1
EXHIBIT 99.10
_________________________________________________________________________
COMMON STOCK REGISTRATION RIGHTS AGREEMENT
DATED AS OF [ ], 1996
BETWEEN
OUTDOOR SYSTEMS, INC.
AND
CIBC WG ARGOSY MERCHANT FUND 2, L.L.C.
_________________________________________________________________________
2
TABLE OF CONTENTS
Page
1. Definitions ................................... 1
2. Registration Rights ........................... 6
3. Transfers of Warrant Shares ................... 10
4. Registration Procedures ....................... 18
5. Indemnification and Contribution .............. 22
6. Miscellaneous ................................. 25
a. No Inconsistent Agreements .. 25
b. Amendments and Waivers ...... 26
c. Notices ..................... 26
d. Successors and Assigns ...... 26
e. Rules 144 and 144A .......... 27
f. Counterparts ................ 27
g. Headings .................... 27
h. Governing Law ............... 27
i. Severability ................ 28
j. Entire Agreement ............ 28
Exhibit A
-i-
3
THIS COMMON STOCK REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made
and entered into as of [ ], 1996, between Outdoor Systems, Inc., a
Delaware corporation (the "Company"), and CIBC WG Argosy Merchant Fund 2,
L.L.C., a Delaware limited liability company (the "Purchaser").
This Agreement is made pursuant to the Securities Purchase Agreement,
dated as of July 9, 1996, between the Company and the Purchaser (the "Purchase
Agreement"), relating to the sale by the Company to the Purchaser of up to
$165,000,000 in aggregate liquidation value of its Senior Increasing Rate
Redeemable Preferred Stock, Series A, par value $1.00 per share (the "Preferred
Stock"), along with warrants, including certain additional warrants as provided
for in Section 5.5 of the Purchase Agreement (collectively, the "Warrants"),
for the purchase of shares of its Common Stock, par value $.01 per share
("Common Stock"). In order to induce the Purchaser to enter into the Purchase
Agreement, the Company has agreed to provide to the Purchaser and its direct
and indirect transferees (the "Holders"), among other things, the registration
rights for the Common Stock set forth in this Agreement. The execution of this
Agreement is a condition to the obligations of the Purchaser to purchase the
Preferred Stock and Warrants under the Purchase Agreement.
In consideration of the foregoing, the parties hereto agree as follows:
1. Definitions. As used in this Agreement, the following capitalized
defined terms shall have the following meanings:
"Affiliate" of any specified Person means any other Person which
directly or indirectly through one or more intermediaries controls, or is
controlled by, or is under common control with, such specified Person.
For the purposes of this definition, "control" (including, with
correlative meanings, the terms "controlling," "controlled by," and
"under common control with"), as used with respect to any Person, means
the possession, directly or indirectly, of the power to direct or cause
the direction of the management or policies of such Person, whether
through the ownership of voting securities, by agreement or otherwise;
provided, however, that beneficial ownership of at least 10% of the
voting securities of a Person shall be deemed to be control. Neither the
Purchaser nor any of its Affiliates shall be deemed to be an Affiliate
of the Company or of any of its Subsidiaries or Affiliates.
4
-2-
"Agreement" shall have the meaning set forth in the preamble.
"Business Day" shall mean a day that is not a Legal Holiday.
"Capital Stock" shall mean, with respect to any Person, any and all
shares or other equivalents (however designated) of capital stock,
partnership interests or any other participation, right or other interest
in the nature of an equity interest in such Person or any option, warrant
or other security convertible into any of the foregoing.
"Closing Date" shall mean the date of Closing as defined in the
Purchase Agreement.
"Common Stock" shall have the meaning set forth in the preamble.
"Company" shall have the meaning set forth in the preamble and shall
also include the Company's successors.
"Current Market Value" shall have the meaning provided therefor in
the Warrant Agreement, dated as of [ ], 1996, between the Company
and [ ], as warrant agent.
"Definitive Certificate" shall mean a certificate representing
Warrant Shares in definitive registered form, other than a Global
Certificate.
"Demand Registration" shall have the meaning set forth in Section
2.1.
"Depositary" shall mean, with respect to Shares represented by one
or more Global Certificates, The Depository Trust Company or another
person designated as Depositary by the Company, which must be a clearing
agency registered under the Exchange Act.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended from time to time.
"Global Certificate" shall mean a certificate representing all or
part of the Warrant Shares issued to the Depositary and bearing the
legend set forth in Section 3.2(g)(iii).
5
-3-
"Holder" shall have the meaning set forth in the preamble.
"Included Shares" shall have the meaning set forth in Section
2.1(a).
"indemnified party" shall have the meaning set forth in Section
5(c).
"indemnifying party" shall have the meaning set forth in Section
5(c).
"Legal Holiday" shall mean a Saturday, a Sunday or a day on which
banking institutions in New York, New York are required by law,
regulation or executive order to remain closed. If a payment date is a
Legal Holiday, payment may be made on the next succeeding day that is not
a Legal Holiday.
"Person" shall mean an individual, corporation, partnership, joint
venture, association, joint stock company, trust, unincorporated
organization, or other legal entity.
"Piggy-Back Registration" shall have the meaning set forth in
Section 2.2.
"Preferred Stock" shall have the meaning set forth in the preamble.
"proposed purchaser" shall have the meaning set forth in Section
3.3(a).
"Prospectus" means a prospectus which meets the requirements of
Section 10 of the Securities Act.
"Purchase Agreement" shall have the meaning set forth in the
preamble.
"Purchaser" shall have the meaning set forth in the preamble.
"Qualified Institutional Buyer" or "QIB" shall have the meaning
specified in Rule 144A under the Securities Act.
"Registrable Securities" shall mean the shares of Common Stock
issuable upon exercise of the Warrants. As to any particular Registrable
Securities, such securities shall cease to be Registrable Securities when
(i) a Registration
6
-4-
Statement with respect to such securities shall have
been declared effective under the Securities Act and such securities
shall have been disposed of pursuant to such Registration Statement, (ii)
such securities have been sold to the public pursuant to Rule 144(k) (or
any similar provision then in force, but not Rule 144A) under the
Securities Act, (iii) such securities shall have been otherwise
transferred by such Holder and new certificates for such securities not
bearing a legend restricting further transfer shall have been delivered
by the Company or its transfer agent and subsequent disposition of such
securities shall not require registration or qualification under the
Securities Act or any similar state law then in force or (iv) such
securities shall have ceased to be outstanding.
"Registration Expenses" shall mean all expenses incident to the
Company's performance of or compliance with this Agreement, including,
without limitation, all SEC and stock exchange or National Association of
Securities Dealers, Inc. registration and filing fees and expenses, fees
and expenses of compliance with securities or blue sky laws (including,
without limitation, reasonable fees and disbursements of counsel for the
underwriters in connection with blue sky qualifications of the
Registrable Securities), rating agency fees, printing expenses,
messenger, telephone and delivery expenses, fees and disbursements of
counsel for the Company and all independent certified public accountants
(but not including any underwriting discounts or commissions or transfer
taxes, if any, attributable to the sale of Registrable Securities by
Holders of such Registrable Securities).
"Registration Statement" shall mean any registration statement of
the Company which covers any of the Warrant Shares 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.
"Regulation S" shall mean Regulation S under the Securities Act.
"Requisite Shares" shall mean a number of Registrable Securities
then outstanding equal to not less than 25% of the Registrable Securities
held in the aggregate by all Holders.
7
-5-
"Restricted Security" shall have the meaning set forth in Rule
144(a)(3) under the Securities Act.
"Rule 144" shall mean 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 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" shall mean 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 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 415" shall mean 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" shall mean the Securities and Exchange Commission.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Selling Holder" shall mean a Holder who is selling Warrant Shares
in accordance with the provisions of Section 2.1 or 2.2 hereof.
"Stockholder" means each Holder.
"Transfer Agent" means any transfer agent or registrar appointed by
the Company for the Common Stock.
"Warrant Shares" means the shares of Common Stock issued and
issuable upon exercise of the Warrants.
"Warrants" shall have the meaning set forth in the preamble.
"Withdrawal Election" shall have the meaning set forth in Section
2.3.
8
-6-
2. Registration Rights.
1 Demand Registration.
(a) Request for Registration. If, at any time commencing
365 days from the date of this Agreement, there are any Registrable
Securities remaining outstanding, Holders owning, individually or in the
aggregate, at least the Requisite Shares may make a written request for
registration under the Securities Act of their Registrable Securities (a
"Demand Registration"). Any such request will specify the number of
Registrable Securities proposed to be sold and will also specify the intended
method of disposition thereof. Upon a demand, the Company will prepare, file
and use its best efforts to cause to be effective within 180 days of such
demand a Registration Statement for an offering to be made on a continuous
basis pursuant to Rule 415 under the Securities Act in respect of all the
Registrable Securities so requested to be registered, as well as all
Registrable Securities issuable upon the exercise of Warrants which may be
issued pursuant to the Purchase Agreement, and shall use its best efforts to
keep such Registration Statement continuously effective for a period of 36
months from its effectiveness date or such shorter period ending when all
Registrable Securities covered by such Registration Statement, including any
Registrable Securities issuable upon the exercise of Warrants as provided in
this sentence, have been sold in the manner set forth and as contemplated in
such Registration Statement. The Company shall give written notice of such
registration request within 10 days after the receipt thereof to all other
Holders. Within 20 days after receipt of such notice by any Holder, such
Holder may request in writing that Registrable Securities be included in such
registration and the Company shall include in the Demand Registration the
Registrable Securities of any such Selling Holder requested to be so included
(the "Included Shares"). Each such request by such other Selling Holders shall
specify the number of Included Shares proposed to be sold and the intended
method of disposition thereof. Subject to Section 2.1(b), in no event shall
the Company be required to register Registrable Securities pursuant to this
Section 2.1 on more than one occasion.
(b) Effective Registration. A registration will not be deemed to have
been effected as a Demand Registration unless it has been declared effective by
the SEC and the Company has complied in all material respects with its
obligations under this Agreement with respect thereto; provided that if, after
it has become effective, the offering of Registrable Securities pursuant to
such registration is or becomes the subject of any stop order,
9
-7-
injunction or other order or requirement of the SEC or any other
governmental or administrative agency, or if any court prevents or otherwise
limits the sale of Registrable Securities pursuant to the registration (for any
reason other than the act or omissions of the Selling Holders), such
registration will be deemed not to have been effected. If (i) a registration
requested pursuant to this Section 2.1 is deemed not to have been effected or
(ii) the registration requested pursuant to this Section 2.1 does not remain
effective for a period of at least 36 months beyond the effective date thereof
or such shorter period as provided for in Section 2.1(a), then the Company
shall continue to be obligated to effect an additional registration pursuant to
this Section 2.1. The Selling Holders of Registrable Securities shall be
permitted to withdraw all or any part of the Included Shares from a Demand
Registration at any time prior to the effective date of such Demand
Registration.
(c) Expenses. The Company will pay all Registration Expenses in
connection with the registrations requested pursuant to Section 2.1(a). Each
Holder shall pay all underwriting discounts and commissions and transfer taxes,
if any, relating to the sale or disposition of such Holder's Registrable
Securities pursuant to a registration statement requested pursuant to this
Section 2.1.
2.2 Piggy-Back Registration. If at any time 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 common 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 Securities as soon as practicable (but in
no event less than 20 Business Days before the anticipated filing date), and
such notice shall offer such Holders the opportunity to register such number of
shares of Registrable Securities as each such Holder may request (which request
shall specify the Registrable Securities intended to be disposed of by such
Selling Holder 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 Securities 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
10
-8-
included therein and to permit the sale or other disposition of such
Registrable Securities in accordance with the intended method of
distribution thereof except as otherwise provided in Section 2.3. Any Selling
Holder shall have the right to withdraw its request for inclusion of its
Registrable Securities in any Registration Statement pursuant to this Section
2.2 by giving written notice to the Company of its request to withdraw no later
than 5 Business 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 Holders. The Company will pay all Registration
Expenses in connection with each registration of Registrable Securities
requested pursuant to this Section 2.2, and each Holder shall pay all
underwriting discounts and commissions and transfer taxes, if any, relating to
the sale or disposition of such Holder's Registrable Securities pursuant to a
registration statement effected pursuant to this Section 2.2.
No registration effected under this Section 2.2, and no failure to effect
a registration under this Section 2.2, shall relieve the Company of its
obligation to effect a registration upon the request of Holders pursuant to
Section 2.1, and no failure to effect a registration under this Section 2.2 and
to complete the sale of shares of Common Stock in connection therewith shall
relieve the Company of any other obligation under this Agreement.
2.3 Reduction of Offering.
(a) Piggy-Back Registration. (i) If the managing underwriter(s) of any
underwritten offering described in Section 2.2 have informed, in writing, the
Selling Holders of the Registrable Securities requesting inclusion in such
offering that it is their opinion that the total number of shares which the
Company, the Selling Holders 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 Holders 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
11
-9-
other than the Selling Holders, pursuant to the demand registration
rights of any such securityholder, then the number of shares to be offered for
the account of the Selling Holders 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 2.2 notify the Selling Holders requesting
inclusion of Registrable Securities in such offering, that the kind of
securities that the Selling Holders, 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
Securities to be included in such offering shall be reduced as described in
clause (i) above or (y) if a reduction in the Registrable Securities pursuant
to clause (i) above would, in the judgment of the managing underwriter(s) or
underwriters, be insufficient to substantially eliminate such adverse effect
that inclusion of the Registrable Securities requested to be included would
have on such offering, such Registrable Securities will be excluded from such
offering.
(b) If, as a result of the proration provisions of this Section 2.3, any
Selling Holder shall not be entitled to include all Registrable Securities in a
Piggy-Back Registration that such Selling Holder has requested to be included,
such Selling Holder may elect to withdraw his request to include Registrable
Securities in such registration (a "Withdrawal Election"); provided, however,
that a Withdrawal Election shall be irrevocable and, after making a Withdrawal
Election, a Selling Holder shall no longer have any right to include
Registrable Securities in the registration as to which such Withdrawal Election
was made.
3.1 Transfers of Warrant Shares.
1 Generally.
(a) All Warrant Shares at any time and from time to time outstanding that
are Registrable Securities shall be held subject to the conditions and
restrictions set forth in this Section 3. All shares of Common Stock now or
hereafter held by a
12
-10-
Control Stockholder shall be held subject to the conditions
and restrictions set forth in this Section 3. Each Holder of Warrant Shares by
executing this Agreement or by accepting a certificate representing Common
Stock or other indicia of ownership therefor from the Company agrees with the
Company to such conditions and restrictions.
(b) Each Holder of Registrable Securities agrees that it will not Transfer
any Warrant Shares or any interest therein except in compliance with Sections
3.2 and 3.3 hereof.
3.2 Registration of Transfers and Exchanges.
(a) Transfer and Exchange of Definitive Certificates. The Company and the
Transfer Agent shall not be obligated to register the transfer or exchange of
any Definitive Certificate that is a Restricted Security unless such Warrants
or Warrant Shares are delivered to the Transfer Agent duly endorsed or
accompanied by written instruments of transfer and are accompanied by the
following additional information and documents, as applicable:
(A) if such Restricted Security is 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 Restricted Security is being transferred
to a Qualified Institutional Buyer in accordance with Rule
144A or pursuant to an exemption from registration in
accordance with Rule 144 or Regulation S or pursuant to an
effective registration statement under the Securities Act, a
certification to that effect (in substantially the form of
Exhibit A hereto) and, with respect to transfers pursuant to
Rule 144 or Regulation S, an opinion of counsel reasonably
acceptable to the Company and the Transfer Agent to the
effect that such transfer does not require registration under
Securities Act; or
(C) if such Restricted Security 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 reasonably acceptable to the Company and
13
-11-
to the Transfer Agent to the effect that such transfer does not
require registration under the Securities Act.
(b) Restrictions on Transfer of a Definitive Certificate for a
Beneficial Interest in a Global Certificate. A Definitive Certificate
may not be exchanged for a beneficial interest in a Global Certificate except
upon satisfaction of the requirements set forth below. Upon receipt by the
Transfer Agent of a Definitive Certificate, duly endorsed or accompanied by
appropriate instruments of transfer, in form satisfactory to the Transfer
Agent, together with:
(A) if such Definitive Certificate represents
Restricted Securities, certification, substantially in the
form of Exhibit A hereto, that such Definitive Certificate is
being transferred to a Qualified Institutional Buyer (as
defined in Rule 144A) in accordance with Rule 144A; and
(B) whether or not such Definitive Certificate
represents Restricted Securities, 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
Common Stock represented by the Global Certificate,
then the Transfer Agent shall cancel such Definitive Certificate 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 Common Stock represented by the Global Certificate 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 Certificate and
Beneficial Interests Therein. The transfer and exchange of a Global
Certificate or beneficial interests therein shall be effected through the
Depositary, in accordance with this Agreement (including the restrictions on
transfer set forth herein) and the procedures of the Depositary therefor.
(d) Transfer of a Beneficial Interest in a Global Certificate
for a Definitive Certificate.
14
-12-
(i) Any person having a beneficial interest in a Global
Certificate may upon request exchange such beneficial interest for a
Definitive Certificate. Upon receipt by the 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 a beneficial interest in shares that are Restricted
Securities only, 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 Qualified Institutional Buyer in accordance with Rule
144A or pursuant to an exemption from registration in
accordance with Rule 144 or Regulation S or pursuant to an
effective registration statement under the Securities Act, a
certification to that effect from the transferee or transferor
(in substantially the form of Exhibit A hereto) and, with
respect to transfers pursuant to Rule 144 or Regulation S, an
opinion of counsel reasonably acceptable to the Company and
the Transfer Agent to the effect that such transfer does not
require registration under the Securities Act; or
(C) 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 from the transferee or transferor (in substantially the
form of Exhibit A hereto) and an opinion of counsel from the
transferee or transferor reasonably acceptable to the Company
and to the Transfer Agent to the effect that such transfer
does not require registration under the Securities Act,
15
-13-
then the Transfer Agent will cause, in accordance with the standing
instructions and procedures existing between the Depositary and the
Transfer Agent, the aggregate amount of the Global Certificate 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 signed by the Chief Executive Officer, the
President, any Vice President and the Chief Financial Officer, the
Treasurer, the Secretary or any Assistant Secretary of the Company
(an "Officers' Certificate"), the Transfer Agent will authenticate
and deliver to the transferee a Definitive Certificate.
(ii) Definitive Certificates issued in exchange for a beneficial
interest in a Global Certificate pursuant to this Section 3.2(d) shall
be registered in such names and in such authorized denominations 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 Definitive
Certificates to the persons in whose names such Definitive
Certificates are registered.
(e) Restrictions on Transfer and Exchange of Global Certificates.
Notwithstanding any other provisions of this Agreement (other than the
provisions set forth in subsection (f) of this Section 3.2), 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) Issuance of Definitive Certificates in Absence of Depositary. If at
any time:
(i) the Depositary for the Global Certificates 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 Definitive
Certificates under this Agreement and such action would not cause the
Common Stock
16
-14-
to be ineligible for trading in the Private Offerings,
Resales and Trading through Automated Linkages ("PORTAL") Market,
Laureen Ransome
American International Group
99 John Street 18th Floor
New York, N.Y. 10005
then the Company will execute, and the Transfer Agent, upon receipt of an
Officers' Certificate requesting the authentication and delivery of Definitive
Certificates, will authenticate and deliver Definitive Certificates, in an
aggregate number equal to the aggregate number of shares represented by the
Global Certificate, in exchange for such Global Certificate.
(g) Legends.
(i) Except as permitted by the following paragraph (ii), each
Definitive Certificate (and all certificates for shares of Common
Stock issued in exchange therefor or substitution thereof) shall
bear a legend substantially to the following effect:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES
ACT OF 1933, AS AMENDED (THE "ACT"), OR ANY STATE SECURITIES LAWS
AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED
STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS
EXCEPT AS SET FORTH BELOW. BY ITS ACQUISITION HEREOF, THE HOLDER
(1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER"
(AS DEFINED IN RULE 144A UNDER THE ACT) OR (B) IT IS AN
INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(a)(1),
(2), (3) or (7) UNDER THE ACT (AN "ACCREDITED INVESTOR") OR (C) IT
IS NOT A U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE
TRANSACTION, (2) AGREES THAT IT WILL NOT WITHIN THREE YEARS AFTER
ORIGINAL ISSUANCE OF THIS SECURITY RESELL OR OTHERWISE TRANSFER
THIS SECURITY EXCEPT (A) TO THE COMPANY OR ANY OF ITS
SUBSIDIARIES, (B) INSIDE THE UNITED STATES TO A QUALIFIED
INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE ACT,
(C) INSIDE THE UNITED STATES TO AN INSTITUTIONAL ACCREDITED
INVESTOR THAT, PRIOR TO SUCH TRANSFER, FURNISHES (OR HAS FURNISHED
ON ITS BEHALF BY A U.S. BROKER-DEALER) TO THE TRANSFER AGENT A
SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND
17
-15-
AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER OF THIS SECURITY (THE
FORM OF WHICH LETTER CAN BE OBTAINED FROM THE TRANSFER AGENT FOR
THIS SECURITY), (D) OUTSIDE THE UNITED STATES IN AN OFFSHORE
TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE ACT, (E)
PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144
UNDER THE ACT (IF AVAILABLE) OR (F) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE ACT AND (3) AGREES THAT IT WILL
GIVE TO EACH PERSON TO WHOM THIS SECURITY IS TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN CONNECTION WITH
ANY TRANSFER OF THIS SECURITY WITHIN THREE YEARS AFTER THE
ORIGINAL ISSUANCE OF THIS SECURITY, IF THE PROPOSED TRANSFEREE IS
AN INSTITUTIONAL ACCREDITED INVESTOR OR SUCH TRANSFER IS MADE IN
ACCORDANCE WITH CLAUSES (D) OR (E) ABOVE, THE HOLDER MUST, PRIOR
TO SUCH TRANSFER, FURNISH TO THE TRANSFER AGENT AND THE COMPANY
SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS EITHER
OF THEM MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS
BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT
SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE ACT. AS USED
HEREIN, THE TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND
"U.S. PERSON" HAVE THE MEANING GIVEN TO THEM BY REGULATION S UNDER
THE ACT.
(ii) Upon any sale or transfer of any share of Common Stock that is a
Restricted Security (including any Restricted Security represented by
a Global Certificate) pursuant to Rule 144 under the Securities Act or
an effective registration statement under the Securities Act:
(A) in the case of any Restricted Security
represented by a Definitive Certificate, the Transfer Agent
shall permit the holder thereof to exchange
such Restricted Security for a Definitive Certificate that
does not bear the legend set forth above and rescind any
related restriction on the transfer of such Restricted
Security; and
(B) any Restricted Security 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 3.2(c) through (f); provided,
however, that with respect to any request for an exchange of a
Restricted Security that is represented by a Global
Certificate for a Definitive Certificate
18
-16-
that does not bear the legend set forth above, which
request is made in reliance upon Rule 144, the holder thereof
shall certify in writing to the Transfer Agent that such
request is being made pursuant to Rule 144 (such certification
to be substantially in the form of Exhibit A hereto) and shall
provide an opinion of counsel reasonably acceptable to the
Company to the effect that such transfer does not require
registration under the Securities Act.
(iii) Any Global Certificate shall bear a legend (which would be in
addition to any other legends required in the case of a Restricted
Security) in substantially the following form:
THIS SECURITY IS A GLOBAL CERTIFICATE AND IS REGISTERED IN
THE NAME OF A DEPOSITARY OR A NOMINEE OF A DEPOSITARY OR A
SUCCESSOR DEPOSITARY. THIS SECURITY IS NOT EXCHANGEABLE FOR
SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE
DEPOSITARY OR ITS NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES
DESCRIBED IN THE COMMON STOCK REGISTRATION RIGHTS AGREEMENT DATED
AS OF [ ], 1996 AMONG THE COMPANY AND THE STOCKHOLDERS
PARTY THERETO (THE "REGISTRATION RIGHTS AGREEMENT") AND NO
TRANSFER OF THIS SECURITY (OTHER THAN A TRANSFER OF THIS SECURITY
AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY
A NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY OR ANOTHER NOMINEE
OF THE DEPOSITARY) 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.
19
-17-
(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 Definitive Certificates, redeemed, repurchased or cancelled, such Global
Certificate 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 Definitive Certificates, redeemed,
repurchased or cancelled, the number of shares of Common Stock represented by
such Global Certificate shall be reduced and an endorsement shall be made on
such Global Certificate, by the Transfer Agent to reflect such reduction.
(i) Obligations with Respect to Transfers and Exchanges of Definitive
Certificates.
(i) To permit registrations of transfers and exchanges, the
Company shall execute, at the Transfer Agent's request, and the
Transfer Agent shall countersign and register Definitive
Certificates and Global Certificates.
(ii) All shares issued in the form of Definitive
Certificates and Global Certificates upon any
registration, transfer or exchange of Definitive
Certificates or Global Certificates shall be validly
issued, fully paid and nonassessable.
4. Registration Procedures. In connection with the obligations of the
Company with respect to any Registration Statement pursuant to Sections 2.1 and
2.2 hereof, the Company shall:
(a) prepare and file with the SEC a Registration Statement on the
appropriate form under the Securities Act, which form (i) shall be
selected by the Company and (ii) shall comply as to form in all material
respects with the requirements of the applicable form and include all
financial statements required by the SEC to be filed therewith, and the
Company shall use its best efforts to cause such Registration Statement
to become effective and remain effective in accordance with Section 2
hereof;
(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 effective for the applicable period, cause
each Prospectus to be supplemented by any required prospectus supplement
20
-18-
and, as so supplemented, to be filed pursuant to Rule 424 under the
Securities Act;
(c) furnish to each Holder of Registrable Securities and to each
underwriter of an underwritten offering of Registrable Securities, if
any, without charge, as many copies of each Prospectus, including each
preliminary Prospectus, and any amendment or supplement thereto and such
other documents as such Holder or underwriter may reasonably request, in
order to facilitate the public sale or other disposition of the
Registrable Securities;
(d) use its best efforts to register or qualify the Registrable
Securities under all applicable state securities or "blue sky" laws of
such jurisdictions as any Holder thereof covered by a Registration
Statement shall reasonably request in writing by the time the applicable
Registration Statement is declared effective by the SEC, and do any and
all other acts and things which may be reasonably necessary or advisable
to enable such Holder to consummate the disposition in each such
jurisdiction of such Registrable Securities owned by such Holder;
provided, however, that the Company shall not be required to (i) qualify
generally to do business in any jurisdiction where it is not then so
qualified, (ii) take any action that would subject it to general service
of process in any jurisdiction in which it is not then so subject or
(iii) subject itself to taxation in excess of a nominal dollar amount in
any such jurisdiction;
(e) notify each Holder of Registrable Securities promptly and, if
requested by such Holder, confirm such advice in writing (i) when a
Registration Statement has become effective and when any post-effective
amendments and supplements thereto become effective, (ii) of any request
by the SEC or any state securities authority for amendments and
supplements to a Registration Statement and Prospectus or for additional
information after the Registration Statement has become effective, (iii)
of the issuance by the SEC or any state securities authority of any stop
order suspending the effectiveness of a Registration Statement or the
initiation of any proceedings for that purpose, (iv) if, between the
effective date of a Registration Statement and the closing of any sale of
Registrable Securities covered thereby, the representations and
warranties of the Company contained in any underwriting agreement,
securities sales agreement or other similar agreement, if any, relating
to the offering cease to be true and correct in all material
21
-19-
respects or if the Company receives any notification with respect to
the suspension of the qualification of the Registrable Securities for
sale in any jurisdiction or the initiation of any proceeding for such
purpose and (v) of the happening of any event during the period a
Registration Statement is effective which makes any statement made in
such Registration Statement or the related Prospectus untrue in any
material respect or which requires the making of any changes in such
Registration Statement or Prospectus in order to make the statements
therein not misleading;
(f) make every reasonable effort to obtain the withdrawal of any
order suspending the effectiveness of a Registration Statement at the
earliest possible moment;
(g) furnish to each Holder of Registrable Securities and to the
Purchasers, without charge, at least one conformed copy of each
Registration Statement and any post-effective amendment thereto (with
documents incorporated therein by reference or exhibits thereto);
(h) cooperate with the Selling Holders of Registrable Securities to
facilitate the timely preparation and delivery of certificates
representing Registrable Securities to be sold and not bearing any
restrictive legends and registered in such names as the Selling Holders
may reasonably request at least two business days prior to the closing of
any sale of Registrable Securities;
(i) upon the occurrence of any event contemplated by Section 4(e)(v)
hereof, use reasonable efforts to prepare a supplement or post-effective
amendment to a Registration Statement or the related Prospectus or any
document incor porated therein by reference or file any other required
document so that, as thereafter delivered to the purchasers of the
Registrable Securities, such Prospectus will not contain any untrue
statement of a material fact or omit to state a material fact necessary
to make the statements therein, in light of the circumstances under which
they were made, not misleading; provided, however, that the Company shall
not be required to amend or supplement a Registration Statement, any
related Prospectus or any document incorporated therein by reference in
the event that, and for so long as, an event occurs and is continuing as
a result of which the Registration Statement, any related Prospectus or
any document incorporated therein by reference as then amended or
supplemented would, in the Company's good faith judgment, contain an
untrue statement of a material fact or
22
-20-
omit to state a material fact necessary in order to make the statements
therein, in light of the circumstances under which they are made, not
misleading. The Company agrees to notify each Holder to suspend use of
the Prospectus as promptly as practicable after the occurrence of such an
event, and each Holder hereby agrees to suspend use of the Prospectus
until the Company has amended or supplemented the Prospectus to correct
such misstatement or omission. At such time as such public disclosure is
otherwise made or the Company determines in good faith that such
disclosure is not necessary, the Company agrees promptly to notify each
Holder of such determination, to amend or supplement the Prospectus if
necessary to correct any untrue statement or omission therein and to
furnish each Holder such numbers of copies of the Prospectus as so
amended or supplemented as each Holder may reasonably request;
(j) a reasonable time prior to the filing of any Registration
Statement, any Prospectus, any amendment to a Registration Statement or
amendment or supplement to a Prospectus or any document which is to be
incorporated by reference into a Registration Statement or a Prospectus
after initial filing of a Registration Statement, provide copies of such
document to the Holders and make available for discussion of such
document the representatives of the Company as shall be reasonably
requested by the Holders of Registrable Securities;
(k) obtain a CUSIP number for the Common Stock;
(l) (i) make reasonably available for inspection by a representative
of, and counsel for, any managing underwriter participating in any
disposition pursuant to a Registration
Statement, all relevant financial and other records, pertinent corporate
documents and properties of the Company and (ii) cause the Company's
officers, directors and employees to supply all relevant information
reasonably requested by such representative, counsel or any such managing
underwriter in connection with any such Registration Statement;
(m) take all action necessary so that the Warrant Shares will be
listed on the principal securities exchanges and markets within the
United States of America (including the NASDAQ National Market System),
if any, on which other shares of Common Stock are then listed; and
23
-21-
(n) if requested by the Holders in connection with any Registration
Statement, shall use its best efforts to cause (w) counsel for the
Company to deliver an opinion relating to the Registration Statement and
the Common Stock, in customary form, (x) its officers to execute and
deliver all customary documents and certificates requested by a
representative of the Holders or any managing underwriter, as applicable
and (y) its independent public accountants to provide a comfort letter in
customary form.
The Company may, as a condition to such Holder's participation in any
Registration Statement, require each Holder of Registrable Securities to (i)
furnish to the Company such information regarding the Holder and the proposed
distribution by such Holder of such Registrable Securities as the Company may
from time to time reasonably request in writing and (ii) agree in writing to be
bound by this Agreement.
5. Indemnification and Contribution. (a) The Company agrees to indemnify
and hold harmless each Holder and each person, if any, who controls such Holder
within the meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act, from and against all losses, claims, damages and liabilities
(including, without limitation, any reasonable legal fees or other expenses
actually incurred by any Holder or any such controlling or affiliated person in
connection with defending or investigating any such action or claim) caused by
any untrue statement or alleged untrue statement of a material fact contained
in any Registration Statement (or any amendment thereto) pursuant to which
Registrable Securities were registered under the Securities Act, or caused by
any omission or alleged omission to state therein a material fact necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading, or caused by any untrue statement
or alleged untrue statement of a material fact contained in any Prospectus (as
amended or supplemented if the Company shall have furnished any amendments or
supplements thereto), or caused by any omission or alleged omission to state
therein a material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading, except insofar
as such losses, claims, damages or liabilities are caused by any such untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with information relating to any Holder furnished to the
Company in writing by such Holder expressly for use in any such Registration
Statement or Prospectus; provided that the foregoing indemnity with respect to
any preliminary prospectus shall not inure to the benefit of any Holder (or to
the benefit of any
24
-22-
person controlling such Holder) from whom the person asserting any such
losses, claims, damages or liabilities purchased Registrable Securities if such
untrue statement or omission or alleged untrue statement or omission made in
such preliminary prospectus is eliminated or remedied in the related Prospectus
(as amended or supplemented if the Company shall have furnished any amendments
or supplements thereto) and a copy of the related Prospectus (as so amended or
supplemented) shall have been furnished to such Holder at or prior to the sale
of such Registrable Securities, as the case may be, to such person; and
provided, further, that the Company shall not be liable in any such case to the
extent that any such loss, claim, damage, liability or expense arises out of or
is based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in any preliminary prospectus if (i) such Holder failed
to send or deliver a copy of the Prospectus with or prior to the delivery of
written confirmation of the sale of Registrable Securities and (ii) the
Prospectus would have completely corrected such untrue statement or omission.
(b) Each Holder agrees, severally and not jointly, to indemnify and hold
harmless the Company, its directors, its officers and each person, if any, who
controls the Company within the meaning of either 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 such Holder, but only with reference to
information relating to such Holder furnished to the Company in writing by such
Holder expressly for use in any Registration Statement (or any amendment
thereto), any Prospectus (or any amendment or supplement thereto) or any
preliminary prospectus. The liability of any Holder under this paragraph (b)
shall in no event exceed the proceeds received by such Holder from sales of
Registrable Securities giving rise to such obligations.
(c) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to either paragraph (a) or (b) above, such person (the
"indemnified party") shall promptly notify the person against which such
indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding
and shall pay the reasonable fees and disbursements of such counsel relating to
such proceeding. In any such proceeding, any indemnified party shall have the
right to retain its own counsel, but the fees and
25
-23-
expenses of such counsel shall be at the expense of such indemnified
party unless (i) the indemnifying party and the indemnified party shall have
mutually agreed in writing to the retention of such counsel or (ii) the
indemnifying party fails promptly to assume the defense of such proceeding or
fails to employ counsel reasonably satisfactory to such indemnified party or
parties or (iii) the named parties to any such proceeding (including any
impleaded parties) include both such indemnified party or parties and the
indemnifying parties or an affiliate of the indemnifying parties or such
indemnified parties, and there may be one or more defenses available to such
indemnified party or parties that are different from or additional to those
available to the indemnifying parties, in which case, if such indemnified party
or parties notifies the indemnifying parties in writing that it elects to
employ separate counsel of its choice at the expense of the indemnifying
parties, the indemnifying parties shall not have the right to assume the
defense thereof and such counsel shall be at the expense of the indemnifying
parties, it being understood, however, that unless there exists a conflict
among indemnified parties, the indemnifying parties shall not, in connection
with any one such proceeding or separate but substantially similar or related
proceedings 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 of attorneys (together with appropriate local counsel) at any
time for such indemnified party or parties. The indemnifying party 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 judgment for
the plaintiff, the indemnifying party agrees to indemnify the indemnified party
from and against any loss or liability by reason of such settlement or
judgment. No indemnifying party shall, without the prior written consent of
the indemnified party, effect any settlement of any pending or threatened pro
ceeding in respect of which any indemnified party is a party, and indemnity
could have been sought hereunder by such indemnified party, unless such
settlement includes an unconditional release of such indemnified party from all
liability on claims that are the subject matter of such proceeding.
(d) To the extent the indemnification provided for in paragraph (a) or (b)
of this Section 5 is unavailable to an indemnified party in respect of any
losses, claims, damages or liabilities, then each indemnifying party under such
paragraph, in lieu of indemnifying such indemnified party thereunder, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities in such proportion as is
appropriate to reflect the relative
26
-24-
fault of the Company on the one hand and the Holders on the other hand
in connection with the statements or omissions that resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative fault of the Company on the one hand and the
Holders on the other hand shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or
the omission or alleged omission to state a material fact relates to
information supplied by the Company or by the Holders and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
(e) The Company and each Holder agrees that it would not be just or
equitable if contribution pursuant to this Section 5 were determined by pro
rata allocation or by any other method of allocation that does not take account
of the equitable considerations referred to in paragraph (d) above. The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages and liabilities referred to in paragraph (d) above shall be deemed to
include, subject to the limitations set forth above, any legal or other
expenses reasonably incurred (and not otherwise reimbursed) by such indemnified
party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 5, in no event shall a Selling
Holder be required to contribute any amount in excess of the amount by which
proceeds received by such Selling Holder from sales of Registrable Securities
exceeds the amount of damages that such Selling Holder has otherwise been
required to pay by reason of such untrue or allegedly untrue statement or
omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The remedies provided for in this
Section 5 are not exclusive and shall not limit any rights or remedies which
may otherwise be available to any indemnified party at law or in equity.
6. Miscellaneous.
(a) No Inconsistent Agreements. The Company has not entered into nor will
the Company on or after the date of this Agreement enter into any agreement
which is inconsistent with the rights granted to the Holders of Registrable
Securities in this Agreement or otherwise conflicts with the provisions hereof.
The rights granted to the Holders hereunder do not in any way conflict with
and are not inconsistent with the rights granted to
27
-25-
the holders of the Company's other issued and outstanding securities,
if any, under any such agreements.
(b) 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 Company has obtained the written consent of Holders of at
least a majority in aggregate number of the outstanding Registrable Securities
affected by such amendment, modification, supplement, waiver or consent;
provided, however, a waiver or consent to departure from the provisions hereof
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 the rights of other Holders of
Registrable Securities may be given by the Holders of a majority of the
Registrable Securities proposed to be sold.
(c) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand delivery, registered
first-class mail, telex, telecopier, or any courier guaranteeing overnight
delivery (i) if to a Holder, at the most current address given by such Holder
to the Company by means of a notice given in accordance with the provisions of
this Section 6(c), which address initially is, with respect to the Purchaser,
the address set forth in the Purchase Agreement, with a copy to: Cahill Gordon
& Reindel, 80 Pine Street, New York, New York 10005, Attention: Roger Meltzer,
Esq.; and (ii) if to the Company, initially at the Company's address set forth
in the Purchase Agreement and thereafter at such other address, notice of which
is given in accordance with the provisions of this Section 6(c), with a copy
to: Powell, Goldstein, Frazer & Murphy, 191 Peachtree Street NE, 16th Floor,
Atlanta, Georgia 30303, Attention: William B. Shearer, Esq.
All such notices and communications shall be deemed to have been duly
given: (i) at the time delivered by hand, if personally delivered, five
business days after being deposited in the mail, postage prepaid, if mailed;
(ii) when answered back, if telexed; (iii) when receipt is acknowledged, if
telecopied; and (iv) on the next business day, if timely delivered to an air
courier guaranteeing overnight delivery.
(d) Successors and Assigns. This Agreement shall inure to the benefit of
and be binding upon the successors, assigns and transferees of each of the
parties, including, without limitation and without the need for an express
assignment, subsequent Holders; provided, however, that nothing herein
28
-26-
shall be deemed to permit any assignment, transfer or other disposition
of Registrable Securities in violation of the terms of this Agreement or the
Purchase Agreement. If any transferee of any Holder shall acquire Registrable
Securities, in any manner, whether by operation of law or otherwise, such
Registrable Securities shall be held subject to all of the terms of this
Agreement, and by taking and holding such Registrable Securities such person
shall be conclusively deemed to have agreed to be bound by and to perform all
of the terms and provisions of this Agreement and such person shall be entitled
to receive the benefits hereof.
(e) 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 and, if at any time the Company is not required to file such reports, it
will, upon the request of any Holder of Registrable Securities, make publicly
available other information of a like nature so long as necessary to permit
sales pursuant to Rule 144 or Rule 144A under the Securities Act. The Company
further covenants that so long as any Registrable Securities remain outstanding
to make available to any Holder of Registrable Securities in connection with
any sale thereof, the information required by Rule 144A(d)(4) under the
Securities Act in order to permit resales of such Registrable Securities
pursuant to (a) such Rule 144A, or (b) any similar rule or regulation hereafter
adopted by the SEC.
(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.
29
-27-
(i) Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
(j) Entire Agreement. This Agreement, together with the Purchase
Agreement, is intended by the parties as a final expression of their agreement,
and is intended to be a complete and exclusive statement of the agreement and
understanding of the parties hereto in respect of the subject matter contained
herein and therein.
30
-28-
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
OUTDOOR SYSTEMS, INC.
By: _____________________________
Name:
Title:
CIBC WG ARGOSY MERCHANT
FUND 2, L.L.C.
By: _____________________________
Name:
Title:
31
EXHIBIT A
CERTIFICATE TO BE DELIVERED UPON EXCHANGE
OR REGISTRATION OF RESTRICTED SECURITIES
Re: Common Stock, par value $.01 per share ("Common Stock"), of Outdoor
Systems, Inc.
This Certificate relates to shares of Common Stock held in* ___ book-entry
or* _______ definitive 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
shares of Common Stock in definitive, registered form equal to its beneficial
interest in the shares of Common Stock represented by 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 shares of Common Stock.
In connection with such request, the Transferor does hereby certify that
Transferor is familiar with the Common Stock Registration Rights Agreement (the
"Agreement") relating to the shares of Common Stock and the restrictions on
transfers thereof as provided in Section 3.2 of such Agreement, and that the
transfer of shares of Common Stock requested hereby does not require
registration under the Securities Act (as defined below) because:
/ / Such shares of Common Stock are being acquired for the Transferor's own
account, without transfer (in satisfaction of Section 3.2(a)(A) or Section
3.2(d)(i)(A) of the Agreement).
/ / Such shares of Common Stock are being transferred to a qualified
institutional buyer (as defined in Rule 144A under the Securities Act of 1933,
as amended (the "Securities Act")), in reliance on Rule 144A or in accordance
with Regulation S under the Securities Act. If such transfer is in accordance
with Regulation S, an opinion of counsel to the effect that such transfer does
not
32
-2-
require registration under the Securities Act accompanies this Certificate.
/ / Such shares of Common Stock are being transferred in accordance with
Rule 144 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.
/ / Such shares of Common Stock are being transferred pursuant to an
effective registration statement under the Securities Act.
/ / Such shares of Common Stock 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.