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EXHIBIT 10.3
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT dated as of September 15, 1999
(this "Agreement"), among Xxxxx Advertising Company, a Delaware corporation
(the "Issuer"), Chancellor Media Corporation of Los Angeles, a Delaware
Corporation ("Chancellor LA"), and Chancellor Mezzanine Holdings Corporation, a
Delaware corporation ("Chancellor Mezzanine").
WHEREAS, this Agreement is being entered into in connection with the
closing of the transactions contemplated by the Purchase Agreement referred to
below.
NOW, THEREFORE, in consideration of the foregoing and the mutual
promises, representations, warranties, covenants and agreements contained
herein, the parties hereto, intending to be legally bound hereby, agree as
follows:
ARTICLE 1
DEFINITIONS
SECTION 1.1 Definitions. The following terms, as used herein, shall
have the following respective meanings:
"Commission" means the Securities and Exchange Commission or any
successor governmental body or agency.
"Common Stock" means the Class A Common Stock, par value $0.001 per
share, of the Issuer and any capital stock into which such Common Stock
thereafter may be changed.
"Demand Registration" has the meaning ascribed thereto in Section
2.2(a).
"Demand Request" has the meaning ascribed thereto in Section 2.2(a).
"Disadvantageous Condition" has the meaning ascribed thereto in
Section 2.4.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Excluded Registration" means a registration under the Securities Act
of (i) securities pursuant to one or more Demand Registrations pursuant to
Section 2.2 hereof, (ii) securities registered on Form S-8 under the Securities
Act or any similar successor form and (iii) securities registered to effect the
acquisition of or combination with another business entity.
"Holder" means (i) Chancellor LA, (ii) Chancellor Mezzanine and (iii)
any direct or indirect transferee of Chancellor LA or Chancellor Mezzanine who
shall agree to be bound by the terms of this Agreement.
"Person" or "person" means any individual, corporation, partnership,
limited liability company, joint venture, association, joint-stock company,
trust, unincorporated organization or government or other agency or political
subdivision thereof.
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"Piggyback Registration" has the meaning ascribed thereto in Section
2.3(a).
"Purchase Agreement" means the Second Amended and Restated Stock
Purchase Agreement dated as of August 11, 1999, among the Issuer, Xxxxx Media
Corp., a Delaware corporation and wholly-owned subsidiary of the Issuer
(formerly known as Xxxxx Advertising Company), Chancellor LA and Chancellor
Mezzanine.
"Registrable Securities" means, at any time, any shares of Common
Stock owned by the Holders, whether owned on the date hereof or acquired
hereafter; provided, however, that Registrable Securities shall not include any
shares of Common Stock (i) the sale of which has been registered pursuant to
the Securities Act and which shares have been sold pursuant to such
registration or (ii) which have been sold pursuant to Rule 144 of the
Commission under the Securities Act.
"Registration Expenses" means any and all expenses incident to
performance of or compliance with any registration of securities pursuant to
Article 2, including, without limitation, (i) all registration and filing fees,
(ii) all fees and expenses associated with filings required to be made with the
NASD (including, if applicable, the fees and expenses of any "qualified
independent underwriter" as such term is defined in Rule 2720(b)(15) of the
NASD Conduct Rules, and of its counsel), as may be required by the rules and
regulations of the NASD, (iii) fees and expenses of compliance with securities
or "blue sky" laws (including reasonable fees and disbursements of counsel in
connection with "blue sky" qualifications of the Registrable Shares), (iv)
rating agency fees, (v) printing expenses (including expenses of printing
certificates for the Registrable Shares in a form eligible for deposit with The
Depository Trust Company and of printing prospectuses if the printing of
prospectuses is requested by a holder of Registrable Shares), (vi) messenger
and delivery expenses, (vii) the Issuer's internal expenses (including, without
limitation, all salaries and expenses of its officers and employees performing
legal or accounting duties), (viii) the fees and expenses incurred in
connection with any listing of the Registrable Shares, (ix) fees and expenses
of counsel for the Issuer and its independent certified public accountants
(including the expenses of any special audit or "cold comfort" letters required
by or incident to such performance), (x) Securities Act liability insurance (if
the Issuer elects to obtain such insurance), (xi) the fees and expenses of any
special experts retained by the Issuer in connection with such registration,
(xii) the fees and expenses of other persons retained by the Issuer and (xiii)
reasonable fees and expenses of one firm of counsel for the Selling Holders
(which shall be selected by the Holders of a majority of the Registrable
Securities being included in any particular registration statement).
"Required Shelf Registration" has the meaning ascribed thereto in
Section 2.1.
"Rule 144" means Rule 144 (or any successor rule to similar effect)
promulgated under the Securities Act.
"Rule 145" means Rule 145 (or any successor rule to similar effect)
promulgated under the Securities Act.
"Rule 415 Offering" means an offering on a delayed or continuous basis
pursuant to Rule 415 (or any successor rule to similar effect) promulgated
under the Securities Act.
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"Securities Act" means the Securities Act of 1933, as amended.
"Seller Affiliates" has the meaning ascribed thereto in Section 2.8.
"Selling Holder" means any Holder who sells Registrable Securities
pursuant to a public offering registered hereunder.
"Shelf Registration" means the registration under the Securities Act
of a Rule 415 Offering.
"Shelf Registration Statement" means a registration statement intended
to effect a Shelf Registration.
"Shelf Termination Date" has the meaning ascribed thereto in Section
2.1(c).
SECTION 1.2 Internal References. Unless the context indicates
otherwise, references to Articles, Sections and paragraphs shall refer to the
corresponding articles, sections and paragraphs in this Agreement, and
references to the parties shall mean the parties to this Agreement.
ARTICLE 2
REGISTRATION RIGHTS
SECTION 2.1 Shelf Registration. At any time after the date that is ten
months from the date hereof, if requested by a Holder or Holders holding a
majority in interest of the Registrable Securities, as soon as practicable (but
in any event not more than 15 days) after such request, the Issuer shall
prepare and file with the Commission a Shelf Registration Statement on an
appropriate form that shall include all Registrable Securities, and which shall
not include any other securities (the "Required Shelf Registration"). The
Issuer shall use its reasonable best efforts to cause such Shelf Registration
Statement to be declared effective as soon as practicable after such request;
provided, however, that the Issuer shall have no obligation to cause such Shelf
Registration Statement to be declared effective on a date that is prior to the
first anniversary of this Agreement. Notwithstanding anything else contained in
this Agreement, the Issuer shall only be obligated to keep such Shelf
Registration Statement effective until the earliest of:
(a) (i) 12 months after the date such Shelf Registration
Statement has been declared effective, provided that such 12-month period shall
be extended by (1) the length of any period during which the Issuer delays in
maintaining the Shelf Registration Statement current pursuant to Section 2.4,
(2) the length of any period (in which such Shelf Registration Statement is
required to be effective hereunder) during which such Shelf Registration
Statement is not maintained effective, and (3) such number of days that equals
the number of days elapsing from (x) the date the written notice contemplated
by Section 2.6(e) below is given by the Issuer to (y) the date on which the
Issuer delivers to the Holders of Registrable Securities the supplement or
amendment contemplated by Section 2.6(e) below;
(b) such time as all Registrable Securities have been sold or
disposed of thereunder or sold, transferred or otherwise disposed of to a
Person that is not a Holder; and
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(c) such time as all securities owned by the Holders have
ceased to be Registrable Securities (the earliest of (a), (b) and (c) being the
"Shelf Termination Date").
The Required Shelf Registration shall not be counted as a Demand Registration
for purposes of Section 2.2 of this Agreement.
SECTION 2.2 Demand Registration.
(a) At any time after the date that is ten months from the date
hereof, upon written notice to the Issuer from a Holder or Holders holding a
majority in interest of the Registrable Securities (a "Demand Request")
requesting that the Issuer effect the registration under the Securities Act of
any or all of the Registrable Securities held by such requesting Holders, which
notice shall specify the intended method or methods of disposition of such
Registrable Securities, the Issuer shall prepare as soon as practicable and,
within 15 days after such request, file with the Commission a registration
statement with respect to such Registrable Securities and thereafter use its
reasonable best efforts to cause such registration statement to be declared
effective under the Securities Act for purposes of dispositions in accordance
with the intended method or methods of disposition stated in such request
within 30 days after the filing of such registration statement; provided,
however, that the Issuer shall have no obligation to (i) cause such
registration statement filed pursuant to this Section 2.2 to be declared
effective on a date that is prior to the first anniversary of this Agreement or
(ii) cause such registration statement filed pursuant to this Section 2.2 to be
declared effective during any period during which a Shelf Registration
Statement filed pursuant to Section 2.1 remains effective. Notwithstanding any
other provision of this Agreement to the contrary:
(i) the Holders may collectively exercise their Demand
Request rights for registration of their Registrable Securities under
this Section 2.2(a) on not more than three occasions (any such
registration being referred to herein as a "Demand Registration");
(ii) the method of disposition requested by Holders in
connection with any Demand Registration may not, without the Issuer's
written consent, be a Rule 415 Offering;
(iii) the Issuer shall not be required to effect a Demand
Registration hereunder if all securities owned by the Holders have
ceased to be Registrable Securities; and
(iv) the Issuer shall not be required to effect more than
one Demand Registration during any 12 month period.
(b) Notwithstanding any other provision of this Agreement to
the contrary, a Demand Registration requested by Holders pursuant to this
Section 2.2 shall not be deemed to have been effected, and, therefore, not
requested and the rights of each Holder shall be deemed not to have been
exercised for purposes of paragraph (a) above, (i) if such Demand Registration
has not become effective under the Securities Act or (ii) if such Demand
Registration, after it became effective under the Securities Act, was not
maintained effective under the Securities Act (including, without limitation,
if it was interfered with by any stop order, injunctions or other
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order or requirement the Commission or other governmental agency or court) for
at least 30 days (or such shorter period ending when all the Registrable
Securities covered thereby have been disposed of pursuant thereto) and, as a
result thereof, the Registrable Securities requested to be registered cannot be
distributed in accordance with the plan of distribution set forth in the
related registration statement. The Holders shall be deemed not to have
exercised a Demand Request under Section 2.2 if the Demand Registration related
to such Demand Request is delayed or not effected in the circumstances set
forth in this clause (b).
(c) The Issuer shall have the right to cause the registration
of additional shares of Common Stock for sale for the account of the Issuer,
but not for the account of any other Person, in the registration of Registrable
Securities requested by the Holders pursuant to Section 2.2(a) above, provided,
that if such Holders are advised by the lead or managing underwriter referred
to in Section 2.2(e) that, in such underwriter's good faith view, all or a part
of such Registrable Securities and additional shares of Common Stock cannot be
sold or the inclusion of such Registrable Securities and additional shares of
Common Stock in such registration would be likely to have a material adverse
effect on the price, timing or distribution of the offering and sale of the
Registrable Securities and additional equity securities then contemplated, then
the number of securities that can, in the good faith view of such underwriter,
be sold in such offering without so materially adversely affecting such
offering shall be allocated first, pro rata among the requesting Holders on the
basis of the relative number requested to be included therein by each such
Holder and then second, to the Issuer. The Holders of the Registrable
Securities to be offered pursuant to paragraph (a) above may require that any
such additional equity securities be included by the Issuer in the offering
proposed by such Holders on the same conditions as the Registrable Securities
that are included therein. If, in the case of any registration pursuant to a
Demand Request, the Holders making such Demand Request are advised by the lead
or managing underwriter referred to in Section 2.2(e) that, in such
underwriter's good faith view, all or a part of such Registrable Securities
cannot be sold or the inclusion of such Registrable Securities in such
registration would be likely to have a material adverse effect on the price,
timing or distribution of the offering and sale of the Registrable Securities
then contemplated, then such Holders will have the right, within 15 days
following such advice from such underwriter, to elect to terminate such Demand
Request, in which case the Holders shall be deemed not to have exercised a
Demand Request pursuant to Section 2.2 hereof.
(d) Within 10 days after delivery of a Demand Request by a
Holder, the Issuer shall provide a written notice to each Holder, advising such
Holder of its right to include any or all of the Registrable Securities held by
such Holder for sale pursuant to the Demand Registration and advising such
Holder of procedures to enable such Holder to elect to so include Registrable
Securities for sale in the Demand Registration as each such Holder may request.
Any Holder may, within 20 days of delivery to such Holder of a notice pursuant
to this Section 2.2(d), elect to so include such portion of its Registrable
Securities in the Demand Registration by written notice to such effect to the
Issuer specifying the number of Registrable Securities desired to be so
included by such Holder.
(e) In the event that any public offering pursuant to either
Section 2.1 or 2.2 of this Agreement shall involve, in whole or in part, an
underwritten offering, the Holders of a majority of the Registrable Securities
being included in such underwritten offering shall have the right to designate
an underwriter or underwriters as the lead or managing underwriters of such
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underwritten offering; provided, that such selection shall be subject to the
consent of the Issuer, which consent shall not be unreasonably withheld or
delayed.
SECTION 2.3 Piggyback Registrations.
(a) Each time the Issuer proposes to register any of its equity
securities (other than pursuant to an Excluded Registration) under the
Securities Act for sale to the public (whether for the account of the Issuer or
the account of any securityholder of the Issuer ) and the form of registration
statement to be used permits the registration of Registrable Securities, the
Issuer shall give prompt written notice to each Holder (which notice shall be
given not less than thirty (30) days prior to the effective date of the
Issuer's registration statement), which notice shall offer each such Holder the
opportunity to include any or all of its Registrable Securities in such
registration statement (a "Piggyback Registration"), subject to the limitations
contained in Section 2.3(b) below. Each Holder who desires to have its
Registrable Securities included in such registration statement shall so advise
the Issuer in writing (stating the number of Registrable Securities desired to
be registered) within 20 days after the date of such notice from the Issuer.
Any Holder shall have the right to withdraw such Holder's request for inclusion
of such Holder's Registrable Securities in any registration statement pursuant
to this Section 2.3 by giving written notice to the Issuer of such withdrawal.
Subject to Section 2.3(b) below, the Issuer shall include in such registration
statement all such Registrable Securities so requested to be included therein;
provided, however, that the Issuer may at any time withdraw or cease proceeding
with any such registration if it shall at the same time withdraw or cease
proceeding with the registration of all other equity securities originally
proposed to be registered.
(b) If the managing underwriter of an offering involving a
request for Piggyback Registration advises the Issuer in writing (with a copy
to the Holders requesting inclusion of their Registrable Securities) that, in
such underwriter's good faith view, the inclusion of any Registrable Securities
pursuant to Section 2.3(a) above would be likely to have a material adverse
effect on the price, timing or distribution of such offering, then (i) the
number of such Holder's or Holders' Registrable Securities to be included in
the registration statement for such offering may, subject to the provisions of
the immediately following sentence, be reduced to an amount which, in the
judgment of the managing underwriter, would no longer be likely to have a
material adverse effect on the price, timing or distribution of such offering
or (ii) if no such reduction would, in the judgment of the managing
underwriter, eliminate such likelihood of a material adverse effect on the
price, timing or distribution of such offering, then the Issuer may, subject to
the provisions of the immediately following sentence, exclude all such
Registrable Securities from such registration statement. Any reduction in the
number of Registrable Securities to be included in the registration statement
for such offering pursuant to the immediately preceding sentence shall be
effected by the inclusion in such registration statement of (A) first, (p) if
such registration was initiated by the Issuer for the sale of securities for
its own account, any and all securities for sale by the Issuer or (q) if such
registration was initiated by any other Person pursuant to the exercise of
demand registration rights, any and all securities for sale by such Person
pursuant to such exercise of demand registration rights, (B) second, any
Registrable Shares requested to be included in such registration, pro rata
based on the ratio which such Holder's requested Registrable Securities bears
to the total number of Registrable Securities requested to be included in such
registration statement by all Holders who have requested that their Registrable
Securities be included in such registration statement, and (C) third, pro rata
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among any other securities requested to be included in such registration by
other Persons pursuant to the exercise of contractual registration rights
granted by the Issuer. If as a result of the provisions of this Section 2.3(b)
any Holder shall not be entitled to include all Registrable Securities in a
registration that such Holder has requested to be so included, such Holder may
withdraw such Holder's request to include any Registrable Securities in such
registration statement. No Holder may participate in any registration statement
hereunder unless such Holder (x) agrees to sell such Holder's Registrable
Securities on the basis provided in any underwriting arrangements approved by
the Issuer relating to such registration statement and (y) completes and
executes all questionnaires, powers of attorney, indemnities, underwriting
agreements, and other documents reasonably required under the terms of such
underwriting arrangements; provided, however, that no such Holder shall be
required to make any representations or warranties in connection with any such
registration other than representations and warranties as to (1) such Holder's
ownership of its Registrable Securities to be transferred free and clear of all
liens, claims, and encumbrances, (2) such Holder's power and authority to
effect such transfer, and (3) such matters pertaining to compliance with
securities laws as may be reasonably requested; provided further, however, that
the obligation of such Holder to indemnify pursuant to any such underwriting
arrangements shall be several, not joint and several, among such Holders
selling Registrable Securities, and the liability of each such Holder will be
in proportion thereto, and provided further that such liability will be limited
to the net amount received by such Holder from the sale of its Registrable
Securities pursuant to such registration statement.
SECTION 2.4 Certain Delay Rights. Notwithstanding any other provision
of this Agreement to the contrary, if at any time while the Required Shelf
Registration is effective the Issuer provides written notice to each Holder
that in the good faith and reasonable judgment of the Board of Directors of the
Issuer it would be materially disadvantageous to the Issuer (because the sale
of Registrable Securities covered by such registration statement or the
disclosure of information therein or in any related prospectus or prospectus
supplement would materially interfere with any acquisition, financing or other
material event or transaction in connection with which a registration of
securities under the Securities Act for the account of the Issuer is then
intended or the public disclosure of which at the time would be materially
prejudicial to the Issuer (a "Disadvantageous Condition")) for sales of
Registrable Securities thereunder to then be permitted, and setting forth the
general reasons for such judgment, the Issuer may refrain from maintaining
current the prospectus contained in the Shelf Registration Statement until such
Disadvantageous Condition no longer exists (notice of which the Issuer shall
promptly deliver in writing to each Holder). Furthermore, notwithstanding
anything else contained in this Agreement, with respect to any registration
statement filed, or to be filed, pursuant to Section 2.2 of this Agreement, if
the Issuer provides written notice to each Holder that in the good faith and
reasonable judgment of the Board of Directors of the Issuer it would be
materially disadvantageous to the Issuer (because of a Disadvantageous
Condition) for such a registration statement to be maintained effective, or to
be filed and become effective, and setting forth the general reasons for such
judgment, the Issuer shall be entitled to cause such registration statement to
be withdrawn or the effectiveness of such registration statement terminated,
or, in the event no registration statement has yet been filed, shall be
entitled not to file any such registration statement, until such
Disadvantageous Condition no longer exists (notice of which the Issuer shall
promptly deliver in writing to each Holder). With respect to each Holder, upon
the receipt by such Holder of any such notice of a Disadvantageous Condition
(i) in connection with the Required Shelf Registration, such Holder shall
forthwith discontinue use of the
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prospectus and any prospectus supplement under such registration statement and
shall suspend sales of Registrable Securities until such Disadvantageous
Condition no longer exists and (ii) in connection with the Required Shelf
Registration or the Demand Registration, as applicable, if so directed by the
Issuer by notice as aforesaid, such Holder will deliver to the Issuer all
copies, other than permanent filed copies then in such Holder's possession, of
the prospectus and prospectus supplements then covering such Registrable
Securities at the time of receipt of such notice as aforesaid. Notwithstanding
anything else contained in this Agreement, (x) neither the filing nor the
effectiveness of any registration statement under Section 2.2 of this Agreement
may be delayed for more than a total of 60 days pursuant to this Section 2.4
and (y) the maintaining current of a prospectus (and the suspension of sales of
Registrable Securities) in connection with the Required Shelf Registration may
not be delayed under this Section 2.4 for more than a total of 60 days in any
six-month period. If, in the case of any registration pursuant to a Demand
Request, the Issuer provides notice to the applicable Holders of a
Disadvantageous Condition, then such Holders will have the right, within 15
days following such notice from the Issuer, to elect to terminate such Demand
Request, in which case the Holders shall be deemed not to have exercised a
Demand Request pursuant to Section 2.2 hereof.
SECTION 2.5 Expenses. Except as provided herein, the Issuer shall pay
all Registration Expenses with respect to each registration hereunder, whether
or not any registration statement becomes effective. Notwithstanding the
foregoing, (i) each Holder and the Issuer shall be responsible for its own
internal administrative and similar costs, which shall not constitute
Registration Expenses, (ii) each Holder shall be responsible for the legal fees
and expenses of its own counsel (except as provided in the definition of
Registration Expenses) and (iii) each Holder shall be responsible for all
underwriting discounts and commissions, selling or placement agent or broker
fees and commissions, and transfer taxes, if any, in connection with the sale
of securities by such Holder.
SECTION 2.6 Registration and Qualification. If and whenever the Issuer
is required to effect the registration of any Registrable Securities under the
Securities Act as provided in this Agreement, the Issuer shall as promptly as
practicable:
(a) prepare, file and cause to become effective a registration
statement under the Securities Act relating to the Registrable Securities to
bet offered in accordance with the intended method of disposition thereof;
(b) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to keep such registration statement
effective and to comply with the provisions of the Securities Act with respect
to the disposition of all Registrable Securities (i) in the case of the
Required Shelf Registration, until the Shelf Termination Date, (ii) in the case
of a Demand Registration or Piggyback Registration, for a period of not less
than 180 days (or such shorter period as is necessary for underwriters in an
underwritten offering to sell unsold allotments), provided, that such 180-day
period shall be extended for such number of days that equals the number of days
elapsing from (x) the date the written notice contemplated by paragraph (e)
below is given by the Issuer to (y) the date on which the Issuer delivers to
the Holders of Registrable Securities the supplement or amendment contemplated
by paragraph (e) below;
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(c) furnish to the Holders of Registrable Securities and to any
underwriter of such Registrable Securities (i) such number of conformed copies
of such registration statement and of each such amendment and supplement
thereto (in each case including all exhibits), (ii) such number of copies of
the prospectus included in such registration statement (including each
preliminary prospectus), in conformity with the requirements of the Securities
Act, and (iii) such documents incorporated by reference in such registration
statement or prospectus, as the Holders of Registrable Securities or such
underwriter may reasonably request in order to facilitate the disposition of
the Registrable Shares owned by such Holder or the sale of such securities by
such underwriter (it being understood that, subject to Section 2.4 of this
Agreement and the requirements of the Securities Act and applicable state
securities laws, the Issuer consents to the use of the prospectus and any
amendment or supplement thereto by each Holder of Registrable Securities and
any underwriter of such Registrable Securities in connection with the offering
and sale of the Registrable Shares covered by the registration statement of
which such prospectus, amendment or supplement is a part);
(d) in the case of any underwritten offering, furnish to each
Selling Holder and any underwriter of Registrable Securities an opinion of
counsel for the Issuer and a "cold comfort" letter signed by the independent
public accountants who have audited the financial statements of the Issuer
included in the applicable registration statement, in each such case covering
substantially such matters with respect to such registration statement (and the
prospectus included therein) and the related offering as are customarily
covered in opinions of issuer's counsel with respect thereto and in
accountants' letters delivered to underwriters in underwritten public offerings
of securities and such other matters as any such Selling Holder or underwriter
may reasonably request;
(e) promptly notify each Selling Holder and each underwriter of
Registrable Securities in writing (i) at any time when a prospectus relating to
a registration pursuant to this Agreement 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 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 (ii)
of any request by the Commission or any other regulatory body having
jurisdiction for any additional information or amendment or supplement to any
registration statement or other document relating to such offering, and in
either such case, at the request of any Selling Holder or underwriter, promptly
prepare and furnish to each Selling Holder and underwriter a reasonable number
of copies of a supplement to or an amendment of such prospectus as may be
necessary so that, as thereafter delivered to the 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, in light of the
circumstances under which they are made, not misleading;
(f) cause all such Registrable Securities covered by such
registration to be listed on each securities exchange and included for
quotation on each automated interdealer quotation system on which the Common
Stock is then listed or included for quotation;
(g) provide a CUSIP number for the Registrable Shares included
in any registration statement not later than the effective date of such
registration statement;
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(h) cooperate with each Selling Holder and each underwriter
participating in the disposition of Registrable Securities and their respective
counsel in connection with any filings required to be made with the NASD;
(i) during the period when a prospectus is required to be
delivered under the Securities Act, promptly file all documents required to be
filed with the Commission pursuant to Sections 13(a), 13(c), 14 or 15(d) of the
Exchange Act;
(j) prepare and file with the Commission promptly any
amendments or supplements to such registration statement or prospectus which,
in the opinion of counsel for the Issuer or the managing underwriter, are
required in connection with the distribution of the Registrable Securities;
(k) advise each Selling Holder, promptly after it shall receive
notice or obtain knowledge thereof, of the issuance of any stop order by the
Commission suspending the effectiveness of any registration statement or the
initiation or threatening of any proceeding for such purpose and promptly use
its commercially reasonable efforts to prevent the issuance of any stop order
or to obtain its withdrawal at the earliest possible moment if such stop order
should be issued;
(l) use reasonable efforts to assist the Holders in the
marketing of Common Stock in connection with underwritten offerings hereunder
(including using reasonable efforts to have officers of the Issuer attend "road
shows" and analyst or investor presentations scheduled in connection with such
registration); and
(m) furnish for delivery in connection with the closing of any
offering of Registrable Securities pursuant to a registration effected pursuant
to this Agreement unlegended certificates representing ownership of the
Registrable Securities being sold in such denominations as shall be requested
by the Selling Holders or the underwriters.
SECTION 2.7 Underwriting; Due Diligence.
(a) If requested by the underwriters for any underwritten
offering of Registrable Securities pursuant to a registration requested under
this Article 2, the Issuer shall enter into an underwriting agreement with such
underwriters for such offering, which agreement will contain such
representations and warranties by the Issuer and such other terms and
provisions as are customarily contained in underwriting agreements with respect
to secondary distributions.
(b) In connection with the preparation and filing of each
registration statement registering Registrable Securities under the Securities
Act pursuant to this Article 2, the Issuer shall give the Holders of such
Registrable Securities and the underwriters, if any, and their respective
counsel and accountants, such reasonable and customary access to its books,
records and properties and such opportunities to discuss the business and
affairs of the Issuer with its officers and the independent public accounts who
have certified the financial statements of the Issuer as shall be necessary, in
the opinion of such Holders and such underwriters or their respective counsel,
to conduct a reasonable investigation within the meaning of the Securities Act;
provided that (i) each Holder and the underwriters and their respective counsel
and accountants shall have entered into a confidentiality agreement reasonably
acceptable to the
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Issuer and (ii) the Holders of such Registrable Securities and the underwriters
and their respective counsel and accountants shall use their reasonable best
efforts to minimize the disruption to the Issuer's business and coordinate any
such investigation of the books, records and properties of the Issuer and any
such discussions with the Issuer's officers and accountants so that all such
investigations occur at the same time and all such discussions occur at the
same time.
SECTION 2.8 Indemnification.
(a) The Issuer agrees to indemnify and reimburse, to the
fullest extent permitted by law, each Selling Holder, and each of its
employees, advisors, agents, representatives, partners, officers, and directors
and each Person who controls such seller of Registrable Securities (within the
meaning of the Securities Act or the Exchange Act) and any agent or investment
advisor thereof (collectively, the "Seller Affiliates") against any and all
losses, claims, damages, liabilities, and expenses, joint or several
(including, without limitation, reasonable attorneys' fees and disbursements
except as limited by Section 2.8(c) below) based upon, arising out of, related
to or resulting from any untrue or alleged untrue statement of a material fact
contained in any registration statement, prospectus, or preliminary prospectus
or any amendment thereof or supplement thereto, or any omission or alleged
omission of a material fact required to be stated therein or necessary to make
the statements therein not misleading, except insofar as the same are made in
reliance upon and in strict conformity with information furnished in writing to
the Issuer by such Selling Holder or any Seller Affiliate for use therein or
arise from such Selling Holder's or any Seller Affiliate's failure to deliver a
copy of the registration statement or prospectus or any amendments or
supplements thereto after the Issuer has furnished such Selling Holder or
Seller Affiliate with a sufficient number of copies of the same. The
reimbursements required by this Section 2.8(a) will be made by periodic
payments during the course of the investigation or defense, as and when bills
are received or expenses incurred.
(b) In connection with any registration statement in which a
Selling Holder is participating, each such Selling Holder will furnish to the
Issuer in writing such information and affidavits as the Issuer reasonably
requests for use in connection with any such registration statement or
prospectus and, to the fullest extent permitted by law, each such Selling
Holder will indemnify the Issuer and its directors and officers and each Person
who controls the Issuer (within the meaning of the Securities Act or the
Exchange Act) against any and all losses, claims, damages, liabilities, and
expenses (including, without limitation, reasonable attorneys' fees and
disbursements except as limited by Section 2.8(c) below) resulting from: (i)
any untrue statement or alleged untrue statement of a material fact contained
in the registration statement, prospectus, or any preliminary prospectus or any
amendment thereof or supplement thereto, or any omission or alleged omission of
a material fact required to be stated therein or necessary to make the
statements therein not misleading, but only to the extent that such untrue
statement or alleged untrue statement or omission or alleged omission is
contained in any information or affidavit so furnished in writing by such
Selling Holder or any of its Seller Affiliates specifically for inclusion in
the registration statement; or (ii) such Selling Holder's or any Seller
Affiliate's failure to deliver a copy of the registration statement or
prospectus or any amendments or supplements thereto after the Issuer has
furnished such Selling Holder or Seller Affiliate with a sufficient number of
copies of the same; provided, that the obligation to indemnify will be
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several, not joint and several, among such Selling Holders, and the liability
of each such Selling Holder will be in proportion to, and provided further that
such liability will be limited to, the net amount received by such Selling
Holder from the sale of Registrable Securities pursuant to such registration
statement; provided, however, that such Selling Holder shall not be liable in
any such case to the extent that, prior to the filing of any such registration
statement or prospectus or amendment thereof or supplement thereto, such
Selling Holder has furnished in writing to the Issuer information expressly for
use in such registration statement or prospectus or any amendment thereof or
supplement thereto which corrected or made not misleading information
previously furnished to the Issuer.
(c) Any Person entitled to indemnification hereunder will give
prompt written notice to the indemnifying party of any claim with respect to
which it seeks indemnification (provided that the failure to give such notice
shall not limit the rights of such Person except to the extent such failure
prejudiced the indemnifying party) and permit such indemnifying party to assume
the defense of such claim; provided, however, that any Person entitled to
indemnification hereunder shall have the right to employ separate counsel and
to participate in the defense of such claim, but the fees and expenses of such
counsel shall be at the expense of such Person unless (i) the indemnifying
party has agreed to pay such fees or expenses, (ii) the indemnifying party
shall have failed to assume the defense of such claim or (iii) in the
reasonable opinion of counsel to such indemnified party, a conflict of interest
between such indemnified and indemnifying parties may exist with respect to
such claim. If such defense is not assumed by the indemnifying party as
permitted hereunder, the indemnifying party will not be subject to any
liability for any settlement made by the indemnified party without its consent
(but such consent will not be unreasonably withheld or delayed). If such
defense is assumed by the indemnifying party pursuant to the provisions hereof,
such indemnifying party shall not settle or otherwise compromise the applicable
claim unless (A) such settlement or compromise contains a full and
unconditional release of the indemnified party or (B) the indemnified party
otherwise consents in writing. An indemnifying party who is not entitled to, or
elects not to, assume the defense of a claim will not be obligated to pay the
fees and expenses of more than one counsel for all parties indemnified by such
indemnifying party with respect to such claim, unless in the reasonable
judgment of any indemnified party, a conflict of interest may exist between
such indemnified party and any other of such indemnified parties with respect
to such claim, in which event the indemnifying party shall be obligated to pay
the reasonable fees and disbursements of such additional counsel or counsels.
(d) Each party hereto agrees that, if for any reason the
indemnification provisions contemplated by Section 2.8(a) or Section 2.8(b) are
unavailable to or insufficient to hold harmless an indemnified party in respect
of any losses, claims, damages, liabilities, or expenses (or actions in respect
thereof) referred to therein, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of such
losses, claims, liabilities, or expenses (or actions in respect thereof) in
such proportion as is appropriate to reflect the relative fault of the
indemnifying party and the indemnified party in connection with the actions
which resulted in the losses, claims, damages, liabilities or expenses as well
as any other relevant equitable considerations. The relative fault of such
indemnifying party and indemnified party shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact relates
to information supplied by such indemnifying party or indemnified party, and
the parties'
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relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The parties hereto agree that it would not
be just and equitable if contribution pursuant to this Section 2.8(d) were
determined by pro rata allocation (even if the Holders or any underwriters or
all of them were treated as one entity for such purpose) or by any other method
of allocation which does not take account of the equitable considerations
referred to in this Section 2.8(d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages, liabilities, or
expenses (or actions in respect thereof) referred to above shall be deemed to
include any legal or other fees or expenses reasonably incurred by such
indemnified party in connection with investigating or, except as provided in
Section 2.8(c) above, defending any such action or claim. Notwithstanding the
provisions of this Section 2.8(d), no Holder shall be required to contribute an
amount greater than the dollar amount by which the net proceeds received by
such Holder with respect to the sale of any Registrable Securities exceeds the
amount of damages which such Holder has otherwise been required to pay by
reason of such statement or 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 Holders' obligations in this Section 2.8(d)
to contribute shall be several in proportion to the amount of Registrable
Securities registered by them and not joint.
If indemnification is available under this Section 2.8, the
indemnifying parties shall indemnify each indemnified party to the full extent
provided in Section 2.8(a) and Section 2.8(b) without regard to the relative
fault of said indemnifying party or indemnified party or any other equitable
consideration provided for in this Section 2.8(d) subject, in the case of the
Holders, to the limited dollar amounts set forth in Section 2.8(b).
The indemnification and contribution provided for under this Agreement
shall be in addition to any liability which any party may otherwise have to any
other party and shall remain in full force and effect regardless of any
investigation made by or on behalf of the indemnified party or any officer,
director, or controlling Person of such indemnified party and will survive the
transfer of the Common Stock and the termination of this Agreement.
SECTION 2.9 Issuer's Existing Shelf Registration. The Issuer shall use
its reasonable best efforts to cause the Issuer's Shelf Registration Statement
which was filed by the Issuer prior to the date hereof (the "Existing Shelf
Registration Statement") to be amended to contain a provision for the inclusion
in such Shelf Registration Statement of shares for sale for the account of
stockholders of the Issuer. In the event that the Issuer, after the expiration
of the twelve month period immediately following the date hereof, proposes to
effect any offering under the Existing Shelf Registration Statement (other than
to effect the acquisition of or combination with another business entity), it
shall permit each Holder to include its Registrable Securities on substantially
the same terms and subject to substantially the same conditions and limitations
(including, but not limited to, indemnification provisions) as would be the
case in connection with a registration that is the subject of Section 2.3
hereof. The Issuer will promptly file any prospectus supplements as are
necessary to reflect the inclusion in any such registration of any Registrable
Securities included in such registration by any Holder pursuant to this Section
2.9.
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ARTICLE 3
MISCELLANEOUS
SECTION 3.1 Entire Agreement. This Agreement constitutes the entire
agreement between the parties with respect to the subject matter hereof and
supersedes all other prior agreements and understandings, both written and
oral, between the parties with respect to the subject matter hereof.
SECTION 3.2 Successors and Assigns. Whether or not an express
assignment has been made pursuant to the provisions of this Agreement,
provisions of this Agreement that are for the Holders' benefit as the holders
of any Common Stock are, except as otherwise expressly provided herein, also
for the benefit of, and enforceable by, all subsequent holders of such Common
Stock, except as otherwise expressly provided herein. This Agreement shall be
binding upon the Issuer, each Holder, and, except as otherwise expressly
provided herein, their respective heirs, devisees, successors and assigns.
SECTION 3.3 Duplicate Originals. All parties may sign any number of
copies of this Agreement. Each signed copy shall be an original, but all of
them together shall represent the same agreement.
SECTION 3.4 Amendments, Waivers, Etc. This Agreement may not be
amended, changed, supplemented, waived or otherwise modified or terminated,
except upon the execution and delivery of a written agreement executed by the
Issuer and Holders representing a majority of the Registrable Securities then
held by all Holders.
SECTION 3.5 Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly received if given) by hand delivery or telecopy, or by
any courier service, such as Federal Express, providing proof of delivery. All
communications hereunder shall be delivered to the respective parties at the
address or telecopy number set forth on the signature pages hereto (unless such
contact information in the case of the Holders is updated by written notice
from the affected Holder to the Issuer).
SECTION 3.6 Severability. Whenever possible, each provision or portion
of any provision of this Agreement will be interpreted in such manner as to be
effective and valid under applicable law, but if any provision or portion of
any provision of this Agreement is held to be invalid, illegal or unenforceable
in any respect under any applicable law or rule in any jurisdiction, such
invalidity, illegality or unenforceability will not affect any other provision
or portion of any provision in such jurisdiction, and this Agreement will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision or portion of any provision had never been
contained herein.
SECTION 3.7 No Waiver. The failure of any party hereto to exercise any
right, power or remedy provided under this Agreement or otherwise available in
respect hereof at law or in equity, or to insist upon compliance by any other
party hereto with its obligations hereunder, and any custom or practice of the
parties at variance with the terms hereof, shall not constitute a
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waiver by such party of its right to exercise any such or other right, power or
remedy or to demand such compliance.
SECTION 3.8 No Third Party Beneficiaries. Except as expressly provided
in Section 2.8; this Agreement is not intended to be for the benefit of, and
shall not be enforceable by, any Person who or which is not a party hereto;
provided, that, this Agreement is also intended to be for the benefit of and is
enforceable by each Holder.
SECTION 3.9 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REGARD
TO PRINCIPLES OF CONFLICT OF LAWS.
SECTION 3.10 Descriptive Headings. The descriptive headings used
herein are inserted for convenience of reference only and are not intended to
be part of or to affect the meaning or interpretation of this Agreement.
SECTION 3.11 Counterparts. This Agreement may be executed in
counterpart, each of which shall be deemed to be an original, but all of which,
taken together, shall constitute one and the same Agreement.
[THE BALANCE OF THIS PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the Issuer and the Holders have caused this
Agreement to be duly executed as of the day and year first above written.
XXXXX ADVERTISING COMPANY
By: /s/ Xxxxx Xxxxx
-----------------------------------
Name: Xxxxx Xxxxx
Title: Chief Financial Officer
Address:
Xxxxx Advertising Company
0000 Xxxxxxxxx Xxxxxxxxx
Xxxxx Xxxxx, Xxxxxxxxx 00000
Attention: Xxxxx Xxxxx
Fax: (000) 000-0000
17
HOLDERS:
CHANCELLOR MEDIA CORPORATION OF
LOS ANGELES
By: /s/ W. Xxxxxxxx Xxxxxx
------------------------------------
Name: W. Xxxxxxxx Xxxxxx
Title: Sr. Vice President and Chief Accounting
Officer
Address:
0000 Xxxxxxx Xxxxxxx Xxxxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: General Counsel
Fax: (000) 000-0000
CHANCELLOR MEZZANINE HOLDINGS
CORPORATION
By: /s/ W. Xxxxxxxx Xxxxxx
------------------------------------
Name: W. Xxxxxxxx Xxxxxx
Title: Sr. Vice President and Chief Accounting
Officer
Address:
0000 Xxxxxxx Xxxxxxx Xxxxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: General Counsel
Fax: (000) 000-0000
