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EXHIBIT 10.9
REGISTRATION RIGHTS AGREEMENT
DATED AS OF JANUARY 27, 1998
BY AND AMONG
LIBERTY GROUP PUBLISHING, INC.,
AS ISSUER
AND
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION,
AS INITIAL PURCHASER
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REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made and
entered into as of January 27, 1998, between LIBERTY GROUP PUBLISHING, INC., a
Delaware corporation (the "Company"), and XXXXXXXXX, LUFKIN & XXXXXXXX
SECURITIES CORPORATION (the "Initial Purchaser").
This Agreement is made pursuant to the Purchase Agreement, dated
January 20, 1998, between the Company and the Initial Purchaser (the "Purchase
Agreement"), which provides for the sale by the Company to the Initial
Purchaser of 1,800,000 shares of Series A 14 3/4% Senior Redeemable
Exchangeable Cumulative Preferred Stock, par value $0.01 per share, with a
liquidation preference of $25 per share (the "Series A Senior Preferred
Stock"), exchangeable at the option of the Company for the Company's 14 3/4%
Senior Subordinated Debentures due 2010 (the "Series A Exchange Debentures").
In order to induce the Initial Purchaser to enter into the Purchase Agreement,
the Company has agreed to provide to the Initial Purchaser and its respective
direct and indirect transferees, among other things, the registration rights
for the Series A Senior Preferred Stock and Series A Exchange Debentures set
forth in this Agreement. The execution of this Agreement is a condition to the
closing of the transactions contemplated by the Purchase Agreement.
For purposes of this Agreement and the registration requirements
contained herein, if the Series A Senior Preferred Stock is exchanged for
Series A Exchange Debentures when the Series A Senior Preferred Stock
constitutes Transfer Restricted Securities, all references herein to Series A
Senior Preferred Stock shall be deemed to refer to such Series A Exchange
Debentures, with similar appropriate modifications (e.g., "liquidation
preference", "transfer agent" and "dividend" shall be deemed to refer to
"principal amount", "Trustee" and "interest," respectively).
The parties hereby agree as follows:
1. Definitions
As used in this Agreement, the following terms shall have the
following meanings (and, unless otherwise indicated, capitalized terms used
herein without definition shall have the respective meanings ascribed to them
by the Purchase Agreement):
Applicable Period: See Section 2(b) hereof.
Certificate of Designations: The Certificate of Designations governing
the Series A Senior Preferred Stock and the Exchange Senior Preferred Stock as
filed with the Secretary of State of the State of Delaware.
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Company: See the introductory paragraphs to this Agreement.
controlling person: See Section 7 hereof.
DTC: See Section 5(i) hereof.
Effectiveness Period: See Section 3(a) hereof.
Effectiveness Target Date: See Section 4(a)(ii) hereof.
Exchange Act: The Securities Exchange Act of 1934, as amended, and
the rules and regulations of the SEC promulgated thereunder.
Exchange Debentures: The Series A Exchange Debentures and the Series B
Exchange Debentures issuable in exchange therefor.
Exchange Indenture: The Indenture, dated as of the date hereof, by
and between the Company and State Street Bank and Trust Company, as trustee (the
"Trustee"), pursuant to which the Exchange Debentures may be issued, as amended
or supplemented from time to time in accordance with the terms thereof.
Exchange Offer: See Section 2(a) hereof.
Exchange Offer Registration Statement: See Section 2(a) hereof.
Exchange Senior Preferred Stock: See Section 2(a) hereof.
Holder: Any holder of Transfer Restricted Securities.
indemnified party: See Section 7 hereof.
Indemnified Person: See Section 7 hereof.
indemnifying person: See Section 7 hereof.
Initial Purchaser: See the introductory paragraphs to this Agreement.
Inspectors: See Section 5(m) hereof.
Issue Date: As defined in the Offering Memorandum.
Liquidated Damages: See Section 4(a) hereof.
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NASD: See Section 5(q) hereof.
Offering Memorandum: The final Offering Memorandum dated January 15,
1998 as supplemented by the Supplement To Offering Memorandum dated January 20,
1998, including a supplement describing the Series A Senior Preferred Stock,
dated January 20, 1998.
Participating Broker-Dealer: See Section 2(b) hereof.
Person or person: An individual, trustee, corporation, partnership,
joint stock company, trust, unincorporated association, union, business
association, limited liability company, limited liability partnership, firm or
other legal entity.
Prospectus: The prospectus included in any Registration Statement
(including, without limitation, any prospectus subject to completion and a
prospectus that includes any information previously omitted from a prospectus
filed as part of an effective registration statement in reliance upon Rule 430A
promulgated under the Securities Act), as amended or supplemented by any
prospectus supplement, with respect to the offering of any portion of the
Exchange Senior Preferred Stock and/or the Transfer Restricted Securities (as
applicable), covered by such Registration Statement, and all other amendments
and supplements to the Prospectus, including post-effective amendments, and all
material incorporated by reference or deemed to be incorporated by reference in
such Prospectus.
Purchase Agreement: See the introductory paragraphs to this Agreement.
Records: See Section 5(m) hereof.
Registration Default: See Section 4(a) hereof.
Registration Statement: The Exchange Offer Registration Statement or a
registration statement of the Company that otherwise covers any of the Transfer
Restricted Securities pursuant to the provisions of this Agreement, including
the Prospectus, amendments and supplements to such registration statement,
including post-effective amendments, all exhibits, and all material
incorporated by reference or deemed to be incorporated by reference in such
registration statement.
Rule 144: Rule 144 promulgated pursuant to the Securities Act, as
currently in effect, as such rule may be amended from time to time, or any
similar rule or regulation hereafter adopted by the SEC.
Rule 144A: Rule 144A promulgated pursuant to the Securities Act, as
currently in effect, as such rule may be amended from time to time, or any
similar rule or regulation hereafter adopted by the SEC.
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Rule 415: Rule 415 promulgated pursuant to the Securities Act, as
such rule may be amended from time to time, or any similar rule or regulation
hereafter adopted by the SEC.
SEC: The Securities and Exchange Commission.
Securities Act: The Securities Act of 1933, as amended, and the rules
and regulations of the SEC promulgated thereunder.
Series A Senior Preferred Stock: See the introductory paragraphs to
this Agreement.
Series B Exchange Debentures: See Section 2(a) hereof.
Shelf Notice: See Section 2(c) hereof.
Shelf Registration Statement: See Section 3(a) hereof.
TIA: The Trust Indenture Act of 1939, as amended, and the rules and
regulations of the SEC promulgated thereunder.
Transfer Agent: BankBoston, N.A. or such other transfer agent for the
Senior Preferred Stock appointed by the Company.
Transfer Restricted Securities: The Series A Senior Preferred Stock
upon original issuance thereof and at all times subsequent thereto, until in
the case of any such Series A Senior Preferred Stock, the earliest to occur of,
the date on which (i) a Registration Statement covering such has been declared
effective by the SEC and such Series A Senior Preferred Stock has been disposed
of in accordance with such effective Registration Statement, (ii) such Series A
Senior Preferred Stock is sold in compliance with Rule 144 or is eligible for
sale under Rule 144(k) or (iii) such Series A Senior Preferred Stock ceases to
be outstanding (including, without limitation, upon an exchange of such Series
A Senior Preferred Stock for Series B Senior Preferred Stock in the Exchange
Offer).
Trustee: See the definition of Exchange Indenture.
Underwritten registration or underwritten offering: A registration in
which securities of the Company are sold to an underwriter for reoffering to
the public.
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2. Exchange Offer
(a) The Company agrees to file with the SEC within 60 days after the
Issue Date a registration statement under the Securities Act with respect to an
offer to exchange (the "Exchange Offer") any and all of the Transfer Restricted
Securities for a like number of shares of (with a liquidation preference equal
to that of the surrendered shares) registered preferred stock of the Company
(the "Exchange Senior Preferred Stock"), which Exchange Senior Preferred Stock
will be (i) substantially identical in all material respects to the Series A
Senior Preferred Stock, except that such Exchange Senior Preferred Stock will
not contain terms with respect to transfer restrictions and will be
exchangeable for registered 14 3/4% Senior Subordinated Debentures due 2010
(the "Series B Exchange Debentures") and (ii) registered pursuant to an
effective Registration Statement in compliance with the Securities Act. The
Exchange Offer will be registered pursuant to the Securities Act on an
appropriate form of Registration Statement (the "Exchange Offer Registration
Statement"), and will comply with all applicable tender offer rules and
regulations promulgated pursuant to the Exchange Act and shall be duly
registered or qualified pursuant to all applicable state securities or Blue Sky
laws, except as would subject the Company to general taxation or service of
process where it is not currently subject. The Exchange Offer shall not be
subject to any condition, other than that the Exchange Offer does not violate
any applicable law, policy or interpretation of the staff of the SEC. No
securities shall be included in the Exchange Offer Registration Statement other
than the Exchange Senior Preferred Stock (and the Exchange Debentures). The
Company agrees (x) to use its reasonable best efforts to cause such Exchange
Offer Registration Statement to be declared effective under the Securities Act
within 135 days after the Issue Date; (y) to keep the Exchange Offer open for
not less than 30 days (or such longer period required by applicable law) after
the date that the notice of the Exchange Offer referred to below is mailed to
Holders; and (z) to use its reasonable best efforts to consummate the Exchange
Offer within 45 days after the Effectiveness Target Date. As promptly as
practicable after the Exchange Offer Registration Statement is declared
effective, the Company will commence the offer of Exchange Senior Preferred
Stock in exchange for properly tendered Series A Senior Preferred Stock. For
each share of Series A Senior Preferred Stock validly tendered pursuant to the
Exchange Offer, the holder of such Series A Senior Preferred Stock will receive
a share of Exchange Senior Preferred Stock having a liquidation preference
equal to that of the tendered Series A Senior Preferred Stock.
Each Holder who participates in the Exchange Offer will be required to
represent that any Exchange Senior Preferred Stock received by it will be
acquired in the ordinary course of its business, that at the time of the
consummation of the Exchange Offer such Holder will have no arrangement or
understanding with any person to participate in the distribution (within the
meaning of the Securities Act) of the Exchange Senior Preferred Stock, and that
such Holder is not an "affiliate" of the Company within the meaning of Rule 405
of the Securities Act (or that if it is such an affiliate, it will comply with
the registration and prospectus delivery requirements of the Securities Act to
the extent applicable). Each
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Holder that is not a Participating Broker-Dealer will be required to
represent that it is not engaged in, and does not intend to engage in, the
distribution of the Exchange Senior Preferred Stock. Each Holder that (i) is a
Participating Broker-Dealer and (ii) will receive Exchange Senior Preferred
Stock for its own account in exchange for the Transfer Restricted Securities
that it acquired as the result of market-making or other trading activities
will be required to acknowledge that it will deliver a Prospectus as required
by law in connection with any resale of such Exchange Senior Preferred Stock.
The Company shall allow Participating Broker-Dealers and other persons, if any,
subject to prospectus delivery requirements to use the Prospectus included in
the Exchange Offer Registration Statement in connection with the resale of the
Exchange Senior Preferred Stock. Upon consummation of the Exchange Offer in
accordance with this Agreement, the Company shall have no further obligation to
register Transfer Restricted Securities pursuant to Section 3 of this
Agreement.
(b) The Company shall include within the Exchange Offer Registration
Statement a section entitled "Plan of Distribution," reasonably acceptable to
the Initial Purchaser, which shall contain a summary statement of the positions
taken or policies made by the staff of the SEC with respect to the potential
"underwriter" status of any broker-dealer that acquired Series A Senior
Preferred Stock as the result of market-making activities or other trading
activities (and not directly from the Company) and is the beneficial owner (as
defined in Rule 13d-3 under the Exchange Act) of Exchange Senior Preferred
Stock received by such broker-dealer in the Exchange Offer (a "Participating
Broker-Dealer"). Such "Plan of Distribution" section shall also allow the use
of the Prospectus by all persons subject to the prospectus delivery
requirements of the Securities Act, including all Participating Broker-Dealers,
and include a statement describing the means by which Participating
Broker-Dealers may resell the Exchange Senior Preferred Stock.
The Company shall use its reasonable best efforts to keep the Exchange
Offer Registration Statement effective under the Securities Act and to amend
and supplement the Prospectus contained therein, in order to permit such
Prospectus to be lawfully delivered by all persons subject to the prospectus
delivery requirements of the Securities Act for such period of time as is
necessary to comply with applicable law and the policies, rules and regulations
of the SEC as announced from time to time in connection with any resale of the
Exchange Senior Preferred Stock provided that such period shall not exceed 180
days from the consummation of the Exchange Offer (or such longer period if
extended pursuant to the last paragraph of Section 5 hereof) (the "Applicable
Period").
In connection with the Exchange Offer, the Company shall:
(i) mail as promptly as practicable to each Holder a copy of the
Prospectus forming part of the Exchange Offer Registration Statement,
together with an appropriate letter of transmittal and related documents;
(ii) utilize the services of a depositary for the Exchange Offer with
an address
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in the Borough of Manhattan, The City of New York; and
(iii) permit Holders to withdraw tendered Series A Senior Preferred
Stock at any time prior to the close of business, New York time, on the
last business day on which the Exchange Offer shall remain open.
As soon as practicable after the close of the Exchange Offer, the
Company shall:
(i) accept for exchange all Series A Senior Preferred Stock tendered
and not validly withdrawn pursuant to the Exchange Offer;
(ii) deliver, or cause to be delivered, to the Transfer Agent for
cancellation all Series A Senior Preferred Stock so accepted for exchange;
and
(iii) cause the Transfer Agent to authenticate and deliver promptly to
each Holder of Series A Senior Preferred Stock, Exchange Senior Preferred
Stock equal in liquidation preference to the Series A Senior Preferred
Stock of such Holder so accepted for exchange.
(c) If (1) prior to the consummation of the Exchange Offer, any
change in law or in the applicable interpretations of the staff of the SEC do
not permit the Company to effect the Exchange Offer, or (2) for any other
reason the Exchange Offer is not consummated within 180 days of the Issue Date,
then the Company shall as promptly as practicable deliver to the Holders and
the Transfer Agent written notice thereof (the "Shelf Notice"), and the Company
shall file a Registration Statement pursuant to Section 3 hereof. Following
the delivery of a Shelf Notice to the Holders of Transfer Restricted
Securities, the Company shall not have any further obligation to conduct the
Exchange Offer pursuant to this Section 2.
3. Shelf Registration
If the Company is required to deliver a Shelf Notice as contemplated
by Section 2(c) hereof, then:
(a) Shelf Registration. The Company shall prepare and file with the
SEC, within 45 days after such filing obligation arises, a Registration
Statement for an offering to be made on a continuous basis pursuant to Rule 415
covering all of the Transfer Restricted Securities (the "Shelf Registration
Statement"). The Shelf Registration Statement shall be on Form S-1 or another
appropriate form permitting registration of the Transfer Restricted Securities
for resale by the Holders in the manner or manners designated by the Holders of
a majority in aggregate liquidation preference of the outstanding Transfer
Restricted Securities (including, without limitation, an underwritten
offering). The Company shall not
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permit any securities other than the Transfer Restricted Securities to be
included in the Shelf Registration Statement. The Company shall use its
reasonable best efforts to cause the Shelf Registration Statement to be
declared effective pursuant to the Securities Act on or prior to 135 days after
such obligation arises and to keep the Shelf Registration Statement
continuously effective under the Securities Act until the earlier of (i) the
date which is 24 months following the Issue Date (or such longer period if
extended pursuant to the last paragraph of Section 5 hereof), (ii) the date
that all Transfer Restricted Securities covered by the Shelf Registration
Statement have been sold in the manner set forth and as contemplated in the
Shelf Registration Statement or (iii) the date that there ceases to be
outstanding any Transfer Restricted Securities (the "Effectiveness Period").
(b) Supplements and Amendments. The Company shall use its reasonable
best efforts to keep the Shelf Registration Statements continuously effective
during the Effectiveness Period by supplementing and amending the Shelf
Registration Statement if required by the rules, regulations or instructions
applicable to the registration form used for such Shelf Registration Statement,
or if reasonably requested in writing timely received setting forth the reasons
for such request by the Holders of a majority in aggregate liquidation
preference of the Transfer Restricted Securities covered by such Registration
Statement or by any underwriter of such Transfer Restricted Securities.
4. Liquidated Damages
(a) The Company and the Initial Purchaser agree that the Holders of
Transfer Restricted Securities will suffer damages if the Company fails to
fulfill its obligations pursuant to Section 2 or Section 3 hereof and that it
would not be possible to ascertain the extent of such damages. Accordingly, in
the event of such failure by the Company to fulfill such obligations, the
Company hereby agrees to pay liquidated damages ("Liquidated Damages") to each
Holder of Transfer Restricted Securities under the circumstances and to the
extent set forth below:
(i) if either the Exchange Offer Registration Statement or, if
applicable, the Shelf Registration Statement has not been filed with the
SEC on or prior to the applicable date specified for such filing; or
(ii) if either the Exchange Offer Registration Statement or, if
applicable, the Shelf Registration Statement is not declared effective by
the SEC on or prior to the applicable date specified for such
effectiveness (the "Effectiveness Target Date"); or
(iii) if an Exchange Offer Registration Statement becomes effective,
but the Company fails to consummate the Exchange Offer within 45 days of
the earlier of the effectiveness of such registration statement or 135
days after the Issue Date; or
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(iv) if the Shelf Registration Statement is declared effective by the
SEC but thereafter such Shelf Registration Statement ceases to be
effective or usable in connection with resales of Series A Senior
Preferred Stock during the Effectiveness Period;
(any of the foregoing, a "Registration Default"), then the Company shall pay
Liquidated Damages to each Holder, with respect to the first 90-day period or
portion thereof immediately following the occurrence of such Registration
Default, in an amount equal to $0.05 per week per $1,000 liquidation preference
of Transfer Restricted Securities held by such Holder. Upon a Registration
Default, Liquidated Damages will accrue at the rate specified above until such
Registration Default is cured and the amount of Liquidated Damages will
increase by an additional $0.05 per week per $1,000 liquidation preference of
Transfer Restricted Securities with respect to each subsequent 90-day period or
portion thereof, up to a maximum amount of Liquidated Damages of $0.30 per week
per $1,000 liquidation preference of Transfer Restricted Securities (regardless
of whether one or more than one Registration Default is outstanding).
Following the cure of any Registration Default relating to any Transfer
Restricted Securities, the accrual of Liquidated Damages with respect to such
Registration Default will cease. A Registration Default under clause (i) above
shall be cured on the date that the Exchange Offer Registration Statement or
the Shelf Registration Statement, as applicable, is filed with the SEC; a
Registration Default under clause (ii) above shall be cured on the date that
the Exchange Offer Registration Statement or the Shelf Registration Statement,
as applicable, is declared effective by the SEC; a Registration Default under
clause (iii) above shall be cured on the earlier of the date (A) the Exchange
Offer is consummated or (B) the Company delivers a Shelf Notice to the Holders
of Transfer Restricted Securities; and a Registration Default under clause (iv)
above shall be cured on the earlier of (A) the date the Shelf Registration
Statement is declared effective and is usable or (B) the Effectiveness Period
expires.
(b) The Company shall notify the Transfer Agent within one business
day after each and every date on which a Registration Default first occurs.
Accrued and unpaid Liquidated Damages shall be paid by the Company to the
Holders by wire transfer of immediately available funds to the accounts
specified by them or by mailing checks to their registered addresses if no such
accounts have been specified on each dividend payment date provided in the
Certificate of Designations (whether or not any dividends is then payable on
the Series A Senior Preferred Stock) and on each payment date provided in the
Certificate of Designations, including, without limitation, whether upon
redemption, maturity (by acceleration or otherwise), purchase upon a change of
control or purchase upon a sale of assets. Each obligation to pay Liquidated
Damages with respect to any Registration Default shall be deemed to commence
accruing on the date of such Registration Default and to cease accruing when
such Registration Default has been cured. In no event shall the Company pay
Liquidated Damages in excess of the applicable maximum weekly amount set forth
above, regardless of whether one or multiple Registration Defaults exist.
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(c) The parties hereto agree that the Liquidated Damages provided for
in this Section 4 constitute a reasonable estimate of the damages that will be
suffered by Holders by reason of the failure to file the Exchange Offer
Registration Statement or the Shelf Registration Statement, the failure of the
Exchange Offer Registration Statement or the Shelf Registration Statement to be
declared effective, the failure to consummate the Exchange Offer or the failure
of the Shelf Registration Statement to remain effective, as the case may be, in
accordance with this Agreement.
5. Registration Procedures
In connection with the registration of any Exchange Senior Preferred
Stock or Transfer Restricted Securities pursuant to Sections 2 or 3 hereof, the
Company shall effect such registration to permit the sale of such Exchange
Senior Preferred Stock or Transfer Restricted Securities (as applicable) in
accordance with the intended method or methods of disposition thereof, and
pursuant thereto the Company shall:
(a) Prepare and file with the SEC, a Registration Statement or
Registration Statements as prescribed by Section 2 or Section 3 hereof, and to
use its reasonable best efforts to cause such Registration Statement to become
effective and remain effective as provided herein; provided that if (1) such
filing is pursuant to Section 3 hereof, or (2) a Prospectus contained in an
Exchange Offer Registration Statement filed pursuant to Section 2 hereof is
required to be delivered under the Securities Act by any Participating
Broker-Dealer who seeks to sell Exchange Senior Preferred Stock during the
Applicable Period, before filing any Registration Statement or Prospectus or
any amendments or supplements thereto, the Company shall furnish to and afford
the Holders of the Transfer Restricted Securities and each such Participating
Broker-Dealer, as the case may be, covered by such Registration Statement,
their counsel and the managing underwriters, if any, a reasonable opportunity
to review copies of all such documents (including copies of any documents to be
incorporated by reference therein and all exhibits thereto) proposed to be
filed. Such documents shall be so furnished at least 3 business days prior to
such filing, or such later date as is reasonable under the circumstances. The
Company shall not file any Registration Statement or Prospectus or any
amendments or supplements thereto in respect of which the Holders, pursuant to
this Agreement, must be afforded an opportunity to review prior to the filing
of such document, if the Holders of a majority in aggregate liquidation
preference of the Transfer Restricted Securities covered by such Registration
Statement, or such Participating Broker-Dealer, as the case may be, their
counsel, or the managing underwriters, if any, shall reasonably object within a
reasonable time after receipt of any such materials.
(b) Prepare and file with the SEC such amendments and post-effective
amendments to each Shelf Registration Statement or Exchange Offer Registration
Statement, as the case may be, as may be necessary to keep such Registration
Statement continuously effective for the Effectiveness Period or the Applicable
Period, as the case may be, or such shorter period as will terminate when all
Transfer Restricted Securities covered by such
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Registration Statement have been sold; cause the related Prospectus to be
supplemented by any required Prospectus supplement, and as so supplemented to
be filed pursuant to Rule 424 (or any similar provisions then in force) under
the Securities Act; and comply with the applicable provisions of the Securities
Act, the Exchange Act and the rules and regulations of the SEC promulgated
thereunder with respect to the disposition of all securities covered by such
Registration Statement, as so amended, or in such Prospectus, as so
supplemented, and with respect to the subsequent resale of any Exchange Senior
Preferred Stock being sold by a Participating Broker-Dealer covered by any such
Prospectus; the Company shall be deemed not to have used its reasonable best
efforts to keep a Registration Statement effective during the Applicable Period
or the Effectiveness Period, as the case may be, if it voluntarily takes any
action that would result in selling Holders of the Transfer Restricted
Securities covered thereby or Participating Broker-Dealers seeking to sell
Exchange Senior Preferred Stock not being able to sell such Transfer Restricted
Securities or such Exchange Senior Preferred Stock during such Period, unless
(i) such action is required by applicable law, or (ii) such action is taken by
the Company in good faith and for valid business reasons (not including
avoidance of its obligations hereunder), including, but not limited to,
suspension of the Registration Statement or other actions taken solely in
connection with or in anticipation of the acquisition or divestiture of assets,
material financings or other transactions effected in good faith for valid
business reasons.
(c) If (1) a Shelf Registration Statement is filed pursuant to
Section 3 hereof, or (2) a Prospectus contained in an Exchange Offer
Registration Statement filed pursuant to Section 2 hereof is required to be
delivered under the Securities Act by any Participating Broker-Dealer who seeks
to sell Exchange Senior Preferred Stock during the Applicable Period, notify
the selling Holders of Transfer Restricted Securities, or each known
Participating Broker-Dealer, as the case may be, their counsel (if previously
identified to the Company in writing) and the managing underwriters, if any, as
promptly as practicable and, if requested, confirm such notice in writing, (i)
when a Prospectus, any Prospectus supplement or post-effective amendment has
been filed, and, with respect to a Registration Statement or any post-effective
amendment, when the same has become effective (including in any such written
notice a statement that any Holder may, upon request, obtain, without charge,
one conformed copy of such Registration Statement or post-effective amendment
including financial statements and schedules, documents incorporated or deemed
to be incorporated by reference and exhibits), (ii) of the issuance by the SEC
of any stop order suspending the effectiveness of a Registration Statement or
of any order preventing or suspending the use of any Prospectus or the
initiation of any proceedings for that purpose, (iii) if at any time a
Prospectus is required by the Securities Act to be delivered in connection with
sales of the Transfer Restricted Securities or resales of the Exchange Senior
Preferred Stock the representations and warranties of the Company contained in
any agreement (including any underwriting agreement) contemplated by Section
5(1) hereof cease to be true and correct in all material respects, (iv) of the
receipt by the Company of any notification with respect to the suspension of
the qualification or exemption from qualification of a Registration Statement
or any of the Transfer Restricted Securities or the Exchange Senior
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Preferred Stock to be sold by any Participating Broker-Dealer for offer or
sale in any jurisdiction, or the initiation of any proceeding for such purpose,
(v) of the happening of any material event or any material information becoming
known that makes any statement made in such Registration Statement or related
Prospectus or any document incorporated or deemed to be incorporated therein by
reference untrue in any material respect or that requires the making of any
changes in such Registration Statement, Prospectus or documents so that, in the
case of the Registration Statement, it will not contain any untrue statement of
a material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading, and that in
the case of the Prospectus, it will not contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading, and (vi) of the Company's
reasonable determination that a post-effective amendment to a Registration
Statement would be appropriate.
(d) If (1) a Shelf Registration Statement is filed pursuant to
Section 3 hereof, or (2) a Prospectus contained in an Exchange Offer
Registration Statement filed pursuant to Section 2 hereof is required to be
delivered under the Securities Act by any Participating Broker-Dealer who seeks
to sell Exchange Senior Preferred Stock during the Applicable Period, use its
reasonable best efforts to prevent the issuance of any order suspending the
effectiveness of a Registration Statement or of any order preventing or
suspending the use of a Prospectus and, if any such order is issued, to use its
reasonable best efforts to obtain the withdrawal of any such order at the
earliest possible moment.
(e) If a Shelf Registration Statement is filed pursuant to Section 3
hereof and if requested by the managing underwriters, if any, or the Holders of
a majority in aggregate liquidation preference of the Transfer Restricted
Securities being sold in connection with an underwritten offering, (i) as
promptly as practicable incorporate in a prospectus supplement or
post-effective amendment such information relating to underwriters, if any, any
Holder of Transfer Restricted Securities or the plan of distribution of the
Transfer Restricted Securities as the managing underwriter, if any, or such
Holders may reasonably request to be included therein, (ii) make all required
filings of such prospectus supplement or such post-effective amendment as soon
as practicable after the Company has received notification of the matters to be
incorporated in such prospectus supplement or post-effective amendment pursuant
to clause (i), and (iii) supplement or make amendments to such Registration
Statement with such information as is required in connection with any
reasonable request made pursuant to clause (i).
(f) If (1) a Shelf Registration Statement is filed pursuant to
Section 3 hereof, or (2) a Prospectus contained in an Exchange Offer
Registration Statement filed pursuant to Section 2 hereof is required to be
delivered under the Securities Act by any Participating Broker-Dealer who seeks
to sell Exchange Senior Preferred Stock during the Applicable Period, furnish
to each selling Holder of Transfer Restricted Securities and to each such
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Participating Broker-Dealer who so requests and to each managing underwriter,
if any, without charge, one conformed copy of the Registration Statement or
Registration Statements and each post-effective amendment thereto, including
financial statements and schedules, and, if requested, all documents
incorporated or deemed to be incorporated therein by reference and all exhibits.
(g) If (1) a Shelf Registration Statement is filed pursuant to
Section 3 hereof, or (2) a Prospectus contained in an Exchange Offer
Registration Statement filed pursuant to Section 2 hereof is required to be
delivered under the Securities Act by any Participating Broker-Dealer who seeks
to sell Exchange Senior Preferred Stock during the Applicable Period, deliver
to each selling Holder, or each such Participating Broker-Dealer, as the case
may be, its counsel (if previously identified to the Company in writing), and
the underwriters, if any, without charge, as many copies of the Prospectus or
Prospectuses (including each form of preliminary Prospectus), and each
amendment or supplement thereto and any documents incorporated by reference
therein, as such Persons may reasonably request; and, subject to the last
paragraph of this Section 5 hereof, the Company hereby consents to the use of
such Prospectus and each amendment or supplement thereto by each of the selling
Holders or, during the Applicable Period, each such Participating
Broker-Dealer, as the case may be, and their underwriters or agents, if any,
and dealers, if any, in connection with the offering and sale of the Transfer
Restricted Securities covered by, or the sale by Participating Broker-Dealers
of the Exchange Senior Preferred Stock pursuant to, such Prospectus and any
amendment or supplement thereto.
(h) Prior to any public offering of Transfer Restricted Securities or
any delivery of a Prospectus contained in the Exchange Offer Registration
Statement by any Participating Broker-Dealer who seeks to sell Exchange Senior
Preferred Stock during the Applicable Period, use its reasonable best efforts
to register or qualify and to cooperate with the selling Holders of Transfer
Restricted Securities or each such Participating Broker-Dealer, as the case may
be, the underwriters, if any, and their respective counsel in connection with
the registration or qualification (or exemption from such registration or
qualification) of such Transfer Restricted Securities for offer and sale under
the securities or Blue Sky laws of such jurisdictions as any selling Holder,
Participating Broker-Dealer, or the managing underwriters reasonably request in
writing; keep each such registration or qualification (or exemption therefrom),
effective during the period such Registration Statement is required to be kept
effective and do any and all other acts or things reasonably necessary or
advisable to enable the disposition in such jurisdictions of the Exchange
Senior Preferred Stock held by Participating Broker-Dealers or the Transfer
Restricted Securities covered by the applicable Registration Statement;
provided that the Company shall not be required to (A) qualify as a foreign
corporation or as a dealer in securities in any jurisdiction where it is not
then so qualified, (B) take any action that would subject it to general service
of process in any such jurisdiction where it is not then so subject or (C)
subject itself to taxation in any such jurisdiction where it is not then so
subject.
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(i) If a Shelf Registration Statement is filed pursuant to Section 3
hereof, cooperate with the selling Holders of Transfer Restricted Securities
and the managing underwriters, if any, to facilitate the timely preparation and
delivery of certificates representing Transfer Restricted Securities to be
sold, which certificates shall not bear any restrictive legends and shall be in
a form eligible for deposit with The Depository Trust Company ("DTC"), and
enable such Transfer Restricted Securities to be in such denominations and
registered in such names as the managing underwriters, if any, or Holders may
reasonably request at least two business days prior to any sale of the Transfer
Restricted Securities.
(j) If (1) a Shelf Registration Statement is filed pursuant to
Section 3 hereof, or (2) a Prospectus contained in an Exchange Offer
Registration Statement filed pursuant to Section 2 hereof is required to be
delivered under the Securities Act by any Participating Broker-Dealer who seeks
to sell Exchange Senior Preferred Stock during the Applicable Period, upon the
occurrence of any event contemplated by paragraph 5(c)(v) or 5(c)(vi) above,
as promptly as practicable prepare and (subject to Section 5(a) hereof) file
with the SEC, at the expense of the Company, a supplement or post-effective
amendment to the Registration Statement or a supplement to the related
Prospectus or any document incorporated or deemed to be incorporated therein by
reference, or file any other required document so that, as thereafter delivered
to the purchasers of the Transfer Restricted Securities being sold thereunder
or to the purchasers of the Exchange Senior Preferred Stock to whom such
Prospectus will be delivered by a Participating Broker-Dealer, any such
Prospectus will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading.
(k) Prior to the effective date of the first Registration Statement
relating to the Transfer Restricted Securities, (i) provide the Transfer Agent
with certificates for the Transfer Restricted Securities in a form eligible for
deposit with DTC and (ii) provide a CUSIP number for the Transfer Restricted
Securities.
(l) In connection with an underwritten offering of Transfer
Restricted Securities pursuant to a Shelf Registration Statement, enter into an
underwriting agreement as is customary in underwritten offerings and take all
other customary and appropriate actions as are reasonably requested by the
managing underwriters in order to expedite or facilitate the registration or
the disposition of such Transfer Restricted Securities, and in such connection,
(i) make such representations and warranties to the underwriters, with respect
to the business of the Company and the Registration Statement, Prospectus and
documents, if any, incorporated or deemed to be incorporated by reference
therein, in each case, as are customarily made by companies to underwriters in
underwritten offerings; (ii) obtain opinions of counsel to the Company and
updates thereof in form and substance reasonably satisfactory to the managing
underwriters, addressed to the underwriters covering the matters customarily
covered in opinions requested in underwritten offerings and such other matters
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as may be reasonably requested by underwriters; (iii) obtain "cold comfort"
letters and updates thereof in form and substance reasonably satisfactory to
the managing underwriters from the independent certified public accountants of
the Company (and, if necessary, any other independent certified public
accountants of any subsidiary of the Company or of any business acquired or
proposed to be acquired by its for which financial statements and financial
data are, or are required to be, included in the Registration Statement),
addressed to each of the underwriters, such letters to be in customary form and
covering matters of the type customarily covered in "cold comfort" letters in
connection with underwritten offerings and such other matters as are reasonably
requested by underwriters as permitted by Statement on Auditing Standards No.
72; and (iv) if an underwriting agreement is entered into, the same shall
contain indemnification provisions and procedures no less favorable than those
set forth in Section 7 hereof (or such other reasonable provisions and
procedures acceptable to Holders of a majority in aggregate liquidation
preference of Transfer Restricted Securities covered by such Registration
Statement and the managing underwriters) with respect to all parties to be
indemnified pursuant to said Section. The above shall be done at each closing
under such underwriting agreement, or as and to the extent required thereunder.
(m) If (1) a Shelf Registration Statement is filed pursuant to
Section 3 hereof, or (2) a Prospectus contained in an Exchange Offer
Registration Statement filed pursuant to Section 2 hereof is required to be
delivered under the Securities Act by any Participating Broker-Dealer who seeks
to sell Exchange Senior Preferred Stock during the Applicable Period, make
available for inspection by any selling Holder of such Transfer Restricted
Securities being sold, or each such Participating Broker-Dealer, as the case
may be, any underwriter participating in any such disposition of Transfer
Restricted Securities, if any, and any attorney, accountant or other agent
retained by any such selling Holder or each such Participating Broker-Dealer,
as the case may be, or underwriter (collectively, the "Inspectors"), at the
offices where normally kept, during reasonable business hours, all financial
and other records, pertinent corporate documents and properties of the Company
and its subsidiaries (collectively, the "Records"), as shall be reasonably
necessary to enable them to exercise any applicable due diligence
responsibilities, and cause the officers, directors and employees of the
Company and its subsidiaries to supply all relevant information reasonably
requested by any such Inspector in connection with such Registration Statement.
Records which the Company determines, in good faith, to be confidential and any
Records which it notifies the Inspectors are confidential shall not be
disclosed by the Inspectors, unless (i) the release of such Records is ordered
pursuant to a subpoena or other order from a court of competent jurisdiction or
(ii) the information in such Records has been made generally available to the
public, other than as a result of the disclosure or failure to safeguard by
such Inspector. No information obtained pursuant to this paragraph (m) shall
be used by any person or entity obtaining access thereto in connection with any
transactions in securities of the Company in violation of law. In addition,
notwithstanding anything to the contrary contained herein, the Company shall
not be required to provide any information to the Holders or the underwriters
that the Company is prohibited by law from disclosing.
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(n) If Transfer Restricted Securities refers to Exchange Debentures,
provide an indenture trustee for the Exchange Indenture and cause the Exchange
Indenture to be qualified under the TIA not later than the effective date of
the Exchange Offer or the first Registration Statement relating to the Transfer
Restricted Securities; and in connection therewith, cooperate with the trustee
under any such indenture and the Holders of the Transfer Restricted Securities,
to effect such changes to such indenture as may be required for such indenture
to be so qualified in accordance with the terms of the TIA; and execute, and
use its reasonable best efforts to cause such trustee to execute, all customary
documents as may be required to effect such changes, and all other forms and
documents required to be filed with the SEC to enable such indenture to be so
qualified in a timely manner.
(o) Comply with all applicable rules and regulations of the SEC and,
as soon as reasonably practicable after the effective date of the applicable
Registration Statement, make generally available to the holders of Exchange
Senior Preferred Stock and the Holders, if any, a consolidated earning
statement of the Company (which need not be certified by an independent public
accountant) that satisfies the provisions of Section 11(a) of the Securities
Act and Rule 158 thereunder.
(p) If an Exchange Offer is to be consummated, upon delivery of the
Transfer Restricted Securities by Holders to the Company (or to such other
Person as directed by the Company), in exchange for the Exchange Senior
Preferred Stock, the Company shall, where appropriate, xxxx or cause to be
marked on such Transfer Restricted Securities that such Transfer Restricted
Securities are being cancelled in exchange for the Exchange Senior Preferred
Stock; in no event shall such Transfer Restricted Securities be marked as paid
or otherwise satisfied.
(q) Cooperate with each seller of Transfer Restricted Securities
covered by any Registration Statement and each underwriter, if any,
participating in the disposition of such Transfer Restricted Securities and
their respective counsel in connection with any filings required to be made
with the National Association of Securities Dealers, Inc. (the "NASD").
(r) Use its reasonable best efforts to take all other steps necessary
to effect the registration of the Transfer Restricted Securities covered by a
Registration Statement contemplated hereby.
The Company may require each seller of Transfer Restricted Securities
or Participating Broker-Dealer as to which any registration is being effected
to furnish to the Company such information regarding such seller or
Participating Broker-Dealer and the distribution of such Transfer Restricted
Securities or Exchange Senior Preferred Stock to be sold by such Participating
Broker-Dealer, as the case may be, as the Company may, from time to time,
reasonably request. The Company may exclude from such registration the
Transfer Restricted Securities or Exchange Senior Preferred Stock of any seller
or
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Participating Broker-Dealer, as the case may be, who fails to furnish such
information within a reasonable time (and in any event within ten business
days) after receiving such request. Each seller of Transfer Restricted
Securities as to which a Shelf Registration is being effected, and each
Participating Broker-Dealer utilizing a Prospectus from the Exchange Offer
Registration Statement, agrees to furnish reasonably promptly to the Company
all information required to be disclosed in order to make any information
previously furnished to the Company by such seller or Participating
Broker-Dealer not materially misleading. No such seller or Participating
Broker Dealer, as applicable, shall be entitled to Liquidated Damages pursuant
to Section 4 hereof if such person fails so to provide all such reasonably
requested information to the extent that any such failure by such person is the
primary reason for the assessment of Liquidated Damages.
Each Holder of Transfer Restricted Securities and each Participating
Broker-Dealer agrees by acquisition of such Transfer Restricted Securities or
Exchange Senior Preferred Stock to be sold by such Participating Broker-Dealer,
as the case may be, that, upon receipt of any notice from the Company of the
happening of any event of the kind described in Section 5(c)(ii), 5(c)(iv),
5(c)(v) or 5(c)(vi) hereof, such Holder shall forthwith discontinue disposition
of such Transfer Restricted Securities covered by such Registration Statement
or Prospectus or such Exchange Senior Preferred Stock to be sold by such
Participating Broker-Dealer, as the case may be, until such Holder's or
Participating Broker-Dealer's receipt of the copies of the supplemented or
amended Prospectus contemplated by Section 5(j) hereof, or until it is advised
in writing by the Company that the use of the applicable Prospectus may be
resumed, and has received copies of any amendments or supplements thereto. In
the event the Company gives any such notice, and subsequently delivers to each
Holder or Participating Broker-Dealer copies of such supplemented or amended
Prospectus, then each Holder or Participating Broker-Dealer will either destroy
or return to the Company all copies (other than permanent file copies then in
such Holder's or Participating Broker-Dealer's possession) of any Prospectus
that, as a result of such occurrence leading to such notice, is no longer
accurate.
6. Registration Expenses
(a) All fees and expenses incident to the performance of or
compliance with this Agreement by the Company shall be borne by the Company,
whether or not the Exchange Offer or a Shelf Registration Statement is filed or
becomes effective, including, without limitation, (i) all registration and
filing fees (including, without limitation, (A) fees with respect to filings
required to be made with the NASD in connection with an underwritten offering
and (B) fees and expenses of compliance with state securities or Blue Sky laws
(including, without limitation, reasonable fees and disbursements of counsel in
connection with Blue Sky qualifications of the Transfer Restricted Securities
or Exchange Senior Preferred Stock), (ii) printing expenses (including, without
limitation, expenses of printing certificates for Transfer Restricted
Securities or Exchange Senior Preferred Stock in a form eligible for deposit
with DTC and of printing Prospectuses if the printing of
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Prospectuses is requested by the managing underwriters, if any, or, in
respect of Transfer Restricted Securities or Exchange Senior Preferred Stock to
be sold by any Participating Broker-Dealer during the Applicable Period, by the
Holders of a majority in aggregate liquidation preference of the Transfer
Restricted Securities included in any Registration Statement or of such
Exchange Senior Preferred Stock, as the case may be), (iii) fees and
disbursements of counsel for the Company, (iv) fees and disbursements of all
independent certified public accountants referred to in Section 5(i)(iii)
hereof (including, without limitation, the expenses of any special audit and
"cold comfort" letters required by or incident to such performance), (v) the
fees and expenses of any "qualified independent underwriter" or other
independent appraiser participating in an offering pursuant to Section 3 of
Schedule E to the By-laws of the NASD, (vi) rating agency fees, (vii) fees and
expenses of all other Persons retained by the Company, (viii) internal expenses
of the Company (including, without limitation, all salaries and expenses of
officers and employees of the Company performing legal or accounting duties),
(ix) the expense of any required financial audits and (x) the fees and expenses
incurred in connection with the listing of the securities to be registered on
any securities exchange. Nothing contained in this Section 6 shall create an
obligation on the part of the Company to pay or reimburse any Holder for any
underwriting commission or discount attributable to any such Holder's Transfer
Restricted Securities included in an underwritten offering pursuant to a
Registration Statement filed in accordance with the terms of this Agreement, or
to guarantee such Holder any profit or proceeds from the sale of such Series A
Senior Preferred Stock.
(b) In connection with any Shelf Registration Statement hereunder,
the Company shall reimburse the Holders of the Transfer Restricted Securities
being registered in such registration for the reasonable fees and disbursements
of not more than one firm of attorneys chosen by the Holders of a majority in
aggregate liquidation preference of the Transfer Restricted Securities to be
included in such Registration Statement.
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7. Indemnification
The Company agrees to indemnify and hold harmless (i) the Initial
Purchaser, each Holder of Transfer Restricted Securities, each Holder of
Exchange Senior Preferred Stock and each Participating Broker-Dealer, (ii) each
person, if any, who controls (within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act) any such Person (any of the
persons referred to in this clause (ii) being hereinafter referred to as a
"controlling person"), and (iii) the respective officers, directors, partners,
employees, representatives and agents of any of such Person or any controlling
person (any person referred to in clause (i), (ii) or (iii) may hereinafter be
referred to as an "Indemnified Person") to the fullest extent lawful, from and
against any and all losses, claims, damages, liabilities, judgments, actions
and reasonable expenses (including, without limitation, and as incurred,
reimbursement of all reasonable costs of investigating, preparing, pursuing or
defending any claim or action or any investigation or proceeding by any
governmental agency or body, commenced or threatened, including the reasonable
fees and expenses of counsel to any Indemnified Person) caused by, related to,
based upon, arising out of or in connection with any untrue statement or
alleged untrue statement of a material fact contained in any Registration
Statement or Prospectus (as amended or supplemented if the Company shall have
furnished any amendments or supplements thereto) or any preliminary Prospectus,
or caused by, arising out of or based upon any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which they
were made, not misleading, except insofar as such losses, claims, damages,
liabilities or expenses are caused by (i) any untrue statement or omission or
alleged untrue statement or omission made in reliance upon and in conformity
with information relating to any Indemnified Person furnished to the Company or
any underwriter in writing by such Indemnified Person expressly for use
therein, or (ii) any untrue statement contained in or omission from a
preliminary Prospectus or Prospectus, as applicable, if a copy of the
Prospectus (as then amended or supplemented, if the Company shall have
furnished to or on behalf of the Holder participating in the distribution
relating to the relevant Registration Statement any amendments or supplements
thereto) was not sent or given by or on behalf of such Holder to the person
asserting any such losses, liabilities, claims, damages or expenses who
purchased Series A Senior Preferred Stock, if such is required by law at or
prior to the written confirmation of the sale of such Series A Senior Preferred
Stock to such person and the untrue statement contained in or omission from
such preliminary Prospectus or Prospectus, as applicable, was corrected in the
Prospectus (as then amended or supplemented). The Company shall notify the
Holders promptly upon becoming aware thereof of the institution, threat or
assertion of any claim, proceeding (including any governmental investigation)
or litigation of which it shall have become aware in connection with the
matters addressed by this Agreement which involves the Company or an
Indemnified Person.
In connection with any Registration Statement in which a Holder of
Transfer Restricted Securities is participating, such Holder of Transfer
Restricted Securities agrees, severally and not jointly, to indemnify and hold
harmless the Company and its directors,
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officers, partners, employees, representatives and agents and each person
who controls the Company within the meaning of Section 15 of the Securities Act
or Section 20 of the Exchange Act to the same extent as the foregoing indemnity
from the Company to each Indemnified Person, but only with reference to
information relating to such Indemnified Person and furnished to the Company in
writing by such Indemnified Person expressly for use in any Registration
Statement or Prospectus, any amendment or supplement thereto, or any
preliminary Prospectus. The liability of any Indemnified Person pursuant to
this paragraph shall in no event exceed the proceeds (net of reasonable
commissions) received by such Indemnified Person from sales of Transfer
Restricted Securities or Exchange Senior Preferred Stock giving rise to such
obligations.
If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against
any person in respect of which indemnity may be sought pursuant to either of
the two preceding paragraphs, such person (the "indemnified party") shall
promptly notify the person against whom such indemnity may be sought (the
"indemnifying person") in writing, (provided that the failure to give such
notice shall not relieve the indemnifying person of its obligations under this
Section 7 unless and only to the extent that the indemnifying person is
materially prejudiced by the failure to notify) and the indemnifying person,
upon request of the indemnified party, shall retain counsel reasonably
satisfactory to the indemnified party to represent the indemnified party and
any others indemnifying person may reasonably designate in such proceeding and
shall pay the reasonable fees and expenses actually incurred by such counsel
related to such proceeding. In any such proceeding, any indemnified party
shall have the right to retain its own counsel, but the fees and expenses of
such counsel shall be at the expense of such indemnified party, unless (i) the
indemnifying person and the indemnified party shall have mutually agreed in
writing to the contrary, (ii) the indemnifying person shall have failed
promptly to assume the defense and employ counsel reasonably satisfactory to
the indemnified party or (iii) the named parties to any such action (including
any impleaded parties) include both such indemnified party and the indemnifying
person, or any affiliate of the indemnifying person and such indemnified party
shall have reasonably advised by counsel that representation of such
indemnified party and any such indemnifying party by the same counsel would be
inappropriate under applicable standards of professional conduct (whether or
not such representation by the same counsel has been proposed) due to actual or
potential differing interests between them (in which case the indemnifying
person shall not have the right to assume the defense of such action on behalf
of such indemnified party), it being understood, however, that the indemnifying
person shall not, in connection with any one such action or separate but
substantially similar or related actions in the same jurisdiction arising out
of the same general allegations or circumstances, be liable for the reasonable
fees and expenses of more than one separate firm of attorneys (in addition to
any local counsel) for all such indemnified parties, which firm shall be
reasonably satisfactory to the indemnifying parties. Such separate firm for
sellers of Transfer Restricted Securities shall be designated in writing by
those indemnified parties who sold a majority in outstanding aggregate
liquidation preference of Transfer Restricted Securities sold by all
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such indemnified parties, and any such separate firm for the Company, its
directors, its officers and such control persons of the Company shall be
designated in writing by the Company. The indemnifying person shall not be
liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment for
the plaintiff, the indemnifying person agrees to indemnify any indemnified
party from and against any loss or liability by reason of such settlement or
judgment to the extent of such indemnifying party's indemnification obligation
hereunder. No indemnifying person shall, without the prior written consent of
the indemnified party, effect any settlement of any pending or threatened
proceeding in respect of which any indemnified party is or could have been a
party and indemnity could have been sought hereunder by such indemnified party,
unless such settlement includes an unconditional release of such indemnified
party from all liability on claims that are the subject matter of such
proceeding.
If the indemnification provided for in the first and second paragraphs
of this Section 7 is unavailable to an indemnified party in respect of any
losses, claims, damages, liabilities, or expenses referred to therein (other
than by reason of the exceptions provided therein), then each indemnifying
person under such paragraphs, in lieu of indemnifying such indemnified party
thereunder, shall contribute to the amount paid or payable by such indemnified
party as a result of such losses, claims, damages, liabilities, or expenses (i)
in such proportion as is appropriate to reflect the relative benefits received
by the indemnified party on the one hand and the indemnifying person(s) on the
other in connection with the statements or omissions that resulted in such
losses, claims, damages, liabilities, or expenses or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative faults of the indemnifying
person(s) and the indemnified party, as well as any other relevant equitable
considerations. The relative fault of the Company on the one hand an any
Indemnified Persons on the other shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Company or by such Indemnified Persons and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
The parties agrees that it would not be just and equitable if
contribution pursuant to this Section 7 were determined by pro rata allocation
(even if such indemnified parties were treated as one entity for such purpose
or by any other method of allocation that does not take account of the
equitable considerations referred to in the immediately preceding paragraph.
The amount paid or payable by an indemnified party as a result of the losses,
claims, damages, liabilities and expenses referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any reasonable legal or other expenses actually incurred by such
indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 7, in no
event shall an Indemnified Person be required to contribute any amount in
excess of the amount by which proceeds received by such Indemnified Person
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from sales of Transfer Restricted Securities or Exchange Senior Preferred
Stock exceeds the amount of any damages that such Indemnified Person has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
The indemnity and contribution agreements contained in this Section 7
will be in addition to any liability which the indemnifying parties may
otherwise have to the indemnified parties referred to above. The Indemnified
Persons' obligations to contribute pursuant to this Section 7 are several in
proportion to the respective liquidation preference of Series A Senior
Preferred Stock sold by each of the Indemnified Persons hereunder and not
joint.
8. Rules 144 and 144A
The Company covenants that it will file the reports required to be
filed by it pursuant to the Securities Act and the Exchange Act and the rules
and regulations adopted by the SEC thereunder in a timely manner and, if at any
time the Company is not required to file such reports, it will, upon the
reasonable request of any Holder of Transfer Restricted Securities, make
available information required by Rule 144 and Rule 144A under the Securities
Act in order to permit sales pursuant to Rule 144 and Rule 144A. The Company
further covenants that it will take such further action as any Holder of
Transfer Restricted Securities may reasonably request, all to the extent
required from time to time to enable such Holder to sell Transfer Restricted
Securities without registration under the Securities Act within the limitation
of the exemptions provided by (a) Rule 144 and Rule 144A, or (b) any similar
rule or regulation hereafter adopted by the SEC (it being expressly understood
that the foregoing shall not create any obligation on the part of the Company
to file periodic or other reports under the Exchange Act at any time that it is
not otherwise required to file such reports pursuant to the Exchange Act).
9. Underwritten Registrations
(a) If any of the Transfer Restricted Securities covered by any Shelf
Registration Statement are to be sold in an underwritten offering, the
investment banker or investment bankers and manager or managers that will
manage the offering will be selected by the Holders of a majority in aggregate
liquidation preference of such Transfer Restricted Securities included in such
offering and shall be reasonably acceptable to the Company.
No Holder of Transfer Restricted Securities may participate in any
underwritten registration hereunder, unless such Holder (a) agrees to sell such
Holder's Transfer Restricted Securities on the basis provided in any
underwriting arrangements
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approved by the Persons entitled hereunder to approve such arrangements
and (b) completes and executes all questionnaires, powers of attorney,
indemnities, underwriting agreements and other documents required under the
terms of such underwriting arrangements.
(b) Each Holder of Transfer Restricted Securities agrees, if
requested (pursuant to a timely written notice) by the managing underwriters in
an underwritten offering or by a placement agent in a private offering of the
Company's equity securities, not to effect any private sale or distribution
(including a sale pursuant to Rule 144(k) or Rule 144A under the Securities
Act, but excluding non-public sales to any of its affiliates, officers,
directors, employees and controlling persons), of any of the Series A Senior
Preferred Stock, except pursuant to an Exchange Offer, during the period
beginning 10 days prior to, and ending 90 days after, the closing date of the
underwritten or private offering, as applicable.
The foregoing provisions shall not apply to any Holder of Transfer
Restricted Securities if such Holder is prevented by applicable statute or
regulation from entering into any such agreement; provided, however, that if it
receives a written request as provided in the preceding paragraph, no such
Holder shall effect any disposition of Series A Senior Preferred Stock that
would otherwise be restricted by the provisions of the preceding paragraph
without providing reasonable advance written notice of such disposition to the
Company, the managing underwriter or the placement agent, as the case may be.
The Company agrees, without the written consent of the managing
underwriters in an underwritten offering of Transfer Restricted Securities
covered by a Registration Statement filed pursuant to Section 3 hereof, not to
effect any public or private sale or distribution of its respective equity
securities, including a sale pursuant to Regulation D or Rule 144A under the
Securities Act, during the period beginning 10 days prior to, and ending 90
days after, the closing date of each underwritten offering made pursuant to
such Registration Statement (provided, however, that such period shall be
extended by the number of days from and including the date of the giving of any
notice pursuant to Section 5(c)(v) or (c)(vi) hereof to and including the date
when each seller of Transfer Restricted Securities covered by such Registration
Statement shall have received the copies of the supplemented or amended
Prospectus contemplated by Section 5(j) hereof).
10. Miscellaneous
(a) No Inconsistent Agreements. The Company has not, as of the date
hereof, and the Company shall not, after the date of this Agreement, enter into
any agreement with respect to any of its securities that is inconsistent with
the rights granted to the Holders of Transfer Restricted Securities in this
Agreement or otherwise conflicts with the provisions hereof. The Company will
not enter into any agreement with respect to any of its securities which will
grant to any Person piggy-back registration rights with respect to a
Registration Statement.
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(b) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to or departures from the provisions
hereof may not be given, unless the Company has obtained the written consent of
Holders of at least a majority of the then outstanding aggregate liquidation
preference of Transfer Restricted Securities. Notwithstanding the foregoing, a
waiver or consent to or departures from the provisions hereof with respect to a
matter that relates exclusively to the rights of Holders whose securities are
being sold pursuant to a Registration Statement and that does not directly or
indirectly affect, impair, limit or compromise the rights of other Holders may
be given by Holders of at least a majority in aggregate liquidation preference
of the Transfer Restricted Securities being sold by such Holders pursuant to
such Registration Statement; provided that the provisions of this sentence may
not be amended, modified or supplemented except in accordance with the
provisions of the immediately preceding sentence.
(c) Notices. All notices and other communications (including, without
limitation, any notices or other communications to the Transfer Agent),
provided for or permitted hereunder shall be made in writing by hand-delivery,
registered first-class mail, next-day air courier or telecopier:
(i) if to a Holder of Transfer Restricted Securities, at the most
current address given by the Transfer Agent to the Company;
(ii) if to the Company, Liberty Group Publishing, Inc., 0000 Xxxxxx
Xxxx, Xxxxxxxxxx, Xxxxxxxx 00000, Attention: Xxxxxxx X. Xxxxxx, President,
with a copy to Xxxxxxx Xxxxx & Partners, L.P., 00000 Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx 0000, Xxx Xxxxxxx, Xxxxxxxxxx 00000, Attention: Xxxxx X.
Xxxxx, and with a copy to Xxxxx, Xxxxx & Xxxxx, 000 Xxxxx Xx Xxxxx Xxxxxx,
Xxxxxxx, Xxxxxxxx 00000, Attention: Xxxxx X. Xxxxx, Esq.; and
(iii) if to the Initial Purchaser, Xxxxxxxxx, Xxxxxx & Xxxxxxxx
Securities Corporation, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Syndicate Department, with a copy to Xxxxxxxx & Xxxxxxxx, 000
Xxxxx Xxxxxx Xxxxxx, Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000, Attention: Xxxxxx
X. Xxxxxxx, Esq.
All such notices and communications shall be deemed to have been duly
given: when delivered by hand, if personally delivered; five business days
after being deposited in the mail, postage prepaid, if mailed; one business day
after being timely delivered to a nationally recognized next-day air courier,
if made by next-day air courier; and when receipt is acknowledged by the
addressee, if telecopied on a business day on such business day, if not on a
business day, on the first business day thereafter.
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Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Transfer Agent
under the Certificate of Designations at the address specified in such
Certificate of Designations.
(d) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the parties
hereto, including, without limitation and without the need for an express
assignment, subsequent Holders of Transfer Restricted Securities. The Company
agrees that the Holders of the Series A Senior Preferred Stock shall be
third-party creditor beneficiaries to the agreements made hereunder by the
Initial Purchaser and the Company, and each Holder shall have the right to
enforce such agreements directly to the extent it deems such enforcement
necessary or advisable to protect its rights hereunder.
(e) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(f) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(g) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS
MADE AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES
OF CONFLICTS OF LAW.
(h) Severability. If any term, provision, covenant or restriction of
this Agreement is held by a court of competent jurisdiction to be invalid,
illegal, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full force and
effect and shall in no way be affected, impaired or invalidated, and the
parties hereto shall use their reasonable best efforts to find and employ an
alternative means to achieve the same or substantially the same result as that
contemplated by such term, provision, covenant or restriction. It is hereby
stipulated and declared to be the intention of the parties hereto that they
would have executed the remaining terms, provisions, covenants and restrictions
without including any of such that may be hereafter declared invalid, illegal,
void or unenforceable.
(i) Entire Agreement. This Agreement, together with the Purchase
Agreement, the Certificate of Designations and the Exchange Indenture, is
intended by the parties hereto as a final expression of their agreement, and is
intended to be a complete and exclusive statement of the agreement and
understanding of the parties hereto in respect to the subject matter contained
herein and therein. Any and all prior oral or written
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agreements, representations, warranties, contracts, understandings,
correspondence, conversations and memoranda between the Initial Purchaser, on
the one hand, and the Company, on the other, or between or among any agents,
representatives, parents, subsidiaries, affiliates, predecessors in interest or
successors in interest with respect to the subject matter hereof are merged
herein and replaced hereby.
(j) Series A Senior Preferred Stock Held by the Company or its
Affiliates. Whenever the consent or approval of Holders of a specified
percentage of Transfer Restricted Securities is required hereunder, Transfer
Restricted Securities held by the Company or its affiliates (as such term is
defined in Rule 405 under the Securities Act) (other than the Initial Purchaser
or subsequent Holders of Transfer Restricted Securities or Exchange Senior
Preferred Stock if such subsequent Holders are deemed to be affiliates solely
by reason of their holdings of such Transfer Restricted Securities or Exchange
Senior Preferred Stock), shall not be counted in determining whether such
consent or approval was given by the Holders of such required percentage.
(k) Survival. This Agreement is intended to survive the consummation
of the transactions contemplated by the Purchase Agreement. The indemnification
and contribution obligations under section 7 of this Agreement shall survive
the termination of the Company's obligations under sections 2 and 3 of this
Agreement.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
LIBERTY GROUP PUBLISHING, INC.
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President and Chief Executive Officer
The foregoing Registration Rights
Agreement is hereby confirmed and
accepted as of the date first
above written.
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President
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