1
EXHIBIT 99.9
REGISTRATION RIGHTS AGREEMENT
Dated as of [ ], 1996
by and among
OUTDOOR SYSTEMS, INC.
and
THE GUARANTORS
named herein
and
THE HOLDERS
named herein
______________________________
$240,000,000
SENIOR SUBORDINATED NOTES DUE 2006
$165,000,000
SENIOR INCREASING RATE CUMULATIVE PREFERRED STOCK, SERIES A
2
TABLE OF CONTENTS
Page
1. Definitions ................................. 1
2. Shelf Registration .......................... 5
3. Demand Notice ............................... 7
4. Exchange Offer Registration ................. 8
5. Piggy-Back Registration ..................... 10
6. Additional Interest ......................... 12
7. Underwritten Registrations .................. 13
8. Registration Procedures ..................... 14
9. Registration Expenses ....................... 22
10. Indemnification ............................. 23
11. Rule 144 and 144A ........................... 27
12. Miscellaneous ............................... 28
(a) No Inconsistent Agreements ........... 28
(b) Adjustments Affecting Registrable
Securities ........................... 28
(c) Amendments and Waivers ............... 28
(d) Notices .............................. 29
(e) Successors and Assigns ............... 30
(f) Counterparts ......................... 30
(g) Headings ............................. 30
(h) Governing Law ........................ 30
(i) Severability ......................... 30
(j) Joint and Several Obligations ........ 31
(k) Securities Held by the Company or
Its Affiliates........................ 31
-i-
3
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is made and entered
into as of [ ], 1996, by and among Outdoor Systems, Inc. (the
"Company"), a Delaware corporation, and OS Baseline, Inc., an Arizona
corporation, Outdoor Systems Painting, Inc., an Arizona corporation, OS
Advertising of Texas Painting, Inc., a Texas corporation, New York Subways
Advertising Co., Inc., an Arizona corporation, Decade Communications Group,
Inc., a Colorado corporation, and Bench Advertising Company of Colorado, Inc.,
a Colorado corporation (collectively, the "Guarantors"); and the Noteholders
(defined below) and the Stockholders (as defined below), in each case, whose
signatures appear on the execution pages of this Agreement (collectively with
any other Noteholders or Stockholders who become parties to this Agreement, the
"Holders"). The Company and the Guarantors are hereinafter collectively
referred to as the "Issuers." This Agreement is for the benefit of the Holders
executing this Agreement and for the benefit of their direct and indirect
transferees.
The parties hereby agree as follows:
1. Definitions
As used in this Agreement, the following terms shall have the following
meanings:
Appropriate Registrant: The Issuers in the case of the Registrable Notes
or the Company in the case of the Registrable Preferred Stock.
Additional Interest: See Section 6.
Advice: See the last paragraph of Section 8.
Agreement: See the first introductory paragraph to this Agreement.
Business Day: Any day excluding Saturday, Sunday and any day which is a
legal holiday under the laws of New York, New York or is a day on which banking
institutions therein located are authorized or required by law or other
governmental action to close.
Certificate of Designations: The Certificate of Designations of
Preferences and Rights pursuant to which the
4
-2-
Preferred Stock is issued, as amended or supplemented from time to time in
accordance with the terms thereof.
Company: See the first introductory paragraph to this Agreement.
Credit Agreement: The Senior Subordinated Credit Agreement, dated as of
July 9, 1996, by and among the Company, the Guarantors, Canadian Imperial Bank
of Commerce, as agent and the financial institutions parties thereto, as
lenders.
Demand Notice: See Section 3(a).
DTC: See Section 8(i).
Event Date: See Section 6(b).
Exchange Effectiveness Date: 90 days after the Exchange Filing Date.
Exchange Effectiveness Period: See Section 4.
Exchange Filing Date: 30 days after the date of the Demand Notice.
Exchange Offer Registration: See Section 4.
Exchange Notes: See Section 4.
Exchange Registration Statement: See Section 4.
Guarantors: See the first introductory paragraph to this Agreement.
Holders: See the first introductory paragraph to this Agreement.
Indemnified Person: See Section 10(c).
Indemnifying Person: See Section 10(c).
Indenture: The Indenture to be entered into by and among the Company, the
Guarantors and an indenture trustee, pursuant to which the Notes will be
issued, as amended or supplemented from time to time in accordance with the
terms thereof.
Inspectors: See Section 8(p).
5
-3-
Issuers: See the first introductory paragraph to this Agreement.
Losses: See Section 10.
NASD: See Section 8(n).
Notes: The $240,000,000 aggregate principal amount of Senior Subordinated
Notes due 2006 of the Company being issued pursuant to the Credit Agreement and
the Indenture.
Noteholders: The holders of Notes.
Participant: See Section 10(a).
Piggy-Back Registration: See Section 5(a).
Preferred Stock: Up to $225,000,000 aggregate liquidation value of Senior
Increasing Rate Cumulative Preferred Stock, Series A, par value $1.00 per share
of the Company issued pursuant to the Purchase Agreement and the Certificate of
Designations.
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, with respect to the terms of the offering of any portion
of the Registrable Securities covered by such Registration Statement, 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: The Securities Purchase Agreement, dated as of July
9, 1996, by and between the Company and CIBC WG Argosy Merchant Fund 2, L.L.C.,
relating to the Preferred Stock.
Registrable Notes: The Notes upon original issuance thereof and at all
times subsequent thereto, until in the case of any such Note (i) a Registration
Statement covering such Note has been declared effective and such Note has been
disposed of in accordance with such effective Registration Statement, (ii) it
is sold in compliance with Rule 144, (iii) it shall have been otherwise
transferred and a new
6
-4-
certificate for any such Note not bearing a legend restricting further
transfer shall have been delivered by the Company, or (iv) it ceases to be
outstanding.
Registrable Preferred Stock: The Preferred Stock upon original issuance
thereof and at all times subsequent thereto, until in the case of any such
Preferred Stock (i) a Registration Statement covering such Preferred Stock has
been declared effective and such Preferred Stock has been disposed of in
accordance with such effective Registration Statement, (ii) it is sold in
compliance with Rule 144, (iii) its shares have been otherwise transferred and
a new certificate for any such Preferred Stock not bearing a legend restricting
further transfer shall have been delivered by the Company, or (iv) it ceases to
be outstanding.
Registrable Securities: The Registrable Notes and/or the Registrable
Preferred Stock.
Registration Statement: Any registration statement of the Issuers filed
or required to be 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 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.
Rule 144A: Rule 144A 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 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 Effectiveness Date: 90 days after a Shelf Filing Date.
7
-5-
Shelf Filing Date: 30 days after a Shelf Notice.
Shelf Notice: See Section 2(a).
Shelf Registration: See Section 2(b).
Shelf Termination Date: See Section 2(b).
Stockholders: The holders of Preferred Stock.
Subsequent Shelf Registration: See Section 2(c).
TIA: The Trust Indenture Act of 1939, as amended.
Trustee: The trustee under the Indenture.
underwritten registration or underwritten offering: A registration in
which securities of any of the Issuers are sold to an underwriter for
reoffering to the public.
Withdrawal Election: See Section 5(c).
2. Shelf Registration
(a) Shelf Notice. At any time commencing 365 days after the date of this
Agreement, the Noteholders of at least 25% of the outstanding aggregate
principal amount of Registrable Notes and the Stockholders of at least 25% of
the outstanding aggregate liquidation value of Registrable Preferred Stock,
each may make a written request (a "Shelf Notice") to the Appropriate
Registrant for registration of Registrable Securities to be made pursuant to a
Registration Statement in accordance with Section 2(b) below. Within ten days
after receipt of any Shelf Notice, the Appropriate Registrant will send written
notice of such Shelf Notice to all Holders of the Registrable Notes or
Registrable Preferred Stock, as the case may be, and the Appropriate Registrant
will include in such Shelf Registration all Registrable Securities of such
Holders with respect to which the Appropriate Registrant has received written
requests for inclusion therein within 15 Business Days after the receipt by the
applicable Holder of the Appropriate Registrant's written notice. Requests
made by Holders for inclusion in such Shelf Registration, including requests by
Holders in the Shelf Notice, shall contain appropriate representations
regarding such Holders' intentions to sell the Securities in order to allow the
Appropriate Registrant to effect such Shelf Registration. If a Holder does not
make such appropriate representations, such Holder will be excluded from such
Shelf
8
-6-
Registration. Notwithstanding the foregoing and subject to subsection 2(c)
below, the Appropriate Registrant shall not be required to undertake more than
one Shelf Registration for each of the Registrable Notes and the Registrable
Preferred Stock.
(b) Shelf Registration. If a Shelf Notice is delivered as contemplated by
Section 2(a), then the Appropriate Registrant agrees to file with the SEC no
later than its Shelf Filing Date, a Registration Statement for an offering to
be made on a continuous basis pursuant to Rule 415 covering all of the
Registrable Securities of such Holders with respect to which the Appropriate
Registrant has received written requests for inclusion therein in accordance
with Section 2(a) above (a "Shelf Registration"). Such Shelf Registration
shall be on Form S-1 or another appropriate form permitting registration of
such Registrable Securities for resale by Holders in the manner or manners
designated by them (including, without limitation, one or more underwritten
offerings). The Appropriate Registrant shall not permit any securities other
than the Registrable Securities to be included in a Shelf Registration
or any Subsequent Shelf Registration. The Appropriate Registrant shall use its
best efforts to cause each Shelf Registration to be declared effective under
the Securities Act on or prior to its Shelf Effectiveness Date and to keep such
Shelf Registration continuously effective under the Securities Act until the
date which is 36 months from the Shelf Effectiveness Date of the first Shelf
Registration filed by the Appropriate Registrant with respect to Registrable
Notes or Registrable Preferred Stock, as the case may be (subject to extension
pursuant to the last paragraph of Section 8) (the "Shelf Termination Date"), or
such shorter period ending when all Registrable Securities covered by such
Shelf Registration have been sold in the manner set forth and as contemplated
in such Shelf Registration.
(c) Subsequent Shelf Registrations. If a Shelf Registration or any
Subsequent Shelf Registration ceases to be effective for any reason at any time
prior to its Shelf Termination Date (other than because of the sale of all
Registrable Securities covered by such Shelf Registration in the manner set
forth and as contemplated in such Shelf Registration) the Appropriate
Registrant 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 such Shelf
Registration in a manner reasonably expected 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
Securities
9
-7-
which were covered by such Shelf Registration that have not been sold in the
manner set forth and as contemplated in such Shelf Registration (a
"Subsequent Shelf Registration"). If a Subsequent Shelf Registration is filed,
the Appropriate Registrant shall use its reasonable best efforts to cause such
Subsequent Shelf Registration to be declared effective as soon as practicable
after such filing and to keep such Registration Statement continuously
effective until the Shelf Termination Date. As used herein the term "Shelf
Registration" means the Shelf Registrations and any Subsequent Shelf
Registrations.
(d) Supplements and Amendments. The Appropriate Registrant shall promptly
supplement and amend a 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 in aggregate principal amount or aggregate
liquidation preference, as the case may be, of the Registrable Securities
covered by such Registration Statement or by any underwriter of such
Registrable Securities.
3. Demand Notice
(a) Right to Demand. At any time after the Shelf Termination Date, the
holders of at least $25 million in aggregate principal amount of Registrable
Notes may make a written request (a "Demand Notice") to the Issuers for
registration under and in accordance with the provisions of the Securities Act
of all or part of such Registrable Notes in accordance with Section 4. Within
ten days after receipt of the Demand Notice, the Issuers will send written
notice of such registration request to all Noteholders, and the Issuers will
include in such registration all Registrable Notes of such Noteholders with
respect to which the Issuers have received written requests for inclusion
therein within 15 business days after the receipt by a Noteholder of the
Issuers' written notice. All requests made pursuant to this Section 3(a) will
specify the aggregate amount of the Registrable Notes to be registered.
(b) Number of Exchange Offer Registrations. The holders of Registrable
Notes shall be entitled to deliver no more than one Demand Notice hereunder.
10
-8-
4. Exchange Offer Registration
If a Demand Notice is delivered as contemplated by Section 3(a), the
Issuers shall file with the SEC no later than the Exchange Filing Date, an
offer to exchange (the "Exchange Offer Registration") for any and all of the
Registrable Notes covered by such Exchange Offer Registration pursuant to
Section 3(a) a like aggregate principal amount of debt securities of the
Company, guaranteed by the Guarantors, which are identical in all material
respects to the Notes (the "Exchange Notes") (and which are entitled to the
benefits of the Indenture or a trust indenture which is identical in all
material respects to the Indenture (other than such changes to the Indenture or
any such identical trust indenture as are necessary to comply with any
requirements of the SEC to effect or maintain the qualification thereof under
the TIA) and which, in either case, has been qualified under the TIA), except
that the Exchange Notes shall have been registered pursuant to an effective
Registration Statement under the Securities Act and shall contain no
restrictive legend thereon. The Exchange Offer Registration shall be
registered under the Securities Act on the appropriate form (the "Exchange
Registration Statement") and shall comply with all applicable tender offer
rules and regulations under the Exchange Act.
Each of the Issuers agrees to use its best efforts to (x) cause the
Exchange Registration Statement to be declared effective under the Securities
Act on or before the Exchange Effectiveness Date; (y) keep the Exchange Offer
Registration open for at least 30 days (or longer if required by applicable
law) after the date that notice of the Exchange Offer Registration is mailed to
holders of Registrable Notes (the "Exchange Effectiveness Period"); and (z)
consummate the Exchange Offer Registration on or prior to the 45th day
following the date on which the Exchange Registration Statement is declared
effective. If after such Exchange Registration Statement is initially declared
effective by the SEC, the Exchange Offer Registration or the issuance of the
Exchange Notes 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 of Registrable Notes who
participates in the Exchange Offer Registration will be required to represent
that any Exchange Notes received by it will be acquired in the ordinary course
of its business, that at the time of the consummation of the Exchange Offer
Registration such holder of Registrable Notes will have no arrangement or
understanding with any Person to participate in
11
-9-
the distribution of the Exchange Notes, and that such holder of Registrable
Notes is not an affiliate of any of the Issuers within the meaning of the
Securities Act.
In connection with the Exchange Offer Registration, the Issuers 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
Registration with an address in the Borough of Manhattan, The City of New
York;
(3) permit holders of Registrable Notes to withdraw tendered Notes
at any time prior to the close of business, New York time, on the last
business day on which the Exchange Offer Registration shall remain open;
and
(4) otherwise comply in all material respects with all applicable
laws.
As soon as practicable after the close of the Exchange Offer Registration,
the Issuers shall:
(1) accept for exchange all Notes tendered and not validly withdrawn
pursuant to the Exchange Offer Registration;
(2) deliver to the Trustee for cancellation all Notes so accepted
for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each
holder of Notes, Exchange Notes, equal in principal amount to the Notes
of such holder so accepted for exchange.
The Exchange Notes may be issued under (i) the Indenture or (ii) an
indenture identical in all material respects to the Indenture, which in either
event will provide that the holders of the Notes and the Exchange Notes will
vote and consent together on all matters as one class and that neither the
Exchange Notes nor the Notes will have the right to vote or consent as a
separate class on any matter.
12
-10-
5. Piggy-Back Registration
(a) If at any time commencing 120 days after the date of this Agreement
the Company proposes to file a Registration Statement under the Securities Act
with respect to an offering by the Company for its own account or for the
account of any of its respective securityholders of any class of its debt or
preferred equity securities (other than (i) a Registration Statement on Form
S-4 or S-8 (or any substitute form that may be adopted by the SEC) or (ii) a
Registration Statement filed in connection with an offer or offering of
securities solely to the Company's existing securityholders), then the Company
shall give written notice of such proposed filing to the holders of Registrable
Preferred Stock as soon as practicable (but in no event less than 20 days
before the anticipated filing date), and such notice shall offer such
Stockholders the opportunity to register such number of shares of Registrable
Preferred Stock as each such Stockholder may request (which request shall
specify the Registrable Preferred Stock intended to be disposed of by such
Selling Stockholder and the intended method of distribution thereof) (a
"Piggy-Back Registration"). The Company shall use its best efforts to cause
the managing underwriter or underwriters of such proposed underwritten offering
to permit the Registrable Preferred Stock requested to be included in a
Piggy-Back Registration to be included on the same terms and conditions as any
similar securities of the Company or any other securityholder included therein
and to permit the sale or other disposition of such Registrable Preferred Stock
in accordance with the intended method of distribution thereof except as
otherwise provided in Section 5(b). Any Selling Stockholder shall have the
right to withdraw its request for inclusion of its Registrable Preferred Stock
in any Registration Statement pursuant to this Section 5(a) by giving written
notice to the Company of its request to withdraw no later than 5 days before
such Registration Statement becomes effective. The Company may withdraw a
Piggy-Back Registration at any time prior to the time it becomes effective;
provided that the Company shall give prompt notice thereof to participating
selling Stockholders. The Company will pay all registration expenses in
connection with each registration of Registrable Preferred Stock requested
pursuant to this Section 5, and each Stockholder shall pay all underwriting
discounts and commissions and transfer taxes, if any, relating to the sale or
disposition of such Stockholder's Registrable Preferred Stock pursuant to a
registration statement effected pursuant to this Section 5(a).
No registration effected under this Section 5(a), and no failure to effect
a registration under this Section 5(a),
13
-11-
shall relieve the Company of its obligation to effect a registration upon the
request of Stockholders pursuant to Section 2, and no failure to effect
a registration under this Section 5(a) and to complete the sale of shares of
Registrable Preferred Stock in connection therewith shall relieve the Company
of any other obligation under this Agreement.
(b) Reduction of Offering. (i) If the managing underwriter(s) of any
underwritten offering described in Section 5(a) have informed, in writing, the
selling Stockholders of the Registrable Preferred Stock requesting inclusion in
such offering that it is their opinion that the total number of shares which
the Company, the selling Stockholders and any other persons desiring to
participate in such registration intend to include in such offering is such as
to adversely affect the success of such offering, including the price at which
such securities can be sold, then the number of shares to be offered for the
account of the selling Stockholders and all such other persons (other than the
Company) participating in such registration shall be reduced or limited pro
rata in proportion to the respective number of shares requested to be
registered to the extent necessary to reduce the total number of shares
requested to be included in such offering to the number of shares, if any,
recommended by such managing underwriters; provided, however, that if such
offering is effected for the account of any securityholder of the Company other
than the selling Stockholders, pursuant to the demand registration rights of
any such securityholder, then the number of shares to be offered for the
account of the selling Stockholders and all other persons (other than the
Company) participating in such registration (but not such securityholders who
have exercised their demand registration rights) shall be reduced or limited
pro rata in proportion to the respective number of shares requested to be
registered to the extent necessary to reduce the total number of shares
requested to be included in such offering to the number of shares, if any,
recommended by such managing underwriters.
(ii) If the managing underwriter or underwriters of any underwritten
offering described in Section 5(a) notify the selling Stockholders requesting
inclusion of Registrable Preferred Stock in such offering, that the kind of
securities that the selling Stockholders, the Company and any other persons
desiring to participate in such registration intend to include in such offering
is such as to adversely affect the success of such offering, (x) the
Registrable Preferred Stock to be included in such offering shall be reduced as
described in clause (i) above or (y) if a reduction in the Registrable
Preferred Stock pursuant to clause (i) above would, in the
14
-12-
judgment of the managing underwriter(s) or underwriters, be insufficient
to substantially eliminate such adverse effect that inclusion of the
Registrable Preferred Stock requested to be included would have on such
offering, such Registrable Preferred Stock will be excluded from such offering.
(c) If, as a result of the proration provisions of this Section 2.3, any
selling Stockholder shall not be entitled to include all Registrable Preferred
Stock in a Piggy-Back Registration that such selling Stockholder has requested
to be included, such selling Stockholder may elect to withdraw his request to
include Registrable Preferred Stock in such registration (a "Withdrawal
Election"); provided, however, that a Withdrawal Election shall be irrevocable
and, after making a Withdrawal Election, a selling Stockholder shall no longer
have any right to include Registrable Preferred Stock in the registration as to
which such Withdrawal Election was made.
6. Additional Interest
(a) The Issuers agree that the holders of Registrable Notes will suffer
damages if the Issuers fail to fulfill their obligations to holders of
Registrable Notes under Section 2 hereof and that it would not be feasible to
ascertain the extent of such damages with precision. Accordingly, the Issuers,
jointly and severally, agree to pay, as liquidated damages, additional interest
on Notes ("Additional Interest") under the circumstances and to the extent set
forth below (each of which shall be given independent effect):
(i) if the Shelf Notice is delivered as contemplated by Section
2(a) and the Shelf Registration has not been filed on or prior to the
Shelf Filing Date, then commencing on the day after such Shelf Filing
Date, Additional Interest shall be accrued on the Notes covered by such
Shelf Registration over and above the accrued interest at a rate of .50%
per annum for the first 90 days immediately following such Shelf Filing
Date, such Additional Interest rate increasing by an additional .25% per
annum at the beginning of each subsequent 90-day period;
(ii) if such Shelf Registration has not been declared effective on
or prior to such Shelf Effectiveness Date, then commencing on the day
after such Shelf Effectiveness Date, Additional Interest shall be
accrued on the Notes included in such Registration Statement over and
above the accrued interest at a rate of .50% per annum for the first 90
days immediately following the day after
15
-13-
such Shelf Effectiveness Date, such Additional Interest rate
increasing by an additional .25% per annum at the beginning of each
subsequent 90-day period; and
(iii) if a Shelf Registration or any Subsequent Shelf Registration
has been declared effective and such Shelf Registration ceases to be
effective at any time prior to the Shelf Termination Date, then
Additional Interest shall be accrued on the Notes affected thereby over
and above the accrued interest at a rate of .50% per annum for the first
90 days commencing on the day such Shelf Registration ceases to be
effective, such Additional Interest rate increasing by an additional .25%
per annum at the beginning of each such subsequent 90-day period;
provided, however, that the Additional Interest rate on any Note may not exceed
at any one time in the aggregate 1.0% per annum; and provided, further, that
(1) upon the filing of a Shelf Registration (in the case of (i) above), (2)
upon the effectiveness of a Shelf Registration (in the case of (ii) above), (3)
upon the effectiveness of a Subsequent Shelf Registration (in the case of (iii)
above), Additional Interest on the Notes as a result of such clause, as the
case may be, shall cease to accrue.
(b) The Issuers shall notify the Trustee within one Business Day after
each and every date on which an event occurs in respect of which Additional
Interest is required to be paid (an "Event Date"). Any amounts of Additional
Interest due pursuant to Section 6(a) will be payable in cash semi-annually on
each interest payment date for the Registrable Notes (to the Noteholders of
record entitled to such interest payment), commencing with the first such date
occurring after any such Additional Interest commences to accrue. The amount
of Additional Interest will be determined on the basis of a 360-day year
comprised of twelve 30-day months.
7. Underwritten Registrations
If any of the Registrable Securities covered by any Shelf Registration or
the Exchange Offer Registration are 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 in aggregate
principal amount of the Registrable Notes or the holders of a majority in
aggregate liquidation value of the Registrable Preferred Stock, as the case may
be, included in such offering and reasonably acceptable to the Appropriate
Registrant.
16
-14-
8. Registration Procedures
In connection with the filing of any Registration Statement, the
Appropriate Registrant shall as expeditiously as possible:
(a) Prepare and file with the SEC (i) as soon as practicable after the
Shelf Notice but in any event prior to the Shelf Filing Date, a Registration
Statement as prescribed by Section 2, and (ii) within the time limit prescribed
herein the Exchange Registration Statement prescribed pursuant to Section 4,
and in each such case and in the case of a Piggy-Back Registration pursuant to
Section 5(a) use every reasonable effort to cause each such Registration
Statement or Registration Statements to become effective and remain effective
as provided herein; provided, however, before filing any Registration Statement
or Prospectus or any amendments or supplements thereto (not including documents
that would be incorporated or deemed to be incorporated therein by reference),
the Appropriate Registrant shall afford the Holders covered by such
Registration Statement, their counsel and the managing underwriters, if any, an
opportunity to review, promptly, copies of all such documents proposed to be
filed; provided, however, that the Issuers shall not be required to afford such
persons an opportunity to review a copy of (i) any such document that has not
been materially changed from a copy of such document that such person was
previously afforded an opportunity to review and (ii) any amendments or
supplements to a Registration Statement or Prospectus which are made solely as
a result of any filing by the Appropriate Registrant of reports required to be
filed pursuant to the Exchange Act. The Appropriate Registrant shall not file
any Registration Statement or Prospectus or any amendments or supplements
thereto in respect of which the Holders must be afforded an opportunity to
review prior to the filing of such document, if the Holders of a majority in
aggregate principal amount or liquidation value, as the case may be, of the
Registrable Securities covered by such Registration Statement, their counsel,
or the managing underwriters, if any, shall reasonably object.
(b) Prepare and file with the SEC such amendments and post-effective
amendments to each Registration Statement as may be necessary to keep such
Registration Statement continuously effective for the time periods prescribed
hereby; cause the related Prospectus to be supplemented by any required
Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424
(or any similar provisions then in force) under the Securities Act; and comply
with the provisions of the
17
-15-
Securities Act, the Exchange Act and the rules and regulations of the SEC
promulgated thereunder 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.
(c) Notify the selling Holders of Registrable Securities, their counsel
and the managing underwriters, if any, promptly (but in any event within two
business days after becoming aware thereof), 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 (including in such
notice a written statement that any holder may, upon request, obtain, without
charge, one conformed copy of such Registration Statement or post-effective
amendment including financial statements and schedules but excluding 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 such
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 Securities covered by
such Registration Statement the representations and warranties of the
Appropriate Registrant contained in any agreement (including any underwriting
agreement) contemplated by Section 7(o) cease to be true and correct, (iv) of
the receipt by the Appropriate Registrant of any notification with respect to
the suspension of the qualification or exemption from qualification of such
Registration Statement or any of the Registrable Securities for offer or sale
in any jurisdiction, or the initiation or threatening of any proceeding for
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 such Registration Statement,
Prospectus or documents so that, in the case of such 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
18
-16-
light of the circumstances under which they were made, not misleading,
and (vi) of the Appropriate Registrant's reasonable determination that a
post-effective amendment to such Registration Statement would be appropriate.
(d) Use its 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 Securities for sale in
any jurisdiction, and, if any such order is issued, to obtain the withdrawal of
any such order at the earliest possible moment.
(e) If requested by the managing underwriters, if any, or the holders of a
majority in aggregate principal amount or liquidation value, as the case may
be, of the Registrable Securities being sold in connection with an underwritten
offering, (i) promptly incorporate in a prospectus supplement or post-effective
amendment such information as the managing underwriters, if any, or such
Holders reasonably request to be included therein, (ii) make all required
filings of such prospectus supplement or such post-effective amendment as soon
as practicable after the Appropriate Registrant 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) Furnish to each selling holder of Registrable Securities who so
requests and to counsel and each managing underwriter, if any, without charge,
one conformed copy of the Registration Statement 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) Deliver to each selling holder of Registrable Securities, their
counsel and the underwriters, if any, without charge, as many copies of each
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 8, each Appropriate Registrant hereby consents to the use of such
Prospectus and each amendment or supplement thereto by each of the
selling Holders of Registrable Securities and the underwriters or agents, if
any, in connection with the offering and sale of the Registrable
19
-17-
Securities covered by such Prospectus and any amendment or supplement thereto.
(h) Prior to any public offering of Registrable Securities, to register or
qualify, and to cooperate with the selling Holders of Registrable Securities,
the underwriters, if any, and their respective counsel in connection with the
registration or qualification (or exemption from such registration or
qualification) of such Registrable Securities for offer and sale under the
securities or Blue Sky laws of such jurisdictions within the United States as
any selling holder, or the managing underwriters reasonably request in writing;
provided that where Registrable Securities are offered other than through an
underwritten offering, the Appropriate Registrant agrees to cause its counsel
to perform Blue Sky investigations and file registrations and qualifications
required to be filed pursuant to this Section 8(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 Registrable Securities covered by the
applicable Registration Statement; provided, however, that no Appropriate
Registrant shall be required to (A) qualify generally to do business in any
jurisdiction where it is not then so qualified, (B) take any action that would
subject it to general service of process in any such jurisdiction where it is
not then so subject or (C) become subject to taxation in any such jurisdiction
where it is not then so subject.
(i) Cooperate with the selling holders of Registrable Securities and the
managing underwriters, if any, to facilitate the timely preparation and
delivery of certificates representing Registrable Securities 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 ("DTC"); and enable such
Registrable Securities to be in such denominations and registered in such names
as the managing underwriters, if any, or selling holders of Registrable
Securities may reasonably request at least two business days prior to any sale
of Registrable Securities.
(j) Use its best efforts to cause the Registrable Securities 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 underwriters, if any, to consummate the
disposition of such Registrable Securities, except as may be
20
-18-
required solely as a consequence of the nature of such selling holder's
business, in which case the Appropriate Registrant will cooperate in all
reasonable respects with the filing of such registration and the granting of
such approvals.
(k) Upon the occurrence of any event contemplated by paragraph 8(c)(v) or
8(c)(vi), as promptly as practicable prepare and file with the SEC, at the
joint and several expense of each of the Issuers, 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 Securities being sold
thereunder, such Prospectus will not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading.
(l) Use its best efforts to cause the Registrable Securities covered by a
Registration Statement to be rated with the appropriate rating agencies, if so
requested by the Holders of a majority in aggregate principal amount or
liquidation value, as the case may be, of Registrable Securities covered by
such Registration Statement or the managing underwriters, if any.
(m) Prior to the effective date of any Registration Statement relating to
the Registrable Securities, (i) provide the Trustee with printed certificates
for the Registrable Securities covered by such Registration Statement in a form
eligible for deposit with DTC and (ii) provide a CUSIP number(s) for the
Registrable Securities.
(n) Cooperate with each selling holder of Registrable Securities covered
by any Registration Statement and each underwriter, if any, participating in
the disposition of such Registrable Securities and their respective counsel in
connection with any filings required to be made with the National Association
of Securities Dealers, Inc. (the "NASD").
(o) In the event a Shelf Registration is filed, and if requested by
Holders of a majority in aggregate principal amount or liquidation value, as
the case may be, of Registrable Securities covered by such Registration
Statement, enter into an underwriting agreement in form, scope and substance as
is customary in underwritten offerings and take all such other actions as are
reasonably requested by the managing
21
-19-
underwriters in order to expedite or facilitate the registration or the
disposition of such Registrable Securities, and in such connection, (i) make
such representations and warranties to the underwriters, with respect to the
business of the Appropriate Registrant and its subsidiaries, and the
Registration Statement, Prospectus and documents, if any, incorporated or
deemed to be incorporated by reference therein, in each case, in form,
substance and scope as are customarily made by issuers to underwriters in
underwritten offerings of securities similar to the applicable Registrable
Security, and confirm the same if and when requested; (ii) obtain opinions of
counsel to the Appropriate Registrant and updates thereof in form, scope and
substance reasonably satisfactory to the managing underwriters, addressed to
the underwriters covering the matters customarily covered in opinions requested
in underwritten offerings and such other matters as may be reasonably requested
by underwriters; (iii) obtain "cold comfort" letters and updates thereof in
form and substance reasonably satisfactory to the managing underwriter or
underwriters from the independent certified public accountants of the
Appropriate Registrant (and, if necessary, any other independent certified
public accountants of any subsidiary of the Appropriate Registrant or business
acquired by the Appropriate Registrant for which financial statements and
financial data are, or are required to be, included 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 applicable Registrable Security; 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 10 (or such
other less favorable provisions and procedures acceptable to Holders of a
majority in aggregate principal amount or liquidation value, as the case may
be, of Registrable Securities covered by such Registration Statement and the
managing 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.
(p) Make available for inspection by a representative of the selling
holders of Registrable Securities, any underwriter participating in any such
disposition of Registrable Securities, if any, and any attorney or accountant
or other agent retained by any such representative of such selling holders or
underwriter (collectively, the "Inspectors"), at the offices where normally
22
-20-
kept, during reasonable business hours, all financial and other records,
pertinent corporate documents and properties of the Appropriate Registrant and
its subsidiaries, and cause the officers, directors and employees of the
Appropriate Registrant and its subsidiaries to supply all information, in each
case reasonably requested by any such Inspector in connection with such
Registration Statement; provided, however, that any information that is
designated in writing by the Appropriate Registrant, in good faith, as
confidential at the time of delivery of such information, shall be kept
confidential by such Inspector unless (i) disclosure of such information is
required by court or administrative order, (ii) disclosure of such information,
in the opinion of counsel to such Inspector, is necessary to avoid or correct a
misstatement or omission of a material fact in the Registration Statement,
Prospectus or any supplement or post-effective amendment thereto or disclosure
is otherwise required by law, (iii) disclosure of such information is, in the
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) such information becomes generally available to the
public other than as a result of a disclosure or failure to safeguard by such
Inspector. Each selling holder of such Registrable Securities 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 Appropriate Registrant unless and until
such is made generally available to the public. Each selling holder of such
Registrable Securities will be required to further agree that it will, upon
learning that disclosure of any such information is sought in a court of
competent jurisdiction, give notice to the Appropriate Registrant and allow the
Appropriate Registrant to undertake appropriate action to prevent disclosure of
the information deemed confidential at its expense.
(q) Provide an indenture trustee for the Registrable Notes, and cause the
Indenture to be qualified under the TIA not later than the effective date of
the first Registration Statement relating to the Registrable Notes; and in
connection therewith, cooperate with the trustee under any such indenture and
the selling holders of the Registrable Notes, 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 best efforts to
cause such trustee to execute, all documents as may be required to effect
23
-21-
such changes, and all other forms and documents required to be filed with the
SEC to enable such indenture to be so qualified in a timely manner.
(r) Comply with all applicable rules and regulations of the SEC and make
generally available to its securityholders earnings 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 Securities are 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.
(s) If an Exchange Offer Registration is to be consummated, upon delivery
of the Registrable Notes by such selling holders to the Issuers (or to such
other Person as directed by the Issuers) in exchange for the Exchange Notes,
the Issuers shall mark, or caused to be marked, on such Registrable Notes that
such Registrable Notes are being cancelled in exchange for the Exchange Notes;
in no event shall such Registrable Notes be marked as paid or otherwise
satisfied.
(t) Use its best efforts to take all other steps reasonably necessary to
effect the registration of the Registrable Securities covered by a Registration
Statement contemplated hereby.
The Appropriate Registrant may require each selling holder of Registrable
Securities as to which any registration is being effected to furnish to the
Appropriate Registrant such information regarding such seller and the
distribution of such Registrable Securities as the Appropriate Registrant may,
from time to time, reasonably request in writing. The Appropriate
Registrant may exclude from such registration the Registrable Securities of any
seller who unreasonably fails to furnish such information within a reasonable
time after receiving such request. If the identity of a seller of Registrable
Securities is to be disclosed in a registration statement, such selling holder
shall be permitted to include all information regarding such seller as it shall
reasonably request.
24
-22-
Each Holder, upon receipt of any notice from the Appropriate Registrant of
the happening of any event of the kind described in Section 8(c), will
forthwith discontinue disposition of such Registrable Securities covered by
such Registration Statement or Prospectus, until such Holder's receipt of the
copies of the supplemented or amended Prospectus contemplated by Section 8(c),
or until it is advised in writing (the "Advice") by the Appropriate Registrant
that the use of the applicable Prospectus may be resumed. In the event the
Appropriate Registrant shall give any such notice, the Shelf Termination Date
and the Exchange Effectiveness 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 Securities covered by
such Registration Statement shall have received the copies of the supplemented
or amended Prospectus contemplated by Section 8(c) or the Advice.
9. Registration Expenses
(a) All fees and expenses, other than underwriting discounts and
commissions, incident to the performance of or compliance with this Agreement
by the Appropriate Registrant shall be borne by the Appropriate Registrant,
jointly and severally in the case of the Issuers and with respect to
Registrable Notes, whether or not a Registration Statement 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 Securities or Exchange Notes
and determination of the eligibility of the Registrable Securities or Exchange
Notes for investment under the laws of such jurisdictions (x) where the Holders
of Registrable Securities are located, in the case of the Preferred Stock and
Exchange Notes, or (y) as provided in Section 8(h), in the case of Registrable
Notes)), (ii) printing expenses (including, without limitation, expenses of
printing certificates for Registrable Securities or Exchange Notes in a form
eligible for deposit with DTC and of printing prospectuses if the printing of
prospectuses is requested by the managing underwriters, if any, or, in respect
of Registrable Securities, by the Holders of a majority in aggregate principal
amount or liquidation value, as the case may be, of the Registrable Securities
included in the Registration Statement), (iii) messenger, telephone and
delivery expenses, (iv) fees and disbursements of
25
-23-
counsel for the Appropriate Registrant and reasonable fees and
disbursements of counsel for the sellers of Registrable Securities (subject to
the provisions of Section 9(b)), (v) fees and disbursements of all independent
certified public accountants referred to in Section 8(o)(iii) (including,
without limitation, the expenses of any special audit and "cold comfort"
letters required by or incident to such performance), (vi) the fees and
expenses of any "qualified independent underwriter" or other independent
appraiser participating in an offering pursuant to Rule 2720 of the Conduct
Rules of the NASD, (vii) rating agency fees, (vii) Securities Act liability
insurance, if the Appropriate Registrant desires such insurance, (viii) fees
and expenses of all other Persons retained by the Appropriate Registrant, (ix)
internal expenses of the Appropriate Registrant (including, without limitation,
all salaries and expenses of officers and employees of the Appropriate
Registrant 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 and (xii)
the fees and expenses of any person, including special experts, retained by the
Appropriate Registrant.
(b) In connection with any Registration Statement hereunder or any
amendment thereto, the Appropriate Registrant shall reimburse the Holders of
the Registrable Securities being registered in such registration for the
reasonable fees and disbursements of not more than one counsel (together with
appropriate local counsel) chosen by the Holders of a majority in aggregate
principal amount or liquidation value, as the case may be, of the Registrable
Securities to be included in such Registration Statement and other reasonable
out-of-pocket expenses of the Holders of Registrable Securities incurred in
connection with the registration of the Registrable Securities.
10. Indemnification
(a) The Appropriate Registrant, jointly and severally in the case of the
Issuers and with respect to Registrable Notes, agrees to indemnify and hold
harmless each Holder of Registrable Securities covered by a Registration
Statement, 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
26
-24-
out of or based upon any untrue statement or alleged untrue statement of a
material fact contained in such Registration Statement or any related
Prospectus (as amended or supplemented if the Appropriate Registrant shall have
furnished any amendments or supplements thereto) or any related 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 light of the circumstances under
which they were made, not misleading, except insofar as such 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 Appropriate
Registrant in writing by such Participant expressly for use therein; provided
that the Appropriate Registrant will not be liable to any Participant with
respect to any such untrue statement or omission in any preliminary prospectus
that is corrected in the related Prospectus (or any amendment or supplement
thereto) if the person asserting any such loss, claim, damage or liability
purchased Registrable Securities or Exchange Notes which are the subject
thereof from such Participant in reliance upon such preliminary prospectus but
was not sent or given a copy of the related Prospectus (as amended or
supplemented) at or prior to the written confirmation of the sale of such
Registrable Securities or Exchange Notes, as the case may be, to such person,
unless such failure to deliver such Prospectus (as amended or supplemented) was
a result of noncompliance by the Appropriate Registrant with Section 8 of this
Agreement.
(b) Each Participant will be required to agree, severally and not jointly,
to indemnify and hold harmless the Appropriate Registrant, its respective
directors and officers and each person who controls the Appropriate Registrant
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 Appropriate
Registrant to each Participant, but only (i) with reference to information
relating to such Participant furnished to the Appropriate Registrant in writing
by or on behalf of 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 Appropriate
Registrant. The liability of any Participant under this paragraph shall in no
event exceed the proceeds received by such Participant from sales of
Registrable Securities or Exchange Notes giving rise to such obligations.
27
-25-
(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") 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 only to the extent that such
failure directly results in the loss or compromise of any material rights or
defenses by the Appropriate Registrant and the Appropriate Registrant was not
otherwise aware of such action or claim). 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 within a reasonable time 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 representation of both parties by the same counsel would
be inappropriate due to actual or potential differing interests between them.
It is understood that the Indemnifying Person shall not, in connection with any
proceeding or related proceeding in the same jurisdiction, 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 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 in interest of Registrable
Securities sold by all such Participants in the related registration and any
such separate firm for the Appropriate Registrant, its directors, its officers
and such control persons of the Appropriate Registrant shall be designated in
writing by the Appropriate Registrant. The Indemnifying Person shall not be
liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final non-appealable
judgment for the plaintiff, the Indemnifying Person agrees to indemnify any
28
-26-
Indemnified Person from and against any loss or liability by reason of such
settlement or judgment. Notwithstanding the foregoing sentence, if at any time
an Indemnified Person shall have requested an Indemnifying Person to reimburse
the Indemnified Person for reasonable fees and expenses actually incurred by
counsel as contemplated by the third sentence of this paragraph, the
Indemnifying Person agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 30 days after receipt by such Indemnifying Person of the
aforesaid request and (ii) such Indemnifying Person shall not have reimbursed
the Indemnified Person in accordance with such request prior to the date of
such settlement; provided, however, that the Indemnifying Person shall not be
liable for any settlement effected without its consent pursuant to this
sentence if the Indemnifying Person is contesting, in good faith, the request
for reimbursement. No Indemnifying Person shall, without the prior written
consent of the Indemnified Person, effect any settlement of any pending or
threatened proceeding in respect of which any Indemnified Person is or could
have been a party and indemnity could have been sought hereunder by such
Indemnified Person, unless such settlement includes an unconditional release of
such Indemnified Person from all liability on claims that are the subject
matter of such proceeding.
(d) If the indemnification provided for in the first and second paragraphs
of this Section 10 is 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 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
that resulted in such losses, claims, damages or liabilities (or actions in
respect thereof). 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 Appropriate Registrant on
the one hand or by the Participants or such other Indemnified Person, as the
case may be, on the other, the parties' relative intent, knowledge, access to
information and opportunity to
29
-30-
correct or prevent such statement or omission and any other equitable
considerations appropriate under the circumstances.
(e) The parties agree that it would not be just and equitable if
contribution pursuant to this Section 9 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 9, 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
Securities or Exchange Notes, as the case may be, exceeds the amount of any
damages that such Participant has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
(f) The indemnity and contribution agreements contained in this Section 10
will be in addition to any
liability which the Indemnifying Persons may otherwise have to the Indemnified
Persons referred to above.
11. Rule 144 and 144A
The Appropriate Registrant 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 and,
if at any time the Appropriate Registrant is not required to file such reports,
such Appropriate Registrant will, upon the request of any Holder of Registrable
Securities, 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 Appropriate Registrant further covenants that, for so
long as any Registrable Securities remain outstanding, to make available to any
Holder or beneficial owner of Registrable Securities in connection with any
sale thereof and any prospective purchaser of such
30
-28-
Registrable Securities from such Holder or beneficial owner, the
information required by Rule 144A(d)(4) under the Act in order to permit
resales of such Registrable Securities pursuant to Rule 144A.
12. Miscellaneous
(a) No Inconsistent Agreements. No Appropriate Registrant has entered, as
of the date hereof, and no Appropriate Registrant shall enter, after the date
of this Agreement, into any agreement with respect to any of its securities
that is inconsistent with the rights granted to the Holders of Registrable
Securities in this Agreement or otherwise conflicts with the provisions hereof.
No Appropriate Registrant has entered and no Appropriate Registrant will enter
into any agreement with respect to any of its securities which will grant to
any person piggy-back rights with respect to a Registration Statement.
(b) Adjustments Affecting Registrable Securities. Neither the Company nor
the Guarantors shall, directly or indirectly, take any action with respect to
the Registrable Securities as a class that would adversely affect the ability
of the Holders of Registrable Securities to include such Registrable Securities
in a registration undertaken pursuant to this Agreement.
(c) Amendments and Waivers. The provisions of this Agreement, including
the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given, unless the Appropriate Registrant has obtained the written
consent of (i) holders of at least a majority of the then outstanding aggregate
principal amount of Registrable Notes in the case of provisions affecting
holders of Registrable Notes and (ii) holders of at least a majority of the
then outstanding aggregate liquidation value of Registrable Preferred Stock in
the case of provision affecting holders of Registrable Preferred Stock.
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 Securities 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
Securities may be given by Holders of at least a majority in aggregate
principal amount or liquidation value, as the case may be, of the Registrable
Securities being sold by such Holders pursuant to such Registration Statement;
provided that the provisions of this
31
-29-
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 (including without
limitation any notices or other communications to the Trustee) provided for or
permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, next-day air courier or telecopier:
(i) if to a Holder of the Registrable Securities, at the most
current address given by such Holder to the Company in accordance with
the provisions of this Section 12(d), with a copy in like manner to the
Holders as follows:
Canadian Imperial Bank of Commerce
CIBC WG Argosy Merchant Fund 2, L.L.C.
c/o CIBC Wood Gundy Securities Corp.
425 Lexington Avenue
New York, New York 10017
Facsimile No.: (212) 885-4998
Attention: Corporate Finance Department
with a copy to:
Cahill Gordon & Reindel
80 Pine Street
New York, New York 10005
Facsimile No.: (212) 269-5420
Attention: Roger Meltzer, Esq.
(ii) if to the Company or the Guarantors as follows:
Outdoor Systems, Inc.
2502 North Black Canyon Highway
Phoenix, Arizona 85009
Facsimile No.: (602) 248-0884
Attention: President
with a copy to:
Powell, Goldstein, Frazer & Murphy
191 Peachtree Street NE
16th Floor
Atlanta, Georgia 30303
Facsimile No.: (404) 572-6999
Attention: William B. Shearer, Esq.
32
-30-
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 telecopied.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the person giving the same to the trustee under the
Indenture at the address specified in such Indenture.
(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,
including, without limitation and without the need for an express assignment,
subsequent Holders of Registrable Securities.
(f) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(g) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(h) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE
AND PERFORMED WITHIN THE STATE OF NEW YORK, 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 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,
33
-31-
covenants and restrictions without including any of such that may
be hereafter declared invalid, illegal, void or unenforceable.
(j) Joint and Several Obligations. Each of the obligations of the Issuers
under this Agreement shall be joint and several obligations of each of them.
(k) Securities Held by the Company or Its Affiliates. Whenever the
consent or approval of Holders of a specified percentage of Registrable
Securities is required hereunder, Registrable Securities 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.
34
-32-
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
OUTDOOR SYSTEMS, INC.
By:___________________________________
Name:
Title:
THE GUARANTORS:
OS BASELINE, INC.
By:___________________________________
Name:
Title:
OUTDOOR SYSTEMS PAINTING, INC.
BY:___________________________________
Name:
Title:
OS ADVERTISING OF TEXAS PAINTING,
INC.
By:___________________________________
Name:
Title:
NEW YORK SUBWAYS ADVERTISING
CO., INC.
By:___________________________________
Name:
Title:
35
-33-
DECADE COMMUNICATIONS GROUP, INC.
By:___________________________________
Name:
Title:
BENCH ADVERTISING COMPANY OF
COLORADO, INC.
By:___________________________________
Name:
Title:
HOLDERS of NOTES:
CANADIAN IMPERIAL BANK OF
COMMERCE
By:___________________________________
Name:
Title:
HOLDERS of PREFERRED STOCK:
CIBC WG ARGOSY MERCHANT FUND
2, L.L.C.
By:___________________________________
Name:
Title: