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EXHIBIT 4.11
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is made and
entered into this 7th day of July, 2000 among Clear Channel Communications,
Inc., a Texas corporation (the "Company"), and ABN AMRO Bank N.V. ("ABN AMRO"),
Deutsche Bank AG London ("Deutsche Bank"), Barclays Bank PLC, Credit Suisse
First Boston (Europe) Limited, Xxxxxxx Xxxxx International, Salomon Brothers
International Limited, Westdeutsche Landesbank Girozentrale (collectively, the
"Managers").
This Agreement is made pursuant to the Subscription Agreement, dated
July 3, 2000, among the Company and the Managers (the "Subscription Agreement"),
which provides for the sale by the Company to the Managers of an aggregate of
euro 650,000,000 principal amount of 6.50% Notes due 2005 (the "Securities"). In
order to induce the Managers to enter into the Subscription Agreement, the
Company has agreed to provide to the Managers and their direct and indirect
transferees the registration rights set forth in this Agreement. The execution
of this Agreement is a condition to the closing under the Subscription
Agreement.
In consideration of the foregoing, the parties hereto agree as follows:
1. Definitions.
As used in this Agreement, the following capitalized defined terms
shall have the following meanings:
"1933 Act" shall mean the United States Securities Act of 1933, as
amended from time to time.
"1934 Act" shall mean the United States Securities Exchange Act of
l934, as amended from time to time.
"Closing Date" shall mean the Closing Date as defined in the
Subscription Agreement.
"Company" shall have the meaning set forth in the preamble and shall
also include the Company's successors.
"Depositary" shall mean The Depository Trust Company, or any other
depositary appointed by the Company, provided, however, that such
depositary must have an address in the Borough of Manhattan, in the City of
New York.
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"Exchange Offer" shall mean the exchange offer by the Company of
Exchange Securities for Registrable Securities pursuant to Section 2.1
hereof.
"Exchange Offer Registration" shall mean a registration under the 1933
Act effected pursuant to Section 2.1 hereof.
"Exchange Offer Registration Statement" shall mean an exchange offer
registration statement on Form S-4 (or, if applicable, on another
appropriate form or any successor form used for substantially the same
transaction), and all amendments and supplements to such registration
statement, including the Prospectus contained therein, all exhibits thereto
and all documents incorporated by reference therein.
"Exchange Period" shall have the meaning set forth in Section 2.1
hereof.
"Exchange Securities" shall mean collectively, the 6.50% Notes due
2005, issued by the Company, to be offered to Holders of Securities in
exchange for Registrable Securities pursuant to the Exchange Offer.
"Holder" shall mean a Manager, for so long as it owns any Registrable
Securities, and each of its successors, assigns and direct and indirect
transferees who become registered owners of Registrable Securities under
the Indenture and each Participating Broker-Dealer that holds Exchange
Securities for so long as such Participating Broker-Dealer is required to
deliver a prospectus meeting the requirements of the 1933 Act in connection
with any resale of such Exchange Securities.
"Indenture" shall mean the Indenture relating to the Securities and
the Exchange Securities, dated as of October 1, 1997, as supplemented by
the Seventh Supplemental Indenture, among the Company and The Bank of New
York, as trustee, as the same may be amended, supplemented, waived or
otherwise modified from time to time in accordance with the terms thereof.
"Majority Holders" shall mean the Holders of a majority of the
aggregate principal amount of Outstanding (as defined in the Indenture)
Registrable Securities or each series of Registrable Securities as the case
may be; provided that whenever the consent or approval of Holders of a
specified percentage of Registrable Securities is required hereunder,
Registrable Securities held by the Company and other obligors on the
Securities or any Affiliate (as defined in the Indenture) of the Company
shall be disregarded in determining whether such consent or approval was
given by the Holders of such required percentage amount; provided further
that, when used in connection with the Shelf
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Registration Statement, the term Majority Holders shall mean the Holders of
a majority of the aggregate principal amount of all series of Registrable
Securities participating therein or whose securities are being sold
thereunder in the particular case, as applicable.
"Manager" or "Managers" shall have the meaning set forth in the
preamble.
"Participating Broker-Dealer" shall mean any of ABN AMRO, Deutsche
Bank, Barclays Bank PLC, Credit Suisse First Boston (Europe) Limited,
Xxxxxxx Xxxxx International, Salomon Brothers International Limited,
Westdeutsche Landesbank Girozentrale and any other broker-dealer which
makes a market in the Securities or exchanges Registrable Securities in the
Exchange Offer for Exchange Securities.
"Person" shall mean an individual, partnership (general or limited),
corporation, limited liability company, trust or unincorporated
organization, or a government or agency or political subdivision thereof.
"Prospectus" shall mean the prospectus included in a Registration
Statement, including any preliminary prospectus, and any such prospectus as
amended or supplemented by any prospectus supplement, including any such
prospectus supplement with respect to the terms of the offering of any
portion of the Registrable Securities covered by a Shelf Registration
Statement, and by all other amendments and supplements to a prospectus,
including post-effective amendments, and in each case including all
material incorporated by reference therein.
"Subscription Agreement" shall have the meaning set forth in the
preamble.
"Registrable Securities" shall mean the Securities; provided, however,
that Securities shall cease to be Registrable Securities when (i) a
Registration Statement with respect to such Securities shall have been
declared effective under the 1933 Act and such Securities shall have been
disposed of pursuant to such Registration Statement, (ii) such Securities
have been sold to the public pursuant to Rule l44 (or any similar provision
then in force, but not Rule 144A) under the 1933 Act, (iii) such Securities
shall have ceased to be outstanding or (iv) the Exchange Offer is
consummated (except in the case of Securities purchased from the Company
and continued to be held by the Managers or Securities which may not be
exchanged in the Exchange Offer).
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"Registration Expenses" shall mean any and all expenses incident to
performance of or compliance by the Company with this Agreement, including
without limitation: (i) all SEC, stock exchange or National Association of
Securities Dealers, Inc. (the "NASD") registration and filing fees,
including, if applicable, the fees and expenses of any "qualified
independent underwriter" (and the reasonable fees and expenses of its
counsel) that is required to be retained by any holder of Registrable
Securities in accordance with the rules and regulations of the NASD, (ii)
all fees and expenses incurred in connection with compliance with state
securities or blue sky laws and compliance with the rules of the NASD
(including reasonable fees and disbursements of counsel for any
underwriters or Holders in connection with blue sky qualification of any of
the Exchange Securities or Registrable Securities and any filings with the
NASD), (iii) all expenses of any Persons in preparing or assisting in
preparing, word processing, printing and distributing any Registration
Statement, any Prospectus, any amendments or supplements thereto, any
underwriting agreements, securities sales agreements and other documents
relating to the performance of and compliance with this Agreement, (iv) all
fees and expenses incurred in connection with the listing, if any, of any
of the Registrable Securities on any securities exchange or exchanges, (v)
all rating agency fees, (vi) the fees and disbursements of counsel for the
Company and of the independent public accountants of the Company, including
the expenses of any special audits or "cold comfort" letters required by or
incident to such performance and compliance, (vii) the fees and expenses of
the Trustee, and any escrow agent or custodian, (viii) the reasonable fees
and expenses of the Managers in connection with the Exchange Offer,
including the reasonable fees and expenses of one counsel to the Managers
in connection therewith, (ix) the reasonable fees and disbursements of one
special counsel representing the Holders of Registrable Securities in
connection with the Shelf Registration Statement and (x) any fees and
disbursements of the underwriters customarily required to be paid by
issuers or sellers of securities and the fees and expenses of any special
experts retained by the Company in connection with any Registration
Statement, but excluding underwriting discounts and commissions and
transfer taxes, if any, relating to the sale or disposition of Registrable
Securities by a Holder.
"Registration Statement" shall mean any registration statement of the
Company which covers any of the Exchange Securities or Registrable
Securities pursuant to the provisions of this Agreement, and all amendments
and supplements to any such Registration Statement, including
post-effective amendments, in each case including the Prospectus contained
therein, all exhibits thereto and all material incorporated by reference
therein.
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"SEC" shall mean the United States Securities and Exchange Commission
or any successor agency or government body performing the functions
currently performed by the United States Securities and Exchange
Commission.
"Shelf Registration" shall mean a registration effected pursuant to
Section 2.2 hereof.
"Shelf Registration Statement" shall mean a "shelf" registration
statement of the Company filed pursuant to the provisions of Section 2.2 of
this Agreement which covers all of the Registrable Securities on an
appropriate form under Rule 415 under the 1933 Act, or any successor or
similar rule that may be adopted by the SEC, and all amendments and
supplements to such registration statement, including post-effective
amendments, in each case including the Prospectus contained therein, all
exhibits thereto and all documents incorporated by reference therein.
"Trustee" shall mean the trustee with respect to the Securities under
the Indenture.
2. Registration Under the 0000 Xxx.
2.1 Exchange Offer. The Company shall, for the benefit of the Holders,
at the Company's cost, use their reasonable best efforts to (A) prepare and file
with the SEC an Exchange Offer Registration Statement on an appropriate form
under the 1933 Act with respect to a proposed Exchange Offer and the issuance
and delivery to the Holders, in exchange for the Registrable Securities, of a
like principal amount of Exchange Securities within 150 days following the
Closing Date, (B) to cause the Exchange Offer Registration Statement to be
declared effective under the 1933 Act within 180 days of the Closing Date, (C)
keep the Exchange Offer Registration Statement effective until the closing of
the Exchange Offer and (D) cause the Exchange Offer to be consummated not later
than 210 days following the Closing Date. The Exchange Securities will be issued
under the Indenture. Upon the effectiveness of the Exchange Offer Registration
Statement, the Company shall promptly commence the Exchange Offer, it being the
objective of such Exchange Offer to enable each Holder eligible and electing to
exchange Registrable Securities for Exchange Securities to transfer such
Exchange Securities from and after their receipt without any limitations or
restrictions under the 1933 Act and under state securities or blue sky laws. The
Company shall not make the Exchange Offer to, nor will it accept surrendered
Registrable Securities from, Holders in any state or other jurisdiction in which
the Exchange Offer would not comply with the applicable securities laws or "blue
sky" laws of such such state or other jurisdiction.
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Each Holder participating in the Exchange Offer shall be required, as a
condition to such participation, to represent in writing to the Company that, at
the time of the consummation of the Exchange Offer, such Holder (a) is not an
affiliate of the Company within the meaning of Rule 405 under the 1933 Act, (b)
is not a broker-dealer tendering Registrable Securities acquired directly from
the Company for its own account, (c) acquired or will acquire the Exchange
Securities in the ordinary course of such Holder's business and (d) has no
arrangements or understandings with any Person to participate in the Exchange
Offer for the purpose of distributing the Exchange Securities.
In connection with the Exchange Offer, the Company shall:
(a) mail as promptly as practicable to each Holder a copy of the
Prospectus forming part of the Exchange Offer Registration Statement, together
with an appropriate letter of transmittal and related documents;
(b) keep the Exchange Offer open for acceptance for a period of not
less than 30 calendar days after the date notice thereof is mailed to the
Holders (or longer if required by applicable law) (such period referred to
herein as the "Exchange Period");
(c) utilize the services of the Depositary for the Exchange Offer;
(d) permit Holders to withdraw tendered Registrable Securities at any
time prior to 5:00 p.m. (Eastern Standard Time), on the last business day of the
Exchange Period, by sending to the institution specified in the notice, a
telegram, telex, facsimile transmission or letter setting forth the name of such
Holder, the principal amount of Registrable Securities delivered for exchange,
and a statement that such Holder is withdrawing such Holder's election to have
such Securities exchanged;
(e) notify each Holder that any Registrable Security not tendered will
remain outstanding and continue to accrue interest, but will not retain any
rights under this Agreement (except in the case of the Managers and
Participating Broker-Dealers as provided herein); and
(f) otherwise comply in all respects with all applicable laws relating
to the Exchange Offer.
The Exchange Securities shall be issued under (i) the Indenture or (ii)
an indenture identical in all material respects to the Indenture and which, in
either case, has been qualified under the Trust Indenture Act of 1939, as
amended (the "TIA"), or is exempt from such qualification and shall provide that
the Exchange Securities shall not be subject to the transfer restrictions set
forth in the Indenture. The Indenture or such indenture shall provide that the
Exchange Securities and the Securities having the same
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interest rate and maturity shall vote and consent together on all matters as one
class and that none of the Exchange Securities or the Securities having the same
interest rate and maturity will have the right to vote or consent as a separate
class on any matter.
As soon as practicable after the close of the Exchange Offer the
Company shall:
(i) accept for exchange all Registrable Securities duly tendered and
not validly withdrawn pursuant to the Exchange Offer in accordance with the
terms of the Exchange Offer Registration Statement and the letter of
transmittal which shall be an exhibit thereto;
(ii) deliver, or cause to be delivered to the Trustee for cancellation
all Registrable Securities so accepted for exchange; and
(iii) cause the Trustee promptly to authenticate and deliver Exchange
Securities to each Holder of Registrable Securities so accepted for
exchange in a principal amount equal to the principal amount of the
Registrable Securities of such Holder so accepted for exchange.
Interest on each Exchange Security will accrue from the last date on
which interest was paid on the Registrable Securities surrendered in exchange
therefor or, if no interest has been paid on the Registrable Securities, from
the date of original issuance. The Exchange Offer shall not be subject to any
conditions, other than (i) that the Exchange Offer or the making of any exchange
by a Holder, does not violate applicable law or any applicable interpretation of
the staff of the SEC, (ii) the due tendering of Registrable Securities in
accordance with the Exchange Offer, (iii) that each Holder of Registrable
Securities exchanged in the Exchange Offer shall have made the representations
set forth above in this Section 2.1 and shall have made such other
representations as may be reasonably necessary under applicable SEC rules,
regulations or interpretations to render the use of Form S-4 or other
appropriate form under the 1933 Act available and (iv) that no action or
proceeding shall have been instituted or threatened in any court or by or before
any governmental agency with respect to the Exchange Offer which, in the
Company's judgment, would reasonably be expected to impair the ability of the
Company to proceed with the Exchange Offer. The Company shall inform the
Managers of the names and addresses of the Holders to whom the Exchange Offer is
made, and the Managers shall have the right to contact such Holders and
otherwise facilitate the tender of Registrable Securities in the Exchange Offer.
2.2 Shelf Registration. (i) If, because of any changes in law, SEC
rules or regulations or applicable interpretations thereof by the staff of the
SEC, the Company is not permitted to effect the Exchange Offer as contemplated
by Section 2.1 hereof, (ii) if
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for any other reason the Exchange Offer Registration Statement is not declared
effective within 180 days following the original issue of the Registrable
Securities or the Exchange Offer is not consummated within 210 days after the
original issue of the Registrable Securities, (iii) upon the request of any of
the Managers with respect to Registrable Securities that are not eligible to be
exchanged for Exchange Notes in the Exchange Offer or the Managers do not
receive freely tradeable Exchange Securities in the Exchange Offer or (iv) if a
Holder known or identified in writing to the Company (other than a Manager) is
not permitted by applicable law to participate in the Exchange Offer or elects
to participate in the Exchange Offer but does not receive fully tradeable
Exchange Securities pursuant to the Exchange Offer, then in case of each of
clauses (i) through (iv) the Company shall, at its cost:
(a) As promptly as practicable, file with the SEC, and thereafter
shall use their reasonable best efforts to cause to be declared effective
within 210 days after the original issue of the Registrable Securities, a
Shelf Registration Statement relating to the offer and sale of the
Registrable Securities by the Holders from time to time in accordance with
the methods of distribution elected by the Majority Holders participating
in the Shelf Registration and set forth in such Shelf Registration
Statement; provided, however, that no Holder shall be entitled to have
Registrable Securities held by it included in the Shelf Registration
Statement unless such Holder agrees in writing to be bound by all of the
provisions of this Agreement applicable to such Holder and furnishes to the
Company in writing such information as the Company may reasonably request
for inclusion in the Shelf Registration Statement or any Prospectus
included therein.
(b) Use their reasonable best efforts to keep the Shelf Registration
Statement effective in order to permit the Prospectus forming part thereof
to be usable by Holders for a period of two years from the date the Shelf
Registration Statement is declared effective by the SEC, or for such
shorter period that will terminate when all Registrable Securities covered
by the Shelf Registration Statement have been sold pursuant to the Shelf
Registration Statement or cease to be outstanding or otherwise to be
Registrable Securities (the "Effectiveness Period"); provided, however,
that the Effectiveness Period in respect of the Shelf Registration
Statement shall be extended to the extent required to permit dealers to
comply with the applicable prospectus delivery requirements of Rule 174
under the 1933 Act and as otherwise provided herein.
(c) Notwithstanding any other provisions hereof, use their reasonable
best efforts to ensure that (i) any Shelf Registration Statement and any
amendment thereto and any Prospectus forming part thereof and any
supplement thereto complies in all material respects with the 1933 Act and
the rules and regulations thereunder, (ii) any Shelf Registration Statement
and any amendment thereto does
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not, when it becomes effective, contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading and (iii) any
Prospectus forming part of any Shelf Registration Statement, and any
supplement to such Prospectus (as amended or supplemented from time to
time), does not include an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements, in light
of the circumstances under which they were made, not misleading.
The Company shall not permit any securities other than Registrable
Securities to be included in the Shelf Registration Statement. The Company
further agrees, if necessary, to supplement or amend the Shelf Registration
Statement, as required by Section 3(b) below, and to furnish to the Holders of
Registrable Securities copies of any such supplement or amendment promptly after
its being used or filed with the SEC.
2.3 Expenses. The Company shall pay all Registration Expenses in
connection with the registration pursuant to Section 2.1 or 2.2. Each Holder
shall pay all underwriting discounts and commissions and transfer taxes, if any,
relating to the sale or disposition of such Holder's Registrable Securities
pursuant to the Shelf Registration Statement.
2.4. Effectiveness. (a) The Company will be deemed not to have used its
reasonable best efforts to cause the Exchange Offer Registration Statement or
the Shelf Registration Statement, as the case may be, to become, or to remain,
effective during the requisite period if the Company voluntarily takes any
action that would, or omits to take any action which omission would, result in
any such Registration Statement not being declared or remaining effective or in
the Holders of Registrable Securities covered thereby not being able to exchange
or offer and sell such Registrable Securities during that period as and to the
extent contemplated hereby, unless such action is required by applicable law.
(b) An Exchange Offer Registration Statement pursuant to Section 2.1
hereof or a Shelf Registration Statement pursuant to Section 2.2 hereof will not
be deemed to have become effective unless it has been declared effective by the
SEC; provided, however, that if, after it has been declared effective, the
offering of Registrable Securities pursuant to an Exchange Offer Registration
Statement or a Shelf Registration Statement is interfered with by any stop
order, injunction or other order or requirement of the SEC or any other
governmental agency or court of competent jurisdiction, such Registration
Statement will be deemed not to have become effective during the period of such
interference, until the offering of Registrable Securities pursuant to such
Registration Statement may legally resume.
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2.5 Interest. The Indenture executed in connection with the Securities
will provide that in the event that either (a) the Exchange Offer Registration
Statement is not filed with the Commission on or prior to the 150th calendar day
following the date of original issue of the Securities, (b) the Exchange Offer
Registration Statement has not been declared effective on or prior to the 180th
calendar day following the date of original issue of the Securities or (c) the
Exchange Offer is not consummated or a Shelf Registration Statement is not
declared effective, in either case, on or prior to the 210th calendar day
following the date of original issue of the Securities (each such event referred
to in clauses (a) through (d) above, a "Registration Default"), the interest
rate borne by the Securities shall be increased ("Additional Interest") by
one-quarter of one percent (0.25%) per annum upon the occurrence of each
Registration Default, which rate will increase by one-quarter of one percent
(0.25%) each 90-day period that such Additional Interest continues to accrue
under any such circumstance, provided that the maximum aggregate increase in the
interest rate will in no event exceed one-half of one percent (0.5%) per annum;
provided, however, that no Additional Interest shall be payable if the Exchange
Offer Registration Statement is not filed or declared effective or the Exchange
Offer is not consummated on account of the reasons set forth in clause (i) of
the first paragraph of Section 2.2 (it being understood, however, that in any
such case the Company shall be obligated to file a Shelf Registration Statement
and Additional Interest shall be payable if the Shelf Registration Statement is
not declared effective in accordance with clause (c)), that no Additional
Interest shall be payable if the Shelf Registration Statement is not declared
effective as set forth above because the request under clause (iii) of Section
2.2 or notice under clause (iv) of such paragraph was not made on a timely
basis; and provided, further, that Additional Interest shall only be payable in
case the Shelf Registration Statement is not declared effective as aforesaid
with respect to Securities that have the right to be included, and whose
inclusion has been requested, in the Shelf Registration Statement. Following the
cure of all Registration Defaults the accrual of Additional Interest will cease
and the interest rate will revert to the original rate.
If the Shelf Registration Statement is declared effective but shall
thereafter become unusable by the Holders for any reason (whether pursuant to
the last paragraph of Section 3 or otherwise), and the aggregate number of days
in any consecutive twelve-month period for which the Shelf Registration
Statement shall not be usable exceeds 30 days in the aggregate, then the
interest rate borne by the Securities included in the Registration Statement
will be increased by one-quarter of one percent (0.25%) per annum of the
principal amount of the Securities for the first 90-day period (or portion
thereof) beginning on the 31st such date that such Shelf Registration Statement
ceases to be usable, which rate shall be increased by an additional one-quarter
of one percent (0.25%) per annum of the principal amount of the Securities at
the beginning of each subsequent 90-day period, provided that the maximum
aggregate increase in the interest rate will in no event exceed one-half of one
percent (0.5%) per annum. Any amounts
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payable under this paragraph shall also be deemed "Additional Interest" for
purposes of this Agreement. Upon the Shelf Registration Statement once again
becoming usable, the interest rate borne by such Securities will be reduced to
the original interest rate if the Company is otherwise in compliance with this
Agreement at such time. Additional Interest shall be computed based on the
actual number of days elapsed in each 90-day period in which the Shelf
Registration Statement is unusable.
The Company shall notify the Trustee within five business days after
each and every date on which an event occurs in respect of which Additional
Interest is required to be paid (an "Event Date"). Additional Interest shall be
paid by depositing with the Trustee, in trust, for the benefit of the Holders of
the Securities entitled to receive the interest payment, on or before the
applicable annual interest payment date, immediately available funds in sums
sufficient to pay the Additional Interest then due. The Additional Interest due
shall be payable on each interest payment date to the record Holder of
Securities entitled to receive the interest payment to be paid on such date as
set forth in the Indenture. Each obligation to pay Additional Interest shall be
deemed to accrue from and including the day following the applicable Event Date.
3. Registration Procedures.
In connection with the obligations of the Company with respect to
Registration Statements pursuant to Sections 2.1 and 2.2 hereof, the Company
shall:
(a) prepare and file with the SEC a Registration Statement, within the
relevant time period specified in Section 2, on the appropriate form under the
1933 Act, which form (i) shall be selected by the Company, (ii) shall, in the
case of a Shelf Registration, be available for the sale of the Registrable
Securities by the selling Holders thereof, (iii) shall comply as to form in all
material respects with the requirements of the applicable form and include or
incorporate by reference all financial statements required by the SEC to be
filed therewith or incorporated by reference therein, and (iv) shall comply in
all respects with the requirements of Regulation S-T under the 1933 Act, and use
their reasonable best efforts to cause such Registration Statement to become
effective and remain effective in accordance with Section 2 hereof;
(b) prepare and file with the SEC such amendments and post-effective
amendments to each Registration Statement as may be necessary under applicable
law to keep such Registration Statement effective for the applicable period; and
cause each Prospectus to be supplemented by any required prospectus supplement,
and as so supplemented to be filed pursuant to Rule 424 (or any similar
provision then in force) under the 1933 Act and comply with the provisions of
the 1933 Act, the 1934 Act and the rules and regulations thereunder applicable
to them with respect to the disposition of all securities covered by each
Registration Statement during the applicable period in
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accordance (in the case of a Shelf Registration) with the intended method or
methods of distribution by the selling Holders thereof (including sales by any
Participating Broker-Dealer);
(c) in the case of a Shelf Registration, (i) notify each Holder of
Registrable Securities, at least five business days prior to filing, that a
Shelf Registration Statement with respect to the Registrable Securities is being
filed and advising such Holders that the distribution of Registrable Securities
will be made in accordance with the method selected by the Majority Holders
participating in the Shelf Registration; (ii) furnish to each Holder of
Registrable Securities and to each underwriter of an underwritten offering of
Registrable Securities, if any, without charge, as many copies of each
Prospectus, including each preliminary Prospectus, and any amendment or
supplement thereto and such other documents as such Holder or underwriter may
reasonably request, including financial statements and schedules and, if the
Holder so requests, all exhibits, in order to facilitate the public sale or
other disposition of the Registrable Securities; and (iii) hereby consent to the
use of the Prospectus or any amendment or supplement thereto by each of the
selling Holders of Registrable Securities in connection with the offering and
sale of the Registrable Securities covered by the Prospectus or any amendment or
supplement thereto;
(d) use their reasonable best efforts to register or qualify the
Registrable Securities under all applicable state securities or "blue sky" laws
of such jurisdictions as any Holder of Registrable Securities covered by a
Registration Statement and each underwriter of an underwritten offering of
Registrable Securities shall reasonably request by the time the applicable
Registration Statement is declared effective by the SEC; provided, however, that
the Company shall not be required to (i) qualify as a foreign corporation or as
a dealer in securities in any jurisdiction where it would not otherwise be
required to qualify but for this Section 3(d) or (ii) take any action which
would subject it to general service of process or taxation in any such
jurisdiction where it is not then so subject;
(e) notify promptly each Holder of Registrable Securities included
under a Shelf Registration or any Participating Broker-Dealer who has notified
the Company that it is utilizing the Exchange Offer Registration Statement as
provided in paragraph (f) below and, if requested by such Holder or
Participating Broker-Dealer, confirm such advice in writing promptly (i) when a
Registration Statement has become effective and when any post-effective
amendments and supplements thereto become effective, (ii) of any request by the
SEC or any state securities authority for post-effective amendments and
supplements to a Registration Statement and Prospectus or for additional
information after the Registration Statement has become effective, (iii) of the
issuance by the SEC or any state securities authority of any stop order
suspending the effectiveness of a Registration Statement or the initiation of
any proceedings for that purpose, (iv) in the
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case of a Shelf Registration, if, between the effective date of such
Registration Statement and the closing of any sale of Registrable Securities
covered thereby, the representations and warranties of the Company contained in
any underwriting agreement, securities sales agreement or other similar
agreement, if any, relating to the offering cease to be true and correct in all
material respects, (v) of the happening of any event or the discovery of any
facts during the period a Shelf Registration Statement is effective which makes
any statement made in such Registration Statement or the related Prospectus
untrue in any material respect or which requires the making of any changes in
such Registration Statement or Prospectus in order to make the statements
therein not misleading, (vi) of the receipt by the Company of any notification
with respect to the suspension of the qualification of the Registrable
Securities or the Exchange Securities, as the case may be, for sale in any
jurisdiction or the initiation or threatening of any proceeding for such purpose
and (vii) of any determination by the Company that a post-effective amendment to
such Registration Statement would be appropriate;
(f) in the case of the Exchange Offer Registration Statement (i)
include in the Exchange Offer Registration Statement a section entitled "Plan of
Distribution" which section shall be reasonably acceptable to ABN AMRO and
Deutsche Bank on behalf of the Participating Broker-Dealers, and which shall
contain a summary statement of the positions taken or policies made by the staff
of the SEC with respect to the potential "underwriter" status of any
broker-dealer that holds Registrable Securities acquired for its own account as
a result of market-making activities or other trading activities and that will
be the beneficial owner (as defined in Rule 13d-3 promulgated under the 0000
Xxx) of Exchange Securities to be received by such broker-dealer in the Exchange
Offer, whether such positions or policies have been publicly disseminated by the
staff of the SEC or such positions or policies, in the reasonable judgment of
ABN AMRO and Deutsche Bank on behalf of the Participating Broker-Dealers and its
counsel, represent the prevailing views of the staff of the SEC, including a
statement that any such broker-dealer who receives Exchange Securities for
Registrable Securities pursuant to the Exchange Offer may be deemed a statutory
underwriter and must deliver a prospectus meeting the requirements of the 1933
Act in connection with any resale of such Exchange Securities, (ii) furnish to
each Participating Broker-Dealer who has delivered to the Company the notice
referred to in Section 3(e), without charge, as many copies of each Prospectus
included in the Exchange Offer Registration Statement, including any preliminary
prospectus, and any amendment or supplement thereto, as such Participating
Broker-Dealer may reasonably request, (iii) hereby consent to the use of the
Prospectus forming part of the Exchange Offer Registration Statement or any
amendment or supplement thereto, by any Person subject to the prospectus
delivery requirements of the SEC, including all Participating Broker-Dealers, in
connection with the sale or transfer of the Exchange Securities covered by the
Prospectus or any amendment or supplement thereto, provided any such Person has
provided the Company in writing with any information required by Item 507 or
Item 508 of Regulation S-K under the 1933 Act (or
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any similar provision then in force) for inclusion in the Prospectus contained
in the Exchange Offer Registration Statement, and (iv) include in the
transmittal letter or similar documentation to be executed by an exchange
offeree in order to participate in the Exchange Offer (x) the following
provision (or any other provision requested by ABN AMRO and Deutsche Bank on
behalf of the Participating Broker-Dealers with respect to similar matters):
"If the exchange offeree is a broker-dealer holding Registrable
Securities acquired for its own account as a result of market-making
activities or other trading activities, it will deliver a prospectus
meeting the requirements of the 1933 Act in connection with any resale
of Exchange Securities received in respect of such Registrable
Securities pursuant to the Exchange Offer;" and
(y) a statement to the effect that by a broker-dealer making the acknowledgment
described in clause (x) and by delivering a Prospectus in connection with the
exchange of Registrable Securities, the broker-dealer will not be deemed to
admit that it is an underwriter within the meaning of the 1933 Act;
(g) (i) in the case of an Exchange Offer, furnish counsel for the
Managers and (ii) in the case of a Shelf Registration, furnish counsel for the
Holders of Registrable Securities copies of any comment letters received from
the SEC or any other request by the SEC or any state securities authority for
amendments or supplements to a Registration Statement and Prospectus or for
additional information;
(h) make every reasonable effort to obtain the withdrawal of any order
suspending the effectiveness of a Registration Statement at the earliest
possible moment;
(i) in the case of a Shelf Registration, furnish to each Holder of
Registrable Securities, and each underwriter, if any, without charge, at least
one conformed copy of each Registration Statement and any post-effective
amendment thereto, including financial statements and schedules (without
documents incorporated therein by reference and all exhibits thereto, unless
requested in writing);
(j) in the case of a Shelf Registration, cooperate with the selling
Holders of Registrable Securities to facilitate the timely preparation and
delivery of certificates representing Registrable Securities to be sold and not
bearing any restrictive legends; and enable such Registrable Securities to be in
such denominations (consistent with the provisions of the Indenture) and
registered in such names as the selling Holders or the underwriters, if any, may
reasonably request at least three business days prior to the closing of any sale
of Registrable Securities;
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(k) in the case of a Shelf Registration, upon the occurrence of any
event or the discovery of any facts, each as contemplated by Sections 3(e)(v)
and 3(e)(vi) hereof, as promptly as practicable after the occurrence of such an
event, use their best efforts to prepare a supplement or post-effective
amendment to the Registration Statement or the related Prospectus or any
document incorporated therein by reference or file any other required document
so that, as thereafter delivered to the purchasers of the Registrable Securities
or Participating Broker-Dealers, such Prospectus will not contain at the time of
such delivery any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading or will remain so
qualified. At such time as such public disclosure is otherwise made or the
Company determines that such disclosure is not necessary, in each case to
correct any misstatement of a material fact or to include any omitted material
fact, the Company agrees promptly to notify each Holder of such determination
and to furnish each Holder such number of copies of the Prospectus as amended or
supplemented, as such Holder may reasonably request;
(l) in the case of a Shelf Registration, within a reasonable time prior
to the filing of any Registration Statement, any Prospectus, any amendment to a
Registration Statement or amendment or supplement to a Prospectus or any
document which is to be incorporated by reference into a Registration Statement
or a Prospectus after initial filing of a Registration Statement, provide copies
of such document to the Managers on behalf of such Holders; and make
representatives of the Company as shall be reasonably requested by the Holders
of Registrable Securities, or the Managers on behalf of such Holders, available
for discussion of such document;
(m) use their reasonable best efforts to obtain a CUSIP number for all
Exchange Securities or Registrable Securities, as the case may be, not later
than the effective date of a Registration Statement, and provide the Trustee
with printed certificates for the Exchange Securities or the Registrable
Securities, as the case may be, in a form eligible for deposit with the
Depositary;
(n) (i) cause the Indenture to be qualified under the TIA in connection
with the registration of the Exchange Securities or Registrable Securities, as
the case may be, (ii) cooperate with the Trustee to effect such changes to the
Indenture as may be required for the Indenture to be so qualified in accordance
with the terms of the TIA, to the extent that such changes may be made without
the consent of the Holders or the holders of any other securities issued under
the Indenture and (iii) execute, and use their reasonable best efforts to cause
the Trustee to execute, all documents as may be required to effect such changes,
and all other forms and documents required to be filed with the SEC to enable
the Indenture to be so qualified in a timely manner;
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(o) in the case of a Shelf Registration, enter into agreements
(including underwriting agreements) and take all other customary and appropriate
actions in order to expedite or facilitate the disposition of such Registrable
Securities and in such connection whether or not an underwriting agreement is
entered into and whether or not the registration is an underwritten
registration:
(i) make such representations and warranties to the Holders of such
Registrable Securities and the underwriters, if any, in form, substance and
scope as are customarily made by issuers to underwriters in similar
underwritten offerings as may be reasonably requested by them;
(ii) obtain opinions of counsel to the Company and updates thereof
(which counsel and opinions (in form, scope and substance) shall be
reasonably satisfactory to the managing underwriters, if any, or, if there
are no underwriters, the Majority Holders) addressed to the underwriters,
if any, or, if there are no underwriters, the selling Holders of
Registrable Securities covering the matters customarily covered in opinions
requested in sales of securities or underwritten offerings and such other
matters as may be reasonably requested by such Holders and underwriters;
(iii) obtain "cold comfort" letters and updates thereof from the
Company's independent certified public accountants (and, if necessary, any
other independent certified public accountants of any subsidiary of the
Company or of any business acquired by the Company for which financial
statements are, or are required to be, included in the Registration
Statement) addressed to the underwriters, if any, and if there are no
underwriters, use reasonable efforts to have such letter addressed to the
selling Holders of Registrable Securities (to the extent consistent with
Statement on Auditing Standards No. 72 of the American Institute of
Certified Public Accounts), such letters to be in customary form and
covering matters of the type customarily covered in "cold comfort" letters
to underwriters in connection with similar underwritten offerings;
(iv) if so requested by the Majority Holders, enter into a securities
sales agreement with the Holders and an agent of the Holders providing for,
among other things, the appointment of such agent for the selling Holders
for the purpose of soliciting purchases of Registrable Securities, which
agreement shall be in form, substance and scope customary for similar
offerings;
(v) if an underwriting agreement is entered into, cause the same to
set forth indemnification provisions and procedures substantially
equivalent to the indemnification provisions and procedures set forth in
Section 4 hereof with respect to the underwriters and all other parties to
be indemnified pursuant to said
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Section or, at the request of any underwriters, in the form customarily
provided to such underwriters in similar types of transactions; provided
such underwriting agreement shall contain customary provisions regarding
indemnification of the Company with the respect to information provided by
the underwriters; and
(vi) deliver such documents and certificates as may be reasonably
requested by the managing underwriter or, if there are no underwriters, the
Majority Holders and as are customarily delivered in similar offerings, if
any.
The above shall be done at (i) the effectiveness of such Registration Statement
(and, if requested by the Majority Holders, each post-effective amendment
thereto) and (ii) each closing under any underwriting or similar agreement as
and to the extent required thereunder. In the case of any underwritten offering,
the Company shall provide written notice to the Holders of all Registrable
Securities whose Securities are included in the Shelf Registration Statement of
such underwritten offering at least 15 days prior to the filing of a prospectus
supplement for such underwritten offering. Such notice shall (x) offer each such
Holder the right to participate in such underwritten offering, (y) specify a
date, which shall be no earlier than 10 days following the date of such notice,
by which such Holder must inform the Company of its intent to participate in
such underwritten offering and (z) include the instructions such Holder must
follow in order to participate in such underwritten offering;
(p) in the case of a Shelf Registration or if a Prospectus is required
to be delivered by any Participating Broker-Dealer in the case of an Exchange
Offer, make available for inspection by representatives of the Majority Holders
of the Registrable Securities, any underwriters participating in any disposition
pursuant to a Shelf Registration Statement, any Participating Broker-Dealer and
any counsel or accountant retained by any of the foregoing, all financial and
other records, pertinent corporate documents and properties of the Company
reasonably requested by any such persons, and cause the respective officers,
directors, employees, and any other agents of the Company to supply all
information reasonably requested by any such representative, underwriter,
special counsel or accountant in connection with a Registration Statement, and
make such representatives of the Company available for discussion of such
documents as shall be reasonably requested by the Managers, in each case as
shall be customary and reasonably necessary to enable such Persons to exercise
applicable due diligence responsibilities; provided that any information that is
designated by the Company in good faith, in writing, as confidential at the time
of delivery of such information shall be kept confidential by such Persons,
unless such information becomes available to the public generally not as a
result of a breach of this Agreement, and unless disclosure is required in
connection with a court proceeding or required by law, in which case prior to
such disclosure the Company shall be given such notice as shall be reasonably
practicable in
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the circumstances to enable the Company to take action to prevent disclosure of
such information;
(q) (i) in the case of an Exchange Offer Registration Statement, within
a reasonable time prior to the filing of any Exchange Offer Registration
Statement, any Prospectus forming a part thereof, any amendment to an Exchange
Offer Registration Statement or amendment or supplement to such Prospectus,
provide copies of such document to the Managers and their counsel and make such
changes in any such document prior to the filing thereof as the Managers or
their counsel may reasonably request and, except as otherwise required by
applicable law, not file any such document in a form to which the Managers or
their counsel shall not have previously been advised and furnished a copy of or
to which the Managers shall reasonably object, and make the representatives of
the Company available for discussion of such documents as shall be reasonably
requested by the Managers; and
(ii) in the case of a Shelf Registration, within a reasonable
time prior to filing any Shelf Registration Statement, any Prospectus forming a
part thereof, any amendment to such Shelf Registration Statement or amendment or
supplement to such Prospectus, provide copies of such document to the Holders of
Registrable Securities participating therein, to the Managers, to counsel for
the Holders of Registrable Securities participating therein selected by the
Majority Holders (all references to counsel for the Holders of Registrable
Securities in this paragraph being references to such counsel) and to the
underwriter or underwriters of an underwritten offering of Registrable
Securities, if any, make such changes in any such document prior to the filing
thereof as the Managers, the counsel to the Holders of Registrable Securities
participating therein or the underwriter or underwriters reasonably request and
not file any such document in a form to which the Managers, counsel for the
Holders of Registrable Securities or any underwriter shall not have previously
been advised and furnished a copy of or to which the Managers, counsel to the
Holders of Registrable Securities or any underwriter shall reasonably object,
and make the representatives of the Company available for discussion of such
document as shall be reasonably requested by the Managers, counsel for the
Holders of Registrable Securities or any underwriter;
(r) in the case of a Shelf Registration, use their reasonable best
efforts to cause all Registrable Securities to be listed on any securities
exchange on which similar debt securities issued by the Company are then listed
if requested by the Majority Holders, or if requested by the underwriter or
underwriters of an underwritten offering of Registrable Securities, if any;
(s) in the case of a Shelf Registration, use their reasonable best
efforts to cause the Registrable Securities to be rated by the appropriate
rating agencies, if so
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requested by the Majority Holders, or if requested by the underwriter or
underwriters of an underwritten offering of Registrable Securities, if any;
(t) otherwise comply with all applicable rules and regulations of the
SEC and make available to its security holders, as soon as reasonably
practicable, an earnings statement covering at least 12 months which shall
satisfy the provisions of Section 11(a) of the 1933 Act and Rule 158 promulgated
thereunder;
(u) cooperate and assist in any filings required to be made with the
NASD and, in the case of a Shelf Registration, in the performance of any due
diligence investigation by any underwriter and its counsel (including any
"qualified independent underwriter" that is required to be retained in
accordance with the rules and regulations of the NASD); and
(v) upon consummation of an Exchange Offer, obtain (i) a customary
opinion of counsel to the Company addressed to the Trustee for the benefit of
all Holders of Registrable Securities participating in the Exchange Offer, and
which includes an opinion that (A) the Company has duly authorized, executed and
delivered the Exchange Securities and the related indenture, and (B) each of the
Exchange Securities and related indenture constitute legal, valid and binding
obligations of each of the Company, enforceable against the Company in
accordance with its respective terms (with customary exceptions) and (ii) an
officers' certificate containing the certifications substantially similar to
those set forth in Section 7(d) of the Subscription Agreement.
In the case of a Shelf Registration Statement, each Holder agrees that,
upon receipt of any notice from the Company of the happening of any event or the
discovery of any facts, each of the kind described in Section 3(e)(v) and
3(e)(vi) hereof, such Holder will forthwith discontinue disposition of
Registrable Securities pursuant to a Registration Statement until such Holder's
receipt of the copies of the supplemented or amended Prospectus contemplated by
Section 3(k) hereof, and, if so directed by the Company, such Holder will
deliver to the Company (at its expense) all copies in such Holder's possession,
other than permanent file copies then in such Holder's possession, of the
Prospectus covering such Registrable Securities current at the time of receipt
of such notice.
If any of the Registrable Securities covered by any Shelf Registration
Statement are to be sold in an underwritten offering, the underwriter or
underwriters and manager or managers that will manage such offering will be
selected by the Majority Holders of all such Registrable Securities included in
such offering and shall be acceptable to the Company. No Holder of Registrable
Securities may participate in any underwritten registration hereunder unless
such Holder (a) agrees to sell such Holder's Registrable Securities on the basis
provided in any underwriting arrangements approved by the persons entitled
hereunder to approve such arrangements and (b) completes and
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executes all questionnaires, powers of attorney, indemnities, underwriting
agreements, lock-up letters and other documents required under the terms of such
underwriting arrangements.
The Company shall be entitled for a period of time not to exceed 30
consecutive days in any one instance or 60 days in the aggregate during any
consecutive twelve-month period, to require that Holders refrain from effecting
any distribution of their Registrable Securities pursuant to the Shelf
Registration Statement if the Company in its reasonable good faith judgment
determines that, in accordance with its understanding of the disclosure
requirements of applicable securities law, such distribution would require
disclosure of any financing (other than an underwritten secondary offering of
any securities of the Company), acquisition, corporate reorganization or other
transaction or development involving the Company or any of their subsidiaries
that is or would be material to the Company and that, in the reasonable good
faith business judgment of the Company, such disclosure would not at that time
be in the best interests of the Company (a "Material Development Election")
provided that any period during which the Company requires Holders to refrain
from disposing of their Registrable Securities due to a Material Development
Election (an "Election Period") shall be deemed to trigger the obligation of the
Company to pay Additional Interest in accordance with the second paragraph of
Section 2.5 to the extent that such Election Period, together with all other
days that the Shelf Registration Statement has become unusable in any
consecutive twelve-month period, exceeds 30 consecutive days. The Company shall,
as promptly as practicable, give the Holders whose Securities are included in
the Shelf Registration Statement written notice of any such Material Development
Election. If such Holders have been required to refrain from disposing of their
Registrable Securities as a result of a Material Development Election, the
Company shall, as promptly as practicable following the determination that the
Holders may recommence such sales, notify such Holders in writing of such
determination but in any event no later than the end of such 30-day period in
any one case or 60-day period in the aggregate.
4. Indemnification; Contribution.
(a) The Company agrees to indemnify and hold harmless the Managers,
each Holder, each Participating Broker-Dealer, each Person who participates as
an underwriter (any such Person being an "Underwriter") and each Person, if any,
who controls any Holder or Underwriter within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of or based upon any untrue statement
or alleged untrue statement of a material fact contained in any
Registration
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Statement (or any amendment or supplement thereto) pursuant to which
Exchange Securities or Registrable Securities were registered under the
1933 Act, including all documents incorporated therein by reference, or the
omission or alleged omission therefrom of a material fact required to be
stated therein or necessary to make the statements therein not misleading,
or arising out of any untrue statement or alleged untrue statement of a
material fact contained in any Prospectus (or any amendment or supplement
thereto) or the omission or alleged omission therefrom of a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission; provided that (subject to Section
4(d) below) any such settlement is effected with the written consent of the
Company; and
(iii) against any and all expense whatsoever, as incurred (including
the fees and disbursements of counsel chosen by any indemnified party),
reasonably incurred in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency
or body, commenced or threatened, or any claim whatsoever based upon any
such untrue statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under
subparagraph (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by the
Holder, Participating Broker-Dealer or Underwriter expressly for use in a
Registration Statement (or any amendment thereto) or any Prospectus (or any
amendment or supplement thereto); and provided further that this indemnity
agreement shall not, with respect to a Shelf Registration Statement, if
applicable, with respect to any preliminary prospectus, inure to the benefit of
any Underwriter (or to the benefit of any Person controlling such Underwriter)
from whom the Person asserting any such losses, liabilities, claims, damages or
expenses purchased Registrable Securities if such untrue statement or omission
or alleged untrue statement or omission made in a preliminary prospectus is
eliminated or remedies in the Prospectus (as amended or supplemented if the
Company shall have furnished amendments or supplements thereto) and, if required
by law, a copy of the Prospectus (as so amended or supplemented) shall not have
been furnished to such Person at or prior to the written confirmation of the
sale of such Registrable Securities to such Person.
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(b) Each Holder severally, but not jointly, agrees to indemnify and
hold harmless the Company, the Managers, each Underwriter and the other selling
Holders, and each of their respective directors and officers, and each Person,
if any, who controls the Company, the Managers, any Underwriter or any other
selling Holder within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act, against any and all loss, liability, claim, damage and expense
described in the indemnity contained in Section 4(a) hereof, as incurred, but
only with respect to untrue statements or omissions, or alleged untrue
statements or omissions, made in the Shelf Registration Statement (or any
amendment thereto) or any Prospectus included therein (or any amendment or
supplement thereto) in reliance upon and in conformity with written information
with respect to such Holder furnished to the Company by such Holder expressly
for use in the Shelf Registration Statement (or any amendment thereto) or such
Prospectus (or any amendment or supplement thereto); provided, however, that no
such Holder shall be liable for any claims hereunder in excess of the amount of
net proceeds received by such Holder from the sale of Registrable Securities
pursuant to such Shelf Registration Statement.
(c) Each indemnified party shall give notice as promptly as reasonably
practicable to each indemnifying party of any action or proceeding commenced
against it in respect of which indemnity may be sought hereunder, but failure so
to notify an indemnifying party shall not relieve such indemnifying party from
any liability hereunder to the extent it is not materially prejudiced as a
result thereof and in any event shall not relieve it from any liability which it
may have otherwise than on account of this indemnity agreement. The indemnifying
party, upon request of the indemnified party, shall retain counsel reasonably
satisfactory to the indemnified party to represent the indemnified party and any
other the indemnifying party may designate in such action or proceeding and
shall pay the fees and expenses of such counsel related to such proceeding. In
any such proceeding, any indemnified party shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the expense
of such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the contrary, (ii) the indemnifying party
has failed within a reasonable time to retain counsel reasonably satisfactory to
the indemnified party or (iii) the named parties in any such proceeding
(including impleaded parties) include both the indemnifying party and the
indemnified party and representation of both parties by the same counsel would
be inappropriate due to actual or potential differing interests between them. In
no event shall the indemnifying party or parties be liable for the fees and
expenses of more than one counsel (in addition to any local counsel) separate
from their own counsel for all indemnified parties in connection with any one
action or separate but similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances. No indemnifying
party shall, without the prior written consent of the indemnified parties,
settle or compromise or consent to the entry of any
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judgment with respect to any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever in respect of which indemnification or contribution could be sought
under this Section 4 (whether or not the indemnified parties are actual or
potential parties thereto), unless such settlement, compromise or consent (i)
includes an unconditional release of each indemnified party from all liability
arising out of such litigation, investigation, proceeding or claim and (ii) does
not include a statement as to or an admission of fault, culpability or a failure
to act by or on behalf of any indemnified party.
(d) If at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel, such indemnifying party agrees that it shall be liable for any
settlement of the nature contemplated by Section 4(a)(ii) effected without its
written consent if (i) such settlement is entered into more than 45 days after
receipt by such indemnifying party of the aforesaid request, (ii) such
indemnifying party shall have received notice of the terms of such settlement at
least 30 days prior to such settlement being entered into and (iii) such
indemnifying party shall not have reimbursed such indemnified party in
accordance with such request prior to the date of such settlement unless the
indemnifying party in good faith shall be contesting the reasonableness of such
fees and expenses (but only to the extent so contested) or the entitlement of
the indemnified party to indemnification under the terms of this Section. No
indemnifying person shall, without the prior written consent of the indemnified
person, effect any settlement of any pending or threatened proceeding in respect
of which any indemnified person is or could have been a party and indemnity
could have been sought hereunder by such indemnified person, unless such
settlement includes an unconditional release of such indemnified person from all
liability on claims that are the subject matter of such proceeding.
(e) If the indemnification provided for in this Section 4 is for any
reason unavailable to or insufficient to hold harmless an indemnified party in
respect of any losses, liabilities, claims, damages or expenses referred to
therein, then each indemnifying party shall contribute to the aggregate amount
of such losses, liabilities, claims, damages and expenses incurred by such
indemnified party, as incurred, in such proportion as is appropriate to reflect
the relative fault of the Company on the one hand and the Managers, the Holders,
the Participating Broker-Dealers and/or the Underwriters each on the other hand
in connection with the statements or omissions which resulted in such losses,
liabilities, claims, damages or expenses, as well as any other relevant
equitable considerations.
The relative fault of the Company on the one hand and the Managers, the
Holders, the Participating Broker-Dealers and/or the Underwriters each on the
other hand shall be determined by reference to, among other things, whether any
such untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a
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material fact relates to information supplied by the Company, the Holders, the
Participating Broker-Dealers and/or the Underwriters or the Managers and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
The Company, the Managers, the Holders, the Participating
Broker-Dealers and/or the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 4 were determined by pro rata
allocation (even if the Managers, the Holders, the Participating Broker-Dealers
and/or the Underwriters 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 above in this Section 4. The aggregate amount of
losses, liabilities, claims, damages and expenses incurred by an indemnified
party and referred to above in this Section 4 shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified party in
investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 4, no Manager shall be
required to contribute any amount in excess of the amount by which the total
price at which the Securities sold by it were offered exceeds the amount of any
damages which such Manager has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission.
No Person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 0000 Xxx) shall be entitled to contribution from any Person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 4, each Person, if any, who controls a
Manager, Holder, Participating Broker-Dealer or Underwriter within the meaning
of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have the same
rights to contribution as such Manager or Holder, and each director of the
Company, and each Person, if any, who controls the Company, within the meaning
of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have the same
rights to contribution as the Company. The Managers' respective obligations to
contribute pursuant to this Section 4 are several in proportion to the principal
amount of Securities set forth opposite their respective names in Schedule II to
the Subscription Agreement and not joint.
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5. Miscellaneous.
5.1 Rule 144 and Rule 144A. For so long as the the Company is subject
to the reporting requirements of Section 13 or 15 of the 1934 Act, the Company
covenants that it will file the reports required to be filed by it under the
1933 Act and Section 13(a) or 15(d) of the 1934 Act and the rules and
regulations adopted by the SEC thereunder. If the Company ceases to be so
required to file such reports, the Company covenants that it will upon the
request of any Holder of Registrable Securities (a) make publicly available such
information as is necessary to permit sales pursuant to Rule 144 under the 1933
Act, (b) deliver such information to a prospective purchaser as is necessary to
permit sales pursuant to Rule 144A under the 1933 Act to the extent required by
the securities laws, and (c) take such further action that is reasonable in the
circumstances, in each case, to the extent required from time to time to enable
such Holder to sell its Registrable Securities without registration under the
1933 Act within the limitation of the exemptions provided by (i) Rule 144 under
the 1933 Act, as such Rule may be amended from time to time, (ii) Rule 144A
under the 1933 Act, as such Rule may be amended from time to time, or (iii) any
similar rules or regulations hereafter adopted by the SEC. Upon the request of
any Holder of Registrable Securities, the Company will deliver to such Holder a
written statement as to whether they have complied with such requirements.
5.2 No Inconsistent Agreements. The Company has not entered into, and
the Company will not after the date of this Agreement enter into, any agreement
which is inconsistent with the rights granted to the Holders of Registrable
Securities in this Agreement or otherwise conflicts with the provisions hereof.
The rights granted to the Holders hereunder do not in any way conflict with the
rights granted to the holders of the Company's other issued and outstanding
securities under any such agreements.
5.3 Amendments and Waivers. The provisions of this Agreement, including
the provisions of this sentence, may not be amended, modified or supplemented,
and waivers or consents to departures from the provisions hereof may not be
given unless the Company has obtained the written consent of Holders of at least
a majority in aggregate principal amount of the outstanding Registrable
Securities affected by such amendment, modification, supplement, waiver or
departure.
5.4 Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand delivery, registered
first-class mail, telex, telecopier, or any courier guaranteeing overnight
delivery (a) if to a Holder, at the most current address given by such Holder to
the Company by means of a notice given in accordance with the provisions of this
Section 5.4, which address initially is the address set forth in the
Subscription Agreement with respect to the Managers; and (b) if to the Company,
initially at the Company's address set forth in the Subscription Agreement, and
thereafter at such other address of which notice is given in accordance with the
provisions of this Section 5.4.
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All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; two business days
after being deposited in the mail, postage prepaid, if mailed; when answered
back, if telexed; when receipt is acknowledged, if telecopied; and on the next
business day if timely delivered to an air courier guaranteeing overnight
delivery.
Copies of all such notices, demands, or other communications shall be
concurrently delivered by the person giving the same to the Trustee under the
Indenture, at the address specified in such Indenture.
5.5 Successor and Assigns. This Agreement shall inure to the benefit of
and be binding upon the successors, assigns and transferees of each of the
parties, including, without limitation and without the need for an express
assignment, subsequent Holders; provided that nothing herein shall be deemed to
permit any assignment, transfer or other disposition of Registrable Securities
in violation of the terms of the Subscription Agreement or the Indenture. If any
transferee of any Holder shall acquire Registrable Securities, in any manner,
whether by operation of law or otherwise, such Registrable Securities shall be
held subject to all of the terms of this Agreement, and by taking and holding
such Registrable Securities such person shall be conclusively deemed to have
agreed to be bound by and to perform all of the terms and provisions of this
Agreement, including the restrictions on resale set forth in this Agreement and,
if applicable, the Subscription Agreement, and such person shall be entitled to
receive the benefits hereof.
5.6 Third Party Beneficiaries. The Managers (even if the Managers are
not Holders of Registrable Securities) shall be third party beneficiaries to the
agreements made hereunder between the Company on the one hand, and the Holders,
on the other hand, and shall have the right to enforce such agreements directly
to the extent they deem such enforcement necessary or advisable to protect their
rights or the rights of Holders hereunder. Each Holder of Registrable Securities
shall be a third party beneficiary to the agreements made under this
Registration Rights Agreement between the Company on the one hand, and the
Managers, on the other hand, and shall have the right to enforce such agreements
directly to the extent it deems such enforcement necessary or advisable to
protect its rights hereunder.
5.7. Specific Enforcement. Without limiting the remedies available to
the Managers and the Holders, the Company acknowledges that any failure by the
Company to comply with its obligations under Sections 2.1 through 2.4 hereof may
result in material irreparable injury to the Managers or the Holders for which
there is no adequate remedy at law, that it would not be possible to measure
damages for such injuries precisely and that, in the event of any such failure,
the Managers or any Holder may
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obtain such relief as may be required to specifically enforce the Company's
obligations under Sections 2.1 through 2.4 hereof.
5.8. Restriction on Resales. Until the expiration of two years after
the original issuance of the Securities, the Company will not, and will cause
its "affiliates" (as such term is defined in Rule 144(a)(1) under the 0000 Xxx)
not to, resell any Securities which are "restricted securities" (as such term is
defined under Rule 144(a)(3) under the 0000 Xxx) that have been reacquired by
any of them and shall immediately upon any purchase of any such Securities
submit such Securities to the Trustee for cancellation.
5.9 Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
5.10 Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
5.11 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK WITHOUT REGARD TO THE
PRINCIPLES OF CONFLICT OF LAWS THEREOF.
5.12 Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
5.13 Jurisdictional Matters. The Company (i) agrees that any legal
suit, action or proceeding brought by any party to enforce any rights under or
with respect to this Agreement or any other document in respect thereof or the
transactions contemplated hereby or thereby may be instituted in any state or
federal court in The City of New York, State of New York, U.S.A., (ii)
irrevocably waives to the fullest extent permitted by law any objection which it
may now or hereafter have to the laying of venue of any such suit, action or
proceeding, (iii) irrevocably waives to the fullest extent permitted by law any
claim that and agrees not to claim or plead in any court that any such action,
suit or proceeding brought in such court has been brought in an inconvenient
forum and (iv) irrevocably submits to the non-exclusive jurisdiction of any such
court in any such suit, action or proceeding or for recognition and enforcement
of any judgment in respect thereof.
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5.14. Judgment Currency. If pursuant to a judgment or order being made
or registered against the Company, any payment under or in connection with this
Agreement to a Person is made or satisfied in a currency (the "Judgment
Currency") other than in euro then, to the extent that the payment (when
converted into euro at the rate of exchange on the date of payment or, if it is
not practicable for such Person to purchase euro with the Judgment Currency on
the date of payment, at the rate of exchange as soon thereafter as it is
practicable for it to do so) actually received by such Person falls short of the
amount due under the terms of this Agreement, the Company shall, to the extent
permitted by law, as a separate and independent obligation, indemnify and hold
harmless such Person against the amount of such short fall and such indemnity
shall continue in full force and effect notwithstanding any such judgment or
order as aforesaid. For the purpose of this Section, "rate of exchange" means
the rate at which the Person is able on the relevant date to purchase euro with
the Judgment Currency and shall take into account any premium and other costs of
exchange.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
CLEAR CHANNEL
COMMUNICATIONS, INC.
By: /s/ XXXXXXX X. XXXX
-----------------------------------------
Xxxxxxx X. Xxxx
Senior Vice President -- Finance
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Confirmed and accepted as
of the date first above
written:
ABN AMRO BANK N.V.
DEUTSCHE BANK AG LONDON
BARCLAYS BANK PLC
CREDIT SUISSE FIRST BOSTON (EUROPE) LIMITED
XXXXXXX XXXXX INTERNATIONAL
SALOMON BROTHERS INTERNATIONAL LIMITED
WESTDEUTSCHE LANDESBANK GIROZENTRALE
By: ABN AMRO BANK N.V.
By:
-----------------------------------------------
Authorized Signatory
By: DEUTSCHE BANK AG LONDON
By:
-----------------------------------------------
Authorized Signatory
By:
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Authorized Signatory
For themselves and on behalf of the other Managers.
