Exhibit 4.53
EXECUTION COPY
REGISTRATION RIGHTS AGREEMENT
between
GRANITE BROADCASTING CORPORATION
and
NATIONAL BROADCASTING COMPANY, INC.
Dated as of May 31, 2000
TABLE OF CONTENTS
PAGE
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Section 1. DEFINITIONS...............................................................1
Section 2. DEMAND REGISTRATION.......................................................3
(a) REQUESTS FOR REGISTRATION BY HOLDERS....................................3
(b) FILING AND EFFECTIVENESS................................................3
(c) PRIORITY ON DEMAND REGISTRATION.........................................4
(d) POSTPONEMENT OF DEMAND REGISTRATION.....................................4
Section 3. PIGGYBACK REGISTRATION....................................................4
(a) RIGHT TO PIGGYBACK......................................................5
(b) PRIORITY ON PIGGYBACK REGISTRATIONS.....................................5
Section 4. RESTRICTIONS ON SALE BY HOLDERS...........................................5
Section 5. REGISTRATION PROCEDURES...................................................6
Section 6. REGISTRATION EXPENSES....................................................11
Section 7. INDEMNIFICATION..........................................................11
(a) INDEMNIFICATION BY THE COMPANY.........................................11
(b) INDEMNIFICATION BY HOLDERS.............................................12
(c) CONDUCT OF INDEMNIFICATION PROCEEDINGS.................................12
(d) CONTRIBUTION...........................................................13
Section 8. UNDERWRITTEN REGISTRATIONS...............................................14
Section 9. MISCELLANEOUS............................................................14
(a) REMEDIES...............................................................14
(b) AMENDMENTS AND WAIVERS.................................................14
(c) NOTICES................................................................14
(e) SUCCESSORS AND ASSIGNS.................................................15
(f) COUNTERPARTS...........................................................16
(g) HEADINGS...............................................................16
(h) GOVERNING LAW..........................................................16
(i) SEVERABILITY...........................................................16
(j) ENTIRE AGREEMENT.......................................................16
ii
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "AGREEMENT") is made
and entered into as of May 31, 2000, by and between GRANITE BROADCASTING
CORPORATION, a Delaware corporation (together with is successors and assigns,
the "COMPANY"), NATIONAL BROADCASTING COMPANY, INC., a Delaware corporation
(together with its successors and assigns, the "INVESTOR"), and each other
person who becomes a Holder hereunder.
RECITALS
WHEREAS, pursuant to a Supplemental Agreement dated as of May
31, 2000 (the "SUPPLEMENTAL AGREEMENT") between the Company and the Investor,
the Investor is receiving Warrants to purchase shares of Common Stock; and
WHEREAS, the Company's shares of Common Stock are registered
with the SEC and quoted on NASDAQ; and
WHEREAS, to induce the Investor to execute and deliver the
Supplemental Agreement and to enter into the transactions related thereto, the
Company has agreed to provide to the Holders (as defined below) certain
registration rights under the Securities Act; and
WHEREAS, the execution and delivery of this agreement by the
parties hereto is a condition to the closing of the transactions contemplated by
the Supplemental Agreement.
NOW, THEREFORE, in consideration of the mutual promises and
agreements set forth herein and in the Supplemental Agreement, and other
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto hereby agree as follows:
Section 1. DEFINITIONS. For purposes of this Agreement, the following
capitalized terms have the following meanings:
"COMMON STOCK": The non-voting common stock of the Company,
par value $0.01 per share, and any securities into which such common stock may
be or has been converted or exchanged in any merger, consolidation or
reclassification.
"EXCHANGE ACT": The Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder.
"HOLDERS": Each Restricted Party that from time to time owns
Registrable Securities and each of their permitted transferees pursuant to
Section 9(e) who agree to be bound by the provisions of this Agreement in
accordance with said section; PROVIDED, HOWEVER, that a Holder shall no longer
be a Holder at the date that such Holder owns of record less than 10,000 shares
of Registrable Securities.
"NASDAQ": The National Association of Securities Dealers
Automated Quotation System.
Registration Rights Agreement
"PROSPECTUS": The prospectus included in any Registration
Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A under the Securities Act), as
amended or supplemented by any prospectus supplement, with respect to the terms
of the offering of any portion of the Registrable Securities covered by such
Registration Statement and all other amendments and supplements to such
prospectus, including post-effective amendments, and all material incorporated
by reference or deemed to be incorporated by reference in such prospectus.
"REGISTRABLE SECURITIES": All shares of Common Stock (i) held
from time to time by the Holders who are Restricted Parties (the "RESTRICTED
PARTY COMMON STOCK") or (ii) held by Holders who are not Restricted Parties (but
only to the extent that such Common Stock previously constituted Restricted
Party Common Stock) or (iii) issued or issuable upon the exercise of Warrants,
excluding shares of Common Stock that have been disposed of by a Holder pursuant
to a Registration Statement relating to the sale thereof that has become
effective under the Securities Act or pursuant to Rule 144 or Rule 145 under the
Securities Act. Registrable Securities shall also include any shares of the
Common Stock or other securities (or shares of Common Stock underlying such
other securities) that may be received by the Holders (x) as a result of a stock
dividend on or stock split of Registrable Securities or (y) on account of
Registrable Securities in a recapitalization of or other transaction involving
the Company.
"REGISTRATION STATEMENT": Any registration statement of the
Company under the Securities Act that covers any of the Registrable Securities
pursuant to the provisions of this Agreement, including the related Prospectus,
any preliminary prospectus, all 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.
"RESTRICTED PARTY": Each of Investor and each subsidiary of
Investor.
"SEC": The Securities and Exchange Commission.
"SECURITIES ACT": The Securities Act of 1933, as amended, and
the rules and regulations promulgated thereunder.
"SERIES A WARRANTS": The Series A Warrants to purchase shares
of Common Stock substantially in the form of Exhibit C to the Supplemental
Agreement.
"SERIES B WARRANTS": The Series B Warrants to purchase shares
of Common Stock substantially in the form of Exhibit D to the Supplemental
Agreement.
"UNDERWRITTEN OFFERING": A distribution, registered pursuant
to the Securities Act, in which securities of the Company are sold to the public
through one or more underwriters.
"WARRANTS": Collectively, the Series A Warrants and the Series
B Warrants.
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Registration Rights Agreement
Section 2. DEMAND REGISTRATION.
(a) REQUESTS FOR REGISTRATION BY HOLDERS. Subject to the terms
and conditions of the Supplemental Agreement, at any time and from time to time,
subject to the conditions set forth in this Agreement (i) one or more Holders
will have the right, by written notice delivered to the Company (a "DEMAND
NOTICE"), to require the Company to register Registrable Securities under and in
accordance with the provisions of the Securities Act (a "DEMAND REGISTRATION"),
PROVIDED that the Holders may not make in the aggregate more than two (2) Demand
Registrations under this Agreement; PROVIDED, FURTHER, that (i) no such Demand
Registration may be required unless the Holders requesting such Demand
Registration provide to the Company a certificate (the "AUTHORIZING
CERTIFICATE"), seeking to include Registrable Securities in such Demand
Registration with a market value of at least $20,000,000 in the case of any
Underwritten Offering or $5,000,000 in all other cases (calculated based on the
closing sale price of such securities on the principal securities exchange where
such securities are listed on the business day immediately preceding the date of
the Demand Notice) as of the date the Demand Notice is given; and (ii) no Demand
Notice may be given prior to six (6) months after the effective date of the
immediately preceding Demand Registration or, if later, the date on which a
registration pursuant to this Section 2 is terminated in its entirety prior to
the effective date of the applicable registration statement. The Authorizing
Certificate shall set forth (A) the name of each Holder signing such Authorizing
Certificate, (B) the number of Registrable Securities held by each such Holder,
and, if different, the number of Registrable Securities such Holder has elected
to have registered, and (C) the intended methods of disposition of the
Registrable Securities. Notwithstanding the foregoing, a good faith decision by
a Holder to withdraw Registrable Securities from registration will not affect
the Company's obligations hereunder even if the amount remaining to be
registered has a market value of less than $20,000,000 in the case of any
Underwritten Offering or $5,000,000 in all other cases (calculated as
aforesaid), PROVIDED that (1) such continuing registration shall constitute a
Demand Registration, (2) the withdrawing Holder reimburses the Company for any
registration and filing fees (including any fees payable to the National
Association of Securities Dealers, Inc. or any successor organization) it has
incurred with respect to the withdrawn Registrable Securities (unless all
Registrable Securities are withdrawn, in which case the withdrawing Holder(s)
shall reimburse the Company for all costs and expenses incurred by it in
connection with the registration of such Registrable Securities) and (3) such
Holder (or the other Holders participating in the subject registration) did not
include the withdrawn Registrable Securities as a means of circumventing the
applicable $20,000,000 or $5,000,000 threshold described above. Subject to
compliance with clause (2) of the preceding proviso, a registration that is
terminated in its entirety prior to the effective date of the applicable
registration statement will not constitute a Demand Registration.
(b) FILING AND EFFECTIVENESS. The Company will file a
Registration Statement relating to any Demand Registration as promptly as
practicable (but in any event within 60 days) following the date on which the
Demand Notice is received and will use all reasonable efforts to cause the same
to be declared effective by the SEC as soon as practicable thereafter. If any
Demand Registration is requested to be effected as a shelf registration pursuant
to Rule 415 under the Securities Act by the Holders demanding such Demand
Registration, the Company will keep the Registration Statement filed in respect
thereof effective for a period of six (6) months from the date on which the SEC
declares such Registration Statement effective (subject to extension
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Registration Rights Agreement
pursuant to Section 5) or such shorter period that will terminate when all
Registrable Securities covered by such Registration Statement have been sold
pursuant to such Registration Statement.
Within ten (10) business days after receipt of such Demand
Notice, the Company will serve written notice thereof (the "NOTICE") to all
other Holders and will, subject to the provisions of Section 2(c), include in
such registration all Registrable Securities with respect to which the Company
receives written requests for inclusion therein within ten (10) business days
after receipt of the Notice by the applicable Holder. Subject to the proviso at
the end of Section 2(a), the Holder will be permitted to withdraw in good faith
all or part of the Registrable Securities from a Demand Registration at any time
prior to the effective date of such Demand Registration, in which event the
Company will promptly amend or, if applicable, withdraw the related Registration
Statement.
(c) PRIORITY ON DEMAND REGISTRATION. If Registrable Securities
are to be registered pursuant to a Demand Registration, the Company shall
provide written notice to the other Holders and will permit all such Holders who
have timely and properly requested to be included in the Demand Registration to
include any or all Registrable Securities held by such Holders in such Demand
Registration. Notwithstanding the foregoing, if the managing underwriter or
underwriters of an Underwritten Offering to which such Demand Registration
relates advises the Holders that the total amount of Registrable Securities that
such Holders intend to include in such Demand Registration is in the aggregate
such as to materially and adversely affect the success of such offering, then
the number of Registrable Securities to be included in such Demand Registration
will, if necessary, be reduced and there will be included in such underwritten
offering the number of Registrable Securities that, in the opinion of such
managing underwriter or underwriters, can be sold without materially and
adversely affecting the success of such Underwritten Offering. The Registrable
Securities of the Holder or Holders initiating the Demand Registration shall
receive priority in such Underwritten Offering to the full extent of the
Registrable Securities such Holder or Holders desire to sell (unless these
securities would materially and adversely affect the success of such offering,
in which case the number of such Holder's Registrable Securities included in the
offering shall be reduced to the extent necessary) and the remaining allocation
available for sale, if any, shall be allocated PRO RATA among the other Holders
on the basis of the amount of Registrable Securities requested to be included
therein by each such Holder.
(d) POSTPONEMENT OF DEMAND REGISTRATION. The Company will be
entitled to postpone the filing period of any Demand Registration or suspend the
effectiveness of any Registration Statement for a reasonable period of time not
in excess of 90 calendar days if the Company determines, in the good faith
exercise of the business judgment of its Board of Directors, that such
registration and offering could materially interfere with a BONA FIDE business
or financing transaction of the Company or would require disclosure of
information, the premature disclosure of which could materially and adversely
affect the Company. If the Company postpones the filing of, or suspends the
effectiveness of, a Registration Statement, it will promptly notify the Holders
in writing (i) when the events or circumstances permitting such postponement or
suspension have ended and (ii) that the decision to postpone or suspend was made
by the Board of Directors of the Company in accordance with this Section 2(d).
Section 3. PIGGYBACK REGISTRATION.
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Registration Rights Agreement
(a) RIGHT TO PIGGYBACK. If at any time the Company proposes to
file a Registration Statement, whether or not for sale for the Company's own
account, with respect to the sale of Common Stock, on a form and in a manner
that would also permit registration of Registrable Securities, the Company shall
give to Holders holding Registrable Securities, written notice of such proposed
filing at least ten (10) business days before the anticipated filing. The notice
referred to in the preceding sentence shall offer Holders holding at least
100,000 shares of Registrable Securities the opportunity to register such amount
of Registrable Securities as each Holder may request (a "PIGGYBACK
REGISTRATION"). Subject to Section 3(b), the Company will include in each such
Piggyback Registration all Registrable Securities with respect to which the
Company has received written requests for inclusion therein. Subject to clause
(2) of the proviso at the end of Section 2(a), the Holders will be permitted to
withdraw all or part of the Registrable Securities from a Piggyback Registration
at any time prior to the effective date of such Piggyback Registration.
Notwithstanding the foregoing, the Company will not be
obligated to effect any registration of Registrable Securities under this
Section 3 as a result of the registration of any of its securities solely in
connection with mergers, acquisitions, exchange offers, dividend reinvestment
and share purchase plans offered solely to current holders of the Common Stock,
rights offerings or option or other employee, directors or consultant benefit
plans or other similar rights.
(b) PRIORITY ON PIGGYBACK REGISTRATIONS. The Company will
cause the managing underwriter or underwriters of a proposed Underwritten
Offering to permit Holders holding Registrable Securities requested to be
included in the registration for such offering to include therein all such
Registrable Securities requested to be so included on the same terms and
conditions as any securities of the Company included therein (other than the
indemnification by the Holders, which will be limited as set forth in Section 7
hereof). Notwithstanding the foregoing, if the managing underwriter or
underwriters of such Underwritten Offering advises the Holders to the effect
that the total amount of securities that such Holders and the Company propose to
include in such Underwritten Offering is such as to materially and adversely
affect the success of such offering, then the Company will include in such
registration (i) first, 100% of the Common Stock of the Person who requests such
registration, if any, (ii) second, 100% of the Common Stock the Company proposes
to sell, and (iii) third, to the extent of the number of Registrable Securities
requested to be included in such registration which, with the advice of such
managing underwriter, can be sold without having the adverse effect referred to
above, the number of Registrable Securities which the Holders and any other
persons having registration rights have requested to be included in such
registration, such amount to be allocated pro rata among all such requesting
Holders and such other persons on the basis of the relative number of
Registrable Securities then held by each such Holder and such other persons.
Section 4. RESTRICTIONS ON SALE BY HOLDERS. (a) Each Holder agrees, if
such Holder is so requested (pursuant to a timely written notice) by the
managing underwriter or underwriters in an Underwritten Offering, not to effect
any public sale or distribution of any of the Company's securities of such class
or securities convertible or exchangeable into such class (except as part of
such underwritten offering), including a sale pursuant to Rule 144 under the
Securities Act, during the 15-calendar day period prior to, and during the
120-calendar day period beginning on, the closing date of such Underwritten
Offering; PROVIDED that, in the event that any other holders of more than 10% of
the outstanding Common Stock in the aggregate are restricted for a period of
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Registration Rights Agreement
time that is less than 120 calendar days, then such period with respect to each
Holder hereunder shall be reduced to such lesser period; PROVIDED, FURTHER, that
in the event any such holders of Common Stock are released from any such
restrictions imposed by the managing underwriter or underwriters, then Holders
hereunder shall be so released from the restrictions of this Section 4(a).
(a) Each Holder acknowledges that the Registrable Securities
have not been registered under the Securities Act, or any state securities law,
and such Registrable Securities may not be offered, sold, transferred or
otherwise disposed of except pursuant to an effective registration statement or
pursuant to an exemption from, or in a transaction not subject to, the
registration requirements of the Securities Act and applicable state securities
laws.
Section 5. REGISTRATION PROCEDURES. In connection with the Company's
registration obligations pursuant to Sections 2 and 3, the Company will effect
such registrations to permit the sale of such Registrable Securities in
accordance with the intended method or methods of disposition thereof, and
pursuant thereto the Company will as expeditiously as possible, and in each case
to the extent applicable (it being understood that the obligations of the
Company in clauses (a), (b), (d), (e), (h), (j), (k), (m), (n) and (p) of this
Section 5 will be subject to Section 2(d) and, except as provided in Section
2(a) and Section 3(b), the Holders will not have any right to effect an
underwritten public offering under Section 3):
(a) Prepare and file with the SEC a Registration
Statement or Registration Statements on any appropriate form under the
Securities Act available for the sale of the Registrable Securities by
the holders thereof in accordance with the intended method or methods
of distribution thereof, and cause each such Registration Statement to
become effective and remain effective as provided herein; PROVIDED,
HOWEVER, that before filing a Registration Statement or Prospectus or
any amendments or supplements thereto (including documents that would
be incorporated or deemed to be incorporated therein by reference) the
Company will furnish to the Holders holding Registrable Securities
covered by such Registration Statement, not more than one counsel
chosen by Holders holding a majority of the Registrable Securities
being registered ("SPECIAL COUNSEL") and the managing underwriters, if
any, copies of all such documents proposed to be filed, which documents
will be subject to the review of such Holders, such Special Counsel and
such underwriters, and the Company will not file any such Registration
Statement or amendment thereto or any Prospectus or any supplement
thereto (excluding such documents that, upon filing, will be
incorporated or deemed to be incorporated by reference therein) to
which the Holders holding a majority of the Registrable Securities
covered by such Registration Statement or the managing underwriter, if
any, shall reasonably conclude to potentially be misleading, omit a
material fact or fail to comply with rules or common practice of the
SEC or the securities industry.
(b) Prepare and file with the SEC such amendments and
post-effective amendments to each Registration Statement as may be
necessary to keep such Registration Statement continuously effective
for the applicable periods specified in Section 2; cause the related
Prospectus to be supplemented by any required Prospectus supplement,
and as so supplemented to be filed pursuant to Rule 424 (or any similar
provisions then in force) under the Securities Act; and comply with the
provisions of the Securities Act with respect
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Registration Rights Agreement
to the disposition of all securities covered by such Registration
Statement during the applicable period in accordance with the intended
methods of disposition by the sellers thereof set forth in such
Registration Statement as so amended or in such Prospectus as so
supplemented.
(c) Notify the selling Holders and the managing
underwriters, if any, promptly, and (if requested by any such person)
confirm such notice in writing, (i) when a Prospectus or any Prospectus
supplement or post-effective amendment has been filed, and, with
respect to a Registration Statement or any post-effective amendment,
when the same has become effective, (ii) of any request by the SEC or
any other federal or state governmental authority for amendments or
supplements to a Registration Statement or related Prospectus or for
additional information, (iii) of the issuance by the SEC or any other
federal or state governmental authority of any stop order suspending
the effectiveness of a Registration Statement or the initiation of any
proceedings for that purpose, (iv) if at any time the representations
and warranties of the Company contained in any agreement contemplated
by Section 5(m) (including any underwriting agreement) cease to be true
and correct in any material respect, (v) of the receipt by the Company
of any notification with respect to the suspension of the qualification
or exemption from qualification of any of the Registrable Securities
for sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose, (vi) of the occurrence of any event that
makes any statement made in such Registration Statement or related
Prospectus or any document incorporated or deemed to be incorporated
therein by reference untrue in any material respect or that requires
the making of any changes in a Registration Statement, Prospectus or
any such document so that, in the case of the Registration Statement,
it will not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to
make the statements therein not misleading and, in the case of the
Prospectus, it will not contain any untrue statement of a material fact
or omit to state any material fact required to be stated or necessary
to make the statements therein, in light of the circumstances under
which they were made, not misleading, and (vii) of the Company's
reasonable determination that a post-effective amendment to a
Registration Statement would be appropriate.
(d) Use every reasonable effort to obtain the
withdrawal of any order suspending the effectiveness of a Registration
Statement, or the lifting of any suspension of the qualification (or
exemption from qualification) of any of the Registrable Securities for
sale in any jurisdiction, at the earliest possible moment.
(e) If requested by the managing underwriters, if
any, or Holders holding a majority of the Registrable Securities being
registered, (i) promptly incorporate in a Prospectus supplement or
post-effective amendment such information as the managing underwriters,
if any, reasonably conclude, based on the advice of counsel, must be
included therein as may be required by applicable law and (ii) make all
required filings of such Prospectus supplement or such post-effective
amendment as soon as practicable after the Company has received
notification of the matters to be incorporated in such Prospectus
supplement or post-effective amendment; PROVIDED, HOWEVER, that the
Company will not be required to take any actions under this Section
5(e) that are not, in the opinion of counsel for the Company, in
compliance with applicable law.
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Registration Rights Agreement
(f) Furnish to each selling Holder and each managing
underwriter, if any, without charge, at least one conformed copy of the
Registration Statement and any post-effective amendment thereto,
including financial statements (but excluding schedules, all documents
incorporated or deemed incorporated therein by reference and all
exhibits, unless requested in writing by such holder or underwriter).
(g) Deliver to each selling Holder and the
underwriters, if any, without charge as many copies of the Prospectus
or Prospectuses relating to such Registrable Securities (including each
preliminary prospectus) and any amendment or supplement thereto as such
persons may reasonably request; and, subject to the last paragraph of
this Section 5, the Company hereby consents to the use of such
Prospectus or each amendment or supplement thereto by each of the
selling Holders and the underwriters, if any, in connection with the
offering and sale of the Registrable Securities covered by such
Prospectus or any amendment or supplement thereto.
(h) Prior to any public offering of Registrable
Securities, to register or qualify or cooperate with the selling
Holders, the underwriters, if any, and their respective counsel in
connection with the registration or qualification (or exemption from
such registration or qualification) of such Registrable Securities for
offer and sale under the securities or blue sky laws of such
jurisdictions within the United States as any seller or underwriter
reasonably requests in writing; use all reasonable efforts to keep such
registration or qualification (or exemption therefrom) effective during
the period the applicable Registration Statement is required to be kept
effective and do any and all other acts or things necessary or
advisable to enable the disposition in each such jurisdiction of the
Registrable Securities covered by the applicable Registration
Statement; PROVIDED, HOWEVER, that the Company will not be required to
(i) qualify to do business in any jurisdiction where it is not then so
required to be qualified or (ii) take any action that would subject it
to taxation or service of process in any such jurisdiction where it is
not then so subject.
(i) Cooperate with the selling Holders and the
managing underwriters, if any, to facilitate the timely preparation and
delivery of certificates representing Registrable Securities to be sold
and enable such Registrable Securities to be in such denominations and
registered in such names as the managing underwriters, if any, shall
request at least two business days prior to the closing of any sale of
Registrable Securities to the underwriters.
(j) Upon the occurrence of any event contemplated by
Section 5(c)(vi) or 5(c)(vii), prepare a supplement or post-effective
amendment to each Registration Statement or a supplement to the related
Prospectus or any document incorporated therein by reference or file
any other required document so that, as thereafter delivered to the
purchasers of the Registrable Securities being sold thereunder, such
Prospectus will not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading.
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Registration Rights Agreement
(k) If requested by Holders holding a majority of the
Registrable Securities covered by such Registration Statement or the
managing underwriters, if any, use its best efforts to cause all
Registrable Securities covered by such Registration Statement to be (i)
listed on each securities exchange, if any, on which securities issued
by the Company of the same class are then listed or, if no such
securities issued by the Company are then so listed or (ii) authorized
to be quoted on NASDAQ, if the securities qualify to be so quoted.
(l) As needed, (i) engage an appropriate transfer
agent and provide the transfer agent with printed certificates for the
Registrable Securities in a form eligible for deposit with The
Depository Trust Company and (ii) provide a CUSIP number for the
Registrable Securities.
(m) Enter into such customary agreements (including,
in the event of an Underwritten Offering, an underwriting agreement in
form, scope and substance as is customary in underwritten offerings)
and take all such other commercially reasonable and customary actions
in connection therewith (including those reasonably requested by the
Holders holding a majority of the Registrable Securities being sold or,
in the event of an Underwritten Offering, those reasonably requested by
the managing underwriters) in order to facilitate the disposition of
such Registrable Securities and in such connection, but only where an
underwriting agreement is entered into in connection with an
underwritten registration, (i) make such representations and warranties
to the underwriters with respect to the businesses of the Company and
its subsidiaries, the Registration Statement, Prospectus and documents
incorporated by reference or deemed incorporated by reference therein,
if any, in each case, in form, substance and scope as are customarily
made by issuers to underwriters in underwritten offerings and confirm
the same if and when requested; (ii) in the case of an Underwritten
Offering, obtain opinions of counsel to the Company and updates
thereof, which counsel and opinions (in form, scope and substance)
shall be reasonably satisfactory to the managing underwriters, if any,
addressed to each of the underwriters covering the matters customarily
covered in opinions requested in underwritten offerings and such other
matters as may be reasonably requested by such underwriters; (iii) in
the case of an Underwritten Offering, use reasonable efforts to obtain
"comfort" letters and updates thereof from the independent certified
public accountants of the Company (and, if necessary, any other
certified public accountants of any subsidiary of the Company or of any
business acquired by the Company for which financial statements and
financial data is, or is required to be, included in the Registration
Statement), addressed to each of the underwriters, such letters to be
in customary form and covering matters of the type customarily covered
in "comfort" letters in connection with underwritten offerings; and
(iv) deliver such documents and certificates as may be reasonably
requested by the managing underwriters, if any, to evidence the
continued validity of the representations and warranties of the Company
and its subsidiaries made pursuant to clause (i) above and to evidence
compliance with any customary conditions contained in the underwriting
agreement entered into by the Company. The foregoing actions will be
taken in connection with each closing under such underwriting agreement
as and to the extent required thereunder.
(n) Upon three (3) business days' notice, make
available for reasonable inspection during normal business hours by a
representative of the Holders holding
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Registrable Securities being sold, any underwriter participating in any
disposition of Registrable Securities, and any attorney or accountant
retained by such selling Holders or underwriter, all financial and
other records, pertinent corporate documents and properties of the
Company and its subsidiaries, and cause the officers, directors and
employees of the Company and its subsidiaries to supply all information
reasonably requested by any such representative, underwriter, attorney
or accountant in connection with such Registration Statement; PROVIDED,
HOWEVER, that any records, information or documents that are designated
by the Company in writing as confidential at the time of delivery of
such records, information or documents will be kept confidential by
such persons unless (i) such records, information or documents are in
the public domain or otherwise publicly available, (ii) disclosure of
such records, information or documents is required by court or
administrative order or is necessary to respond to inquiries of
regulatory authorities, or (iii) disclosure of such records,
information or documents, in the reasonable opinion of counsel to such
person, is otherwise required by law (including, without limitation,
pursuant to the requirements of the Securities Act).
(o) Comply with all applicable rules and regulations
of the SEC and make generally available to its security holders, as
soon as reasonably practicable, an earnings statement covering a period
of 12 months, beginning within three months after the effective date of
the registration statement, which earnings statement shall satisfy the
provisions of Section 11(a) of the Securities Act and the rules and
regulations promulgated thereunder.
(p) In connection with any Underwritten Offering,
cause appropriate members of management to cooperate and participate on
a reasonable basis in the underwriters' "road show" conferences related
to such offering.
The Company may require each seller of Registrable Securities
as to which any registration is being effected to furnish to the Company such
information regarding the distribution of such Registrable Securities as the
Company may, from time to time, reasonably request in writing, and the Company
may exclude from such registration the Registrable Securities of any seller who
unreasonably fails to furnish such information within a reasonable time after
receiving such request. The Company may require each seller of Registrable
Securities (i) to agree to sell such Registrable Securities on the basis
reasonably provided in any underwriting agreements entered into in connection
with such offering and (ii) to complete and execute all questionnaires, powers
of attorney, custody agreements, indemnities, underwriting agreements and other
documents required under the terms of such underwriting agreements.
Each Holder will be deemed to have agreed by virtue of its
acquisition of Registrable Securities that, upon receipt of any notice from the
Company of the occurrence of any event of the kind described in Section 2(d),
5(c)(ii), 5(c)(iii), 5(c)(v), 5(c)(vi) or 5(c)(vii) ("SUSPENSION NOTICE"), such
Holder will forthwith discontinue disposition of such Registrable Securities
covered by such Registration Statement or Prospectus (a "BLACK-OUT") until such
Holder's receipt of the copies of the supplemented or amended Prospectus
contemplated by Section 5(k), or until it is advised in writing (the "ADVICE")
by the Company that the use of the applicable Prospectus may be resumed, and
such Holder has received copies of any additional or supplemental filings that
are incorporated or deemed to be incorporated by reference in such Prospectus.
Except as expressly provided herein, there shall be no limitation with regard to
the
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Registration Rights Agreement
number of Suspension Notices that the Company is entitled to give hereunder;
PROVIDED, HOWEVER, that in no event shall the aggregate number of days the
Holders are subject to Black-Out during any period of twelve (12) consecutive
months exceed 120 days.
Section 6. REGISTRATION EXPENSES. Subject to clause (2) of the proviso
at the end of section 2(a), all fees and expenses incident to the performance of
or compliance with this Agreement by the Company will be borne by the Company
whether or not any of the Registration Statements become effective. Such fees
and expenses will include, without limitation, (i) all registration and filing
fees (including, without limitation, fees and expenses for compliance with
securities or "blue sky" laws), (ii) printing expenses (including, without
limitation, expenses of printing certificates for Registrable Securities in a
form eligible for deposit with The Depository Trust Company and of printing a
reasonable number of prospectuses if the printing of such prospectuses is
requested by the Holders holding a majority of the Registrable Securities
included in any Registration Statement), (iii) messenger, telephone and delivery
expenses incurred by the Company, (iv) fees and disbursements of counsel for the
Company incurred by the Company, (v) fees and disbursements of all independent
certified public accountants referred to in Section 5(m)(iii) (including the
expenses of any special audit and "comfort" letter required by or incident to
such performance) incurred by the Company, (vi) Securities Act liability
insurance, if any, and (vii) reasonable fees and expenses of Special Counsel
retained by the Holders in connection with the registration and sale of their
Registrable Securities (which counsel will be selected by the Holders of a
majority of the Registrable Securities being sold). In addition, the Company
will pay 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, the fees and expenses incurred in connection
with the listing of the securities to be registered on any securities exchange
on which securities of the same class issued by the Company are then listed and
the fees and expenses of any person, including special experts, retained by the
Company. In no event, however, will the Company be responsible for any
underwriting discount or selling commission with respect to any sale of
Registrable Securities pursuant to this Agreement, and the Holders shall be
responsible on a pro rata basis for any taxes of any kind (including, without
limitation, transfer taxes) with respect to any disposition, sale or transfer of
Registrable Securities and for any legal, accounting and other expenses incurred
by them in connection with any Registration Statement.
Section 7. INDEMNIFICATION.
(a) INDEMNIFICATION BY THE COMPANY. The Company will, without
limitation as to time, indemnify and hold harmless, to the fullest extent
permitted by law, each Holder holding Registrable Securities registered pursuant
to this Agreement, the officers, directors and agents and employees of each of
them, each person who controls such a Holder (within the meaning of Section 15
of the Securities Act or Section 20 of the Exchange Act) and the officers,
directors, agents and employees of any such controlling person, from and against
all losses, claims, damages, liabilities, costs (including without limitation
the costs of investigation and attorneys' fees) and expenses (collectively,
"LOSSES"), as incurred, arising out of or based upon any untrue or alleged
untrue statement of a material fact contained in any Registration Statement,
Prospectus or form of Prospectus 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, except insofar and
to the extent as the same are based upon information furnished in writing to the
Company by such
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Registration Rights Agreement
Holder or another Holder for use therein; PROVIDED, HOWEVER, that the Company
will not be liable to any Holder to the extent that any such Losses arise out of
or are based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in any Registration Statement, Prospectus or preliminary
prospectus if either (A) (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 by
such Holder of a Registrable Security to the person asserting the claim from
which such Losses arise and (ii) the Prospectus would have corrected such untrue
statement or alleged untrue statement or such omission or alleged omission; or
(B) such untrue statement or alleged untrue statement, omission or alleged
omission is corrected in an amendment or supplement to the Prospectus previously
furnished by or on behalf of the Company with copies of the Prospectus, and such
Holder thereafter fails to deliver such Prospectus as so amended or supplemented
prior to or concurrently with the sale of a Registrable Security to the person
asserting the claim from which such Losses arise.
(b) INDEMNIFICATION BY HOLDERS. In connection with any
Registration Statement in which a Holder is participating, such Holder will
furnish to the Company in writing such information as the Company reasonably
requests for use in connection with any Registration Statement, Prospectus or
preliminary prospectus and will indemnify, to the fullest extent permitted by
law, the Company, its directors and officers, agents and employees, each person
who controls the Company (within the meaning of Section 15 of the Securities Act
and Section 20 of the Exchange Act), and the directors, officers, agents or
employees of such controlling persons, from and against all Losses arising out
of or based upon any untrue statement of a material fact contained in any
Registration Statement, Prospectus or preliminary prospectus or arising out of
or based upon any omission of a material fact required to be stated therein or
necessary to make the statements therein not misleading, to the extent, but only
to the extent, that such untrue statement or omission is contained in any
information so furnished in writing by such Holder to the Company for use in
such Registration Statement, Prospectus or preliminary prospectus and was relied
upon by the Company in the preparation of such Registration Statement,
Prospectus or preliminary prospectus. In no event will the liability of any
selling Holder hereunder be greater in amount than the dollar amount of the
proceeds (net of payment of all expenses) received by such Holder upon the sale
of the Registrable Securities giving rise to such indemnification obligation.
(c) CONDUCT OF INDEMNIFICATION PROCEEDINGS. If any person
shall become entitled to indemnity hereunder (an "INDEMNIFIED PARTY"), such
indemnified party shall give prompt notice to the party from which such
indemnity is sought (the "INDEMNIFYING PARTY") of any claim or of the
commencement of any action or proceeding with respect to which such indemnified
party seeks indemnification or contribution pursuant hereto; PROVIDED, HOWEVER,
that the failure to so notify the indemnifying party will not relieve the
indemnifying party from any obligation or liability except to the extent that
the indemnifying party has been prejudiced materially by such failure. All
reasonable fees and expenses (including any reasonable fees and expenses
incurred in connection with investigating or preparing to defend such action or
proceeding) will be paid to the indemnified party (PROVIDED appropriate
documentation for such expenses is also submitted with such notice), as
incurred, within five calendar days of written notice thereof to the
indemnifying party (regardless of whether it is ultimately determined that an
indemnified party is not entitled to indemnification hereunder). The
indemnifying party will not consent to entry of any judgment or enter into any
settlement or otherwise seek to terminate any action or proceeding in which any
indemnified party is or could be a party and as to which indemnification or
contribution could be
12
Registration Rights Agreement
sought by such indemnified party under this Section 7, unless such judgment,
settlement or other termination includes as an unconditional term thereof the
giving by the claimant or plaintiff to such indemnified party of a release, in
form and substance reasonably satisfactory to the indemnified party, from all
liability in respect of such claim or litigation for which such indemnified
party would be entitled to indemnification hereunder. In case any such action is
brought against any indemnified party, and it notifies the indemnifying party of
the commencement thereof, the indemnifying party will be entitled to participate
therein and, to the extent it may wish, jointly with any other indemnifying
party similarly notified, to assume the defense thereof, with counsel reasonably
satisfactory to such indemnified party. Notwithstanding the election of the
indemnifying party to assume the defense of such litigation or proceeding, such
indemnified party shall have the right to employ separate counsel and to
participate in the defense of such litigation or proceeding, and the
indemnifying party shall bear the reasonable fees, costs and expenses of such
separate counsel and shall pay such fees, costs and expenses at least quarterly
(PROVIDED that with respect to any single litigation or proceeding or with
respect to several litigations or proceedings involving substantially similar
legal claims, such indemnifying party shall not be required to bear the fees,
costs and expenses of more than one such counsel) if (i) in the reasonable
judgment of such indemnified party the use of counsel chosen by such
indemnifying party to represent such indemnified party would present such
counsel with a conflict of interest, (ii) the defendants in, or targets of, any
such litigation or proceeding include both an indemnifying party and an
indemnified party, and such indemnified party shall have reasonably concluded
that there may be legal defenses available to it or to other indemnified parties
which are different from or additional to those available to such indemnifying
party (in which case such indemnifying party shall not have the right to direct
the defense of such action on behalf of the indemnified party), (iii) such
indemnifying party shall not have employed counsel satisfactory to such
indemnified party, in the exercise of such indemnified party's reasonable
judgment, to represent such indemnified party within a reasonable time after
notice of the institution of such litigation or proceeding or (iv) any
indemnifying party shall authorize in writing such indemnified party to employ
separate counsel at the expense of such indemnifying party.
(d) CONTRIBUTION. If the indemnification provided for in this
Section 7 is unavailable to an indemnified party under Section 7(a) or 7(b) in
respect of any Losses or is insufficient to hold such indemnified party
harmless, then each applicable indemnifying party, in lieu of indemnifying such
indemnified party, will, severally but not jointly, contribute to the amount
paid or payable by such indemnified party as a result of such Losses, in such
proportion as is appropriate to reflect the relative fault of the indemnifying
party or indemnifying parties, on the one hand, and such indemnified party, on
the other hand, in connection with the actions, statements or omissions that
resulted in such Losses as well as any other relevant equitable considerations.
The relative fault of such indemnifying party or indemnifying parties, on the
one hand, and such indemnified party, on the other hand, will be determined by
reference to, among other things, whether any action in question, including any
untrue or alleged untrue statement of a material fact or omission or alleged
omission of a material fact, has been taken or made by, or related to
information supplied by, such indemnifying party or indemnified party, and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such action, statement or omission. The amount paid or
payable by a party as a result of any Losses will be deemed to include any legal
or other fees or expenses incurred by such party in connection with any action
or proceeding.
13
Registration Rights Agreement
The parties hereto agree that it would not be just and
equitable if contribution pursuant to this Section 7(d) were determined by PRO
RATA allocation or by any other method of allocation that does not take into
account the equitable considerations referred to in the immediately preceding
paragraph. Notwithstanding the provisions of this Section 7(d), an indemnifying
party that is a selling Holder will not be required to contribute any amount in
excess of the amount by which the total price at which the Registrable
Securities sold by such indemnifying party and distributed to the public were
offered to the public exceeds the amount of any damages that such indemnifying
party has otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
will be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
The indemnity, contribution and expense reimbursement
obligations of the Company hereunder will be in addition to any liability the
Company may otherwise have hereunder or otherwise. The provisions of this
Section 7 shall survive the sale of the Registrable Securities pursuant to a
Registration Statement, notwithstanding any permitted transfer of the
Registrable Securities by any Holder thereof or any termination of this
Agreement.
Section 8. UNDERWRITTEN REGISTRATIONS. If any of the Registrable
Securities included in any Demand Registration are to be sold in an Underwritten
Offering, the Company may select an investment banker or investment bankers and
manager or managers to manage the Underwritten Offering, PROVIDED that such
investment banker or bankers is (are) reasonably acceptable to the Holders
holding a majority of the Registrable Securities included in the Demand Notice.
If any Piggyback Registration is an Underwritten Offering, the Company will have
the exclusive right to select the investment banker or investment bankers and
managers to administer the offering. The Company agrees that, in connection with
any Underwritten Offering hereunder, it shall undertake to offer customary
indemnification to the participating underwriters.
Section 9. MISCELLANEOUS.
(a) REMEDIES. In the event of a breach by a party of its
obligations under this Agreement, each other party, in addition to being
entitled to exercise all rights granted by law, including recovery of damages,
will be entitled to specific performance of its rights under this Agreement.
Each party agrees that monetary damages would not be adequate compensation for
any loss incurred by reason of a breach by it of any provision of this Agreement
and hereby further agrees that, in the event of any action for specific
performance in respect of such breach, it will waive the defense that a remedy
at law would be adequate.
(b) AMENDMENTS AND WAIVERS. The provisions of this Agreement
may not be amended, modified or supplemented without the prior written consent
of the Company, and Holders holding in excess of 50% of the Registrable
Securities in respect of which Registrable Securities are issuable.
(c) NOTICES. Except as set forth below, all notices and other
communications provided for or permitted hereunder shall be in writing and shall
be deemed to have been duly given if delivered personally or sent by telex or
fax, registered or certified mail (return receipt requested), postage prepaid or
courier or overnight delivery service to the Company at the
14
Registration Rights Agreement
following address and to a Holder at the address set forth on his or her
signature page to this Agreement (or at such other address for any party as
shall be specified by like notice, PROVIDED that notices of a change of address
shall be effective only upon receipt thereof):
If to the Company: Granite Broadcasting Corporation
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: President
Fax:
With a copy to: Akin, Gump, Strauss, Xxxxx & Xxxx, L.L.P.
0000 Xxx Xxxxxxxxx Xxxxxx, X.X., Xxxxx 000
Xxxxxxxxxx, X.X. 00000
Attention: Xxxxxxx X. Xxxxx, Xx.
Fax: (000) 000-0000
If to the Investor: National Broadcasting Company, Inc.
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: General Counsel
Fax: (000) 000-0000
With a copy to: Xxxxxxx Xxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxxx X. Xxxxxxxxxx
Fax: (000) 000-0000
(d) MERGER OR CONSOLIDATION OF THE COMPANY. If the Company is
a party to any merger or consolidation pursuant to which the Registrable
Securities are converted into or exchanged for securities or the right to
receive securities of any other person ("CONVERSION SECURITIES"), the issuer of
such Conversion Securities shall assume (in a writing delivered to all Holders)
all obligations of the Company hereunder. The Company will not effect any merger
or consolidation described in the immediately preceding sentence unless the
issuer of the Conversion Securities complies with this Section 9(d).
(e) SUCCESSORS AND ASSIGNS. Subject to the terms and
conditions of the Supplemental Agreement, (i) any transferee of all or a portion
of the Registrable Securities and (ii) any Restricted Party that holds
Registrable Securities shall become a Holder hereunder to the extent it agrees
in writing to be bound by all of the provisions applicable hereunder to the
transferring Holder (such acknowledgment being evidenced by execution of a
Counterpart and Acknowledgment substantially in the form of EXHIBIT A). Subject
to the requirements of this Section 9(e), this Agreement shall inure to the
benefit of and be binding upon the successors and assigns of the parties hereto.
15
Registration Rights Agreement
(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 will be deemed to be an original and all of which taken
together will constitute one and the same instrument.
(g) HEADINGS. The headings in this Agreement are for
convenience of reference only and will not limit or otherwise affect the
meaning.
(h) GOVERNING LAW. This agreement will 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.
(i) SEVERABILITY. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction to be
invalid, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein will remain in full force and effect
and will in no way be affected, impaired or invalidated, and the parties hereto
will use their best efforts to find and employ an alternative means to achieve
the same or substantially the same result as that contemplated by such term,
provision, covenant or restriction. It is hereby stipulated and declared to be
the intention of the parties that they would have executed the remaining terms,
provisions, covenants and restrictions without including any of such which may
be hereafter declared invalid, void or unenforceable.
(j) ENTIRE AGREEMENT. This Agreement is intended by the
parties as a final expression of their agreement and intended to be the 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, with respect to such subject matter. This Agreement supersedes all prior
agreements and understandings between the parties with respect to such subject
matter.
[SIGNATURE PAGE FOLLOWS]
16
Registration Rights Agreement
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
GRANITE BROADCASTING CORPORATION
By: /s/ W. Xxx Xxxxxxxx
--------------------------------
Name: W. Xxx Xxxxxxxx
Title: Chief Executive Officer
NATIONAL BROADCASTING COMPANY, INC.
By: /s/ Xxxxxx X. Xxxxx
--------------------------------
Name: Xxxxxx X. Xxxxx
Title:
EXHIBIT A
REGISTRATION RIGHTS AGREEMENT
COUNTERPART AND ACKNOWLEDGMENT
TO: The Company
RE: The Registration Rights Agreement (the "Agreement") dated as
of May 31, 2000, by and among the Company and the Holders
(as defined in the Agreement)
The undersigned hereby agrees to be bound by the terms of the
Agreement as a party to the Agreement, and shall be entitled to all benefits of
the Holders (as defined in the Agreement) and shall be subject to all
obligations and restrictions of the Holders pursuant to the Agreement, as fully
and effectively as though the undersigned had executed a counterpart of the
Agreement together with the other parties to the Agreement. The undersigned
hereby acknowledges having received and reviewed a copy of the Agreement.
DATED this _____ day of ____________, _____
By:
Title:
Number of
Shares of
Registrable Securities:
EXHIBIT B
ASSIGNMENT FORM
FOR VALUE RECEIVED the undersigned registered owner of this
Series A Warrant ("Warrant") hereby sells, assigns and transfers unto the
Assignee named below all of the rights of the undersigned under this Warrant,
with respect to the number of shares of Common Stock set forth below.
No. of Shares of
Name and Address of Assignee of Common Stock
---------------------------- ---------------
and does hereby irrevocably constitute and appoint _____________________
attorney-in-fact to register such transfer on the books of GRANITE BROADCASTING
CORPORATION maintained for the purpose, with full power of substitution in the
premises
Dated: ____________________________
Name: ____________________________
(Print)
Signature: ________________________
Witness: __________________________
NOTICE: The signature on this subscription must correspond with the name as
written upon the face of the within Warrant in every particular,
without alteration or enlargement or any change whatsoever.
