REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this "Agreement") is entered into
as of May 31, 1996, by and among SINCLAIR BROADCAST GROUP, INC., a Maryland
corporation (the "Company"), RIVER CITY BROADCASTING, L.P., a Delaware limited
partnership ("River City"), and such other persons and entities who shall have
executed this Agreement and whose names appear on the Schedule of Registration
Rights Holders attached hereto as Exhibit A, as such Schedule may be amended
from time to time to reflect permitted additional Holders (as hereinafter
defined).
RECITALS
WHEREAS, the Company and River City have entered into that certain
Asset Purchase Agreement, dated as of April 10, 1996, as amended and restated as
of May 31, 1996 (the "Asset Purchase Agreement"), pursuant to which, in
pertinent part, the parties thereto agreed that the Company is to purchase all
of River City's right, title and interest in certain of River City's assets;
WHEREAS, pursuant to the terms of the Asset Purchase Agreement, River
City will receive a portion of the purchase price in shares of the Company's
Series A Exchangeable Preferred Stock, par value $.01 per share, which will be
exchanged for and converted into shares of Series B Convertible Preferred Stock,
par value $.01 per share (the "Series B Convertible Preferred Stock"), which
will be convertible into shares of Class A Common Stock, par value $.01 per
share (the "Common Stock");
WHEREAS, the Company and Barry Baker ("Baker") have entered into that
certain Employment Agreement (the "Employment Agreement") and Stock Option
Agreement (the "Stock Option Agreement"), each dated as of April 10, 1996,
pursuant to which Baker has been granted stock options to purchase shares of
Common Stock; and
WHEREAS, pursuant to the terms of the Asset Purchase Agreement, the
Employment Agreement and the Stock Option Agreement, the Company has agreed to
register the shares of Common Stock received by the Holders (hereinafter defined
pursuant to the terms and conditions set forth herein).
AGREEMENTS
NOW THEREFORE, in consideration of the foregoing recitals and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
I.
DEFINITIONS
1. "Commission" means the Securities and Exchange Commission or any
other federal agency at the time administering the Securities Act.
2. "Exchange Act" means the Securities Exchange Act of 1934, as
amended, or any similar federal statute and the rules and regulations of the
Commission thereunder, all as the same shall be in effect from time to time.
3. "Governmental Authority" means any nation or government, any state
or other political subdivision thereof and any court, panel, judge, board,
bureau, commission, agency or other entity, body or other Person exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government.
4. "Holders" shall mean and include River City and any other person or
persons or entity or entities who have executed this Agreement and whose names
appear on the Schedule of Registration Rights Holders including any transferee
permitted pursuant to Section VII(d) of this Agreement.
5. "Person" means an individual or corporation, partnership, trust,
unincorporated organization, association or other entity and includes any
Governmental Authority.
6. "Registrable Securities" means, collectively, (i) shares of Common
Stock issuable upon conversion of the Series B Convertible Preferred Stock
issued to River City under the Asset Purchase Agreement, (ii) shares of Common
Stock issued or issuable upon conversion of any shares of Series B Convertible
Preferred Stock that are issued in payment of the dividend preference with
respect to any of the shares of Series B Convertible Preferred Stock described
in the preceding clause (i) (and without regard to whether or not such shares of
Series B Convertible Preferred Stock are then held by River City), (iii)
securities issued or issuable with respect to any of the shares of Common Stock
referred to in clauses (i) and (ii) above, upon any stock split, stock dividend,
recapitalization or similar event, (iv) shares of Common Stock issued or
issuable upon exercise of options granted to Barry Baker pursuant to the Stock
Option Agreement, and (v) shares of Common Stock otherwise issuable pursuant to
the terms of the Employment Agreement. Any Registrable Security will cease to be
a Registrable Security when (i) such Registrable Security has been transferred
pursuant to an effective registration statement under the Securities Act
covering such Registrable Security (but not including any transfer exempt from
registration under the Securities Act), (ii) such Registrable Security is no
longer held of record by River City or any of the Holders or their successors or
assigns, or (iii) the holder of such Registrable Security is then able to use
Rule 144 promulgated under the Securities Act (or any successor provision) to
transfer such Registrable Security without regard to any restrictions pursuant
to Rule 144(k).
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7. "Securities Act" means the Securities Act of 1933, as amended, or
any similar federal statute and the rules and regulations of the Commission
thereunder, all as the same shall be in effect from time to time.
II.
REGISTRATION STATEMENT
(a) As soon as practicable following the closing of the Asset Purchase
Agreement, the Company shall file with the Commission a registration statement
on Form S-3 (or such other form as may be appropriate) (the "Registration
Statement"), with respect to the sale of all of the Registrable Securities
issued and outstanding at the time of such filing plus such other Registrable
Securities (that are not issued and outstanding at such time) as may properly be
registered at such time. As soon as practicable following the issuance of
additional Registrable Securities, the Company shall cause the registration
(through amendment of an existing Registration Statement or filing of an
additional Registration Statement) with respect to such Registrable Securities
not previously registered. The Company shall use its best efforts to have the
Registration Statement declared effective by the Commission under the Securities
Act as soon as reasonably practicable, and to keep the Registration Statement
effective as long as there are Registrable Securities issued or issuable. The
Company further agrees to supplement or make amendments to the Registration
Statement if required by the registration form used by the Company for the
Registration Statement or by the instructions applicable to such registration
form or by the Securities Act, and to comply with all other requirements of the
Securities Act applicable to the Company with respect to the registration of all
Registrable Shares covered by the Registration Statement and in accordance with
the intended methods of disposition by the Holders.
(b) The Company shall have the right to postpone for up to ninety (90)
days the sales of any Registrable Securities pursuant to the Registration
Statement if the Company reasonably believes that such sales will have a
material adverse effect on any proposal or plan by the Company or any of its
subsidiaries to engage in any financing, acquisition of assets (other than in
the ordinary course of business) or any merger, consolidation, tender offer or
other significant transaction; provided that the Company shall have the right to
so postpone such filing or effectiveness only one (1) time during any period of
twelve (12) consecutive months.
III.
REGISTRATION PROCEDURES
(a) COMPANY OBLIGATIONS. Following the closing of the Asset Purchase
Agreement, the Company will as expeditiously as possible:
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(1) furnish to the Holders, prior to the filing of the
Registration Statement (or any prospectus, amendment or supplement thereto),
copies of the Registration Statement as proposed to be filed, which documents
will be subject to the reasonable review and comments of the Holders (and their
respective attorneys), and the Company will not file any registration statement,
any prospectus or any amendment or supplement thereto (or any such documents
incorporated by reference) to which the Holders shall reasonably object in
writing; and thereafter furnish to the Holders such number of copies of the
Registration Statement, each amendment and supplement thereto (including any
exhibits thereto), the prospectus included in the Registration Statement
(including each preliminary prospectus) and such other documents as any Holder
may reasonably request in writing in order to facilitate the disposition of the
Registrable Securities; provided, however, that the obligation of the Company to
deliver copies of prospectuses or preliminary prospectuses to any Holder shall
be subject to the receipt by the Company of reasonable assurances from such
Holder that such Holder will comply with the applicable provisions of the
Securities Act and of such other securities or blue sky laws as may be
applicable in connection with any use of such prospectuses or preliminary
prospectuses;
(2) use its best efforts to register or qualify the
Registrable Securities under such other securities or blue sky laws of such
jurisdictions as a Holder may reasonably request and do any and all other acts
and things which may be reasonably necessary to enable the Holder to consummate
the disposition in such jurisdictions of the Registrable Securities; provided,
however, that the Company will not be required to (i) qualify generally to do
business in any jurisdiction where it would not otherwise be required to qualify
but for this subsection, (ii) subject itself to taxation in any such
jurisdiction, or (iii) consent to general service of process in any such
jurisdiction;
(3) apply, prior to or concurrently with the filing of the
Registration Statement, to the Nasdaq National Market System for the listing of
the Registrable Securities and use its best efforts to obtain approval for
listing of such stock;
(4) notify the Holders in writing at any time when a
prospectus relating to the Registrable Securities is required to be delivered
under the Securities Act, of the occurrence of an event requiring the
preparation of a supplement or amendment to such prospectus so that, as
thereafter delivered to the purchasers of the Registrable Securities, such
prospectus will not contain an 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 promptly prepare, file with the Commission
and make available to the Holders any such supplement or amendment;
(5) make available for inspection by the Holders and any
attorney, accountant or other professional retained thereby (collectively, the
"Inspectors"), all financial and other records, pertinent corporate documents
and properties of the Company (collectively, the "Records") as shall be
reasonably necessary to enable them to exercise their due diligence
responsibility, and cause the Company's officers, directors and employees to
supply all information reasonably requested by any such Inspectors in connection
with the Registration Statement. Records that the Company determines, in good
faith, to be confidential and which
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it notifies the Inspectors are confidential shall not be disclosed by the
Inspectors unless (i) in the judgment of counsel to the Company the disclosure
of such Records is necessary to avoid or correct a misstatement or omission in
the Registration Statement, (ii) the release of such Records is ordered pursuant
to a subpoena or other order from a court of competent jurisdiction, or (iii)
the information in such Records is generally available to the public. The
Holders agree that information obtained by them as a result of such inspections
shall be deemed confidential and shall not be used by them as the basis for any
market transactions in the securities of the Company unless and until such
information is made generally available to the public. The Holders further agree
that they will, upon learning that disclosure of such Records is sought in a
court of competent jurisdiction, give notice to the Company and allow the
Company, at its expense, to undertake appropriate action to prevent disclosure
of the Records deemed confidential; and
(6) obtain a "cold comfort" letter from its independent public
accountants in customary form and covering such matters of the type customarily
covered by "cold comfort" letters as the Holders or the managing underwriter of
any underwritten offering of Registrable Securities reasonably request;
(7) obtain an opinion or opinions from its counsel in
customary form and reasonably satisfactory to the Holders and their respective
legal counsel;
(8) make generally available to the Holders earnings
statements, which need not be audited, satisfying the provisions of Section
11(a) of the Securities Act no later than forty-five days after the end of the
twelve-month period beginning with the first month of the first fiscal quarter
commencing after the effective date of the Registration Statement, which
earnings statements shall cover said twelve-month period;
(9) promptly notify each Holder of the issuance or threatened
issuance of any stop order or other order suspending the effectiveness of the
Registration Statement or preventing or suspending the use of any preliminary
prospectus, prospectus or prospectus supplement, use reasonable efforts to
prevent the issuance of any such threatened stop order or other order, and, if
any such order is issued, use its best efforts to obtain the lifting or
withdrawal of such order at the earliest possible moment and promptly notify
each Holder of any such lifting or withdrawal;
(10) if requested by any Holder, the Company will promptly
incorporate in a prospectus supplement or post-effective amendment to the
Registration Statement such information concerning such Holder and such Holder's
intended method of distribution as such Holder reasonably requests to be
included therein (and which is not inappropriate, in the reasonable judgment of
the Company, after consultation with its outside legal counsel), including,
without limitation, with respect to any change in the intended method of
distribution, the amount or kind of Registrable Shares being offered by such
Holder, the offering price for such Registrable Shares or any other terms of the
offering or distribution of the Registrable Shares, and the Company will make
all required filings of such prospectus supplement or post-effective amendment
as soon as possible after being notified of the matters to be incorporated in
such prospectus supplement or post-effective amendment;
(11) as promptly as practicable after the filing with the SEC
of any document which is incorporated by reference into a registration
statement, notify each Holder of such filing and deliver a copy of such document
to each Holder;
(12) cooperate with the Holders to facilitate the timely
preparation and delivery of certificates, not bearing any restrictive legends,
unless otherwise required by the Holders, representing the Registrable Shares to
be sold under the Registration Statement, and enable such Registrable Shares to
be in such denominations and registered in such names as such Holders may
request;
(13) cooperate with the Holders, their respective legal
counsel and any other interested party (including any interested broker-dealer)
in making any filings or submissions required to be made, and the furnishing of
all appropriate information in connection therewith, with the NASD;
(14) cause its subsidiaries to take all action necessary to
effect the registration of the Registrable Shares contemplated hereby, including
preparing and filing any required financial or other information;
(15) make available to the transfer agent for each class or
series of Registrable Shares a supply of certificates or other instruments
evidencing or constituting such Registrable Shares which shall be in a form
complying with the requirements of such transfer agent, promptly after a
registration thereof; and
(16) use its best efforts to keep each such registration or
qualification effective, including through new filings, amendments or renewals,
during the period the Registration Statement is required to be kept effective
and do any and all other acts or thing reasonably necessary or advisable in
connection with such registration or qualifications in all jurisdictions in
which qualification or registration is necessary.
(b) INFORMATION FROM HOLDERS. The Company may require the Holders to
promptly furnish in writing to the Company such information regarding the
distribution of the Registrable Securities as it may from time to time
reasonably request and such other information as may be legally required in
connection with such registration.
(c) SUSPENSION OF SALES. The Holders agree that, upon receipt of any
notice from the Company of the happening of any event of the kind described in
subsection III(a)(4) hereof, they will immediately discontinue disposition of
Registrable Securities pursuant to the Registration Statement until they receive
copies of the supplemented or amended prospectus contemplated by subsection
III(a)(4) hereof, and, if so directed by the Company, the Holders will deliver
to the Company all copies, other than permanent file copies then in their
possession,
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of the most recent prospectus (including any prospectus supplement) covering
such Registrable Securities at the time of receipt of such notice.
(d) UNDERWRITTEN OFFERINGS. To the extent that any Holders (including
River City) seeking to offer at least 1,000,000 shares of Registrable
Securities, whether or not issued, in the aggregate (as adjusted for any stock
split or reverse stock split) propose to distribute their Registrable Securities
through an underwritten offering, the Company shall enter into an underwriting
agreement in customary form with a managing underwriter of nationally recognized
standing selected for such underwriting by the requesting Holders holding a
majority of the Registrable Securities proposed to be registered and otherwise
approved by the Company, which approval shall not be unreasonably withheld or
delayed; provided, that the Company shall not be required to enter into such an
agreement or take the other actions required by it pursuant to this paragraph
more often than once in any six month period. All Holders proposing to
distribute their securities through such underwriting shall (together with the
Company) enter into an underwriting agreement in customary form with the
managing underwriter selected for such underwriting pursuant to this Article
III. Notwithstanding any other provision of this Article III, if the managing
underwriter determines that marketing factors require a limitation of the number
of shares to be underwritten, the underwriter may exclude some or all
Registrable Securities from such registration and underwriting. The Company
shall so advise all Holders distributing their securities through such
underwriting of any such limitation, and the number of shares of Registrable
Securities held by Holders that may be included in the underwriting shall be
allocated among the requesting Holders in proportion, as nearly as practicable,
to the respective amounts of Registrable Securities requested to be registered
and held by all such requesting Holders at the time of filing the Registration
Statement. If any Holder disapproves of the terms of any such underwriting, such
Holder may elect to withdraw therefrom by written notice to the Company and the
managing underwriter. In the event of any such underwritten public offering, the
Company shall perform its obligations under the underwriting agreement, in usual
and customary form, with the managing underwriter of such offering including, if
required, filing a new registration statement or an amendment to an existing
registration statement. In connection with any underwritten offering permitted
pursuant to this Article III(d), the Company shall make its senior officers
reasonably available to participate in "road show" presentations with respect to
the sale of the securities covered by the Registration Statement. In connection
with any underwritten offering pursuant to this Article III(d), the Company
shall, to the extent requested by the underwriters for such offering, agree to
refrain from the issuance or sale in any public offering of any shares of Common
Stock of the Company for a period of up to 90 days following the date of the
underwriting agreement entered into with respect to such underwritten offering.
(e) "PIGGY-BACK" REGISTRATIONS. (i) If, at any time after the closing
of the Asset Purchase Agreement, either the Company or the Holders propose to
sell any Class A Common Stock in an underwritten public offering, then in each
such case the Company or the Holders, as appropriate, shall, not later than 15
days prior to the execution of an underwriting agreement with respect to such
offering, give written notice thereof to each Holder or the Company, as
appropriate. Such notice shall specify, at a minimum, the number and class of
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shares or equity securities so proposed to be sold, the estimated date of the
underwriting agreement, any proposed means of distribution of the shares, the
proposed managing underwriter or underwriters of such shares and a good faith
estimate of the proposed maximum offering price thereof. Upon the written
direction of any Holder or the Company, as appropriate, given within 10 days of
the receipt by such Holder or the Company, as appropriate, of any such written
notice (which direction shall specify the number of Registrable Securities
intended to be disposed of by such Holder or the Company and the intended method
of distribution thereof), the Company or the Holder shall include in the
offering any or all of the Registrable Securities then owned by such Holder
requesting such inclusion or the Company (a "Requesting Shareholder"), to the
extent necessary to permit the sale or other disposition of the shares
constituting such number of Registrable Securities as such Requesting
Shareholder shall have so directed the Company, or the Company shall have
directed the Holders, to be so included. Any Requesting Shareholder shall have
the right to withdraw such direction by giving written notice to the Company or
the Holders, as appropriate, to such effect within 5 days after giving such
direction.
(ii) If any managing underwriter of an offering shall advise
the Company and the Holders in writing that the inclusion in the offering of
some or all of the Registrable Securities sought to be registered by the
Requesting Shareholders creates a significant risk that the price per share the
Company (in the case of an offering initially proposed by the Company) or the
Holders (in the case of an offering initially proposed by the Holders) will
derive from such offering will be adversely affected or that the number of
shares or securities sought to be offered is too large a number to be reasonably
sold, then the Company or the Holder, as appropriate, will include in such
offering such number of shares or securities as the Company and such Holders are
so advised can be sold in such offering without such an effect (the "Maximum
Number"), in the following order of priority: (i) first, such number of shares
or securities as the Company (in the case of an offering initially proposed by
the Company) or the Holders (in the case of an offering initially proposed by
the Holders) shall have set forth in the notice of its intent to offer and (ii)
second, if the number of shares or securities to be offered under clause (i) is
less than the Maximum Number, such number of Registrable Securities of each
Requesting Shareholder pro rata in proportion to the number of shares or
securities sought to be offered by the Requesting Shareholders which, when added
to the number of shares or other equity securities to be offered by the Company
(in the case of an offering initially proposed by the Company) or the Holders
(in the case of an offering initially proposed by the Holders), equals the
Maximum Number.
IV.
REGISTRATION EXPENSES
All fees and expenses incident to the Company's performance of or
compliance with this Agreement shall be borne by the Company, including, without
limitation, the following fees and expenses: (a) all SEC, National Association
of Securities Dealers, Inc., stock exchange or other
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registration and filing fees and listing fees; (b) the fees and expenses of the
Company's compliance with securities or blue sky laws (including reasonable fees
and disbursements of counsel in connection with blue sky qualifications of the
Registrable Securities); (c) printing expenses; (d) the fees and disbursements
of counsel for the Company and the fees and expenses for independent certified
public accountants (including the expenses of any annual audit, special audit,
if necessary, and "cold comfort" letters required by or incident to the
performance of any agreement with the underwriters of any underwritten offering
of Registrable Securities) underwriters and other persons retained by the
Company in connection with such registration; (e) fees of transfer agents and
registrars; and (f) messenger and delivery expenses. In addition, the Company
shall pay its internal expenses (including, without limitation, all salaries and
expenses of its officers and employees performing legal or accounting duties),
the expense of any annual audit or quarterly review, the expense of any
liability insurance obtained by the Company, the expenses of one counsel for all
of the Holders with respect to the initial registration and with respect to each
underwritten offering pursuant to Article III, and the expenses and fees for
listing or authorizing for quotation the securities to be registered on each
securities exchange on which any shares of the Common Stock are then listed or
quoted.
V.
INDEMNIFICATION; CONTRIBUTION
(a) INDEMNIFICATION BY THE COMPANY. The Company agrees to
indemnify and hold harmless each Holder, each of such Holder's officers and
directors and partners, and each of such Holder's legal counsel and independent
accountants, if any, and each person controlling any such persons within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act,
with respect to which registration, qualification or compliance has been
effected pursuant to this Agreement, and each underwriter, if any, and each
person who controls any underwriter within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act, from and against any and all
losses, claims, damages, liabilities and expenses (including reasonable costs of
investigation, any legal and any other expenses reasonably incurred in
connection with investigating, preparing or defending any such claim, loss,
damage, liability or action, and any of the foregoing incurred in settlement of
any litigation, commenced or threatened) arising out of or based upon any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement or prospectus contained therein or in any amendment or
supplement thereto or in any preliminary prospectus, or 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 not misleading,
or any violation by the Company of any rule or regulation promulgated under the
Securities Act or any state securities laws applicable to the Company and
relating to action or inaction by the Company in connection with any
registration, qualification or compliance required hereunder or arising out of
or based upon the Company's breach of any representation, warranty, covenant or
agreement contained in this Agreement; provided, however, that the Company shall
not be liable in any such case to the extent any of such losses, claims,
damages, liabilities or expenses arise out of, or are based upon, any such
untrue statement or omission or allegation thereof
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based upon information furnished in writing to the Company by such Holder, as
appropriate, expressly for use therein.
(b) INDEMNIFICATION BY HOLDERS. Each Holder severally agrees
to indemnify and hold harmless the Company, its directors and 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 set forth above in (a), but only with
respect to information furnished in writing by such Holder, or on its behalf
expressly for use in the Registration Statement or prospectus relating to the
Registrable Securities, any amendment or supplement thereto or any preliminary
prospectus, under the heading "Selling Shareholders" and "Distribution" and
provided that the obligation of each Holder to indemnify will be several and not
joint. In case any action or proceeding shall be brought against the Company or
its directors or officers, or any such controlling person, in respect of which
indemnity may be sought against the Holder, the Holder shall have the rights and
duties given to the Company, and the Company or its directors or officers or
such controlling person shall have the rights and duties given to the Holder, by
the preceding subsection (a) hereof.
(c) CONDUCT OF INDEMNIFICATION PROCEEDINGS. If any action or
proceeding (including any governmental investigation) shall be brought or
asserted against any person entitled to indemnification under subsections (a) or
(b) above (an "Indemnified Party") in respect of which indemnity may be sought
from any party who has agreed to provide such indemnification (an "Indemnifying
Party"), the Indemnifying Party shall assume the defense thereof, including the
employment of counsel reasonably satisfactory to such Indemnified Party, and
shall assume the payment of all expenses. Such Indemnified Party shall have the
right to employ separate counsel in any such action and to participate in the
defense thereof, but the fees and expenses of such counsel shall be at the
expense of such Indemnified Party unless (i) the Indemnifying Party has agreed
to pay such fees and expenses, or (ii) such Indemnified Party shall have been
advised by counsel that there is an actual or potential material conflict of
interest on the part of counsel employed by the Indemnifying Party to represent
such Indemnified Party (in which case, if such Indemnified Party notifies the
Indemnifying Party in writing that Indemnified Party elects to employ separate
counsel at the expense of the Indemnifying Party, the Indemnifying Party shall
not have the right to assume the defense of such action or proceeding on behalf
of such Indemnified Party; it being understood, however, that the Indemnifying
Party shall not, in connection with any one cause action or proceeding or
separate but substantially similar or related actions or 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 all such Indemnified
Parties, which firm shall be designated in writing by such Indemnified Parties).
The Indemnifying Party shall not be liable for any settlement of any such action
or proceeding or any threatened action or proceeding effected without its
written consent, but if settled with its written consent or if there be a final
judgment of the plaintiff in any such action or proceedings, the Indemnifying
Party shall indemnify and hold harmless such Indemnified Parties from and
against any loss or liability (to the extent stated above) by reason of such
settlement or judgment. The
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failure of any Indemnified Party to give prompt notice of a claim for
indemnification hereunder shall not relieve the Indemnifying Party of its
obligations under this Agreement, unless such failure is prejudicial to the
ability of the Indemnifying Party to defend the action. No Indemnifying Party,
in the defense of any such claim or litigation, shall, except with the consent
of each Indemnified Party, consent to entry of any judgment or enter into any
settlement which does not include as an unconditional term thereof the giving by
the claimant or plaintiff to such Indemnified Party of a release from all
liability in respect of such claim or litigation.
(d) CONTRIBUTION. If the indemnification provided for in this
Section 5 is unavailable to the Indemnified Parties in respect of any losses,
claims, damages, liabilities or judgment referred to herein, then such
Indemnifying Party, in lieu of Indemnifying such Indemnified Party, shall
contribute to the amount paid or payable by such Indemnified Party as a result
of such losses, claims, damages, liabilities and judgments in the following
manner: as between the Company on the one hand and any Indemnified Party
entitled to indemnification under Section V(b) on the other, in such proportion
as is appropriate to reflect the relative fault of the Company on the one hand
and any Indemnified Party entitled to indemnification under Section V(b) on the
other in connection with the statements or omissions which resulted in such
losses, claims, damages, liabilities or judgments, as well as any other relevant
equitable considerations. The relative fault of the Company on the one hand and
of any Indemnified Party entitled to indemnification under Section V(b) on the
other 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 such party,
and the party's relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. No person guilty
of fraudulent misrepresentation (within the means of subsection 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation.
(e) SURVIVAL. The indemnity and contribution agreements
contained in this Section 5 shall remain operative and in full force and effect
with respect to any sales of Registrable Securities made pursuant to the
Registration Statement regardless of (i) any termination of this Agreement, (ii)
any investigation made by or on behalf of any Indemnified Party or by or on
behalf of the Company, and (iii) the consummation of the sale or successive
resale of the Registrable Securities.
VI.
EXCHANGE RIGHTS
The Company shall give notice (the "Trigger Event Notice") to the
Holders of a Trigger Event (as defined in the Articles Supplementary to the
Charter of the Company adopted on _____ ___, 1996 (the "Articles
Supplementary")) within 30 days after the occurrence of such Trigger Event in
such form as the Articles Supplementary require that notice be given to holders
of Series B Preferred Stock. Thereafter, each Holder of shares of Class A Common
Stock issued upon conversion of such Holder's Series B Preferred Stock prior to
a Trigger Event shall
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have the right (the "Exchange Right") to exchange such Common Shares back into
the number of shares of Series B Preferred Stock for which such shares of Common
Stock were exchanged. Each Holder shall exercise the Exchange Right by giving a
notice (an "Exchange Notice") to the Company within 30 days following receipt of
the Trigger Event Notice, accompanied by certificates for the shares to be
exchanged. Within five business days after receipt of an Exchange Notice and
share certificates, the Company shall issue to the shareholder certificates
representing the number of shares of Series B Preferred Stock for which such
shares of Class A Common Stock represented by the certificates surrendered were
exchanged, together with such dividend payments or accruals as would have been
paid or accrued on such shares if they had been outstanding since the date of
the Trigger Event and such notices as were delivered to holders of Series B
Preferred Stock since the Trigger Event.
VII.
MISCELLANEOUS
(a) RULES 144 AND 144A. The Company covenants that following
the registration of Registrable Shares it will file any reports required to be
filed by it under the Securities Act and the Exchange Act so as to enable
Holders holding Registrable Shares to sell such Registrable Shares without
registration under the Securities Act within the limitation of the exemptions
provided by (i) Rules 144 and 144A under the Securities Act, as each such Rule
may be amended from time to time, or (ii) any similar rule or rules hereafter
adopted by the SEC. Upon the request of any such Holder, the Company will
forthwith deliver to such Holder a written statement as to whether it has
complied with such requirements.
(b) AMENDMENTS AND WAIVERS. The provision of this Agreement
may not be amended, modified or supplemented, and waivers or consents to
departures from the provisions hereof may not be given other than as mutually
agreed upon in writing by the Company and the Holders of a majority of the
Registrable Securities.
(c) NOTICES. All notices and other communications provided for
or permitted hereunder shall be made in writing by hand delivery, regular mail,
registered first-class mail, telex, fax or air courier guaranteeing overnight
delivery:
(i) if to the Company:
Sinclair Broadcast Group, Inc.
2000 W. 41st Street
Baltimore, Maryland 21211
Fax Number: (410) 467-5043
Attn: David B. Amy
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with copies to:
Thomas & Libowitz, P.A.
100 Light Street, Suite 1100
Baltimore, Maryland 21202
Fax Number: (410) 752-2046
Attn: Steven A. Thomas, Esq.
and
Wilmer, Cutler & Pickering
100 Light Street
Baltimore, Maryland 21202
Fax Number: (410) 986-2828
Attn: George P. Stamas, Esq. or John B. Watkins, Esq.
(ii) if to River City:
River City Broadcasting, L.P.
1215 Cole Street
St. Louis, Missouri 63106-3897
Fax Number: (314) 259-5709
Attn: Barry Baker
with a copy to:
Dow, Lohnes & Albertson
A Professional Limited Liability Company
1205 New Hampshire Avenue
Suite 800
Washington, D.C. 20036-6802
Fax Number: (202) 776-2222
Attn: John Byrnes
and
Baker & Botts, L.L.P.
2001 Ross Avenue
Dallas, Texas 75201
Fax Number: (214) 953-6503
Attn: Andrew Baker
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(iii) if to the other Holders, to their respective
addresses and fax numbers listed on the
signature pages hereto.
(d) SUCCESSORS AND ASSIGNS. No Holder may assign any rights or
benefits under this Agreement without prior written consent of the Company;
provided, that (i) River City may transfer Registrable Securities to its
partners (and the general partner of River City may further transfer Registrable
Securities to its stockholders), (ii) any Holder may transfer Registrable
Securities to any entity controlling, controlled by, or under common control
with such Holder, and (iii) any individual may transfer Registrable Securities
to any member of his immediate family (i.e., a spouse, child, stepchild, parent
or sibling), or to his or her heirs, executors or estate pursuant to the laws of
descent and distribution, and any such transferee shall retain the rights of the
transferor under this Agreement provided such transferee executes and becomes
bound by the terms of this Agreement, and each such transferee shall become a
Holder hereunder. The Company may not assign any rights or benefits under this
Agreement without prior written consent of the Holders of a majority of the
Registrable Securities. This Agreement shall inure to the benefit of and be
binding upon the permitted successors and assigns of the Company, River City and
the other Holders.
(e) COUNTERPARTS. This Agreement may be executed in a number
of identical counterparts and it shall not be necessary for the Company, River
City and the Partners to execute each of such counterparts, but when each has
executed and delivered one or more of such counterparts, the several parts, when
taken together, shall be deemed to constitute one and the same instrument,
enforceable against each in accordance with its terms. In making proof of this
Agreement, it shall not be necessary to produce or account for more than one
such counterpart executed by the party against whom enforcement of this
Agreement is sought.
(f) HEADINGS. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(g) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF MARYLAND, WITHOUT REGARD
TO PRINCIPLES OF CONFLICTS OR CHOICE OF LAW.
(h) SEVERABILITY. If any provision of this Agreement is held
to be illegal, invalid or unenforceable under present or further laws effective
during the term of this Agreement, such provision shall be fully severable; this
Agreement shall be construed and enforced as if such illegal, invalid or
unenforceable provision had never comprised a part of this Agreement; and the
remaining provisions of this Agreement shall remain in full force and effect and
shall not be affected by the illegal, invalid or unenforceable provision or by
its severance from this Agreement.
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(i) ENTIRE AGREEMENT. This Agreement and the Asset Purchase
Agreement are intended by the Company and the Holders as final expression of
their agreement and is intended to be a complete and exclusive statement of
their agreement and understanding in respect of the subject matter contained
herein. This Agreement supersedes all prior agreements and understandings
between the Company, and Holders with respect to such subject matter.
(j) THIRD PARTY BENEFICIARIES. Other than Indemnified Parties
not a party hereto, this Agreement is intended for the benefit of the Company,
the Holders and their respective successors and assigns and is not for the
benefit of, nor may any provision hereof be enforced by, any other person or
entity.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
THE COMPANY:
SINCLAIR BROADCAST GROUP, INC.
By: /s/ David B. Amy
------------------------------
Name: David B. Amy
Title: Chief Financial Officer
RIVER CITY BROADCASTING, L.P.
By: Better Communications, Inc.,
its General Partner
By: /s/ Robert G. Quicksilver, VI
-------------------------------
Name: Robert G. Quicksilver
Title: Vice President
Signature Lines, Names, Addresses and Fax Numbers of other Holders To Appear
in Exhibit A, to be amended as provided herein.]
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EXHIBIT A
Schedule of Registration Rights Holders
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