their Special Counsel and the
managing underwriters, if any, promptly, and (if requested by any such
person), confirm such notice in writing, (i)(A) when a Prospectus or
any Prospectus supplement or post-effective amendment is proposed to be
filed, and (B) with respect to a Registration Statement or any
post-effective amendment, when the same has become effective, (ii) of
any request by the SEC or any other Federal or state governmental
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authority for amendments or supplements to a Registration Statement or
related Prospectus or for additional information, (iii) of the issuance
by the SEC, any state securities commission, any other governmental
agency or any court of any stop order or injunction suspending or
enjoining the use of a Prospectus or the effectiveness of a
Registration Statement or the initiation of any proceedings for that
purpose, (iv) of the receipt by the Company of any notification with
respect to the suspension of the qualification or exemption from
qualification of any of the Preferred Stock, Exchange Preferred Stock,
Private Exchange Preferred Stock or Contingent Class A Shares for sale
in any jurisdiction, or the initiation or threatening of any proceeding
for such purpose, and (v) of the happening of any event or information
becoming known to any Issuer that makes any statement made in a
Registration Statement or related Prospectus or any document
incorporated or deemed to be incorporated therein by reference untrue
in any material respect or that requires the making of any changes in
such Registration Statement, Prospectus or documents so that it will
not contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to make
the statements therein, not misleading, and that in the case of a
Prospectus, it will not contain any untrue statement of a material fact
or omit to state any material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading;
(d) Use their best efforts to avoid the issuance of or, if
issued, obtain the withdrawal of any order enjoining or suspending the
use of a Prospectus or the effectiveness of a Registration Statement or
the lifting of any suspension of the qualification (or exemption from
qualification) of any of the Preferred Stock, Exchange Preferred Stock,
Private Exchange Preferred Stock or Contingent Class A Shares for sale
in any jurisdiction, at the earliest practicable moment;
(e) If a Shelf Registration Statement is filed pursuant to
Section 3 or Section 3A hereof and if requested by the managing
underwriters, if any, or the holders of a majority of shares of the
Transfer Restricted Preferred Stock or Contingent Class A Shares, as
the case may be, being sold pursuant to such Shelf Registration
Statement, (i) promptly incorporate in a Prospectus supplement or
18
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post-effective amendment such information as the managing underwriters,
if any, and such holders reasonably believe should be included therein,
and (ii) make all required filings of such Prospectus supplement or
such post-effective amendment under the Securities Act as soon as
practicable after the Company has received notification of the matters
to be incorporated in such Prospectus supplement or post-effective
amendment; provided, however, that the Issuers shall not be required to
take any action pursuant to this Section 5(e) that would, in the
opinion of counsel for the Issuers, violate applicable law;
(f) Upon written request to the Company by a holder of
Preferred Stock, Exchange Preferred Stock, Private Exchange Preferred
Stock or Contingent Class A Shares to be exchanged or sold pursuant to
a Registration Statement, their Special Counsel and each managing
underwriter, if any, without charge, furnish at least one conformed
copy of such Registration Statement and each amendment thereto,
including financial statements and schedules, all documents
incorporated or deemed to be incorporated therein by reference, and all
exhibits to the extent requested (including those previously furnished
or incorporated by reference) as soon as practicable after the filing
of such documents with the SEC;
(g) Deliver to each holder of Preferred Stock, Exchange
Preferred Stock, Private Exchange Preferred Stock or Contingent Class A
Shares to be exchanged or sold pursuant to a Registration Statement,
their Special Counsel, and the underwriters, if any, without charge, as
many copies of the Prospectus (including each form of prospectus) and
each amendment or supplement thereto as such persons reasonably
request; and the Issuers hereby consent to the use of such Prospectus
and each amendment or supplement thereto by each of the selling holders
of Transfer Restricted Preferred Stock or Contingent Class A Shares and
the underwriters, if any, in connection with the offering and sale of
the Transfer Restricted Preferred Stock or Contingent Class A Shares in
accordance with the terms thereof and with U.S. Federal securities laws
and Blue Sky laws covered by such Prospectus and any amendment or
supplement thereto;
(h) Prior to any public offering of Preferred Stock, Exchange
Preferred Stock, Private Exchange Preferred Stock or Contingent Class A
Shares, use their best efforts to
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register or qualify or cooperate with the holders of Preferred Stock,
Exchange Preferred Stock, Private Exchange Preferred Stock or
Contingent Class A Shares to be sold or tendered for, the underwriters,
if any, and their respective counsel in connection with the
registration or qualification (or exemption from such registration or
qualification) of such Preferred Stock, Exchange Preferred Stock,
Private Exchange Preferred Stock or Contingent Class A Shares for offer
and sale under the securities or Blue Sky laws of such jurisdictions
within the United States as any such holder or underwriter reasonably
requests in writing; keep each such registration or qualification (or
exemption therefrom) effective during the period such Registration
Statement is required to be kept effective hereunder and do any and all
other acts or things necessary or advisable to enable the disposition
in such jurisdictions of the Preferred Stock, Exchange Preferred Stock,
Private Exchange Preferred Stock or Contingent Class A Shares covered
by the applicable Registration Statement; provided, however, that the
Issuers shall not be required to (i) qualify generally to do business
in any jurisdiction where they are not then so qualified or (ii) take
any action which would subject them to general service of process or to
taxation in any jurisdiction where they are not so subject;
(i) In connection with any sale or transfer of Transfer
Restricted Preferred Stock or Contingent Class A Shares that will
result in such securities no longer being "restricted securities" under
the Securities Act, cooperate with the holders thereof and the managing
underwriters, if any, to facilitate the timely preparation and delivery
of certificates representing Transfer Restricted Preferred Stock or
Contingent Class A Shares to be sold, which certificates shall not bear
any restrictive legends and shall be in a form eligible for deposit
with The Depository Trust Company and to enable such Transfer
Restricted Preferred Stock or Contingent Class A Shares to be in such
denominations and registered in such names as the managing
underwriters, if any, or such holders may request at least two Business
Days prior to any sale of Transfer Restricted Preferred Stock or
Contingent Class A Shares;
(j) Upon the occurrence of any event contemplated by Section
5(c)(v), as promptly as practicable, prepare a supplement or amendment,
including, if appropriate, a
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post-effective amendment, to each Registration Statement or a
supplement to the related Prospectus or any document incorporated or
deemed to be incorporated therein by reference, and file any other
required document so that, as thereafter delivered, such Prospectus
will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which
they were made, not misleading;
(k) Prior to the effective date of the Exchange Registration
Statement, to provide a CUSIP number for the Exchange Preferred Stock
(and Private Exchange Preferred Stock, if applicable) and prior to the
issuance of the Debentures, to provide a CUSIP number therefor;
(l) If a Shelf Registration Statement or Class A Registration
Statement is filed pursuant to Section 3 or Section 3A hereof, enter
into such agreements (including an underwriting agreement in form,
scope and substance as is customary in underwritten offerings) and take
all such other reasonable actions in connection therewith (including
those reasonably requested by the managing underwriters, if any, or the
holders of a majority of shares of the Transfer Restricted Preferred
Stock or Contingent Class A Shares, as the case may be, being sold) in
order to expedite or facilitate the disposition of such Transfer
Restricted Preferred Stock or Contingent Class A Shares, as the case
may be, and, whether or not an underwriting agreement is entered into
and whether or not the registration is an underwritten registration,
(i) make such representations and warranties to the holders of such
Transfer Restricted Preferred Stock or Contingent Class A Shares, as
the case may be, and the underwriters, if any, with respect to the
business of the Issuers and their subsidiaries (including with respect
to businesses or assets acquired or to be acquired by any of them), and
the applicable Registration Statement, applicable Prospectus and
applicable documents, if any, incorporated or deemed to be incorporated
by reference therein, in each case, in form, substance and scope as are
customarily made by issuers to underwriters in underwritten offerings,
and confirm the same if and when customarily requested; (ii) obtain
opinions of counsel to the Issuers and updates thereof (which counsel
and opinions (in form, scope and substance) shall be reasonably
satisfactory to the managing underwriters, if any, and Special Counsel
to the holders of the Transfer
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Restricted Preferred Stock or Contingent Class A Shares, as the case
may be, being sold), addressed to each selling holder of Transfer
Restricted Preferred Stock or Contingent Class A Shares, as the case
may be, and each of the underwriters, if any, covering the matters
customarily covered in opinions requested in underwritten offerings and
such other matters as may be reasonably requested by such Special
Counsel and the managing underwriters, in any; (iii) use their best
efforts to obtain customary "cold comfort" letters and updates thereof
from the independent certified public accountants of the Issuers (and,
if necessary, any other independent certified public accountants of any
subsidiary of the Issuers or of any business acquired by an Issuer or
any such subsidiary for which financial statements and financial data
is, or is required to be, included in the Shelf Registration
Statement), addressed (where reasonably possible) to each selling
holder of Transfer Restricted Preferred Stock or Contingent Class A
Shares, as the case may be, and each of the underwriters, if any, such
letters to be in customary form and covering matters of the type
customarily covered in "cold comfort" letters in connection with
underwritten offerings; (iv) if an underwriting agreement is entered
into, the same shall contain indemnification provisions and procedures
no less favorable to the selling holders and the underwriters, if any,
than those set forth in Section 7 hereof (or such other provisions and
procedures acceptable to holders of a majority of the shares of
Transfer Restricted Preferred Stock or Contingent Class A Shares, as
the case may be, covered by such Registration Statement and the
managing underwriters, if any); and (v) deliver such documents and
certificates as may be reasonably requested by the holders of a
majority of the shares of the Transfer Restricted Preferred Stock or
Contingent Class A Shares, as the case may be, being sold, their
Special Counsel and the managing underwriters, if any, to evidence the
continued validity of the representations and warranties made pursuant
to clause (i) above and to evidence compliance with any customary
conditions contained in the underwriting agreement or other agreement
entered into by the Issuers;
(m) In the case of a Shelf Registration or Class A Shelf
Registration Statement, make available for inspection by a
representative of the holders of Transfer Restricted Preferred Stock or
Contingent Class A Shares, as the case may be, being sold, any
underwriter
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participating in any such disposition of Transfer Restricted Preferred
Stock or Contingent Class A Shares, as the case may be, and any
attorney, consultant or accountant retained by such selling holders or
underwriter, at the offices where normally kept, during reasonable
business hours, all relevant financial and other records, pertinent
corporate documents and properties of the Issuers and their
subsidiaries (including with respect to businesses and assets acquired
or to be acquired to the extent that such information is available to
the Issuers), and cause the officers, directors, agents and employees
of the Issuers and their subsidiaries (including with respect to
businesses and assets acquired or to be acquired to the extent that
such information is available to the Issuers) to supply all information
in each case reasonably requested by any such representative,
underwriter, attorney, consultant or accountant in connection with such
Shelf Registration or Class A Shelf Registration Statement; provided,
however, that such persons shall first agree in writing with the
Company that any information that is reasonably and in good faith
designated by the Company in writing as confidential at the time of
delivery of such information shall be kept confidential by such
persons, unless and to the extent that (i) disclosure of such
information is required by court or administrative order or is
necessary to respond to inquiries of regulatory authorities, (ii)
disclosure of such information is required by law (including any
disclosure requirements pursuant to Federal securities laws in
connection with the filing of the Shelf Registration Statement or Class
A Shelf Registration Statement or the use of any Prospectus), (iii)
such information becomes generally available to the public other than
as a result of a disclosure or failure to safeguard such information by
such person or (iv) such information becomes available to such person
from a source other than the Issuers and their subsidiaries and such
source is not bound by a confidentiality agreement; and provided,
further, that the foregoing inspection and information gathering shall
be coordinated on behalf of any other persons, by one counsel
designated by and on behalf of such other persons;
(n) Provide an indenture trustee for the Debentures and cause
the Indenture to be qualified under the TIA not later than the
effective date of the first Registration Statement relating to the
Preferred Stock and/or the Exchange Preferred Stock and Private
Exchange Preferred
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Stock, as the case may be; and in connection therewith, cooperate with
the Trustee and the holders of the Preferred Stock and/or the Exchange
Preferred Stock and Private Exchange Preferred Stock, to effect such
changes to the Indenture, if any, as may be required for the Indenture
to be so qualified in accordance with the terms of the TIA; and
execute, and use its reasonable efforts to cause the Trustee to
execute, all customary documents as may be required to effect such
changes, and all other forms and documents required to be filed with
the SEC to enable the Indenture to be so qualified in a timely manner;
(o) Comply with all applicable rules and regulations of the
SEC and make generally available to their securityholders earning
statements satisfying the provisions of Section 11(a) of the Securities
Act and Rule 158, no later than 45 days after the end of any 12- month
period (or 90 days after the end of any 12-month period if such period
is a fiscal year) (i) commencing at the end of any fiscal quarter in
which Transfer Restricted Preferred Stock or Contingent Class A Shares
are sold to underwriters in a firm commitment or reasonable efforts
underwritten offering and (ii) if not sold to underwriters in such an
offering, commencing on the first day of the first fiscal quarter after
the effective date of a Registration Statement, which statement shall
cover said period, consistent with the requirements of Rule 158;
(p) Cooperate with each seller of Transfer Restricted
Preferred Stock or Contingent Class A Shares covered by any
Registration Statement and each underwriter, if any, participating in
the disposition of such Transfer Restricted Preferred Stock or
Contingent Class A Shares, as the case may be, and their respective
counsel in connection with any filings required to be made with the
National Association of Securities Dealers, Inc.; and
(q) Use their best efforts to take all other steps reasonably
necessary to effect the registration of the Transfer Restricted
Preferred Stock or Contingent Class A Shares, as the case may be,
covered by a Registration Statement contemplated hereby.
The Issuers may require a holder of Transfer Restricted Preferred
Stock or Contingent Class A Shares, as the case may be, to be included in a
Registration Statement to
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furnish to the Issuers such information regarding the distribution of such
Transfer Restricted Preferred Stock or Contingent Class A Shares, as the case
may be, as is required by law to be disclosed in such Registration Statement and
the Issuers may exclude from such Registration Statement the Transfer Restricted
Preferred Stock or Contingent Class A Shares, as the case may be, of any holder
who unreasonably fails to furnish such information within a reasonable time
after receiving such request.
If any such Registration Statement refers to any holder by name or
otherwise as the holder of any securities of an Issuer, then such holder shall
have the right to require (i) the insertion therein of language, in form and
substance reasonably satisfactory to such holder, 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 Issuers' securities covered thereby
and that such holding does not imply that such holder will assist in meeting any
future financial requirements of the Issuers, or (ii) in the event that such
reference to such holder by name or otherwise is not required by the Securities
Act, the deletion of the reference to such holder in any amendment or supplement
to the Registration Statement filed or prepared subsequent to the time that such
reference ceases to be required.
In the case of a Shelf Registration pursuant to Section 3 hereof or
a Class A Shelf Registration pursuant to Section 3A hereof, each holder of
Transfer Restricted Preferred Stock or Contingent Class A Shares, as the case
may be, agrees by acquisition of such Transfer Restricted Preferred Stock or
Contingent Class A Shares, as the case may be, that, upon receipt of any notice
from the Company of the happening of any event of the kind described in Section
5(c)(ii), 5(c)(iii), 5(c)(iv) or 5(c)(v) hereof, such holder will forthwith
discontinue disposition of such Transfer Restricted Preferred Stock or
Contingent Class A Shares, as the case may be, covered by such Registration
Statement or Prospectus until such holder's receipt of the copies of the
supplemented or amended Prospectus contemplated by Section 5(j) hereof, or until
it is advised in writing by the Company that the use of the applicable
Prospectus may be resumed, and, in either case, has received copies of any
additional or supplemental filings that are incorporated or deemed to be
incorporated by reference in such Prospectus (the "Advice"). If so directed by
the Company, each holder will deliver to the Company (at the Company's expense)
all copies, other than permanent file copies then in such holder's
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possession, of the Prospectus covering such Transfer Restricted Preferred Stock
or Contingent Class A Shares, as the case may be, that was current at the time
of receipt of either such notice. In the event the Company shall give any such
notice and comply with the provisions of Section 5(j), the time period regarding
the effectiveness of such Registration Statement shall be extended by the number
of days during the period from and including the date of the giving of such
notice pursuant to Section 5(c) hereof to and including the date when each
selling holder covered by such Registration Statement shall have received the
copies of the supplemented or amended Prospectus contemplated by Section 5(j)
hereof or shall have received the Advice.
6. Registration Expenses
All fees and expenses incident to the performance of or compliance
with this Agreement by the Issuers shall be borne by the Issuers whether or not
any Registration Statement is filed or becomes effective and whether or not any
Preferred Stock, Exchange Preferred Stock, Private Exchange Preferred Stock or
Contingent Class A Shares are issued or sold pursuant to any Registration
Statement. The fees and expenses referred to in the foregoing sentence shall
include, without limitation, (i) all registration and filing fees (including,
without limitation, fees and expenses (A) with respect to filings required to be
made with the National Association of Securities Dealers, Inc. and (B) in
compliance with securities or Blue Sky laws), (ii) printing expenses (including,
without limitation, expenses of printing certificates for Preferred Stock,
Exchange Preferred Stock, Private Exchange Preferred Stock and Contingent Class
A Shares in a form eligible for deposit with The Depository Trust Company and of
printing Prospectuses), (iii) reasonable fees and disbursements of counsel for
the Issuers and the Special Counsel (not to exceed one firm of counsel), (iv)
fees and disbursements of all independent certified public accountants referred
to in Section 2(e) and Section 5(l)(iii) hereof (including, without limitation,
the expenses of any special audit and "cold comfort" letters required by or
incident to such performance), (v) if required, the reasonable fees and expenses
of any "qualified independent underwriter" and its counsel as may be required by
the rules and regulations of the National Association of Securities Dealers,
Inc., and (vi) fees and expenses of all other persons retained by the Issuers.
In addition, the Issuers shall pay their internal expenses (including, without
limitation, all salaries and expenses of their respective officers and employees
performing
26
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legal or accounting duties), the expense of any annual audit, and the fees and
expenses incurred in connection with the listing of the Preferred Stock,
Exchange Preferred Stock, Private Exchange Preferred Stock or Contingent Class A
Shares to be registered on any securities exchange. Notwithstanding the
foregoing or anything in this Agreement to the contrary, each holder of Transfer
Restricted Preferred Stock shall pay all underwriting discounts and commissions
of any underwriters with respect to any Preferred Stock, Exchange Preferred
Stock or Private Exchange Preferred Stock sold by or on behalf of it.
7. Indemnification
(a) The Issuers agree, jointly and severally, to indemnify and hold
harmless (i) the Initial Purchaser, each holder of Preferred Stock, Exchange
Preferred Stock, Private Exchange Preferred Stock, Debentures and Contingent
Class A Shares and each Participating Broker-Dealer, (ii) each person, if any,
who controls (within the meaning of Section 15 of the Securities Act or Section
20 of the Exchange Act) any of the foregoing (any of the persons referred to in
this clause (ii) being hereinafter referred to as a "controlling person"), and
(iii) the respective officers, directors, partners, employees, representatives
and agents of the Initial Purchaser, each holder of Preferred Stock, Exchange
Preferred Stock, Private Exchange Preferred Stock, Debentures and Contingent
Class A Shares, each Participating Broker-Dealer and any controlling person (any
person referred to in clause (i), (ii) or (iii) may hereinafter be referred to
as an "Indemnified Person"), from and against any and all losses, claims,
damages, liabilities and judgments arising out of or relating to any untrue
statement or alleged untrue statement of a material fact contained in any
Registration Statement, Prospectus or preliminary prospectus or in any amendment
or supplement thereto, or arising out of or relating to any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein (in the case of any Prospectus or
preliminary prospectus or supplement thereto, in light of the circumstances
under which they were made) not misleading, except insofar as such losses,
claims, damages, liabilities or judgments are caused by any such untrue
statement or omission or alleged untrue statement or omission based upon
information relating to any Indemnified Person furnished in writing to the
Issuers by or on behalf of such Indemnified Person expressly for use therein;
provided that the foregoing indemnity with respect to any preliminary prospectus
shall not inure to the benefit of any Indemnified Person from whom the
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person asserting such losses, claims, damages, liabilities and judgments
purchased securities if such untrue statement or omission or alleged untrue
statement or omission made in such preliminary prospectus is eliminated or
remedied in the Prospectus and a copy of the Prospectus shall not have been
furnished to such person in a timely manner due to the wrongful action or
wrongful inaction of such Indemnified Person.
(b) In case any action shall be brought against any Indemnified
Person, based upon any Registration Statement or any such Prospectus or
preliminary prospectus or any amendment or supplement thereto and with respect
to which indemnity may be sought against the Issuers hereunder, such Indemnified
Person shall promptly notify the Issuers in writing and the Company shall assume
the defense thereof, including the employment of counsel reasonably satisfactory
to such Indemnified Person and payment of all fees and expenses. Any Indemnified
Person shall have the right to employ separate counsel in any such action and
participate in the defense thereof, but the fees and expenses of such counsel
shall be at the expense of such Indemnified Person, unless (i) the employment of
such counsel shall have been specifically authorized in writing by the Issuers,
(ii) the Company shall have failed to assume the defense and employ counsel or
pay all such fees and expenses or (iii) the named parties to any such action
(including any impleaded parties) include both such Indemnified Person and an
Issuer and such Indemnified Person shall have been advised by counsel that there
may be one or more legal defenses available to it which are different from or
additional to those available to any such Issuer (in which case the Company
shall not have the right to assume the defense of such action on behalf of such
Indemnified Person, it being understood, however, that the Issuers shall not, in
connection with any one such action or separate but substantially similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the reasonable fees and expenses of
more than one separate firm of attorneys (in addition to any local counsel) for
all such Indemnified Persons, which firm shall be designated in writing by such
Indemnified Persons, and that all such reasonable fees and expenses shall be
reimbursed as they are incurred). The Issuers shall not be liable for any
settlement of any such action effected without their written consent but if
settled with the written consent of the Issuers, the Issuers agree, jointly and
severally, to indemnify and hold harmless each Indemnified Person from and
against any loss or liability by reason of such settlement. No Issuer shall,
without the prior written consent of each Indemnified Person,
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effect any settlement of any pending or threatened proceeding in respect of
which any Indemnified Person is a party and indemnity could have been sought
hereunder by such Indemnified Person, unless such settlement includes an
unconditional release of such Indemnified Person from all liability on claims
that are the subject matter of such proceeding.
(c) In connection with any Registration Statement pursuant to which
a holder of Transfer Restricted Preferred Stock or Contingent Class A Shares
offers or sells Transfer Restricted Preferred Stock or Contingent Class A
Shares, as the case may be, such holder agrees, severally and not jointly, to
indemnify and hold harmless the Issuers, their respective directors and officers
and any person controlling an Issuer within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act, to the same extent as the
foregoing indemnity from the Issuers to each Indemnified Person but only with
respect to information relating to such holder furnished in writing by or on
behalf of such holder expressly for use in such Registration Statement. In any
such case in which any action shall be brought against an Issuer, any director
or officer of an Issuer or any person controlling an Issuer based on such
Registration Statement and in respect of which indemnity may be sought against a
holder of Transfer Restricted Preferred Stock or Contingent Class A Shares, as
the case may be, such holder shall have the rights and duties given to the
Issuers (except that if an Issuer shall have assumed the defense thereof, such
holder shall not be required to do so, but may employ separate counsel therein
and participate in the defense thereof but the fees and expenses of such counsel
shall be at the expense of such holder), and the Issuers, their respective
directors and officers and any person controlling an Issuer shall have the
rights and duties given to the Indemnified Persons by Section 7(b) hereof.
(d) If the indemnification provided for in this Section 7 is
unavailable to an indemnified party in respect of any losses, claims, damages,
liabilities or judgments referred to herein, then each indemnifying party, in
lieu of indemnifying such indemnified party, shall contribute to the amount paid
or payable by such indemnified party as a result of such losses, claims,
damages, liabilities and judgments (i) in such proportion as is appropriate to
reflect the relative benefits received by each indemnifying party on the one
hand and the indemnified party on the other hand from the offering of the
Preferred Stock, the Exchange Preferred Stock, the Private Exchange Preferred
Stock, Debentures or Contingent Class A
29
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Shares, as the case may be (it being expressly understood and agreed that the
relative benefits received by the Issuers from the offering of the Preferred
Stock, Exchange Preferred Stock, Private Exchange Preferred Stock, Debentures or
Contingent Class A Shares, as the case may be, shall be the amount of the net
proceeds received by the Company from the sale of the Preferred Stock to the
Initial Purchaser), or (ii) if the allocation provided by clause (i) above is
not permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) above but also the
relative fault of each indemnifying party on the one hand and the indemnified
party on the other hand in connection with the statements or omissions which
resulted in such losses, claims, damages, liabilities or judgments, as well as
any other relevant equitable considerations. The relative fault of the each
indemnifying party on the one hand the indemnified party on the other hand shall
be determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission to state a material fact
relates to information supplied by an indemnifying party or such indemnified
party and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
The Issuers and the Initial Purchaser agree that it would not be
just and equitable if contribution pursuant to this Section 7(d) were determined
by pro rata allocation (even if all Indemnified Persons were treated as one
entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to in the immediately
preceding paragraph. The amount paid or payable by an indemnified party as a
result of the losses, claims, damages, liabilities or judgments referred to in
the immediately preceding paragraph shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 7, no
Indemnified Person shall be required to contribute any amount in excess of the
amount by which the net proceeds received by it in connection with the sale of
the Preferred Stock, Exchange Preferred Stock, Private Exchange Preferred Stock,
Debentures or Contingent Class A Shares contemplated by this Agreement (or, in
the case of an underwriter that is an Indemnified Person, the total underwriting
discounts received by such underwriter) exceeds the amount of any damages which
such Indemnified Person has otherwise been required to pay by reason of such
untrue or
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alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Indemnified Person's
obligations to contribute pursuant to this Section 7(d) are several in
proportion to the respective amount of Preferred Stock, Exchange Preferred
Stock, Private Exchange Preferred Stock, Debentures or Contingent Class A Shares
included in any such Registration Statement by each Indemnified Person and not
joint.
8. Rule 144A
Each of Issuers shall use its best efforts to file the reports
required to be filed by it under the Securities Act and the Exchange Act in a
timely manner and, if at any time it is not required to file such reports but in
the past had been required to or did file such reports, it will, upon the
request of any holder of Transfer Restricted Preferred Stock or Contingent Class
A Shares, make available other information as required by, and so long as
necessary to permit sales of Transfer Restricted Preferred Stock and Contingent
Class A Shares pursuant to Rule 144A. Notwithstanding the foregoing, nothing in
this Section 8 shall be deemed to require an Issuer to register any of its
securities pursuant to the Exchange Act.
9. Underwritten Registrations
If any of the Transfer Restricted Preferred Stock or Contingent
Class A Shares covered by any Shelf Registration are to be sold in an
underwritten offering, the investment banker or investment bankers and manager
or managers that will administer the offering will be selected by the holders of
a majority of shares of the Transfer Restricted Preferred Stock or Contingent
Class A Shares, as the case may be, included in such offering, subject to the
consent of the Company (which will not be unreasonably withheld or delayed).
No person may participate in any underwritten registration hereunder
unless such person (i) agrees to sell such Transfer Restricted Preferred Stock
or Contingent Class A Shares on the basis reasonably provided in any
underwriting arrangements approved by the persons entitled hereunder to approve
such arrangements and (ii) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting
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agreements and other documents required under the terms of such underwriting
arrangements.
10. Miscellaneous
(a) Remedies. In the event of a breach by an Issuer or by a holder
of Preferred Stock, Exchange Preferred Stock, Private Exchange Preferred Stock,
Debentures or Contingent Class A Shares of any of its obligations under this
Agreement, each holder of Preferred Stock, Exchange Preferred Stock, Private
Exchange Preferred Stock, Debentures and Contingent Class A Shares and each
Issuer, 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. Notwithstanding the provisions of Section 4 hereof,
the Issuers and each holder of Preferred Stock, Exchange Preferred Stock,
Private Exchange Preferred Stock, Debentures and Contingent Class A Shares agree
that monetary damages would not be adequate compensation for any loss incurred
by reason of a breach of any of the provisions of this Agreement and each hereby
further agrees that, in the event of any action for specific performance in
respect of such breach, it shall waive the defense that a remedy at law would be
adequate.
(b) No Inconsistent Agreements. The Issuers will not enter into any
agreement with respect to their securities that is inconsistent with the rights
granted to the holders of Preferred Stock, Exchange Preferred Stock, Private
Exchange Preferred Stock, Debentures and Contingent Class A Shares and
Indemnified Persons in this Agreement or otherwise conflicts with the provisions
hereof. Without the written consent of the holders of a majority of shares of
the outstanding Transfer Restricted Preferred Stock, the Issuers shall not grant
to any person any rights which conflict with or are inconsistent with the
provisions of this Agreement.
(c) No Piggyback on Registrations. The Issuers shall not grant to
any of their securityholders (other than the holders of Transfer Restricted
Preferred Stock in such capacities) the right to include any of their securities
in any Shelf Registration Statement other than Transfer Restricted
Preferred Stock.
(d) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents
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to departures from the provisions hereof may not be given, otherwise than with
the prior written consent of the holders of not less than a majority of the then
outstanding shares of Transfer Restricted Preferred Stock and the consent of the
holder of a majority of Contingent Class A Shares which are "restricted
securities" within the meaning of the Securities Act; provided, however, that,
for the purposes of this Agreement, Transfer Restricted Preferred Stock and
Contingent Class A Shares that are owned, directly or indirectly, by the Issuers
or any of their Affiliates is not deemed outstanding. Notwithstanding the
foregoing, a waiver or consent to depart from the provisions hereof with respect
to a matter that relates exclusively to the rights of holders of Transfer
Restricted Preferred Stock or Contingent Class A Shares whose securities are
being sold or tendered pursuant to a Registration Statement and that does not
directly or indirectly affect the rights of other holders of Transfer Restricted
Preferred Stock or Contingent Class A Shares, as the case may be, may be given
by holders of a majority of shares of the Transfer Restricted Preferred Stock or
Contingent Class A Shares, as the case may be, being sold or tendered by such
holders pursuant to such Registration Statement; provided, however, that the
provisions of this sentence may not be amended, modified or supplemented except
in accordance with the provisions of the immediately preceding sentence.
Notwithstanding the foregoing, no amendment, modification, supplement, waiver or
consent with respect to Section 7 shall be made or given otherwise than with the
prior written consent of each Indemnified Person affected thereby.
(e) Notices. All notices and other communications provided for
herein shall be made in writing by hand-delivery, next-day air courier,
certified first-class mail, return receipt requested, telex or telecopier:
(i) if to the Issuers, as provided in the Purchase
Agreement,
(ii) if to the Initial Purchaser, as provided in the
Purchase Agreement, or
(iii) if to any other person who is then the registered holder of
Preferred Stock, Exchange Preferred Stock, Private Exchange Preferred
Stock, Debentures or Contingent Class A Shares, to the address of such
holder as it appears in the register therefor of the Company.
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Except as otherwise provided in this Agreement, all such
communications and notices shall be deemed to have been duly given: when
delivered by hand, if personally delivered; one Business Day after being timely
delivered to a next-day air courier; five Business Days after being deposited in
the mail, postage prepaid, if mailed; when answered back, if telexed; and when
receipt is acknowledged by the recipient's telecopier machine, if telecopied.
(f) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and permitted assigns of each of
the parties and shall inure to the benefit of each holder of Preferred Stock,
Exchange Preferred Stock, Private Exchange Preferred Stock, Debentures,
Contingent Class A Shares and each Indemnified Person. The Issuers may not
assign any of their rights or obligations hereunder without the prior written
consent of each holder of Transfer Restricted Preferred Stock, Contingent Class
A Shares and Debentures and each Indemnified Person. Notwithstanding the
foregoing, no successor or assignee of an Issuer shall have any of the rights
granted under this Agreement until such person shall acknowledge its rights and
obligations hereunder by a signed written statement of such person's acceptance
of such rights and obligations.
(g) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and, all of which taken
together shall constitute one and the same Agreement.
(h) Governing Law; Submission to Jurisdiction. THIS AGREEMENT SHALL
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK, AS APPLIED TO CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK.
THE ISSUERS HEREBY IRREVOCABLY SUBMIT TO THE JURISDICTION OF ANY NEW YORK STATE
COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK OR ANY FEDERAL
COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK IN RESPECT OF
ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, AND
EACH IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY
AND UNCONDITIONALLY, JURISDICTION OF THE AFORESAID COURTS.
(i) Severability. The remedies provided herein are cumulative and
not exclusive of any remedies provided by law. If any term, provision, covenant
or restriction of this
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Agreement is held by a court of competent jurisdiction to be invalid, illegal,
void or unenforceable, the remainder of the terms, provisions, covenants and
restrictions set forth herein shall remain in full force and effect and shall in
no way be affected, impaired or invalidated, and the parties hereto shall use
their reasonable efforts to find and employ an alternative means to achieve the
same or substantially the same result as that contemplated by such term,
provision, covenant or restriction. It is hereby stipulated and declared to be
the intention of the parties that they would have executed the remaining terms,
provisions, covenants and restrictions without including any of such that may be
hereafter declared invalid, illegal, void or unenforceable.
(j) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof. All
references made in this Agreement to "Section" and "paragraph" refer to such
Section or paragraph of this Agreement, unless expressly stated otherwise.
(k) Entire Agreement. This Agreement is intended by the parties as a
final expression of their agreement and is 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 with respect to the registration rights granted by the Issuers with
respect to the Preferred Stock, the Exchange Preferred Stock, the Private
Exchange Preferred Stock, Debentures and Contingent Class A Shares. This
Agreement supersedes all prior agreements and understandings between the parties
with respect to such subject matter.
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IN WITNESS WHEREOF, the parties have caused this Registration Rights
Agreement to be duly executed as of the date first written above.
THE COMPANY:
SPANISH BROADCASTING SYSTEM, INC.
By: /s/ Raul Alarcon, Jr.
-----------------------------------
Name: Raul Alarcon, Jr.
Title: President and Chief Executive Officer
THE GUARANTORS:
SPANISH BROADCASTING SYSTEM, INC.,
a New Jersey Corporation
By: /s/ Raul Alarcon, Jr.
-----------------------------------
Name: Raul Alarcon, Jr.
Title: President and Chief Executive Officer
SPANISH BROADCASTING SYSTEM
OF CALIFORNIA, INC.
By: /s/ Raul Alarcon, Jr.
-----------------------------------
Name: Raul Alarcon, Jr.
Title: President and Chief Executive Officer
SPANISH BROADCASTING SYSTEM
OF FLORIDA, INC.
By: /s/ Raul Alarcon, Jr.
-----------------------------------
Name: Raul Alarcon, Jr.
Title: President and Chief Executive Officer
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SPANISH BROADCASTING SYSTEM
NETWORK, INC.
By: /s/ Raul Alarcon, Jr.
-----------------------------------
Name: Raul Alarcon, Jr.
Title: President and Chief Executive Officer
SBS PROMOTIONS, INC.
By: /s/ Raul Alarcon, Jr.
-----------------------------------
Name: Raul Alarcon, Jr.
Title: President and Chief Executive Officer
ALARCON HOLDINGS, INC.
By: /s/ Raul Alarcon, Jr.
-----------------------------------
Name: Raul Alarcon, Jr.
Title: President and Chief Executive Officer
SBS OF GREATER NEW YORK, INC.
By: /s/ Raul Alarcon, Jr.
-----------------------------------
Name: Raul Alarcon, Jr.
Title: President and Chief Executive Officer
THE INITIAL PURCHASER:
CIBC WOOD GUNDY SECURITIES CORP.
By: Walter McLallen
------------------------------
Name: Walter McLallen
Title: Managing Director