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EXHIBIT 4.1
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REGISTRATION RIGHTS AGREEMENT
Dated as of June 17, 1997
between
CAPSTAR BROADCASTING PARTNERS, INC.
as Issuer
and
BT SECURITIES CORPORATION
CREDIT SUISSE FIRST BOSTON CORPORATION
as Initial Purchasers
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12% Senior Exchangeable Preferred Stock
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TABLE OF CONTENTS
Page
1. Definitions................................................. 1
2. Exchange Offer.............................................. 5
3. Shelf Registration.......................................... 9
4. Additional Dividends........................................ 11
5. Registration Procedures..................................... 11
6. Registration Expenses....................................... 22
7. Indemnification............................................. 23
8. Rules 144 and 144A.......................................... 27
9. Underwritten Registrations.................................. 28
10. Registration of Transfers and Exchanges..................... 28
11. Miscellaneous............................................... 34
(a) No Inconsistent Agreements............................ 34
(b) Adjustments Affecting Registrable
Preferred Stock..................................... 34
(c) Amendments and Waivers................................ 35
(d) Notices............................................... 35
(e) Successors and Assigns................................ 37
(f) Counterparts.......................................... 37
(g) Headings.............................................. 37
(h) Governing Law......................................... 37
(i) Severability.......................................... 37
(j) Securities Held by the Company
or Its Affiliates................................... 38
(k) Third Party Beneficiaries............................. 38
(l) Entire Agreement...................................... 38
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REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is dated as of
June 17, 1997, among Capstar Broadcasting Partners, Inc., a Delaware
corporation (the "Company"), and BT Securities Corporation and Credit Suisse
First Boston Corporation (together, the "Initial Purchasers").
This Agreement is entered into in connection with the Purchase
Agreement, dated June 10, 1997, among the Company and the Initial Purchasers
(the "Purchase Agreement"), which provides for the issuance and sale by the
Company to the Initial Purchasers of the Company's 12% Senior Exchangeable
Preferred Stock (the "Preferred Stock"). In order to induce the Initial
Purchasers to enter into the Purchase Agreement, the Company has agreed to
provide the registration rights set forth in this Agreement for the benefit of
the Initial Purchasers and their direct and indirect transferees and assigns.
The execution and delivery of this Agreement is a condition to the Initial
Purchasers' obligation to purchase the Preferred Stock under the Purchase
Agreement.
The parties hereby agree as follows:
1. Definitions
As used in this Agreement, the following terms shall have the
following meanings:
Additional Dividends: See Section 4 hereof.
Advice: See Section 5 hereof.
Agreement: See the introductory paragraphs hereto.
Applicable Period: See Section 2 hereof.
Certificate of Designation: The Certificate of Designation
governing the Preferred Stock, as filed with the Secretary of State of the
State of Delaware, as amended from time to time.
Certificated Shares: See Section 10 hereof.
Closing Date: The Closing Date as defined in the
Purchase Agreement.
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Company: See the introductory paragraphs hereto.
Depositary: The Depository Trust Company until a
successor is appointed by the Company and the Transfer Agent.
Effectiveness Date: The 180th day after the Issue
Date.
Effectiveness Period: See Section 3 hereof.
Event Date: See Section 4 hereof.
Exchange Act: The Securities Exchange Act of 1934,
as amended, and the rules and regulations of the SEC
promulgated thereunder.
Exchange Offer: See Section 2 hereof.
Exchange Preferred Stock: See Section 2 hereof.
Exchange Registration Statement: See Section 2
hereof.
Filing Date: Within 90 days after the Issue Date.
Global Certificate: See Section 10 hereof.
Holder: Any holder of Registrable Preferred Stock.
Indemnified Person: See Section 7(c) hereof.
Indemnifying Person: See Section 7(c) hereof.
Initial Purchasers: See the introductory paragraphs
hereto.
Initial Shelf Registration: See Section 3(a) hereof.
Inspectors: See Section 5(o) hereof.
Issue Date: The date on which the original Preferred
Stock was issued and sold to the Initial Purchasers pursuant to
the Purchase Agreement.
NASD: See Section 5(r) hereof.
Participant: See Section 7(a) hereof.
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Participating Broker-Dealer: See Section 2 hereof.
Person: An individual, partnership, corporation, limited liability
company, unincorporated association, trust or joint venture, or a governmental
agency or political subdivision thereof.
Private Exchange: See Section 2 hereof.
Private Exchange Certificate: See Section 2 hereof.
Private Exchange Preferred Stock: See Section 2
hereof.
Prospectus: The prospectus included in any Registration Statement
(including, without limitation, any prospectus subject to completion and a
prospectus that includes any information previously omitted from a prospectus
filed as part of an effective registration statement in reliance upon Rule 430A
promulgated under the Securities Act), as amended or supplemented by any
prospectus supplement, and all other amendments and supplements to the
Prospectus, including post-effective amendments, and all material incorporated
by reference or deemed to be incorporated by reference in such Prospectus.
Purchase Agreement: See the introductory paragraphs
hereto.
Records: See Section 5(o) hereof.
Registrable Preferred Stock: Each share of Preferred Stock upon
original issuance thereof and at all times subsequent thereto, each share of
Exchange Preferred Stock as to which Section 2(c)(vi) 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 shares of Preferred Stock,
Exchange Preferred Stock or Private Exchange Preferred Stock, as the case may
be, the earliest to occur of (i) in the case of any share, the date on which
such share has been exchanged for a freely transferable share in the Exchange
Offer, (ii) in the case of any share, the date on which such share has been
effectively registered under the Securities Act and disposed of in accordance
with the Shelf Registration Statement or (iii) the date on which such Preferred
Stock, Exchange Preferred Stock and Private Exchange Preferred Stock are
distributed to the public pursuant to Rule
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144 under the Securities Act or are saleable pursuant to Rule 144(k) under the
Securities Act.
Registration Statement: Any registration statement of the Company,
including, but not limited to, the Exchange Registration Statement, filed with
the SEC pursuant to the provisions of this Agreement, including the Prospectus,
amendments and supplements to such registration statement, including
post-effective amendments, all exhibits, and all material incorporated by
reference or deemed to be incorporated by reference in such registration
statement.
Rule 144: Rule 144 promulgated under the Securities Act, as such
Rule may be amended from time to time, or any similar rule (other than Rule
144A) or regulation hereafter adopted by the SEC providing for offers and sales
of securities made in compliance therewith resulting in offers and sales by
subsequent holders that are not affiliates of an issuer of such securities
being free of the registration and prospectus delivery requirements of the
Securities Act.
Rule 144A: Rule 144A promulgated under the Securities Act, as such
Rule may be amended from time to time, or any similar rule (other than Rule
144) or regulation hereafter adopted by the SEC.
Rule 415: Rule 415 promulgated under the Securities Act, as such
Rule may be amended from time to time, or any similar rule or regulation
hereafter adopted by the SEC.
SEC: The Securities and Exchange Commission.
Securities Act: The Securities Act of 1933, as
amended, and the rules and regulations of the SEC promulgated
thereunder.
Shelf Notice: See Section 2 hereof.
Shelf Registration: See Section 3(b) hereof.
Subsequent Shelf Registration: See Section 3(b)
hereof.
Transfer Agent: The Transfer Agent for the Preferred
Stock, the Exchange Preferred Stock and/or the Private Exchange
Preferred Stock, as the context may require.
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Underwritten registration or underwritten offering: A registration
in which securities of the Company are sold to an underwriter for reoffering to
the public.
2. Exchange Offer
(a) The Company shall file with the SEC, no later than the Filing
Date, a registration statement on Form S-1 or S-4, if the use of such forms is
then available, or other such appropriate form (the "Exchange Registration
Statement") relating to a registered exchange (the "Exchange Offer") for any
and all shares of the Preferred Stock for a like number of shares (with a
liquidation preference equal to that of the surrendered shares of the Preferred
Stock) of another series of preferred stock of the Company that will have terms
identical in all material respects to the Preferred Stock (the "Exchange
Preferred Stock"), except that (i) the Exchange Preferred Stock shall have been
registered pursuant to an effective Registration Statement under the Securities
Act and the Certificate thereof shall contain no restrictive legend thereon and
(ii) the certificate of designation governing such Exchange Preferred Stock
does not need to contain the provisions set forth in the Certificate of
Designation concerning Additional Dividends. The Exchange Offer shall comply
with all applicable tender offer rules and regulations under the Exchange Act.
The Company agrees to use its reasonable best efforts to (x) cause the Exchange
Registration Statement to be declared effective under the Securities Act on or
before the Effectiveness Date; (y) keep the Exchange Offer open for at least 20
business days (or longer if required by applicable law) after the date that
notice of the Exchange Offer is mailed to Holders; and (z) consummate the
Exchange Offer on or prior to the 225th day following the Issue Date. If, after
such Exchange Registration Statement is initially declared effective by the
SEC, the Exchange Offer or the issuance of the Exchange Preferred Stock
thereunder is interfered with by any stop order, injunction or other order or
requirement of the SEC or any other governmental agency or court, such Exchange
Registration Statement shall be deemed not to have become effective for
purposes of this Agreement. Each Holder who wishes to exchange shares of
Preferred Stock for shares of Exchange Preferred Stock in the Exchange Offer
will be required to represent to the Company that (i) any Exchange Preferred
Stock to be received by it will be acquired in the ordinary course of its
business, (ii) it has no arrangement with any person to participate in the
distribution of the Exchange Preferred Stock and (iii) it is not an
"affiliate," as defined in Rule 405 of the Securities Act, of the Company, or
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if it is an affiliate, it will comply with the registration and prospectus
delivery requirements of the Securities Act to the extent applicable. Upon
consummation of the Exchange Offer in accordance with this Section 2, the
provisions of this Agreement shall continue to apply, mutatis mutandis, solely
with respect to Registrable Preferred Stock that is Private Exchange Preferred
Stock and Exchange Preferred Stock held by Participating Broker-Dealers, and
the Company shall have no further obligation to register Registrable Preferred
Stock (other than Private Exchange Preferred Stock and other than in respect of
any Exchange Preferred Stock as to which clause 2(c)(v) hereof applies)
pursuant to Section 3 hereof. No securities other than the Exchange Preferred
Stock shall be included in the Exchange Registration Statement.
(b) The Company shall include within the Prospectus contained in
the Exchange Registration Statement a section entitled "Plan of Distribution,"
reasonably acceptable to the Initial Purchasers, that shall contain a summary
statement of the positions taken or policies made by the Staff of the SEC with
respect to the potential "underwriter" status of any broker-dealer that is the
beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of Exchange
Preferred Stock received by such broker-dealer (a "Participating Broker-
Dealer") in the Exchange Offer (other than with respect to any Preferred Stock
acquired by it and having the status of an unsold allotment in the initial
distribution), whether such positions or policies have been publicly
disseminated by the Staff of the SEC or such positions or policies, in the
judgment of the Initial Purchasers, represent the prevailing views of the Staff
of the SEC. Such "Plan of Distribution" section shall also expressly permit the
use of the Prospectus by all Persons subject to the prospectus delivery
requirements of the Securities Act, including all Participating Broker-Dealers,
and include a statement describing the means by which Participating
Broker-Dealers may resell the Exchange Preferred Stock.
The Company shall use its reasonable best efforts to keep the
Exchange Registration Statement effective and to amend and supplement the
Prospectus contained therein in order to permit such Prospectus to be lawfully
delivered by all Persons subject to the prospectus delivery requirements of the
Securities Act for such period of time as is necessary to comply with
applicable law in connection with any resale of the Exchange Preferred Stock;
provided, however, that such period shall not exceed 90 days after the
consummation of the Exchange Offer (or
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such longer period if extended pursuant to the last paragraph of Section 5
hereof) (the "Applicable Period").
If, prior to consummation of the Exchange Offer, the Initial
Purchasers hold any Preferred Stock acquired by them and having the status of
an unsold allotment in the initial distribution, the Company shall, upon the
request of the Initial Purchasers simultaneously with the delivery of the
Exchange Preferred Stock in the Exchange Offer, issue and deliver to the
Initial Purchasers in exchange (the "Private Exchange") for such shares of
Preferred Stock held by the Initial Purchasers preferred stock having a
liquidation preference equal to that of the surrendered shares of Preferred
Stock and having terms identical in all material respects to the Preferred
Stock (the "Private Exchange Preferred Stock"), except for the placement of a
restrictive legend on such Private Exchange Preferred Stock; provided, however,
that the certificate of designation governing such Private Exchange Preferred
Stock (the "Private Exchange Certificate") shall provide that Additional
Dividends with respect thereto shall be paid, if required, through the issuance
of additional shares of Private Exchange Preferred Stock.
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 (or deemed to have been paid in accordance with the terms
of the Certificate of Designation) on the Preferred Stock surrendered in
exchange therefor or, if no interest has been paid on the Preferred Stock, from
the Issue Date.
In connection with the Exchange Offer, the Company shall:
(1) mail to each Holder a copy of the Prospectus forming part of
the Exchange Registration Statement, together with an appropriate letter
of transmittal and related documents;
(2) utilize the services of a depositary for the Exchange Offer
with an address in the Borough of Manhattan, The City of New York;
(3) permit Holders to withdraw tendered Preferred Stock at any time
prior to the close of business, New York time, on the last business day
on which the Exchange Offer shall remain open; and
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(4) otherwise comply in all material respects with all applicable
laws, rules and regulations.
As soon as practicable after the close of the Exchange Offer or the
Private Exchange, as the case may be, the Company shall:
(1) accept for exchange all shares of Preferred Stock tendered and
not validly withdrawn pursuant to the Exchange Offer or the Private
Exchange;
(2) deliver to the Transfer Agent for cancellation
and retirement certificates representing all shares of
Preferred Stock so accepted for exchange; and
(3) cause the Transfer Agent to countersign and deliver promptly to
each Holder of shares of Preferred Stock, certificates representing
Exchange Preferred Stock or Private Exchange Preferred Stock, as the case
may be, equal in liquidation preference to the shares of Preferred Stock
of such Holder so accepted for exchange.
The certificate of designation for each of the Exchange Preferred
Stock and the Private Preferred Stock, if any, shall provide that the Exchange
Preferred Stock, the Private Exchange Preferred Stock and the Preferred Stock
shall vote and consent together on all matters as one class and that neither
the Exchange Preferred Stock, the Private Exchange Preferred Stock nor the
Preferred Stock will have the right to vote or consent as a separate class on
any matter.
(c) If, (i) because of any change in law or in currently prevailing
interpretations of the Staff of the SEC, the Company is not permitted to effect
an Exchange Offer, (ii) any Holder either is not eligible to participate in the
Exchange Offer or participates in the Exchange Offer, and does not receive
shares of Exchange Preferred Stock in exchange for tendered shares of Preferred
Stock (in each case under this clause (ii) other than as a result of applicable
interpretations of the staff of the SEC or applicable law then in effect as of
the Issue Date), (iii) the Exchange Offer is not consummated within 225 days of
the date of original issuance of the Preferred Stock, (iv) any holder of
Private Exchange Preferred Stock so requests at any time after the consummation
of the Private Exchange, (v) the Holders of not less than a majority of
Registrable Preferred Stock reasonably determine that the interests of the
Holders would be adversely affected by consummation of
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the Exchange Offer or (vi) in the case of any Holder that participates in the
Exchange Offer, such Holder does not receive shares of Exchange Preferred Stock
on the date of the exchange that may be sold without restriction under state
and federal securities laws (other than due solely to the status of such Holder
as an affiliate of the Company within the meaning of the Securities Act or any
prospectus delivery requirement applicable to such Holder), in the case of each
of clauses (i) to and including (vi) of this sentence, then the Company shall
promptly deliver to the Holders written notice thereof (the "Shelf Notice") and
shall file a Shelf Registration pursuant to Section 3 hereof.
3. Shelf Registration
If a Shelf Notice is delivered as contemplated by Section 2(c)
hereof, then:
(a) Shelf Registration. The Company shall as promptly as reasonably
practicable file with the SEC a Registration Statement for an offering to be
made on a continuous basis pursuant to Rule 415 covering all of the Registrable
Preferred Stock (the "Initial Shelf Registration"). If the Company shall not
have yet filed an Exchange Registration Statement, the Company shall use its
reasonable best efforts to file with the SEC the Initial Shelf Registration on
or prior to the Filing Date. Otherwise, the Company shall use its best efforts
to file with the SEC the Initial Shelf Registration within 30 days of the
delivery of the Shelf Notice. The Initial Shelf Registration shall be on Form
S-1 or another appropriate form permitting registration of such Registrable
Preferred Stock for resale by Holders in the manner or manners designated by
them (including, without limitation, one underwritten offering). The Company
shall not permit any securities other than the Registrable Preferred Stock to
be included in the Initial Shelf Registration or any Subsequent Shelf
Registration (as defined below).
The Company shall use its reasonable best efforts to cause the
Initial Shelf Registration to be declared effective under the Securities Act on
or prior to the Effectiveness Date and to keep the Initial Shelf Registration
continuously effective under the Securities Act until the date that is 24
months from the Issue Date, subject to extension pursuant to the last paragraph
of Section 5 hereof (the "Effectiveness Period"), or such shorter period ending
when (i) all Registrable Preferred Stock covered by the Initial Shelf
Registration have been sold
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in the manner set forth and as contemplated in the Initial Shelf Registration,
(ii) a Subsequent Shelf Registration covering all of the Registrable Preferred
Stock has been declared effective under the Securities Act or (iii) there is no
longer any Registrable Preferred Stock outstanding.
(b) Subsequent Shelf Registrations. If the Initial Shelf
Registration or any Subsequent Shelf Registration ceases to be effective for
any reason at any time during the Effectiveness Period (other than because of
the sale of all of the securities registered thereunder), the Company shall use
its reasonable best efforts to obtain the prompt withdrawal of any order
suspending the effectiveness thereof, and in any event shall within 45 days of
such cessation of effectiveness amend the Initial Shelf Registration in a
manner to obtain the withdrawal of the order suspending the effectiveness
thereof, or file an additional "shelf" Registration Statement pursuant to Rule
415 covering all of the Registrable Preferred Stock (a "Subsequent Shelf
Registration"). If a Subsequent Shelf Registration is filed, the Company shall
use its reasonable best efforts to cause the Subsequent Shelf Registration to
be declared effective under the Securities Act as soon as practicable after
such filing and to keep such Registration Statement continuously effective for
a period equal to the number of days in the Effectiveness Period less the
aggregate number of days during which the Initial Shelf Registration or any
Subsequent Shelf Registration was previously continuously effective. As used
herein the term "Shelf Registration" means the Initial Shelf Registration and
any Subsequent Shelf Registration.
(c) Supplements and Amendments. The Company shall use all
reasonable efforts to supplement and amend the Shelf Registration if required
by the rules, regulations or instructions applicable to the registration form
used for such Shelf Registration, if required by the Securities Act, or if
reasonably requested by the Holders of a majority of shares of the Registrable
Preferred Stock covered by such Registration Statement or by any underwriter of
such Registrable Preferred Stock.
(d) Suspension of Shelf Registration. The Company's obligation to
keep the Shelf Registration effective and usable for offers and sales of the
Preferred Stock and Exchange Preferred Stock may be suspended by the Company in
good faith for valid business reasons, including, without limitation, a pending
acquisition or divestiture of assets. Any such period during which the Company
fails to keep the Shelf Registration effective and usable for offers and sales
of Preferred Stock
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and Exchange Preferred Stock is referred to as a "Suspension Period." A
Suspension Period shall commence on and include the date that the Company gives
notice that the Shelf Registration is no longer effective or the prospectus
included therein is no longer usable for offers and sales of Preferred Stock
and Exchange Preferred Stock and shall end on the date when each Holder of
Preferred Stock and Exchange Preferred Stock covered by such registration
statement either receives the copies of the supplemented or amended prospectus
contemplated by Section 3(c) hereof or is advised in writing by the Company
that use of the prospectus may be resumed; provided that no Suspension Period
shall exceed 90 days in any period of 365 consecutive days.
4. Additional Dividends
The Company and the Initial Purchasers agree that the Holders of
Preferred Stock will suffer damages if the Company fails to fulfill its
obligations under Section 2 or Section 3 hereof and that it would not be
feasible to ascertain the extent of such damages with precision. Accordingly,
the Company agrees to pay, as liquidated damages, additional dividends on the
Preferred Stock or the Private Exchange Preferred Stock (in either case,
"Additional Dividends") under the circumstances and to the extent set forth in
the Certificate of Designation and the Private Exchange Certificate,
respectively. The Company shall notify the Transfer Agent within one business
day after each and every date on which an event occurs in respect of which
Additional Dividends are required to be paid (an "Event Date"). Any Additional
Dividends will be payable in accordance with the terms of the Certificate of
Designation and the Private Exchange Certificate on the next following dividend
payment date. The Company agrees to make available to the Transfer Agent
certificates representing additional shares of Private Exchange Preferred Stock
to be paid as Additional Dividends on or prior to the dividend payment date.
5. Registration Procedures
In connection with the filing of any Registration Statement
pursuant to Sections 2 or 3 hereof, the Company shall effect such registrations
to permit the sale of the securities covered thereby in accordance with the
intended method or methods of disposition thereof, and pursuant thereto and in
connection with any Registration Statement filed by the Company hereunder the
Company shall:
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(a) Prepare and file with the SEC prior to the Filing Date, a
Registration Statement or Registration Statements as prescribed by Sections 2
or 3 hereof, and use its reasonable best efforts to cause each such
Registration Statement to become effective and remain effective as provided
herein; provided, however, that, if (1) such filing is pursuant to Section 3
hereof, or (2) a Prospectus contained in an Exchange Registration Statement
filed pursuant to Section 2 hereof is required to be delivered under the
Securities Act by any Participating Broker-Dealer who seeks to sell Exchange
Preferred Stock during the Applicable Period, before filing any Registration
Statement or Prospectus or any amendments or supplements thereto, the Company
shall furnish to and afford the Holders of the Registrable Preferred Stock
covered by such Registration Statement or each such Participating Broker-
Dealer, as the case may be, their counsel and the managing underwriters, if
any, a reasonable opportunity to review copies of all such documents (including
copies of any documents to be incorporated by reference therein and all
exhibits thereto) proposed to be filed (in each case at least five business
days prior to such filing). The Company shall not file any Registration
Statement or Prospectus or any amendments or supplements thereto if the Holders
of a majority of shares of Registrable Preferred Stock covered by such
Registration Statement, or any such Participating Broker-Dealer, as the case
may be, their counsel, or the managing underwriters, if any, shall reasonably
object. Notwithstanding anything to the contrary contained in this Agreement,
the Company shall not be required to engage in more than one underwritten
offering pursuant to this Agreement.
(b) Prepare and file with the SEC such amendments and
post-effective amendments to each Shelf Registration or Exchange Registration
Statement, as the case may be, as may be necessary to keep such Registration
Statement continuously effective for the Effectiveness Period or the Applicable
Period, as the case may be; cause the related Prospectus to be supplemented by
any Prospectus supplement required by applicable law, and as so supplemented to
be filed pursuant to Rule 424 (or any similar provisions then in force)
promulgated under the Securities Act; and comply with the provisions of the
Securities Act and the Exchange Act applicable to it with respect to the
disposition of all securities covered by such Registration Statement as so
amended or in such Prospectus as so supplemented and with respect to the
subsequent resale of any securities being sold by a Participating Broker-Dealer
covered by any such Prospectus. The Company shall be deemed not to have used
its reasonable best efforts to keep a Registration
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Statement effective during the Applicable Period if it voluntarily takes any
action that would result in selling Holders of the Registrable Preferred Stock
covered thereby or Participating Broker-Dealers seeking to sell Exchange
Preferred Stock not being able to sell such Registrable Preferred Stock or such
Exchange Preferred Stock during that period unless such action is required by
applicable law or unless the Company complies with this Agreement, including
without limitation, the provisions of paragraphs 3(d) and 5(k) hereof and the
last paragraph of this Section 5.
(c) If (1) a Shelf Registration is filed pursuant to Section 3
hereof, or (2) a Prospectus contained in an Exchange Registration Statement
filed pursuant to Section 2 hereof is required to be delivered under the
Securities Act by any Participating Broker-Dealer who seeks to sell Exchange
Preferred Stock during the Applicable Period, notify the selling Holders of
Registrable Preferred Stock, or each such Participating Broker-Dealer, as the
case may be, their counsel and the managing underwriters, if any, promptly (but
in any event within two business days), and confirm such notice in writing, (i)
when a Prospectus or any Prospectus supplement or post-effective amendment has
been filed, and, with respect to a Registration Statement or any post-effective
amendment, when the same has become effective under the Securities Act
(including in such notice a written statement that any Holder may, upon
request, obtain, at the sole expense of the Company, one conformed copy of such
Registration Statement or post-effective amendment including financial
statements and schedules, documents incorporated or deemed to be incorporated
by reference and exhibits), (ii) of the issuance by the SEC of any stop order
suspending the effectiveness of a Registration Statement or of any order
preventing or suspending the use of any preliminary prospectus or the
initiation of any proceedings for that purpose, (iii) if at any time when a
prospectus is required by the Securities Act to be delivered in connection with
sales of the Registrable Preferred Stock or resales of Exchange Preferred Stock
by Participating Broker-Dealers the representations and warranties of the
Company contained in any agreement (including any underwriting agreement),
contemplated by Section 5(m) hereof cease to be true and correct, (iv) of the
receipt by the Company of any notification with respect to the suspension of
the qualification or exemption from qualification of a Registration Statement
or any of the Registrable Preferred Stock or the Exchange Preferred Stock to be
sold by any Participating Broker-Dealer for offer or sale in any jurisdiction,
or the initiation or threatening of any proceeding for
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such purpose, (v) of the happening of any event, the existence of any condition
or any information becoming known that makes any statement made in such
Registration Statement or related Prospectus or any document incorporated or
deemed to be incorporated therein by reference untrue in any material respect
or that requires the making of any changes in or amendments or supplements to
such Registration Statement, Prospectus or documents so that, in the case of
the Registration Statement, it will not contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading, and that in the
case of the Prospectus, it will not contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading and (vi) of the Company's
determination that a post-effective amendment to a Registration Statement would
be appropriate.
(d) If (1) a Shelf Registration is filed pursuant to Section 3
hereof, or (2) a Prospectus contained in an Exchange Registration Statement
filed pursuant to Section 2 hereof is required to be delivered under the
Securities Act by any Participating Broker-Dealer who seeks to sell Exchange
Preferred Stock during the Applicable Period, use its reasonable best efforts
to prevent the issuance of any order suspending the effectiveness of a
Registration Statement or of any order preventing or suspending the use of a
Prospectus or suspending the qualification (or exemption from qualification) of
any of the Registrable Preferred Stock or the Exchange Preferred Stock to be
sold by any Participating Broker-Dealer, for sale in any jurisdiction, and, if
any such order is issued, to use its reasonable best efforts to obtain the
withdrawal of any such order at the earliest possible moment.
(e) If a Shelf Registration is filed pursuant to Section 3 and if
requested by the managing underwriter or underwriters (if any), or the Holders
of a majority of shares of Registrable Preferred Stock being sold in connection
with an underwritten offering or any Participating Broker-Dealer, (i) promptly
incorporate in a prospectus supplement or post-effective amendment such
information as the managing underwriter or underwriters (if any), such Holders,
any Participating Broker-Dealer or counsel for any of them determine is
reasonably necessary to be included therein, (ii) make all required filings of
such prospectus supplement or such post-effective amendment as soon as
practicable after the Company
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has received notification of the matters to be incorporated in such prospectus
supplement or post-effective amendment and (iii) supplement or make amendments
to such Registration Statement.
(f) If (1) a Shelf Registration is filed pursuant to Section 3
hereof, or (2) a Prospectus contained in an Exchange Registration Statement
filed pursuant to Section 2 hereof is required to be delivered under the
Securities Act by any Participating Broker-Dealer who seeks to sell Exchange
Preferred Stock during the Applicable Period, furnish to each selling Holder of
Registrable Preferred Stock and to each such Participating Broker-Dealer who so
requests and to counsel and each managing underwriter, if any, at the sole
expense of the Company, one conformed copy of the Registration Statement or
Registration Statements and each post-effective amendment thereto, including
financial statements and schedules, and, if requested, all documents
incorporated or deemed to be incorporated therein by reference and all
exhibits.
(g) If (1) a Shelf Registration is filed pursuant to Section 3
hereof, or (2) a Prospectus contained in an Exchange Registration Statement
filed pursuant to Section 2 hereof is required to be delivered under the
Securities Act by any Participating Broker-Dealer who seeks to sell Exchange
Preferred Stock during the Applicable Period, deliver to each selling Holder of
Registrable Preferred Stock, or each such Participating Broker-Dealer, as the
case may be, their respective counsel, and the underwriters, if any, at the
sole expense of the Company, as many copies of the Prospectus (including each
form of preliminary prospectus) and each amendment or supplement thereto and
any documents incorporated by reference therein as such Persons may reasonably
request; and, subject to the last paragraph of this Section 5, the Company
hereby consents to the use of such Prospectus and each amendment or supplement
thereto by each of the selling Holders of Registrable Preferred Stock or each
such Participating Broker-Dealer, as the case may be, and the underwriters or
agents, if any, and dealers (if any), in connection with the offering and sale
of the Registrable Preferred Stock covered by, or the sale by Participating
Broker-Dealers of the Exchange Preferred Stock pursuant to, such Prospectus and
any amendment or supplement thereto.
(h) Prior to any public offering of Registrable Preferred Stock or
any delivery of a Prospectus contained in the Exchange Registration Statement
by any Participating Broker-
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Dealer who seeks to sell Exchange Preferred Stock during the Applicable Period,
to use its reasonable best efforts to register or qualify, and to cooperate
with the selling Holders of Registrable Preferred Stock or each such
Participating Broker-Dealer, as the case may be, the managing underwriter or
underwriters, if any, and their respective counsel in connection with the
registration or qualification (or exemption from such registration or
qualification) of such Registrable Preferred Stock for offer and sale under the
securities or Blue Sky laws of such jurisdictions within the United States as
any selling Holder, Participating Broker-Dealer, or the managing underwriter or
underwriters reasonably request; provided, however, that where Exchange
Preferred Stock held by Participating Broker-Dealers or Registrable Preferred
Stock offered other than through an underwritten offering, the Company agrees
to cause the Company's counsel to perform Blue Sky investigations and file
registrations and qualifications required to be filed pursuant to this Section
5(h); keep each such registration or qualification (or exemption therefrom)
effective during the period such Registration Statement is required to be kept
effective and do any and all other acts or things reasonably necessary or
advisable to enable the disposition in such jurisdictions of the Exchange
Preferred Stock held by Participating Broker-Dealers or the Registrable
Preferred Stock covered by the applicable Registration Statement; provided,
however, that the Company shall not be required to qualify as a foreign
corporation or to execute a general consent to service of process in any
jurisdiction or be subject to taxation in any jurisdiction in which it is not
so subject.
(i) If a Shelf Registration is filed pursuant to Section 3 hereof,
cooperate with the selling Holders of Registrable Preferred Stock and the
managing underwriter or underwriters, if any, to facilitate the timely
preparation and delivery of certificates representing Registrable Preferred
Stock to be sold, which certificates shall not bear any restrictive legends and
shall be in a form eligible for deposit with The Depository Trust Company; and
enable such Registrable Preferred Stock to be in such denominations and
registered in such names as the managing underwriter or underwriters, if any,
or Holders may reasonably request.
(j) Use its reasonable best efforts to cause the Registrable
Preferred Stock covered by the Registration Statement to be registered with or
approved by such other governmental agencies or authorities as may be necessary
to enable the seller or sellers thereof or the underwriter or underwriters,
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if any, to consummate the disposition of such Registrable Preferred Stock
except as may be required solely as a consequence of the nature of such selling
Holder's business, in which case the Company will cooperate in all reasonable
respects with the filing of such Registration Statement and the granting of
such approvals.
(k) If (1) a Shelf Registration is filed pursuant to Section 3
hereof, or (2) a Prospectus contained in an Exchange Registration Statement
filed pursuant to Section 2 hereof is required to be delivered under the
Securities Act by any Participating Broker-Dealer who seeks to sell Exchange
Preferred Stock during the Applicable Period, upon the occurrence of any event
contemplated by paragraph 5(c)(v) or 5(c)(vi) hereof, as promptly as
practicable prepare and (subject to Sections 3(d) and 5(a) hereof) file with
the SEC, at the sole expense of the Company, a supplement or post-effective
amendment to the Registration Statement or a supplement to the related
Prospectus or any document incorporated or deemed to be incorporated therein by
reference, or file any other required document so that, as thereafter delivered
to the purchasers of the Registrable Preferred Stock being sold thereunder or
to the purchasers of the Exchange Preferred Stock to whom such Prospectus will
be delivered by a Participating Broker-Dealer, any such Prospectus will not
contain an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading.
(l) Prior to the effective date of the first Registration Statement
relating to the Registrable Preferred Stock, (i) provide the Transfer Agent
with certificates for the Registrable Preferred Stock in a form eligible for
deposit with The Depository Trust Company and (ii) provide a CUSIP number
for the Registrable Preferred Stock.
(m) In connection with any underwritten offering of
Registrable Preferred Stock pursuant to a Shelf Registration, enter into an
underwriting agreement as is customary in underwritten offerings of securities
similar to the Preferred Stock and take all such other actions as are
reasonably requested by the managing underwriter or underwriters in order to
expedite or facilitate the registration or the disposition of such Registrable
Preferred Stock and, in such connection, (i) make such representations and
warranties to, and covenants with, the underwriters with respect to the
business of the Company and its subsidiaries (including any acquired business,
properties
20
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or entity, if applicable) and the Registration Statement, Prospectus and
documents, if any, incorporated or deemed to be incorporated by reference
therein, in each case, as are customarily made by issuers to underwriters in
underwritten offerings of securities similar to the Preferred Stock, and
confirm the same in writing if and when requested; (ii) obtain the written
opinion of counsel to the Company and written updates thereof in form, scope
and substance reasonably satisfactory to the managing underwriter or
underwriters, addressed to the underwriters covering the matters customarily
covered in opinions requested in underwritten offerings of securities similar
to the Preferred Stock and such other matters as may be reasonably requested by
the managing underwriter or underwriters; (iii) obtain "cold comfort" letters
and updates thereof in form, scope and substance reasonably satisfactory to the
managing underwriter or underwriters from the independent certified public
accountants of the Company (and, if necessary, any other independent certified
public accountants of any subsidiary of the Company or of any business acquired
by the Company for which financial statements and financial data are, or are
required to be, included or incorporated by reference in the Registration
Statement), addressed to each of the underwriters, such letters to be in
customary form and covering matters of the type customarily covered in "cold
comfort" letters in connection with underwritten offerings of securities
similar to the Preferred Stock and such other matters as reasonably requested
by the managing underwriter or underwriters; and (iv) if an underwriting
agreement is entered into, the same shall contain indemnification provisions
and procedures no less favorable than those set forth in Section 7 hereof (or
such other provisions and procedures acceptable to Holders of a majority of
shares of Registrable Preferred Stock covered by such Registration Statement
and the managing underwriter or underwriters or agents) with respect to all
parties to be indemnified pursuant to said Section. The above shall be done at
each closing under such underwriting agreement, or as and to the extent
required thereunder.
(n) If (1) a Shelf Registration is filed pursuant to Section 3
hereof, or (2) a Prospectus contained in an Exchange Registration Statement
filed pursuant to Section 2 hereof is required to be delivered under the
Securities Act by any Participating Broker-Dealer who seeks to sell Exchange
Preferred Stock during the Applicable Period, make available for inspection by
any selling Holder of such Registrable Preferred Stock being sold, or each such
Participating Broker- Dealer, as the case may be, any underwriter participating
in any such
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disposition of Registrable Preferred Stock, if any, and any attorney,
accountant or other agent retained by any such selling Holder or each such
Participating Broker-Dealer, as the case may be, or underwriter (collectively,
the "Inspectors"), at the offices where normally kept, during reasonable
business hours, all financial and other records, pertinent corporate documents
and instruments of the Company and its subsidiaries (collectively, the
"Records") as shall be reasonably necessary to enable them to exercise any
applicable due diligence responsibilities, and cause the officers, directors
and employees of the Company and its subsidiaries to supply all information
reasonably requested by any such Inspector in connection with such Registration
Statement. Records that the Company determines, in good faith, to be
confidential and any Records that it notifies the Inspectors are confidential
shall not be disclosed by the Inspectors unless (i) the disclosure of such
Records is necessary to avoid or correct a misstatement or omission in such
Registration Statement, (ii) the release of such Records is ordered pursuant to
a subpoena or other order from a court of competent jurisdiction, (iii)
disclosure of such information is, in the reasonable opinion of counsel for any
Inspector, necessary or advisable in connection with any action, claim, suit or
proceeding, directly or indirectly, involving or potentially involving such
Inspector and arising out of, based upon, relating to, or involving this
Agreement or any transactions contemplated hereby or arising hereunder or (iv)
the information in such Records has been made generally available to the public
(other than as a result of an impermissible disclosure or failure to safeguard
by the Inspectors). Each selling holder of such Registrable Preferred Stock and
each such Participating Broker-Dealer will be required to agree that
information obtained by it as a result of such inspections shall be deemed
confidential and shall not be used by it as the basis for any market
transactions in the securities of the Company unless and until such information
is generally available to the public (other than as a result of an
impermissible disclosure or failure to safeguard by such person). Each selling
Holder of such Registrable Preferred Stock and each such Participating
Broker-Dealer will be required to further agree that it will, upon learning
that disclosure of such Records is sought in a court of competent jurisdiction,
give notice to the Company and allow the Company to undertake appropriate
action to prevent disclosure of the Records deemed confidential at the
Company's sole expense.
(o) Comply with all applicable rules and regulations of the SEC and
make generally available to its securityholders
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earning statements satisfying the provisions of Section 11(a) of the Securities
Act and Rule 158 thereunder (or any similar rule promulgated under the
Securities Act) no later than 45 days after the end of any 12-month period (or
90 days after the end of any 12-month period if such period is a fiscal year)
(i) commencing at the end of any fiscal quarter in which Registrable Preferred
Stock is sold to underwriters in a firm commitment or best efforts underwritten
offering and (ii) if not sold to underwriters in such an offering, commencing
on the first day of the first fiscal quarter of the Company after the effective
date of a Registration Statement, which statements shall cover said 12-month
periods.
(p) Upon consummation of an Exchange Offer or a Private Exchange,
obtain an opinion of counsel to the Company, in a form customary for
underwritten transactions, addressed to the Transfer Agent for the benefit of
all Holders of Registrable Preferred Stock participating in the Exchange Offer
or the Private Exchange, as the case may be, that the Exchange Preferred Stock
or Private Exchange Preferred Stock, as the case may be, is duly authorized,
validly issued, fully paid and nonassessable.
(q) If an Exchange Offer or a Private Exchange is to be
consummated, upon delivery of Registrable Preferred Stock by Holders to the
Company (or to such other Person as directed by the Company) in exchange for
Exchange Preferred Stock or Private Exchange Preferred Stock, as the case may
be, the Company shall mark, or cause to be marked, on the certificates
representing such shares of Registrable Preferred Stock that such shares of
Registrable Preferred Stock are being cancelled in exchange for the Exchange
Preferred Stock or the Private Exchange Preferred Stock, as the case may be.
(r) Cooperate with each seller of Registrable Preferred Stock
covered by any Registration Statement and each underwriter, if any,
participating in the disposition of such Registrable Preferred Stock and their
respective counsel in connection with any filings required to be made with the
National Association of Securities Dealers, Inc. (the "NASD").
(s) Provide an indenture trustee for the Exchange Indenture (as
defined in the Purchase Agreement) and cause the Exchange Indenture to be
qualified under the TIA not later than the effective date of the Exchange Offer
or the first Registration Statement relating to the Registrable Preferred
Stock; and in connection therewith, cooperate with the trustee under the
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Exchange Indenture and the Holders of the Registrable Preferred Stock to effect
such changes to such indenture as may be required for such indenture to be so
qualified in accordance with the terms of the TIA; and execute, and use its
reasonable best efforts to cause such trustee to execute, all 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 Exchange Indenture to be so qualified in
a timely manner.
(t) Use its reasonable best efforts to cause the Registrable
Preferred Stock covered by a Registration Statement or the Exchange Preferred
Stock, as the case may be, to be rated with the appropriate rating agencies, if
so requested by the Holders of a majority of shares of Registrable Preferred
Stock covered by such Registration Statement or the Exchange Preferred Stock,
as the case may be, or the managing underwriter or underwriters, if any.
(u) Use its reasonable best efforts to take all other steps
necessary or advisable to effect the registration of the Exchange Preferred
Stock and/or Registrable Preferred Stock covered by a Registration Statement
contemplated hereby.
The Company may require each seller of Registrable Preferred Stock
as to which any registration is being effected to furnish to the Company such
information regarding such seller and the distribution of such Registrable
Preferred Stock as the Company may, from time to time, reasonably request. The
Company may exclude from such registration the Registrable Preferred Stock of
any seller who unreasonably fails to furnish such information within a
reasonable time after receiving such request. Each seller as to which any Shelf
Registration is being effected agrees to furnish promptly to the Company all
information required to be disclosed in order to make the information
previously furnished to the Company by such seller not materially misleading.
Each Holder of Registrable Preferred Stock and each Participating
Broker-Dealer agrees by acquisition of such Registrable Preferred Stock or
Exchange Preferred Stock to be sold by such Participating Broker-Dealer, as the
case may be, that, upon actual receipt of any notice from the Company of the
happening of any event of the kind described in Section 5(c)(ii), 5(c)(iv),
5(c)(v), or 5(c)(vi) hereof, such Holder will forthwith discontinue disposition
of such Registrable Preferred Stock covered by such Registration Statement or
Prospectus or Exchange Preferred Stock to be sold by such Holder or
24
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Participating Broker-Dealer, as the case may be, until such Holder's or
Participating Broker-Dealer's receipt of the copies of the supplemented or
amended Prospectus contemplated by Section 5(k) hereof, or until it is advised
in writing (the "Advice") by the Company that the use of the applicable
Prospectus may be resumed, and has received copies of any amendments or
supplements thereto. In the event the Company shall give any such notice, each
of the Effectiveness Period and the Applicable Period shall be extended by the
number of days during such periods from and including the date of the giving of
such notice to and including the date when each seller of Registrable Preferred
Stock covered by such Registration Statement or Exchange Preferred Stock to be
sold by such Participating Broker-Dealer, as the case may be, shall have
received (x) the copies of the supplemented or amended Prospectus contemplated
by Section 5(k) hereof or (y) the Advice.
6. Registration Expenses
(a) All fees and expenses incident to the performance of or
compliance with this Agreement by the Company shall be borne by the Company
whether or not the Exchange Offer or a Shelf Registration is filed or becomes
effective, including, without limitation, (i) all registration and filing fees
(including, without limitation, (A) fees with respect to filings required to be
made with the NASD in connection with an underwritten offering and (B) fees and
expenses of compliance with state securities or Blue Sky laws (including,
without limitation, reasonable fees and disbursements of counsel in connection
with Blue Sky qualifications of the Registrable Preferred Stock or Exchange
Preferred Stock), (ii) printing expenses, including, without limitation,
expenses of printing certificates for Registrable Preferred Stock or Exchange
Preferred Stock in a form eligible for deposit with The Depository Trust
Company and of printing prospectuses if the printing of prospectuses is
requested by the managing underwriter or underwriters, if any, (iii) messenger,
telephone and delivery expenses, (iv) fees and disbursements of counsel for the
Company and fees and disbursements of special counsel for the sellers of
Registrable Preferred Stock (subject to the provisions of Section 6(b) hereof),
(v) fees and disbursements of all independent certified public accountants
referred to in Section 5(m)(iii) hereof (including, without limitation, the
expenses of any special audit and "cold comfort" letters required by or
incident to such performance), (vi) rating agency fees, (vii) Securities Act
liability insurance, if the Company desires such insurance, (viii) fees and
expenses of all
25
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other Persons retained by the Company, (ix) internal expenses of the Company
(including, without limitation, all salaries and expenses of officers and
employees of the Company performing legal or accounting duties), (x) the
expense of any annual audit, (xi) the fees and expenses incurred in connection
with the listing of the securities to be registered on any securities exchange,
if applicable, and (xii) the expenses relating to printing, word processing and
distributing all Registration Statements, underwriting agreements, securities
sales agreements, indentures and any other documents necessary in order to
comply with this Agreement. Notwithstanding the foregoing, the Holders of any
shares of Preferred Stock being registered shall pay all underwriting
discounts, commissions and placement agent fees attributable to the sale of
such Transfer Restricted Securities.
(b) The Company shall reimburse the Holders of the Registrable
Preferred Stock being registered in a Shelf Registration for the reasonable
fees and disbursements of not more than one counsel (in addition to appropriate
local counsel) chosen by the Holders of a majority of the shares of Registrable
Preferred Stock to be included in such Registration Statement.
7. Indemnification
(a) The Company agrees to indemnify and hold harmless each Holder
of shares of Registrable Preferred Stock and each Participating Broker-Dealer
selling Exchange Preferred Stock during the Applicable Period, the officers and
directors of each such Person, and each Person, if any, who controls any such
Person within the meaning of either Section 15 of the Securities Act or Section
20 of the Exchange Act (each, a "Participant"), from and against any and all
losses, claims, damages and liabilities (including, without limitation, the
reasonable legal fees and other expenses actually incurred in connection with
any suit, action or proceeding or any claim asserted) caused by, arising out of
or based upon any untrue statement or alleged untrue statement of a material
fact contained in any Registration Statement (or any amendment thereto) or
Prospectus (as amended or supplemented if the Company shall have furnished any
amendments or supplements thereto) or any preliminary prospectus, or caused by,
arising out of or based upon any omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, except insofar as such
26
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losses, claims, damages or liabilities are caused by any untrue statement or
omission or alleged untrue statement or omission made in reliance upon and in
conformity with information relating to any Participant furnished to the
Company in writing by such Participant expressly for use therein; provided,
however, that the Company will not be required to indemnify a Participant if
such untrue statement or omission or alleged untrue statement or omission was
contained or made in any preliminary prospectus and corrected in the Prospectus
or any amendment or supplement thereto and it is established in the related
proceeding that such Participant failed to deliver or provide a copy of the
Prospectus (as amended or supplemented) to such Person with or prior to the
confirmation of the sale of such Registrable Preferred Stock or Exchange
Preferred Stock sold to such Person if required by applicable law, unless such
failure to deliver or provide a copy of the Prospectus (as amended or
supplemented) was a result of noncompliance by the Company with Section 5 of
this Agreement; provided further that the foregoing proviso shall not limit the
Company's obligation to indemnify a Participant for any other untrue statement
or omission or alleged untrue statement or omission of a material fact in the
Prospectus that was the subject matter of the related proceeding.
(b) Each Participant agrees, severally and not jointly, to
indemnify and hold harmless the Company, its directors and officers who sign
the Registration Statement and each Person who controls the Company 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 Company to each
Participant, but only (i) with reference to information relating to such
Participant furnished to the Company in writing by such Participant expressly
for use in any Registration Statement or Prospectus, any amendment or
supplement thereto, or any preliminary prospectus or (ii) with respect to any
untrue statement or representation made by such Participant in writing to the
Company. The liability of any Participant under this paragraph shall in no
event exceed the proceeds received by such Participant from sales of
Registrable Preferred Stock or Exchange Preferred Stock giving rise to such
obligations.
(c) If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against
any Person in respect of which indemnity may be sought pursuant to either of
the two preceding paragraphs, such Person (the "Indemnified Person")
27
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shall promptly notify the Person against whom such indemnity may be sought (the
"Indemnifying Person") in writing, and the Indemnifying Person, upon request of
the Indemnified Person, shall retain counsel reasonably satisfactory to the
Indemnified Person to represent the Indemnified Person and any others the
Indemnifying Person may reasonably designate in such proceeding and shall pay
the reasonable fees and expenses actually incurred by such counsel related to
such proceeding; provided, however, that the failure to so notify the
Indemnifying Person shall not relieve it of any obligation or liability which
it may have hereunder or otherwise (unless and to the extent that it did not
otherwise learn of such action or claim and such omission results in the
forfeiture by the Indemnifying Person of substantial rights and defenses). In
any such proceeding, any Indemnified Person shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the expense
of such Indemnified Person unless (i) the Indemnifying Person and the
Indemnified Person shall have mutually agreed in writing to the contrary, (ii)
the Indemnifying Person has failed to retain counsel reasonably satisfactory to
the Indemnified Person or (iii) the named parties in any such proceeding
(including any impleaded parties) include both the Indemnifying Person and the
Indemnified Person and the Indemnified Person shall have been advised by
counsel that representation of both parties by the same counsel would be
inappropriate under applicable standards of professional conduct due to
differing interests between them. It is understood that, unless there exists a
conflict among Indemnified Persons, the Indemnifying Person shall not, in
connection with any one such proceeding or separate but substantially similar
related proceeding in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the fees and expenses of more than
one separate firm (in addition to any local counsel) for all Indemnified
Persons, and that all such fees and expenses shall be reimbursed promptly as
they are incurred. Any such separate firm for the Participants and such control
Persons of Participants shall be designated in writing by Participants who sold
a majority of shares of Registrable Preferred Stock and Exchange Preferred
Stock sold by all such Participants and any such separate firm for the Company,
its directors, its officers and such control Persons of the Company shall be
designated in writing by the Company. The Indemnifying Person shall not be
liable for any settlement of any proceeding effected without its prior written
consent (which consent shall not be unreasonably withheld or delayed), but if
settled with such consent or if there be a final non-appealable judgment for
the plaintiff for which the Indemnified Person is
28
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entitled to indemnification pursuant to this Agreement, the Indemnifying Person
agrees to indemnify and hold harmless each Indemnified Person from and against
any loss or liability by reason of such settlement or judgment. No Indemnifying
Person shall, without the prior written consent of the Indemnified Person,
effect any settlement or compromise of any pending or threatened proceeding in
respect of which any Indemnified Person is or could have been a party, or
indemnity could have been sought hereunder by such Indemnified Person, unless
such settlement (A) includes an unconditional written release of such
Indemnified Person, in form and substance reasonably satisfactory to such
Indemnified Person, from all liability on claims that are the subject matter of
such proceeding and (B) does not include any statement as to an admission of
fault, culpability or failure to act by or on behalf of any Indemnified Person.
(d) If the indemnification provided for in the first and second
paragraphs of this Section 7 is for any reason unavailable to, or insufficient
to hold harmless, an Indemnified Person in respect of any losses, claims,
damages or liabilities referred to therein, then each Indemnifying Person under
such paragraphs, in lieu of indemnifying such Indemnified Person thereunder and
in order to provide for just and equitable contribution, shall contribute to
the amount paid or payable by such Indemnified Person as a result of such
losses, claims, damages or liabilities in such proportion as is appropriate to
reflect (i) the relative benefits received by the Indemnifying Person or
Persons on the one hand and the Indemnified Person or Persons on the other from
the offering of the Preferred Stock or (ii) if the allocation provided by the
foregoing clause (i) is not permitted by applicable law, not only such relative
benefits but also the relative fault of the Indemnifying Person or Persons on
the one hand and the Indemnified Person or Persons on the other in connection
with the statements or omissions or alleged statements or omissions that
resulted in such losses, claims, damages or liabilities (or actions in respect
thereof) as well as any other relevant equitable considerations. The relative
fault of the parties shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company on the one hand or such Participant or such other
Indemnified Person, as the case may be, on the other, the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
29
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such statement or omission, and any other equitable considerations appropriate
in the circumstances.
(e) The parties agree that it would not be just and equitable if
contribution pursuant to this Section 7 were determined by pro rata allocation
(even if the Participants were treated as one entity for such purpose) or by
any other method of allocation that does not take account of the equitable
considerations referred to in the immediately preceding paragraph. The amount
paid or payable by an Indemnified Person as a result of the losses, claims,
damages and liabilities referred to in the immediately preceding paragraph
shall be deemed to include, subject to the limitations set forth above, any
reasonable legal or other expenses actually incurred by such Indemnified Person
in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 7, in no event shall a
Participant be required to contribute any amount in excess of the amount by
which proceeds received by such Participant from sales of Registrable Preferred
Stock or Exchange Preferred Stock, as the case may be, exceeds the amount of
any damages that such Participant has otherwise been required to pay or has
paid by reason of such untrue or alleged untrue statement or omission or
alleged omission. No Person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any Person who was not guilty of such fraudulent
misrepresentation.
(f) The indemnity and contribution agreements contained in this
Section 7 will be in addition to any liability that the Indemnifying Persons
may otherwise have to the Indemnified Persons referred to above.
8. Rules 144 and 144A
The Company covenants that it will file the reports required to be
filed by it under the Securities Act and the Exchange Act and the rules and
regulations adopted by the SEC thereunder in a timely manner in accordance with
the requirements of the Securities Act and the Exchange Act and, if at any time
the Company is not required to file such reports, it will, upon the request of
any Holder of Registrable Preferred Stock, make publicly available annual
reports and such information, documents and other reports of the type specified
in Sections 13 and 15(d) of the Exchange Act. The Company further covenants for
so long as any Registrable Preferred Stock remain outstanding, to make
available to any Holder or beneficial
30
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owner of Registrable Preferred Stock in connection with any sale thereof and
any prospective purchaser of such Registrable Preferred Stock from such Holder
or beneficial owner, the information required by Rule 144A(d)(4) under the
Securities Act in order to permit resales of such Registrable Preferred Stock
pursuant to Rule 144A.
9. Underwritten Registrations
If any of the Registrable Preferred Stock covered by any Shelf
Registration is to be sold in an underwritten offering, the investment banker
or investment bankers and manager or managers that will manage the offering
will be selected by the Holders of a majority of such Registrable Preferred
Stock included in such offering and reasonably acceptable to the Company.
No Holder of Registrable Preferred Stock may participate in any
underwritten registration hereunder unless such Holder (a) agrees to sell such
Holder's Registrable Preferred Stock on the basis provided in any underwriting
arrangements approved by the Persons entitled hereunder to approve such
arrangements and (b) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents required
under the terms of such underwriting arrangements.
10. Registration of Transfers and Exchanges
(a) Transfer and Exchange of Certificated Shares.
When shares of Preferred Stock or Private Exchange Preferred
Stock that are represented by definitive certificates ("Certificated Shares")
are presented to the Transfer Agent with a request:
(i) to register the transfer of the Certificated Shares;
or
(ii) to exchange such Certificated Shares for an equal
number of Certificated Shares,
the Holders hereby acknowledge that the Transfer Agent shall register the
transfer or make the exchange as requested if the requirements under this
Section 10(a) hereof for such transactions are met; provided, however, that the
Certificated Shares presented or surrendered for registration of transfer or
exchange:
31
-29-
(x) shall be duly endorsed or accompanied by a written instruction of
transfer in form satisfactory to the Company and the Transfer
Agent, duly executed by the holder thereof or by his attorney, duly
authorized in writing; and
(y) in the case of Registrable Preferred Stock, such shares shall be
accompanied by the following additional information and documents,
as applicable:
(A) if such shares are being delivered to the Transfer Agent by a
Holder for registration in the name of such Holder, without
transfer, a certification from such Holder to that effect (in
substantially the form of Exhibit A hereto); or
(B) if such shares are being transferred to a
qualified institutional buyer (as defined in
Rule 144A under the Securities Act, a "QIB") in
accordance with Rule 144A under the Securities
Act or pursuant to an exemption from
registration in accordance with Rule 144 or
Regulation S under the Securities Act, a
certification to that effect (in substantially
the form of Exhibit A hereto); or
(C) if such shares are being transferred to an institutional
"accredited investor" within the meaning of subparagraph
(a)(1), (a)(2), (a)(3) or (a)(7) of Rule 501 under the
Securities Act, delivery of a Certificate of Transfer in the
form of Exhibit B hereto and an opinion of counsel and/or
other information satisfactory to the Company to the effect
that such transfer is in compliance with the Securities Act;
or
(D) if such shares are being transferred in reliance
on another exemption from the registration
requirements of the Securities Act, a
certification to that effect (in substantially
the form of Exhibit A hereto) and an opinion of
counsel reasonably acceptable to the Company to
the effect that such transfer is in compliance
with the Securities Act.
(b) Restrictions on Transfer of Certificated Shares for a
Beneficial Interest in Global Shares. Certificated
32
-30-
Shares may not be exchanged for a beneficial interest in one or more global
certificates representing all shares of Registrable Preferred Stock held by the
Depositary (the "Global Certificates") except upon satisfaction of the
requirements set forth below. Upon receipt by the Transfer Agent of
Certificated Shares, duly endorsed or accompanied by appropriate instruments of
transfer, in form satisfactory to the Transfer Agent, together with:
(A) certification, substantially in the form of Exhibit A hereto,
that such Certificated Shares are being transferred to a QIB
in accordance with Rule 144A under the Securities Act; and
(B) written instructions directing the Transfer Agent to make, or
to direct the Depositary to make, an endorsement on the
Global Certificate to reflect an increase in the aggregate
number of shares of Registrable Preferred Stock represented
by the Global Certificate,
then the Transfer Agent shall cancel the certificate representing such
Certificated Shares and cause, or direct the Depositary to cause, in accordance
with the standing instructions and procedures existing between the Depositary
and the Transfer Agent, the number of shares of Registrable Preferred Stock
represented by the Global Certificates to be increased accordingly. If no
Global Certificate is then outstanding, the Company shall issue and the
Transfer Agent shall authenticate a new Global Certificate in the appropriate
amount.
(c) Transfer and Exchange of Global Certificates. The transfer and
exchange of Global Certificates or beneficial interests therein shall be
effected through the Depositary, in accordance with the procedures of the
Depositary therefor.
(d) Transfer of a Beneficial Interest in a Global Certificate for
Certificated Shares.
(i) Any person having a beneficial interest in a Global Certificate may
upon request exchange such beneficial interest for Certificated
Shares. Upon receipt by the
33
-31-
Transfer Agent of written instructions or such other form of
instructions as is customary for the Depositary from the Depositary
or its nominee on behalf of any person having a beneficial interest
in a Global Certificate and upon receipt by the Transfer Agent of a
written order or such other form of instructions as is customary
for the Depositary or the person designated by the Depositary as
having such a beneficial interest containing registration
instructions and, in the case of any such transfer or exchange of
Registrable Preferred Stock, the following additional information
and documents:
(A) if such beneficial interest is being transferred to the
person designated by the Depositary as being the beneficial
owner, a certification from such person to that effect (in
substantially the form of Exhibit A hereto); or
(B) if such beneficial interest is being transferred to a QIB in
accordance with Rule 144A under the Securities Act or
pursuant to an exemption from registration in accordance with
Rule 144 or Regulation S under the Securities Act, a
certification to that effect (in substantially the form of
Exhibit A hereto); or
(C) if such beneficial interest is being transferred to an
institutional "accredited investor" within the meaning of
subparagraphs (a)(1), (a)(2), (a)(3) or (a)(7) of Rule 501
under the Securities Act, delivery of a Certificate of
Transfer in the form of Exhibit B hereto and an opinion of
counsel and/or other information satisfactory to the Company
to the effect that such transfer is in compliance with the
Securities Act; or
(D) if such beneficial interest is being transferred
in reliance on another exemption from the
registration requirements of the Securities Act,
a certification to that effect (in substantially
the form of Exhibit A hereto) and an opinion of
counsel from the transferee or transferor
reasonably acceptable to the Company to the
effect that such transfer is in compliance with
the Securities Act,
then the Transfer Agent will cause, in accordance with the standing
instructions and procedures existing between the Depositary and the
Transfer Agent, the aggregate number of shares of Registrable
Preferred Stock represented by the Global Certificates
34
-32-
to be reduced and, following such reduction, the Company will
execute and, upon receipt of an authentication order in the form of
an Officers' Certificate, the Transfer Agent will authenticate and
deliver to the transferee a certificate representing such
Certificated Shares.
(ii) Certificated Shares issued in exchange for a beneficial interest in
a Global Certificate pursuant to this Section 10(d) shall be
registered in such names and for such number of shares of
Registrable Preferred Stock as the Depositary, pursuant to
instructions from its direct or indirect participants or otherwise,
shall instruct the Transfer Agent in writing. The Transfer Agent
shall deliver such Certificated Shares to the persons in whose
names such shares of Registrable Preferred Stock are so registered.
(e) Restrictions on Transfer and Exchange of Global Certificates. A
Global Certificate may not be transferred as a whole except by the Depositary
to a nominee of the Depositary or by a nominee of the Depositary to the
Depositary or another nominee of the Depositary or by the Depositary or any
such nominee to a successor Depositary or a nominee of such successor
Depositary.
(f) Authentication of Certificated Shares in Absence
of Depositary. If at any time:
(i) the Depositary for the shares of Registrable Preferred Stock
notifies the Company that the Depositary is unwilling or unable to
continue as Depositary for the Global Certificates and a successor
Depositary for the Global Certificates is not appointed by the
Company within 90 days after delivery of such notice; or
(ii) the Company, at its sole discretion, notifies the Transfer Agent
in writing that it elects to cause the issuance of Certificated
Shares,
then the Company will execute, and the Transfer Agent, upon receipt of an
Officers' Certificate requesting the authentication and delivery of
Certificated Shares, will authenticate and deliver certificates representing
Certificated Shares, in an aggregate number equal to the aggregate number of
certificates
35
-33-
representing Certificated Shares represented by the Global Certificates, in
exchange for such Global Certificates.
(g) Legends.
(i) Except as permitted by the following paragraph (ii), each Global
Certificate and each certificate representing Certificated Shares
shall bear a legend substantially in the form attached hereto as
Exhibit C.
(ii) Upon the shares of Private Exchange Preferred Stock
ceasing to be Registrable Preferred Stock:
(A) in the case of any certificate that represents
Certificated Shares, the Transfer Agent shall
permit the holder thereof to exchange such
certificate for a certificate representing such
Certificated Shares that does not bear the first
paragraph of the legend referred to above and
rescind any related restriction on the transfer;
and
(B) any such shares represented by a Global Certificate shall not
be subject to the provisions set forth in (i) above (such
sales or transfers being subject only to the provisions
of Section 10(c) hereof).
(h) Cancellation and/or Adjustment of a Global Certificate. At such
time as all beneficial interests in a Global Certificate have either been
exchanged for certificates representing Certificated Shares, redeemed,
repurchased or cancelled, such Global Certificates shall be returned to or
retained and cancelled by the Transfer Agent. At any time prior to such
cancellation, if any beneficial interest in a Global Certificate is exchanged
for certificates representing Certificated Shares, redeemed, repurchased or
cancelled, the number of shares represented by such Global Certificates shall
be reduced and an endorsement shall be made on such Global Certificates, by the
Transfer Agent to reflect such reduction.
(i) Obligations with Respect to Transfers and
Exchanges of Certificated Shares.
(i) To permit registrations of transfers and exchanges, the Company
shall execute, at the Transfer Agent's request, and the Transfer
Agent shall authenticate
36
-34-
certificates representing Certificated Shares and Global
Certificates.
(ii) All certificates representing Certificated Shares and Global
Certificates issued upon any registration, transfer or exchange of
certificates representing Certificated Shares or Global
Certificates shall be the valid obligations of the Company,
entitled to the same benefits as the shares surrendered upon the
registration of transfer or exchange.
(iii) Prior to due presentment for registration of transfer of any shares
of Registrable Preferred Stock, the Transfer Agent and the Company
may deem and treat the person in whose name any such shares are
registered as the absolute owner of such shares, and neither the
Transfer Agent nor the Company shall be affected by notice to the
contrary.
11. Miscellaneous
(a) No Inconsistent Agreements. The Company has not, as of the
date hereof, and the Company shall not, after the date of this Agreement, enter
into any agreement with respect to any of its securities that is inconsistent
with the rights granted to the Holders of Registrable Preferred Stock in this
Agreement or otherwise conflicts with the provisions hereof. The Company has
not entered and will not enter into any agreement with respect to any of its
securities that will grant to any Person piggy-back registration rights with
respect to a Registration Statement.
(b) Adjustments Affecting Registrable Preferred Stock. The Company
shall not, directly or indirectly, take any action with respect to the
Registrable Preferred Stock as a class that would adversely affect the ability
of the Holders of Registrable Preferred Stock to include such Registrable
Preferred Stock in a registration undertaken pursuant to this Agreement.
(c) Amendments and Waivers. The provisions of this Agreement may
not be amended, modified or supplemented, and waivers or consents to departures
from the provisions hereof may not be given, otherwise than with the prior
written consent of (A) the Holders of not less than a majority of the then
outstanding shares of Registrable Preferred Stock and (B) in circumstances that
would adversely affect the Participating
37
-35-
Broker-Dealers, the Participating Broker-Dealers holding not less than a
majority of shares of Exchange Preferred Stock held by all Participating
Broker-Dealers; provided, however, that Section 7 and this Section 10(c) may
not be amended, modified or supplemented without the prior written consent of
each Holder and each Participating Broker-Dealer (including any person who was
a Holder or Participating Broker-Dealer of Registrable Preferred Stock or
Exchange Preferred Stock, as the case may be, disposed of pursuant to any
Registration Statement). 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 Registrable Preferred Stock whose
securities are being sold pursuant to a Registration Statement and that does
not directly or indirectly affect, impair, limit or compromise the rights of
other Holders of Registrable Preferred Stock may be given by Holders of at
least a majority of shares of the Registrable Preferred Stock being sold by
such Holders pursuant to such Registration Statement; provided, however, that
the provisions of this sentence may not be amended, modified or supplemented
except in accordance with the provisions of the immediately preceding sentence.
(d) Notices. All notices and other communications
provided for or permitted hereunder shall be made in writing by hand-delivery,
registered first-class mail, next-day air courier or facsimile:
1. if to a Holder of the Registrable Preferred Stock or any
Participating Broker-Dealer, at the most current address of such Holder
or Participating Broker-Dealer, as the case may be, on the stock books of
the Company with a copy in like manner to the Initial Purchasers as
follows:
BT Securities Corporation
Credit Suisse First Boston Corporation
c/o BT Securities Corporation
One Bankers Trust Plaza
130 Liberty Street
New York, New York 10006
Facsimile No: (212) 250-72001
Attention: Corporate Finance
Department
38
-36-
with a copy to:
Cahill Gordon & Reindel
80 Pine Street
New York, New York 10005
Facsimile No: (212) 269-5420
Attention: Helene R. Banks, Esq.
2. if to the Initial Purchasers, at the
addresses specified in Section 11(d)(1);
3. if to the Company, at the addresses as
follows:
Capstar Broadcasting Partners, Inc.
600 Congress Avenue
Suite 1400
Austin, Texas 75243
Facsimile No: (512) 477-7388
Attention: R. Steven Hicks
with copies to:
Vinson & Elkins LLP
3700 Trammell Crow Center
2001 Ross Avenue
Dallas, Texas 75201-2975
Facsimile No: (214) 220-7716
Attention: Michael D. Wortley, Esq.
All such notices and communications shall be deemed to have been
duly given: when delivered by hand, if personally delivered; five business days
after being deposited in the mail, postage prepaid, if mailed; one business day
after being timely delivered to a next-day air courier; and when receipt is
acknowledged by the addressee, if sent by facsimile.
(e) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the
parties hereto, including the Holders; provided, however, that this Agreement
shall not inure to the benefit of or be binding upon a successor or assign of a
Holder unless and to the extent such successor or assign holds Registrable
Preferred Stock.
(f) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in
39
-37-
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement.
(g) Headings. The headings in this Agreement are for convenience
of reference only and shall not limit or otherwise affect the meaning hereof.
(h) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO
CONTRACTS MADE AND PERFORMED WHOLLY WITHIN THE STATE OF NEW YORK, WITHOUT
REGARD TO PRINCIPLES OF CONFLICTS OF LAW. EACH OF THE PARTIES HERETO AGREES TO
SUBMIT TO THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK IN ANY ACTION
OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT.
(i) Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction to
be invalid, illegal, void or unenforceable, the remainder of the terms,
provisions, covenants and restrictions set forth herein shall remain in full
force and effect and shall in no way be affected, impaired or invalidated, and
the parties hereto shall use their reasonable best efforts to find and employ
an alternative means to achieve the same or substantially the same result as
that contemplated by such term, provision, covenant or restriction. It is
hereby stipulated and declared to be the intention of the parties that they
would have executed the remaining terms, provisions, covenants and restrictions
without including any of such that may be hereafter declared invalid, illegal,
void or unenforceable.
(j) Securities Held by the Company or Its Affiliates. Whenever the
consent or approval of Holders of a specified percentage of shares of
Registrable Preferred Stock is required hereunder, Registrable Preferred Stock
held by the Company or its affiliates (as such term is defined in Rule 405
under the Securities Act) shall not be counted in determining whether such
consent or approval was given by the Holders of such required percentage.
(k) Third Party Beneficiaries. Holders of Registrable Preferred
Stock and Participating Broker-Dealers are intended third party beneficiaries
of this Agreement and this Agreement may be enforced by such Persons.
40
-38-
(l) Entire Agreement. This Agreement, together with the Purchase
Agreement, is intended by the parties as a final and exclusive statement of the
agreement and understanding of the parties hereto in respect of the subject
matter contained herein and therein and any and all prior oral or written
agreements, representations, or warranties, contracts, understandings,
correspondence, conversations and memoranda between the Initial Purchasers on
the one hand and the Company on the other, or between or among any agents,
representatives, parents, subsidiaries, affiliates, predecessors in interest or
successors in interest with respect to the subject matter hereof and thereof
are merged herein and replaced hereby.
41
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first written above.
CAPSTAR BROADCASTING PARTNERS, INC.
By: /s/ WILLIAM S. BANOWSKY, JR.
-------------------------------------------
Name: William S. Banowsky, Jr.
-------------------------------------
Title: Executive Vice President
------------------------------------
BT SECURITIES CORPORATION
By: /s/ DAVID F. JACOBS
-------------------------------------------
Name: David F. Jacobs
-------------------------------------
Title: Associate
------------------------------------
CREDIT SUISSE FIRST BOSTON
CORPORATION
By: /s/ KRISTEN M. ALLEN
-------------------------------------------
Name: Kristen M. Allen
-------------------------------------
Title: Managing Director
------------------------------------
42
EXHIBIT A
CERTIFICATE TO BE DELIVERED UPON EXCHANGE
OR REGISTRATION OF TRANSFER OF REGISTRABLE PREFERRED STOCK
Re: Shares of Senior Exchangeable Preferred Stock
(the "Shares") of Capstar Broadcasting Partners, Inc.
This Certificate relates to ____ Shares held in* ___ book-entry or*
_______ certificated form by ______ (the "Transferor").
The Transferor:*
[ ] has requested the Transfer Agent by written order to deliver in
exchange for its beneficial interest in the Global Certificate held by the
Depositary one or more certificates in definitive, registered form an aggregate
number equal to its beneficial interest in such Global Certificate (or the
portion thereof indicated above); or
[ ] has requested the Transfer Agent by written order to exchange or
register the transfer of one or more certificates representing Shares.
In connection with such request and in respect of each such Share,
the Transferor does hereby certify that Transferor is familiar with the
Registration Rights Agreement relating to the above captioned Shares and the
restrictions on transfers thereof as provided in Section 10 of such
Registration Rights Agreement, and that the transfer of these Shares does not
require registration under the Securities Act of 1933, as amended (the
"Securities Act") because*:
[ ] Such Shares are being acquired for the Transferor's own account,
without transfer (in satisfaction of Section 10 (a)(y)(A) or Section
10(d)(i)(A) of the Registration Rights
Agreement).
[ ] Such Shares are being transferred to a qualified institutional buyer
(as defined in Rule 144A under the Securities Act), in reliance on Rule 144A or
in accordance with Regulation S under the Securities Act.
[ ] Such Shares are being transferred in accordance with Rule 144 under
the Securities Act.
43
-2-
[ ] Such Shares are being transferred in reliance on and in compliance
with an exemption from the registration requirements of the Securities Act,
other than Rule 144A or Rule 144 or Regulation S under the Securities Act. An
opinion of counsel to the effect that such transfer does not require
registration under the Securities Act accompanies this Certificate.
-------------------------------
[INSERT NAME OF TRANSFEROR]
By:
----------------------------
Date:
---------------------
*Check applicable box.
44
EXHIBIT B
Certificate of Transfer
Capstar Broadcasting Partners, Inc.
600 Congress Avenue
Suite 1400
Austin, Texas 78701
Ladies and Gentlemen:
In connection with our proposed purchase of shares of Senior
Exchangeable Preferred Stock, par value $.01 per share (the "Securities"), of
Capstar Broadcasting Partners, Inc. (the "Company"), we confirm that:
1. We understand that the Securities have not been registered under
the Securities Act of 1933, as amended (the "Securities Act") and, unless
so registered, may not be sold except as permitted in the following
sentence. We agree on our own behalf and on behalf of any investor
account for which we are purchasing Securities to offer, sell or
otherwise transfer such Securities while they are Registrable Preferred
Stock within the meaning of the Registration Rights Agreement to which
this certificate is an exhibit only (a) to the Company or any of its
subsidiaries, (b) pursuant to a registration statement which has been
declared effective under the Securities Act, (c) so long as the
Securities are eligible for resale pursuant to Rule 144A, under the
Securities Act, to a person we reasonably believe is a "qualified
institutional buyer" under Rule 144A (a "QIB") that purchases for its own
account or for the account of a QIB and to whom notice is given that the
transfer is being made in reliance on Rule 144A, (d) pursuant to offers
and sales that occur outside the United States within the meaning of
Regulation S under the Securities Act, (e) to an institutional
"accredited investor" within the meaning of subparagraphs (a)(1), (2),
(3) or (7) of Rule 501 under the Securities Act that is purchasing for
his own account or for the account of such an institutional "accredited
investor," or (f) pursuant to any other available exemption from the
registration requirements of the Securities Act, subject in each of the
foregoing cases to any requirement of law that the disposition of our
property or the property of such investor account or accounts be at all
times within our or their control and to compliance with any applicable
state securities laws. The foregoing restrictions on resale will
45
-2-
not apply after the Securities are no longer Registrable Preferred Stock.
We understand that the Securities purchased by us will bear a legend to
the foregoing effect.
2. We are an institutional "accredited investor" (as defined in
Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act)
and we are acquiring the Securities for investment purposes and not with
a view to, or for offer or sale in connection with, any distribution in
violation of the Securities Act and we have such knowledge and experience
in financial and business matters as to be capable of evaluating the
merits and risks of our investment in the Securities, and we and any
accounts for which we are acting are each able to bear the economic risk
of our or its investment for an indefinite period.
3. We are acquiring the Securities purchased by us for our own
account or for one or more accounts (each of which is an institutional
"accredited investor") as to each of which we exercise sole investment
discretion.
4. You and your counsel are entitled to rely upon this letter and
you are irrevocably authorized to produce this letter or a copy hereof to
any interested party in any administrative or legal proceeding or
official inquiry with respect to the matters covered hereby.
Very truly yours,
--------------------------------------
(Name of Purchaser)
By:
----------------------------------
Date:
--------------------------------
Upon transfer the Securities would be registered in the name of the
new beneficial owner as follows:
Name:
------------------------------
Address:
---------------------------
Taxpayer ID Number:
----------------
46
EXHIBIT C
[LEGENDS]
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER
THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO
OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE "RESALE
RESTRICTION TERMINATION DATE") WHICH IS TWO YEARS AFTER THE LATER OF THE
ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE ISSUER OR ANY
AFFILIATE OF THE ISSUER WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF
SUCH SECURITY), ONLY (A) TO CAPSTAR BROADCASTING PARTNERS, INC. (THE "ISSUER"),
OR ANY SUBSIDIARY THEREOF, (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS
BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE
SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT
REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE
144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE
TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND
SALES THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S
UNDER THE SECURITIES ACT, (E) TO AN INSTITUTIONAL ACCREDITED INVESTOR WITHIN
THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT THAT IS
ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN
INSTITUTIONAL ACCREDITED INVESTOR FOR INVESTMENT PURPOSES AND NOT WITH A VIEW
TO OR FOR OFFER OR SALE IN CONNECTION WITH ANY DISTRIBUTION IN VIOLATION OF THE
SECURITIES ACT, OR (F) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE ISSUER'S AND
THE TRANSFER AGENT'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT
TO CLAUSES (D), (E) AND (F) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL,
CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND IN THE
CASE OF THE FOREGOING CAUSE (E), A CERTIFICATE OF TRANSFER IN THE FORM
APPEARING ON THE OTHER SIDE OF THIS SECURITY IS COMPLETED AND DELIVERED BY THE
TRANSFEROR TO THE ISSUER AND THE TRANSFER AGENT, THIS LEGEND WILL BE REMOVED
UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE THE BENEFITS OF A
REGISTRATION RIGHTS AGREEMENT DATED AS OF JUNE 17,
47
-2-
1997 AMONG THE COMPANY, BT SECURITIES CORPORATION AND CS FIRST BOSTON
CORPORATION, A COPY OF WHICH IS ON FILE WITH THE SECRETARY OF THE COMPANY. NO
TRANSFER, SALE, ASSIGNMENT, PLEDGE, HYPOTHECATION OR OTHER DISPOSITION OF THE
SECURITIES REPRESENTED BY THIS CERTIFICATE MAY BE MADE EXCEPT IN ACCORDANCE
WITH THE PROVISIONS OF SUCH REGISTRATION RIGHTS AGREEMENT.
[THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE REGISTRATION
RIGHTS AGREEMENT AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A NOMINEE OF
A DEPOSITORY OR A SUCCESSOR DEPOSITORY. THIS SECURITY IS NOT EXCHANGEABLE FOR
SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITORY OR ITS
NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE REGISTRATION
RIGHTS AGREEMENT, AND NO TRANSFER OF THIS SECURITY (OTHER THAN A TRANSFER OF
THIS SECURITY AS A WHOLE BY THE DEPOSITORY TO A NOMINEE OF THE DEPOSITORY OR BY
A NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY OR ANOTHER NOMINEE OF THE
DEPOSITORY) MAY BE REGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN
THE REGISTRATION RIGHTS AGREEMENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE COMPANY OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.](1)
- -------------------------
(1) This paragraph is to be included only if the certificate
is in global form.