EXHIBIT 4.3
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of December 23, 2004 (this
"Agreement"), by and between Spanish Broadcasting System, Inc., a Delaware
corporation (the "Company") and Infinity Media Corporation, a Delaware
corporation (the "Shareholder").
WHEREAS, simultaneous with the execution of this Agreement, the
Company, SBS Bay Area, LLC, a Delaware limited liability company ("Merger Sub"),
Infinity Broadcasting Corporation of San Francisco, a Delaware corporation
("Target") and the Shareholder are consummating the transactions contemplated by
the Merger Agreement, dated as of October 5, 2004, pursuant to which Target is
merging with and into Merger Sub with the result that Merger Sub will be the
surviving entity (the "Merger");
WHEREAS, pursuant to the terms of the Merger, the Shareholder is
acquiring an aggregate of 380,000 shares of the Series C Convertible preferred
stock of the Company (the "Series C Preferred Stock"), which are convertible
into shares of the Class A common stock, par value $0.0001 per share, of the
Company (the "Class A Common Stock") as set forth in the certificate of
designation for the Series C Preferred Stock filed with the Secretary of State
of the State of Delaware;
WHEREAS, pursuant to the terms of the Merger, the Shareholder is
acquiring a non-transferable warrant (the "Warrant") to purchase 190,000 shares
of Series C Preferred Stock at an exercise price of $300.00 per share; and
WHEREAS, in connection with the Merger and pursuant to the Merger
Agreement, the Company has agreed to provide the Shareholder with certain
registration rights as set forth herein.
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
Certain Definitions
The following terms, as used in this Agreement, have the following
respective meanings:
"Affiliate" means, with respect to any Person, 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.
"Agreement" has the meaning set forth in preamble of this Agreement.
"Xxxxxxx" has the meaning set forth in Section 3.6 of this
Agreement.
"Class A Common Stock" has the meaning set forth in recitals of this
Agreement.
"Commission" means the Securities and Exchange Commission or any
other federal agency at the time administering the Securities Act.
"Company" has the meaning set forth in preamble of this Agreement.
"Control" (including with correlative meaning, the terms
"Controlling", "Controlled by" and "under common Control with"), as used with
respect to any Person, means the possession, directly or indirectly, of the
power to direct or cause the direction of the management policies of a Person,
whether through the ownership of voting securities, by contract or otherwise.
"Conversion Shares" means shares of Class A Common Stock issued or
issuable upon conversion of the Series C Preferred Stock or any other
Convertible Securities held by the Shareholder.
"Convertible Securities" shall mean (i) any rights, options or
warrants to acquire Class A Common Stock or any capital stock of the Company or
any subsidiary of the Company, including the Series C Preferred Stock, and (ii)
any notes, debentures, shares of preferred stock or other securities, options,
warrants or rights, which are convertible or exercisable into, or exchangeable
for, Class A Common Stock or any capital stock of the Company or any subsidiary
of the Company, including the Warrant.
"Demand Registration" has the meaning set forth in Section 3.1 of
this Agreement.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, or any successor statute and the rules and regulations thereunder.
"Merger" has the meaning set forth in recitals of this Agreement.
"Merger Sub" has the meaning set forth in recitals of this
Agreement.
"Nasdaq" has the meaning set forth in Section 3.12 of this
Agreement.
"Person" means any natural person, corporation, limited partnership,
general partnership, a limited liability company, joint stock company, joint
venture, association, company, trust, bank, trust company, land trust, business
trust or other organization, whether or not a legal entity, and any government
agency or political subdivision thereof.
"Piggyback Registration" has the meaning set forth in Section 3.6 of
this Agreement.
"Public Sale" means any sale of the Company's common stock to the
public pursuant to an effective registration statement under the Securities Act
or pursuant to the provisions of Rule 144 of the Securities Act.
"Registrable Securities" means the Conversion Shares issued or
issuable to the Shareholder from time to time in connection with the conversion
of the Series C Preferred Stock,
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including the Conversion Shares issued or issuable in connection with the
conversion of the Series C Preferred Stock issued or issuable upon exercise of
the Warrant; provided, however, that as to any particular Registrable
Securities, such securities will cease to be Registrable Securities when they
have been distributed to the public pursuant to a Public Sale.
"Registration Expenses" has the meaning set forth in Section 3.10 of
this Agreement.
"Securities Act" means the Securities Act of 1933, as amended, or
any successor statute and the rules and regulations thereunder.
"Selling Expenses" means all underwriting discounts and commissions,
and the fees and expenses in excess of those for one counsel for the Shareholder
applicable to the sale of Registrable Securities.
"Series C Preferred Stock" has the meaning set forth in recitals of
this Agreement.
"Shareholder" has the meaning set forth in preamble of this
Agreement and shall include any Transferee pursuant to Section 3.18.
"Shareholder Request" has the meaning set forth in Section 3.1 of
this Agreement.
"Target" has the meaning set forth in recitals of this Agreement.
"Transferee" has the meaning set forth in Section 3.18 of this
Agreement.
"Warrant" has the meaning set forth in recitals of this Agreement.
ARTICLE II
Legend
2.1 Restrictive Legend. (a) Each certificate representing the
Registrable Securities shall bear a legend substantially in the following form:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND
MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED, PLEDGED OR
HYPOTHECATED UNLESS AND UNTIL SUCH SHARES ARE REGISTERED UNDER
SUCH ACT OR AN OPINION OF COUNSEL SATISFACTORY TO THE
CORPORATION IS OBTAINED TO THE EFFECT THAT SUCH REGISTRATION
IS NOT REQUIRED."
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(b) In addition to the legend set forth in paragraph (a) of
this Section 2.1, each certificate representing the Registrable Securities shall
bear a legend substantially in the following form:
"THE INTERESTS REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
THE TERMS OF A REGISTRATION RIGHTS AGREEMENT, DATED AS
OF DECEMBER __, 2004, BETWEEN THE COMPANY AND THE REGISTERED
OWNER OF THIS CERTIFICATE (OR THE REGISTERED OWNER'S
PREDECESSOR IN INTEREST), AS MAY BE AMENDED, AND SUCH
AGREEMENT IS AVAILABLE FOR INSPECTION WITHOUT CHARGE AT THE
OFFICES OF THE COMPANY."
A certificate shall not bear such legends if in the opinion of counsel
satisfactory to the Company (it being agreed that each of Shearman & Sterling
LLP and Xxxx Xxxxxxx LLP shall be satisfactory) the securities represented
thereby have been registered under the Securities Act or may be publicly sold
without registration under the Securities Act and any applicable state
securities laws.
2.2 Removal of Legend. Each certificate representing the
Registrable Securities sold or otherwise transferred shall bear the legends set
forth in Section 2.1, except that such certificate shall not bear such legend,
and the Company will take the steps necessary to remove such legend if (i) the
sale is made in accordance with the provisions of Rule 144 (or any other rule
permitting sale without registration under the Securities Act) or (ii) in the
opinion of counsel satisfactory to the Company (it being agreed that either of
Shearman & Sterling LLP or Xxxx Xxxxxxx LLP shall be satisfactory) the
transferee and any subsequent transferee would be entitled to sell or transfer
such securities without registration under the Securities Act.
ARTICLE III
Registration Rights
3.1 Demand Registration. Subject to Section 3.2, if the
Shareholder notifies the Company in writing, which notice may not be delivered
prior to one year after the date hereof (the "Shareholder Request"), that it
wishes to offer or cause to be offered in a registered public offering the
number of Registrable Securities set forth in the Shareholder Request (a "Demand
Registration"), the Company agrees promptly within 60 days after receipt of the
Shareholder Request to prepare and file a registration statement on Form X-0,
X-0 or S-3, or any successor form under the Securities Act with the Commission
to register under the Securities Act all Registrable Securities requested to be
registered by the Shareholder, and to use its reasonable best efforts to have
such registration statement declared effective as promptly as practicable and
such efforts shall include the Company using all best efforts and taking every
action within its control to have such registration statement declared effective
within 150 days after receipt of the properly given Shareholder Request), as
would permit or facilitate the sale and distribution of the Registrable
Securities. So long as any Registrable Securities remain held by the Shareholder
and
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the Shareholder is entitled to require a Demand Registration hereunder, the
Company shall use its reasonable best efforts to use Form S-3 or a successor
form thereof to effect the registration required hereunder. The Company shall
not be required to effect more than three (3) Demand Registrations pursuant to
this Section 3.1.
3.2 Acceleration of Demand Registration. If at any time prior to
the first anniversary of the date of this Agreement the Company enters into a
definitive agreement with a third party to sell any radio stations that the
Company controls in the New York City or Miami markets, then the Shareholder
shall have the right to make a Demand Registration without regard to the
one-year period set forth in this first sentence of Section 3.1.
3.3 Priority on Demand Registrations. If a Demand Registration is
an underwritten offering and the managing underwriters advise the Company in
writing that in their opinion the number of Registrable Securities exceeds the
number of Registrable Securities and other securities, if any, which can be sold
therein without adversely affecting the marketability of the offering, the
Company will include in such registration prior to the inclusion of any
securities which are not Registrable Securities the maximum number of
Registrable Securities requested to be included which in the opinion of such
underwriters can be sold without adversely affecting the marketability of the
offering. No holder of any Company security for which the Company has granted
registration rights (other than the Shareholder) shall have the right to
participate in any registration made by the Company pursuant to a Demand
Registration.
3.4 Completion of Demand Registrations. Notwithstanding any other
provision of this Agreement to the contrary, a Demand Registration pursuant to
Section 3.1 shall not be deemed to have been effected (and, therefore, not
requested for purposes of the number of Demand Registrations), (i) unless it has
become effective, (ii) if after it has become effective such registration is
interfered with by any stop order, injunction or other order or requirement of
the Commission or other governmental agency or court for any reason other than a
misrepresentation or an omission by the Shareholder and, as a result thereof,
the Registrable Securities requested to be registered cannot be completely
distributed in accordance with the plan of distribution set forth in the related
registration statement or (iii) if the conditions to closing specified in any
purchase agreement or underwriting agreement entered into in connection with
such registration are not satisfied or waived other than by reason of some act
or omission by the Shareholder.
3.5 Limitation on Registration Requirement. (a) The Company will
not be obligated to effect any Demand Registration within six (6) months after
the effective date of (i) a prior Demand Registration or (ii) a registration in
which the Shareholder was able to fully exercise their piggyback rights pursuant
to Section 3.6 without any reduction in the number of Registrable Securities
requested to be registered.
(b) The Company shall have the right to postpone for up to
75 days the filing or the effectiveness of a registration statement for a Demand
Registration required pursuant to Section 3.1 hereof if the Board of Directors
of the Company determines in good faith (and the Company so certifies to the
Shareholder) that the filing of such registration statement would require the
disclosure of non-public material information the disclosure of which would have
a material adverse effect on the Company or would otherwise adversely affect (i)
any
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proposal or plan by the Company or any of its Subsidiaries to engage in any
financing transaction, public offering of securities, acquisition of assets
(other than in the ordinary course of business) or any merger, consolidation,
tender offer or similar transaction, or (ii) any material corporate development;
provided, however, that the Company may not exercise its right to so delay a
registration pursuant to Section 3.1 hereof more than once in any twelve (12)
month period.
(c) The Company shall not be obligated or required to effect
any registration pursuant to Section 3.1 hereof during the period commencing on
the date falling 90 days prior to the Company's estimated date of filing of, and
ending on the date 90 days following the effective date of, any underwritten
registration of Company common stock initiated by the Company, for the account
of the Company, if the Shareholder Request shall have been received by the
Company after the Company shall have advised the Shareholder of Registrable
Securities that the Company is contemplating commencing an underwritten
registration initiated by the Company on a particular date; provided, however,
that the Company will use reasonable efforts to cause any such registration to
be filed and to become effective as expeditiously as shall be reasonably
possible and that in no event shall the period during which the Company is not
required to effect registration under this Section 3.5(c) be longer than an
aggregate of 180 days within any twelve (12) month period.
3.6 Piggyback Registrations. Whenever the Company proposes to
register any securities beneficially owned by Xxxx Xxxxxxx, Xx. ("Xxxxxxx")
under the Securities Act (including secondary registrations on behalf of
Xxxxxxx'x securities other than pursuant to a Demand Registration) and the
registration form to be used may be used for the registration of Registrable
Securities (a "Piggyback Registration"), the Company will give prompt written
notice to the Shareholder of its intention to effect such a registration and
will include in such registration all Registrable Securities with respect to
which the Company has received written requests (including the intended method
of distribution of Registrable Securities by the Shareholder) for inclusion
therein within fifteen (15) days after the receipt of the Company's notice.
Notwithstanding anything to the contrary herein, the piggyback registration
rights provided under this Section 3.6 shall not be available in connection with
registrations by the Company for its own account (i) on Form S-8 or any
successor form thereto, (ii) filed solely in connection with a dividend
reinvestment plan or employee benefit plan covering officers or directors of the
Company or its Affiliates, or (iii) on Form S-4 or any successor form thereto,
in connection with a merger, acquisition, exchange offer or similar corporate
transaction.
3.7 Expenses of Piggyback Registrations. The Company will pay all
Registration Expenses of a Piggyback Registration, whether or not it becomes
effective.
3.8 Priority on Piggyback Registrations. If a Piggyback
Registration is an underwritten secondary registration on behalf of Xxxxxxx, and
the managing underwriters advise the Company in writing that in their opinion
the number of securities requested to be included in such registration exceeds
the number which can be sold in such offering without adversely affecting the
marketability of the offering (including the price per share), the Company will
include in such registration (i) FIRST, the securities the Company proposes to
sell for its own account, if any; (ii) SECOND, the securities the Company
proposes to sell on behalf of Xxxxxxx; (iii) THIRD, the Registrable Securities
requested by the Shareholder to be included in such
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registration; and (iii) FOURTH, other securities requested to be included in
such registration. No registration of Registrable Securities effected under
Section 3.6 shall relieve the Company of its obligation to effect
registration(s) of Registrable Securities pursuant to Section 3.1.
3.9 Registration Procedures. If and whenever the Company is
required by the provisions of this Article III to effect a registration of the
Registrable Securities under the Securities Act, the Company will as promptly as
practicable but in any event within the time periods provided in this Agreement:
(a) prepare and file with the Commission a registration
statement with respect to such Registrable Securities and use its reasonable
best efforts to cause such registration statement to become and remain effective
for the period of time required for the disposition of all such Registrable
Securities covered by the registration statement by the Shareholder;
(b) prepare and file with the Commission all such amendments
and supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to keep such registration statement
effective and to comply with the provisions of the Securities Act with respect
to the disposition of all Registrable Securities registered under such
registration statement until the earlier of (i) such time as all of such
Registrable Securities have been disposed of in accordance with the intended
methods of disposition set forth in such registration statement and (ii) two
years after such registration statement becomes effective, provided that such
period shall be extended by the number of days for which the Shareholder is
unable to make sales of Registrable Securities as a result of an event of the
type described in Section 3.9(i);
(c) furnish to the Shareholder and to each duly authorized
underwriter of the Shareholder such number of conformed copies of such
registration statement and of each such amendment and supplement thereto (in
each case including all exhibits), authorized copies of the prospectus,
including copies of any preliminary prospectus, and of each such amendment or
supplement thereto, in conformity with the requirements of the Securities Act,
and such other documents as the Shareholder or underwriter may reasonably
request in order to facilitate the sale or other disposition of the Registrable
Securities registered under such registration statement;
(d) use its reasonable best efforts to register or qualify
such Registrable Securities covered by such registration statement under such
securities or blue sky laws of such jurisdictions as the Shareholder or any
underwriter shall request, and do any and all other acts and things which may be
necessary under such securities or blue sky laws to enable the Shareholder to
consummate the sale or other disposition in such jurisdictions of the
Registrable Securities to be sold by the Shareholder, except that the Company
shall not for any such purpose be required to qualify to do business in any
jurisdiction wherein it is not qualified or to file any general consent to
service of process in any such jurisdiction;
(e) before filing the registration statement or prospectus
or any amendments or supplements thereto or any other documents related thereto,
furnish to counsel selected by the Shareholder of Registrable Securities
included in such registration statement
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copies of all such documents proposed to be filed, all of which shall be subject
to the reasonable approval of such counsel;
(f) furnish, at the request of the Shareholder, (i) to the
underwriters, on the date(s) reasonably requested by such underwriters, an
opinion of the independent counsel representing the Company for the purposes of
such registration addressed to such underwriters and to such seller, in such
form and content as the underwriters and such seller may reasonably request, or
(ii) if such Registrable Securities are not being sold through underwriters,
then to the sellers, on the date that the registration statement with respect to
such Registrable Securities becomes effective, an opinion, dated such date, of
the independent counsel representing the Company for the purposes of such
registration in such form and content as such seller may reasonably request; and
in the case of clauses (i) and (ii) above, a letter dated such date, from the
independent certified public accountants of the Company addressed to the
underwriters, if any, and if such Registrable Securities are not being sold
through underwriters, then to the sellers and, if such accountants refuse to
deliver such letter to such sellers, then to the Company, stating that they are
independent certified public accountants within the meaning of the Securities
Act and that, in the opinion of such accountants, the financial statements and
other financial data of the Company included in the registration statement or
the prospectus, or any amendment or supplement thereto, comply as to form in all
material respects with the applicable accounting requirements of the Securities
Act and covering such other matters as are customarily covered in accountant's
"comfort" letters;
(g) enter into customary agreements (including an
underwriting agreement in customary form) and take such other actions as are
reasonably required in order to expedite or facilitate the disposition of such
Registrable Securities;
(h) provide and cause to be maintained a transfer agent and
registrar for all Registrable Securities covered by such registration statement
from and after a date not later than the effective date of such registration
statement;
(i) promptly notify the Shareholder of Registrable
Securities included in such registration statement, (i) at any time when a
prospectus relating thereto is required to be delivered under the Securities
Act, of the happening of any event as a result of which the prospectus included
in such registration statement, as then in effect, includes an untrue statement
of a material fact or omits to state a material fact required to be stated
therein or necessary to make the statements therein not misleading or incomplete
in the light of the circumstances under which they were made, (ii) of the
issuance by the Commission or any state securities authority of any stop order
suspending the effectiveness of a registration statement or the initiation or
proceedings for that purpose and (iii) of any request by the Commission or any
other regulatory body or other body having jurisdiction for any amendment of or
supplement to any registration statement or other document relating to such
offering, and in each such case, promptly prepare, file with the Commission as
required, and furnish to the Shareholder a reasonable number of copies of a
supplement to or an amendment to such prospectus and registration statement as
may be necessary so that, as thereafter delivered to purchasers of such
Registrable Securities, such prospectus shall not include an untrue statement of
a material fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein not misleading or incomplete in
light of the circumstances under which they were made;
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(j) use its commercially reasonable efforts to list all
Registrable Securities covered by such registration statement on any securities
exchange on which the shares of Class A Common Stock are then listed; and
(k) otherwise use its commercially reasonable efforts to
comply with all applicable rules and regulations of the Commission, and make
available to its security holders, as soon as reasonably practicable, but not
later than 18 months after the effective date of the registration statement, an
earnings statement covering the period of at least twelve (12) months beginning
with the first full calendar month after the effective date of such registration
statement, which earnings statement shall satisfy the provisions of Section
11(a) of the Securities Act.
3.10 Expenses. (a) All expenses incurred in effecting the
registrations provided for in this Article III (excluding Selling Expenses),
including without limitation all registration and filing fees (including all
expenses incident to filing with the NASD Regulation, Inc. and any securities
exchange), printing expenses, fees and disbursements of counsel for the Company,
fees of the Company's independent auditors and accountants, expenses of any
audits incident to or required by any such registration and expenses of
complying with the securities or blue sky laws of any jurisdictions pursuant to
subsection 3.9(d) hereof, underwriters (excluding discounts and commissions,
which shall be borne by the seller(s) of securities) and other Persons retained
by the Company (all such expenses being herein called "Registration Expenses"),
will be borne as provided in this Agreement, except that the Company will, in
any event, pay its internal expenses (including, without limitation, all
salaries and expenses of its officers and employees performing legal or
accounting duties), the expense of any annual audit or quarterly review, the
expense of any liability insurance and the expenses and fees for listing the
securities to be registered on each securities exchange on which similar
securities issued by the Company are then listed or on the NASD automated
quotation system (on the National Market System if the Company so qualifies).
The Company shall have no obligation to pay any transfer taxes associated with
the disposition of Registrable Securities by a holder thereof.
(b) In connection with the first Demand Registration, the
Company will pay all Registration Expenses, whether or not it becomes effective,
and will reimburse the Shareholder for the reasonable fees and disbursements of
one counsel to the Shareholder in connection with the Demand Registration;
provided, however, that the Company shall not be required to pay for any
expenses of any Demand Registration proceeding begun pursuant to Section 3.1 if
the Demand Registration request is subsequently withdrawn at the request of the
Shareholder, in which case the Shareholder shall bear all such expenses, and,
provided further, that if at the time of such withdrawal, the Shareholder has
learned of a material adverse change in the condition, business, or prospects of
the Company from that known to such Shareholder at the time of its request and
has withdrawn the request with reasonable promptness, then the Shareholder shall
not be required to pay any of such expenses and shall retain their rights
pursuant to Section 3.10.
(c) In connection with the second and third Demand
Registrations, the Shareholder will pay all Registration Expenses, whether or
not the registration statement becomes effective, and the Shareholder will
reimburse the Company for the reasonable fees and disbursements of the Company's
regular outside corporate counsel for performance of the
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normal and customary functions of counsel in connection with the second and
third Demand Registrations.
(d) All Selling Expenses in connection with each Demand
Registration shall be borne by the Shareholder.
3.11 Time Limitations; Termination of Rights. Notwithstanding the
foregoing provisions of this Article III, the rights to registration shall
terminate as to any particular Registrable Securities when (i) such Registrable
Securities shall have been effectively registered under the Securities Act and
sold by the Shareholder thereof in accordance with such registration, (ii) such
Registrable Securities shall have been sold in compliance with Rule 144
promulgated under the Securities Act, or (iii) written opinions from counsel
reasonably acceptable to the Company and the holder of such Registrable
Securities, to the effect that such Registrable Securities may be sold without
registration under the Securities Act or applicable state law and without
restriction as to the volume and timing of such sales, shall have been received
from either counsel to the Company or counsel to the Shareholder; provided, that
so long as any Registrable Securities are held by the Shareholder, the
Shareholder shall be entitled to one (1) Demand Registration to be used to
effect an underwritten offering of such number of Registrable Securities as the
Shareholder may request; provided further that the Shareholder shall pay all
Registration Expenses in connection with such Demand Registration.
3.12 Compliance with Rule 144. At the request of the Shareholder of
Registrable Securities proposing to sell Registrable Securities in compliance
with Rule 144 promulgated under the Securities Act, assuming that at such time
the provisions of such Rule are applicable to the Shareholder and, in the event
the Shareholder is or could be deemed to be an "affiliate" of the Company within
the meaning of the Securities Act, and the Company is then required to file
reports under Section 13 or 15(d) of the Exchange Act, (a) the Company shall
forthwith furnish to the Shareholder a written statement as to its compliance
with the filing requirements of the Commission as set forth in such Rule, as
such Rule may be amended from time to time, and (b) the Company shall use its
best efforts and take every action within its control to make such additional
filings of reports with the Commission as will enable the Shareholder to make
sales of Registrable Securities pursuant to such Rule. At all times during which
this Agreement is effective, the Company shall use its best efforts and take
every action within its control to file with the Commission and, if applicable,
The Nasdaq Stock Market, Inc. ("Nasdaq"), in a timely manner, all reports and
other documents required to be filed by the Company, (i) with the Commission
pursuant to the Exchange Act, and (ii) with Nasdaq pursuant to its rules and
regulations.
3.13 Company's Indemnification. In the case of each offering of
Registrable Securities, the Company hereby agrees to indemnify and hold harmless
the Shareholder, each Person, if any, who controls the Shareholder within the
meaning of Section 15 of the Securities Act and each other Person (including
each underwriter and each Person who controls such underwriter) who participates
in the offering of Registrable Securities, against any losses, claims, damages
or liabilities, joint or several, to which the Shareholder, controlling person
or participating person may become subject under the Securities Act or
otherwise, against any and all losses, claims, damages or liabilities (or
proceedings in respect thereof) that arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained in
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any registration statement under which the Registrable Securities are registered
under the Securities Act, in any preliminary prospectus or final prospectus
contained therein, or in any amendment or supplement thereto, or document
incorporated by reference therein 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, and will
reimburse the Shareholder, the controlling person and participating person for
any legal or other expenses reasonably incurred in connection with investigating
or defending any such loss, claim, damage, liability or proceeding; provided,
however, that the Company will not be liable in any case to the Shareholder, the
controlling Person or participating Person to the extent that any loss, claim,
damage or liability results from any untrue statement or alleged untrue
statement or omission or alleged omission made in such registration statement,
preliminary or final prospectus or amendment or supplement in reliance upon and
in conformity with written information furnished to the Company by an instrument
duly executed by the Shareholder or any other person who participates as an
underwriter in the offering or sale of such securities, in either case,
specifically stating that it is for use in the preparation thereof or
controlling or participating person, as the case may be, specifically stating
that it is for use in the preparation of such document. Such indemnity shall
remain in full force and effect regardless of any investigation made by or on
behalf of the Shareholder disposing of Registrable Securities or any such
underwriter or controlling person and shall survive the transfer of such
securities by the Shareholder and the expiration or termination of this
Agreement.
3.14 Indemnification by the Shareholder. (a) In the case of each
offering of Registrable Securities, the Shareholder agrees to indemnify and hold
harmless (in the same manner as set forth in Section 3.13 above) the Company,
each Person referred to in clause (1), (2) or (3) of Section 11(a) of the
Securities Act (except if such Person is also a selling shareholder under such
registration) in respect of the registration statement, and each other Person,
if any, who controls the Company within the meaning of Section 15 the Securities
Act (except if such Person is also a selling shareholder under such
registration), with respect to any untrue statement or alleged untrue statement
of any material fact contained in the registration statement under which the
Registrable Securities are registered under the Securities Act, in any
preliminary prospectus or final prospectus contained therein or in any amendment
or supplement thereto, or that arises out of or is 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, which, in each case,
is made in or omitted from the registration statement, preliminary or final
prospectus or amendment or supplement in reliance upon and in conformity with
written information furnished to the Company by an instrument duly executed by
the Shareholder specifically for use in the preparation thereof; provided,
however, that the indemnification obligations of the Shareholder shall be
limited to the net proceeds received by the Shareholder from the sale of
Registrable Securities pursuant to such registration. Such indemnity shall
remain in full force and effect regardless of any investigation made by or on
behalf of the Company or any person indemnified by virtue of this Section 3.14
and shall survive the transfer of such securities by the Shareholder and the
expiration or termination of this Agreement. In the case of an offering made
pursuant to this Agreement with respect to which the Company has designated the
lead or managing underwriters (or the Company is offering securities directly,
without an underwriter), this indemnity does not apply to any loss, claim,
damage or liability arising out of or related to any untrue statement or alleged
untrue statement or omission or alleged omission in any preliminary prospectus
or offering memorandum if a copy
11
of a final prospectus or offering memorandum was not sent or given by or on
behalf of any underwriter (or the Company, as the case may be) to such Person
asserting such loss, claim, damage or liability at or prior to the written
confirmation of the sale of the Registrable Securities as required by the
Securities Act and such untrue statement or omission has been corrected in such
final prospectus or offering memorandum.
3.15 Contribution. If the indemnification provided for in Section
3.13 or 3.14 from the indemnifying party is unavailable to an indemnified party
hereunder, or is insufficient to hold harmless an indemnified party, in respect
of any losses, claims, damages, liabilities or expenses referred to therein,
then the indemnifying party, in lieu of indemnifying such indemnified party,
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages, liabilities or expenses in such
proportion as is appropriate to reflect the relative fault of the indemnifying
party and indemnified parties in connection with the actions which resulted in
such losses, claims, damages, liabilities or expenses, as well as any other
relevant equitable considerations. The relative fault of such indemnifying party
and indemnified parties shall be determined by reference to, among other things,
whether any action in question, including any untrue statement or alleged untrue
statement of a material fact or omission or alleged omission to state a material
fact, has been made by, or relates to information supplied by, such indemnifying
party or indemnified parties, and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such untrue
statement or omission, provided that the maximum amount of the Shareholder's
contribution shall be limited to the net proceeds received by the Shareholder
from the sale of Registrable Securities pursuant to such registration. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages, liabilities and expenses referred to above shall be deemed to
include any legal or other fees or expenses reasonably incurred by such party in
connection with any investigation or proceeding.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 3.15 were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to in the immediately preceding paragraph.
No Person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any
indemnifying party who was not guilty of such fraudulent misrepresentation.
3.16 Notification of and Participation in Actions. Promptly after
receipt by an indemnified party under this Article III of oral or written notice
of a claim or the commencement of any proceeding against it, such indemnified
party shall, if a claim in respect thereof is to be made against an indemnifying
party under such Article, give written notice to the indemnifying party of the
commencement thereof, but the failure so to notify the indemnifying party shall
not relieve it of any liability that it may have to any indemnified party except
to the extent the indemnifying party demonstrates that the defense of such
action is prejudiced thereby. In case any such proceeding shall be brought
against an indemnified party and it shall give notice to the indemnifying party
of the commencement thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it shall wish (unless the
indemnifying party is also a party to such proceeding and the indemnified party
determines in good faith that joint representation would be inappropriate) to
assume the defense thereof with counsel reasonably satisfactory to such
indemnified party and, after notice from the indemnifying party to such
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indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party under such
Article for any fees of other counsel or any other expenses with respect to the
defense of such proceeding, in each case, subsequently incurred by such
indemnified party in connection with the defense thereof. If an indemnifying
party assumes the defense of such proceeding, (a) no compromise or settlement
thereof may be effected by the indemnifying party without the indemnified
party's reasonable consent unless (i) there is no finding or admission of any
violation of law or any violation of the rights of any Person and no effect on
any other claims that may be made against the indemnified party and (ii) the
sole relief provided is monetary damages that are paid in full by the
indemnifying party, and (b) the indemnifying party shall have no liability with
respect to any compromise or settlement thereof effected without its consent,
which shall not be unreasonably withheld. If notice is given to an indemnifying
party of the commencement of any proceeding and it does not, within fifteen (15)
business days after the indemnified party's notice is given, give notice to the
indemnified party of its election to assume the defense thereof, the
indemnifying party shall be bound by any determination made in such action or
any compromise or settlement thereof effected by the indemnified party.
Notwithstanding the foregoing, if an indemnified party determines in good faith
that there is a reasonable probability that a proceeding may adversely affect it
or its affiliates other than as a result of monetary damages, such indemnified
party may, by notice to the indemnifying party, assume the exclusive right to
defend, compromise or settle such proceeding, but the indemnifying party shall
not be bound by any determination of a proceeding so defended or any compromise
or settlement thereof effected without its consent (which shall not be
unreasonably withheld). All indemnification obligations of the parties hereto
shall survive any termination of this Agreement pursuant to Section 3.13 hereof.
3.17 Furnish Information. It shall be a condition precedent to the
obligations of the Company to take any action pursuant to Article III that the
Shareholder requesting registration of Registrable Securities furnish to the
Company such information regarding them, the Registrable Securities held by them
and the intended method of disposition of such securities as the Company shall
reasonably request and as shall be required in connection with the action to be
taken by the Company. In the event that the registration under Article III
involves an underwritten offering, the Company agrees to provide such
information to the underwriters as they may reasonably request in connection
with their due diligence procedures.
3.18 Transfer of Registration Right. The Shareholder may transfer
all or any portion of the registration rights granted under Article III to an
Affiliate in respect of Registrable Securities owned by the Shareholder at the
time of the transfer (each such Affiliate that receives such Registrable
Securities being referred to herein as a "Transferee"). Any transfer of
registration rights pursuant to this Section 3.18 shall be effective upon the
receipt by the Company of (i) written notice from the Shareholder stating the
name and address of such Transferee and identifying the number of Registrable
Securities with respect to which rights under this Agreement are being
transferred and the nature of the rights so transferred and (ii) a written
agreement from such Transferee to be bound by the terms of this Article III and
Sections 4.2, 4.4, 4.6 and 4.7 of this Agreement.
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ARTICLE IV
Miscellaneous
4.1 No Inconsistent Agreements. The Company will not, at any time
after the effective date of this Agreement, enter into, and is not now a party
to or otherwise bound by, any agreement or contract (whether written or oral)
with respect to any of its securities which is inconsistent in any respect with
the registration rights granted by the Company pursuant to this Agreement.
4.2 Entire Agreement. This Agreement constitutes the entire
agreement of the parties hereto with respect to the subject matter hereof and
supersedes all prior agreements and undertakings, both written and oral, between
the parties with respect to the subject matter hereof.
4.3 Notices. Notices and other communications provided for herein
shall be in writing and shall be given in the manner and with the effect
provided in the Merger Agreement. Such notices and communications shall be
addressed if to the Shareholder of Registrable Securities, to its address as
shown on the transfer records of the Company, unless the Shareholder shall
notify the Company that notices and communications should be sent to a different
address (or facsimile number), in which case notices and communications shall be
sent to the address (or such facsimile number) specified by the Shareholder.
4.4 Waivers; Amendments. No failure or delay of the Shareholder of
Registrable Securities in exercising any power or right hereunder shall operate
as a waiver thereof, nor shall any single or partial exercise of any such right
or power, or any abandonment or discontinuance of steps to enforce such a right
or power, preclude any other or further exercise thereof or the exercise of any
other right or power. The rights and remedies of the Shareholder are cumulative
and not exclusive of any rights or remedies which it would otherwise have. The
provisions of this Agreement may be amended, modified or waived only by an
agreement in writing and any such waiver shall be effective only in the specific
instance and for the purpose for which given. Notwithstanding the foregoing, no
amendment, modification or waiver of any provision of this Agreement shall be
effective against the Shareholder of Registrable Securities unless (a) agreed to
in writing by the Shareholder or (b) agreed to in writing by the Shareholder's
predecessor in interest and notation thereof is set forth on the certificate
evidencing the Shareholder's Registrable Securities as the case may be. No
notice or demand on the Company in any case shall entitle the Company to any
other or further notice or demand in similar or other circumstances.
4.5 Specific Performance. The parties hereto acknowledge and agree
that irreparable damage would occur in the event that any of the provisions of
this Agreement were not performed in accordance with their specific terms or
were otherwise breached. Accordingly, it is agreed that they shall be entitled
to an injunction or injunctions to prevent breaches of the provisions of this
Agreement and to enforce specifically the terms and provision hereof in any
court of competent jurisdiction in the United States or any state thereof, in
addition to any other remedy to which they may be entitled at law or equity.
14
4.6 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York. Each of the
parties hereto agrees that any dispute relating to or arising from this
Agreement or the transactions contemplated hereby may be resolved in the courts
of the State of New York sitting in the County of New York or the United States
District Court for the Southern District of New York and the appellate courts
having jurisdiction of appeals in such courts. In that context, and without
limiting the generality of the foregoing, each of the parties hereby irrevocably
and unconditionally:
(a) submits for itself and its property in any legal suit,
action or proceeding relating to this Agreement or any transaction contemplated
hereby, or for recognition and enforcement of any judgment in respect thereof,
to the nonexclusive jurisdiction of the courts of the State of New York sitting
in the County of New York or the United States District Court for the Southern
District of New York and appellate courts having jurisdiction of appeals in such
courts, and each of the parties hereto irrevocably and unconditionally agrees
that all claims in respect of any such suit, action, or proceeding may be heard
and determined in such New York State court or, to the extent permitted by law,
in such federal court;
(b) consents that any such suit, action or proceeding may be
brought in such courts and waives any objection that it may now or hereafter
have to the venue or jurisdiction of any such action or proceeding in such court
or that such action or proceeding was brought in an inconvenient forum and
agrees not to plead or claim the same;
(c) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or certified
mail (or any substantially similar form of mail), postage prepaid, to such party
as provided in Section 4.3 hereof; and
(d) agrees that nothing herein shall affect the right to
effect service of process in any other manner permitted by New York law.
4.7 Successors and Assigns. This Agreement shall be binding upon,
and shall inure to the benefit of, the parties hereto and their respective
successors and assigns. Nothing contained in this Agreement, express or implied,
is intended to confer upon any other person or entity any benefits, rights or
remedies.
4.8 Severability. In case any one or more of the provisions
contained in this Agreement shall be invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining provisions
contained herein and therein shall not in any way be affected or impaired
thereby. The parties shall endeavor in good faith negotiations to replace the
invalid, illegal or unenforceable provisions with valid provisions the economic
effect of which comes as close as possible to that of the invalid, illegal or
unenforceable provisions.
4.9 Section Headings. The section headings used herein are for
convenience of reference only, are not part of this Agreement and are not to
affect the construction of or be taken into consideration in interpreting this
Agreement.
4.10 Expenses. Except as expressly otherwise provided herein, each
party shall bear its own expenses incurred in connection with the preparation,
execution and performance of
15
this Agreement and the transactions contemplated hereby, including all fees and
expenses of agents, representatives, counsel and accountants.
4.11 Counterparts; Facsimile Signatures. This Agreement may be
executed in two or more counterparts, all of which shall be considered one and
the same agreement, and shall become effective when one or more counterparts
have been signed by each of the parties and delivered (by facsimile or
otherwise) to the other parties, it being understood that all parties need not
sign the same counterpart. Any counterpart or other signature hereupon delivered
by facsimile shall be deemed for all purposes as constituting good and valid
execution and delivery of this Agreement by such party.
4.12 Descriptive Headings. The descriptive headings of this
Agreement are inserted for convenience only and do not constitute a part of this
Agreement.
4.13 Further Agreements. The parties agree that they will execute
any further instruments and perform any acts that may become necessary or
desirable to carry out this Agreement.
[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF, each party hereto has caused this Agreement to
be duly executed, all as of the day and year above written.
SPANISH BROADCASTING SYSTEM, INC.
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President, Chief
Financial Officer and
Secretary
INFINITY MEDIA CORPORATION
By: /s/ Xxxxxxx Xxxxxxxxx
---------------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Executive Vice President and
Chief Financial Officer
