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Exhibit 99.4
EXECUTION COPY
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of ______ __, 1999 (this
"Agreement"), among INFINITY BROADCASTING CORPORATION, a Delaware corporation
("Infinity"), and the holders signatory hereto (the "Stockholders") of Class A
common stock, par value $.01 per share, of Infinity (the "Infinity Common
Stock").
W I T N E S S E T H :
WHEREAS, in connection with and pursuant to Section 5.17 of the
Agreement and Plan of Merger, dated as of May 27, 1999 (the "Merger Agreement"),
by and among Infinity, Burma Acquisition Corp., a Delaware corporation ("Merger
Sub"), and Outdoor Systems, Inc., a Delaware corporation ("OSI"), Infinity
agreed to enter into this Agreement for the benefit of the Stockholders;
WHEREAS, pursuant to the Merger (as defined in the Merger Agreement),
Merger Sub was merged with and into OSI, with OSI surviving the Merger as a
wholly owned subsidiary of Infinity, and each share of the common stock, par
value $.0l per share, of OSI (the "OSI Common Stock") outstanding immediately
prior to the Merger was automatically converted pursuant to the Merger into
Infinity Common Stock based on the Exchange Ratio;
WHEREAS, pursuant to the Merger Agreement, Infinity has agreed to grant
to the Stockholders certain registration rights with respect to shares of
Infinity Common Stock issued to the Stockholders in the Merger that constitute
Registrable Securities (as hereinafter defined), as well as certain other
securities to which the Stockholders may be entitled as provided below, upon the
terms and subject to the conditions set forth herein; and
WHEREAS, it is intended by Infinity that this Agreement shall become
effective immediately;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Infinity, intending to
be legally bound hereby, hereby agrees as follows:
Section 1. Definitions. Capitalized terms used but not defined in this
Agreement shall have the meanings assigned to such terms in the Merger
Agreement.
Section 2. Registration Rights.
(a) Registration Upon Request.
(i) At any time. and from time to time, commencing with the
later of the Effective Time and January 1, 2000 and ending on December 31, 2004
(the "Effective Period"), upon the written request (a "demand") of any Qualified
Holder(s) (as
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hereinafter defined) requesting that Infinity effect the registration for sale
under the Securities Act of 1933, as amended (the "Securities Act"), of
Registrable Securities held by such holders, Infinity promptly shall use its
best efforts to register under the Securities Act (a "Demand Registration") the
Registrable Securities which Infinity has been requested to register, all to the
extent necessary to permit the disposition of such Registrable Securities in
accordance with the methods intended by the sellers thereof; provided that (i)
such demand shall cover at least U.S. $[ ] in Infinity Common Stock based on the
closing price for Infinity Common Stock on the NYSE Composite Tape for the last
trading day immediately preceding the date of the demand, (ii) the Qualified
Holder(s) shall not be permitted to make a demand within 60 days following the
effective date of any registration statement for equity securities of Infinity
(other than on Form S-4 or Form S-8 or any successor or equivalent form) and
(iii) Infinity shall not be required to effect more than one Demand Registration
for the Stockholders pursuant to this Section 2(a). An exercise of the Demand
Registration right will not count as the use of such right unless the
registration statement to which it relates is declared effective under the
Securities Act. However, an exercise of the Demand Registration right will count
as the use of such right even though the registration statement to which it
relates is declared effective if such effective registration statement is
interfered with by any stop order, injunction or other order or requirement of
the Securities and Exchange Commission (the "Commission") or of another
governmental agency or court due to a material misrepresentation in or material
omission from information provided in writing by such Qualified Holder expressly
for inclusion by such Qualified Holder in such registration statement.
(ii) As used in this Agreement, the term "Registrable
Securities" means any and all (A) Infinity Common Stock acquired by the
Qualified Holders pursuant to the Merger, upon conversion of any other
securities acquired by the Qualified Holders pursuant to the Merger or upon the
exercise of stock options assumed by Infinity pursuant to the Merger Agreement
and (B) any other securities issued or issuable with respect to any shares of
Infinity Common Stock described in clause (A) of this paragraph by way of a
stock dividend or stock split or in connection with a combination, exchange,
reorganization, recapitalization or reclassification of any securities of
Infinity, or pursuant to a merger, consolidation or other similar business
combination transaction involving Infinity.
(iii) As to any particular Registrable Securities, such
securities shall cease to constitute Registrable Securities when (A) a
registration statement with respect to the sale of such securities shall have
been declared effective under the Securities Act and such securities shall have
been disposed of in accordance with the plan of distribution contemplated by the
registration statement, (B) such securities shall have been sold in satisfaction
of all applicable conditions to the resale provisions of Rule 144 under the
Securities Act (or any successor provision thereto), (C) such securities shall
have been transferred, sold or disposed of by a Qualified Holder to any person
that is not a Qualified Holder or (iv) such securities shall have ceased to be
issued and outstanding.
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(iv) (A) The term "Qualified Holder(s)" means any holder of
Registrable Securities and any transferee of any such holder who or which has
agreed in writing to be bound by the terms of this Agreement and (i) has
succeeded to the interest of such Shareholder by gift or by virtue of the laws
of descent and distribution, (ii) is a corporation, limited liability company,
partnership, or other entity controlled by such holder and his spouse, children
or grandchildren or (iii) a trust of which such holder is a trustee or which is
established for the benefit of such holder or such holder's spouse, children or
grandchildren.
(B) The term "Majority Qualified Holder(s)" means a
majority in interest of the Qualified Holders participating in a registration of
Registrable Securities pursuant hereto.
(v) Infinity shall be required to register Infinity Common
Stock pursuant to Section 2(a) only if such Infinity Common Stock is to be
offered and sold in an underwritten distribution registered under the Securities
Act.
(vi) It is hereby further agreed that with respect to any
Demand Registration requested pursuant to this Section 2(a), Infinity may defer
the filing or effectiveness of the registration statement for a period of up to
(A) 45 days if Infinity is, at such time, working on an underwritten public
offering of Infinity Common Stock and is advised by its Managing Underwriter(s)
that such offering would in such Managing Underwriter(s) opinion be adversely
affected in any material respect by such filing (provided that if Infinity files
a registration statement with respect to such an offering during such 45-day
period, Infinity may defer the filing or effectiveness of the requested Demand
Registration until the expiration of the 60-day period referred to in Section
2(a)(i) hereof) or (B) 90 days if the chief executive officer or general counsel
of Infinity, in his or her good faith judgment, determines and advises the
requesting Qualified Holder(s) that any such filing or the offering of any
Registrable Securities would impair or interfere in any material respect with
any proposed material financing, other offer or sale of securities, acquisition,
corporate reorganization or other significant transaction involving Infinity, or
would require Infinity to make public disclosure of information which could have
a material adverse effect on Infinity; provided, however, that Infinity may not
utilize the right set forth in clause (B) more than once in any 12-month period.
(vii) Infinity shall have the right to cause the registration
of additional securities for sale for the account of any person (including
Infinity) in the registration of Registrable Securities requested by the
Qualified Holder(s) pursuant to Section 2(a); provided, that Infinity shall not
have the right to cause the registration of such additional securities to the
extent the Qualified Holder(s) is advised in writing (with a copy to Infinity)
by the Managing Underwriter(s) for such Demand Registration that, in such firm's
opinion, registration of such additional securities would impair or interfere in
any material respect with the marketing and sale of the Registrable Securities
proposed to be registered in the offering by the Qualified Holder(s), and in no
event shall any Qualified Holder be obligated to reduce the number of
Registrable Securities to be included in any offering in order to accommodate
the addition of any other person (including Infinity).
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The Qualified Holder(s) may require that any such additional securities be
included in the offering proposed by the Qualified Holder(s) on the same terms
and conditions as the Registrable Securities that are included therein.
(b) Incidental Registrations.
(i) If at any time or from time to time Infinity shall
determine to register any of its securities, either for its own account or the
account of security holders, other than a registration relating solely to
employee benefit plans or a registration on Form S-4 relating solely to an SEC
Rule 145 transaction, Infinity will:
(A) promptly give the Qualified Holders written
notice thereof (which shall include a list of the jurisdictions in which
Infinity intends to attempt to qualify such securities under the applicable
"blue sky" or other state securities laws); and
(B) include in such registration (and any related
qualification under "blue sky" laws or other compliance), and in any
underwriting involved therein, all the Registrable Securities specified in a
written request, made by the Qualified Holders within thirty (30) days after
receipt of such written notice from Infinity, except as set forth in Section
2(b)(ii) below.
(ii) If the registration of which Infinity gives notice is for
a registered public offering involving an underwriting, Infinity shall so advise
the Qualified Holders as a part of the written notice given pursuant to Section
2(b)(i). In such event the right of the Qualified Holders to registration
pursuant to this Section 2 shall be conditioned upon the Qualified Holders'
participation in such underwriting and the inclusion of the Qualified Holders'
Registrable Securities in the underwriting to the extent provided herein. The
Qualified Holders, together with Infinity and the other parties distributing
their securities through such underwriting, shall enter into an underwriting
agreement in customary form with the underwriter or underwriters selected for
such underwriting by the Company. Notwithstanding any other provision of this
Section 2, if the Managing Underwriters determine that marketing factors require
a limitation of the number of shares or type of securities to be underwritten,
the Managing Underwriters may limit the number of Registrable Securities to be
included in the registration and underwriting, or may exclude Registrable
Securities entirely from such registration and underwriting subject to the terms
of this Section. Infinity shall so advise by writing all holders of Infinity's
securities that would otherwise have a right to be so registered and
underwritten and the number of shares of such securities, including Registrable
Securities, that may be included in the registration and underwriting shall be
allocated (A) first, to Infinity (if Infinity is registering securities for its
own account) and (B) thereafter, among all such other holders in proportion, as
nearly as practicable, to the respective amounts of securities of Infinity
proposed to be included in such underwritten offering by all shareholders;
provided, however, that the rights of the Qualified Holders to include all or
any allocable portion of such Registrable Securities shall be subject to the
priority (prior to any allocation to the Qualified Holders) of the holders of
existing "demand" registration rights similar to that provided in Section 2(a)
hereof existing on the date
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hereof (all such existing rights are included in agreements referred to in
Section 12 hereof) and shall have priority over holders of demand registration
rights that may be granted in the future (prior to any allocation to such other
holders). No securities excluded from the underwriting by reason of the Managing
Underwriters' marketing limitation shall be included in such registration. If
the Qualified Holders disapprove of the terms of the underwriting, they may
elect to withdraw therefrom by written notice to Infinity and the underwriter.
The Registrable Securities so withdrawn shall also be withdrawn from
registration.
Each Qualified Holder agrees that any shares of Registrable Securities
which are not included in an underwritten public offering described in Section
2(b) in which such Qualified Holder participates shall not be publicly sold by
the Qualified Holders for a period, not to exceed one hundred twenty (120) days,
which the Managing Underwriter reasonably determines is necessary in order to
effect such underwritten public offering.
(c) Registration Procedures. If and whenever Infinity is required by
the provisions of this Agreement to effect or cause the registration of any
Registrable Securities under the Securities Act as provided in this Agreement,
Infinity shall use its best efforts to:
(i) prepare and file with the Commission, as soon as
practicable following the receipt of the demand (subject to the limitation
contained in the provisio below) a registration statement on a form which is
available for the sale of Registrable Securities by the holders thereof in
accordance with the intended plan of distribution therefor (subject to Section
2(a)(v)), and is reasonably acceptable to the Majority Qualified Holders of
Registrable Securities participating therein, and use its best efforts to cause
such registration statement to become and remain effective under the Securities
Act for not less than a period of 60 days (unless the Registrable Securities
registered thereunder have been sold or disposed of prior to the expiration of
such 60-day period); provided, however, that with respect to any demand for
registration pursuant to Section 2(a) made within the period commencing 30 days
next preceding the end of Infinity's fiscal year and ending 90 days after the
end of Infinity's fiscal year only, if Infinity is not then eligible to effect a
registration under the Securities Act by use of Form S-3 (or other comparable
short-form registration statement), Infinity shall be entitled to delay the
effectiveness of such registration until ten days after the earlier of (x) such
time as Infinity receives audited financial statements for such fiscal year and
(y) the expiration of 90 days after the last day of such fiscal year;
(ii) prepare and file with the Commission such amendments,
post-effective amendments and supplements to such registration statement and the
prospectus used in connection therewith as may be necessary to keep such
registration statement effective for such period of time as is necessary to
complete the offering and the distribution of the securities covered thereby
(but, in no event, longer than 60 days after such registration statement becomes
effective) in each case exclusive of any period during which the prospectus used
in connection with such registration statement shall not comply with the
requirements of Section 10 of the Securities Act; and to comply with the
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provisions of the Securities Act with respect to the disposition of all
securities covered by such registration statement during said 60-day period;
(iii) furnish to each seller of Registrable Securities and
each underwriter of the securities being sold by such seller, (A) such number of
copies of such registration statement and of each such amendment thereof and
supplement thereto (including all annexes, appendices, schedules and exhibits),
(B) such number of copies of the prospectus used in connection with such
registration statement (including each preliminary prospectus and any summary
prospectus and the final prospectus filed pursuant to Rule 424(b) under the
Securities Act) and (C) such number of copies of other documents, as such seller
and underwriter may reasonably request in order to facilitate the disposition of
Registrable Securities in accordance with the methods intended by the sellers
thereof and, in each of the foregoing cases, afford the seller a reasonable
opportunity to review and comment on drafts of each of the foregoing documents
prior to their filing or distribution, as the case may be;
(iv) register or qualify the Registrable Securities covered by
such registration statement under the securities or "blue sky" laws of such
jurisdictions as any seller and each underwriter of the Registrable Securities
shall reasonably request, and do any and all other acts and things which may be
necessary or desirable to enable such seller and underwriter to consummate the
offering and disposition of Registrable Securities in such jurisdictions;
provided, however, Infinity shall not be required to qualify generally to do
business as a foreign corporation, subject itself to taxation, or consent to
general service of process, in any jurisdiction wherein it would not, but for
the requirements of this Section 2(c), be obligated to be qualified;
(v) cause the Registrable Securities covered by such
registration statement to be registered with, or approved by, such other public,
governmental or regulatory authorities as may be necessary to facilitate the
disposition of such Registrable Securities in accordance with the methods of
disposition intended by the sellers thereof;
(vi) notify each seller of any Registrable Securities covered
by such registration statement and the Managing Underwriter(s), if any, promptly
and, if requested by any such person, confirm such notification in writing, (A)
when a prospectus or any prospectus supplement has been filed with the
Commission, and, with respect to a registration statement or any post-effective
amendment thereto, when the same has been declared effective by the Commission,
(B) of any request by the Commission for amendments or supplements to a
registration statement or related prospectus, or for additional information, (C)
of the issuance by the Commission of any stop order or the initiation of any
proceedings for such or a similar purpose (and Infinity shall make every
reasonable effort to obtain the withdrawal of any such order at the earliest
practicable moment), (D) of the receipt by Infinity of any notification with
respect to the suspension of the qualification of any of the Registrable
Securities for sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose (and Infinity shall make every reasonable effort to
obtain the withdrawal of any such suspension at the earliest practicable
moment), (E) of the occurrence of any event which
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requires the making of any changes to a registration statement or related
prospectus so that such documents will not contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading (and Infinity shall as promptly as
practicable prepare and furnish to such seller and the Managing Underwriter(s) a
reasonable number of copies of a supplemented or amended prospectus such that,
as thereafter delivered to the purchasers of such Registrable Securities, such
prospectus shall not include 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 are made, not
misleading), and (F) of Infinity's determination that the filing of a
post-effective amendment to the Registration Statement shall be necessary or
appropriate. Each holder of Registrable Securities agrees that such holder will,
as expeditiously as possible, notify Infinity at any time when a prospectus
relating to a registration statement covering such seller's Registrable
Securities is required to be delivered under the Securities Act, of the
happening of any event of the kind described in this Section 2(c)(vi) as a
result of any information provided by such seller in writing specifically for
inclusion in such prospectus included in such registration statement and, at the
request of Infinity, promptly prepare and furnish to it such information as may
be necessary so that, after incorporation into a supplement or amendment of such
prospectus as thereafter delivered to the purchasers of such securities, the
information provided by such seller shall not include 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 made therein, in the light of the circumstances
under which they were made, not misleading. Each holder of Registrable
Securities shall be deemed to have agreed by acquisition of such Registrable
Securities that upon the receipt of any notice from Infinity of the occurrence
of any event of the kind described in clause (E) of this Section 2(c)(vi), such
holder shall forthwith discontinue such holder's offer and disposition of
Registrable Securities pursuant to the registration statement covering such
Registrable Securities until such holder shall have received copies of a
supplemented or amended prospectus which is no longer defective as contemplated
by clause (E) of this Section 2(c)(vi) and, if so directed by Infinity, shall
deliver to Infinity, at Infinity's expense, all copies (other than permanent
file copies) of the defective prospectus covering such Registrable Securities
which are then in such holder's possession. In the event Infinity shall provide
any notice of the type referred to in the preceding sentence, the 60- day period
mentioned in Sections 2(c)(i) and 2(c)(ii) shall be extended by the number of
days from and including the date such notice is provided, to and including the
date when each seller of any Registrable Securities covered by such registration
statement shall have received copies of the corrected prospectus contemplated by
clause (E) of this Section 2(c)(vi);
(vii) use its reasonable best efforts to comply with all
applicable rules and regulations of the Commission, as the same may hereafter be
amended, and make available to its security holders, as soon as reasonably
practicable, an earnings statement, which shall satisfy the provisions of
Section 11(a) of the Securities Act;
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(viii) cause all such Registrable Securities covered by such
registration statement to be listed on each securities exchange on which similar
securities issued by Infinity are then listed, if the listing of such
Registrable Securities is then permitted under the rule and regulations of such
exchange;
(ix) engage and provide a transfer agent (which may be an
existing transfer agent) for all Registrable Securities covered by such
registration statement no later than the effective date of such registration
statement;
(x) enter into one or more underwriting agreements (in
customary form and substance) and take all such other actions (including,
without limitation, to the extent reasonably consistent with work commitments
but without diminishment of Infinity's obligations hereunder, and upon
reasonable notice, participation in a reasonable number of "roadshow"
presentations) as the participating holders shall reasonably request in order to
expedite or facilitate the disposition of such Registrable Securities in
accordance with the plan of distribution intended by the sellers thereof; it
being hereby acknowledged and agreed that in all cases the selection of any
Managing Underwriter(s) shall be made by Infinity with the consent of the
Majority Qualified Holders (which consent may not be unreasonably withheld or
delayed); and
(xi) obtain an opinion from counsel to Infinity, and a "cold
comfort" letter from an independent certified public accounting firm of national
recognition and standing who have certified Infinity's financial statements
included in the registration statement or any amendment thereto, in each case in
form and substance reasonably satisfactory to the Majority Qualified Holders,
and covering such matters of the type customarily covered by such opinions and
"cold comfort" letters as the Majority Qualified Holders shall reasonably
request.
(d) Custody Agreement and Power of Attorney. Upon Infinity's request,
the Qualified Holder(s) will execute and deliver a custody agreement and power
of attorney in form and substance reasonably satisfactory to Infinity with
respect to the Registrable Securities to be registered pursuant to this Section
2 (a "Custody Agreement and Power of Attorney"). The Custody Agreement and Power
of Attorney will provide, among other things, that the Qualified Holders will
deliver to and deposit in custody with the custodian and attorney-in-fact named
therein a certificate or certificates representing such shares of Registrable
Securities (duly endorsed in blank by the registered owner or owners thereof or
accompanied by duly executed stock powers in blank) and irrevocably appoint said
custodian and attorney-in-fact as the Qualified Holder's agent and
attorney-in-fact with full power and authority to act under the Custody
Agreement and Power of Attorney on behalf of the Qualified Holders with respect
to the matters specified therein.
(e) Registration Expenses. Whether or not any registration statement
prepared and filed pursuant to this Section 2 is declared effective by the
Commission, Infinity shall pay (A) all Commission and NYSE registration and
filing fees and expenses; (B) all listing, transfer and/or exchange agent and
registrar fees; (C) fees and expenses in connection with the qualification of
the Registrable Securities under securities or "blue
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sky" laws including reasonable fees, disbursements and related charges of
counsel for the underwriters in connection therewith; (D) printing expenses; (E)
messenger and delivery expenses; (F) fees and out-of-pocket expenses of counsel
for Infinity and its independent certified public accountants (including the
expenses of any audit, review and/or "cold comfort" letters) and other persons,
including special experts, retained by Infinity; (G) the reasonable fees and
disbursements of counsel, other than Infinity's counsel, selected by the
Majority Qualified Holders of the Registrable Securities being registered to
represent all Qualified Holders of the Registrable Securities being registered
in connection with each such registration (it being understood that any
Qualified Holder may, at its own expense, retain separate counsel to represent
it in connection with such registration); and (H) any other costs and expenses
of such registration and the disposition of the securities pursuant to the
registration statement therefor (collectively, clauses (A) through (H),
"Registration Expenses"); provided, however, that Infinity shall not be required
to pay, and the Qualified Holders shall pay, all transfer taxes and all
discounts, commissions or fees of underwriters, selling brokers and dealers.
(f) Indemnification; Contribution.
(i) Infinity shall indemnify and hold harmless, to the fullest
extent permitted by law, each holder (a "Participating Holder") of Registrable
Securities registered pursuant to Section 2(a) or Section 2(b) hereof, its
officers and directors, if any, and each person, if any, who controls such
holder within the meaning of Section 15 of the Securities Act or Section 20 of
the Exchange Act, from and against all losses, claims, damages, liabilities (or
proceedings in respect thereof) and expenses (including the reasonable costs of
investigation and reasonable attorneys' fees, disbursements and related charges)
(under the Securities Act, common law and otherwise) (collectively, "Claims"),
joint or several, which arise out of or are based upon (A) any untrue statement
or alleged untrue statement of a material fact contained in any registration
statement, prospectus, preliminary prospectus, any amendment or supplement
thereto or any document incorporated by reference or in any filing made in
connection with the registration or qualification of the offering under "blue
sky" or other securities laws of jurisdictions in which the Participating
Holder's Registrable Securities are offered (collectively, "Security Filings"),
or 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,
and (B) any untrue statement or alleged untrue statement of a material fact
contained in any preliminary prospectus, if used prior to the effective date of
such registration statement (unless such statement is corrected in the final
prospectus and Infinity has previously furnished copies thereof to any
Participating Holder seeking such indemnification and to the underwriters of the
registration in question), or contained in the final prospectus (as amended or
supplemented if Infinity shall have filed with the Commission any amendment
thereof or supplement thereto) if used within the period during which Infinity
is required to keep the registration statement to which such prospectus relates
current, or the omission or alleged omission to state therein a material fact
necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading; and Infinity shall, and it hereby
agrees to,
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reimburse such holders for any legal or other expenses reasonably incurred by
them in connection with investigating or defending any such claim or proceeding;
provided, however, that such indemnification shall not extend to any Claims
which are caused by any untrue statement or alleged untrue statement contained
in, or by any omission or alleged omission from, information furnished in
writing to Infinity by any Qualified Holder expressly for use in any such
Security Filing.
(ii) In the case of an underwritten offering in which the
registration statement covers Registrable Securities, Infinity agrees to enter
into an underwriting agreement in customary form and substance with such
underwriters and to indemnify the underwriters, their officers and directors, if
any, and each person, if any, who controls such underwriter within the meaning
of Section 15 of the Securities Act or Section 20 of the Exchange Act, to the
same extent as provided in the preceding paragraph with respect to the
indemnification of the holders of Registrable Securities; provided, however,
Infinity shall not be required to indemnify any such underwriter, or any officer
or director of such underwriter or any person who controls such underwriter
within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act, to the extent that the loss, claim, damage, liability (or
proceedings in respect thereof) or expense for which indemnification is sought
results from (i) such underwriter's failure to deliver or otherwise provide a
copy of the final prospectus to the person asserting an untrue statement or
omission or alleged untrue statement or omission at or prior to the written
confirmation of the sale of securities to such person, if such statement or
omission was in fact corrected in such final prospectus or (ii) an untrue
statement or omission or alleged untrue statement or omission relating to
information furnished in writing by such underwriter expressly for inclusion in
any Security Filing.
(iii) Each Participating Holder shall furnish to Infinity in
writing such information regarding such holder and the intended method of
distribution as shall be reasonably requested by Infinity and as required by law
or the Commission for use in any Security Filing (and Infinity may exclude from
registration the Registrable Securities of any such Participating Holder if such
holder fails to furnish such information within a reasonable time alter
receiving such request) and hereby severally indemnifies, to the fullest extent
permitted by law, Infinity, its officers and directors and each person, if any,
who controls Infinity within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act, against any Claims resulting from any untrue
statement or alleged untrue statement of a material fact or any omission or
alleged omission of a material fact required to be stated or necessary to make
the statements in the registration statement or prospectus, or any amendment
thereof or supplement thereto (in the case of any prospectus or supplement
thereto, in light of the circumstances under which they were made) not
misleading; provided, however, (A) each such Participating Holder shall be
liable hereunder if and only to the extent that any such Claim arises out of or
is based upon any such untrue statement or omission made in reliance upon and in
conformity with information pertaining to such holder that is furnished in
writing to Infinity by such holder expressly for use in any such Security Filing
and (B) no such Participating Holder shall be liable hereunder in an amount
exceeding the net proceeds to be received by such
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Participating Holder (before deducting expenses) from the sale of Registrable
Securities hereunder.
(iv) In the case of an underwritten offering of Registrable
Securities, each Participating Holder, as a condition to its right to
participate in such offering, shall enter into an underwriting agreement in
customary form and substance with such underwriters, and agree to indemnify such
underwriters, their officers and directors, if any, and each person, if any, who
controls such underwriters within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act, to the same extent and subject to the
same limitations as provided in the preceding paragraph with respect to
indemnification by such holder to Infinity, but subject to the same limitation
as provided in Section 2(f)(ii) with respect to indemnification by Infinity of
such underwriters, officers, directors and control persons; provided, however,
that no such Participating Holder shall be liable hereunder in an amount
exceeding the net proceeds to be received by such Participating Holder (before
deducting expenses) from the sale of Registrable Securities hereunder.
(v) Any person seeking indemnification under the provisions of
this Section 2(f) shall, promptly after receipt by such person of notice of the
commencement of any action, suit, claim or proceeding, notify each party against
whom indemnification is to be sought in writing of the commencement thereof;
provided, however, the failure so to notify an indemnifying party shall not
relieve the indemnifying party from any liability which it may have under this
Section 2(f) (except to the extent that it has been materially prejudiced by
such failure) or from any liability which the indemnifying party may otherwise
have. In case any such action, suit, claim or proceeding is brought against any
indemnified party, and it notifies an indemnifying party of the commencement
thereof, the indemnifying party shall be entitled to participate therein and, to
the extent it may elect by written notice delivered to the indemnified party
promptly after receiving the aforesaid notice from such indemnified party, to
assume the defense thereof with counsel reasonably satisfactory to such
indemnified party. Notwithstanding the foregoing, the indemnified party shall
have the right to employ its own counsel in any such case, but the fees and
expenses of such counsel shall be at the expense of such indemnified party
unless (A) the employment of such counsel shall have been authorized in writing
by the indemnifying party in connection with the defense of such suit, action,
claim or proceeding, (B) the indemnifying party shall not have employed counsel
(reasonably satisfactory to the indemnified party) to take charge of the defense
of such action, suit, claim or proceeding within a reasonable time after notice
of commencement of the action, suit, claim or proceeding, or (C) such
indemnified party shall have reasonably concluded that there may be defenses
available to it which are different from or additional to those available to the
indemnifying party which, if the indemnifying party and the indemnified party
were to be represented by the same counsel, could result in a conflict of
interest for such counsel or materially prejudice the prosecution of the
defenses available to such indemnified party. If any of the events specified in
clauses (B) or (C) of the preceding sentence shall have occurred or shall
otherwise be applicable, then the reasonable fees, disbursements and related
charges of one counsel or firm of counsel selected by a
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majority in interest of the indemnified parties shall be borne by the
indemnifying party. The indemnifying party shall have the right to direct the
defense of such action, suit, claim or proceeding on behalf of the indemnified
party whether or not the indemnified party employs separate counsel, unless the
indemnifying party has failed to perform his or its indemnification obligations
hereunder. Anything in this paragraph to the contrary notwithstanding, an
indemnifying party shall not be liable for the settlement of any action, suit,
claim or proceeding effected without its prior written consent (which consent in
the case of an action, suit, claim or proceeding exclusively seeking monetary
relief shall not be unreasonably withheld or delayed). Such indemnification
shall remain in full force and effect irrespective of any investigation made by
or on behalf of an indemnified party.
(vi) If the indemnification from the indemnifying party as
provided in this Section 2(f) is unavailable or is otherwise insufficient to
hold harmless an indemnified party in respect of any losses, claims, damages,
liabilities or expenses referred to therein, then the indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages, liabilities or expenses in such proportion as
is appropriate to reflect the relative benefits received by and the relative
fault of the indemnifying party and indemnified parties in connection with the
actions which resulted in such losses, claims, damages, liabilities or expenses.
The relative fault of such indemnifying party shall 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)
to state a material fact, has been made, or relates to information supplied by
such indemnifying party or such indemnified party, and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such action. The amount paid or payable by a party as a result of the losses,
claims, damages, liabilities and expenses referred to above shall be deemed to
include, subject to the limitations set forth in Section 2(f)(v) hereof, any
legal or other fees or expenses reasonably incurred by such party in connection
with any such investigation or proceeding. Notwithstanding the foregoing, no
Participating Holder shall be liable hereunder in an amount exceeding the net
proceeds to be received by such Participating Holder (before deducting expenses)
from the sale of Registrable Securities hereunder.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 2(f) were determined by pro rata
allocation or by any other method of allocation that does not take into account
the equitable considerations described above. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
If, however, indemnification is available under this Section 2(f), the
indemnifying parties shall indemnify each indemnified party to the fullest
extent provided in Sections 2(f)(i) through 2(f)(v) hereof without regard to the
relative fault of said indemnifying party or indemnified party or any other
equitable consideration.
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(g) Certain Requirements in Connection with Registration Rights. If the
holders of Registrable Securities initially requesting such Demand Registration
have entered into one or more underwriting agreements in connection therewith,
or if a proposed registration under Section 2(b) involves an underwritten
offering, all shares constituting Registrable Securities to be included in such
registration shall be subject to such underwriting agreements and no person may
participate in such registration unless such person agrees to sell his or its
securities on the basis provided in the underwriting arrangements and completes
all questionnaires, powers of attorney, indemnities, underwriting agreements,
"lock up" letters and other documents which are reasonable and customary under
the circumstances.
Section 3. Rule 144(c)
Infinity shall file the reports required to be filed by it under the
Securities Act and the Exchange Act and the rules and the regulations of the
Commission thereunder so as to make available current public information to the
extent required to enable any Qualified Holder to sell Registrable Securities
without registration under the Securities Act pursuant to Rule 144 (or any
similar rule or regulation); provided, however, that Infinity's compliance with
the requirements of this Section 3 and the availability of Rule 144 for the sale
of any Qualified Holders securities shall not limit a Qualified Holder's rights
to request registration under this Agreement so long as such person's securities
constitute Registrable Securities within the meaning thereof under this
Agreement.
Section 4. Notices.
All notices, requests, claims, demands and other communications
hereunder shall be in writing and shall be given (and shall be deemed to have
been duly given upon receipt) by delivery in person, by cable, telegram,
confirmed facsimile or telex, or by first class mail (postage prepaid, return
receipt requested), to the other party as follows:
if to Infinity to: Infinity Broadcasting
Corporation
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Chief Financial Officer
Facsimile: (000) 000-0000
with copies to: CBS Corporation
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: General Counsel
Facsimile: (000) 000-0000
and
Weil, Gotshal & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
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Attention: Xxxxxx Xxxxxxxxxx, Esq.
Facsimile: (000) 000-0000
if to the Xxxxxxx X. Xxxxxx
Stockholders to: Pacific Companies
0000 Xxxx Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Facsimile: (000) 000-0000
with copies to: Xxxxxx X. Xxxxxx
Outdoor Systems, Inc.
0000 X. Xxxxx Xxxxxx Xxxxxxx
Xxxxxxx, Xxxxxxx 00000
Facsimile: (000) 000-0000
and
Powell, Goldstein, Xxxxxx &
Xxxxxx LLP
Sixteenth Floor
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx. 00000
Attention: Xxxxxxx X. Xxxxxxx, Xx., Esq.
Facsimile: (000) 000-0000
or to such other address as the person to whom notice is given may have
previously furnished to the other in writing in the manner set forth above.
Section 5. Entire Agreement. This Agreement represents the entire
agreement and understanding among the parties hereto with respect to the subject
matter hereof and supersedes any and all prior oral and written agreements,
arrangements and understandings among the parties hereto with respect to such
subject matter; and can be amended, supplemented or changed, and any provision
hereof can be waived, only by a written instrument making specific reference to
this Agreement signed by Infinity, on the one hand, and the holders of a
majority of the Registrable Securities on the other hand.
Section 6. Parties in Interest. This Agreement shall be binding upon
and inure solely to the benefit of each party hereto and its successors and
permitted assigns, and nothing in this Agreement, express or implied, is
intended to or shall confer upon any other person any rights, benefits or
remedies of any nature whatsoever under or by reason of this Agreement.
Section 7. Descriptive Headings. The descriptive headings herein are
inserted for convenience of reference only and are not intended to be part of or
to affect the meaning or interpretation of this Agreement.
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Section 8. Governing Law. This Agreement shall be governed by,
construed and enforced in accordance with the laws of the State of New York,
applicable to contracts to be made, executed, delivered and performed wholly
within such state and, in any case, without regard to the conflicts of law
principles and policies of such state.
Section 9. Severability. If any term or other provision of this
Agreement is invalid, illegal or unenforceable, all other provisions of this
Agreement shall remain in full force and effect so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any manner
materially adverse to any party.
Section 10. No Waiver. The failure of any party at any time or times to
require performance of any provision hereof shall not affect the right at a
later time to enforce the same. No waiver by any party of any condition, and no
breach of any other provision, term, covenant, representation or warranty
contained in this Agreement, whether by conduct or otherwise, in any one or more
instances, shall be deemed to be construed as a further or continuing waiver of
any such condition or of the breach of any other provision, term, covenant,
representation or warranty of this Agreement.
Section 11. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same original agreement.
Section 12. No Inconsistent Rights. Infinity will not hereafter enter
into any agreement with respect to its securities which is inconsistent in any
material respect with the rights granted to the holders of Registrable
Securities in this Agreement. Except for any rights inconsistent with those
granted by Infinity pursuant to the Intercompany Agreement, dated as of December
15, 1998, by and between Infinity and CBS Corporation, Infinity is not a party
to any agreement, with respect to any of its securities, granting any
registration rights to any person, which agreement is or may be inconsistent
with the rights granted to the holders of Registrable Securities in this
Agreement and is in effect on the date hereof.
Section 13. Execution by Stockholders. The obligations of Infinity
under this Agreement shall be irrevocable but the rights of any Shareholder
under this Agreement with respect thereto shall be and become effective only
upon the delivery to Infinity by any Qualified Holder requesting registration
under this Agreement of a duly executed counterpart signature page to this
Agreement.
[SIGNATURES BEGIN ON NEXT PAGE]
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SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT
IN WITNESS WHEREOF, Infinity has caused this Registration Rights Agreement
to be executed and delivered by its officers thereunto duly authorized as of the
date first above written.
INFINITY BROADCASTING CORPORATION
By __________________________________
Name:
Title:
__________________________________
STOCKHOLDER
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