Exhibit 99.2
SECURITIES RESALE REGISTRATION RIGHTS AGREEMENT
Dated as of December 22, 1995
by and among
TRIBUNE COMPANY
and
SOFTKEY INTERNATIONAL INC.
SECURITIES RESALE REGISTRATION RIGHTS AGREEMENT
This SECURITIES RESALE REGISTRATION RIGHTS AGREEMENT (this
"Agreement") is made and entered into as of December 22, 1995 by and among
SOFTKEY INTERNATIONAL INC., a Delaware corporation (the "Company"), and TRIBUNE
COMPANY, a Delaware corporation (the "Purchaser"), which Purchaser (i) has
agreed to purchase from the Company $150,000,000 principal amount of 5 1/2%
Senior Convertible/ Exchangeable Notes due 2000 (the "Notes") pursuant to the
Purchase Agreement (as defined below) and (ii) will acquire shares of Common
Stock (as defined below) pursuant to the Merger Agreement (as defined below).
This Agreement is made pursuant to (i) the Securities Purchase
Agreement dated as of November 30, 1995 (the "Purchase Agreement") by and among
the Company and the Purchaser and (ii) the Agreement and Plan of Merger dated as
of November 30, 1995 providing for two separate reverse subsidiary mergers of
wholly owned subsidiaries of the Company with and into wholly owned subsidiaries
of the Purchaser (the "Merger Agreement"). In order to induce the Purchaser to
purchase the Notes, the Company has agreed to provide the registration rights
set forth in this Agreement. The execution and delivery of this Agreement is
provided for in the Purchase Agreement.
The parties hereby agree as follows:
SECTION 1. DEFINITIONS
As used in this Agreement, the following capitalized terms
shall have the following meanings:
Act: Securities Act of 1933, as amended.
Agreement: As defined in the preamble hereto.
Broker-Dealer: Any broker or dealer registered under
the Exchange Act (as hereinafter defined).
Certificate of Designation: The Certificate of
Designation for the Preferred Shares.
Closing Date: The earliest to occur of (a) the closing
of the transactions contemplated by the Merger Agreement and (b)
the purchase and sale of the Notes to the Purchaser.
Commission: Securities and Exchange Commission.
Common Stock: Common Stock of the Company, par value
$.01 per share.
Company: As defined in the preamble hereto.
-1-
Effectiveness Target Date: As defined in Section 3
-------------------------
hereof.
Exchange Act: Securities Exchange Act of 1934, as
amended.
Exempt Resales: Any transaction exempt from the registration
requirements of the Act in which the Purchaser sells the Notes, including
without limitation sales (i) to "qualified institutional buyers," as such term
is defined in Rule 144A under the Act ("QIBs"), (ii) to institutional
"accredited investors," as such term is defined in Rule 501(a)(1), (2), (3) or
(7) of Regulation D under the Act ("Accredited Institutions") and (iii) outside
the United States, to certain persons in offshore transactions in reliance on
Regulation S under the Act.
Holder: As defined in Section 2(b) hereof.
Indemnified Holder: As defined in Section 6(a) hereof.
Indenture: The Indenture by and among the Company and State
Street Bank and Trust Company, as trustee (the "Trustee"), pursuant to which the
Notes are to be issued, as such Indenture as amended, modified or supplemented
from time to time in accordance with the terms thereof.
Interest Payment Date: As defined in the Indenture and
the Notes.
NASD: National Association of Securities Dealers, Inc.
Person: An individual, partnership, corporation,
trust, unincorporated organization or a government, agency or
political subdivision thereof.
Preferred Shares: The Company's 5 1/2% Series C
Convertible Preferred Stock into which the Notes are exchangeable
at the option of the Holders thereof.
Prospectus: The prospectus included in the Registration
Statement, as amended or supplemented including without limitation by any
post-effective amendments thereto, and all material incorporated by reference
into such prospectus.
Purchase Agreement: As defined in the preamble hereto.
Purchaser: As defined in the preamble hereto.
Registrable Securities: As defined in Section 3(a)(i)
hereto.
Registration Statement: The continuous registration
statement of the Company which is filed pursuant to Rule 415
under the Act, including the Prospectus included therein, all
-2-
amendments and supplements thereto (including any post-effective amendments) and
all exhibits and material incorporated by reference therein.
Shelf Filing Deadline: As defined in Section 3 hereof.
TIA: The Trust Indenture Act of 1939 (15 U.S.C.
Section 77aaa-77bbbb), as amended and in effect on the date of
the Indenture.
Transfer Restricted Securities: Each Note, each Preferred
Share and each share of Common Stock (i) issuable upon conversion of the Notes
or Preferred Shares and (ii) issuable to Purchaser under the Merger Agreement
held by the Purchaser or, except in the case of shares of Common Stock issuable
to Purchaser under the Merger Agreement, its transferee until the date on which
such Note, Preferred Share or share of Common Stock, as the case may be, has
been registered under the Act and disposed of in accordance with an effective
Registration Statement.
Underwritten Registration or Underwritten Offering: A
registration in which securities of the Company are sold to an
underwriter for reoffering to the public.
SECTION 2. SECURITIES SUBJECT TO THIS AGREEMENT
(a) Transfer Restricted Securities: The securities
entitled to the benefits of this Agreement are the Transfer
Restricted Securities and, more particularly, the Registrable
Securities.
(b) Holders of Transfer Restricted Securities. A Person is
deemed to be a holder of Transfer Restricted Securities (each, a "Holder")
whenever such Person owns Transfer Restricted Securities of record.
SECTION 3. REGISTRATION
(a) Shelf Registration. The Company hereby agrees to:
(i) use its best efforts to file or cause to be filed the
Registration Statement on or prior to the 90th day after the Closing
Date (the "Shelf Filing Deadline"), which Registration Statement shall
provide for resales of all Transfer Restricted Securities except (A)
Transfer Restricted Securities held by transferees of any Holder who or
which becomes a Holder after the Registration Statement is declared
effective and (B) Transfer Restricted Securities held by the transferee
of any Holder who or which holds less than $5,000,000 in principal
amount of the Notes or the equivalent (on an "as exchanged" or "as
converted" basis) in
-3-
Preferred Shares or shares of Common Stock (such Transfer Restricted
Securities being hereinafter referred to as the "Registrable
Securities"), provided that the Holders thereof shall have provided the
information required pursuant to Section 3(b) hereof; and
(ii) use all reasonable efforts to cause the Registration
Statement to be declared effective by the Commission as promptly as
practicable after the Closing Date (the "Effectiveness Target Date").
Subject to any notice by the Company in accordance with Section 4(b) hereof of
the existence of any fact or event of the kind described in Section 4(b)(iii)(D)
hereof, the Company shall use all reasonable efforts to keep the Registration
Statement continuously effective, supplemented and amended as required by the
provisions of Sections 4(a) and (b) hereof to the extent necessary to ensure
that it is available for resales of Transfer Restricted Securities by the
Holders of Transfer Restricted Securities entitled to the benefit of this
Section 3(a) and to ensure that the Registration Statement conforms to the
requirements of this Agreement, the Act and the policies, rules and regulations
of the Commission as announced from time to time thereunder for a period of at
least three years following the Closing Date.
(b) Certificated Securities; Provision by Holders of Certain
Information in Connection with the Registration Statement. No Holder of
Registrable Securities may include any of its Transfer Restricted Securities in
the Registration Statement pursuant to this Agreement unless (i) such Holder
holds such Transfer Restricted Securities in the form of physical certificates
and (ii) until such Holder furnishes to the Company in writing, within 20
business days after receipt of a request therefor, such information as the
Company may reasonably request for use in connection with the Registration
Statement or any Prospectus or preliminary Prospectus included therein. In
connection with all such requests for information from Holders of Registrable
Securities, the Company shall notify such Holders of the requirements set forth
in the preceding sentence. Each Holder as to which the Registration Statement is
being effected agrees to furnish promptly to the Company all information
required to be disclosed in order to make the information previously furnished
to the Company by such Holder not materially misleading.
SECTION 4. REGISTRATION PROCEDURES
(a) In connection with the Registration Statement, the Company
shall comply with all the provisions of Section 4(b) below and shall use all
reasonable efforts to effect such registration to permit the resale of the
Registrable Securities
-4-
being sold in accordance with the intended method or methods of
distribution thereof.
(b) In connection with the Registration Statement and any
Prospectus required by this Agreement, the Company shall:
(i) subject to Section 4(b)(xv) hereof, use all reasonable
efforts to keep the Registration Statement continuously effective and
provide all requisite financial statements for the period specified in
Section 3 of this Agreement; upon the occurrence of any event that
would cause the Registration Statement or the Prospectus contained
therein (A) to contain a material misstatement or omission or (B) not
to be effective and usable for resales of Registrable Securities during
the period required by this Agreement, the Company shall file promptly
an appropriate amendment to the Registration Statement correcting any
such misstatement or omission, and, in the case of either clause (A) or
(B), except as set forth in Section 4(b)(xv) below, use all reasonable
efforts to cause such amendment to be declared effective and the
Registration Statement and the related Prospectus to become usable for
their intended purpose(s) as soon as practicable thereafter;
(ii) prepare and file with the Commission such amendments and
post-effective amendments to the Registration Statement as may be
necessary to keep the Registration Statement effective for the
applicable period set forth in Section 3 hereof, or such shorter period
as will terminate when all Registrable Securities covered by the
Registration Statement have been sold; cause the Prospectus to be
supplemented by any required Prospectus supplement, and as so
supplemented, cause the Prospectus to be filed pursuant to Rule 424
under the Act and to comply fully with the applicable provisions of
Rules 424 and 430A under the Act in a timely manner; and comply with
the provisions of the Act with respect to the disposition of all
securities covered by the Registration Statement during the applicable
period in accordance with the intended method or methods of
distribution by the sellers thereof set forth in the Registration
Statement or supplement to the Prospectus;
(iii) advise the underwriter(s), if any, and selling Holders
promptly and, if requested by such Persons, to confirm such advice in
writing, (A) when the Prospectus or any Prospectus supplement or
post-effective amendment to the Registration Statement has been filed,
and, with respect to the Registration Statement or any post-effective
amendment thereto, when the same has become effective, (B) of any
request by the Commission for amendments to the Registration Statement
or amendments or supplements to the Prospectus or for additional
information relating thereto, (C) of the issuance by the Commission of
any stop order suspending the effectiveness of the Registration
Statement under the Act or
-5-
of the suspension by any state securities commission of the
qualification of the Registrable Securities for offering or sale in any
jurisdiction or of the initiation of any proceeding for any of the
preceding purposes, (D) of the existence of any fact or the happening
of any event (including without limitation pending negotiations
relating to, or the consummation of, a transaction or the occurrence of
any other event which would require additional disclosure of material,
nonpublic information by the Company in the Registration Statement as
to which the Company has a bona fide business purpose for preserving
confidentiality or which renders the Company unable to comply with
Commission requirements) that makes untrue any statement of a material
fact made in the Registration Statement, the Prospectus, any amendment
or supplement thereto or any document incorporated by reference
therein, or that requires the making of any additions to or changes in
the Registration Statement or the Prospectus in order to make the
statements therein not misleading. If at any time the Commission shall
issue any stop order suspending the effectiveness of the Registration
Statement, or any state securities commission or other regulatory
authority shall issue an order suspending the qualification or
exemption from qualification of the Registrable Securities under state
securities or Blue Sky laws, the Company shall use its best efforts to
obtain the withdrawal or lifting of such order at the earliest possible
time;
(iv) furnish to each of the selling Holders, upon request, and
to each of the underwriter(s), if any, before filing with the
Commission, copies of the Registration Statement or any Prospectus
included therein and any amendments or supplements thereto (including
all documents incorporated by reference prior to the effectiveness of
the Registration Statement), which documents, other than documents
incorporated by reference, will be subject to the review of such
Holders and underwriter(s), if any, for a period of at least five
business days, and the Company shall not file the Registration
Statement or Prospectus or any amendment or supplement to the
Registration Statement or Prospectus to which a selling Holder of
Registrable Securities covered by the Registration Statement or the
underwriter(s), if any, shall reasonably object within five business
days after the receipt thereof; a selling Holder or underwriter(s), if
any, shall be deemed to have reasonably objected to such filing only if
the Registration Statement, amendment, Prospectus or supplement, as
applicable, as proposed to be filed, contains a material misstatement
or omission;
(v) if practicable, promptly prior to the filing of any
document that is to be incorporated by reference into the Registration
Statement or Prospectus subsequent to the effectiveness thereof, and in
any event no later than the
-6-
date such document is filed with the Commission, provide copies of such
document to the selling Holders, if requested, and to the
underwriter(s), if any, make representatives of the Company available
for discussion of such document and other customary due diligence
matters, and include such information in such document prior to the
filing thereof as such selling Holders or underwriter(s), if any,
reasonably may request;
(vi) make available at reasonable times for inspection by the
selling Holders, any underwriter(s) participating in any disposition
pursuant to the Registration Statement and any attorney or accountant
retained by such selling Holders or any of the underwriter(s), all
financial and other records, pertinent corporate documents and
properties of the Company and cause the officers, directors and
employees of the Company to supply all information reasonably requested
by any such Holder, underwriters, attorney or accountant in connection
with the Registration Statement subsequent to the filing thereof and
prior to its effectiveness;
(vii) if requested by any selling Holders or the underwriters,
if any, promptly incorporate in the Registration Statement or any
Prospectus, pursuant to a supplement or post-effective amendment if
necessary, such information as such selling Holders and underwriters,
if any, may reasonably request to have included therein, including,
without limitation, information relating to the "Plan of Distribution"
of the Registrable Securities, information with respect to the
principal amount or number of shares of Registrable Securities being
sold to such underwriter(s), the purchase price being paid therefor and
any other terms of the offering of the Registrable Securities to be
sold in such offering and make all required filings of any such
Prospectus supplement or post-effective amendment as soon as
practicable after the Company is notified of the matters to be
incorporated in such Prospectus supplement or post-effective amendment;
(viii) cause the Notes or Preferred Shares covered by the
Registration Statement to be rated with the appropriate rating
agencies, if so requested by the Holders of a majority in aggregate
principal amount of Notes, in the case of the Notes, or a majority of
the Preferred Shares, in the case of the Preferred Shares, or the
underwriter(s) for any Underwritten Offering of such Notes or Preferred
Shares, if any;
(ix) [Intentionally omitted]
(x) deliver to each selling Holder and each of the
underwriter(s), if any, without charge, as many copies of each
Prospectus (including each preliminary prospectus intended for public
distribution) and any amendment or
-7-
supplement thereto as such Persons reasonably may request; the Company
hereby consents to the use of each Prospectus and any amendment or
supplement thereto by each of the selling Holders and each of the
underwriter(s), if any, in connection with the offering and the sale of
the Transfer Restricted Securities covered by any Prospectus or any
amendment or supplement thereto;
(xi) enter into such customary agreements (including an
underwriting agreement), and make such customary representations and
warranties, and, subject to Section 4(b)(xv) hereof, take all such
other customary actions in connection therewith in order to expedite or
facilitate the disposition of the Registrable Securities pursuant to
the Registration Statement contemplated by this Agreement, all to such
extent as may be requested by the Purchaser or by any Holder of
Registrable Securities or underwriter in connection with any sale or
resale pursuant to the Registration Statement contemplated by this
Agreement; and whether or not an underwriting agreement is entered into
and whether or not the registration is an Underwritten Registration,
the Company shall:
(A) furnish to the Purchaser, each selling Holder and
each underwriter, if any (including any Broker- Dealer who may
be deemed to be an underwriter), officers' certificates, legal
opinions and comfort letters, in such substance and scope as
they may request and as are customarily made by issuers to
underwriters in primary underwritten offerings, upon the date
of the effectiveness of the Registration Statement;
(B) set forth in full or incorporate by reference in
the underwriting agreement, if any, indemnification provisions
and procedures substantially in the form of those set forth in
Section 6 hereof with respect to all parties required to be
indemnified pursuant to said Section 6; and
(C) deliver such other documents and certificates as
may be reasonably requested by such parties to evidence
compliance with clause (A) above and with any customary
conditions contained in the underwriting agreement or other
agreement entered into by the Company pursuant to this clause
(xi), if any.
(xii) prior to any public offering of Registrable Securities,
cooperate with the selling Holders, the underwriter(s), if any, and
their respective counsel in connection with the registration and
qualification of the Registrable Securities under the securities or
Blue Sky laws of such jurisdictions as the selling Holders or
underwriter(s) may request; and do any and all other acts or
-8-
things necessary or advisable to enable the disposition in such
jurisdictions of the Registrable Securities covered by the Registration
Statement; provided, however, that the Company shall not be required to
register or qualify as a foreign corporation where it is not now so
qualified or to take any action that would subject it to service of
process in suits or to taxation, other than as to matters and
transactions relating to the Registration Statement, in any
jurisdiction where it is not now so subject;
(xiii) cooperate with the selling Holders and the
underwriter(s), if any, to facilitate the timely preparation and
delivery of certificates representing Transfer Restricted Securities to
be sold and not bearing any restrictive legends; and enable such
Registrable Securities to be in such denominations and registered in
such names as the Holders or the underwriter(s), if any, may request at
least two business days prior to any sale of Registrable Securities
made by such underwriter(s);
(xiv) use all reasonable efforts to cause the Transfer
Restricted Securities covered by the Registration Statement to be
registered with or approved by such other governmental agencies or
authorities as may be necessary to enable the seller or sellers thereof
or the underwriter(s), if any, to consummate the disposition of such
Registrable Securities, subject to the proviso contained in clause
(xii) above;
(xv) as soon as reasonably practicable after the occurrence of
any fact or event of the kind described in clause (b)(iii)(D) above,
prepare a supplement or post-effective amendment to the Registration
Statement or related Prospectus or any document incorporated therein by
reference or file any other required document so that, as thereafter
delivered to the purchasers of Transfer Restricted Securities, the
Prospectus will not contain an untrue statement of a material fact or
omit to state any material fact necessary, in light of the
circumstances in which it was made, to make the statements therein not
misleading, provided, however, that notwithstanding anything to the
contrary herein, the Company shall not be required to prepare and file
such a supplement or post-effective amendment or document if the fact
no longer exists; and provided further however, that, in the event of a
material business transaction (including without limitation pending
negotiations relating to such transaction) which based upon the advice
of outside counsel reasonably acceptable to the Purchaser, would
require disclosure by the Company in the Registration Statement of
material, nonpublic information which the Company has a bona fide
business purpose for not disclosing, then for so long as such
circumstances and such business purpose continue to exist (provided
that such period may not exceed 120 days in any calendar year), the
-9-
Company shall not be required to prepare and file a
supplement or post-effective amendment hereunder;
(xvi) provide a CUSIP number for all Transfer Restricted
Securities not later than the effective date of the Registration
Statement and provide the Trustee under the Indenture with printed
certificates for the Transfer Restricted Securities which are in a form
eligible for deposit with The Depositary Trust Company;
(xvii) cooperate in any filings required to be made with the
NASD and in the performance of any due diligence investigation by any
underwriter (including any "qualified independent underwriter") that is
required to be retained in accordance with the rules and regulations of
the NASD, and use all reasonable efforts to cause the Registration
Statement to become effective and be approved by such governmental
agencies or authorities as may be necessary to enable the Holders
selling Registrable Securities to consummate the disposition of such
Transfer Restricted Securities;
(xviii) otherwise use its reasonable efforts to comply with
all applicable rules and regulations of the Commission, and make
generally available to its security holders, as soon as practicable, a
consolidated earnings statement meeting the requirements of Rule 158
(which need not be audited) for the twelve-month period (A) commencing
at the end of any fiscal quarter in which Transfer Restricted
Securities are sold to underwriters in a firm commitment or best
efforts Underwritten Offering or (B) if not sold to underwriters in
such an offering, beginning with the first month of the Company's first
fiscal quarter, as applicable, commencing after the effective date of
the Registration Statement;
(xix) cause the Indenture to be qualified under the TIA not
later than the effective date of the Registration Statement, and, in
connection therewith: cooperate with the Trustee and the Holders of
Notes to effect such changes to the Indenture as may be required for
such Indenture to be so qualified in accordance with the terms of the
TIA; and execute and use all reasonable efforts to cause the Trustee to
execute, all documents that may be required to effect such changes and
all other forms and documents required to be filed with the Commission
to enable such Indenture to be so qualified in a timely manner;
(xx) cause all Registrable Securities covered by the
Registration Statement to be listed on any securities exchange on which
similar securities issued by the Company are then listed if requested
by the Holders of a majority in aggregate principal amount of Notes,
the Holders of a
-10-
majority of shares of the Preferred Shares, or the managing
underwriter(s), if any; and
(xxi) provide promptly to each Holder upon request any
document filed with the Commission pursuant to the requirements of
Section 13 and Section 15 of the Exchange Act.
Each Holder agrees by acquisition of a Transfer Restricted
Security that, upon receipt of any notice from the Company of the existence of
any fact or event of the kind described in Section 4(b)(iii)(D) hereof, such
Holder will forthwith discontinue disposition of Registrable Securities pursuant
to the applicable Registration Statement until such Holder's receipt of the
copies of a supplemented or amended Prospectus as contemplated by Section
4(b)(xv) hereof, or until it is advised in writing (the "Advice) by the Company
that the use of the Prospectus may be resumed, and, has received copies of any
additional or supplemental filings that are incorporated by reference in the
Prospectus. If so directed by the Company, each Holder will deliver to the
Company (at the expense of the Company) all copies, other than permanent file
copies then in such Holder's possession, of the Prospectus covering such
Registrable Securities that was current at the time of receipt of such notice.
In the event the Company shall give any such notice, the time period regarding
the effectiveness of the Registration Statement set forth in Section 3 hereof
shall be extended by the number of days during the period from and including the
date of the giving of such notice pursuant to Section 4(b)(iii)(D) hereof to and
including the date when each selling Holder covered by the Registration
Statement shall have received the copies of the supplemented or amended
prospectus contemplated by Section 4(b)(xv) hereof or shall have received the
Advice.
Each Holder, by acquisition of a Transfer Restricted Security,
agrees that, to the extent that (A) such Holder is deemed to be an "affiliate"
of the Company for purposes of the Securities Act or Accounting Series 130 and
135 of the Commission and (B) (i) the Company has entered into a business
combination transaction intended to be accounted for as a pooling of interests
and (ii) such accounting treatment requires affiliates of the Company to not
dispose of or otherwise reduce such affiliate's risk with respect to any Common
Stock of the Company during the period beginning 30 days prior to the effective
date of the transaction and until after such time as results covering at least
30 days of combined operations of the combined entity have been published, such
Holder shall deliver to the Company an "affiliate letter" in reasonable and
customary form and reasonably satisfactory to the Company.
-11-
SECTION 5. REGISTRATION EXPENSES
(a) All expenses incident to the Company's performance of or
compliance with this Agreement will be borne by the Company regardless of
whether the Registration Statement becomes effective, including without
limitation: (i) all registration and filing fees and expenses (including, if
applicable, the fees and expenses of any "qualified independent underwriter" and
its counsel that may be required by the rules and regulations of the NASD); (ii)
all fees and expenses associated with compliance with federal securities and
state Blue Sky or securities laws; (iii) all expenses of printing (including
printing of any certificates evidencing the Notes and Preferred Shares and
printing of Prospectuses), messenger and delivery services and telephone
charges; (iv) all fees and disbursements of counsel for the Company and, as
provided for in Section 5(b) below, the Holders of Registrable Securities; (v)
all application and filing fees in connection with listing any securities on a
national securities exchange or automated quotation system pursuant to the
requirements hereof; and (vi) all fees and disbursements of independent
certified public accountants of the Company (including the expenses of any
special audit and comfort letters required by or incident to such performance).
The Company will, in any event, bear its own internal expenses
(including, without limitation, all salaries and expenses of its officers and
employees performing legal or accounting duties), the expenses of any annual
audit and the fees and expenses of any Person, including special experts,
retained by the Company.
(b) In connection with the Registration Statement required by
this Agreement, the Company agrees to reimburse the Purchaser and the Holders of
Transfer Restricted Securities being registered pursuant to the Registration
Statement for the reasonable fees and disbursements of not more than one
counsel, who shall be Sidley & Austin or such other counsel as may be chosen by
the Holders of a majority in principal amount or a majority of the shares of the
Registrable Securities for whose benefit the Registration Statement is being
prepared.
SECTION 6. INDEMNIFICATION
(a) The Company agrees to indemnify and hold harmless (i)each
Holder and (ii) each person, if any, who controls (within the meaning of Section
15 of the Act or Section 20 of the Exchange Act) any Holder (any of the persons
referred to in this clause (ii) being hereinafter referred to as a "controlling
person") and (iii) the respective officers, directors, partners, employees,
representatives and agents of any Holder or any controlling person (any person
referred to in clause (i), (ii) or (iii) may hereinafter be referred to as an
"Indemnified Holder"), to the fullest extent lawful, from and against any and
all
-12-
losses, claims, damages, liabilities, judgments, costs and expenses ("Losses")
(including, without limitation and as incurred, reimbursement of all costs of
investigating, preparing, pursuing or defending any claim or action, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, including the reasonable fees and expenses of counsel to any
Indemnified Holder) directly or indirectly caused by, related to, based upon,
arising out of or in connection with any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement or any
Prospectus (or any amendment or supplement thereto) or any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, except insofar as such Losses are
caused by an untrue statement or omission or alleged untrue statement or
omission that is made in reliance upon and in conformity with information
relating to any of the Holders furnished in writing to the Company by any of the
Holders for use therein. The Company shall notify the Holders promptly of the
institution, threat or assertion of any claim, proceeding (including any
governmental investigation) or litigation in connection with the matters
addressed by this Agreement which involves the Company or any Indemnified
Holder.
(b) In case any action or proceeding (including, without
limitation, any governmental or regulatory investigation or proceeding) shall be
brought or asserted against any of the Indemnified Holders with respect to which
indemnity may be sought against the Company, such Indemnified Holder (or the
Indemnified Holder controlled by such controlling person) shall promptly notify
the Company in writing (provided that the failure to give such notice shall not
relieve the Company of its obligations pursuant to this Agreement). Any
Indemnified Holder shall have the right to employ separate counsel in any such
action and participate in the defense thereof, but the fees and expenses of such
counsel shall be at the expense of such Indemnified Holder, provided, however,
that the fees and expenses of such counsel shall be at the expense of the
Company if (i) the Company has failed to assume the defense and employ counsel
reasonably satisfactory to the Holders or (ii) the named parties to any such
action (including impleaded parties) include such Indemnified Holder and the
Company and such Indemnified Holder shall have reasonably concluded that there
may be one or more legal defenses available to it that are different from or in
addition to those available to the Company; provided further that the Company
shall not in such event be responsible hereunder for the fees and expenses of
more than one firm of separate counsel, which firm shall be designated by the
Holders, in connection with any action in the same jurisdiction, in addition to
any local counsel. The Company shall not be liable for any settlement of any
such action or proceeding effected with its prior written consent, which consent
shall not be unreasonably withheld or delayed, and the Company agrees to
indemnify and hold harmless any Indemnified Holder from and against any Loss by
reason of any settlement of
-13-
any action effected with its written consent. The Company shall not, without the
prior written consent of each Indemnified Holder, settle or compromise or
consent to the entry of a judgment in or otherwise seek to terminate any pending
or threatened action, claim, litigation or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not any
Indemnified Holder is a party thereto) unless such settlement, compromise,
consent or termination includes an unconditional release of each Indemnified
Holder from all liability arising out of such action, claim, litigation or
proceeding.
(c) Each Holder of Transfer Restricted Securities agrees,
severally and not jointly, to indemnify and hold harmless the Company, its
directors, its officers, and any person controlling (within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act) the Company, and the
respective officers, directors, partners, employees, representatives and agents
of each such person, to the same extent as the foregoing indemnity from the
Company to each of the Indemnified Holders, but only with respect to claims and
actions based on information relating to such Holder furnished in writing by
such Holder for use in the Registration Statement or any Prospectus. In case any
action or proceeding shall be brought against any of the Company or its
directors or officers or any such controlling person in respect of which
indemnity may be sought against a Holder of Transfer Restricted Securities, such
Holder shall have the rights and duties given the Company, and each of the
Company or its directors or officers of such controlling person shall have the
rights and duties given to each Holder by the proceeding paragraph. In no event
shall the liability of any selling Holder hereunder be greater in amount than
the dollar amount of the proceeds received by such Holder upon the sale of the
securities registered pursuant to provisions hereof giving rise to such
indemnification obligation.
(d) If the indemnification provided for in this Section 6 is
unavailable to a party entitled to indemnification in respect of any Losses
referred to herein, then each indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such Losses (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one
hand and the Holders on the other hand from their sale of Transfer Restricted
Securities or (ii) if such allocation is not permitted by applicable law, the
relative fault of the Company on the one hand and of the indemnified Holder on
the other in connection with the statements or omissions which resulted in the
Losses as well as any relevant equitable considerations. The relative fault of
the Company on the one hand and of the Indemnified Holder 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
-14-
information supplied by the Company or by the Indemnified Holder and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The indemnity and contribution
obligations of each indemnifying party set forth herein shall be in addition to
any liability or obligation such indemnifying party may otherwise have to any
indemnified party.
The Company and each Holder of Transfer Restricted Securities
agree that it would not be just and equitable if contribution pursuant to this
Section 6(d) were determined by pro rata allocation (even if Holders were
treated as one entity for such purpose) or by any other method of allocation
which does not take account of the equitable considerations referred to in the
immediately preceding paragraph. The amount paid or payable by an indemnified
party as a result of the Losses referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such indemnified party
in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Xxxxxxx 0, xxxx of the Holders (and their
related Indemnified Holders) shall be required to contribute, in the aggregate,
any amount in excess of the amount by which the total proceeds received by such
Holder with respect to the Notes exceeds the amount of any damages which such
Holder has otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Holders' obligations to contribute pursuant to this
Section 6(d) are several in proportion to the respective principal amount of
Notes held by each of the Holders hereunder and not joint.
SECTION 7. RULE 144A
The Company hereby agrees with each Holder, for so long as any
Transfer Restricted Securities remain outstanding, to make available to any
Holder or beneficial owner of Transfer Restricted Securities in connection with
any sale thereof and any prospective purchase of such Transfer Restricted
Securities from such Holder or beneficial owner, any information required to be
supplied to a Holder by Rule 144A(d)(4) under the Act in order to permit offers
and sales of such Transfer Restricted Securities pursuant to Rule 144A.
SECTION 8. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS
No Holder may participate in any Underwritten Registration
hereunder unless such Holder (a) agrees to sell such Holder's Transfer
Restricted Securities on the basis provided in
-15-
any underwriting arrangements approved by the Persons entitled hereunder to
approve such arrangements and (b) completes and executes all reasonable
questionnaires, powers of attorney, indemnities, underwriting agreements,
lock-up letters and other documents required under the terms of such
underwriting arrangements.
SECTION 9. SELECTION OF UNDERWRITERS
The Holders of Registrable Securities covered by the Registration
Statement who desire to do so may sell such Registrable Securities in an
Underwritten Offering. In any such Underwritten Offering, the investment banker
or investment bankers and manager or managers that will administer the offering
will be selected by the Holders of a majority in aggregate principal amount or a
majority of the shares of the Registrable Securities included in such offering;
provided that such investment bankers and managers must be reasonably
satisfactory to the Company.
SECTION 10. MISCELLANEOUS
(a) Remedies. The Company agrees that monetary damages would not
be adequate compensation for any loss incurred by reason of a breach by it of
the provisions of this Agreement and hereby agrees to waive the defense in any
action for specific performance that a remedy at law would be adequate.
(b) No Inconsistent Agreements. The Company will not, on or
after the date of this Agreement, enter into any agreement with respect to its
securities that is inconsistent with the rights granted to the Holders in this
Agreement or otherwise conflicts with the provisions hereof. The rights granted
to the Holders hereunder are not inconsistent with the rights granted to the
holders of the Company's securities under any agreement in effect on the date
hereof.
(c) Amendments and Waivers. The provisions of this Agreement may
not be amended, modified or supplemented, and waivers or consents to or
departures from the provisions hereof may not be given, unless the Company has
obtained the written consent of Holders of a majority of the outstanding
principal amount or a majority of the shares of Transfer Restricted Securities.
(d) Notices. All notices and other communications provided for
or permitted hereunder shall be made in writing by hand-delivery, first-class
mail (registered or certified, return receipt requested), telex, telecopier or
courier guaranteeing overnight deliver;
-16-
(i) if to a Holder, at the address set forth on the
records of the Registrar under the Indenture, with a copy to
the Registrar under the Indenture; and
(ii) if to the Company:
SoftKey International Inc.
Xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxxxx 00000
Attention: General Counsel
with a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx
Xxx Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx
All such notices and communications shall be deemed to have
been duly given: at the time delivered by hand, if personally delivered; five
business days after being deposited in the mail, postage prepaid, if mailed;
when answered back, if telexed; when receipt is acknowledged, if telecopied; and
on the next business day, if timely delivered to a courier guaranteeing
overnight delivery.
Copies of all such notices, demands or other communications
shall be concurrently delivered by the Person giving the same to the Trustee at
the address specified in the Indenture.
(e) Successors and Assigns. This Agreement shall, to the
extent provided for herein, inure to the benefit of and be binding upon the
successors and assigns of each of the parties, including without limitation and
without the need for an express assignment, subsequent Holders of Transfer
Restricted Securities; provided, however, that this Agreement shall not inure to
the benefit of or be binding upon a successor or assign of a Holder unless and
to the extent such successor or assign acquired Transfer Restricted Securities
from such Holder.
(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, WITHOUT REGARD TO THE CONFLICT OF LAW RULES THEREOF.
-17-
(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 the remaining
provisions contained herein shall not be affected or impaired thereby.
(j) Entire Agreement. This Agreement, together with the other
Transaction Documents (as defined in the Purchase Agreement) and the Merger
Agreement, is intended by the parties as a final expression of their agreement
and intended to be a complete and exclusive statement of the agreement and
understanding of the parties hereto in respect of the subject matter contained
herein. There are no restrictions, promises, warranties or undertakings, other
than those set forth or referred to herein or therein with respect to the
registration rights granted by the Company with respect to the Transfer
Restricted Securities. This Agreement supersedes all prior agreements and
understandings between the parties with respect to such subject matter.
-18-
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
SOFTKEY INTERNATIONAL INC.
By: /s/ R. Xxxxx Xxxxxx
Name: R. Xxxxx Xxxxxx
Title: Chief Financial
Officer
TRIBUNE COMPANY
By: /s/ Xxxxxx X. Xxxxxxxx
Name: Xxxxxx Xxxxxxxx
Title: Sr. Vice President/
C.F.O.
-19-
