EXHIBIT 4.2
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REGISTRATION RIGHTS AGREEMENT
Dated as of January 23, 1997
Among
CHANCELLOR RADIO BROADCASTING COMPANY
as Issuer
and
BT SECURITIES CORPORATION
CREDIT SUISSE FIRST BOSTON CORPORATION
XXXXXXX, XXXXX & CO.
NATIONSBANC CAPITAL MARKETS, INC.
XXXXX XXXXXX INC.
as Initial Purchasers
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REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is
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dated as of January 23, 1997, among Chancellor Radio Broadcasting
Company, a Delaware corporation (the "Company"), and BT Securities
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Corporation, Credit Suisse First Boston Corporation, Xxxxxxx, Xxxxx &
Co., NationsBanc Capital Markets, Inc. and Xxxxx Xxxxxx Inc.
(individually, an "Initial Purchaser"; together, the "Initial
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Purchasers").
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This Agreement is entered into in connection with the
Purchase Agreement, dated as of January 17, 1997, among the Company
and the Initial Purchasers (the "Purchase Agreement"), which provides
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for the issuance and sale by the Company to the Initial Purchasers of
the Company's 12% Exchangeable Preferred Stock, par value $.01 per
share (the "Exchangeable Preferred Stock"). In order to induce the
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Initial Purchasers to enter into the Purchase Agreement, the Company
has agreed to provide the registration rights set forth in this
Agreement for the benefit of the Initial Purchasers and their direct
and indirect transferees and assigns. The execution and delivery of
this Agreement is a condition to the Initial Purchasers' obligation to
purchase the Exchangeable Preferred Stock under the Purchase
Agreement.
The parties hereby agree as follows:
1. Definitions
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As used in this Agreement, the following terms shall have
the following meanings:
Additional Dividends: See Section 4 hereof.
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Advice: See Section 5 hereof.
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Agreement: See the introductory paragraphs hereto.
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Applicable Period: See Section 2 hereof.
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Certificate of Designation: The Certificate of Designation
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governing the Exchangeable Preferred Stock as filed with the Secretary
of State of the State of Delaware, as amended from time to time.
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Certificate Shares: See Section 10 hereof.
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Closing Date: The Closing Date as defined in the Purchase
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Agreement.
Company: See the introductory paragraphs hereto.
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Depositary: The Depository Trust Company until a successor
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is appointed by the Company and the Transfer Agent.
Effectiveness Date: The 180th day after the Issue Date.
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Effectiveness Period: See Section 3 hereof.
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Event Date: See Section 4 hereof.
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Exchange Act: The Securities Exchange Act of 1934, as
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amended, and the rules and regulations of the SEC promulgated
thereunder.
Exchange Preferred Stock: See Section 2 hereof.
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Exchange Offer: See Section 2 hereof.
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Exchange Registration Statement: See Section 2 hereof.
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Filing Date: Within 90 days after the Issue Date.
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Global Certificate: See Section 10 hereof.
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Holder: Any holder of shares of Registrable Preferred
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Stock.
Indemnified Person: See Section 7(c) hereof.
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Indemnifying Person: See Section 7(c) hereof.
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Initial Purchaser: See the introductory paragraphs hereto.
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Initial Purchasers: See the introductory paragraphs hereto.
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Initial Shelf Registration: See Section 3(a) hereof.
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Inspectors: See Section 5(n) hereof.
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Issue Date: The date on which the original Exchangeable
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Preferred Stock was issued and sold to the Initial Purchasers pursuant
to the Purchase Agreement.
NASD: See Section 5(r) hereof.
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Participant: See Section 7(a) hereof.
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Participating Broker-Dealer: See Section 2 hereof.
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Person: An individual, partnership, corporation, limited
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liability company, unincorporated association, trust or joint venture,
or a governmental agency or political subdivision thereof.
Private Exchange: See Section 2 hereof.
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Private Exchange Certificate: See Section 2 hereof.
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Private Exchange Preferred Stock: See Section 2 hereof.
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Prospectus: The prospectus included in any Registration
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Statement (including, without limitation, any prospectus subject to
completion and a prospectus that includes any information previously
omitted from a prospectus filed as part of an effective registration
statement in reliance upon Rule 430A promulgated under the Securities
Act), as amended or supplemented by any prospectus supplement, and all
other amendments and supplements to the Prospectus, including
post-effective amendments, and all material incorporated by reference
or deemed to be incorporated by reference in such Prospectus.
Purchase Agreement: See the introductory paragraphs hereto.
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Records: See Section 5(n) hereof.
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Registrable Preferred Stock: Each share of Exchangeable
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Preferred Stock upon original issuance thereof and at all times
subsequent thereto, each share of Exchange Preferred Stock as to which
Section 2(c)(v) hereof is applicable upon original issuance and at all
times subsequent thereto and each share of Private Exchange Preferred
Stock upon original issuance thereof and at all times subsequent
thereto, until in the case of any such shares of Exchangeable
Preferred Stock, Exchange Preferred Stock or Private Exchange
Preferred Stock, as the case
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may be, the earliest to occur of (i) a Registration Statement (other
than, with respect to any Exchange Preferred Stock as to which Section
2(c)(v) hereof is applicable, the Exchange Registration Statement)
covering such shares of Exchangeable Preferred Stock, Exchange
Preferred Stock or such Private Exchange Preferred Stock, as the case
may be, have been declared effective by the SEC and such shares of
Exchangeable Preferred Stock, Exchange Preferred Stock or Private
Exchange Preferred Stock, as the case may be, have been disposed of in
accordance with such effective Registration Statement, (ii) such
shares of Exchangeable Preferred Stock, Exchange Preferred Stock or
Private Exchange Preferred Stock, as the case may be, are sold in
compliance with Rule 144 or could be sold in compliance with
paragraph (k) of such Rule 144, (iii) such shares of Exchangeable
Preferred Stock have been exchanged for shares of Exchange Preferred
Stock pursuant to an Exchange Offer that may be resold without
restriction under state and federal securities laws, or (iv) such
shares of Exchangeable Preferred Stock, Exchange Preferred Stock or
Private Exchange Preferred Stock, as the case may be, cease to be
outstanding. For purposes of this Agreement and the registration
requirements contained herein, Registrable Preferred Stock shall be
deemed to include, and all Registration Statements required to be
filed in accordance with the terms of this Agreement shall cover, the
Exchange Debentures (as defined in the Purchase Agreement) into which
the Exchangeable Preferred Stock, Exchange Preferred Stock or Private
Exchange Preferred Stock that is Registrable Preferred Stock is
exchangeable.
Registration Statement: Any registration statement of the
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Company, including, but not limited to, the Exchange Registration
Statement, filed with the SEC pursuant to the provisions of this
Agreement, including the Prospectus, amendments and supplements to
such registration statement, including post-effective amendments, all
exhibits, and all material incorporated by reference or deemed to be
incorporated by reference in such registration statement.
Rule 144: Rule 144 promulgated under the Securities Act, as
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such Rule may be amended from time to time, or any similar rule (other
than Rule 144A) or regulation hereafter adopted by the SEC providing
for offers and sales of securities made in compliance therewith
resulting in offers and sales by subsequent holders that are not
affiliates of an issuer of such securities being free of the
registration and prospectus delivery requirements of the Securities
Act.
Rule 144A: Rule 144A promulgated under the Securities Act,
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as such Rule may be amended from time to time, or any
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similar rule (other than Rule 144) or regulation hereafter adopted by
the SEC.
Rule 415: Rule 415 promulgated under the Securities Act, as
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such Rule may be amended from time to time, or any similar rule or
regulation hereafter adopted by the SEC.
SEC: The Securities and Exchange Commission.
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Securities Act: The Securities Act of 1933, as amended, and
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the rules and regulations of the SEC promulgated thereunder.
Shelf Notice: See Section 2 hereof.
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Shelf Registration: See Section 3(b) hereof.
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Subsequent Shelf Registration: See Section 3(b) hereof.
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Transfer Agent. The Transfer Agent for the Exchangeable
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Preferred Stock, the Exchange Preferred Stock and/or the Private
Exchange Preferred Stock, as the context may require.
Underwritten registration or underwritten offering: A
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registration in which securities of the Company are sold to an
underwriter for reoffering to the public.
2. Exchange Offer
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(a) The Company shall file with the SEC no later than the
Filing Date, an offer to exchange (the "Exchange Offer") any and all
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shares of the Exchangeable Preferred Stock for a like number of shares
(with a liquidation preference equal to that of the surrendered
shares) of another series of exchangeable preferred stock of the
Company that will have terms identical in all material respects to the
Exchangeable Preferred Stock (the "Exchange Preferred Stock"), except
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that (i) the Exchange Preferred Stock shall have been registered
pursuant to an effective Registration Statement under the Securities
Act and the certificates therefor shall contain no restrictive legend
thereon and (ii) the certificate of designation governing such
Exchange Preferred Stock does not need to contain the provisions set
forth in the Certificate of Designation concerning Additional
Dividends including, without limitation, paragraph (c)(viii) thereof.
The Exchange Offer shall be registered under the Securities Act on the
appropriate form (the "Exchange Registration Statement") and shall
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comply with all applicable tender offer rules and
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regulations under the Exchange Act. The Company agrees to use its
best efforts to (x) cause the Exchange Registration Statement to be
declared effective under the Securities Act on or before the
Effectiveness Date; (y) keep the Exchange Offer open for at least 20
business days (or longer if required by applicable law) after the date
that notice of the Exchange Offer is mailed to Holders; and (z) con-
summate the Exchange Offer on or prior to the 225th day following the
Issue Date. If after such Exchange Registration Statement is
initially declared effective by the SEC, the Exchange Offer or the
issuance of the Exchange Preferred Stock thereunder is interfered with
by any stop order, injunction or other order or requirement of the SEC
or any other governmental agency or court, such Exchange Registration
Statement shall be deemed not to have become effective for purposes of
this Agreement. Each Holder who participates in the Exchange Offer
will be required to represent that any Exchange Preferred Stock
received by it will be acquired in the ordinary course of its
business, that at the time of the consummation of the Exchange Offer
such Holder will have no arrangement or understanding with any Person
to participate in the distribution of the Exchange Preferred Stock in
violation of the provisions of the Securities Act, and that such
Holder is not an affiliate of the Company within the meaning of the
Securities Act. Upon consummation of the Exchange Offer in accordance
with this Section 2, the provisions of this Agreement shall continue
to apply, mutatis mutandis, solely with respect to Registrable
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Preferred Stock that is Private Exchange Preferred Stock and Exchange
Preferred Stock held by Participating Broker-Dealers, and the Company
shall have no further obligation to register Registrable Preferred
Stock (other than Private Exchange Preferred Stock and other than in
respect of any Exchange Preferred Stock as to which clause 2(c)(v)
hereof applies) pursuant to Section 3 hereof. No securities other
than the Exchange Preferred Stock shall be included in the Exchange
Registration Statement.
(b) The Company shall include within the Prospectus
contained in the Exchange Registration Statement a section entitled
"Plan of Distribution," reasonably acceptable to the Initial
Purchasers, that 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 is the
beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of
Exchange Preferred Stock received by such broker-dealer (a
"Participating Broker-Dealer") in the Exchange Offer (other than with
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respect to any shares of Exchangeable Preferred Stock acquired by them
and having, or that is reasonably likely to be determined to have, the
status of an
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unsold allotment in the initial distribution), whether such positions
or policies have been publicly disseminated by the Staff of the SEC or
such positions or policies, in the judgment of the Initial Purchasers,
represent the prevailing views of the Staff of the SEC. Such "Plan of
Distribution" section shall also expressly permit the use of the
Prospectus by all Persons subject to the prospectus delivery
requirements of the Securities Act, including all Participating
Broker-Dealers, and include a statement describing the means by which
Participating Broker-Dealers may resell the Exchange Preferred Stock.
The Company shall use its reasonable best efforts to keep
the Exchange Registration Statement effective and to amend and
supplement the Prospectus contained therein, in order to permit such
Prospectus to be lawfully delivered by all Persons subject to the
prospectus delivery requirements of the Securities Act for such period
of time as is necessary to comply with applicable law in connection
with any resale of the Exchange Preferred Stock; provided, however,
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that such period shall not exceed 180 days after the Exchange
Registration Statement is declared effective (or such longer period if
extended pursuant to the last paragraph of Section 5 hereof) (the
"Applicable Period").
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If, prior to consummation of the Exchange Offer, the Initial
Purchasers hold any shares of Exchangeable Preferred Stock acquired by
them and having, or that is reasonably likely to be determined to
have, the status of an unsold allotment in the initial distribution,
the Company shall, upon the request of any of the Initial Purchasers
simultaneously with the delivery of the Exchange Preferred Stock in
the Exchange Offer, issue and deliver to the Initial Purchasers in
exchange (the "Private Exchange") for such shares of Exchangeable
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Preferred Stock held by the Initial Purchasers exchangeable preferred
stock having a liquidation preference equal to that of the surrendered
shares of the Exchangeable Preferred Stock and having terms identical
in all material respects to the Exchangeable Preferred Stock (the
"Private Exchange Preferred Stock"); provided, however, that the
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certificate of designation governing such Private Exchange Preferred
Stock (the "Private Exchange Certificate") shall provide that
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Additional Dividends with respect thereto shall be paid, if required,
through the issuance of additional shares of Private Exchange
Preferred Stock. The Private Exchange Preferred Stock shall bear the
same CUSIP number as the Exchange Preferred Stock.
Dividends on the Exchange Preferred Stock and the Private
Exchange Preferred Stock will accumulate from the last
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dividend payment date on which dividends were paid on the Exchangeable
Preferred Stock surrendered in exchange therefor or, if no dividends
have been paid (or deemed to have been paid in accordance with the
terms of the Certificate of Designation) on the Exchangeable Preferred
Stock, from the Issue Date.
In connection with the Exchange Offer, the Company shall:
(1) mail to each Holder a copy of the Prospectus forming
part of the Exchange Registration Statement, together
with an appropriate letter of transmittal and related
documents;
(2) utilize the services of a depositary for the Exchange
Offer with an address in the Borough of Manhattan, The
City of New York;
(3) permit Holders to withdraw tendered shares of
Exchangeable Preferred Stock at any time prior to the
close of business, New York time, on the last business
day on which the Exchange Offer shall remain open; and
(4) otherwise comply in all material respects with all
applicable laws, rules and regulations.
As soon as practicable after the close of the Exchange Offer
or the Private Exchange, as the case may be, the Company shall:
(1) accept for exchange all shares of Exchangeable
Preferred Stock tendered and not validly withdrawn
pursuant to the Exchange Offer or the Private Exchange;
(2) deliver to the Transfer Agent for cancellation and
retirement certificates representing all shares of
Exchangeable Preferred Stock so accepted for exchange;
and
(3) cause the Transfer Agent to countersign and deliver
promptly to each Holder of shares of Exchangeable
Preferred Stock, certificates for the shares of
Exchange Preferred Stock or Private Exchange Preferred
Stock, as the case may be, equal in liquidation
preference to the shares of Exchangeable Preferred
Stock of such Holder so
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accepted for exchange.
The certificate of designation for the Exchange Preferred
Stock and the Private Exchange Certificate, if any, shall each provide
that the shares of Exchange Preferred Stock and Private Exchange
Preferred Stock shall vote as a class on all matters submitted to them
to vote, including, but not limited to, changes in the respective
certificates of incorporation and election of directors.
(c) If, (i) because of any change in law or in currently
prevailing interpretations of the Staff of the SEC, the Company is not
permitted to effect an Exchange Offer, (ii) the Exchange Offer is not
consummated within 225 days of the date of original issuance of the
Exchangeable Preferred Stock, (iii) any holder of Private Exchange
Preferred Stock so requests at any time after the consummation of the
Private Exchange, (iv) the Holders of not less than a majority of
shares of the Registrable Preferred Stock determine that the interests
of the Holders would be adversely affected by consummation of the
Exchange Offer, or (v) in the case of any Holder that participates in
the Exchange Offer, such Holder does not receive Exchange Preferred
Stock on the date of the exchange that may be sold without restriction
under state and federal securities laws (other than due solely to the
status of such Holder as an affiliate of the Company within the
meaning of the Securities Act), in the case of each of clauses (i) to
and including (v) of this sentence, then the Company shall promptly
deliver to the Holders written notice thereof (the "Shelf Notice") and
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shall file a Shelf Registration pursuant to Section 3 hereof.
3. Shelf Registration
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If a Shelf Notice is delivered as contemplated by
Section 2(c) hereof, then:
(a) Shelf Registration. The Company shall as promptly as
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reasonably practicable file with the SEC a Registration Statement for
an offering to be made on a continuous basis pursuant to Rule 415
covering all of the Registrable Preferred Stock (the "Initial Shelf
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Registration"). If the Company shall not have yet filed an Exchange
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Registration Statement, the Company shall use its best efforts to file
with the SEC the Initial Shelf Registration on or prior to the Filing
Date. Otherwise, the Company shall use its best efforts to file with
the SEC the Initial Shelf Registration within 30 days of the delivery
of the Shelf Notice. The Initial Shelf Registration shall be on Form
S-1 or another appropriate form permitting
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registration of such Registrable Preferred Stock for resale by Holders
in the manner or manners designated by them (including, without
limitation, one or more underwritten offerings). The Company shall
not permit any securities other than the Registrable Preferred Stock
to be included in the Initial Shelf Registration or any Subsequent
Shelf Registration (as defined below).
The Company shall use its best efforts to cause the Initial
Shelf Registration to be declared effective under the Securities Act
on or prior to the Effectiveness Date and to keep the Initial Shelf
Registration continuously effective under the Securities Act until the
date that is 36 months from the Effectiveness Date, subject to
extension pursuant to the last paragraph of Section 5 hereof (the
"Effectiveness Period"), or such shorter period ending when (i) all
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the shares of Registrable Preferred Stock covered by the Initial Shelf
Registration have been sold in the manner set forth and as
contemplated in the Initial Shelf Registration or (ii) a Subsequent
Shelf Registration covering all of the Registrable Preferred Stock has
been declared effective under the Securities Act.
(b) Subsequent Shelf Registrations. If the Initial Shelf
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Registration or any Subsequent Shelf Registration ceases to be
effective for any reason at any time during the Effectiveness Period
(other than because of the sale of all of the securities registered
thereunder), the Company shall use its reasonable best efforts to
obtain the prompt withdrawal of any order suspending the effectiveness
thereof, and in any event shall within 45 days of such cessation of
effectiveness amend the Initial Shelf Registration in a manner to
obtain the withdrawal of the order suspending the effectiveness
thereof, or file an additional "shelf" Registration Statement pursuant
to Rule 415 covering all of the Registrable Preferred Stock (a
"Subsequent Shelf Registration"). If a Subsequent Shelf Registration
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is filed, the Company shall use its reasonable best efforts to cause
the Subsequent Shelf Registration to be declared effective under the
Securities Act as soon as practicable after such filing and to keep
such Registration Statement continuously effective for a period equal
to the number of days in the Effectiveness Period less the aggregate
number of days during which the Initial Shelf Registration or any
Subsequent Shelf Registration was previously continuously effective.
As used herein the term "Shelf Registration" means the Initial Shelf
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Registration and any Subsequent Shelf Registration.
(c) Supplements and Amendments. The Company shall promptly
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supplement and amend the Shelf Registration if required
--
by the rules, regulations or instructions applicable to the
registration form used for such Shelf Registration, if required by the
Securities Act, or if reasonably requested by the Holders of a
majority of shares of the Registrable Preferred Stock covered by such
Registration Statement or by any underwriter of such Registrable
Preferred Stock.
4. Additional Dividends
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The Company and the Initial Purchasers agree that the
Holders of Exchangeable Preferred Stock will suffer damages if the
Company fails to fulfill its obligations under Section 2 or Section 3
hereof and that it would not be feasible to ascertain the extent of
such damages with precision. Accordingly, the Company agrees to pay,
as liquidated damages, additional dividends on the Exchangeable
Preferred Stock or the Private Exchange Preferred Stock (in either
case, "Additional Dividends") under the circumstances and to the
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extent set forth in the Certificate of Designation and the Private
Exchange Certificate, respectively. The Company shall notify the
Transfer Agent within one business day after each and every date on
which an event occurs in respect of which Additional Dividends are
required to be paid (an "Event Date"). Any Additional Dividends will
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be payable in accordance with the Certificate of Designation and the
Private Exchange Certificate on the next following dividend payment
date. The Company agrees to make available to the Transfer Agent
certificates representing additional shares of Private Exchange
Preferred Stock to be paid as Additional Dividends on or prior to the
interest payment date.
5. Registration Procedures
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In connection with the filing of any Registration Statement
pursuant to Sections 2 or 3 hereof, the Company shall effect such
registrations to permit the sale of the securities covered thereby in
accordance with the intended method or methods of disposition thereof,
and pursuant thereto and in connection with any Registration Statement
filed by the Company hereunder the Company shall:
(a) Prepare and file with the SEC prior to the Filing Date,
a Registration Statement or Registration Statements as prescribed by
Sections 2 or 3 hereof, and use its best efforts to cause each such
Registration Statement to become effective and remain effective as
provided herein; provided, however, that, if (1) such filing is
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pursuant to Section 3 hereof, or (2) a Prospectus contained in an
Exchange Registration Statement filed pursuant to Section 2 hereof is
required to be delivered under
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the Securities Act by any Participating Broker-Dealer who seeks to
sell Exchange Preferred Stock during the Applicable Period, before
filing any Registration Statement or Prospectus or any amendments or
supplements thereto, the Company shall furnish to and afford the
Holders of the Registrable Preferred Stock covered by such
Registration Statement or each such Participating Broker-Dealer, as
the case may be, their counsel and the managing underwriters, if any,
a reasonable opportunity to review copies of all such documents
(including copies of any documents to be incorporated by reference
therein and all exhibits thereto) proposed to be filed (in each case
at least five business days prior to such filing). The Company shall
not file any Registration Statement or Prospectus or any amendments or
supplements thereto if the Holders of a majority in aggregate
principal amount of the shares of Registrable Preferred Stock covered
by such Registration Statement, or any such Participating
Broker-Dealer, as the case may be, their counsel, or the managing
underwriters, if any, shall reasonably object.
(b) Prepare and file with the SEC such amendments and
post-effective amendments to each Shelf Registration or Exchange
Registration Statement, as the case may be, as may be necessary to
keep such Registration Statement continuously effective for the
Effectiveness Period or the Applicable Period, as the case may be;
cause the related Prospectus to be supplemented by any Prospectus
supplement required by applicable law, and as so supplemented to be
filed pursuant to Rule 424 (or any similar provisions then in force)
promulgated under the Securities Act; and comply with the provisions
of the Securities Act and the Exchange Act applicable to it with
respect to the disposition of all securities covered by such
Registration Statement as so amended or in such Prospectus as so
supplemented and with respect to the subsequent resale of any
securities being sold by a Participating Broker-Dealer covered by any
such Prospectus. The Company shall be deemed not to have used its
reasonable best efforts to keep a Registration Statement effective
during the Applicable Period if it voluntarily takes any action that
would result in selling Holders of the Registrable Preferred Stock
covered thereby or Participating Broker-Dealers seeking to sell
Exchange Preferred Stock not being able to sell such Registrable
Preferred Stock or such Exchange Preferred Stock during that period
unless such action is required by applicable law or unless the Company
complies with this Agreement, including without limitation, the
provisions of paragraph 5(k) hereof and the last paragraph of this
Section 5.
(c) If (1) a Shelf Registration is filed pursuant to
Section 3 hereof, or (2) a Prospectus contained in an Exchange
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Registration Statement filed pursuant to Section 2 hereof is required
to be delivered under the Securities Act by any Participating
Broker-Dealer who seeks to sell Exchange Preferred Stock during the
Applicable Period, notify the selling Holders of shares of Registrable
Preferred Stock, or each such Participating Broker-Dealer, as the case
may be, their counsel and the managing underwriters, if any, promptly
(but in any event within two business days), and confirm such notice
in writing, (i) when a Prospectus or any Prospectus supplement or
post-effective amendment has been filed, and, with respect to a
Registration Statement or any post-effective amendment, when the same
has become effective under the Securities Act (including in such
notice a written statement that any Holder may, upon request, obtain,
at the sole expense of the Company, one conformed copy of such
Registration Statement or post-effective amendment including financial
statements and schedules, documents incorporated or deemed to be
incorporated by reference and exhibits), (ii) of the issuance by the
SEC of any stop order suspending the effectiveness of a Registration
Statement or of any order preventing or suspending the use of any
preliminary prospectus or the initiation of any proceedings for that
purpose, (iii) if at any time when a prospectus is required by the
Securities Act to be delivered in connection with sales of the
Registrable Preferred Stock or resales of Exchange Preferred Stock by
Participating Broker-Dealers the representations and warranties of the
Company contained in any agreement (including any underwriting
agreement), contemplated by Section 5(m) hereof cease to be true and
correct, (iv) of the receipt by the Company of any notification with
respect to the suspension of the qualification or exemption from
qualification of a Registration Statement or any of the Registrable
Preferred Stock or the Exchange Preferred Stock to be sold by any
Participating Broker-Dealer for offer or sale in any jurisdiction, or
the initiation or threatening of any proceeding for such purpose,
(v) of the happening of any event, the existence of any condition or
any information becoming known that makes any statement made in such
Registration Statement or related Prospectus or any document
incorporated or deemed to be incorporated therein by reference untrue
in any material respect or that requires the making of any changes in
or amendments or supplements to such Registration Statement,
Prospectus or documents so that, in the case of the Registration
Statement, it will not contain any untrue statement of a material fact
or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, and that in
the case of the Prospectus, it will not contain any untrue statement
of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein, in
--
the light of the circumstances under which they were made, not
misleading and (vi) of the Company's determination that a
post-effective amendment to a Registration Statement would be
appropriate.
(d) If (1) a Shelf Registration is filed pursuant to
Section 3 hereof, or (2) a Prospectus contained in an Exchange
Registration Statement filed pursuant to Section 2 hereof is required
to be delivered under the Securities Act by any Participating
Broker-Dealer who seeks to sell Exchange Preferred Stock during the
Applicable Period, use its reasonable best efforts to prevent the
issuance of any order suspending the effectiveness of a Registration
Statement or of any order preventing or suspending the use of a
Prospectus or suspending the qualification (or exemption from
qualification) of any of the Registrable Preferred Stock or the
Exchange Preferred Stock to be sold by any Participating
Broker-Dealer, for sale in any jurisdiction, and, if any such order is
issued, to use its reasonable best efforts to obtain the withdrawal of
any such order at the earliest possible moment.
(e) If a Shelf Registration is filed pursuant to Section 3
and if requested by the managing underwriter or underwriters (if any),
or the Holders of a majority of shares of the Registrable Preferred
Stock being sold in connection with an underwritten offering or any
Participating Broker-Dealer, (i) promptly incorporate in a prospectus
supplement or post-effective amendment such information as the
managing underwriter or underwriters (if any), such Holders, any
Participating Broker-Dealer or counsel for any of them determine is
reasonably necessary to be included therein, (ii) make all required
filings of such prospectus supplement or such post-effective amendment
as soon as practicable after the Company has received notification of
the matters to be incorporated in such prospectus supplement or
post-effective amendment and (iii) supplement or make amendments to
such Registration Statement.
(f) If (1) a Shelf Registration is filed pursuant to
Section 3 hereof, or (2) a Prospectus contained in an Exchange
Registration Statement filed pursuant to Section 2 hereof is required
to be delivered under the Securities Act by any Participating
Broker-Dealer who seeks to sell Exchange Preferred Stock during the
Applicable Period, furnish to each selling Holder of Registrable
Preferred Stock and to each such Participating Broker-Dealer who so
requests and to counsel and each managing underwriter, if any, at the
sole expense of the Company, one conformed copy of the Registration
Statement or
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Registration Statements and each post-effective amendment thereto,
including financial statements and schedules, and, if requested, all
documents incorporated or deemed to be incorporated therein by
reference and all exhibits.
(g) If (1) a Shelf Registration is filed pursuant to
Section 3 hereof, or (2) a Prospectus contained in an Exchange
Registration Statement filed pursuant to Section 2 hereof is required
to be delivered under the Securities Act by any Participating
Broker-Dealer who seeks to sell Exchange Preferred Stock during the
Applicable Period, deliver to each selling Holder of Registrable
Preferred Stock, or each such Participating Broker-Dealer, as the case
may be, their respective counsel, and the underwriters, if any, at the
sole expense of the Company, as many copies of the Prospectus
(including each form of preliminary prospectus) and each amendment or
supplement thereto and any documents incorporated by reference therein
as such Persons may reasonably request; and, subject to the last
paragraph of this Section 5, the Company hereby consents to the use of
such Prospectus and each amendment or supplement thereto by each of
the selling Holders of Registrable Preferred Stock or each such
Participating Broker-Dealer, as the case may be, and the underwriters
or agents, if any, and dealers (if any), in connection with the
offering and sale of the Registrable Preferred Stock covered by, or
the sale by Participating Broker-Dealers of the Exchange Preferred
Stock pursuant to, such Prospectus and any amendment or supplement
thereto.
(h) Prior to any public offering of Registrable Preferred
Stock or any delivery of a Prospectus contained in the Exchange
Registration Statement by any Participating Broker-Dealer who seeks to
sell Exchange Preferred Stock during the Applicable Period, to use its
reasonable best efforts to register or qualify, and to cooperate with
the selling Holders of Registrable Preferred Stock or each such
Participating Broker-Dealer, as the case may be, the managing
underwriter or underwriters, if any, and their respective counsel in
connection with the registration or qualification (or exemption from
such registration or qualification) of such Registrable Preferred
Stock for offer and sale under the securities or Blue Sky laws of such
jurisdictions within the United States as any selling Holder,
Participating Broker-Dealer, or the managing underwriter or
underwriters reasonably request; provided, however, that where
-------- -------
Exchange Preferred Stock held by Participating Broker-Dealers or
Registrable Preferred Stock is offered other than through an
underwritten offering, the Company agrees to cause the Company's
counsel to perform Blue Sky investigations and file registrations and
qualifications required to be filed pursuant to this Section
--
5(h); keep each such registration or qualification (or exemption
therefrom) effective during the period such Registration Statement is
required to be kept effective and do any and all other acts or things
reasonably necessary or advisable to enable the disposition in such
jurisdictions of the Exchange Preferred Stock held by Participating
Broker-Dealers or the Registrable Preferred Stock covered by the
applicable Registration Statement; provided, however, that the Company
-------- -------
shall not be required to qualify as a foreign corporation or to
execute a general consent to service of process in any jurisdiction.
(i) If a Shelf Registration is filed pursuant to Section 3
hereof, cooperate with the selling Holders of Registrable Preferred
Stock and the managing underwriter or underwriters, if any, to
facilitate the timely preparation and delivery of certificates
representing shares of Registrable Preferred Stock to be sold, which
certificates shall not bear any restrictive legends and shall be in a
form eligible for deposit with The Depository Trust Company; and
enable such shares of Registrable Preferred Stock to be in such
denominations and registered in such names as the managing underwriter
or underwriters, if any, or Holders may reasonably request.
(j) Use its reasonable best efforts to cause the
Registrable Preferred Stock covered by the Registration Statement to
be registered with or approved by such other governmental agencies or
authorities as may be necessary to enable the seller or sellers
thereof or the underwriter or underwriters, if any, to consummate the
disposition of such Registrable Preferred Stock, except as may be
required solely as a consequence of the nature of such selling
Holder's business, in which case the Company will cooperate in all
reasonable respects with the filing of such Registration Statement and
the granting of such approvals.
(k) If (1) a Shelf Registration is filed pursuant to
Section 3 hereof, or (2) a Prospectus contained in an Exchange
Registration Statement filed pursuant to Section 2 hereof is required
to be delivered under the Securities Act by any Participating
Broker-Dealer who seeks to sell Exchange Preferred Stock during the
Applicable Period, upon the occurrence of any event contemplated by
paragraph 5(c)(v) or 5(c)(vi) hereof, as promptly as practicable
prepare and (subject to Section 5(a) hereof) file with the SEC, at the
sole expense of the Company, a supplement or post-effective amendment
to the Registration Statement or a supplement to the related
Prospectus or any document incorporated or deemed to be incorporated
therein by reference, or file any other required document so that, as
thereafter delivered to the purchasers of the Registrable
--
Preferred Stock being sold thereunder or to the purchasers of the
Exchange Preferred Stock to whom such Prospectus will be delivered by
a Participating Broker-Dealer, any such Prospectus will not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading.
(l) Prior to the effective date of the first Registration
Statement relating to the Registrable Preferred Stock, (i) provide the
Transfer Agent with certificates for the Registrable Preferred Stock
in a form eligible for deposit with The Depository Trust Company and
(ii) provide a CUSIP number for the Registrable Preferred Stock.
(m) In connection with any underwritten offering of
Registrable Preferred Stock pursuant to a Shelf Registration, enter
into an underwriting agreement as is customary in underwritten
offerings of preferred stock similar to the Exchangeable Preferred
Stock and take all such other actions as are reasonably requested by
the managing underwriter or underwriters in order to expedite or
facilitate the registration or the disposition of such Registrable
Preferred Stock and, in such connection, (i) make such representations
and warranties to, and covenants with, the underwriters with respect
to the business of the Company and its subsidiaries (including any
acquired business, properties or entity, if applicable) and the
Registration Statement, Prospectus and documents, if any, incorporated
or deemed to be incorporated by reference therein, in each case, as
are customarily made by issuers to underwriters in underwritten
offerings of preferred stock similar to the Exchangeable Preferred
Stock, and confirm the same in writing if and when requested;
(ii) obtain the written opinion of counsel to the Company and written
updates thereof in form, scope and substance reasonably satisfactory
to the managing underwriter or underwriters, addressed to the
underwriters covering the matters customarily covered in opinions
requested in underwritten offerings of preferred stock similar to the
Exchangeable Preferred Stock and such other matters as may be
reasonably requested by the managing underwriter or underwriters;
(iii) obtain "cold comfort" letters and updates thereof in form, scope
and substance reasonably satisfactory to the managing underwriter or
underwriters from the independent certified public accountants of the
Company (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 and financial
data are, or are required to be, included or incorporated by reference
in the Registration
--
Statement), addressed to each of the underwriters, such letters to be
in customary form and covering matters of the type customarily covered
in "cold comfort" letters in connection with underwritten offerings of
preferred stock similar to the Exchangeable Preferred Stock and such
other matters as reasonably requested by the managing underwriter or
underwriters; and (iv) if an underwriting agreement is entered into,
the same shall contain indemnification provisions and procedures no
less favorable than those set forth in Section 7 hereof (or such other
provisions and procedures acceptable to Holders of a majority in
aggregate principal amount of shares of Registrable Preferred Stock
covered by such Registration Statement and the managing underwriter or
underwriters or agents) with respect to all parties to be indemnified
pursuant to said Section. The above shall be done at each closing
under such underwriting agreement, or as and to the extent required
thereunder.
(n) If (1) a Shelf Registration is filed pursuant to
Section 3 hereof, or (2) a Prospectus contained in an Exchange
Registration Statement filed pursuant to Section 2 hereof is required
to be delivered under the Securities Act by any Participating
Broker-Dealer who seeks to sell Exchange Preferred Stock during the
Applicable Period, make available for inspection by any selling Holder
of such Registrable Preferred Stock being sold, or each such
Participating Broker-Dealer, as the case may be, any underwriter
participating in any such disposition of Registrable Preferred Stock,
if any, and any attorney, accountant or other agent retained by any
such selling Holder or each such Participating Broker-Dealer, as the
case may be, or underwriter (collectively, the "Inspectors"), at the
----------
offices where normally kept, during reasonable business hours, all
financial and other records, pertinent corporate documents and
instruments of the Company and its subsidiaries (collectively, the
"Records") as shall be reasonably necessary to enable them to exercise
-------
any applicable due diligence responsibilities, and cause the officers,
directors and employees of the Company and its subsidiaries to supply
all information reasonably requested by any such Inspector in
connection with such Registration Statement. Records that the Company
determines, in good faith, to be confidential and any Records that it
notifies the Inspectors are confidential shall not be disclosed by the
Inspectors unless (i) the disclosure of such Records is necessary to
avoid or correct a misstatement or omission in such Registration
Statement, (ii) the release of such Records is ordered pursuant to a
subpoena or other order from a court of competent jurisdiction,
(iii) disclosure of such information is, in the opinion of counsel for
any Inspector, necessary or advisable in connection with any action,
claim, suit or
--
proceeding, directly or indirectly, involving or potentially involving
such Inspector and arising out of, based upon, relating to, or
involving this Agreement or any transactions contemplated hereby or
arising hereunder or (iv) the information in such Records has been
made generally available to the public. Each selling Holder of such
Registrable Securities and each such Participating Broker-Dealer will
be required to agree that information obtained by it as a result of
such inspections shall be deemed confidential and shall not be used by
it as the basis for any market transactions in the securities of the
Company unless and until such information is generally available to
the public. Each selling Holder of such Registrable Preferred Stock
and each such Participating Broker-Dealer will be required to further
agree that it will, upon learning that disclosure of such Records is
sought in a court of competent jurisdiction, give notice to the
Company and allow the Company to undertake appropriate action to
prevent disclosure of the Records deemed confidential at the Company's
sole expense.
(o) Comply with all applicable rules and regulations of the
SEC and make generally available to its securityholders earning
statements satisfying the provisions of Section 11(a) of the
Securities Act and Rule 158 thereunder (or any similar rule
promulgated under the Securities Act) no later than 45 days after the
end of any 12-month period (or 90 days after the end of any 12-month
period if such period is a fiscal year) (i) commencing at the end of
any fiscal quarter in which Registrable Preferred Stock is sold to
underwriters in a firm commitment or best efforts underwritten
offering and (ii) if not sold to underwriters in such an offering,
commencing on the first day of the first fiscal quarter of the Company
after the effective date of a Registration Statement, which statements
shall cover said 12-month periods.
(p) If an Exchange Offer or a Private Exchange is to be
consummated, upon delivery of shares of Registrable Preferred Stock by
Holders to the Company (or to such other Person as directed by the
Company) in exchange for shares of Exchange Preferred Stock or Private
Exchange Preferred Stock, as the case may be, the Company shall xxxx,
or cause to be marked, on the certificates representing such shares of
Registrable Preferred Stock that such shares of Registrable Preferred
Stock are being cancelled in exchange for the Exchange Preferred Stock
or the Private Exchange Preferred Stock, as the case may be.
(q) Cooperate with each seller of Registrable Preferred
Stock covered by any Registration Statement and each underwriter, if
any, participating in the disposition of such
--
Registrable Preferred Stock and their respective counsel in connection
with any filings required to be made with the National Association of
Securities Dealers, Inc. (the "NASD").
----
(r) Provide an indenture trustee for the Exchange Indenture
(as defined in the Purchase Agreement) and cause the Exchange
Indenture to be qualified under the TIA not later than the effective
date of the Exchange Offer or the first Registration Statement
relating to the Registrable Preferred Stock; and in connection
therewith, cooperate with the trustee under the Exchange Indenture and
the Holders of the Registrable Preferred Stock to effect such changes
to such indenture as may be required for such indenture to be so
qualified in accordance with the terms of the TIA; and execute, and
use its best efforts to cause such 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 Exchange
Indenture to be so qualified in a timely manner.
(s) Use its reasonable best efforts to cause the
Registrable Preferred Stock covered by a Registration Statement or the
Exchange Preferred Stock, as the case may be, to be rated with the
appropriate rating agencies, if so requested by the Holders of a
majority of shares of Registrable Preferred Stock covered by such
Registration Statement or the Exchange Preferred Stock, as the case
may be, or the managing underwriter or underwriters, if any.
(t) Use its best efforts to take all other steps necessary
or advisable to effect the registration of the Exchange Preferred
Stock and/or Registrable Preferred Stock covered by a Registration
Statement contemplated hereby.
The Company may require each seller of Registrable Preferred
Stock as to which any registration is being effected to furnish to the
Company such information regarding such seller and the distribution of
such Registrable Preferred Stock as the Company may, from time to
time, reasonably request. The Company may exclude from such
registration the Registrable Preferred Stock of any seller who
unreasonably fails to furnish such information within a reasonable
time after receiving such request. Each seller as to which any Shelf
Registration is being effected agrees to furnish promptly to the
Company all information required to be disclosed in order to make the
information previously furnished to the Company by such seller not
materially misleading.
Each Holder of Registrable Preferred Stock and each
--
Participating Broker-Dealer agrees by acquisition of such Registrable
Preferred Stock or Exchange Preferred Stock to be sold by such
Participating Broker-Dealer, as the case may be, that, upon actual
receipt of any notice from the Company of the happening of any event
of the kind described in Section 5(c)(ii), 5(c)(iv), 5(c)(v), or
5(c)(vi) hereof, such Holder will forthwith discontinue disposition of
such Registrable Preferred Stock covered by such Registration
Statement or Prospectus or Exchange Preferred Stock to be sold by such
Holder or Participating Broker-Dealer, as the case may be, until such
Holder's or Participating Broker-Dealer's receipt of the copies of the
supplemented or amended Prospectus contemplated by Section 5(k)
hereof, or until it is advised in writing (the "Advice") by the
------
Company that the use of the applicable Prospectus may be resumed, and
has received copies of any amendments or supplements thereto. In the
event the Company shall give any such notice, each of the
Effectiveness Period and the Applicable Period shall be extended by
the number of days during such periods from and including the date of
the giving of such notice to and including the date when each seller
of Registrable Preferred Stock covered by such Registration Statement
or Exchange Preferred Stock to be sold by such Participating
Broker-Dealer, as the case may be, shall have received (x) the copies
of the supplemented or amended Prospectus contemplated by Section 5(k)
hereof or (y) the Advice.
6. Registration Expenses
---------------------
(a) All fees and expenses incident to the performance of or
compliance with this Agreement by the Company shall be borne by the
Company whether or not the Exchange Offer or a Shelf Registration is
filed or becomes effective, including, without limitation, (i) all
registration and filing fees (including, without limitation, (A) fees
with respect to filings required to be made with the NASD in
connection with an underwritten offering and (B) fees and expenses of
compliance with state securities or Blue Sky laws (including, without
limitation, reasonable fees and disbursements of counsel in connection
with Blue Sky qualifications of the Registrable Preferred Stock or
Exchange Preferred Stock and determination of the eligibility of the
Registrable Preferred Stock or Exchange Preferred Stock for investment
under the laws of such jurisdictions (x) where the holders of
Registrable Preferred Stock are located, in the case of the Exchange
Preferred Stock, or (y) as provided in Section 5(h) hereof, in the
case of Registrable Preferred Stock or Exchange Preferred Stock to be
sold by a Participating Broker-Dealer during the Applicable Period)),
(ii) printing expenses, including, without limitation, expenses of
printing certificates for Registrable Preferred Stock or Exchange
Preferred Stock in a
--
form eligible for deposit with The Depository Trust Company and of
printing prospectuses if the printing of prospectuses is requested by
the managing underwriter or underwriters, if any, by the Holders of a
majority of shares of the Registrable Preferred Stock included in any
Registration Statement or sold by any Participating Broker-Dealer as
the case may be, (iii) messenger, telephone and delivery expenses,
(iv) fees and disbursements of counsel for the Company and fees and
disbursements of special counsel for the sellers of Registrable
Preferred Stock (subject to the provisions of Section 6(b) hereof),
(v) fees and disbursements of all independent certified public
accountants referred to in Section 5(m)(iii) hereof (including,
without limitation, the expenses of any special audit and "cold
comfort" letters required by or incident to such performance),
(vi) rating agency fees, (vii) Securities Act liability insurance, if
the Company desires such insurance, (viii) fees and expenses of all
other Persons retained by the Company, (ix) internal expenses of the
Company (including, without limitation, all salaries and expenses of
officers and employees of the Company performing legal or accounting
duties), (x) the expense of any annual audit, (xi) the fees and
expenses incurred in connection with the listing of the securities to
be registered on any securities exchange, if applicable, and (xii) the
expenses relating to printing, word processing and distributing all
Registration Statements, underwriting agreements, securities sales
agreements, indentures and any other documents necessary in order to
comply with this Agreement.
(b) The Company shall reimburse the Holders of the
Registrable Preferred Stock being registered in a Shelf Registration
for the reasonable fees and disbursements, not to exceed $25,000, of
not more than one counsel (in addition to appropriate local counsel)
chosen by the Holders of a majority of shares of the Registrable
Preferred Stock to be included in such Registration Statement and
other out-of-pocket expenses of such Holders of Registrable Preferred
Stock incurred in connection with the registration and sale of the
Registrable Preferred Stock pursuant to the Exchange Offer.
7. Indemnification
---------------
(a) The Company agrees to indemnify and hold harmless each
Holder of Registrable Preferred Stock and each Participating
Broker-Dealer selling Exchange Preferred Stock during the Applicable
Period, the officers and directors of each such Person, and each
Person, if any, who controls any such Person within the meaning of
either Section 15 of the Securities Act or Section 20 of the Exchange
Act (each, a "Participant"), from and
-----------
--
against any and all losses, claims, damages and liabilities
(including, without limitation, the reasonable legal fees and other
expenses actually incurred in connection with any suit, action or
proceeding or any claim asserted) caused by, arising out of or based
upon any untrue statement or alleged untrue statement of a material
fact contained in any Registration Statement (or any amendment
thereto) or Prospectus (as amended or supplemented if the Company
shall have furnished any amendments or supplements thereto) or any
preliminary prospectus, or caused by, arising out of or based upon any
omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading,
except insofar as such losses, claims, damages or liabilities are
caused by any untrue statement or omission or alleged untrue statement
or omission made in reliance upon and in conformity with information
relating to any Participant furnished to the Company in writing by
such Participant expressly for use therein; provided, however, that
-------- -------
the Company will not be liable if such untrue statement or omission or
alleged untrue statement or omission was contained or made in any
preliminary prospectus and corrected in the Prospectus or any
amendment or supplement thereto and the Prospectus does not contain
any other untrue statement or omission or alleged untrue statement or
omission of a material fact that was the subject matter of the related
proceeding and any such loss, liability, claim, damage or expense
suffered or incurred by the Participants resulted from any action,
claim or suit by any Person who purchased Registrable Preferred Stock
or Exchange Preferred Stock that is the subject thereof from such
Participant and it is established in the related proceeding that such
Participant failed to deliver or provide a copy of the Prospectus (as
amended or supplemented) to such Person with or prior to the
confirmation of the sale of such Registrable Preferred Stock or
Exchange Preferred Stock sold to such Person if required by applicable
law, unless such failure to deliver or provide a copy of the
Prospectus (as amended or supplemented) was a result of noncompliance
by the Company with Section 5 of this Agreement.
(b) Each Participant agrees, severally and not jointly, to
indemnify and hold harmless the Company, its directors and officers
who sign the Registration Statement and each Person who controls the
Company within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act to the same extent as the foregoing
indemnity from the Company to each Participant, but only (i) with
reference to information relating to such Participant furnished to the
Company in writing by such Participant expressly for use in any
--
Registration Statement or Prospectus, any amendment or supplement
thereto, or any preliminary prospectus or (ii) with respect to any
untrue statement or representation made by such Participant in writing
to the Company. The liability of any Participant under this paragraph
shall in no event exceed the proceeds received by such Participant
from sales of Registrable Preferred Stock or Exchange Preferred Stock
giving rise to such obligations.
(c) If any suit, action, proceeding (including any
governmental or regulatory investigation), claim or demand shall be
brought or asserted against any Person in respect of which indemnity
may be sought pursuant to either of the two preceding paragraphs, such
Person (the "Indemnified Person") shall promptly notify the Person
------------------
against whom such indemnity may be sought (the "Indemnifying Person")
-------------------
in writing, and the Indemnifying Person, upon request of the
Indemnified Person, shall retain counsel reasonably satisfactory to
the Indemnified Person to represent the Indemnified Person and any
others the Indemnifying Person may reasonably designate in such
proceeding and shall pay the reasonable fees and expenses actually
incurred by such counsel related to such proceeding; provided,
--------
however, that the failure to so notify the Indemnifying Person shall
-------
not relieve it of any obligation or liability which it may have
hereunder or otherwise (unless and to the extent that it did not
otherwise learn of such action or claim and such omission results in
the forfeiture by the Indemnifying Person of substantial rights and
defenses). In any such proceeding, any Indemnified Person 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 Person unless
(i) the Indemnifying Person and the Indemnified Person shall have
mutually agreed in writing to the contrary, (ii) the Indemnifying
Person has failed to retain counsel reasonably satisfactory to the
Indemnified Person or (iii) the named parties in any such proceeding
(including any impleaded parties) include both the Indemnifying Person
and the Indemnified Person and the Indemnified Person shall have been
advised by counsel that representation of both parties by the same
counsel would be inappropriate under applicable standards of
professional conduct due to differing interests between them. It is
understood that, unless there exists a conflict among Indemnified
Persons, the Indemnifying Person shall not, in connection with any one
such proceeding or separate but substantially similar related
proceeding in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the fees and expenses of
more than one separate firm (in addition to any local counsel) for all
Indemnified Persons, and that all such fees and expenses shall be
reimbursed promptly as they are incurred. Any
--
such separate firm for the Participants and such control Persons of
Participants shall be designated in writing by Participants who sold a
majority of shares of Registrable Preferred Stock and Exchange
Preferred Stock sold by all such Participants and any such separate
firm for the Company, its directors, its officers and such control
Persons of the Company shall be designated in writing by the Company.
The Indemnifying Person shall not be liable for any settlement of any
proceeding effected without its prior written consent (which consent
shall not be unreasonably withheld or delayed), but if settled with
such consent or if there be a final non-appealable judgment for the
plaintiff for which the Indemnified Person is entitled to
indemnification pursuant to this Agreement, the Indemnifying Person
agrees to indemnify and hold harmless each Indemnified Person from and
against any loss or liability by reason of such settlement or
judgment. Notwithstanding the foregoing sentence, if at any time an
Indemnified Person shall have requested an Indemnifying Person to
reimburse the Indemnified Person for reasonable fees and expenses
actually incurred by counsel as contemplated by the third sentence of
this paragraph, the Indemnifying Person agrees that it shall be liable
for any settlement of any proceeding effected without its consent if
(i) such settlement is entered into more than 30 days after receipt by
such Indemnifying Person of the aforesaid request and (ii) such
Indemnifying Person shall not have reimbursed the Indemnified Person
in accordance with such request prior to the date of such settlement;
provided, however, that the Indemnifying Person shall not be liable
-------- -------
for any settlement effected without its consent pursuant to this
sentence if the Indemnifying Person is contesting, in good faith, the
request for reimbursement. No Indemnifying Person shall, without the
prior written consent of the Indemnified Person effect any settlement
or compromise of any pending or threatened proceeding in respect of
which any Indemnified Person is or could have been a party, or
indemnity could have been sought hereunder by such Indemnified Person,
unless such settlement (A) includes an unconditional written release
of such Indemnified Person, in form and substance reasonably
satisfactory to such Indemnified Person, from all liability on claims
that are the subject matter of such proceeding and (B) does not
include any statement as to an admission of fault, culpability or
failure to act by or on behalf of any Indemnified Person.
(d) If the indemnification provided for in the first and
second paragraphs of this Section 7 is for any reason unavailable to,
or insufficient to hold harmless, an Indemnified Person in respect of
any losses, claims, damages or liabilities referred to therein, then
each Indemnifying Person under such paragraphs, in lieu of
indemnifying such Indemnified Person
--
thereunder and in order to provide for just and equitable
contribution, shall contribute to the amount paid or payable by such
Indemnified Person as a result of such losses, claims, damages or
liabilities in such proportion as is appropriate to reflect (i) the
relative benefits received by the Indemnifying Person or Persons on
the one hand and the Indemnified Person or Persons on the other from
the offering of the Exchangeable Preferred Stock or (ii) if the
allocation provided by the foregoing clause (i) is not permitted by
applicable law, not only such relative benefits but also the relative
fault of the Indemnifying Person or Persons on the one hand and the
Indemnified Person or Persons on the other in connection with the
statements or omissions or alleged statements or omissions that
resulted in such losses, claims, damages or liabilities (or actions in
respect thereof) as well as any other relevant equitable
considerations. The relative fault of the parties shall be determined
by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by
the Company on the one hand or such Participant or such other
Indemnified Person, as the case may be, on the other, the parties'
relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission, and any other equitable
considerations appropriate in the circumstances.
(e) The parties agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined
by pro rata allocation (even if the Participants were treated as one
--- ----
entity for such purpose) or by any other method of allocation that
does not take account of the equitable considerations referred to in
the immediately preceding paragraph. The amount paid or payable by an
Indemnified Person as a result of the losses, claims, damages and
liabilities referred to in the immediately preceding paragraph shall
be deemed to include, subject to the limitations set forth above, any
reasonable legal or other expenses actually incurred by such
Indemnified Person in connection with investigating or defending any
such action or claim. Notwithstanding the provisions of this
Section 7, in no event shall a Participant be required to contribute
any amount in excess of the amount by which proceeds received by such
Participant from sales of Registrable Preferred Stock or Exchange
Preferred Stock, as the case may be, exceeds the amount of any damages
that such Participant has otherwise been required to pay or has paid
by reason of such untrue or alleged untrue statement or omission or
alleged omission. No Person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be
entitled to
--
contribution from any Person who was not guilty of such fraudulent
misrepresentation.
(f) The indemnity and contribution agreements contained in
this Section 7 will be in addition to any liability which the
Indemnifying Persons may otherwise have to the Indemnified Persons
referred to above.
8. Rules 144 and 144A
------------------
The Company covenants that it will file the reports required
to be filed by it under the Securities Act and the Exchange Act and
the rules and regulations adopted by the SEC thereunder in a timely
manner in accordance with the requirements of the Securities Act and
the Exchange Act and, if at any time the Company is not required to
file such reports, it will, upon the request of any Holder of
Registrable Preferred Stock, make publicly available annual reports
and such information, documents and other reports of the type
specified in Sections 13 and 15(d) of the Exchange Act. The Company
further covenants for so long as any Registrable Preferred Stock
remains outstanding, to make available to any Holder or beneficial
owner of Registrable Preferred Stock in connection with any sale
thereof and any prospective purchaser of such Registrable Preferred
Stock from such Holder or beneficial owner, the information required
by Rule 144A(d)(4) under the Securities Act in order to permit resales
of such Registrable Preferred Stock pursuant to Rule 144A.
9. Underwritten Registrations
--------------------------
If any of the Registrable Preferred Stock covered by any
Shelf Registration is to be sold in an underwritten offering, the
investment banker or investment bankers and manager or managers that
will manage the offering will be selected by the Holders of a majority
of shares of such Registrable Preferred Stock included in such
offering and reasonably acceptable to the Company.
No Holder of Registrable Preferred Stock may participate in
any underwritten registration hereunder unless such Holder (a) agrees
to sell such Holder's Registrable Preferred Stock on the basis
provided in any underwriting arrangements approved by the Persons
entitled hereunder to approve such arrangements and (b) completes and
executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents required under the terms
of such underwriting arrangements.
--
10. Registration of Transfers and Exchanges
---------------------------------------
(a) Transfer and Exchange of Certificated Shares. When
--------------------------------------------
shares of Exchangeable Preferred Stock or Private Exchange Preferred
Stock that are represented by definitive certificates ("Certificated
Shares") are presented to the Transfer Agent with a request:
(i) to register the transfer of the Certificated Shares;
or
(ii) to exchange such Certificated Shares for an equal
number of Certificated Shares,
the Holders hereby acknowledge that the Transfer Agent shall register
the transfer or make the exchange as requested if the requirements
under this Section 10(a) hereof for such transactions are met;
provided, however, that the Certificated Shares presented or
-------- -------
surrendered for registration of transfer or exchange:
(x) shall be duly endorsed or accompanied by a written
instruction of transfer in form satisfactory to the
Company and the Transfer Agent, duly executed by the
holder thereof or by his attorney, duly authorized
in writing; and
(y) in the case of Registrable Preferred Stock, such
shares of Exchangeable Preferred Stock or Private
Exchange Preferred Stock be accompanied by the
following additional information and documents, as
applicable:
(A) if such shares are being delivered to the
Transfer Agent by a Holder for registration in
the name of such Holder, without transfer, a
certification from such Holder to that effect
(in substantially the form of Exhibit A
---------
hereto); or
(B) if such shares are being transferred to a
qualified institutional buyer (as defined in
Rule 144A under the Securities Act, a "QIB") in
---
accordance with Rule 144A under the Securities
Act or pursuant to an exemption from
registration in accordance
--
with Rule 144 or Regulation S under the
Securities Act, a certification to that effect
(in substantially the form of Exhibit A
---------
hereto); or
(C) if such shares are being transferred to an
institutional "accredited investor" within the
meaning of subparagraph (a)(1), (a)(2), (a)(3)
or (a)(7) of Rule 501 under the Securities Act,
delivery of a Certificate of Transfer in the
form of Exhibit B hereto and an opinion of
---------
counsel and/or other information satisfactory
to the Company to the effect that such transfer
is in compliance with the Securities Act; or
(D) if such shares are being transferred in
reliance on another exemption from the
registration requirements of the Securities
Act, a certification to that effect (in
substantially the form of Exhibit A hereto) and
---------
an opinion of counsel reasonably acceptable to
the Company to the effect that such transfer is
in compliance with the Securities Act.
(b) Restrictions on Transfer of Certificated Shares for
---------------------------------------------------
a Beneficial Interest in Global Shares. Certificated Shares may not
--------------------------------------
be exchanged for a beneficial interest in one or more global
certificates representing all shares of Exchangeable Preferred Stock
or Private Exchange Preferred Stock held by the Depositary (the
"Global Certificates") except upon satisfaction of the requirements
set forth below. Upon receipt by the Transfer Agent of Certificated
Shares, duly endorsed or accompanied by appropriate instruments of
transfer, in form satisfactory to the Transfer Agent, together with:
(A) certification, substantially in the form of
Exhibit A hereto, that such Certificated Shares
---------
are being transferred to a QIB in accordance
with Rule 144A under the Securities Act; and
(B) written instructions directing the Transfer
Agent to make, or to direct the Depositary to
make, an endorsement on the Global Certificate
to reflect an increase
--
in the aggregate number of shares of
Exchangeable Preferred Stock or Private
Exchange Preferred Stock represented by the
Global Certificate,
then the Transfer Agent shall cancel the certificate representing such
Certificated Shares and cause, or direct the Depositary to cause, in
accordance with the standing instructions and procedures existing
between the Depositary and the Transfer Agent, the number of shares of
Exchangeable Preferred Stock or Private Exchange Preferred Stock
represented by the Global Certificates to be increased accordingly.
If no Global Certificate is then outstanding, the Company shall issue
and the Transfer Agent shall authenticate a new Global Certificate in
the appropriate amount.
(c) Transfer and Exchange of Global Certificates. The
--------------------------------------------
transfer and exchange of Global Certificates or beneficial interests
therein shall be effected through the Depositary, in accordance with
the procedures of the Depositary therefor.
(d) Transfer of a Beneficial Interest in a Global
---------------------------------------------
Certificate for Certificated Shares.
-----------------------------------
(i) Any person having a beneficial interest in a Global
Certificate may upon request exchange such
beneficial interest for Certificated Shares. Upon
receipt by the Transfer Agent of written
instructions or such other form of instructions as
is customary for the Depositary from the Depositary
or its nominee on behalf of any person having a
beneficial interest in a Global Certificate and upon
receipt by the Transfer Agent of a written order or
such other form of instructions as is customary for
the Depositary or the person designated by the
Depositary as having such a beneficial interest
containing registration instructions and, in the
case of any such transfer or exchange of Registrable
Preferred Stock, the following additional
information and documents:
(A) if such beneficial interest is being
transferred to the person designated by the
Depositary as being the beneficial owner, a
certification from such person to that effect
(in substantially the form of Exhibit A
---------
hereto); or
--
(B) if such beneficial interest is being
transferred to a QIB in accordance with Rule
144A under the Securities Act or pursuant to an
exemption from registration in accordance with
Rule 144 or Regulation S under the Securities
Act, a certification to that effect (in
substantially the form of Exhibit A hereto); or
---------
(C) if such beneficial interest is being
transferred to an institutional "accredited
investor" within the meaning of subparagraphs
(a)(1), (a)(2), (a)(3) or (a)(7) of Rule 501
under the Securities Act, delivery of a
Certificate of Transfer in the form of Exhibit
-------
B hereto and an opinion of counsel and/or other
-
information satisfactory to the Company to the
effect that such transfer is in compliance with
the Securities Act; or
(D) if such beneficial interest is being
transferred in reliance on another exemption
from the registration requirements of the
Securities Act, a certification to that effect
(in substantially the form of Exhibit A hereto)
---------
and an opinion of counsel from the transferee
or transferor reasonably acceptable to the
Company to the effect that such transfer is in
compliance with the Securities Act,
then the Transfer Agent will cause, in accordance with
the standing instructions and procedures existing between
the Depositary and the Transfer Agent, the aggregate
number of shares of Exchangeable Preferred Stock or
Private Exchange Preferred Stock represented by the
Global Certificates to be reduced and, following such
reduction, the Company will execute and, upon receipt of
an authentication order in the form of an Officers'
Certificate, the Transfer Agent will authenticate and
deliver to the transferee a certificate representing such
Certificated Shares.
(ii) Certificated Shares issued in exchange for a
--
beneficial interest in a Global Certificate pursuant
to this Section 10(d) shall be registered in such
names and for such number of shares of Exchangeable
Preferred Stock or Private Exchange Preferred Stock
as the Depositary, pursuant to instructions from its
direct or indirect participants or otherwise, shall
instruct the Transfer Agent in writing. The
Transfer Agent shall deliver such Certificated
Shares to the persons in whose names such shares of
Exchangeable Preferred Stock or Private Exchange
Preferred Stock are so registered.
(e) Restrictions on Transfer and Exchange of Global
-----------------------------------------------
Certificates. A Global Certificate may not be transferred as a whole
------------
except by the Depositary to a nominee of the Depositary or by a
nominee of the Depositary to the Depositary or another nominee of the
Depositary or by the Depositary or any such nominee to a successor
Depositary or a nominee of such successor Depositary.
(f) Authentication of Certificated Shares in Absence of
------------------------------------------------ --
Depositary. If at any time:
----------
(i) the Depositary for the shares of Exchangeable
Preferred Stock or Private Exchange Preferred Stock
notifies the Company that the Depositary is
unwilling or unable to continue as Depositary for
the Global Certificates and a successor Depositary
for the Global Certificates is not appointed by the
Company within 90 days after delivery of such
notice; or
(ii) the Company, at its sole discretion, notifies the
Transfer Agent in writing that it elects to cause
the issuance of Certificated Shares,
then the Company will execute, and the Transfer Agent, upon receipt of
an Officers' Certificate requesting the authentication and delivery of
Certificated Shares, will authenticate and deliver certificates
representing Certificated Shares, in an aggregate number equal to the
aggregate number of certificates representing Certificated Shares
represented by the Global Certificates, in exchange for such Global
Certificates.
(g) Legends.
-------
--
(i) Except as permitted by the following paragraph (ii),
each Global Certificate and each certificate
representing Certificated Shares shall bear a legend
substantially in the form attached hereto as
Exhibit C.
(ii) Upon the shares of Private Exchange Preferred Stock
ceasing to be Registrable Preferred Stock:
(A) in the case of any certificate that represents
Certificated Shares, the Transfer Agent shall
permit the holder thereof to exchange such
certificate for a certificate representing such
Certificated Shares that does not bear the
first paragraph of the legend referred to above
and rescind any related restriction on the
transfer; and
(B) any such shares represented by a Global
Certificate shall not be subject to the
provisions set forth in (i) above (such sales
or transfers being subject only to the
provisions of Section 10(c) hereof).
(h) Cancellation and/or Adjustment of a Global
------------------------------------------
Certificate. At such time as all beneficial interests in a Global
-----------
Certificate have either been exchanged for certificates representing
Certificated Shares, redeemed, repurchased or cancelled, such Global
Certificates shall be returned to or retained and cancelled by the
Transfer Agent. At any time prior to such cancellation, if any
beneficial interest in a Global Certificate is exchanged for
certificates representing Certificated Shares, redeemed, repurchased
or cancelled, the number of shares represented by such Global
Certificates shall be reduced and an endorsement shall be made on such
Global Certificates, by the Transfer Agent to reflect such reduction.
(i) Obligations with Respect to Transfers and Exchanges
---------------------------------------------------
of Certificated Shares.
----------------------
(i) To permit registrations of transfers and exchanges,
the Company shall execute, at the Transfer Agent's
request, and the Transfer Agent shall authenticate
certificates representing Certificated Shares and
Global Certificates.
--
(ii) All certificates representing Certificated Shares
and Global Certificates issued upon any
registration, transfer or exchange of certificates
representing Certificated Shares or Global
Certificates shall be the valid obligations of the
Company, entitled to the same benefits as the shares
surrendered upon the registration of transfer or
exchange.
(iii) Prior to due presentment for registration of
transfer of any shares of Registrable Preferred
Stock, the Transfer Agent and the Company may deem
and treat the person in whose name any such shares
are registered as the absolute owner of such shares,
and neither the Transfer Agent nor the Company shall
be affected by notice to the contrary.
11. Miscellaneous
-------------
(a) No Inconsistent Agreements. The Company has not, as
--------------------------
of the date hereof, and the Company shall not, after the date of this
Agreement, enter into any agreement with respect to any of its
securities that is inconsistent with the rights granted to the Holders
of Registrable Preferred Stock in this Agreement or otherwise
conflicts with the provisions hereof. The Company has not entered and
will not enter into any agreement with respect to any of its
securities that will grant to any Person piggy-back registration
rights with respect to a Registration Statement.
(b) Adjustments Affecting Registrable Preferred Stock.
-------------------------------------------------
The Company shall not, directly or indirectly, take any action with
respect to the Registrable Preferred Stock as a class that would
adversely affect the ability of the Holders of Registrable Preferred
Stock to include such Registrable Preferred Stock in a registration
undertaken pursuant to this Agreement.
(c) Amendments and Waivers. The provisions of this
----------------------
Agreement may not be amended, modified or supplemented, and waivers or
consents to departures from the provisions hereof may not be given,
otherwise than with the prior written consent of (A) the Holders of
not less than a majority of shares of the then outstanding Registrable
Preferred Stock and (B) in circumstances that would adversely affect
the Participating Broker-Dealers, the Participating Broker-Dealers
holding not less than a majority of shares of the Exchange Preferred
Stock held by all Participating Broker-Dealers; provided, however,
-------- -------
that Section 7 and this
--
Section 11(c) may not be amended, modified or supplemented without the
prior written consent of each Holder and each Participating
Broker-Dealer (including any person who was a Holder or Participating
Broker-Dealer of Registrable Preferred Stock or Exchange Preferred
Stock, as the case may be, disposed of pursuant to any Registration
Statement). Notwithstanding the foregoing, a waiver or consent to
depart from the provisions hereof with respect to a matter that
relates exclusively to the rights of Holders of Registrable Preferred
Stock whose securities are being sold pursuant to a Registration
Statement and that does not directly or indirectly affect, impair,
limit or compromise the rights of other Holders of Registrable
Preferred Stock may be given by Holders of at least a majority of
shares of the Registrable Preferred Stock being sold by such Holders
pursuant to such Registration Statement; provided, however, that the
-------- -------
provisions of this sentence may not be amended, modified or
supplemented except in accordance with the provisions of the
immediately preceding sentence.
(d) Notices. All notices and other communications
-------
provided for or permitted hereunder shall be made in writing by hand-
delivery, registered first-class mail, next-day air courier or
facsimile:
1. if to a Holder of the Registrable Preferred
Stock or any Participating Broker-Dealer, at the most current address
of such Holder or Participating Broker-Dealer, as the case may be, on
the stock books of the Company with a copy in like manner to the
Initial Purchasers as follows:
BT SECURITIES CORPORATION
CREDIT SUISSE FIRST BOSTON CORPORATION
XXXXXXX, XXXXX & CO.
NATIONSBANC CAPITAL MARKETS, INC.
XXXXX XXXXXX INC.
c/o BT Securities Corporation
Bankers Trust Plaza
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No: (000) 000-0000
Attention: Corporate Finance
Department
with a copy to:
Xxxxxx Xxxxxx & Xxxxxxx
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
--
Facsimile No: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxxx, Esq.
2. if to the Initial Purchasers, at the addresses
specified in Section 11(d)(1);
3. if to the Company, at the addresses as follows:
Chancellor Radio Broadcasting Company
00000 Xxxxx Xxxxxxx Xxxxxxxxxx
Xxxxx 000
Xxxxxx, Xxxxx 00000
Facsimile No: (000) 000-0000
Attention: Xxxxxxx Xxxxxxx
with copies to:
Weil, Gotshal & Xxxxxx LLP
000 Xxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000-0000
Facsimile No: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx, Esq.
All such notices and communications shall be deemed to
have been duly given: when delivered by hand, if personally
delivered; five business days after being deposited in the mail,
postage prepaid, if mailed; one business day after being timely
delivered to a next-day air courier; and when receipt is acknowledged
by the addressee, if sent by facsimile.
(e) Successors and Assigns. This Agreement shall inure
----------------------
to the benefit of and be binding upon the successors and assigns of
each of the parties hereto, including the Holders; provided, however,
-------- -------
that this Agreement shall not inure to the benefit of or be binding
upon a successor or assign of a Holder unless and to the extent such
successor or assign holds Registrable Preferred Stock.
(f) Counterparts. This Agreement may be executed in any
------------
number of counterparts and by the parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the
same agreement.
(g) Headings. The headings in this Agreement are for
--------
convenience of reference only and shall not limit or
--
otherwise affect the meaning hereof.
(h) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY
-------------
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS
APPLIED TO CONTRACTS MADE AND PERFORMED WHOLLY WITHIN THE STATE OF NEW
YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
(i) Severability. If any term, provision, covenant or
------------
restriction of this Agreement is held by a court of competent
jurisdiction to be invalid, illegal, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions set
forth herein shall remain in full force and effect and shall in no way
be affected, impaired or invalidated, and the parties hereto shall use
their best efforts to find and employ an alternative means to achieve
the same or substantially the same result as that contemplated by such
term, provision, covenant or restriction. It is hereby stipulated and
declared to be the intention of the parties that they would have
executed the remaining terms, provisions, covenants and restrictions
without including any of such that may be hereafter declared invalid,
illegal, void or unenforceable.
(j) Securities Held by the Company or Its Affiliates.
------------------------------------------------
Whenever the consent or approval of Holders of a specified percentage
of shares of Registrable Preferred Stock is required hereunder, shares
of Registrable Preferred Stock held by the Company or its affiliates
(as such term is defined in Rule 405 under the Securities Act) shall
not be counted in determining whether such consent or approval was
given by the Holders of such required percentage.
(k) Third Party Beneficiaries. Holders of Registrable
-------------------------
Preferred Stock and Participating Broker-Dealers are intended third
party beneficiaries of this Agreement and this Agreement may be
enforced by such Persons.
(l) Entire Agreement. This Agreement, together with
----------------
the Purchase Agreement and the Certificate of Designation, is intended
by the parties as a final and exclusive statement of the agreement and
understanding of the parties hereto in respect of the subject matter
contained herein and therein and any and all prior oral or written
agreements, representations, or warranties, contracts, understandings,
correspondence, conversations and memoranda between the Initial
Purchasers on the one hand and the Company on the other, or between or
among any agents, representatives, parents, subsidiaries, affiliates,
predecessors in interest or successors in interest with respect
to the subject matter hereof and thereof are merged herein and
replaced hereby.
IN WITNESS WHEREOF, the parties have executed this
Agreement as of the date first written above.
CHANCELLOR RADIO BROADCASTING COMPANY
By: /s/ XXXXXX XXXXXX
----------------------------------
Name: Xxxxxx Xxxxxx
Title: President and Chief
Financial Officer
BT SECURITIES CORPORATION
By: /s/ AUTHORIZED SIGNATORY OF
BT SECURITIES CORPORATION
----------------------------------------
CREDIT SUISSE FIRST BOSTON CORPORATION
By: /s/ AUTHORIZED SIGNATORY OF
CREDIT SUISSE FIRST BOSTON CORPORATION
----------------------------------------
XXXXXXX, XXXXX & CO.
By: /s/ AUTHORIZED SIGNATORY OF
XXXXXXX, SACHS & CO.
----------------------------------------
NATIONSBANC CAPITAL MARKETS, INC.
By: /s/ AUTHORIZED SIGNATORY OF
NATIONSBANC CAPITAL MARKETS, INC.
----------------------------------------
XXXXX XXXXXX INC.
By: /s/ AUTHORIZED SIGNATORY OF
XXXXX XXXXXX INC.
---------------------------------------------
EXHIBIT A
CERTIFICATE TO BE DELIVERED UPON EXCHANGE
OR REGISTRATION OF TRANSFER OF REGISTRABLE PREFERRED STOCK
Re: Shares of Exchangeable Preferred Stock
and/or Private Exchangeable Preferred Stock
(the "Shares") of Chancellor Radio Broadcasting
Company
This Certificate relates to ____ Shares held in* ___
book-entry or* _______ certificated form by ______ (the "Transferor").
The Transferor:*
__
--
/ / has requested the Transfer Agent by written order to
--
deliver in exchange for its beneficial interest in the Global
Certificate held by the Depositary one or more certificates in
definitive, registered form an aggregate number equal to its
beneficial interest in such Global Certificate (or the portion thereof
indicated above); or
__
--
/ / has requested the Transfer Agent by written order to
--
exchange or register the transfer of one or more certificates
representing Shares.
In connection with such request and in respect of each
such Share, the Transferor does hereby certify that Transferor is
familiar with the Registration Rights Agreement relating to the above
captioned Shares and the restrictions on transfers thereof as provided
in Section 10 of such Registration Rights Agreement, and that the
transfer of these Shares does not require registration under the
Securities Act of 1933, as amended (the "Securities Act") because*:
__
--
/ / Such Shares are being acquired for the Transferor's own
--
account, without transfer (in satisfaction of Section 10 (a)(y)(A) or
Section 10(d)(i)(A) of the Registration Rights Agreement).
__
--
/ / Such Shares are being transferred to a qualified
--
institutional buyer (as defined in Rule 144A under the Securities
Act), in reliance on Rule 144A or in accordance with Regulation S
under the Securities Act.
__
--
/ / Such Shares are being transferred in accordance with Rule
--
144 under the Securities Act.
__
--
/ / Such Shares are being transferred in reliance on and in
--
compliance with an exemption from the registration requirements of the
Securities Act, other than Rule 144A or Rule 144 or Regulation S under
the Securities Act. An opinion of counsel to the effect that such
transfer does not require registration under the Securities Act
accompanies this Certificate.
______________________________
[INSERT NAME OF TRANSFEROR]
By: _________________________
Date: _____________
*Check applicable box.
EXHIBIT B
Certificate of Transfer
Chancellor Radio Broadcasting Company
00000 Xxxxxxx Xxxxxxxxxx
Xxxxx 000
Xxxxxx, Xxxxx 00000
Ladies and Gentlemen:
In connection with our proposed purchase of shares of
Exchangeable Preferred Stock or Private Exchange Preferred Stock, each
par value $.01 per share (the "Securities"), of Chancellor Radio
Broadcasting Company (the "Company"), we confirm that:
1. We understand that the Securities have not been
registered under the Securities Act of 1933, as amended (the
"Securities Act") and, unless so registered, may not be sold except
as permitted in the following sentence. We agree on our own behalf
and on behalf of any investor account for which we are purchasing
Securities to offer, sell or otherwise transfer such Securities while
they are Registrable Preferred Stock within the meaning of the
Registration Rights Agreement to which this certificate is an exhibit
only (a) to the Company or any of its subsidiaries, (b) pursuant to a
registration statement which has been declared effective under the
Securities Act, (c) so long as the Securities are eligible for resale
pursuant to Rule 144A, under the Securities Act, to a person we
reasonably believe is a "qualified institutional buyer" under
Rule 144A (a "QIB") that purchases for its own account or for the
account of a QIB and to whom notice is given that the transfer is
being made in reliance on Rule 144A, (d) pursuant to offers and sales
that occur outside the United States within the meaning of
Regulation S under the Securities Act, (e) to an institutional
"accredited investor" within the meaning of subparagraphs (a)(1), (2),
(3) or (7) of Rule 501 under the Securities Act that is purchasing for
his own account or for the account of such an institutional
"accredited investor," or (f) pursuant to any other available
exemption from the registration requirements of the Securities Act,
subject in each of the foregoing cases to any requirement of law that
the disposition of our property or the property of such investor
account or accounts be at all times within our or their control and
to compliance with any applicable state securities laws. The
foregoing restrictions on resale will not apply after the
Securities are no longer Registrable Preferred Stock. We understand
that the Securities purchased by us will bear a legend to the
foregoing effect.
2. We are an institutional "accredited investor" (as
defined in Rule 501(a)(1), (2), (3) or (7) of Regulation D under the
Securities Act) and we are acquiring the Securities for investment
purposes and not with a view to, or for offer or sale in connection
with, any distribution in violation of the Securities Act and we have
such knowledge and experience in financial and business matters as to
be capable of evaluating the merits and risks of our investment in the
Securities, and we and any accounts for which we are acting are each
able to bear the economic risk of our or its investment for an
indefinite period.
3. We are acquiring the Securities purchased by us for
our own account or for one or more accounts (each of which is an
institutional "accredited investor") as to each of which we exercise
sole investment discretion.
4. You and your counsel are entitled to rely upon this
letter and you are irrevocably authorized to produce this letter or a
copy hereof to any interested party in any administrative or legal
proceeding or official inquiry with respect to the matters covered
hereby.
Very truly yours,
---------------------------
(Name of Purchaser)
By:
------------------------
Date:
----------------------
Upon transfer the Securities would be registered in the
name of the new beneficial owner as follows:
Name:______________________________
Address:___________________________
Taxpayer ID Number:________________
EXHIBIT C
[LEGENDS]
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE
OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR
BENEFIT OF, U.S. PERSONS EXCEPT AS SET FORTH BELOW. BY ITS
ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT (A) IT IS A
"QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT) OR (B) IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR"
(AS DEFINED IN RULE 501 (A)(1), (2), (3) OR (7) UNDER THE SECURITIES
ACT) (AN "ACCREDITED INVESTOR") OR (C) IT IS NOT A U.S. PERSON AND IS
ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION, (2) AGREES THAT IT
WILL NOT WITHIN THREE YEARS AFTER THE ORIGINAL ISSUANCE OF THIS
SECURITY RESELL OR OTHERWISE TRANSFER THIS SECURITY EXCEPT (A) TO
CHANCELLOR RADIO BROADCASTING COMPANY (THE "COMPANY") OR ANY
SUBSIDIARY THEREOF, (B) INSIDE THE UNITED STATES TO A QUALIFIED
INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES
ACT, (C) INSIDE THE UNITED STATES TO AN INSTITUTIONAL ACCREDITED
INVESTOR THAT, PRIOR TO SUCH TRANSFER, FURNISHES (OR HAS HAD FURNISHED
ON ITS BEHALF BY A U.S. BROKER-DEALER) TO THE TRANSFER AGENT A SIGNED
LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO
THE RESTRICTIONS ON TRANSFER OF THIS SECURITY (THE FORM OF WHICH
LETTER CAN BE OBTAINED FROM THE TRANSFER AGENT), (D) OUTSIDE THE
UNITED STATES IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904
UNDER THE SECURITIES ACT, (E) PURSUANT TO THE EXEMPTION FROM
REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF
AVAILABLE) OR (F) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT AND (3) AGREES THAT IT WILL GIVE TO EACH
PERSON TO WHOM THIS SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO
THE EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY TRANSFER OF THIS
SECURITY WITHIN THREE YEARS AFTER THE ORIGINAL ISSUANCE OF THIS
SECURITY, IF THE PROPOSED TRANSFEREE IS AN ACCREDITED INVESTOR, THE
HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE TRANSFER AGENT AND
THE COMPANY SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION
AS EITHER OF THEM MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER
IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT
SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. AS
USED HEREIN, THE TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND
"U.S. PERSON" HAVE THE MEANING GIVEN TO THEM BY REGULATION S UNDER THE
SECURITIES ACT.
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE THE BENEFITS OF A
REGISTRATION RIGHTS AGREEMENT DATED AS OF JANUARY [ ], 1997
AMONG THE COMPANY, BT SECURITIES CORPORATION, CREDIT SUISSE FIRST
BOSTON CORPORATION, XXXXXXX, XXXXX & CO., NATIONSBANC CAPITAL MARKETS,
INC. AND XXXXX XXXXXX INC., A COPY OF WHICH IS ON FILE WITH THE
SECRETARY OF THE COMPANY. NO TRANSFER, SALE, ASSIGNMENT, PLEDGE,
HYPOTHECATION OR OTHER DISPOSITION OF THE SECURITIES REPRESENTED BY
THIS CERTIFICATE MAY BE MADE EXCEPT IN ACCORDANCE WITH THE PROVISIONS
OF SUCH REGISTRATION RIGHTS AGREEMENT.
[THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE
REGISTRATION RIGHTS AGREEMENT AND IS REGISTERED IN THE NAME OF A
DEPOSITORY OR A NOMINEE OF A DEPOSITORY OR A SUCCESSOR DEPOSITORY.
THIS SECURITY IS NOT EXCHANGEABLE FOR SECURITIES REGISTERED IN THE
NAME OF A PERSON OTHER THAN THE DEPOSITORY OR ITS NOMINEE EXCEPT IN
THE LIMITED CIRCUMSTANCES DESCRIBED IN THE REGISTRATION RIGHTS
AGREEMENT, AND NO TRANSFER OF THIS SECURITY (OTHER THAN A TRANSFER OF
THIS SECURITY AS A WHOLE BY THE DEPOSITORY TO A NOMINEE OF THE
DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY OR
ANOTHER NOMINEE OF THE DEPOSITORY) MAY BE REGISTERED EXCEPT IN THE
LIMITED CIRCUMSTANCES DESCRIBED IN THE REGISTRATION RIGHTS AGREEMENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO
THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE
& CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE
BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
This paragraph is to be included only if the
certificate is in global form.
