Exhibit 99(c)
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT dated as of September 15, 1999
(this "Agreement"), among Xxxxx Advertising Company, a Delaware corporation (the
"Issuer"), Chancellor Media Corporation of Los Angeles, a Delaware Corporation
("Chancellor LA"), and Chancellor Mezzanine Holdings Corporation, a Delaware
corporation ("Chancellor Mezzanine").
WHEREAS, this Agreement is being entered into in connection with the
closing of the transactions contemplated by the Purchase Agreement referred to
below.
NOW, THEREFORE, in consideration of the foregoing and the mutual
promises, representations, warranties, covenants and agreements contained
herein, the parties hereto, intending to be legally bound hereby, agree as
follows:
ARTICLE 1
DEFINITIONS
SECTION 1.1 Definitions. The following terms, as used herein, shall
have the following respective meanings:
"Commission" means the Securities and Exchange Commission or any
successor governmental body or agency.
"Common Stock" means the Class A Common Stock, par value $0.001 per
share, of the Issuer and any capital stock into which such Common Stock
thereafter may be changed.
"Demand Registration" has the meaning ascribed thereto in Section
2.2(a).
"Demand Request" has the meaning ascribed thereto in Section 2.2(a).
"Disadvantageous Condition" has the meaning ascribed thereto in
Section 2.4.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Excluded Registration" means a registration under the Securities Act
of (i) securities pursuant to one or more Demand Registrations pursuant to
Section 2.2 hereof, (ii) securities registered on Form S-8 under the Securities
Act or any similar successor form and (iii) securities registered to effect the
acquisition of or combination with another business entity.
"Holder" means (i) Chancellor LA, (ii) Chancellor Mezzanine and (iii)
any direct or indirect transferee of Chancellor LA or Chancellor Mezzanine who
shall agree to be bound by the terms of this Agreement.
"Person" or "person" means any individual, corporation, partnership,
limited liability company, joint venture, association, joint-stock company,
trust, unincorporated organization or government or other agency or political
subdivision thereof.
3ykx04.DOC
"Piggyback Registration" has the meaning ascribed thereto in Section
2.3(a).
"Purchase Agreement" means the Second Amended and Restated Stock
Purchase Agreement dated as of August ___, 1999, among the Issuer, Xxxxx Media
Corp., a Delaware corporation and wholly-owned subsidiary of the Issuer
(formerly known as Xxxxx Advertising Company), Chancellor LA and Chancellor
Mezzanine.
"Registrable Securities" means, at any time, any shares of Common
Stock owned by the Holders, whether owned on the date hereof or acquired
hereafter; provided, however, that Registrable Securities shall not include any
shares of Common Stock (i) the sale of which has been registered pursuant to the
Securities Act and which shares have been sold pursuant to such registration or
(ii) which have been sold pursuant to Rule 144 of the Commission under the
Securities Act.
"Registration Expenses" means any and all expenses incident to
performance of or compliance with any registration of securities pursuant to
Article 2, including, without limitation, (i) all registration and filing fees,
(ii) all fees and expenses associated with filings required to be made with the
NASD (including, if applicable, the fees and expenses of any "qualified
independent underwriter" as such term is defined in Rule 2720(b)(15) of the NASD
Conduct Rules, and of its counsel), as may be required by the rules and
regulations of the NASD, (iii) fees and expenses of compliance with securities
or "blue sky" laws (including reasonable fees and disbursements of counsel in
connection with "blue sky" qualifications of the Registrable Shares), (iv)
rating agency fees, (v) printing expenses (including expenses of printing
certificates for the Registrable Shares in a form eligible for deposit with The
Depository Trust Company and of printing prospectuses if the printing of
prospectuses is requested by a holder of Registrable Shares), (vi) messenger and
delivery expenses, (vii) the Issuer's internal expenses (including, without
limitation, all salaries and expenses of its officers and employees performing
legal or accounting duties), (viii) the fees and expenses incurred in connection
with any listing of the Registrable Shares, (ix) fees and expenses of counsel
for the Issuer and its independent certified public accountants (including the
expenses of any special audit or "cold comfort" letters required by or incident
to such performance), (x) Securities Act liability insurance (if the Issuer
elects to obtain such insurance), (xi) the fees and expenses of any special
experts retained by the Issuer in connection with such registration, (xii) the
fees and expenses of other persons retained by the Issuer and (xiii) reasonable
fees and expenses of one firm of counsel for the Selling Holders (which shall be
selected by the Holders of a majority of the Registrable Securities being
included in any particular registration statement).
"Required Shelf Registration" has the meaning ascribed thereto in
Section 2.1.
"Rule 144" means Rule 144 (or any successor rule to similar effect)
promulgated under the Securities Act.
"Rule 145" means Rule 145 (or any successor rule to similar effect)
promulgated under the Securities Act.
"Rule 415 Offering" means an offering on a delayed or continuous
basis pursuant to Rule 415 (or any successor rule to similar effect) promulgated
under the Securities Act.
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"Securities Act" means the Securities Act of 1933, as amended.
"Seller Affiliates" has the meaning ascribed thereto in Section 2.8.
"Selling Holder" means any Holder who sells Registrable Securities
pursuant to a public offering registered hereunder.
"Shelf Registration" means the registration under the Securities Act
of a Rule 415 Offering.
"Shelf Registration Statement" means a registration statement
intended to effect a Shelf Registration.
"Shelf Termination Date" has the meaning ascribed thereto in Section
2.1(c).
SECTION 1.2 Internal References. Unless the context indicates otherwise,
references to Articles, Sections and paragraphs shall refer to the corresponding
articles, sections and paragraphs in this Agreement, and references to the
parties shall mean the parties to this Agreement.
ARTICLE 2
REGISTRATION RIGHTS
SECTION 2.1 Shelf Registration. At any time after the date that is
ten months from the date hereof, if requested by a Holder or Holders holding a
majority in interest of the Registrable Securities, as soon as practicable (but
in any event not more than 15 days) after such request, the Issuer shall prepare
and file with the Commission a Shelf Registration Statement on an appropriate
form that shall include all Registrable Securities, and which shall not include
any other securities (the "Required Shelf Registration"). The Issuer shall use
its reasonable best efforts to cause such Shelf Registration Statement to be
declared effective as soon as practicable after such request; provided, however,
that the Issuer shall have no obligation to cause such Shelf Registration
Statement to be declared effective on a date that is prior to the first
anniversary of this Agreement. Notwithstanding anything else contained in this
Agreement, the Issuer shall only be obligated to keep such Shelf Registration
Statement effective until the earliest of:
(a) (i) 12 months after the date such Shelf Registration Statement
has been declared effective, provided that such 12-month period shall be
extended by (1) the length of any period during which the Issuer delays in
maintaining the Shelf Registration Statement current pursuant to Section 2.4,
(2) the length of any period (in which such Shelf Registration Statement is
required to be effective hereunder) during which such Shelf Registration
Statement is not maintained effective, and (3) such number of days that equals
the number of days elapsing from (x) the date the written notice contemplated by
Section 2.6(e) below is given by the Issuer to (y) the date on which the Issuer
delivers to the Holders of Registrable Securities the supplement or amendment
contemplated by Section 2.6(e) below;
(b) such time as all Registrable Securities have been sold or
disposed of thereunder or sold, transferred or otherwise disposed of to a Person
that is not a Holder; and
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(c) such time as all securities owned by the Holders have ceased to
be Registrable Securities (the earliest of (a), (b) and (c) being the "Shelf
Termination Date").
The Required Shelf Registration shall not be counted as a Demand Registration
for purposes of Section 2.2 of this Agreement.
SECTION 2.2 Demand Registration.
(a) At any time after the date that is ten months from the date
hereof, upon written notice to the Issuer from a Holder or Holders holding a
majority in interest of the Registrable Securities (a "Demand Request")
requesting that the Issuer effect the registration under the Securities Act of
any or all of the Registrable Securities held by such requesting Holders, which
notice shall specify the intended method or methods of disposition of such
Registrable Securities, the Issuer shall prepare as soon as practicable and,
within 15 days after such request, file with the Commission a registration
statement with respect to such Registrable Securities and thereafter use its
reasonable best efforts to cause such registration statement to be declared
effective under the Securities Act for purposes of dispositions in accordance
with the intended method or methods of disposition stated in such request within
30 days after the filing of such registration statement; provided, however, that
the Issuer shall have no obligation to (i) cause such registration statement
filed pursuant to this Section 2.2 to be declared effective on a date that is
prior to the first anniversary of this Agreement or (ii) cause such registration
statement filed pursuant to this Section 2.2 to be declared effective during any
period during which a Shelf Registration Statement filed pursuant to Section 2.1
remains effective. Notwithstanding any other provision of this Agreement to the
contrary:
(i) the Holders may collectively exercise their Demand Request rights for
registration of their Registrable Securities under this Section
2.2(a) on not more than three occasions (any such registration being
referred to herein as a "Demand Registration");
(ii) the method of disposition requested by Holders in connection with any
Demand Registration may not, without the Issuer's written consent, be
a Rule 415 Offering;
(iii) the Issuer shall not be required to effect a Demand Registration
hereunder if all securities owned by the Holders have ceased to be
Registrable Securities; and
(iv) the Issuer shall not be required to effect more than one Demand
Registration during any 12 month period.
(b) Notwithstanding any other provision of this Agreement to the
contrary, a Demand Registration requested by Holders pursuant to this Section
2.2 shall not be deemed to have been effected, and, therefore, not requested and
the rights of each Holder shall be deemed not to have been exercised for
purposes of paragraph (a) above, (i) if such Demand Registration has not become
effective under the Securities Act or (ii) if such Demand Registration, after it
became effective under the Securities Act, was not maintained effective under
the Securities Act (including, without limitation, if it was interfered with by
any stop order, injunctions or other order or requirement the Commission or
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other governmental agency or court) for at least 30 days (or such shorter period
ending when all the Registrable Securities covered thereby have been disposed of
pursuant thereto) and, as a result thereof, the Registrable Securities requested
to be registered cannot be distributed in accordance with the plan of
distribution set forth in the related registration statement. The Holders shall
be deemed not to have exercised a Demand Request under Section 2.2 if the Demand
Registration related to such Demand Request is delayed or not effected in the
circumstances set forth in this clause (b).
(c) The Issuer shall have the right to cause the registration of
additional shares of Common Stock for sale for the account of the Issuer, but
not for the account of any other Person, in the registration of Registrable
Securities requested by the Holders pursuant to Section 2.2(a) above, provided,
that if such Holders are advised by the lead or managing underwriter referred to
in Section 2.2(e) that, in such underwriter's good faith view, all or a part of
such Registrable Securities and additional shares of Common Stock cannot be sold
or the inclusion of such Registrable Securities and additional shares of Common
Stock in such registration would be likely to have a material adverse effect on
the price, timing or distribution of the offering and sale of the Registrable
Securities and additional equity securities then contemplated, then the number
of securities that can, in the good faith view of such underwriter, be sold in
such offering without so materially adversely affecting such offering shall be
allocated first, pro rata among the requesting Holders on the basis of the
relative number requested to be included therein by each such Holder and then
second, to the Issuer. The Holders of the Registrable Securities to be offered
pursuant to paragraph (a) above may require that any such additional equity
securities be included by the Issuer in the offering proposed by such Holders on
the same conditions as the Registrable Securities that are included therein. If,
in the case of any registration pursuant to a Demand Request, the Holders making
such Demand Request are advised by the lead or managing underwriter referred to
in Section 2.2(e) that, in such underwriter's good faith view, all or a part of
such Registrable Securities cannot be sold or the inclusion of such Registrable
Securities in such registration would be likely to have a material adverse
effect on the price, timing or distribution of the offering and sale of the
Registrable Securities then contemplated, then such Holders will have the right,
within 15 days following such advice from such underwriter, to elect to
terminate such Demand Request, in which case the Holders shall be deemed not to
have exercised a Demand Request pursuant to Section 2.2 hereof.
(d) Within 10 days after delivery of a Demand Request by a Holder,
the Issuer shall provide a written notice to each Holder, advising such Holder
of its right to include any or all of the Registrable Securities held by such
Holder for sale pursuant to the Demand Registration and advising such Holder of
procedures to enable such Holder to elect to so include Registrable Securities
for sale in the Demand Registration as each such Holder may request. Any Holder
may, within 20 days of delivery to such Holder of a notice pursuant to this
Section 2.2(d), elect to so include such portion of its Registrable Securities
in the Demand Registration by written notice to such effect to the Issuer
specifying the number of Registrable Securities desired to be so included by
such Holder.
(e) In the event that any public offering pursuant to either Section
2.1 or 2.2 of this Agreement shall involve, in whole or in part, an underwritten
offering, the Holders of a majority of the Registrable Securities being included
in such underwritten offering shall have the right to designate an underwriter
or underwriters as the lead or managing underwriters of such underwritten
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offering; provided, that such selection shall be subject to the consent of the
Issuer, which consent shall not be unreasonably withheld or delayed.
SECTION 2.3 Piggyback Registrations.
(a) Each time the Issuer proposes to register any of its equity
securities (other than pursuant to an Excluded Registration) under the
Securities Act for sale to the public (whether for the account of the Issuer or
the account of any securityholder of the Issuer ) and the form of registration
statement to be used permits the registration of Registrable Securities, the
Issuer shall give prompt written notice to each Holder (which notice shall be
given not less than thirty (30) days prior to the effective date of the Issuer's
registration statement), which notice shall offer each such Holder the
opportunity to include any or all of its Registrable Securities in such
registration statement (a "Piggyback Registration"), subject to the limitations
contained in Section 2.3(b) below. Each Holder who desires to have its
Registrable Securities included in such registration statement shall so advise
the Issuer in writing (stating the number of Registrable Securities desired to
be registered) within 20 days after the date of such notice from the Issuer. Any
Holder shall have the right to withdraw such Holder's request for inclusion of
such Holder's Registrable Securities in any registration statement pursuant to
this Section 2.3 by giving written notice to the Issuer of such withdrawal.
Subject to Section 2.3(b) below, the Issuer shall include in such registration
statement all such Registrable Securities so requested to be included therein;
provided, however, that the Issuer may at any time withdraw or cease proceeding
with any such registration if it shall at the same time withdraw or cease
proceeding with the registration of all other equity securities originally
proposed to be registered.
(b) If the managing underwriter of an offering involving a request
for Piggyback Registration advises the Issuer in writing (with a copy to the
Holders requesting inclusion of their Registrable Securities) that, in such
underwriter's good faith view, the inclusion of any Registrable Securities
pursuant to Section 2.3(a) above would be likely to have a material adverse
effect on the price, timing or distribution of such offering, then (i) the
number of such Holder's or Holders' Registrable Securities to be included in the
registration statement for such offering may, subject to the provisions of the
immediately following sentence, be reduced to an amount which, in the judgment
of the managing underwriter, would no longer be likely to have a material
adverse effect on the price, timing or distribution of such offering or (ii) if
no such reduction would, in the judgment of the managing underwriter, eliminate
such likelihood of a material adverse effect on the price, timing or
distribution of such offering, then the Issuer may, subject to the provisions of
the immediately following sentence, exclude all such Registrable Securities from
such registration statement. Any reduction in the number of Registrable
Securities to be included in the registration statement for such offering
pursuant to the immediately preceding sentence shall be effected by the
inclusion in such registration statement of (A) first, (p) if such registration
was initiated by the Issuer for the sale of securities for its own account, any
and all securities for sale by the Issuer or (q) if such registration was
initiated by any other Person pursuant to the exercise of demand registration
rights, any and all securities for sale by such Person pursuant to such exercise
of demand registration rights, (B) second, any Registrable Shares requested to
be included in such registration, pro rata based on the ratio which such
Holder's requested Registrable Securities bears to the total number of
Registrable Securities requested to be included in such registration statement
by all Holders who have requested that their Registrable Securities be included
in such registration statement, and (C) third, pro rata among any other
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securities requested to be included in such registration by other Persons
pursuant to the exercise of contractual registration rights granted by the
Issuer. If as a result of the provisions of this Section 2.3(b) any Holder shall
not be entitled to include all Registrable Securities in a registration that
such Holder has requested to be so included, such Holder may withdraw such
Holder's request to include any Registrable Securities in such registration
statement. No Holder may participate in any registration statement hereunder
unless such Holder (x) agrees to sell such Holder's Registrable Securities on
the basis provided in any underwriting arrangements approved by the Issuer
relating to such registration statement and (y) completes and executes all
questionnaires, powers of attorney, indemnities, underwriting agreements, and
other documents reasonably required under the terms of such underwriting
arrangements; provided, however, that no such Holder shall be required to make
any representations or warranties in connection with any such registration other
than representations and warranties as to (1) such Holder's ownership of its
Registrable Securities to be transferred free and clear of all liens, claims,
and encumbrances, (2) such Holder's power and authority to effect such transfer,
and (3) such matters pertaining to compliance with securities laws as may be
reasonably requested; provided further, however, that the obligation of such
Holder to indemnify pursuant to any such underwriting arrangements shall be
several, not joint and several, among such Holders selling Registrable
Securities, and the liability of each such Holder will be in proportion thereto,
and provided further that such liability will be limited to the net amount
received by such Holder from the sale of its Registrable Securities pursuant to
such registration statement.
SECTION 2.4 Certain Delay Rights. Notwithstanding any other provision
of this Agreement to the contrary, if at any time while the Required Shelf
Registration is effective the Issuer provides written notice to each Holder that
in the good faith and reasonable judgment of the Board of Directors of the
Issuer it would be materially disadvantageous to the Issuer (because the sale of
Registrable Securities covered by such registration statement or the disclosure
of information therein or in any related prospectus or prospectus supplement
would materially interfere with any acquisition, financing or other material
event or transaction in connection with which a registration of securities under
the Securities Act for the account of the Issuer is then intended or the public
disclosure of which at the time would be materially prejudicial to the Issuer (a
"Disadvantageous Condition")) for sales of Registrable Securities thereunder to
then be permitted, and setting forth the general reasons for such judgment, the
Issuer may refrain from maintaining current the prospectus contained in the
Shelf Registration Statement until such Disadvantageous Condition no longer
exists (notice of which the Issuer shall promptly deliver in writing to each
Holder). Furthermore, notwithstanding anything else contained in this Agreement,
with respect to any registration statement filed, or to be filed, pursuant to
Section 2.2 of this Agreement, if the Issuer provides written notice to each
Holder that in the good faith and reasonable judgment of the Board of Directors
of the Issuer it would be materially disadvantageous to the Issuer (because of a
Disadvantageous Condition) for such a registration statement to be maintained
effective, or to be filed and become effective, and setting forth the general
reasons for such judgment, the Issuer shall be entitled to cause such
registration statement to be withdrawn or the effectiveness of such registration
statement terminated, or, in the event no registration statement has yet been
filed, shall be entitled not to file any such registration statement, until such
Disadvantageous Condition no longer exists (notice of which the Issuer shall
promptly deliver in writing to each Holder). With respect to each Holder, upon
the receipt by such Holder of any such notice of a Disadvantageous Condition (i)
in connection with the Required Shelf Registration, such Holder shall forthwith
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discontinue use of the prospectus and any prospectus supplement under such
registration statement and shall suspend sales of Registrable Securities until
such Disadvantageous Condition no longer exists and (ii) in connection with the
Required Shelf Registration or the Demand Registration, as applicable, if so
directed by the Issuer by notice as aforesaid, such Holder will deliver to the
Issuer all copies, other than permanent filed copies then in such Holder's
possession, of the prospectus and prospectus supplements then covering such
Registrable Securities at the time of receipt of such notice as aforesaid.
Notwithstanding anything else contained in this Agreement, (x) neither the
filing nor the effectiveness of any registration statement under Section 2.2 of
this Agreement may be delayed for more than a total of 60 days pursuant to this
Section 2.4 and (y) the maintaining current of a prospectus (and the suspension
of sales of Registrable Securities) in connection with the Required Shelf
Registration may not be delayed under this Section 2.4 for more than a total of
60 days in any six-month period. If, in the case of any registration pursuant to
a Demand Request, the Issuer provides notice to the applicable Holders of a
Disadvantageous Condition, then such Holders will have the right, within 15 days
following such notice from the Issuer, to elect to terminate such Demand
Request, in which case the Holders shall be deemed not to have exercised a
Demand Request pursuant to Section 2.2 hereof.
SECTION 2.5 Expenses. Except as provided herein, the Issuer shall pay
all Registration Expenses with respect to each registration hereunder, whether
or not any registration statement becomes effective. Notwithstanding the
foregoing, (i) each Holder and the Issuer shall be responsible for its own
internal administrative and similar costs, which shall not constitute
Registration Expenses, (ii) each Holder shall be responsible for the legal fees
and expenses of its own counsel (except as provided in the definition of
Registration Expenses) and (iii) each Holder shall be responsible for all
underwriting discounts and commissions, selling or placement agent or broker
fees and commissions, and transfer taxes, if any, in connection with the sale of
securities by such Holder.
SECTION 2.6 Registration and Qualification. If and whenever the
Issuer is required to effect the registration of any Registrable Securities
under the Securities Act as provided in this Agreement, the Issuer shall as
promptly as practicable:
(a) prepare, file and cause to become effective a registration
statement under the Securities Act relating to the Registrable Securities to be
offered in accordance with the intended method of disposition thereof;
(b) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in connection
therewith as may be necessary to keep such registration statement effective and
to comply with the provisions of the Securities Act with respect to the
disposition of all Registrable Securities (i) in the case of the Required Shelf
Registration, until the Shelf Termination Date, (ii) in the case of a Demand
Registration or Piggyback Registration, for a period of not less than 180 days
(or such shorter period as is necessary for underwriters in an underwritten
offering to sell unsold allotments), provided, that such 180-day period shall be
extended for such number of days that equals the number of days elapsing from
(x) the date the written notice contemplated by paragraph (e) below is given by
the Issuer to (y) the date on which the Issuer delivers to the Holders of
Registrable Securities the supplement or amendment contemplated by paragraph (e)
below;
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(c) furnish to the Holders of Registrable Securities and to any
underwriter of such Registrable Securities (i) such number of conformed copies
of such registration statement and of each such amendment and supplement thereto
(in each case including all exhibits), (ii) such number of copies of the
prospectus included in such registration statement (including each preliminary
prospectus), in conformity with the requirements of the Securities Act, and
(iii) such documents incorporated by reference in such registration statement or
prospectus, as the Holders of Registrable Securities or such underwriter may
reasonably request in order to facilitate the disposition of the Registrable
Shares owned by such Holder or the sale of such securities by such underwriter
(it being understood that, subject to Section 2.4 of this Agreement and the
requirements of the Securities Act and applicable state securities laws, the
Issuer consents to the use of the prospectus and any amendment or supplement
thereto by each Holder of Registrable Securities and any underwriter of such
Registrable Securities in connection with the offering and sale of the
Registrable Shares covered by the registration statement of which such
prospectus, amendment or supplement is a part);
(d) in the case of any underwritten offering, furnish to each Selling
Holder and any underwriter of Registrable Securities an opinion of counsel for
the Issuer and a "cold comfort" letter signed by the independent public
accountants who have audited the financial statements of the Issuer included in
the applicable registration statement, in each such case covering substantially
such matters with respect to such registration statement (and the prospectus
included therein) and the related offering as are customarily covered in
opinions of issuer's counsel with respect thereto and in accountants' letters
delivered to underwriters in underwritten public offerings of securities and
such other matters as any such Selling Holder or underwriter may reasonably
request;
(e) promptly notify each Selling Holder and each underwriter of
Registrable Securities in writing (i) at any time when a prospectus relating to
a registration pursuant to this Agreement is required to be delivered under the
Securities Act, of the happening of any event as a result of which the
prospectus included in such registration statement, as then in effect, includes
an untrue statement of a material fact or omits 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 (ii)
of any request by the Commission or any other regulatory body having
jurisdiction for any additional information or amendment or supplement to any
registration statement or other document relating to such offering, and in
either such case, at the request of any Selling Holder or underwriter, promptly
prepare and furnish to each Selling Holder and underwriter a reasonable number
of copies of a supplement to or an amendment of such prospectus as may be
necessary so 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;
(f) cause all such Registrable Securities covered by such
registration to be listed on each securities exchange and included for quotation
on each automated interdealer quotation system on which the Common Stock is then
listed or included for quotation;
(g) provide a CUSIP number for the Registrable Shares included in any
registration statement not later than the effective date of such registration
statement;
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(h) cooperate with each Selling Holder and each underwriter
participating in the disposition of Registrable Securities and their respective
counsel in connection with any filings required to be made with the NASD;
(i) during the period when a prospectus is required to be delivered
under the Securities Act, promptly file all documents required to be filed with
the Commission pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange
Act;
(j) prepare and file with the Commission promptly any amendments or
supplements to such registration statement or prospectus which, in the opinion
of counsel for the Issuer or the managing underwriter, are required in
connection with the distribution of the Registrable Securities;
(k) advise each Selling Holder, promptly after it shall receive
notice or obtain knowledge thereof, of the issuance of any stop order by the
Commission suspending the effectiveness of any registration statement or the
initiation or threatening of any proceeding for such purpose and promptly use
its commercially reasonable efforts to prevent the issuance of any stop order or
to obtain its withdrawal at the earliest possible moment if such stop order
should be issued;
(l) use reasonable efforts to assist the Holders in the marketing of
Common Stock in connection with underwritten offerings hereunder (including
using reasonable efforts to have officers of the Issuer attend "road shows" and
analyst or investor presentations scheduled in connection with such
registration); and
(m) furnish for delivery in connection with the closing of any
offering of Registrable Securities pursuant to a registration effected pursuant
to this Agreement unlegended certificates representing ownership of the
Registrable Securities being sold in such denominations as shall be requested by
the Selling Holders or the underwriters.
SECTION 2.7 Underwriting; Due Diligence.
(a) If requested by the underwriters for any underwritten offering of
Registrable Securities pursuant to a registration requested under this Article
2, the Issuer shall enter into an underwriting agreement with such underwriters
for such offering, which agreement will contain such representations and
warranties by the Issuer and such other terms and provisions as are customarily
contained in underwriting agreements with respect to secondary distributions.
(b) In connection with the preparation and filing of each
registration statement registering Registrable Securities under the Securities
Act pursuant to this Article 2, the Issuer shall give the Holders of such
Registrable Securities and the underwriters, if any, and their respective
counsel and accountants, such reasonable and customary access to its books,
records and properties and such opportunities to discuss the business and
affairs of the Issuer with its officers and the independent public accounts who
have certified the financial statements of the Issuer as shall be necessary, in
the opinion of such Holders and such underwriters or their respective counsel,
to conduct a reasonable investigation within the meaning of the Securities Act;
provided that (i) each Holder and the underwriters and their respective counsel
and accountants shall have entered into a confidentiality agreement reasonably
acceptable to the Issuer and (ii) the Holders of such Registrable Securities and
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the underwriters and their respective counsel and accountants shall use their
reasonable best efforts to minimize the disruption to the Issuer's business and
coordinate any such investigation of the books, records and properties of the
Issuer and any such discussions with the Issuer's officers and accountants so
that all such investigations occur at the same time and all such discussions
occur at the same time.
SECTION 2.8 Indemnification.
(a) The Issuer agrees to indemnify and reimburse, to the fullest
extent permitted by law, each Selling Holder, and each of its employees,
advisors, agents, representatives, partners, officers, and directors and each
Person who controls such seller of Registrable Securities (within the meaning of
the Securities Act or the Exchange Act) and any agent or investment advisor
thereof (collectively, the "Seller Affiliates") against any and all losses,
claims, damages, liabilities, and expenses, joint or several (including, without
limitation, reasonable attorneys' fees and disbursements except as limited by
Section 2.8(c) below) based upon, arising out of, related to or resulting from
any untrue or alleged untrue statement of a material fact contained in any
registration statement, prospectus, or preliminary prospectus or any amendment
thereof or supplement thereto, or any omission or alleged omission of a material
fact required to be stated therein or necessary to make the statements therein
not misleading, except insofar as the same are made in reliance upon and in
strict conformity with information furnished in writing to the Issuer by such
Selling Holder or any Seller Affiliate for use therein or arise from such
Selling Holder's or any Seller Affiliate's failure to deliver a copy of the
registration statement or prospectus or any amendments or supplements thereto
after the Issuer has furnished such Selling Holder or Seller Affiliate with a
sufficient number of copies of the same. The reimbursements required by this
Section 2.8(a) will be made by periodic payments during the course of the
investigation or defense, as and when bills are received or expenses incurred.
(b) In connection with any registration statement in which a Selling
Holder is participating, each such Selling Holder will furnish to the Issuer in
writing such information and affidavits as the Issuer reasonably requests for
use in connection with any such registration statement or prospectus and, to the
fullest extent permitted by law, each such Selling Holder will indemnify the
Issuer and its directors and officers and each Person who controls the Issuer
(within the meaning of the Securities Act or the Exchange Act) against any and
all losses, claims, damages, liabilities, and expenses (including, without
limitation, reasonable attorneys' fees and disbursements except as limited by
Section 2.8(c) below) resulting from: (i) any untrue statement or alleged untrue
statement of a material fact contained in the registration statement,
prospectus, or any preliminary prospectus or any amendment thereof or supplement
thereto, or any omission or alleged omission of a material fact required to be
stated therein or necessary to make the statements therein not misleading, but
only to the extent that such untrue statement or alleged untrue statement or
omission or alleged omission is contained in any information or affidavit so
furnished in writing by such Selling Holder or any of its Seller Affiliates
specifically for inclusion in the registration statement; or (ii) such Selling
Holder's or any Seller Affiliate's failure to deliver a copy of the registration
statement or prospectus or any amendments or supplements thereto after the
Issuer has furnished such Selling Holder or Seller Affiliate with a sufficient
number of copies of the same; provided, that the obligation to indemnify will be
11
several, not joint and several, among such Selling Holders, and the liability of
each such Selling Holder will be in proportion to, and provided further that
such liability will be limited to, the net amount received by such Selling
Holder from the sale of Registrable Securities pursuant to such registration
statement; provided, however, that such Selling Holder shall not be liable in
any such case to the extent that, prior to the filing of any such registration
statement or prospectus or amendment thereof or supplement thereto, such Selling
Holder has furnished in writing to the Issuer information expressly for use in
such registration statement or prospectus or any amendment thereof or supplement
thereto which corrected or made not misleading information previously furnished
to the Issuer.
(c) Any Person entitled to indemnification hereunder will give prompt
written notice to the indemnifying party of any claim with respect to which it
seeks indemnification (provided that the failure to give such notice shall not
limit the rights of such Person except to the extent such failure prejudiced the
indemnifying party) and permit such indemnifying party to assume the defense of
such claim; provided, however, that any Person entitled to indemnification
hereunder shall have the right to employ separate counsel and to participate in
the defense of such claim, but the fees and expenses of such counsel shall be at
the expense of such Person unless (i) the indemnifying party has agreed to pay
such fees or expenses, (ii) the indemnifying party shall have failed to assume
the defense of such claim or (iii) in the reasonable opinion of counsel to such
indemnified party, a conflict of interest between such indemnified and
indemnifying parties may exist with respect to such claim. If such defense is
not assumed by the indemnifying party as permitted hereunder, the indemnifying
party will not be subject to any liability for any settlement made by the
indemnified party without its consent (but such consent will not be unreasonably
withheld or delayed). If such defense is assumed by the indemnifying party
pursuant to the provisions hereof, such indemnifying party shall not settle or
otherwise compromise the applicable claim unless (A) such settlement or
compromise contains a full and unconditional release of the indemnified party or
(B) the indemnified party otherwise consents in writing. An indemnifying party
who is not entitled to, or elects not to, assume the defense of a claim will not
be obligated to pay the fees and expenses of more than one counsel for all
parties indemnified by such indemnifying party with respect to such claim,
unless in the reasonable judgment of any indemnified party, a conflict of
interest may exist between such indemnified party and any other of such
indemnified parties with respect to such claim, in which event the indemnifying
party shall be obligated to pay the reasonable fees and disbursements of such
additional counsel or counsels.
(d) Each party hereto agrees that, if for any reason the
indemnification provisions contemplated by Section 2.8(a) or Section 2.8(b) are
unavailable to or insufficient to hold harmless an indemnified party in respect
of any losses, claims, damages, liabilities, or expenses (or actions in respect
thereof) referred to therein, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of such losses,
claims, liabilities, or expenses (or actions in respect thereof) in such
proportion as is appropriate to reflect the relative fault of the indemnifying
party and the indemnified party in connection with the actions which resulted in
the losses, claims, damages, liabilities or expenses as well as any other
relevant equitable considerations. The relative fault of such indemnifying party
and indemnified party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact relates to information supplied by
such indemnifying party or indemnified party, and the parties' relative intent,
12
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The parties hereto agree that it would not be just and
equitable if contribution pursuant to this Section 2.8(d) were determined by pro
rata allocation (even if the Holders or any underwriters or all of them were
treated as one entity for such purpose) or by any other method of allocation
which does not take account of the equitable considerations referred to in this
Section 2.8(d). The amount paid or payable by an indemnified party as a result
of the losses, claims, damages, liabilities, or expenses (or actions in respect
thereof) referred to above shall be deemed to include any legal or other fees or
expenses reasonably incurred by such indemnified party in connection with
investigating or, except as provided in Section 2.8(c) above, defending any such
action or claim. Notwithstanding the provisions of this Section 2.8(d), no
Holder shall be required to contribute an amount greater than the dollar amount
by which the net proceeds received by such Holder with respect to the sale of
any Registrable Securities exceeds the amount of damages which such Holder has
otherwise been required to pay by reason of such statement or omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any Person
who was not guilty of such fraudulent misrepresentation. The Holders'
obligations in this Section 2.8(d) to contribute shall be several in proportion
to the amount of Registrable Securities registered by them and not joint.
If indemnification is available under this Section 2.8, the
indemnifying parties shall indemnify each indemnified party to the full extent
provided in Section 2.8(a) and Section 2.8(b) without regard to the relative
fault of said indemnifying party or indemnified party or any other equitable
consideration provided for in this Section 2.8(d) subject, in the case of the
Holders, to the limited dollar amounts set forth in Section 2.8(b).
The indemnification and contribution provided for under this
Agreement shall be in addition to any liability which any party may otherwise
have to any other party and shall remain in full force and effect regardless of
any investigation made by or on behalf of the indemnified party or any officer,
director, or controlling Person of such indemnified party and will survive the
transfer of the Common Stock and the termination of this Agreement.
SECTION 2.9 Issuer's Existing Shelf Registration. The Issuer shall
use its reasonable best efforts to cause the Issuer's Shelf Registration
Statement which was filed by the Issuer prior to the date hereof (the "Existing
Shelf Registration Statement") to be amended to contain a provision for the
inclusion in such Shelf Registration Statement of shares for sale for the
account of stockholders of the Issuer. In the event that the Issuer, after the
expiration of the twelve month period immediately following the date hereof,
proposes to effect any offering under the Existing Shelf Registration Statement
(other than to effect the acquisition of or combination with another business
entity), it shall permit each Holder to include its Registrable Securities on
substantially the same terms and subject to substantially the same conditions
and limitations (including, but not limited to, indemnification provisions) as
would be the case in connection with a registration that is the subject of
Section 2.3 hereof. The Issuer will promptly file any prospectus supplements as
are necessary to reflect the inclusion in any such registration of any
Registrable Securities included in such registration by any Holder pursuant to
this Section 2.9.
13
ARTICLE 3
MISCELLANEOUS
SECTION 3.1 Entire Agreement. This Agreement constitutes the entire
agreement between the parties with respect to the subject matter hereof and
supersedes all other prior agreements and understandings, both written and oral,
between the parties with respect to the subject matter hereof.
SECTION 3.2 Successors and Assigns. Whether or not an express
assignment has been made pursuant to the provisions of this Agreement,
provisions of this Agreement that are for the Holders' benefit as the holders of
any Common Stock are, except as otherwise expressly provided herein, also for
the benefit of, and enforceable by, all subsequent holders of such Common Stock,
except as otherwise expressly provided herein. This Agreement shall be binding
upon the Issuer, each Holder, and, except as otherwise expressly provided
herein, their respective heirs, devisees, successors and assigns.
SECTION 3.3 Duplicate Originals. All parties may sign any number of
copies of this Agreement. Each signed copy shall be an original, but all of them
together shall represent the same agreement.
SECTION 3.4 Amendments, Waivers, Etc. This Agreement may not be
amended, changed, supplemented, waived or otherwise modified or terminated,
except upon the execution and delivery of a written agreement executed by the
Issuer and Holders representing a majority of the Registrable Securities then
held by all Holders.
SECTION 3.5 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 received if given) by hand delivery or telecopy, or by
any courier service, such as Federal Express, providing proof of delivery. All
communications hereunder shall be delivered to the respective parties at the
address or telecopy number set forth on the signature pages hereto (unless such
contact information in the case of the Holders is updated by written notice from
the affected Holder to the Issuer).
SECTION 3.6 Severability. Whenever possible, each provision or
portion of any provision of this Agreement will be interpreted in such manner as
to be effective and valid under applicable law, but if any provision or portion
of any provision of this Agreement is held to be invalid, illegal or
unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision or portion of any provision in such jurisdiction, and this
Agreement will be reformed, construed and enforced in such jurisdiction as if
such invalid, illegal or unenforceable provision or portion of any provision had
never been contained herein.
SECTION 3.7 No Waiver. The failure of any party hereto to exercise
any right, power or remedy provided under this Agreement or otherwise available
in respect hereof at law or in equity, or to insist upon compliance by any other
party hereto with its obligations hereunder, and any custom or practice of the
parties at variance with the terms hereof, shall not constitute a waiver by such
14
party of its right to exercise any such or other right, power or remedy or to
demand such compliance.
SECTION 3.8 No Third Party Beneficiaries. Except as expressly
provided in Section 2.8; this Agreement is not intended to be for the benefit
of, and shall not be enforceable by, any Person who or which is not a party
hereto; provided, that, this Agreement is also intended to be for the benefit of
and is enforceable by each Holder.
SECTION 3.9 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REGARD
TO PRINCIPLES OF CONFLICT OF LAWS.
SECTION 3.10 Descriptive Headings. The descriptive headings used
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.
SECTION 3.11 Counterparts. This Agreement may be executed in
counterpart, each of which shall be deemed to be an original, but all of which,
taken together, shall constitute one and the same Agreement.
[THE BALANCE OF THIS PAGE INTENTIONALLY LEFT BLANK]
15
IN WITNESS WHEREOF, the Issuer and the Holders have caused this
Agreement to be duly executed as of the day and year first above written.
XXXXX ADVERTISING COMPANY
By: /s/ Xxxxx Xxxxx
--------------------------------
Name: Xxxxx Xxxxx
Title: Chief Financial Officer
Address:
Xxxxx Advertising Company
0000 Xxxxxxxxx Xxxxxxxxx
Xxxxx Xxxxx, Xxxxxxxxx 00000
Attention: Xxxxx Xxxxx
Fax: (000) 000-0000
HOLDERS:
CHANCELLOR MEDIA CORPORATION OF LOS ANGELES
By: /s/ W. Xxxxxxxx Xxxxxx
----------------------------------------
Name: W. Xxxxxxxx Xxxxxx
Title: Sr. Vice President and Chief
Accounting Officer
Address:
0000 Xxxxxxx Xxxxxxx Xxxxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: General Counsel
Fax: (000) 000-0000
CHANCELLOR MEZZANINE HOLDINGS CORPORATION
By: /s/ W. Xxxxxxxx Xxxxxx
----------------------------------------
Name: W. Xxxxxxxx Xxxxxx
Title: Sr. Vice President and Chief
Accounting Officer
Address:
0000 Xxxxxxx Xxxxxxx Xxxxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: General Counsel
Fax: (000) 000-0000
