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EXHIBIT 4.13
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REGISTRATION RIGHTS AGREEMENT
BETWEEN
SPANISH BROADCASTING SYSTEM, INC.
AND
THE HOLDERS NAMED HEREIN
DATED AS OF NOVEMBER 9, 2000
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TABLE OF CONTENTS
Page
Section 1. Definitions............................................... 1
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Section 2. Required Registration......................................3
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Section 3. Piggyback Registration.....................................4
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Section 4. Holdback Agreement.........................................5
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Section 5. Preparation and Filing.....................................5
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Section 6. Expenses...................................................8
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Section 7. Indemnification............................................8
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Section 8. Information by Holder.....................................11
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Section 9. Exchange Act Compliance...................................11
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Section 10. Mergers, Etc..............................................11
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Section 11. New Certificates..........................................11
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Section 12. Termination...............................................11
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Section 13. Successors and Assigns....................................12
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Section 14. Assignment................................................12
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Section 15. Severability..............................................12
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Section 16. Entire Agreement..........................................12
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Section 17. Notices...................................................12
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Section 18. Modifications; Amendments; Waivers........................14
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Section 19. Counterparts; Facsimile Signatures........................14
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Section 20. Headings..................................................14
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Section 21. Governing Law ............................................14
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Section 22. Jurisdiction and Venue....................................14
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Section 23. Waiver of Jury Trial .....................................15
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Section 24. Lock-Up Agreements........................................15
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REGISTRATION RIGHTS AGREEMENT, dated as of November 9, 2000,
between Spanish Broadcasting System, Inc., a Delaware corporation (together with
any successors, the "Corporation"), and each of the Holders (as defined below)
of Registrable Shares (as defined below). The identity of each of the Holders
and the number of Registrable Shares owned thereby are set forth on Annex I
hereto.
The Holders have or are entitled to receive record ownership of
shares of Common Stock (as defined below) in connection with the Purchase
Agreements and/or the Release and Termination Agreement (each as defined below).
The Corporation and each of the Holders deem it to be in their respective best
interests to set forth the rights of the Holders in connection with public
offerings and sales of Registrable Shares and are entering into this Agreement
as a condition to or in connection with the Purchase Agreements (each as defined
below).
NOW, THEREFORE, in consideration of the premises and mutual
covenants and obligations hereinafter set forth, the Corporation and each of the
Holders hereby agree as follows:
SECTION 1. DEFINITIONS.
As used in this Agreement, the following terms shall have the
following meanings:
(a) "Affiliate" means, with respect to any Person (1) any
director, officer or stockholder holding 5% or more of the capital stock (on a
fully diluted basis) of such Person, (2) any spouse, parent, sibling or
descendant of such Person (or a spouse, parent, sibling or descendant of any
director or officer of such Person) and (3) any other Person that, directly or
indirectly through one or more intermediaries, controls, or is controlled by,
or is under common control with, such Person. The term "control" includes,
without limitation, the possession, directly or indirectly, of the power to
direct the management and policies of a Person, whether through the ownership
of voting securities, by contract or otherwise.
(b) "Asset Purchase Agreement" shall mean the Asset Purchase
Agreement, dated as of May 8, 2000, by and between the Corporation and New
World Broadcasters Corp. ("New World").
(c) "Commission" shall mean the Securities and Exchange
Commission or any other Federal agency at the time administering the
Securities Act.
(d) "Common Stock" shall mean any shares of Class A common
stock, par value $.0001 per share, of the Corporation.
(e) "Exchange Act" shall mean the Securities Exchange Act of
1934 or any successor Federal statute, and the rules and regulations of the
Commission promulgated thereunder, all as the same shall be amended and in
effect from time to time.
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(f) "Holders" shall mean each of the registered holders of
"Purchaser Shares", as such term is defined in and as such Holders have
received such Purchaser Shares under or in connection with any of the Purchase
Agreements.
(g) "Holder Joinder" means a joinder agreement,
substantially in the form of EXHIBIT A hereto, by which a Holder or its
permitted transferee may become a Holder after the date hereof.
(h) "Holders' Counsel" has the meaning ascribed thereto in
Section 5(b).
(i) "Information" has the meaning ascribed thereto in
Section 5(h).
(j) "Inspectors" has the meaning ascribed thereto in Section
5(h).
(k) "Material Transaction" means any material transaction in
which the Corporation or any of its Subsidiaries proposes to engage or is
engaged, including a purchase or sale of assets or securities, financing,
merger, consolidation, tender offer or any other transaction that would
require disclosure pursuant to the Exchange Act, and with respect to which the
board of directors of the Corporation reasonably has determined in good faith
that compliance with this Agreement may reasonably be expected to either
materially interfere with the Corporation's or such Subsidiary's ability to
consummate such transaction in a timely fashion or require the Corporation to
disclose material, non-public information prior to such time as it would
otherwise be required to be disclosed.
(l) "910 Stock Purchase Agreement" shall mean the Stock
Purchase Agreement, dated as of May 8, 2000, by and between New World, 910
Broadcasting Corp. and the Corporation.
(m) "Other Shares" shall mean at any time those shares of
Common Stock which do not constitute Primary Shares or Registrable Shares.
(n) "Person" shall be construed as broadly as possible and
shall include, without limitation, an individual, a partnership, an investment
fund, a limited liability company, a corporation, an association, a joint
shares company, a trust, a joint venture, an unincorporated organization and a
governmental entity or any department, agency or political subdivision
thereof.
(o) "Primary Shares" shall mean at any time the authorized
but unissued shares of Common Stock or shares of Common Stock held by the
Corporation in its treasury.
(p) "Purchase Agreements" shall mean the RCI Stock Purchase
Agreement, the Asset Purchase Agreement and the 910 Stock Purchase Agreement.
(q) "RCI Stock Purchase Agreement" shall mean the Stock
Purchase Agreement, dated as of May 8, 2000 by and between the Corporation,
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Communications, Inc. ("RCI"), and all of the stockholders of RCI (as the same
may be amended, restated, supplemented or otherwise modified from time to
time).
(r) "Registrable Shares" means, at any time, shares of
Common Stock issued to the Holders as Purchaser Shares in connection with the
Purchase Agreements or BUYER SHARES under and as defined in the Release and
Termination Agreement (as defined below), and includes Common Stock which may
be issued as a dividend or distribution thereon. As to any particular
Registrable Shares, such shares shall cease to be Registrable Shares when: (A)
they have been registered under the Securities Act, the registration statement
in connection therewith has been declared effective and they have been
disposed of pursuant to and in the manner described in such effective
registration statement; (B) they are sold or distributed pursuant to Rule 144;
or (C) they have ceased to be outstanding.
(s) "Release and Termination Agreement" shall mean the
Release and Termination Agreement, dated as of May 6, 2000, by and between
RCI, Viva Broadcasting, LLC, Xxxxx Xxxxxxxx, Xxxxx X. Xxxxxxxx and Xxxxx X.
Xxxxxxxx and the Corporation.
(t) "Rule 144" shall mean Rule 144 promulgated under the
Securities Act or any successor rule thereto or any complementary rule thereto
(such as Rule 144A).
(u) "Securities Act" shall mean the Securities Act of 1933
or any successor Federal statute, and the rules and regulations of the
Commission thereunder, all as the same shall be in effect from time to time.
(v) "Subsidiary" means, with respect to any Person, any
other Person of which the securities having a majority of the ordinary voting
power in electing the board of directors (or other governing body) of such
other Person, at the time as of which any determination is being made, are
owned by such first Person either directly or through one or more of its
Subsidiaries.
SECTION 2. REQUIRED REGISTRATION.
The Corporation shall prepare and file, and use its best
efforts to cause to become effective on or prior to March 15, 2001, a
registration statement under the Securities Act covering all of the
Registrable Shares and shall cause such registration statement to become
effective and remain effective for one year from the Closing Date (as defined
in the RCI Stock Purchase Agreement) plus the number of days during which
offers and sales are discontinued pursuant to Section 5(g) or until all
Registrable Shares cease to be Registrable Shares (if earlier) (the
"Registration Period"). Such registration statement shall be on Form S-3 or
any successor form promulgated by the SEC. In the event that the Corporation
shall not be eligible to use Form S-3 for the purpose of registering the
Registrable Shares, the Corporation shall be obligated to prepare, file and
use its reasonable best efforts to cause to become effective a registration
statement under the Securities Act covering all of the Registrable Shares on
Form S-3 at the earliest practicable date thereafter it shall become eligible
to use Form S-3. The offering of the Registrable Securities under this Section
2 shall not be pursuant to an underwritten offering. The Corporation shall use
its best efforts to remain eligible to use Form S-3 or any successor form
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promulgated by the SEC. Notwithstanding the foregoing, the Corporation shall
not be obligated to effect any such registration except in accordance with the
following provisions:
(a) The Corporation may delay the filing or effectiveness of
any registration statement if (i) the Corporation is engaged, or has fixed
plans to engage in a firm commitment underwritten public offering of Primary
Shares in which the holders of Registrable Shares may include not less than
20% of the Registrable Shares pursuant to Section 3 or (ii) a Material
Transaction exists and has not been consummated or canceled.
(b) At any time before the registration statement covering
the Registrable Shares becomes effective, the holders of a majority of the
Registrable Shares may request the Corporation to withdraw or not to file the
registration statement. In that event, and so long as such request of
withdrawal shall not have been caused by, or made in response to, (i) the
material adverse effect of an event on the business, properties, condition,
financial or otherwise, or operations of the Corporation or (ii) adverse
market conditions, the Corporation shall no longer be obligated to register
the Registrable Shares pursuant to this Section 2 unless the expenses incurred
by the Corporation through the date of such request in connection with such
registration are reimbursed.
SECTION 3. PIGGYBACK REGISTRATION.
If the Corporation at any time proposes for any reason to
register shares of Common Stock under the Securities Act (other than on Form
S-4, F-4 or S-8 promulgated under the Securities Act or any successor forms
thereto), it shall promptly give written notice to all Holders of its
intention to so register such shares and, upon the written request, delivered
to the Corporation within 30 days after delivery of any such notice by the
Corporation, of any such Holder to include in such registration the
Registrable Shares of such Holder (which request shall specify the number of
the Registrable Shares proposed to be included in such registration), the
Corporation shall use its best efforts to cause all such Registrable Shares to
be included in such registration on the same terms and conditions as the
securities otherwise being sold in such registration; provided, however, that,
if the managing underwriter advises the Corporation that the inclusion of all
of the Registrable Shares requested to be included in such registration would
interfere with the successful marketing (including pricing) of the Primary
Shares or Other Shares proposed to be registered by the Corporation, then the
number of the Primary Shares, the Registrable Shares and the Other Shares
proposed to be included in such registration shall be included in the
following order of priority:
(i) first, the Primary Shares;
(ii) second, the Other Shares and the Registrable
Shares, pro rata, except to the extent that the holders of any Other
Shares have the right to higher priority than the Registrable Shares
pursuant to valid registration rights;
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(iii) third, the Registrable Shares requested to be
included in such registration to the extent not included pursuant to clause
(ii); and
(iv) fourth, the Other Shares that have not been granted
valid registration rights prior to the date hereof.
SECTION 4. HOLDBACK AGREEMENT.
If the Corporation at any time shall register shares of Common
Stock under the Securities Act pursuant to Section 3 for sale to the public in
an underwritten offering, the Holders shall not sell publicly, make any short
sale of, grant any option for the purchase of, or otherwise dispose publicly,
any shares of Common Stock or any securities convertible into or exchangeable or
exercisable for such shares of Common Stock or other securities of the
Corporation (other than (i) those shares of Common Stock included in such
registration pursuant to Sections 2 or 3, and (ii) any such sale, short sale,
grant of any option for the purchase of, or other public disposition by such
Holder (or any Affiliate of Holder) in its ordinary course of business) without
the prior written consent of the Corporation for a period designated by the
Corporation in writing to the Holder, which period shall begin not more than 10
days prior to the expected effectiveness of the registration statement pursuant
to which such public offering shall be made and shall not last more than 180
days (or such shorter period as the underwriters may agree) after the effective
date of such registration statement. The Corporation shall obtain the agreement
of any Person permitted to sell shares in a registration to be bound by and to
comply with this Section 4 as if such Person was a Holder hereunder.
SECTION 5. PREPARATION AND FILING.
If, and whenever, the Corporation is under an obligation pursuant
to this Agreement to use its best efforts to effect the registration of any of
the Registrable Shares, the Corporation shall, as expeditiously as practicable:
(a) use its best efforts to cause a registration statement
that registers such Registrable Shares to become and remain effective for the
Registration Period;
(b) furnish, at least five business days before filing a
registration statement that registers such Registrable Shares, a prospectus
relating thereto or any amendments or supplements relating to such a
registration statement or prospectus, to counsel selected by the Holder (the
"Holders' Counsel"), copies of all such documents proposed to be filed (it being
understood that such five-business-day period need not apply to successive
drafts of the same document proposed to be filed so long as such successive
drafts are supplied to the Holders' Counsel in advance of the proposed filing by
a period of time that is customary and reasonable under the circumstances);
(c) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in connection
therewith as may be necessary to keep such registration statement effective for
the Registration Period and to comply
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with the provisions of the Securities Act with respect to the sale or other
disposition of such Registrable Shares and to comply with all the reporting
requirements of the Exchange Act as more fully described in Section 10 herein;
(d) notify in writing the Holders' Counsel promptly of (i) the
receipt by the Corporation of any notification with respect to any comments by
the Commission with respect to such registration statement or prospectus or any
amendment or supplement thereto or any request by the Commission for the
amending or supplementing thereof or for additional information with respect
thereto, (ii) the receipt by the Corporation of any notification with respect to
the issuance by the Commission of any stop order suspending the effectiveness of
such registration statement or prospectus or any amendment or supplement thereto
or the initiation or threatening of any proceeding for that purpose (and the
Corporation shall use its best efforts to prevent the issuance thereof or, if
issued, to obtain its withdrawal) and (iii) the receipt by the Corporation of
any notification with respect to the suspension of the qualification of such
Registrable Shares for sale in any jurisdiction or the initiation or threatening
of any proceeding for such purposes;
(e) use its best efforts to register or qualify such
Registrable Shares under such other securities or blue sky laws of such
jurisdictions as the Holders reasonably request, to keep such registrations or
qualifications in effect for so long as the registration statement covering such
Registrable Shares remains in effect and do any and all other acts and things
which may be reasonably necessary or advisable to enable the Holders to
consummate the disposition in such jurisdictions of the Registrable Shares owned
by the Holders; provided that the Corporation will not be required to (i)
qualify to do business generally in any jurisdiction where it would otherwise
not be required to qualify but for this subsection, (ii) subject itself to
taxation in any such jurisdiction or (iii) consent to general service of
process;
(f) furnish to the Holders holding such Registrable Shares
such number of copies of a summary prospectus, if any, or other prospectus,
including a preliminary prospectus, in conformity with the requirements of the
Securities Act, and such other documents as such Holders may reasonably request
in order to facilitate the public sale or other disposition of such Registrable
Shares;
(g) notify on a timely basis the Holders of such Registrable
Shares at any time when a prospectus relating to such Registrable Shares is
required to be delivered under the Securities Act within the appropriate period
mentioned in subsection (a) of this Section 5, of the happening of any event as
a result of which the prospectus included in such registration statement, as
then in effect, includes an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances then existing
and, at the request of the Holders, prepare and furnish to the Holders a
reasonable number of copies of a supplement to or an amendment of such
prospectus as may be necessary so that, as thereafter delivered to the offerees
of such shares, such prospectus shall not include an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in light of the
circumstances then existing;
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(h) make available upon reasonable notice and during normal
business hours, for inspection by Holders of such Registrable Shares, any
underwriter participating in any disposition pursuant to such registration
statement and any attorney, accountant or other agent retained by the Holder or
underwriter (collectively, the "Inspectors"), all pertinent financial and other
records, pertinent corporate documents and properties of the Corporation
(collectively, the "Records"), as shall be reasonably necessary to enable them
to exercise their due diligence responsibility, and cause the Corporation's
officers, directors and employees to supply all information (together with the
Records, the "Information") reasonably requested by any such Inspector in
connection with such registration statement. Any of the Information which the
Corporation determines in good faith to be confidential, and of which
determination the Inspectors are so notified, shall not be disclosed by the
Inspectors, unless (i) the disclosure of such Information is necessary to avoid
or correct a misstatement or omission in the registration statement, (ii) the
release of such Information is ordered pursuant to a subpoena or other order
from a court of competent jurisdiction, or (iii) such Information has been made
generally available to the public. The Holders agree that they will, upon
learning that disclosure of such Information is sought in a court of competent
jurisdiction, give notice to the Corporation and allow the Corporation, at the
Corporation's expense, to undertake appropriate action to prevent disclosure of
the Information deemed confidential;
(i) use its best efforts to obtain from its counsel an opinion
or opinions in customary form, naming the Holder holding such Registrable Shares
as additional addressees or parties who may rely thereon;
(j) provide a transfer agent and registrar (which may be the
same entity and which may not be the Corporation) for such Registrable Shares;
(k) list such Registrable Shares on any national securities
exchange on which any shares of Common Stock are listed or, if shares of Common
Stock are not listed on a national securities exchange, use its best efforts to
qualify such Registrable Shares for inclusion on the automated quotation system
of the National Association of Securities Dealers, Inc. (the "NASD"), or such
other national securities exchange as the holders of a majority of such
Registrable Shares shall request; and
(l) otherwise use its best efforts to comply with all
applicable rules and regulations of the Commission and make available to its
securityholders, as soon as reasonably practicable, earnings statements (which
need not be audited) covering a period of 12 months beginning within three
months after the effective date of the registration statement, which earnings
statements shall satisfy the provisions of Section 11(a) of the Securities Act.
Each Holder of Registrable Shares which are being or have been
registered pursuant to this Agreement shall provide to the Corporation, upon the
request of the Corporation, such written information and materials as the
Corporation may reasonably request in order to effect or maintain such
registration. Each Holder of such Registrable Shares, upon receipt of any notice
from the Corporation of any event of the kind described in Section 5(g), shall
forthwith discontinue the disposition of such Registrable Shares pursuant to the
registration statement
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covering such Registrable Shares until such holder's receipt of the copies of
the supplemented or amended prospectus contemplated by Section 5(g), and, if so
directed by the Corporation, such holder shall deliver to the Corporation all
copies, other than permanent file copies then in such holder's possession, of
the prospectus covering such Registrable Shares at the time of receipt of such
notice.
SECTION 6. EXPENSES.
All expenses (other than underwriting discounts and commissions
relating to the Registrable Shares, as provided in the last sentence of this
Section 6) incurred by the Corporation and all reasonable expenses incurred by
the Holders in complying with this Agreement, including, without limitation, all
registration and filing fees (including all expenses incident to filing with the
NYSE, AMEX, NASD and other domestic or foreign exchanges, as applicable), fees
and expenses of complying with securities and blue sky laws, printing expenses,
fees and expenses of the Corporation's counsel and accountants and reasonable
fees and expenses of the Holders' Counsel, shall be paid by the Corporation;
provided, however, that all underwriting discounts and selling commissions
applicable to the Registrable Shares shall be borne by the holders selling such
Registrable Shares, in proportion to the number of the Registrable Shares sold
by each such holder.
SECTION 7. INDEMNIFICATION.
(a) In connection with any registration of any of the
Registrable Shares under the Securities Act pursuant to this Agreement, the
Corporation shall indemnify and hold harmless each Holder of Registrable Shares,
each underwriter, broker or any other Person acting on behalf of the Holders of
Registrable Shares and each other Person, if any, who controls any of the
foregoing Persons within the meaning of the Securities Act against any losses,
claims, damages or liabilities, joint or several (or actions in respect
thereof), to which any of the foregoing Persons may become subject under the
Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or allegedly untrue statement of a material fact contained in
the registration statement under which such Registrable Shares were registered
under the Securities Act, any preliminary prospectus or final prospectus
contained therein or otherwise filed with the Commission, any amendment or
supplement thereto or any document incident to registration or qualification of
any of the Registrable Shares, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading or, with respect to
any prospectus, necessary to make the statements therein in light of the
circumstances under which they were made not misleading, or any violation by the
Corporation of the Securities Act or state securities or blue sky laws
applicable to the Corporation and relating to action or inaction required of the
Corporation in connection with such registration or qualification under such
state securities or blue sky laws; and shall reimburse the holders of
Registrable Shares, such underwriter, such broker or such other Person acting on
behalf of the holders of Registrable Shares and each such other Person for any
legal or other expenses reasonably incurred by any of them in connection with
investigating or defending any such loss, claim, damage, liability or action;
provided, however, that the Corporation shall
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not be liable in any such case to the extent that any such loss, claim, damage,
liability or action (including any legal or other expenses incurred) arises out
of or is based upon an untrue statement or allegedly untrue statement or
omission or alleged omission made in said registration statement, preliminary
prospectus, final prospectus, amendment, supplement or document incident to
registration or qualification of any of the Registrable Shares in reliance upon
and in conformity with written information furnished to the Corporation through
an instrument duly executed by the holders of Registrable Shares specifically
for use therein.
(b) In connection with any registration of the Registrable
Shares under the Securities Act pursuant to this Agreement, any seller of
Registrable Shares shall indemnify and hold harmless (in the same manner and to
the same extent as set forth in Section 7(a)) the Corporation, each director of
the Corporation, each officer of the Corporation who shall sign such
registration statement, each underwriter, broker or other Person acting on
behalf of the holders of Registrable Shares and each Person who controls any of
the foregoing Persons within the meaning of the Securities Act with respect to
any statement or omission from such registration statement, any preliminary
prospectus or final prospectus contained therein or otherwise filed with the
Commission, any amendment or supplement thereto or any document incident to
registration or qualification of any of the Registrable Shares, if such
statement or omission was made in reliance upon and in conformity with written
information furnished to the Corporation or such underwriter through an
instrument duly executed by such seller specifically for use in such
registration statement, preliminary prospectus, final prospectus, amendment,
supplement or document; provided, however, that the maximum amount of liability
in respect of such indemnification shall be in proportion to and limited to, in
the case of each seller of Registrable Shares, an amount equal to the net
proceeds actually received by such seller from the sale of Registrable Shares
effected pursuant to such registration.
(c) Promptly after receipt by an indemnified party of notice
of the commencement of any action involving a claim referred to in Sections 7(a)
and 7(b), such indemnified party will, if a claim in respect thereof is made
against an indemnifying party, give written notice to the latter of the
commencement of such action. In case any such action is brought against an
indemnified party, the indemnifying party will be entitled to participate in and
to assume the defense thereof, jointly with any other indemnifying party
similarly notified to the extent that it may wish, with counsel reasonably
satisfactory to such indemnified party, and after notice from the indemnifying
party to such indemnified party of its election so to assume the defense
thereof, the indemnifying party shall not be responsible for any legal or other
expenses subsequently incurred by the indemnified party in connection with the
defense thereof; provided, however, that, if any indemnified party shall have
reasonably concluded that there may be one or more legal or equitable defenses
available to such indemnified party which are additional to or conflict with
those available to the indemnifying party, or that such claim or litigation
involves or could have an effect upon matters beyond the scope of the indemnity
agreement provided in this Section 7, then the indemnifying party shall not have
the right to assume the defense of such action on behalf of such indemnified
party and such indemnifying party shall reimburse such indemnified party and any
Person controlling such indemnified party for that portion of the fees and
expenses of any counsel retained by the indemnified party which is reasonably
related to the matters covered by the indemnity agreement provided in this
Section 7. The indemnifying party
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shall not be liable to indemnify any indemnified party for any settlement of any
claim or action effected without the consent of the indemnifying party. The
indemnifying party may not settle any claim or action brought against an
indemnified party unless such indemnified party is released from all and any
liability as part of such settlement.
(d) If the indemnification provided for in this Section 7 is
held by a court of competent jurisdiction to be unavailable to an indemnified
party with respect to any loss, claim, damage, liability or action referred to
herein, then the indemnifying party, in lieu of indemnifying such indemnified
party hereunder, shall contribute to the amounts paid or payable by such
indemnified party as a result of such loss, claim, damage, liability or action
in such proportion as is appropriate to reflect the relative fault of the
indemnifying party on the one hand and of the indemnified party on the other in
connection with the statements or omissions which resulted in such loss, claim,
damage, liability or action as well as any other relevant equitable
considerations; provided, however, that, if the circumstances described in the
proviso of Section 7(a) apply to the indemnified party, then the indemnifying
party shall not be obligated to contribute with respect to such loss, claim,
damage, liability or action to the extent set forth in such proviso. The
relative fault of the indemnifying party and of the indemnified party 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 indemnifying party or by
the indemnified party and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
(e) The Corporation and the sellers of Registrable Shares
agree that it would not be just and equitable if contribution pursuant to
Section 7(d) were determined by pro rata allocation (even if the holders and any
underwriters 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 Sections 7(c) and 7(d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages and liabilities
referred to in subsection (d) of this Section 7 shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim.
SECTION 8. INFORMATION BY HOLDER.
Each seller of Registrable Shares shall furnish to the
Corporation such written information and affidavits regarding such seller and
the distribution proposed by the sellers as the Corporation may reasonably
request in writing and as shall be reasonably required in connection with any
registration, qualification or compliance referred to in this Agreement.
SECTION 9. EXCHANGE ACT COMPLIANCE.
The Corporation shall comply with all of the reporting
requirements of the Exchange Act applicable to it (whether or not it shall be
required to do so) and shall comply with all other public information reporting
requirements of the Commission, including, without
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limitation, requirements to ensure the availability of Rule 144 for the sale of
the Common Stock. The Corporation shall cooperate with the Holders in supplying
such information as may be necessary for the Holders to complete and file any
information reporting forms presently or hereafter required by the Commission as
a condition to the availability of Rule 144.
SECTION 10. MERGERS, ETC.
The Corporation shall not, directly or indirectly, enter into any
merger, consolidation or reorganization in which the Corporation shall not be
the surviving corporation unless the surviving corporation shall, prior to such
merger, consolidation or reorganization, agree in writing to assume the
obligations of the Corporation under this Agreement, and for that purpose
references hereunder to "Registrable Shares" shall be deemed to include the
common stock, if any, that holders of Registrable Shares would be entitled to
receive in exchange for Common Stock under any such merger, consolidation or
reorganization; provided, however, that, to the extent holders of Registrable
Shares receive securities that are by their terms convertible into common stock
of the issuer thereof, then only such shares of common stock as are issued or
issuable upon conversion of said convertible securities shall be included within
the definition of "Registrable Shares."
SECTION 11. NEW CERTIFICATES.
As expeditiously as possible after the effectiveness of any
registration statement filed pursuant to this Agreement, the Corporation will
deliver in exchange for any legended certificate evidencing Restricted Shares so
registered, new stock certificates not bearing any restrictive legends, provided
that, in the event less than all of the Restricted Shares evidenced by such
legended certificate are registered, the holder thereof agrees that a new
certificate evidencing such unregistered shares will be issued bearing the
appropriate restrictive legend.
SECTION 12. TERMINATION.
This Agreement shall terminate and be of no further force or
effect on the date on which there remain no Registrable Shares outstanding.
SECTION 13. SUCCESSORS AND ASSIGNS.
This Agreement shall bind and inure to the benefit of the
Corporation and the Holders and, subject to Section 14, the respective
successors and assigns of the Corporation and each Holder.
SECTION 14. ASSIGNMENT.
A Holder may assign its rights hereunder to any purchaser or
transferee of Registrable Shares, including any Affiliate; provided, however,
that such purchaser or transferee shall, as a condition to the effectiveness of
such assignment, be required to execute a Holder Joinder, whereupon such
purchaser or transferee shall have the benefits of, and shall be subject to
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the restrictions contained in, this Agreement as if such purchaser or transferee
was originally included in the definition of "Holder" herein and had originally
been a party hereto.
SECTION 15. SEVERABILITY.
It is the desire and intent of the parties hereto that the
provisions of this Agreement be enforced to the fullest extent permissible under
the laws and public policies applied in each jurisdiction in which enforcement
is sought. Accordingly, if any particular provision of this Agreement shall be
adjudicated by a court of competent jurisdiction to be invalid, prohibited or
unenforceable for any reason, such provision, as to such jurisdiction, shall be
ineffective, without invalidating the remaining provisions of this Agreement or
affecting the validity or enforceability of this Agreement or affecting the
validity or enforceability of such provision in any other jurisdiction.
Notwithstanding the foregoing, if such provision could be more narrowly drawn so
as not to be invalid, prohibited or unenforceable in such jurisdiction, it
shall, as to such jurisdiction, be so narrowly drawn, without invalidating the
remaining provisions of this Agreement or affecting the validity or
enforceability of such provision in any other jurisdiction.
SECTION 16. ENTIRE AGREEMENT.
This Agreement, the Lock-Up Letter Agreements referred to in
Section 24 hereof, and the other writings referred to herein or delivered
pursuant hereto, constitute the entire agreement among the parties hereto and
supersede any prior understandings, agreements or representations by or among
such parties, written or oral, that may have related in any way to the subject
matter of this Agreement or any other writings referred to herein.
SECTION 17. NOTICES.
All notices, requests, demands, claims, and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
delivered personally, telecopied, sent by internationally-recognized overnight
courier or mailed by registered or certified mail (return receipt requested),
postage prepaid, to the parties at the following addresses (or at such other
address for a party as shall be specified by like notice):
(i) If to the Holders, at the addresses set forth
on the signature pages hereto:
with a copy to:
Xxxxxxxx & Xxxxxx L.L.P.
0000 Xxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, XX 00000-0000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
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Attention: Xxxxx X. Xxxxxx, Esq.
(ii) If to the Corporation, to:
Spanish Broadcasting System , Inc.
0000 Xxxxx Xxx, Xxxxx 000
Xxxxx, Xxxxxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Xxxxxx X. Xxxxxx
with a copy to:
Xxxx, Scholer, Fierman, Xxxx & Handler, LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxx, Xx.
All such notices and other communications shall be deemed to have
been given and received (a) in the case of personal delivery or delivery by
telecopy, on the date of such delivery, (b) in the case of delivery by
internationally-recognized overnight courier, on the first business day
following such dispatch and (c) in the case of mailing, on the third business
day following such mailing.
SECTION 18. MODIFICATIONS; AMENDMENTS; WAIVERS.
The terms and provisions of this Agreement may not be modified or
amended, nor may any provision be waived, except pursuant to a writing signed by
the Corporation and the holders of at least a majority of the Registrable Shares
then outstanding; provided, however, that no such modification, amendment or
waiver that would treat any holder of Registrable Shares then outstanding in a
non-ratable, discriminatory manner shall be made without the prior written
consent of such holder. The failure of any party to enforce any of the
provisions of this Agreement shall in no way be construed as a waiver of such
provisions and shall not affect the right of such party thereafter to enforce
each and every provision of this Agreement in accordance with its terms.
SECTION 19. COUNTERPARTS; FACSIMILE SIGNATURES.
This Agreement may be executed in any number of counterparts, and
each such counterpart hereof shall be deemed to be an original instrument, but
all such counterparts together shall constitute but one agreement. Delivery of
an executed counterpart of a signature page to this Agreement by facsimile shall
be effective as delivery of a manually executed signature page to this
Agreement.
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SECTION 20. HEADINGS.
The headings of the various sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed to be a part
of this Agreement.
SECTION 22. GOVERNING LAW.
This Agreement will be governed by and construed in accordance
with the domestic laws of the State of New York, without giving effect to any
choice of law or conflicting provision or rule.
SECTION 23. JURISDICTION AND VENUE.
(a) Each of the parties hereto hereby irrevocably and
unconditionally submits, for itself or himself and its or his property, to the
exclusive jurisdiction of any New York court or federal court of the United
States of America sitting in the State of New York, and any appellate court from
any thereof, in any action or proceeding arising out of or relating to this
Agreement or for recognition or enforcement of any judgment, and each of the
parties hereto hereby irrevocably and unconditionally agrees that all claims in
respect of any such action or proceeding may be heard and determined in any such
New York court or, to the extent permitted by law, in such federal court. Each
of the parties hereto agrees that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on the judgment or in any other manner provided by law.
(b) Each of the parties hereto irrevocably and unconditionally
waives, to the fullest extent it or he may legally and effectively do so, any
objection that it or he may now or hereafter have to the laying of venue of any
suit, action or proceeding arising out of or relating to the Agreement in any of
the courts referred to in Section 22(a). Each of the parties hereto irrevocably
waives, to the fullest extent permitted by law, the defense of an inconvenient
forum to the maintenance of such action or proceeding in any such court.
(c) The parties further agree that the mailing by certified or
registered mail, return receipt requested, of any process required by any such
court shall constitute valid and lawful service of process against them, without
the necessity for service by any other means provided by law.
SECTION 23. WAIVER OF JURY TRIAL.
EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ALL RIGHT TO
TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR
RELATING TO THIS AGREEMENT.
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SECTION 24. LOCK-UP AGREEMENTS.
Each of the Holders is a party to a Lock-Up Agreement in favor of
the Company. None of the terms and conditions hereof shall be interpreted to
waive any restrictions contained in such Lock-Up Letters and the Holders agree
to be bound by such Lock-Up Letters in accordance with their respective terms
and conditions.
* * * * *
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IN WITNESS WHEREOF, the parties hereto have executed this
Registration Rights Agreement as of the date first written above.
SPANISH BROADCASTING SYSTEM, INC.
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Ex. VP & CFO
HOLDERS
The Marcos and Xxxxx Xxxxxxxxx Family Trust
By: /s/ Xxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title:
Address:
Telephone:
Fax:
Xxxxxx X. Xxxxxxxxx
/s/ Xxxxxx Xxxxxxxxx
---------------------------------------
Name: Xxxxxx Xxxxxxxxx
Address:
Telephone:
Fax:
Xxxxxxx X. Xxxxxx
/s/ Xxxxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxx
Address:
Telephone:
Fax:
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New World Broadcasters Corp.
By: /s/ Xxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title:
Address:
Telephone:
Fax:
The Xxxxx and Xxx Xxxxxxxx Trust
By: /s/ Xxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Trustee
Address:
Telephone:
Fax:
The Xxxxx and Xxxxxx Xxxxxxxx Trust
By: /s/ Xxxxx Xxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Trustee
Address:
Telephone:
Fax:
BlueStone Capital Partners, L.P.
By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------------------
Name:
Title:
Address:
Telephone:
Fax:
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ANNEX I
HOLDERS OF REGISTRABLE SHARES
Holder Number of Registrable Shares
------ ----------------------------
The Marcos and Xxxxx Xxxxxxxxx Family Trust 2,958,844
Xxxxxx X. Xxxxxxxxx 20,008
Xxxxxxx X. Xxxxxx 20,877
New World Broadcasters Corp. 484,092
BlueStone Capital Partners, L.P. 70,459
The Xxxxx and Xxx Xxxxxxxx Trust 310,543
The Xxxxx and Xxxxxx Xxxxxxxx Trust 576,722
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EXHIBIT A
HOLDER JOINDER
By execution of this Holder Joinder, the undersigned agrees to
become a party to that certain Registration Rights Agreement, dated as of
___________ __, 2000 (as the same may be amended, restated, supplemented or
otherwise modified from time to time, the "Registration Rights Agreement"),
among __________, Spanish Broadcasting System, Inc. and the other persons from
time to time party thereto. The undersigned shall have all the rights, and shall
observe all of the obligations, applicable to a Holder (as defined in the
Registration Rights Agreement).
Name:
-------------------------
Address for Notices: with copies to:
-----------------------------------------------
-----------------------------------------------
Telephone:
-----------------------------------------------
Fax:
-----------------------------------------------
Signature:
----------------------
Date:
------------------------------------------
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