Exhibit 4.55
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GRANITE BROADCASTING CORPORATION
Non-Voting Common Stock Purchase Warrant
Dated as of March 6, 2001
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This Warrant and any shares acquired upon the exercise of this Warrant have not
been registered under the Securities Act of 1933, as amended, and may not
be transferred, sold or otherwise disposed of except while a registration
under such Act is in effect or pursuant to an exemption therefrom under
such Act. This Warrant and such shares may be transferred only in
compliance with the conditions specified in this Warrant
TABLE OF CONTENTS
PAGE
1. Exercise of Warrant..............................................1
1.1 Manner of Exercise.........................................1
1.2 When Exercise Effective....................................1
1.3 Delivery of Stock Certificates, etc........................2
1.4 Payment by Application of Shares Otherwise Issuable........2
1.5 Payment by Application of Debt.............................2
2. Adjustment of Common Stock Issuable Upon Exercise................2
2.1 General; Warrant Price.....................................2
2.2 Adjustment of Warrant Price................................2
(a) Issuance of Additional Shares of Common Stock........3
(b) Extraordinary Dividends and Distributions............3
2.3 Treatment of Options and Convertible Securities............3
2.4 Treatment of Stock Dividends, Stock Splits, etc............5
2.5 Computation of Consideration...............................5
2.6 Adjustments for Combinations, etc..........................7
2.7 Dilution in Case of Other Securities.......................7
2.8 Minimum Adjustment of Warrant Price........................7
3. Consolidation, Merger, etc.......................................7
3.1 Adjustments for Consolidation, Merger, Sale of Assets,
Reorganization, etc........................................7
3.2 Assumption of Obligations..................................8
4. Other Dilutive Events............................................8
5. No Dilution or Impairment........................................8
6. Officer's Certificate as to Adjustments..........................8
7. Notices of Corporate Action......................................9
8. Registration of Common Stock.....................................9
9. Restrictions on Transfer........................................10
9.1 Restrictive Legends.......................................10
9.2 Termination of Restrictions...............................10
TABLE OF CONTENTS
(CONTINUED)
PAGE
10. Availability of Information.....................................10
11. Reservation of Stock, etc.......................................11
12. Registration and Transfer of Warrants, etc......................11
12.1 Warrant Register; Ownership of Warrants...................11
12.2 Transfer and Exchange of Warrants.........................11
12.3 Replacement of Warrants...................................11
13. Registration under Securities Act, etc..........................12
13.1 Registration on Request...................................12
13.2 Incidental Registration...................................13
13.3 Registration Procedures...................................15
13.4 Underwritten Offerings....................................19
13.5 Preparation; Reasonable Investigation.....................22
13.6 Indemnification...........................................22
14. Definitions.....................................................25
15. Remedies........................................................30
16. No Rights or Liabilities as Stockholder.........................30
17. Notices.........................................................30
18. Amendments......................................................30
19. Assignment......................................................30
20. Expiration......................................................30
20. Descriptive Headings.............................................30
21. GOVERNING LAW..................................................30
22. Judicial Proceedings; Waiver of Jury.............................30
FORM OF SUBSCRIPTION............................................53
FORM OF ASSIGNMENT..............................................54
GRANITE BROADCASTING CORPORATION
Non-Voting Common Stock Purchase Warrant
New York, New York
No. W-1 March 6, 2001
GRANITE BROADCASTING CORPORATION (the "COMPANY"), a Delaware
corporation, for value received, hereby certifies that Xxxxxxx, Xxxxx & Co., or
registered assigns, is entitled to purchase from the Company 753,491 duly
authorized, validly issued, fully paid and nonassessable shares of Non-Voting
Common Stock, par value $.01 per share (the "COMMON STOCK") of the Company at
the purchase price per share of $1.75 (the "Purchase Price"), at any time or
from time to time prior to 5:00 p.m., New York City time, on March 6, 2006, all
subject to the terms, conditions and adjustments set forth below in this
Warrant.
This Warrant evidences rights to purchase an aggregate of 753,491
shares of Common Stock subject to adjustment as provided herein. Certain
capitalized terms used in this Warrant are defined in section 14; references to
an "Exhibit" are, unless otherwise specified, to one of the Exhibits attached to
this Warrant and references to a "section" are, unless otherwise specified, to
one of the sections of this Warrant.
1. EXERCISE OF WARRANT.
1.1 MANNER OF EXERCISE. This Warrant may be exercised by the holder
hereof, in whole or in part, during normal business hours on any Business Day,
by surrender of this Warrant to the Company at its principal office, accompanied
by a subscription in substantially the form attached to this Warrant (or a
reasonable facsimile thereof) duly executed by such holder and accompanied by
payment, in cash, by certified or official bank check payable to the order of
the Company, or in the manner provided in section 1.4 or section 1.5 (or by any
combination of such methods), in the amount obtained by multiplying (a) the
number of shares of Common Stock (without giving effect to any adjustment
thereof) designated in such subscription by (b) the Warrant Price, and such
holder shall thereupon be entitled to receive the number of duly authorized,
validly issued, fully paid and nonassessable shares of Common Stock (or Other
Securities) determined as provided in sections 2 through 4.
1.2 WHEN EXERCISE EFFECTIVE. Each exercise of this Warrant shall be
deemed to have been effected immediately prior to the close of business on the
Business Day on which this Warrant shall have been surrendered to the Company as
provided in section 1.1, and at such time the Person or Persons in whose name or
names any certificate or certificates for shares of Common Stock (or Other
Securities) shall be issuable upon such exercise as provided in section 1.3
shall be deemed to have become the holder or holders of record thereof.
1.3 DELIVERY OF STOCK CERTIFICATES, ETC. As soon as practicable
after each exercise of this Warrant, in whole or in part, and in any event
within three Business Days thereafter, the Company at its expense (including the
payment by it of any applicable issue taxes) will cause to be issued in the name
of and delivered to the holder hereof or, subject to section 9, as such holder
(upon payment by such holder of any applicable transfer taxes) may direct,
(a) a certificate or certificates for the number of duly authorized,
validly issued, fully paid and nonassessable shares of Common Stock (or Other
Securities) to which such holder shall be entitled upon such exercise plus, in
lieu of any fractional share to which such holder would otherwise be entitled,
cash in an amount equal to the same fraction of the Market Price per share on
the Business Day next preceding the date of such exercise, and
(b) in case such exercise is in part only, a new Warrant or Warrants
of like tenor, calling in the aggregate on the face or faces thereof for the
number of shares of Common Stock equal (without giving effect to any adjustment
thereof) to the number of such shares called for on the face of this Warrant
minus the number of such shares designated by the holder upon such exercise as
provided in section 1.1.
1.4 PAYMENT BY APPLICATION OF SHARES OTHERWISE ISSUABLE. Upon any
exercise of this Warrant, the holder hereof may, at its option, instruct the
Company, by written notice accompanying the surrender of this Warrant at the
time of such exercise, to apply to the payment required by section 1.1 such
number of the shares of Common Stock otherwise issuable to such holder upon such
exercise as shall be specified in such notice, in which case an amount equal to
the excess of the aggregate Current Market Price of such specified number of
shares on the date of exercise over the portion of the payment required by
section 1.1 attributable to such shares shall be deemed to have been paid to the
Company and the number of shares issuable upon such exercise shall be reduced by
such specified number.
1.5 PAYMENT BY APPLICATION OF DEBT. Upon any exercise of this
Warrant, the holder hereof may, at its option, elect to pay some or instruct the
Company, by written notice accompanying the surrender of this Warrant at the
time of such exercise to apply to the payment required by section 1.1 by
crediting all or any part amount of the obligations owing to such holder under
the Credit Agreement with the amount of the Purchase Price.
2. ADJUSTMENT OF COMMON STOCK ISSUABLE UPON EXERCISE.
2.1 GENERAL; WARRANT PRICE. The number of shares of Common Stock
which the holder of this Warrant shall be entitled to receive upon each exercise
hereof shall be determined by multiplying the number of shares of Common Stock
which would otherwise (but for the provisions of this section 2) be issuable
upon such exercise, as designated by the holder hereof pursuant to section 1.1,
by the fraction of which (a) the numerator is $1.75 and (b) the denominator is
the Warrant Price in effect on the date of such exercise. The "Warrant Price"
shall initially be $1.75 per share, shall be adjusted and readjusted from time
to time as provided in this section 2 and, as so adjusted or readjusted, shall
remain in effect until a further adjustment or readjustment thereof is required
by this section 2.
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2.2 ADJUSTMENT OF WARRANT PRICE.
(a) ISSUANCE OF ADDITIONAL SHARES OF COMMON STOCK. In case the
Company at any time or from time to time after the date hereof shall issue or
sell Additional Shares of Common Stock (including Additional Shares of Common
Stock deemed to be issued pursuant to section 2.3 or 2.4) without consideration
or for a consideration per share less than the Warrant Price in effect
immediately prior to such issue or sale, then, and in each such case, subject to
section 2.8, such Warrant Price shall be reduced, concurrently with such issue
or sale, to a price (calculated to the nearest .001 of a cent) determined by
multiplying such Warrant Price by a fraction
(i) the numerator of which shall be (i) the number of shares
of Common Stock outstanding immediately prior to such issue or sale
plus (ii) the number of shares of Common Stock which the aggregate
consideration received by the Company for the total number of such
Additional Shares of Common Stock so issued or sold would purchase
at such Warrant Price, and
(ii) the denominator of which shall be the number of shares of
Common Stock outstanding immediately after such issue or sale,
PROVIDED that, for the purposes of this section 2.2.1, (X)
immediately after any Additional Shares of Common Stock are deemed
to have been issued pursuant to section 2.3 or 2.4, such Additional
Shares shall be deemed to be outstanding, and (Y) treasury shares
shall not be deemed to be outstanding.
(b) EXTRAORDINARY DIVIDENDS AND DISTRIBUTIONS. In case the Company
at any time or from time to time after the date hereof shall declare, order, pay
or make a dividend or other distribution (including, without limitation, any
distribution of other or additional stock or other securities or property or
Options by way of dividend or spin-off, reclassification, recapitalization or
similar corporate rearrangement) on the Common Stock, other than a dividend
payable in Additional Shares of Common Stock, then, and in each such case,
subject to section 2.8, the Warrant Price in effect immediately prior to the
close of business on the record date fixed for the determination of holders of
any class of securities entitled to receive such dividend or distribution shall
be reduced, effective as of the close of business on such record date, to a
price (calculated to the nearest .001 of a cent) determined by multiplying such
Warrant Price by a fraction
(i) the numerator of which shall be the Current Market Price
in effect on such record date or, if the Common Stock trades on an
ex-dividend basis, on the date prior to the commencement of
ex-dividend trading, less the amount of such dividend or
distribution (as determined in good faith by the Board of Directors
of the Company) applicable to one share of Common Stock, and
(ii) the denominator of which shall be such Current Market
Price.
2.3 TREATMENT OF OPTIONS AND CONVERTIBLE SECURITIES. In case the
Company at any time or from time to time after the date hereof shall issue,
sell, grant or assume, or shall fix a
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record date for the determination of holders of Common Stock entitled to
receive, any Options or Convertible Securities, then, and in each such case, the
maximum number of Additional Shares of Common Stock (as set forth in the
instrument relating thereto, without regard to any provisions contained therein
for a subsequent adjustment of such number) issuable upon the exercise of such
Options or, in the case of Convertible Securities and Options therefor, the
conversion or exchange of such Convertible Securities, shall be deemed to be
Additional Shares of Common Stock issued as of the time of such issue, sale,
grant or assumption or, in case such a record date shall have been fixed, as of
the close of business on such record date (or, if the Common Stock trades on an
ex-dividend basis, on the date prior to the commencement of ex-dividend
trading), provided that such Additional Shares of Common Stock shall not be
deemed to have been issued unless the consideration per share (determined
pursuant to section 2.5) of such shares would be less than the Warrant Price in
effect on the date of and immediately prior to such issue, sale, grant or
assumption or immediately prior to the close of business on such record date
(or, if the Common Stock trades on an ex-dividend basis, on the date prior to
the commencement of ex-dividend trading), as the case may be, and provided,
further, that in any such case in which Additional Shares of Common Stock are
deemed to be issued
(a) no further adjustment of the Warrant Price shall be made upon
the subsequent issue or sale of Convertible Securities or shares of Common Stock
upon the exercise of such Options or the conversion or exchange of such
Convertible Securities, except in the case of any such Options or Convertible
Securities which contain provisions requiring an adjustment, subsequent to the
date of the issue or sale thereof, of the number of Additional Shares of Common
Stock issuable upon the exercise of such Options or the conversion or exchange
of such Convertible Securities by reason of (x) a change of control of the
Company, (y) the acquisition by any Person or group of Persons of any specified
number or percentage of the Voting Securities of the Company or (z) any similar
event or occurrence, each such case to be deemed hereunder to involve a separate
issuance of Additional Shares of Common Stock, Options or Convertible
Securities, as the case may be;
(b) if such Options or Convertible Securities by their terms
provide, with the passage of time or otherwise, for any increase in the
consideration payable to the Company, or decrease in the number of Additional
Shares of Common Stock issuable, upon the exercise, conversion or exchange
thereof (by change of rate or otherwise), the Warrant Price computed upon the
original issue, sale, grant or assumption thereof (or upon the occurrence of the
record date, or date prior to the commencement of ex-dividend trading, as the
case may be, with respect thereto), and any subsequent adjustments based
thereon, shall, upon any such increase or decrease becoming effective, be
recomputed to reflect such increase or decrease insofar as it affects such
Options, or the rights of conversion or exchange under such Convertible
Securities, which are outstanding at such time;
(c) upon the expiration (or purchase by the Company and cancellation
or retirement) of any such Options which shall not have been exercised or the
expiration of any rights of conversion or exchange under any such Convertible
Securities which (or purchase by the Company and cancellation or retirement of
any such Convertible Securities the rights of conversion or exchange under
which) shall not have been exercised, the Warrant Price computed upon the
original issue, sale, grant or assumption thereof (or upon the occurrence of the
record date, or date prior to the commencement of ex-dividend trading, as the
case may be, with respect
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thereto), and any subsequent adjustments based thereon, shall, upon such
expiration (or such cancellation or retirement, as the case may be), be
recomputed as if:
(i) in the case of Options for Common Stock or Convertible
Securities, the only Additional Shares of Common Stock issued or
sold were the Additional Shares of Common Stock, if any, actually
issued or sold upon the exercise of such Options or the conversion
or exchange of such Convertible Securities and the consideration
received therefor was the consideration actually received by the
Company for the issue, sale, grant or assumption of all such
Options, whether or not exercised, plus the consideration actually
received by the Company upon such exercise, or for the issue or sale
of all such Convertible Securities which were actually converted or
exchanged, plus the additional consideration, if any, actually
received by the Company upon such conversion or exchange, and
(ii) in the case of Options for Convertible Securities, only
the Convertible Securities, if any, actually issued or sold upon the
exercise of such Options were issued at the time of the issue, sale,
grant or assumption of such Options, and the consideration received
by the Company for the Additional Shares of Common Stock deemed to
have then been issued was the consideration actually received by the
Company for the issue, sale, grant or assumption of all such
Options, whether or not exercised, plus the consideration deemed to
have been received by the Company (pursuant to section 2.5) upon the
issue or sale of such Convertible Securities with respect to which
such Options were actually exercised;
(d) no readjustment pursuant to subdivision (b) or (c) above shall
have the effect of increasing the Warrant Price by an amount in excess of the
amount of the adjustment thereof originally made in respect of the issue, sale,
grant or assumption of such Options or Convertible Securities; and
(e) in the case of any such Options which expire by their terms not
more than 30 days after the date of issue, sale, grant or assumption thereof, no
adjustment of the Warrant Price shall be made until the expiration or exercise
of all such Options, whereupon such adjustment shall be made in the manner
provided in subdivision (c) above.
2.4 TREATMENT OF STOCK DIVIDENDS, STOCK SPLITS, ETC. In case the
Company at any time or from time to time after the date hereof shall declare or
pay any dividend on the Common Stock payable in Common Stock, or shall effect a
subdivision of the outstanding shares of Common Stock into a greater number of
shares of Common Stock (by reclassification or otherwise than by payment of a
dividend in Common Stock), then, and in each such case, Additional Shares of
Common Stock shall be deemed to have been issued (a) in the case of any such
dividend, immediately after the close of business on the record date for the
determination of holders of any class of securities entitled to receive such
dividend, or (b) in the case of any such subdivision, at the close of business
on the day immediately prior to the day upon which such corporate action becomes
effective.
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2.5 COMPUTATION OF CONSIDERATION. For the purposes of this section
2,
(a) the consideration for the issue or sale of any Additional Shares
of Common Stock shall, irrespective of the accounting treatment of such
consideration,
(i) insofar as it consists of cash, be computed at the net
amount of cash received by the Company,
(ii) insofar as it consists of property (including securities)
other than cash, be computed at the fair value thereof at the time
of such issue or sale, as determined in good faith by the Board of
Directors of the Company, and
(iii) in case Additional Shares of Common Stock are issued or
sold together with other stock or securities or other assets of the
Company for a consideration which covers both, be the portion of
such consideration so received, computed as provided in clauses (i)
and (ii) above, allocable to such Additional Shares of Common Stock,
all as determined in good faith by the Board of Directors of the
Company;
(b) Additional Shares of Common Stock deemed to have been issued
pursuant to section 2.3, relating to Options and Convertible Securities, shall
be deemed to have been issued for a consideration per share determined by
dividing
(i) the total amount, if any, received and receivable by the
Company as consideration for the issue, sale, grant or assumption of
the Options or Convertible Securities in question, plus the minimum
aggregate amount of additional consideration (as set forth in the
instruments relating thereto, without regard to any provision
contained therein for a subsequent adjustment of such consideration
to protect against dilution) payable to the Company upon the
exercise in full of such Options or the conversion or exchange of
such Convertible Securities or, in the case of Options for
Convertible Securities, the exercise of such Options for Convertible
Securities and the conversion or exchange of such Convertible
Securities, in each case computing such consideration as provided in
the foregoing subdivision (a),
by
(ii) the maximum number of shares of Common Stock (as set
forth in the instruments relating thereto, without regard to any
provision contained therein for a subsequent adjustment of such
number to protect against dilution) issuable upon the exercise of
such Options or the conversion or exchange of such Convertible
Securities; and
(c) Additional Shares of Common Stock deemed to have been issued
pursuant to section 2.4, relating to stock dividends, stock splits, etc., shall
be deemed to have been issued for no consideration.
(d) Whenever the Board shall be required to make a determination in
good faith of the fair value of any item under this section 2.5, the holders of
50% of the Registrable
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Securities may challenge such determination in good faith by notifying the Board
in writing of such holders' determination of the fair value of such item. Any
such dispute shall be resolved by an independent investment banking firm
selected by the challenging holders and reasonably acceptable to the Company.
The expenses of any challenge made by such holders hereunder to be paid by the
Company shall be the amount obtained by multiplying (a) the aggregate amount of
such expenses and (b) the percentage up to 100% obtained by dividing (1) the
difference between the fair value determined by the independent investment
banking firm and the fair value claimed by the Company by (ii) the difference
between the fair value claimed by the challenging holders and the fair value
claimed by the Company. Any remaining amounts will be paid by the holder.
2.6 ADJUSTMENTS FOR COMBINATIONS, ETC. In case the outstanding
shares of Common Stock shall be combined or consolidated, by reclassification or
otherwise, into a lesser number of shares of Common Stock, the Warrant Price in
effect immediately prior to such combination or consolidation shall,
concurrently with the effectiveness of such combination or consolidation, be
proportionately increased.
2.7 DILUTION IN CASE OF OTHER SECURITIES. In case any Other
Securities shall be issued or sold or shall become subject to issue or sale upon
the conversion or exchange of any stock (or Other Securities) of the Company (or
any issuer of Other Securities or any other Person referred to in section 3) or
to subscription, purchase or other acquisition pursuant to any Options issued or
granted by the Company (or any such other issuer or Person) for a consideration
such as to dilute, on a basis consistent with the standards established in the
other provisions of this section 2, the purchase rights granted by this Warrant,
then, and in each such case, the computations, adjustments and readjustments
provided for in this section 2 with respect to the Warrant Price shall be made
as nearly as possible in the manner so provided and applied to determine the
amount of Other Securities from time to time receivable upon the exercise of the
Warrants, so as to protect the holders of the Warrants against the effect of
such dilution.
2.8 MINIMUM ADJUSTMENT OF WARRANT PRICE. If the amount of any
adjustment of the Warrant Price required pursuant to this section 2 would be
less than one percent (1%) of the Warrant Price in effect at the time such
adjustment is otherwise so required to be made, such amount shall be carried
forward and adjustment with respect thereto made at the time of and together
with any subsequent adjustment which, together with such amount and any other
amount or amounts so carried forward, shall aggregate at least one percent (1%)
of such Warrant Price.
3. ADJUSTMENTS FOR CONSOLIDATION, MERGER, SALE OF ASSETS,
REORGANIZATION, ETC. In case the Company after the date hereof (a) shall
consolidate with or merge into any other Person and shall not be the continuing
or surviving corporation of such consolidation or merger, or (b) shall permit
any other Person to consolidate with or merge into the Company and the Company
shall be the continuing or surviving Person but, in connection with such
consolidation or merger, the Common Stock or Other Securities shall be changed
into or exchanged for stock or other securities of any other Person or cash or
any other property, or (c) shall transfer all or substantially all of its
properties or assets to any other Person, or (d) shall effect a capital
reorganization or reclassification of the Common Stock or Other Securities
(other than a capital reorganization or reclassification resulting in the issue
of Additional Shares of Common Stock
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for which adjustment in the Warrant Price is provided in section 2.2.1 or
2.2.2), then, in any one or more of said cases, the Company shall give, by first
class mail, postage prepaid, addresses to the holder or holders of this Warrant
at the addresses of such holders as shown on the books of the Company, at least
30 days' prior written notice of the date when the same shall take place. Such
written notice shall also specify the date on which the holders of shares of
Common Stock or Other Securities shall be entitled to exchange their shares of
Common Stock or Other Securities for securities or other property deliverable
upon such reorganization, reclassification, consolidation, merger or sale, which
date shall be not earlier than 30 days after the effective date of such event.
4. OTHER DILUTIVE EVENTS. In case any event shall occur as to which
the provisions of section 2 or section 3 are not strictly applicable but the
failure to make any adjustment would not fairly protect the purchase rights
represented by this Warrant in accordance with the essential intent and
principles of such sections, then, in each such case, the Board of Directors of
the Company shall in good faith make such adjustments in application of such
provisions, on a basis consistent with the essential intent and principles
established in Sections 2 and 3, necessary to preserve the purchase rights
represented by this Warrant.
5. NO DILUTION OR IMPAIRMENT. The Company will not, by amendment of
its certificate of incorporation or through any consolidation, merger,
reorganization, transfer of assets, dissolution, issue or sale of securities or
any other voluntary action, avoid or seek to avoid the observance or performance
of any of the terms of this Warrant, but will at all times in good faith assist
in the carrying out of all such terms and in the taking of all such action as
may be necessary or appropriate in order to protect the rights of the holder of
this Warrant against dilution or other impairment.
6. OFFICER'S CERTIFICATE AS TO ADJUSTMENTS. In each case of any
adjustment or readjustment in the shares of Common Stock (or Other Securities)
issuable upon the exercise of this Warrant, the Company at its expense will
promptly compute such adjustment or readjustment in accordance with the terms of
this Warrant and cause the Chief Financial Officer of the Company to verify such
computation (other than any computation of the fair value of property as
determined in good faith by the Board of Directors of the Company) and prepare a
report setting forth such adjustment or readjustment and showing in reasonable
detail the method of calculation thereof and the facts upon which such
adjustment or readjustment is based, including a statement of (a) the
consideration received or to be received by the Company for any Additional
Shares of Common Stock issued or sold or deemed to have been issued, (b) the
number of shares of Common Stock outstanding or deemed to be outstanding, and
(c) the Warrant Price in effect immediately prior to such issue or sale and as
adjusted and readjusted (if required by section 2) on account thereof. The
Company will forthwith mail a copy of each such report to each holder of a
Warrant and will, upon the written request at any time of any holder of a
Warrant, furnish to such holder a like report setting forth the Warrant Price at
the time in effect and showing in reasonable detail how it was calculated. The
Company will also keep copies of all such reports at its principal office and
will cause the same to be available for inspection at such office during normal
business hours by any holder of a Warrant or any prospective purchaser of a
Warrant designated by the holder thereof.
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7. NOTICES OF CORPORATE ACTION. In the event of
(a) any taking by the Company of a record of the holders of any
class of securities for the purpose of determining the holders thereof who are
entitled to receive any dividend (other than a regular periodic dividend payable
in cash out of earned surplus in an amount not exceeding the amount of the
immediately preceding cash dividend for such period) or other distribution, or
any right to subscribe for, purchase or otherwise acquire any shares of stock of
any class or any other securities or property, or to receive any other right, or
(b) any capital reorganization of the Company, any reclassification
or recapitalization of the capital stock of the Company or any consolidation or
merger involving the Company and any other Person or any transfer of all or
substantially all the assets of the Company to any other Person, or
(c) any voluntary or involuntary dissolution, liquidation or
winding-up of the Company,
the Company will mail to each holder of a Warrant a notice specifying (I) the
date or expected date on which any such record is to be taken for the purpose of
such dividend, distribution or right, and the amount and character of such
dividend, distribution or right, or (II) the date or expected date on which any
such reorganization, reclassification, recapitalization, consolidation, merger,
transfer, dissolution, liquidation or winding-up is to take place and the time,
if any such time is to be fixed, as of which the holders of record of Common
Stock (or Other Securities) shall be entitled to exchange their shares of Common
Stock (or Other Securities) for the securities or other property deliverable
upon such reorganization, reclassification, recapitalization, consolidation,
merger, transfer, dissolution, liquidation or winding-up. Such notice shall be
mailed at least 30 days prior to the date therein specified.
8. REGISTRATION OF COMMON STOCK. If any shares of Common Stock
required to be reserved for purposes of exercise of this Warrant require
registration with or approval of any governmental authority under any federal or
state law (other than the Securities Act) before such shares may be issued upon
exercise, the Company will, at its expense and as expeditiously as possible, use
its reasonable best efforts to cause such shares to be duly registered or
approved, as the case may be. At any such time as Common Stock of the class of
Common Stock issuable upon exercise of this Warrant is listed on any national
securities exchange, the Company will, at its expense, obtain promptly and
maintain, so long as shares of Common Stock are so listed, the approval for
listing on each such exchange, upon official notice of issuance, the shares of
Common Stock issuable upon exercise of the then outstanding Warrants and
maintain the listing of such shares after their issuance, so long as shares of
Common Stock are so listed; and the Company will also list on such national
securities exchange, will register under the Exchange Act and will maintain such
listing of, any Other Securities that at any time are issuable upon exercise of
the Warrants, if and at the time that any securities of the same class shall be
listed on such national securities exchange by the Company, for so long as such
Other Securities are so listed.
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9. RESTRICTIONS ON TRANSFER.
9.1 RESTRICTIVE LEGENDS. Except as otherwise permitted by this
section 9, each Warrant (including each Warrant issued upon the transfer of any
Warrant) shall be stamped or otherwise imprinted with a legend in substantially
the following form:
"This Warrant and any shares acquired upon the exercise of this
Warrant have not been registered under the Securities Act of 1933, as
amended, and may not be transferred, sold or otherwise disposed of except
while a registration under such Act is in effect or pursuant to an
exemption therefrom under such Act. This Warrant and such shares may be
transferred only in compliance with the conditions specified in this
Warrant."
Except as otherwise permitted by this section 9, each certificate
for Common Stock (or Other Securities) issued upon the exercise of any Warrant,
and each certificate issued upon the transfer of any such Common Stock (or Other
Securities), shall be stamped or otherwise imprinted with a legend in
substantially the following form:
"The shares represented by this certificate have not been registered
under the Securities Act of 1933 and may not be transferred in the absence
of such registration or an exemption therefrom under such Act. Such shares
may be transferred only in compliance with the conditions specified in
certain Common Stock Purchase Warrants issued by Granite Broadcasting
Corporation. A complete and correct copy of the form of such Warrant is
available from Granite Broadcasting Corporation and will be furnished to
the holder of such shares upon written request and without charge."
9.2 TERMINATION OF RESTRICTIONS. The restrictions imposed by this
section 9 upon the transferability of Restricted Securities shall cease and
terminate as to any particular Restricted Securities (a) when such securities
shall have been effectively registered under the Securities Act, or (b) when, in
the opinions of both counsel for the holder thereof and counsel for the Company,
such restrictions are no longer required in order to insure compliance with the
Securities Act. Whenever such restrictions shall cease and terminate as to any
Restricted Securities, the holder thereof shall be entitled to receive from the
Company, without expense (other than applicable transfer taxes, if any), new
securities of like tenor not bearing the applicable legends required by section
9.1.
10. AVAILABILITY OF INFORMATION. So long as the Company is a
reporting company under the Exchange Act, the Company shall timely file the
reports required to be filed by it under the Securities Act and the Exchange Act
(including but not limited to the reports under sections 13 and 15(d) of the
Exchange Act referred to in subparagraph (c) of Rule 144 adopted by the
Commission under the Securities Act) and the rules and regulations adopted by
the Commission thereunder (or, if the Company is not required to file such
reports, will make publicly available other information) and will take such
further action as any holder of Registrable Securities may reasonably request,
all to the extent required from time to time to enable such holder to sell
Registrable Securities without registration under the Securities Act within the
limitation of the exemptions provided by (a) Rule 144 under the Securities Act,
as such Rule may be amended
10
from time to time, or (b) any similar rule or regulation hereafter adopted by
the Commission. Upon the request of any holder of Registrable Securities, the
Company will deliver to such holder a written statement as to whether it has
complied with the requirements of this section 10.
11. RESERVATION OF STOCK, ETC. The Company will at all times reserve
and keep available, solely for issuance and delivery upon exercise of the
Warrants, the number of shares of Common Stock (or Other Securities) from time
to time issuable upon exercise of all Warrants at the time outstanding. All
shares of Common Stock (or Other Securities) issuable upon exercise of any
Warrants shall be duly authorized and, when issued upon such exercise, shall be
validly issued and, in the case of shares, fully paid and nonassessable with no
liability on the part of the holders thereof.
12. REGISTRATION AND TRANSFER OF WARRANTS, ETC.
12.1 WARRANT REGISTER; OWNERSHIP OF WARRANTS. The Company will keep
at its principal office a register in which the Company will provide for the
registration of Warrants and the registration of transfers of Warrants. The
Company may treat the Person in whose name any Warrant is registered on such
register as the owner thereof for all other purposes, and the Company shall not
be affected by any notice to the contrary, except that, if and when any Warrant
is properly assigned in blank, the Company may (but shall not be obligated to)
treat the bearer thereof as the owner of such Warrant for all purposes. Subject
to section 9, a Warrant, if properly assigned, may be exercised by a new holder
without a new Warrant first having been issued.
12.2 TRANSFER AND EXCHANGE OF WARRANTS. Upon surrender of any
Warrant for registration of transfer or for exchange to the Company at its
principal office, the Company at its expense will (subject to compliance with
section 9, if applicable) execute and deliver in exchange therefor a new Warrant
or Warrants of like tenor, in the name of such holder or as such holder (upon
payment by such holder of any applicable transfer taxes) may direct, calling in
the aggregate on the face or faces thereof for the number of shares of Common
Stock called for on the face or faces of the Warrant or Warrants so surrendered.
12.3 REPLACEMENT OF WARRANTS. Upon receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction or mutilation of any
Warrant and, in the case of any such loss, theft or destruction of any Warrant,
upon delivery of an indemnity bond in such reasonable amount as the Company may
determine (or, in the case of any Warrant held by any Institutional Holder or
its nominee, of an indemnity agreement from such Institutional Holder reasonably
satisfactory to the Company), or, in the case of any such mutilation, upon the
surrender of such Warrant for cancellation to the Company at its principal
office, the Company at its expense will execute and deliver, in lieu thereof, a
new Warrant of like tenor.
13. REGISTRATION UNDER SECURITIES ACT, ETC.
13.1 REGISTRATION ON REQUEST.
(a) REQUEST. On no more than two occasions on and after June 1,
2001, upon the written request of one or more Initiating Holders, requesting
that the Company effect the
11
registration under the Securities Act of all or part of such Initiating Holders'
Registrable Securities for resale having an aggregate Current Market Price on
the date of such request of at least $1,000,000 and specifying the intended
method of disposition thereof, the Company will, subject to the terms of this
Agreement, promptly give written notice of such requested registration to all
registered holders of Registrable Securities, and thereupon the Company will
effect the registration under the Securities Act of
(i) the Registrable Securities which the Company has been so
requested to register by such Initiating Holders for disposition in
accordance with the intended method of disposition stated in such
request, and
(ii) all other Registrable Securities the holders of which
shall have made a written request to the Company for registration
thereof within 30 days after the giving of such written notice by
the Company (which request shall specify the intended method of
disposition of such Registrable Securities),
all to the extent requisite to permit the disposition (in accordance
with the intended methods thereof as aforesaid) of the Registrable
Securities so to be registered.
(b) REGISTRATION STATEMENT FORM. Registrations under this section
13.1 shall be on such appropriate registration form of the Commission (i) as
shall be selected by the Company and as shall be reasonably acceptable to the
holders of more than 50% (by number of shares) of the Registrable Securities so
to be registered and (ii) as shall permit the disposition of such Registrable
Securities in accordance with the intended method or methods of disposition
specified in their request for such registration. The Company agrees to include
in any such registration statement all information which holders of Registrable
Securities being registered shall reasonably request; PROVIDED HOWEVER, that if
the Company is eligible to use Form S-3, or its equivalent, such registration
will be on Form S-3, or its equivalent.
(c) EXPENSES. The Company will pay all Registration Expenses in
connection with any registration requested pursuant to this section 13.1 by any
Initiating Holders of Registrable Securities prior to the time at which two such
registrations shall have been effected. The underwriting discounts and
commissions and transfer taxes, if any in connection with each registration
requested under this section 13.1 shall be allocated pro rata among all Persons
on whose behalf securities of the Company are included in such registration, on
the basis of the respective amounts of the securities then being registered on
their behalf.
(d) EFFECTIVE REGISTRATION STATEMENT. A registration requested
pursuant to this section 13.1 shall not be deemed to have been effected (i)
unless a registration statement with respect thereto has become effective,
provided that a registration which does not become effective solely by reason of
the refusal to proceed of the Initiating Holders (other than a refusal to
proceed based upon the advice of counsel relating to a matter with respect to
the Company) shall be deemed to have been effected by the Company at the request
of such Initiating Holders unless the Initiating Holders shall have elected to
pay all Registration Expenses in connection with such registration, (ii) if,
after it has become effective, such registration becomes subject to any stop
order, injunction or other order or requirement of the Commission or other
12
governmental agency or court for any reason, or (iii) the conditions to closing
specified in the purchase agreement or underwriting agreement entered into in
connection with such registration are not satisfied, other than by reason of
some act or omission by such Initiating Holders.
(e) SELECTION OF UNDERWRITERS. If a requested registration pursuant
to this section 13.1 involves an underwritten offering, the underwriter or
underwriters thereof shall be selected by the Company and reasonably
satisfactory to the holders of at least a majority (by number of shares) of the
Registrable Securities as to which registration has been requested, who shall
not unreasonably withhold their acceptance of any such underwriters.
(f) PRIORITY IN REQUESTED REGISTRATIONS. If a requested registration
pursuant to this section 13.1 involves an underwritten offering, and the
managing underwriter shall advise the Company in writing (with a copy to each
holder of Registrable Securities requesting registration) that, in its opinion,
the number of securities requested to be included in such registration exceeds
the number which can be sold in such offering within a price range acceptable to
the holders of a majority of the Registrable Securities requested to be included
in such registration, the Company will include in such registration, to the
extent of the number which the Company is so advised can be sold in such
offering, Registrable Securities requested to be included in such registration
by the holder or holders of Registrable Securities, first, pro rata among the
holders thereof requesting such registration on the basis of the number of such
securities requested to be included by such holders, second, any such securities
requested to be included by the Company and, third, pro rata among any other
holders thereof, requesting such registration pursuant to section 13.2(b).
(g) DELAY. If after receiving a request for registration pursuant to
13.1 the Company furnishes to the holders a certificate signed by the Chairman
of the Board of Directors of the Company stating that in the good faith judgment
of the Board of Directors of the Company, it would be seriously detrimental to
the Company and its stockholders for such registration to be effected at such
time, in which event the Company shall have the right to defer the filing of the
registration statement for a period of not more than ninety (90) days after
receipt of the request of the holder or holders under Section 13.1; PROVIDED,
that such right to delay a request, shall be exercised by the Company no more
than twice in any twelve (12) month period for an aggregate period of no more
than 90 days.
13.2 INCIDENTAL REGISTRATION.
(a) If the Company at any time proposes to register any of its
securities under the Securities Act (other than by a registration on Form S-4 or
S-8 or any successor or similar forms and other than pursuant to section 13.1),
whether or not for sale for its own account, it will each such time give prompt
written notice to all holders of Registrable Securities of its intention to do
so and of such holders' rights under this section 13.2. Upon the written request
of any such holder made within 15 days after the receipt of any such notice
(which request shall specify the Registrable Securities intended to be disposed
of by such holder and the intended method of disposition thereof), the Company
will, subject to the terms of this Agreement, effect the registration under the
Securities Act of all Registrable Securities which the Company has been so
requested to register by the holders thereof, to the extent requisite to permit
the disposition (in accordance with the intended methods thereof as aforesaid)
of the Registrable Securities so to be
13
registered, by inclusion of such Registrable Securities in the registration
statement which covers the securities which the Company proposes to register,
PROVIDED that if, at any time after giving written notice of its intention to
register any securities and prior to the effective date of the registration
statement filed in connection with such registration, the Company shall
determine for any reason either not to register or to delay registration of such
securities, the Company may, at its election, give written notice of such
determination to each holder of Registrable Securities and, thereupon, (I) in
the case of a determination not to register, shall be relieved of its obligation
to register any Registrable Securities in connection with such registration (but
not from its obligation to pay the Registration Expenses in connection
therewith), without prejudice, however, to the rights of any holder or holders
of Registrable Securities entitled to do so to request that such registration be
effected as a registration under section 13.1, and (II) in the case of a
determination to delay registering, shall be permitted to delay registering any
Registrable Securities, for the same period as the delay in registering such
other securities. No registration effected under this section 13.2 shall relieve
the Company of its obligation to effect any registration upon request under
section 13.1 nor shall any such registration hereunder be deemed to have been
effected pursuant to section 13.1. The Company will pay all Registration
Expenses in connection with each registration of Registrable Securities
requested pursuant to this section 13.2.
(b) If the holders of Registrable Securities request the Company
to register any Registrable Securities under the Securities Act pursuant to
section 13.1, the Company and any other holder of securities entitled to
incidental registration rights may, subject to the terms of this Agreement,
include shares of Common Stock in the registration statement which covers
such securities, PROVIDED that prior to the effective date of the
registration statement filed in connection with such registration, the
Initiating Holders shall determine for any reason either not to register or
to delay registration of such Registrable Securities, the Initiating Holders
may, at their election, give written notice of such determination to the
Company and, thereupon, (I) in the case of a determination not to register,
shall be relieved of its obligation to register any shares of Common Stock in
connection with such registration and (II) in the case of a determination to
delay registering, shall be permitted to delay registering any shares of
Common Stock proposed to be included by the Company, for the same period as
the delay in registering the Registrable Securities.
(c) If (I) a registration pursuant to this section 13.2 involves an
underwritten offering of the securities so being registered, whether or not for
sale for the account of the Company, to be distributed (on a firm commitment
basis) by or through one or more underwriters of recognized standing under
underwriting terms appropriate for such a transaction and (II) the managing
underwriter of such underwritten offering shall inform the Company and holders
of the Registrable Securities requesting such registration by letter of its
belief that the distribution of all or a specified number of such Registrable
Securities concurrently with the securities being distributed by such
underwriters would interfere with the successful marketing of the securities
being distributed by such underwriters (such writing to state the basis of such
belief and the approximate number of such Registrable Securities which may be
distributed without such effect), then the Company may, upon written notice to
all holders of such Registrable Securities, reduce PRO RATA (if and to the
extent stated by such managing underwriter to be necessary to eliminate such
effect) the number of such Registrable Securities and any other securities the
registration of which shall have been requested by each holder thereof to be
14
included in such registration, so that the resultant aggregate number of such
Registrable Securities and such other securities so included in such
registration shall be equal to the number of shares stated in such managing
underwriter's letter; provided that the Company shall not be obligated to reduce
the number of securities to be sold for the account of the Company or for the
account of any other person initiating the request for such registration.
13.3 REGISTRATION PROCEDURES. If and whenever the Company is
required to effect the registration of any Registrable Securities under the
Securities Act as provided in sections 13.1 and 13.2 the Company shall, as
expeditiously as possible:
(i) prepare and (within 60 days after the end of the period
within which requests for registration may be given to the Company
or in any event as soon thereafter as possible) (in the case of a
registration pursuant to section 13.1, such filing to be made within
60 days after the initial request of one or more Initiating Holders
of Registrable Securities or in any event as soon thereafter as
possible) file with the Commission the requisite registration
statement to effect such registration (including such audited
financial statements as may be required by the Securities Act or the
rules and regulations promulgated thereunder) and thereafter use its
reasonable best efforts to cause such registration statement to
become and remain effective, provided, however, that the Company may
discontinue any registration of its securities which are not
Registrable Securities (and, under the circumstances specified in
section 13.2(a), its securities which are Registrable Securities) at
any time prior to the effective date of the registration statement
relating thereto;
(ii) 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
securities covered by such registration statement until the earlier
of such time as all of such securities have been disposed of in
accordance with the intended methods of disposition by the seller or
sellers thereof set forth in such registration statement or (i) in
the case of a registration pursuant to section 13.1, the expiration
of 180 days after such registration statement becomes effective, or
(ii) in the case of a registration pursuant to section 13.2, the
expiration of 90 days after such registration statement becomes
effective;
(iii) furnish to each seller of Registrable Securities covered
by such registration statement and each underwriter, if any, of the
securities being sold by such seller such number of conformed copies
of such registration statement and of each such amendment and
supplement thereto (in each case including all exhibits), such
number of copies of the prospectus contained in such registration
statement (including each preliminary prospectus and any summary
prospectus) and any other prospectus filed under Rule 424 under the
Securities Act, in conformity with the requirements of the
Securities Act, and such other documents, as such seller and
underwriter, if any, may reasonably request;
15
(iv) use its reasonable best efforts to register or qualify
all Registrable Securities and other securities covered by such
registration statement under such other securities laws or blue sky
laws of such jurisdictions as any seller thereof and any underwriter
of the securities being sold by such seller shall reasonably
request, to keep such registrations or qualifications in effect for
so long as such registration statement remains in effect, and take
any other action which may be reasonably necessary or advisable to
enable such seller and underwriter to consummate the disposition in
such jurisdictions of the securities owned by such seller, except
that the Company shall not for any such purpose be required to
qualify generally to do business as a foreign corporation in any
jurisdiction wherein it would not but for the requirements of this
subdivision (iv) be obligated to be so qualified, to subject itself
to taxation in any such jurisdiction or to consent to general
service of process in any such jurisdiction;
(v) use its reasonable best efforts to cause all Registrable
Securities covered by such registration statement to be registered
with or approved by such other governmental agencies or authorities
as may be necessary to enable the seller or sellers thereof to
consummate the disposition of such Registrable Securities;
(vi) furnish to each seller of Registrable Securities a signed
counterpart, addressed to such seller and the underwriters, if any
of
a. an opinion of counsel for the Company, dated
the effective date of such registration statement, reasonably satisfactory in
form and substance to such seller (or, if such registration includes an
underwritten public offering, the opinion dated the date of the closing under
the underwriting agreement and delivered to the underwriters), and
b. a "comfort" letter (or, in the case of such
Person which does not satisfy the conditions for receipt of a "comfort" letter
specified in Statement on Auditing Standards No. 72, an "agreed upon procedures"
letter), dated the effective date of such registration statement (and, if such
registration includes an underwritten public offering, a letter dated the date
of the closing under the underwriting agreement), signed by the independent
public accountants who have certified the Company's financial statements
included in such registration statement,
covering substantially the same matters with
respect to such registration statement (and the
prospectus included therein) and, in the case of
the accountants' letter, with respect to events
subsequent to the date of such financial
statements, as are customarily covered in opinions
of issuer's counsel and in accountants' letters
delivered to the underwriters in underwritten
public offerings of securities (with, in the case
of an "agreed upon procedures" letter, such
modifications or deletions as may be required
under Statement on Auditing Standards No. 35) and,
in the case of the accountants' letter, such other
financial matters, and, in the
16
case of the legal opinion, such other legal
matters, as such seller if there are no
underwriters or the underwriters, if any, may
reasonably request;
(vii) notify the holders of Registrable Securities and the
managing underwriter or underwriters, if any, promptly and confirm
such advice in writing promptly thereafter:
a. when the registration statement, the
prospectus or any prospectus supplement related
thereto or post-effective amendment to the
registration statement has been filed, and, with
respect to the registration statement or any
post-effective amendment thereto, when the same
has become effective;
b. of any request by the Commission for
amendments or supplements to the registration
statement or the prospectus or for additional
information;
c. of the issuance by the Commission of any
stop order suspending the effectiveness of the
registration statement or the initiation of any
proceedings by any Person for that purpose;
d. if at any time the representations and
warranties of the Company made as contemplated by
section 2.4 below cease to be true and correct;
e. of the receipt by the Company of any
notification with respect to the suspension of
the qualification of any Registrable Securities
for sale under the securities or blue sky laws of
any jurisdiction or the initiation or threat of
any proceeding for such purpose;
(viii) notify each seller of Registrable Securities covered by
such registration statement, at any time when a prospectus relating
thereto is required to be delivered under the Securities Act, upon
the Company's discovery that, or upon 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 not
misleading in the light of the circumstances under which they were
made, and at the request of any such seller
17
promptly prepare and furnish to such seller and each underwriter, if
any, 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 securities, such
prospectus shall not include an untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in the light
of the circumstances under which they were made;
(ix) otherwise use its reasonable best efforts to comply with
all applicable rules and regulations of the Commission, and make
available to its security holders, as soon as reasonably
practicable, an earnings statement covering the period of at least
twelve months, but not more than eighteen months, beginning with the
first full calendar quarter after the effective date of such
registration statement, which earnings statement shall satisfy the
provisions of Section 11(a) of the Securities Act and Rule 158
thereunder, and will furnish to each such seller at least five
business days prior to the filing thereof a copy of any amendment or
supplement to such registration statement or prospectus and shall
not file any thereof to which any such seller shall have reasonably
objected on the grounds that such amendment or supplement does not
comply in all material respects with the requirements of the
Securities Act or of the rules or regulations thereunder;
(x) make available for inspection by a representative or
representatives of the holders of Registrable Securities any
underwriter participating in any disposition pursuant to the
registration statement and any attorney or accountant retained by
such selling holders or underwriter (each, an "Inspector"), all
financial and other records, pertinent corporate documents and
properties of the Company (the "Records"), and cause the Company's
officers, directors and employees to supply all information
reasonably requested by any such Inspector in connection with such
registration in order to permit a reasonable investigation within
the meaning of Section 11 of the Securities Act;
(xi) provide and cause to be maintained a transfer agent and
registrar for all Registrable Securities covered by such
registration statement from and after a date not later than the
effective date of such registration statement;
(xii) enter into such agreements and take such other actions
as sellers of such Registrable Securities holding at least 51% of
the shares so to be sold shall reasonably request in order to
expedite or facilitate the disposition of such Registrable
Securities; and
(xiii) [intentionally omitted]
(xiv) use its reasonable best efforts to provide a CUSIP
number for the Registrable Securities, not later than the effective
date of the registration statement.
18
The Company may require each seller of Registrable Securities as to
which any registration is being effected to furnish the Company such
information regarding such seller and the distribution of such
securities as the Company may from time to time reasonably request
in writing.
Each holder of Registrable Securities shall be deemed to
have agreed by acquisition of such Registrable Securities that, upon
receipt of any notice from the Company of the occurrence of any
event of the kind described in subdivision (vii) of this section
13.3, such holder will forthwith discontinue such holder's
disposition of Registrable Securities pursuant to the registration
statement relating to such Registrable Securities until such
holder's receipt of the copies of the supplemented or amended
prospectus contemplated by subdivision (vii) of this section 13.3
and, if so directed by the Company, will deliver to the Company (at
the Company's expense) all copies, other than permanent file copies,
then in such holder's possession of the prospectus relating to such
Registrable Securities current at the time of receipt of such
notice. In the event the Company shall give any such notice, the
period mentioned in paragraph (ii) of this section 13.3 shall be
extended by the length of the period from and including the date
when each seller of any Registrable Securities covered by such
registration statement shall have received such notice to the date
on which each such seller has received the copies of the
supplemented or amended prospectus contemplated by paragraph (vii)
of this section 13.3.
If any such registration or comparable statement refers
to any holder of Registrable Securities by name or otherwise as the
holder of any securities of the Company then such holder shall have
the right to require (I) the insertion therein of language, in form
and substance satisfactory to such holder, to the effect that the
holding by such holder of such securities is not to be construed as
a recommendation by such holder of the investment quality of the
Company's securities covered thereby and that such holding does not
imply that such holder will assist in meeting any future financial
requirements of the Company, or (II) in the event that such
reference to such holder by name or otherwise is not required by the
Securities Act or any similar federal statute then in force, the
deletion of the reference to such holder.
13.4 UNDERWRITTEN OFFERINGS.
(a) REQUESTED UNDERWRITTEN OFFERINGS. If requested by the
underwriters for any underwritten offering by holders of Registrable Securities
pursuant to a registration requested under section 13.1, the Company will enter
into an underwriting agreement with such underwriters for such offering, such
agreement to be satisfactory in substance and form to the Company, each such
holder and the underwriters, and to contain such representations and warranties
by the Company and such other terms as are generally prevailing in agreements of
this type, including, without limitation, indemnities to the effect and to the
extent provided in section 13.6. The holders of the Registrable Securities will
cooperate with the Company in the negotiation of the underwriting agreement. The
holders of Registrable Securities to be distributed by such underwriters shall
be parties to such underwriting agreement and may, at
19
their option, require that any or all of the representations and warranties by,
and the other agreements on the part of, the Company to and for the benefit of
such underwriters shall also be made to and for the benefit of such holders of
Registrable Securities and that any or all of the conditions precedent to the
obligations of such underwriters under such underwriting agreement be conditions
precedent to the obligations of such holders of Registrable Securities. Any such
holder of Registrable Securities shall not be required to make any
representations or warranties to or agreements with the Company or the
underwriters other than representations and warranties contained in a writing
furnished by such holder expressly for use in such registration statement or
agreements regarding such holder, such holder's Registrable Securities and such
holder's intended method of distribution and any other representation required
by law.
(b) INCIDENTAL UNDERWRITTEN OFFERINGS. If the Company at any time
proposes to register any of its securities under the Securities Act as
contemplated by section 13.2 and such securities are to be distributed by or
through one or more underwriters, the Company will, if requested by any holder
of Registrable Securities as provided in section 13.2, use its reasonable best
efforts to arrange for such underwriters to include all the Registrable
Securities to be offered and sold by such holder among the securities to be
distributed by such underwriters , PROVIDED that if the managing underwriter of
such underwritten offering shall inform the holders of the Registrable
Securities requesting such registration and the holders of any other securities
which shall have exercised, in respect of such underwritten offering,
registration rights comparable to the rights under section 13.2 by letter of its
belief that inclusion in such underwritten distribution of all or a specified
number of such Registrable Securities or of such other shares of securities so
requested to be included would interfere with the successful marketing of the
securities (other than such Registrable Securities and other shares of
securities so requested to be included) by the underwriters (such writing to
state the basis of such belief and the approximate number of such Registrable
Securities and shares of other securities so requested to be included which may
be included in such underwritten offering without such effect), then the Company
may, upon written notice to all holders of such Registrable Securities and of
such other shares of securities so requested to be included, exclude pro rata
from such underwritten offering (if and to the extent stated by such managing
underwriter to be necessary to eliminate such effect) the number of such
Registrable Securities and shares of such other securities so requested to be
included the registration of which shall have been requested by each holder of
Registrable Securities and by the holders of such other securities so that the
resultant aggregate number of such Registrable Securities and of such other
shares of securities so requested to be included which are included in such
underwritten offering shall be equal to the approximate number of shares stated
in such managing underwriter's letter. The holders of Registrable Securities to
be distributed by such underwriters shall be parties to the underwriting
agreement between the Company and such underwriters and may, at their option,
require that any or all of the representations and warranties by, and the other
agreements on the part of, the Company to and for the benefit of such
underwriters shall also be made to and for the benefit of such holders of
Registrable Securities and that any or all of the conditions precedent to the
obligations of such underwriters under such underwriting agreement be conditions
precedent to the obligations of such holders of Registrable Securities. Any such
holder of Registrable Securities shall not be required to make any
representations or warranties to or agreements with the Company or the
underwriters other than representations, warranties or agreements regarding such
holder, such holder's Registrable Securities and such holder's intended method
of distribution and any other representation required by law.
20
(c) HOLDBACK AGREEMENTS.
(i) Each holder of Registrable Securities agrees by
acquisition of such Registrable Securities, if so required by the
managing underwriter, not to sell, make any short sale of, loan,
grant any option for the purchase of, effect any public sale or
distribution of or otherwise dispose of any equity securities of the
Company, during the 15 days prior to any underwritten registration
pursuant to section 13.1 or 13.2 has become effective and for the
period, not to exceed 120 days after such underwritten registration
has become effective, as may be required by the underwriter, except
as part of such underwritten registration. Notwithstanding the
foregoing sentence, each holder of Registrable Securities subject to
the foregoing sentence shall be entitled to sell during the
foregoing period securities in a private sale; it being understood
that such private sale would not be deemed to include a sale
pursuant to Rule 144 under the Securities Act.
(ii) The Company agrees not to sell, make any short sale of,
loan, grant any option for the purchase of, effect any public sale
or distribution of or otherwise dispose of its equity securities or
securities convertible into or exchangeable or exercisable for any
of such securities during the seven days prior to any underwritten
registration pursuant to section 13.1 or 13.2 has become effective
or for the period, not to exceed 120 days after any underwritten
registration pursuant to section 13.1 or 13.2 has become effective,
as may be required by the underwriter, except as part of such
underwritten registration and except pursuant to registrations on
Form X-0, X-0 or any successor or similar forms thereto.
(d) PARTICIPATION IN UNDERWRITTEN OFFERINGS. No Person may
participate in any underwritten offering hereunder unless such Person (I) agrees
to sell such Person's securities on the basis provided in any underwriting
arrangements approved, subject to the terms and conditions hereof, by the
holders of a majority of Registrable Securities to be included in such
underwritten offering and (II) completes and executes all questionnaires,
indemnities, underwriting agreements and other documents (other than powers of
attorney) required under the terms of such underwriting arrangements.
Notwithstanding the foregoing, no underwriting agreement (or other agreement in
connection with such offering) shall require any holder of Registrable
Securities to make any representations or warranties to or agreements with the
Company or the underwriters other than representations and warranties contained
in a writing furnished by such holder expressly for use in the related
registration statement or agreements regarding such holder, such holder's
Registrable Securities and such holder's intended method of distribution and any
other representation required by law.
13.5 PREPARATION; REASONABLE INVESTIGATION. In connection with the
preparation and filing of each registration statement under the Securities Act
pursuant to this Agreement, the Company will give the holders of Registrable
Securities registered under such registration statement, their underwriters, if
any, and their respective counsel and accountants, the opportunity to
participate in the preparation of such registration statement, each prospectus
included therein or filed with the Commission, and each amendment thereof or
supplement thereto, and will give each of them such access to its books and
records and such opportunities to
21
discuss the business of the Company with its officers and the independent public
accountants who have certified its financial statements as shall be necessary,
in the opinion of such holders' and such underwriters' respective counsel, to
conduct a reasonable investigation within the meaning of the Securities Act.
13.6 INDEMNIFICATION.
(a) INDEMNIFICATION BY THE COMPANY. In the event of any registration
of any securities of the Company under the Securities Act, the Company will, and
hereby does, indemnify and hold harmless in the case of any registration
statement filed pursuant to section 13.1 or 13.2, the holder of any Registrable
Securities covered by such registration statement, its directors and officers,
each other Person who participates as an underwriter in the offering or sale of
such securities and each other Person, if any, who controls such holder or any
such underwriter within the meaning of the Securities Act, against any losses,
claims, damages or liabilities, joint or several, to which such holder or any
such director or officer or underwriter or controlling person may become subject
under the Securities Act or otherwise, insofar as such losses, claims, damages
or liabilities (or actions or proceedings, whether commenced or threatened, in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in any registration statement
under which such securities were registered under the Securities Act, any
preliminary prospectus, final prospectus or summary prospectus contained
therein, or any amendment or supplement thereto, or any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and the Company will
reimburse such holder and each such director, officer, underwriter and
controlling person for any legal or any other expenses reasonably incurred by
them in connection with investigating or defending any such loss, claim,
liability, action or proceeding, PROVIDED that the Company shall not be liable
in any such case to the extent that any such loss, claim, damage, liability (or
action or proceeding in respect thereof) or expense arises out of or is based
upon an untrue statement or alleged untrue statement or omission or alleged
omission made in such registration statement, any such preliminary prospectus,
final prospectus, summary prospectus, amendment or supplement in reliance upon
and in conformity with written information furnished to the Company through an
instrument duly executed by such holder specifically stating that it is for use
in the preparation thereof and, PROVIDED, FURTHER that the Company shall not be
liable to any Person who participates as an underwriter, in the offering or sale
of Registrable Securities or to any other Person, if any, who controls such
underwriter within the meaning of the Securities Act, in any such case to the
extent that any such loss, claim, damage, liability (or action or proceeding in
respect thereof) or expense arises out of such Person's failure to send or give
a copy of the final prospectus, as the same may be then supplemented or amended,
within the time required by the Securities Act to the Person asserting an untrue
statement or alleged untrue statement or omission or alleged omission at or
prior to the written confirmation of the sale of Registrable Securities to such
Person if such statement or omission was corrected in such final prospectus.
Such indemnity shall remain in full force and effect regardless of any
investigation made by or on behalf of such holder or any such director, officer,
underwriter or controlling person and shall survive the transfer of such
securities by such holder.
(b) INDEMNIFICATION BY THE SELLERS. The Company may require, as a
condition to including any Registrable Securities in any registration statement
filed pursuant to section 13.3,
22
that the Company shall have received an undertaking satisfactory to it from the
prospective seller of such Registrable Securities, to indemnify and hold
harmless (in the same manner and to the same extent as set forth in subdivision
(a) of this section 13.6) the Company, each director of the Company, each
officer of the Company and each other person, if any, who controls the Company
within the meaning of the Securities Act, with respect to any statement or
alleged statement in or omission or alleged omission from such registration
statement, any preliminary prospectus, final prospectus or summary prospectus
contained therein, or any amendment or supplement thereto, if such statement or
alleged statement or omission or alleged omission was made in reliance upon and
in conformity with written information furnished to the Company through an
instrument duly executed by such seller specifically stating that it is for use
in the preparation of such registration statement, preliminary prospectus, final
prospectus, summary prospectus, amendment or supplement. Any such indemnity
shall remain in full force and effect, regardless of any investigation made by
or on behalf of the Company or any such director, officer or controlling person
and shall survive the transfer of such securities by such seller.
Notwithstanding the provisions of this Section 13.6(b), no seller of Registrable
Securities shall be required to indemnify the Company, any director of the
Company, any officer of the Company or any other person for an amount in excess
of the net proceeds received by such seller from the sale of Registrable
Securities.
(c) NOTICES OF CLAIMS, ETC. Promptly after receipt by an indemnified
party of notice of the commencement of any action or proceeding involving a
claim referred to in the preceding subdivisions of this section 13.6, such
indemnified party will, if a claim in respect thereof is to be made against an
indemnifying party, give written notice to the latter of the commencement of
such action, provided that the failure of any indemnified party to give notice
as provided herein shall not relieve the indemnifying party of its obligations
under the preceding subdivisions of this section 13.6, except to the extent that
the indemnifying party is actually prejudiced by such failure to give notice. In
case any such action is brought against an indemnified party, unless in such
indemnified party's reasonable judgment a conflict of interest between such
indemnified and indemnifying parties may exist in respect of such claim, the
indemnifying party shall be entitled to participate in and to assume the defense
thereof, jointly with any other indemnifying party similarly notified, to the
extent that the indemnifying party may wish, with counsel reasonably
satisfactory to such indemnified party, and after notice from the indemnifying
party to such indemnified party of its election so to assume the defense
thereof, the indemnifying party shall not be liable to such indemnified party
for any legal or other expenses subsequently incurred by the latter in
connection with the defense thereof other than reasonable costs of
investigation. No indemnifying party shall, without the consent of the
indemnified party, consent to entry of any judgment or enter into any settlement
of any such action which does not include as an unconditional term thereof the
giving by the claimant or plaintiff to such indemnified party of a release from
all liability, or a covenant not to xxx, in respect to such claim or litigation.
No indemnified party shall consent to entry of any judgment or enter into any
settlement of any such action the defense of which has been assumed by an
indemnifying party without the consent of such indemnifying party.
(d) OTHER INDEMNIFICATION. Indemnification similar to that specified
in the preceding subdivisions of this section 13.6 (with appropriate
modifications) shall be given by the Company and each seller of Registrable
Securities with respect to any required registration or
23
other qualification of securities under any Federal or state law or regulation
of any governmental authority, other than the Securities Act. (e)
INDEMNIFICATION PAYMENTS. The indemnification required by this section 13.6
shall be made by periodic payments of the amount thereof during the course of
the investigation or defense, as and when bills are received or expense, loss,
damage or liability is incurred.
(f) CONTRIBUTION. If the indemnification provided for in the
preceding subdivisions of this section 13.6 is unavailable to an indemnified
party in respect of any expense, loss, claim, damage or liability referred to
therein, then each indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the amount paid or payable by such indemnified party
as a result of such expense, loss, claim, damage or liability (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company on the one hand and the holder or underwriter, as the case may be, on
the other from the distribution of the Registrable Securities 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 fault of the Company on
the one hand and of the holder or underwriter, as the case may be, on the other
in connection with the statements or omissions which resulted in such expense,
loss, damage or liability, as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and the holder or underwriter, as the case may be, on the other in connection
with the distribution of the Registrable Securities shall be deemed to be in the
same proportion as the total net proceeds received by the Company from the
initial sale of the Registrable Securities by the Company to the purchasers bear
to the gain, if any, realized by the selling holder or the underwriting
discounts and commissions received by the underwriter, as the case may be. The
relative fault of the Company on the one hand and of the holder or underwriter,
as the case may be, on the other shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or omission to state a material fact relates to information supplied by the
Company, by the holder or by the underwriter and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission, provided that the foregoing contribution agreement shall
not inure to the benefit of any indemnified party if indemnification would be
unavailable to such indemnified party by reason of the provisions contained in
the first sentence of subdivision (a) of this section 13.6, and in no event
shall the obligation of any indemnifying party to contribute under this
subdivision (f) exceed the amount that such indemnifying party would have been
obligated to pay by way of indemnification if the indemnification provided for
under subdivisions (a) or (b) of this section 13.6 had been available under the
circumstances.
The Company and the holders of Registrable Securities agree that it
would not be just and equitable if contribution pursuant to this
subdivision (f) were determined by PRO RATA allocation (even if the
holders and any underwriters were treated as one entity for such purpose)
or by any other method of allocation that does not take account of the
equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an indemnified party as a result
of the losses, claims, damages and liabilities referred to in the
immediately preceding paragraph shall be deemed to include, subject to the
limitations set forth in the preceding sentence and subdivision (c) of
this
24
section 13.6, any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such
action or claim.
Notwithstanding the provisions of this subdivision (f), no holder of
Registrable Securities or underwriter shall be required to contribute any
amount in excess of the amount by which (I) in the case of any such
holder, the net proceeds received by such holder from the sale of
Registrable Securities or (II) in the case of an underwriter, the total
price at which the Registrable Securities purchased by it and distributed
to the public were offered to the public exceeds, in any such case, the
amount of any damages that such holder or underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue 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.
14. DEFINITIONS. As used herein, unless the context otherwise
requires, the following terms have the following respective meanings:
ADDITIONAL SHARES OF COMMON STOCK: All shares (including
treasury shares) of Common Stock issued or sold (or, pursuant to
section 2.3 or 2.4, deemed to be issued) by the Company after the
date hereof, whether or not subsequently reacquired or retired by
the Company, other than
(a) shares issued upon the exercise of the Warrants,
(b) shares issued upon the exercise of options or rights granted or
to be granted under the Company's stock plans as in effect on the date hereof or
under any other employee stock or purchase plan or plans adopted or assumed
after such date,
(c) shares issued in connection with a joint venture or other
strategic transaction, so long as the total number of shares so issued is less
than 5% of the outstanding Common Stock,
(d) Convertible Securities issued in connection with the issuance by
the Company of nonconvertible debt to nonaffiliated third parties and shares
issued upon the exercise of such Convertible Securities,
(e) such additional number of shares as may become issuable upon the
exercise of any of the securities referred to in the foregoing clauses (a), (b),
(c) and (d) by reason of adjustments required pursuant to anti-dilution
provisions applicable to such securities, and
(f) such additional number of shares as may become issuable upon the
exercise of any of the securities referred to in the foregoing clauses (a), (b),
(c) and (d) by reason of adjustments required pursuant to anti-dilution
provisions applicable to such securities, in order to reflect any subdivision or
combination of Common Stock, by reclassification or otherwise, or any dividend
on Common Stock payable in Common Stock.
BUSINESS DAY: Any day other than a Saturday or a Sunday
or a day on which commercial banking institutions in the City of New
York are authorized
25
by law to be closed. Any reference to "days" (unless Business Days
are specified) shall mean calendar days.
COMMISSION: The Securities and Exchange Commission
or any other federal agency at the time administering the
Securities Act.
COMMON STOCK: As defined in the introduction to this
Warrant, such term to include any stock into which such Common Stock
shall have been changed or any stock resulting from any
reclassification of such Common Stock, and all other stock of any
class or classes (however designated) of the Company the holders of
which have the right, without limitation as to amount, either to all
or to a share of the balance of current dividends and liquidating
dividends after the payment of dividends and distributions on any
shares entitled to preference.
COMPANY: As defined in the introduction to this Warrant,
such term to include any corporation which shall succeed to or
assume the obligations of the Company hereunder in compliance with
section 3.
CONVERTIBLE SECURITIES: Any evidences of indebtedness,
shares of stock (other than Common Stock) or other securities
directly or indirectly convertible into or exchangeable for
Additional Shares of Common Stock.
CREDIT AGREEMENT: That certain Credit Agreement
dated as of June 10, 1998 and amended and restated as of March 6,
2001, by and among Granite Broadcasting Corporation, the Lenders
(as defined therein), Xxxxxxx Xxxxx Credit Partners L.P., and
Foothill Capital Corporation.
CURRENT MARKET PRICE: On any date specified herein, the
average daily Market Price during the period of the most recent 20
days, ending on such date, on which the U.S. national securities
exchanges were open for trading, except that if no Common Stock is
then listed or admitted to trading on any U.S. national securities
exchange or quoted in the over-the-counter market in the U.S., the
Current Market Price shall be the Market Price on such date.
EXCHANGE ACT: The Securities Exchange Act of 1934, or
any similar federal statute, and the rules and regulations of the
Commission thereunder, all as the same shall be in effect at the
time.
INITIATING HOLDERS: Any holder or holders of Registrable
Securities holding at least 50% of the Registrable Securities (by
number of shares at the time issued and outstanding), and initiating
a request pursuant to section 13.1 for the registration of all or
part of such holder's or holders' Registrable Securities.
INSTITUTIONAL HOLDER: Any original holder of any
Warrant, any insurance company, pension fund, mutual fund,
investment company, bank, savings bank, savings and loan
association, broker-dealer, investment adviser,
26
investment banking company, trust company or any finance or credit
company, any portfolio or any investment fund managed by any of the
foregoing, any other institutional investor and any nominee of any
of the foregoing.
MARKET PRICE: On any date specified herein, the amount
per share of the Common Stock, equal to (A) the last sale price of
such Common Stock, regular way, on such date or, if no such sale
takes place on such date, the average of the closing bid and asked
prices thereof on such date, in each case as officially reported on
the principal national securities exchange on which such Common
Stock is then listed or admitted to trading, or (B) if such Common
Stock is not then listed or admitted to trading on any national
securities exchange but is designated as a national market system
security by the NASD, the last trading price of the Common Stock on
such date, or (C) if there shall have been no trading on such date
or if the Common Stock is not so designated, the average of the
closing bid and asked prices of the Common Stock on such date as
shown by the NASD automated quotation system, or (D) if such Common
Stock is not then listed or admitted to trading on any national
exchange or quoted in the over-the-counter market, the higher of (X)
the book value thereof as determined by any firm of independent
public accountants of recognized standing selected by the Board of
Directors of the Company as of the last day of any month ending
within 60 days preceding the date as of which the determination is
to be made or (Y) the fair value thereof determined in good faith by
the Board of Directors of the Company as of a date which is within
18 days of the date as of which the determination is to be made.
NASD: The National Association of Securities Dealers,
Inc.
OPTIONS: Rights, options or warrants to subscribe
for, purchase or otherwise acquire either Additional Shares of
Common Stock or Convertible Securities.
OTHER SECURITIES: Any stock (other than Common Stock)
and other securities of the Company or any other Person (corporate
or otherwise) which the holders of the Warrants at any time shall be
entitled to receive, or shall have received, upon the exercise of
the Warrants, in lieu of or in addition to Common Stock, or which at
any time shall be issuable or shall have been issued in exchange for
or in replacement of Common Stock or Other Securities pursuant to
section 3 or otherwise.
PERSON: A corporation, an association, a partnership, an
organization, a business, an individual, a government or political
subdivision thereof or a governmental agency.
PURCHASER: As defined in the introduction to this
Warrant.
27
REGISTRABLE SECURITIES: (A) Any shares of Common Stock
or Other Securities issued or issuable upon exercise of this Warrant
and (B) any securities issued or issuable with respect to any
securities referred to in the foregoing subdivision by way of stock
dividend or stock split or in connection with a combination of
shares, recapitalization, merger, consolidation or other
reorganization or otherwise. As to any particular Registrable
Securities, once issued such securities shall cease to be
Registrable Securities when (A) a registration statement with
respect to the sale of such securities shall have become effective
under the Securities Act and such securities shall have been
disposed of in accordance with such registration statement, (B) they
shall have been distributed to the public pursuant to Rule 144 (or
any successor provision) under the Securities Act, (C) they shall
have been otherwise transferred, new certificates for them not
bearing a legend restricting further transfer shall have been
delivered by the Company and subsequent disposition of them shall
not require registration or qualification of them under the
Securities Act or any similar state law then in force, or (D) they
shall have ceased to be outstanding.
REGISTRATION EXPENSES: All expenses incident to the
Company's performance of or compliance with section 13, including,
without limitation, all registration, filing and NASD fees, all fees
and expenses of complying with securities or blue sky laws, all word
processing, duplicating and printing expenses, messenger and
delivery expenses, the fees and disbursements of counsel for the
Company and of its independent public accountants, including the
expenses of any special audits or "cold comfort" letters required by
or incident to such performance and compliance, the fees and
disbursements of one counsel retained by the holder or holders of
the Registrable Securities being registered, premiums and other
costs of policies of insurance against liabilities arising out of
the public offering of the Registrable Securities being registered
and any fees and disbursements of underwriters customarily paid by
issuers or sellers of securities, but excluding underwriting
discounts and commissions and transfer taxes, if any, PROVIDED that,
in any case where Registration Expenses are not to be borne by the
Company, such expenses shall not include salaries of Company
personnel or general overhead expenses of the Company, auditing
fees, premiums or other expenses relating to liability insurance
required by underwriters of the Company or other expenses for the
preparation of financial statements or other data normally prepared
by the Company in the ordinary course of its business or which the
Company would have incurred in any event.
RESTRICTED SECURITIES: (A) any Warrants bearing the
applicable legend set forth in section 9.1, (B) any shares of Common
Stock (or Other Securities) issued upon the exercise of Warrants
which are evidenced by a certificate or certificates bearing the
applicable legend set forth in such section, (C) any shares of
Common Stock (or Other Securities) issued subsequent to the exercise
of any of the Warrants as a dividend or other distribution with
respect to, or resulting from a subdivision of the outstanding
shares of Common Stock (or Other Securities) into a greater number
of shares by reclassification, stock splits or otherwise, or in
exchange for or in replacement of the Common Stock (or
28
Other Securities) issued upon such exercise, which are evidenced by
a certificate or certificates bearing the applicable legend set
forth in such section, and (D) unless the context otherwise
requires, any shares of Common Stock (or Other Securities) issuable
upon the exercise of Warrants, which, when so issued, will be
evidenced by a certificate or certificates bearing the applicable
legend set forth in such section.
SECURITIES ACT: The Securities Act of 1933, or any
similar federal statute, and the rules and regulations of the
Commission thereunder, all as the same shall be in effect at the
time.
TRANSFER: Any sale, assignment, pledge or other
disposition of any security, or of any interest therein, which could
constitute a "sale" as that term is defined in section 2(3) of the
Securities Act.
VOTING SECURITIES: Stock of any class or classes (or
equivalent interests), if the holders of the stock of such class or
classes (or equivalent interests) are ordinarily, in the absence of
contingencies, entitled to vote for the election of the directors
(or persons performing similar functions) of such business entity,
even though the right so to vote has been suspended by the happening
of such a contingency.
WARRANT PRICE: As defined in section 2.1.
WARRANTS: This Warrant, together with all the non-voting
common stock purchase warrants issued in connection with the Credit
Agreement.
WEIGHTED AVERAGE WARRANT PRICE: As to any holder of
Restricted Securities, the price determined by dividing (A) the sum
of the aggregate consideration previously paid by such holder upon
the exercise of Warrants plus the consideration payable upon the
exercise of all Warrants held by such holder by (B) the sum of (I)
the aggregate number of shares previously received by such holder
upon the exercise of Warrants plus (II) the number of shares which
would be received by such holder upon the exercise of all Warrants
held by such holder, based upon the Warrant Price in effect on the
effective date of the registration statement in respect of which the
Weighted Average Warrant Price is being determined.
15. REMEDIES. The Company stipulates that the remedies at law of the
holder of this Warrant in the event of any default or threatened default by the
Company in the performance of or compliance with any of the terms of this
Warrant are not and will not be adequate and that, to the fullest extent
permitted by law, such terms may be specifically enforced by a decree for the
specific performance of any agreement contained herein or by an injunction
against a violation of any of the terms hereof or otherwise.
16. NO RIGHTS OR LIABILITIES AS STOCKHOLDER. Nothing contained in
this Warrant shall be construed as conferring upon the holder hereof any rights
as a stockholder of the
29
Company or as imposing any obligation on such holder to purchase any
securities or as imposing any liabilities on such holder as a stockholder of
the Company, whether such obligation or liabilities are asserted by the
Company or by creditors of the Company.
17. NOTICES. All notices and other communications under this Warrant
shall be in writing and shall be delivered, or mailed by registered or certified
mail, return receipt requested, by a nationally recognized overnight courier,
postage prepaid, addressed (a) if to any holder of any Warrant, at the
registered address of such holder as set forth in the register kept at the
principal office of the Company, or (b) if to the Company, to the attention of
its President at its principal office, provided that the exercise of any Warrant
shall be effective in the manner provided in section 1.
18. AMENDMENTS. This Warrant and any term hereof may be changed,
waived, discharged or terminated only by an instrument in writing signed by the
holders of at least 50% of the Warrants; provided, however, that in no event may
the Warrant Price increase or the length of time prior to the expiration of the
Warrants decrease without the written consent of the party against which
enforcement of such change is sought.
19. ASSIGNMENT. This Warrant may be sold, transferred, negotiated or
assigned pursuant to the Form of Assignment attached as an exhibit hereto.
20. EXPIRATION. The right to exercise this Warrant shall expire at
5:00 p.m., New York City time, on March 6, 2006.
20. DESCRIPTIVE HEADINGS. The headings in this Agreement are
for purposes of reference only and shall not limit or otherwise affect the
meaning hereof.
21. GOVERNING LAW. THIS WARRANT SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, AND THE RIGHTS OF THE PARTIES SHALL BE GOVERNED BY, THE LAW
OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS.
22. JUDICIAL PROCEEDINGS; WAIVER OF JURY. Any judicial proceeding
brought against the Company with respect to this Warrant may be brought in
any court of competent jurisdiction in the State of New York or of the United
States of America for the Southern District of New York and, by execution and
delivery of this Agreement, the Company (A) accepts, generally and
unconditionally, the nonexclusive jurisdiction of such courts and any related
appellate court, and irrevocably agrees to be bound by any judgment rendered
thereby in connection with this Warrant, subject to any rights of appeal, and
(B) irrevocably waives any objection the Company may now or hereafter have as
to the venue of any such suit, action or proceeding brought in such a court
or that such court is an inconvenient forum. The Company hereby waives
personal service of process and consents, that service of process upon it may
be made by certified or registered mail, return receipt requested, at its
address specified or determined in accordance with the provisions of section
17, and service so made shall be deemed completed on the third Business Day
after such service is deposited in the mail or, if earlier, when delivered.
Nothing herein shall affect the right to serve process in any other manner
permitted by law or shall limit the right of any holder of any Warrant to
30
bring proceedings against the Company in the courts of any other
jurisdiction. THE COMPANY HEREBY WAIVES TRIAL BY JURY IN ANY JUDICIAL
PROCEEDING INVOLVING, DIRECTLY, OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING
IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF, RELATED TO, OR
CONNECTED WITH THIS WARRANT OR THE RELATIONSHIP ESTABLISHED HEREUNDER.
GRANITE BROADCASTING CORPORATION
By: /s/ Xxxxx XxXxxxx
--------------------------------------
Name: Xxxxx XxXxxxx
Title: SVP, Chief Financial Officer
FORM OF SUBSCRIPTION
[TO BE EXECUTED ONLY UPON EXERCISE OF WARRANT]
To: [NAME OF ISSUER]
The undersigned registered holder of the within Warrant hereby
irrevocably exercises such Warrant for, and purchases thereunder,
______* shares of Common Stock of [NAME OF ISSUER] and herewith
makes payment of $ therefor, and requests that the certificates for
such shares be issued in the name of, and delivered to , whose
address is .
Dated:
---------------------------------------------------
(Signature must conform in all respects to name
of holder as specified on the face of Warrant)
-----------------------------------------
(Street Address)
-----------------------------------------
(City)(State)(Zip Code)
--------
* Insert here the number of shares called for on the face of this Warrant
(or, in the case of a partial exercise, the portion thereof as to which
this Warrant is being exercised), in either case without making any
adjustment for Additional Shares of Common Stock or any other stock or
other securities or property or cash which, pursuant to the adjustment
provisions of this Warrant, may be delivered upon exercise. In the case of
partial exercise, a new Warrant or Warrants will be issued and delivered,
representing the unexercised portion of the Warrant, to the holder
surrendering the Warrant.
FORM OF EXERCISE
(To be executed by the registered holder hereof)
The undersigned registered owner of the attached Warrant
irrevocably exercises such Warrant for the purchase of [the number
of] Shares of Non-Voting Common Stock of Granite Broadcasting
Corporation, a Delaware corporation, and herewith makes payment
therefor, all at the price and on the terms and conditions specified
in the Warrant, and requests that certificates for the shares of
Non-Voting Common Stock be issued in accordance with the
instructions given below, and, if such Shares of Non-Voting Common
Stock shall not include all of the Shares of Non-Voting Common Stock
to which the Holder is entitled under the Warrant, that a new
Warrant of like tenor and date for the unpurchased balance of the
Shares of Non-Voting Common Stock issuable hereunder be delivered to
the undersigned.
Dated: ____________________
-------------------------------------
(Signature of Registered Holder)
Instructions for issuance and registration of Common Stock:
-------------------------------------
Name of Registered Holder
(please print)
Social Security or Other Identifying
Number:
------------------------
Please deliver certificate to the following address:
-------------------------------------
Street
-------------------------------------
City, Stand and Zip Code
FORM OF ASSIGNMENT
[TO BE EXECUTED ONLY UPON TRANSFER OF WARRANT]
For value received, the undersigned registered holder of the within
Warrant hereby sells, assigns and transfers unto the right
represented by such Warrant to purchase shares of [Common Stock] of
[NAME OF ISSUER] to which such Warrant relates, and appoints
Attorney to make such transfer on the books of [NAME OF ISSUER]
maintained for such purpose, with full power of substitution in the
premises.
Dated:
--------------------------------------------------
(Signature must conform in all respects to name
of holder as specified on the face of Warrant)
-----------------------------------------
(Street Address)
-----------------------------------------
(City)(State)(Zip Code)
Signed in the presence of:
