EXHIBIT 4.2
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REGISTRATION RIGHTS AGREEMENT
Dated as of January 23, 1997
Among
CHANCELLOR BROADCASTING COMPANY
as Issuer
and
XXXXX XXXXXX INC.,
ALEX. XXXXX & SONS INCORPORATED
BT SECURITIES CORPORATION
CREDIT SUISSE FIRST BOSTON CORPORATION
XXXXXXX, SACHS & CO.
as Initial Purchasers
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REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is
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dated as of January 23, 1997 among Chancellor Broadcasting Company, a
Delaware corporation (the "Company"), and Xxxxx Xxxxxx Inc., Xxxx.
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Xxxxx & Sons Incorporated, BT Securities Corporation, Credit Suisse
First Boston Corporation and Xxxxxxx, Xxxxx & Co. (the "Initial
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Purchasers").
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This Agreement is entered into in connection with the
Purchase Agreement, dated as of January 17, 1997, among the Company
and the Initial Purchasers (the "Purchase Agreement"), which provides
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for the purchase by the Initial Purchasers of 2,000,000 shares (the
"Firm Shares") of 7% Convertible Preferred Stock with a liquidation
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preference of $50.00 per share (the "Preferred Stock") of the Company
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and, upon the terms and conditions set forth in the Purchase
Agreement, up to an additional 300,000 shares (the "Additional
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Shares") of Preferred Stock. The Firm Shares and the Additional
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Shares are hereinafter collectively referred to as the "Shares." In
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order to induce the Initial Purchasers to enter into the Purchase
Agreement, the Company has agreed to provide the registration rights
set forth in this Agreement for the benefit of the Initial Purchasers
and their direct and indirect transferees and assigns. The execution
and delivery of this Agreement is a condition to the obligations of
the Initial Purchasers set forth in the Purchase Agreement. All
defined terms used but not defined herein shall have the meanings
ascribed to them in the Purchase Agreement.
The parties hereby agree as follows:
SECTION 1. DEFINITIONS
As used in this Agreement, the following capitalized
terms shall have the following meanings:
Act: The Securities Act of 1933, as amended and the
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rules and regulations of the Commission promulgated thereunder.
Advice: See Section 5 hereof.
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Agreement: See the introductory paragraphs hereto.
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Certificate of Designation: The Certificate of
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Designation governing the Preferred Stock as filed with the
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Secretary of State of the State of Delaware, as amended from time to
time.
Closing Date: The Closing Date as defined in the
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Purchase Agreement.
Commission: The Securities and Exchange Commission.
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Common Stock: The Class A Common Stock, par value $.01
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per share, of the Company.
Company: See the introductory paragraphs hereto.
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Damages Payment Date: With respect to the Shares or the
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Common Stock, as applicable, each Dividend Payment Date.
Dividend Payment Date: The record date for each dividend
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payment with respect to the Shares or the Common Stock, as applicable,
fixed by the Board of Directors of the Company.
Effectiveness Date: The date on which the Shelf
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Registration Statement is declared effective by the Commission under
the Act.
Effectiveness Target Date: See Section 4 hereof.
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Exchange Act: The Securities Exchange Act of 1934, as
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amended, and the rules and regulations of the Commission promulgated
thereunder.
Exempt Resales: Offers and sales of the Shares purchased
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by the Purchasers pursuant to the Purchase Agreement on the terms and
in the manner set forth in the Offering Memorandum (i) to persons whom
the Initial Purchasers reasonably believe to be qualified
institutional buyers as defined under Rule 144A under the Act, as such
rule may be amended from time to time ("Rule 144A"), in transactions
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under Rule 144A, (ii) to a limited number of "accredited investors"
(as defined in Rule 501(a)(1), (2), (3), or (7) under the Act that are
institutional investors and (iii) to certain persons in offshore
transactions in reliance upon Regulation S under the Act.
Holder: See Section 2(b) hereof.
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Initial Purchasers: See the introductory paragraphs
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hereto.
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Issue Date: The date on which the Shares were sold by
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the Company to the Initial Purchasers pursuant to the Purchase
Agreement.
NASD: The National Association of Securities Dealers,
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Inc.
Offering Memorandum: The Offering Memorandum, dated
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January [ ], 1997, and all supplements thereto, relating to the Shares
and prepared by the Company pursuant to the Purchase Agreement.
Outstanding Registration Rights Agreements: means (i) the
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Amended and Restated Stockholders Agreement, dated as of February 14,
1996, (ii) the Registration Rights Agreement, dated as of October 12,
1994, (iii) the Registration Rights granted pursuant to the Securities
Purchase Agreement, dated as of February 13, 1996, and (iv) the
Registration Rights Agreement to be entered into in connection with
the OmniAmerica Acquisition.
Person: An individual, partnership, corporation, limited
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liability company, joint venture, trust or unincorporated
organization, or a government or agency or political subdivision
thereof.
Preliminary Prospectus: See Section 3(f) hereof.
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Prospectus: The prospectus included in the Shelf
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Registration Statement, as amended or supplemented by any Prospectus
Supplement with respect to the terms of the offering of any portion of
the Transfer Restricted Securities (as defined herein) covered by the
Shelf Registration Statement and by all other amendments and
supplements to such prospectus, including any prospectus included in
any post-effective amendments to the Shelf Registration Statement, and
all material which may be incorporated by reference into such
prospectus.
Prospectus Supplement: See Section 5(b) hereof.
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Purchase Agreement: See the introductory paragraphs
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hereto.
Record Holder: (i) With respect to any Damages Payment
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Date relating to the Shares constituting Transfer Restricted
Securities, each Person who is registered on the books of the Transfer
Agent as the holder of Shares on the record date with respect to the
Dividend Payment Date on which such Damages
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Payment Date shall occur and (ii) with respect to any Damages Payment
Date relating to the Common Stock constituting Transfer Restricted
Securities, each Person who is a holder of record of such Common Stock
on the record date with respect to the Dividend Payment Date on which
such Damages Payment Date shall occur.
Registration Expenses: See Section 6(a) hereof.
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Shares: The Firm Shares and the Additional Shares,
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collectively.
Shelf Registration Statement: See Section 3(a) hereof.
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Suspension Period: See Section 3(a) hereof.
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Transfer Restricted Securities: Each Share and
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underlying share of Common Stock until the date on which (i) such
Share or share of Common Stock has been effectively registered under
the Securities Act and disposed of in accordance with the Shelf
Registration Statement, (ii) such Share or underlying share of Common
Stock is distributed to the public pursuant to Rule 144 under the
Securities Act or (iii) the date on which such Share or share of
Common Stock may be sold or transferred pursuant to Rule 144(k) (or
any similar provisions then in force).
Underwriter: Any underwriter, placement agent, selling
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broker, dealer manager, qualified independent underwriter or similar
securities industry professional.
Underwritten Registration or Underwritten Offering: An
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offering in which securities of the Company are sold to an
Underwriter or with the assistance of such Underwriter for reoffering
to the public on a firm commitment basis.
SECTION 2. SECURITIES SUBJECT TO THIS AGREEMENT
(a) Transfer Restricted Securities. The securities
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entitled to the benefits of this Agreement are the Transfer Restricted
Securities.
(b) Holders of Transfer Restricted Securities. A Person
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is deemed to be a holder of Transfer Restricted Securities (each, a
"Holder") whenever such Person owns of record Transfer Restricted
Securities.
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SECTION 3. SHELF REGISTRATION
(a) The Company shall use its reasonable best efforts to
cause to be filed with the Commission on or prior to 90 days after the
Issue Date, a shelf registration statement pursuant to Rule 415 under
the Act (as may then be amended) (the "Shelf Registration Statement")
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on Form S-1 or Form S-3, if the use of such form is then available and
as determined by the Company, to cover resales of Transfer Restricted
Securities by the Holders thereof in accordance with Section 3(e).
The Company shall use its reasonable best efforts to cause such Shelf
Registration Statement to be declared effective by the Commission on
or prior to 180 days after the Issue Date. The Company shall use its
reasonable best efforts to keep such Shelf Registration Statement
continuously effective for a period ending three years from the
effective date thereof or such shorter period that will terminate when
each of the Transfer Restricted Securities covered by the Shelf
Registration Statement shall cease to be a Transfer Restricted
Security. The Company further agrees to use its reasonable best
efforts to cause the Shelf Registration Statement to be effective and
usable for resale of the Transfer Restricted Securities during the
period that such Shelf Registration Statement is required to be
effective and usable.
Subject to the immediately following paragraph, upon the
occurrence of any event that would cause the Shelf Registration
Statement (i) to contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in light of
the circumstances under which they were made or (ii) to be not
effective and usable for resale of Transfer Restricted Securities
during the period that such Shelf Registration Statement is required
to be effective and usable, the Company shall as promptly as
practicable file an amendment to the Shelf Registration Statement, in
the case of clause (i), correcting any such misstatement or omission,
and in the case of either clause (i) or (ii), use its reasonable best
efforts to cause such amendment to be declared effective and such
Shelf Registration Statement to become usable as soon as practicable
thereafter.
Notwithstanding anything to the contrary in this Section
3, subject to compliance with Sections 4 and 5(b), if applicable, the
Company may prohibit offers and sales of Transfer Restricted
Securities pursuant to the Shelf Registration Statement at any time if
(A)(i) it is in possession of material non-public information, (ii)
the Board of Directors of the
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Company determines (based on advice of counsel) that such prohibition
is necessary in order to avoid a requirement to disclose such material
non-public information and (iii) the Board of Directors of the Company
determines in good faith that disclosure of such material non-public
information would not be in the best interests of the Company and its
shareholders or (B) the Company has made a public announcement
relating to an acquisition or business combination transaction
including the Company and/or one or more of its subsidiaries (i) that
is material to the Company and its subsidiaries taken as a whole and
(ii) the Board of Directors of the Company determines in good faith
that offers and sales of Transfer Restricted Securities pursuant to
the Shelf Registration Statement prior to the consummation of such
transaction (or such earlier date as the Board of Directors shall
determine) is not in the best interests of the Company and its
shareholders or that it would be impracticable at the time to obtain
any financial statements relating to such acquisition or business
combination transaction that would be required to be set forth in the
Shelf Registration Statement (the period during which any such
prohibition of offers and sales of Transfer Restricted Securities
pursuant to the Shelf Registration Statement is in effect pursuant to
clause (A) or (B) of this subparagraph (a) is referred to herein as a
"Suspension Period"). A Suspension Period shall commence on and
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include the date on which the Company provides written notice to
Holders of Transfer Restricted Securities covered by the Shelf
Registration Statement that offers and sales of Transfer Restricted
Securities cannot be made thereunder in accordance with this Section 3
and shall end on the date on which each Holder of Transfer Restricted
Securities covered by the Shelf Registration Statement either receives
copies of a Prospectus Supplement contemplated by Section 5(b) or is
advised in writing by the Company that offers and sales of Transfer
Restricted Securities pursuant to the Shelf Registration Statement and
use of the Prospectus may be resumed; provided, however, that the
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Suspension Period shall in no event be longer than 60 days in the
aggregate in any of the one-year periods ending on the first, second
or third anniversaries of the Issue Date, or longer than 30 days in
the aggregate in any calendar quarter within any one-year period.
(b) None of the Company nor any of its securityholders
(other than the Holders of Transfer Restricted Securities in such
capacity, other shareholders having registration rights permitting
them to participate therein, as disclosed in the Offering Memorandum
and shareholders entitled to the benefits of the Other Registration
Rights Agreements) shall have the right to include any of the
Company's securities in the
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Shelf Registration Statement.
(c) If the Holders of a majority of the Transfer
Restricted Securities outstanding as of the Closing Date so elect
(with holders of Common Stock constituting Transfer Restricted
Securities being deemed to be Holders of the number of Shares
converted by them into such Common Stock for purposes of such
calculation), an offering of Transfer Restricted Securities pursuant
to the Shelf Registration Statement may be effected in the form of an
Underwritten Offering; provided, however, that notwithstanding
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anything contained in this Agreement to the contrary, the Company
shall not be required to undertake more than one such Underwritten
Offering during any consecutive 12-month period. The Holders of the
Transfer Restricted Securities to be registered shall pay all
underwriting discounts and commissions of such Underwriters and the
fees and expenses of any counsel for the Holders.
(d) If any of the Transfer Restricted Securities covered
by the Shelf Registration Statement are to be sold in an Underwritten
Offering, the Underwriter(s) that will administer the offering will be
selected by the Company and shall be a nationally recognized
investment bank(s) reasonably satisfactory to the Holders of a
majority of the outstanding Transfer Restricted Securities (with
holders of Common Stock constituting Transfer Restricted Securities
being deemed to be Holders of the number of Shares converted by them
into such Common Stock for purposes of such calculation).
(e) The Company will mail only one request (the
"Request") for information for use in connection with any Shelf
Registration Statement or Prospectus or Preliminary Prospectus
included therein to Holders of the Transfer Restricted Securities as
of the close of business on a business day selected by the Company to
be no more than three business days prior to the date the Request is
mailed. No Holder of Transfer Restricted Securities may include any
of its Transfer Restricted Securities in the Shelf Registration
Statement pursuant to this Agreement, unless (i) such Holder furnishes
to the Company in writing, within 10 business days after the Request
is mailed, the information requested therein, including the identity
of the beneficial owner for whom any Holder may be acting as nominee,
or (ii) follows the procedure set forth in Section 5(c) hereof.
SECTION 4. LIQUIDATED DAMAGES
(a)If (i) the Shelf Registration Statement is not
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filed with the Commission on or prior to 90 days after the Issue Date,
(ii) the Shelf Registration Statement has not been declared effective
by the Commission within 180 days after the Issue Date, or (iii) the
Shelf Registration Statement is filed and declared effective but shall
thereafter cease to be effective (without being succeeded immediately
by an additional registration statement filed and declared effective)
or usable for resale for a period of time (including any Suspension
Period) which shall exceed 60 days in the aggregate in any of the
one-year periods ending on the first, second or third anniversaries of
the Issue Date, (each such event referred to in clauses (i) through
(iii), a "Registration Default"), the Company will pay liquidated
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damages to each Holder of Transfer Restricted Securities who has
complied with such Holder's obligations under this Agreement. The
amount of liquidated damages payable during any period during which a
Registration Default shall have occurred and be continuing will accrue
at a rate per annum which is equal to $2.50 per $1,000 liquidation
preference of Preferred Stock or $2.50 per 30.4 shares of Common stock
(subject to adjustment in the event of stock splits, stock
recombinations, stock dividends and the like) constituting Transfer
Restricted Securities to and including the 90th day following such
Registration Default and $5.00 per $1,000 liquidation preference of
Preferred Stock or $5.00 per 30.4 shares of Common Stock (subject to
adjustment as set forth above) constituting Transfer Restricted
Securities from and after the 91st day following such Registration
Default. All accrued liquidated damages shall be paid to Record
Holders by wire transfer of immediately available funds (if such
Record Holders shall have provided wire transfer instructions to the
transfer agent for the Preferred Stock and to the Company) or by
federal funds check by the Company on the next succeeding Damages
Payment Date. Following the cure of a Registration Default,
liquidated damages will cease to accrue with respect to such
Registration Default.
All of the Company's obligations set forth in the
preceding paragraph which are outstanding with respect to any Transfer
Restricted Security shall cease at the time such security ceases to be
a Transfer Restricted Security.
The parties hereto agree that the liquidated damages
provided in this Section 4 constitute a reasonable estimate of the
damages that will be incurred by Holders of Transfer Restricted
Securities by reason of the failure of the Shelf Registration
Statement to be filed, declared effective or to remain effective, as
the case may be, and shall constitute the sole remedy for a
Registration Default.
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SECTION 5. REGISTRATION PROCEDURES
In connection with the Shelf Registration Statement, the
Company will use its reasonable best efforts to effect such
registration to permit the sale of the Transfer Restricted Securities
being sold in accordance with the intended method or methods of
distribution or disposition thereof, and pursuant thereto the Company
will:
(a) on or prior to the date 90 days after the Issue
Date, prepare and file with the Commission a Shelf Registration
Statement relating to the registration on Form S-1 or Form S-3, if the
use of such form is then available and as determined by the Company,
for the sale of the Transfer Restricted Securities in accordance with
the intended method or methods of distribution thereof and shall
include all financial statements required to be included or
incorporated by reference therein; use its reasonable best efforts to
cause such Shelf Registration Statement to become effective and
approved by such governmental agencies or authorities as may be
necessary to enable the selling Holders to consummate the disposition
of such Transfer Restricted Securities in the manner specified in the
Shelf Registration Statement; provided, however, that the Company
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will, on the same day as Requests are mailed, mail to the Initial
Purchasers and to Holders of Transfer Restricted Securities to which
Requests are sent copies of the Shelf Registration Statement, as filed
with the Commission (except that the Company shall not be required to
furnish any exhibits to such documents including those incorporated by
reference, unless so requested by an Initial Purchaser or Holder in
writing), and the Company will not permit the Shelf Registration
Statement to be declared effective if (i) the Initial Purchasers shall
reasonably object or (ii) if the Holders of a majority of the
outstanding Transfer Restricted Securities shall reasonably object
(with holders of Common Stock constituting Transfer Restricted
Securities being deemed to be Holders of the number of Shares
converted by them into such Common Stock for purposes of such
calculation), in each such case within fifteen business days after the
mailing of the Shelf Registration Statement. A Holder shall be deemed
to have reasonably objected if the Shelf Registration Statement or
Prospectus contains any untrue statement of a material fact or omits
to state a material fact required to be stated therein or necessary to
make the statements therein not misleading which misstatement or
omission is specifically identified to the Company in writing within
such fifteen business days;
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(b) prepare and file with the Commission such amendments
and post-effective amendments to the Shelf Registration Statement as
may be necessary to keep the Shelf Registration Statement effective
for the applicable period set forth in Section 3(a) hereof; cause the
Prospectus to be supplemented by any required supplement thereto (a
"Prospectus Supplement"), and as so supplemented to be filed pursuant
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to Rule 424(b) under the Act, and to comply fully with the applicable
provisions of Rule 424(b) under the Act in a timely manner; and comply
with the provisions of the Act with respect to the disposition of all
securities covered by such Shelf Registration Statement during the
applicable period in accordance with the intended method or methods of
distribution by the sellers thereof set forth in such Shelf
Registration Statement, Prospectus or Prospectus Supplement;
(c) if requested by the Holders of Transfer Restricted
Securities, or, if the Transfer Restricted Securities are being sold
in an Underwritten Offering, the Underwriter(s) of such Underwritten
Offering, promptly incorporate in the Prospectus, any Prospectus
Supplement or post-effective amendment to the Shelf Registration
Statement such information as the Underwriters and/or the Holders of
Transfer Restricted Securities being sold agree should be included
therein relating to the plan of distribution of the Transfer
Restricted Securities, including, without limitation, information with
respect to the number of Shares and/or the number of shares of Common
Stock being sold by the Holders, the purchase price being paid
therefor and any other terms with respect to the offering of the
Transfer Restricted Securities to be sold in such offering; and make
all required filings of such Prospectus, Prospectus Supplement or
post-effective amendment as soon as practicable after the Company is
notified of the matters to be incorporated in such Prospectus,
Prospectus Supplement or post-effective amendment;
(d) advise the Initial Purchasers promptly and, if
requested, confirm such advice in writing, (i) when the Prospectus or
any Prospectus Supplement or post-effective amendment to the Shelf
Registration Statement has been filed, and, with respect to the Shelf
Registration Statement or any post-effective amendment thereto, when
the same has become effective, (ii) of any request by the Commission
for an amendment of or supplement to the Shelf Registration Statement,
any Preliminary Prospectus, or the Prospectus or for additional
information, (iii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Shelf Registration Statement or of
the suspension of qualification of the Transfer
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Restricted Securities for offering or sale in any jurisdiction, or the
initiation of any proceeding for such purposes, (iv) if at any time
the representations and warranties of the Company contemplated by
paragraph (l)(i) below cease to be true and correct in all material
respects, and (v) or of the happening of any event, including the
filing of any information, documents or reports pursuant to the
Exchange Act, that makes any statement made in the Shelf Registration
Statement or the Prospectus (as then amended or supplemented) untrue
or which requires the making of any additions to or changes in the
Registration Statement or the Prospectus (as then amended or
supplemented) in order to state a material fact required by the Act or
the regulations thereunder to be stated therein or necessary in order
to make the statements therein not misleading, or of the necessity to
amend or supplement the Prospectus (as then amended or supplemented)
to comply with the Act or any other law. If at any time the
Commission shall issue any stop order suspending the effectiveness of
the Shelf Registration Statement, or any state securities commission
or other regulatory authority shall issue an order suspending the
qualification or exemption from qualification of the Transfer
Restricted Securities under state securities or Blue Sky laws, the
Company shall use its commercially reasonable efforts to obtain the
withdrawal or lifting of such order at the earliest possible time;
(e) furnish to each Holder (upon request in writing) and
each of the Initial Purchasers, if any, without charge, at least one
copy of the Shelf Registration Statement, as first filed with the
Commission, and of each amendment thereto, including all documents
incorporated by reference therein and all exhibits (excluding exhibits
to documents incorporated by reference therein unless requested by
such Holder or Initial Purchaser);
(f) deliver to each selling Holder and each of the
Initial Purchasers, without charge, as many copies of any Preliminary
Prospectus and the Prospectus and any amendments or supplements
thereto as such Persons may reasonably request; the Company consents
to the use of any Preliminary Prospectus and the Prospectus and any
amendments or supplements thereto by each of the selling Holders and
each of the Underwriter(s), if any, in connection with the public
offering and the sale of the Transfer Restricted Securities covered by
any Preliminary Prospectus and the Prospectus or any amendments or
supplements thereto in the manner specified therein;
(g) prior to any public offering of Transfer
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Restricted Securities, cooperate with the selling Holders, the
Underwriter(s), if any, and their respective counsel in connection
with the registration and qualification of the Transfer Restricted
Securities under the securities or Blue Sky laws of such jurisdictions
as the selling Holders or Underwriter(s) may reasonably request and do
any and all other acts or things necessary or advisable to enable the
disposition in such jurisdiction of the Transfer Restricted Securities
in the manner specified in the Shelf Registration Statement; provided,
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however, that the Company shall not be required (i) to register or
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qualify as a foreign corporation where it is not now so qualified or
(ii) to take any action that would subject it to the service of
process in suits, other than as to matters and transactions relating
to the Shelf Registration Statement, in any jurisdiction where it is
not now so subject;
(h) cooperate with the selling Holders and the
Underwriter(s), if any, to facilitate the timely preparation and
delivery of certificates representing Transfer Restricted Securities
to be sold and not bearing any restrictive legends; and enable such
Transfer Restricted Securities to be in such denominations and
registered in such names as the Holders or the Underwriter(s), if any,
may request at least two business days prior to any sale of Transfer
Restricted Securities;
(i) use its reasonable best efforts to cause the
Transfer Restricted Securities covered by the Shelf Registration
Statement to be registered with or approved by such other governmental
agencies or authorities as may be reasonably necessary to enable the
seller or sellers thereof or the Underwriter(s), if any, to consummate
the disposition of such Transfer Restricted Securities, subject to the
provisos contained in clause (g) above;
(j) if any fact or event contemplated by clause (d)(v)
above shall exist or have occurred, prepare a post-effective amendment
or supplement to the Shelf Registration Statement or related
Prospectus or any document incorporated therein by reference or file
any other required document so that, as thereafter delivered to the
purchasers of Transfer Restricted Securities, the Prospectus will not
contain an untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein not misleading,
in light of the circumstances under which they are made;
(k) provide a CUSIP number for all Transfer Restricted
Securities not later than the effective date of the
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Shelf Registration Statement and provide the transfer agent for the
Common Stock with printed certificates for the Transfer Restricted
Securities which are in a form eligible for deposit with The
Depository Trust Company;
(l) enter into such agreements (including an
underwriting agreement reasonably acceptable to the Company) and take
all such other actions in connection therewith as may reasonably be
required in order to expedite or facilitate the disposition of the
Transfer Restricted Securities pursuant to the Shelf Registration
Agreement in connection with an Underwritten Registration, which shall
include (i) making such representations and warranties to the Holders
and the Underwriter(s), in form, substance and scope as they may
reasonably request and as are customarily made by issuers to
Underwriters in primary Underwritten Offerings and covering matters,
including, but not limited to, those set forth in the Purchase
Agreement; (ii) obtaining opinions of counsel for the Company and
updates thereof in customary form and covering matters reasonably
requested by the Underwriter(s) of the type customarily covered in
legal opinions to Underwriters in connection with primary Underwritten
Offerings addressed to the Underwriter requesting the same and
covering the matters as may be reasonably requested by such Holders
and Underwriters; (iii) obtaining "cold comfort" letters and updates
thereof from the Company's independent certified public accountants,
and the independent certified public accountants of any other
corporation or person ("Other Companies") with respect to which
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audited financial statements are required to be included or
incorporated by reference in the Shelf Registration Statement,
addressed to the Underwriters requesting the same, such letters to be
in customary form and covering matters of the type customarily covered
in "cold comfort" letters to Underwriters in connection with primary
Underwritten Offerings; and (iv) delivering such documents and
certificates as may be reasonably requested by the Holders of the
Transfer Restricted Securities being sold or the Underwriter(s) of
such Underwritten Offering to evidence compliance with clause (i)
above and with any customary conditions contained in the underwriting
agreement entered into by the Company pursuant to this clause (l).
The above shall be done at or prior to each closing under such
underwriting agreement, as and to the extent required thereunder;
(m) make available at reasonable times and in a
reasonable manner for inspection by a representative of the Holders of
the Transfer Restricted Securities, any Underwriter participating in
any disposition pursuant to such Shelf
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Registration Statement and any attorney or accountant retained by such
selling Holders or any of the Underwriters all relevant financial and
other records, pertinent corporate documents and properties of the
Company and cause the Company's officers, directors and employees to
supply all information reasonably requested by any such Holder,
Underwriter, attorney or accountant in connection with such Shelf
Registration Statement prior to its effectiveness; provided, however,
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that such representatives, attorneys or accountants shall agree to
keep confidential (which agreement shall be confirmed in writing in
advance to the Company if the Company shall so request) all
information, records or documents made available to such persons which
are not otherwise available to the general public unless disclosure of
such records, information or documents is required by court or
administrative order (of which the Company shall have been given prior
notice and an opportunity to defend) after the exhaustion of all
appeals therefrom, and to use such information obtained pursuant to
this provision only in connection with the transaction for which such
information was obtained, and not for any other purpose.
(n) otherwise use its commercially reasonable efforts to
comply with all applicable rules and regulations of the Commission,
and make generally available to its security holders, as soon as
practicable, a consolidated earnings statement, which consolidated
earnings statement shall satisfy the provisions of Section 11(a) of
the Act, for the twelve-month period (i) commencing at the end of any
fiscal quarter in which Transfer Restricted Securities are sold to
Underwriters in a firm commitment Underwritten Offering or (ii) if not
sold to Underwriters in such an offering, beginning with the first
month of the Company's first fiscal quarter commencing after the
effective date of the Shelf Registration Statement;
(o) cause all Common Stock issuable upon conversion of
the Preferred Stock to be accepted for listing, subject to official
notice of issuance, on each securities exchange or quotation system on
which similar securities issued by the Company have been listed by the
Company; and
(p) cooperate and assist in any filings required to be
made with the NASD and in the performance of any due diligence
investigation by any Underwriter (including any "qualified independent
underwriter" that is required to be retained in accordance with the
rules and regulations of the NASD).
Each Holder whose securities are covered by any
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Shelf Registration Statement agrees to furnish promptly to the Company
all information required to be disclosed in order to make the
information previously furnished to the Company by such Holder not
materially misleading or necessary to cause such Shelf Registration
Statement not to omit a material fact with respect to such Holder
necessary in order to make the statements therein not misleading.
Each Holder agrees by acquisition of such Transfer
Restricted Securities that, upon receipt of any notice from the
Company of the existence of any fact of the kind described in Section
5(d)(v) hereof, such Holder will forthwith discontinue disposition of
Transfer Restricted Securities until such Holder's receipt of the
copies of the supplemented or amended Prospectus contemplated by
Section 5(j) hereof, or until it is advised in writing (the "Advice")
------
by the Company that the use of the Prospectus may be resumed, and has
received copies of any additional or supplemental filings with respect
to the Prospectus. If so directed by the Company, each Holder 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 covering such Transfer Restricted Securities current at the
time of receipt of such notice. In the event the Company shall give
any such notice, the time period regarding the effectiveness of the
Shelf Registration Statement set forth in Section 3(a) hereof shall be
extended (but not beyond the date on which there no longer are
Transfer Restricted Securities) by the number of days during the
period from and including the date of the giving of such notice
pursuant to Section 5(d)(v) hereof to and including the date when each
selling Holder covered by such Shelf Registration Statement shall have
received the copies of the supplemented or amended Prospectus
contemplated by Section 5(j) hereof or shall have received the Advice.
SECTION 6. REGISTRATION EXPENSES
(a) Except as set forth in Section 6(b) hereof, all
expenses incident to the Company's performance of or compliance with
this Agreement (the "Registration Expenses") will be borne by the
---------------------
Company, regardless of whether a Shelf Registration Statement becomes
effective, including without limitation:
(i) all registration and filing fees and expenses
(including filings made with the NASD);
--
(ii) reasonable fees and expenses of compliance with
federal securities or state blue sky laws;
(iii) expenses of printing (including, without limitation,
expenses of printing or engraving certificates for the Transfer
Restricted Securities in a form eligible for deposit with Depository
Trust Company and of printing the Prospectus and any Preliminary
Prospectus), messenger and delivery services and telephone;
(iv) fees and disbursements of counsel for the Company;
(v) fees and disbursements of all independent certified
public accountants of the Company (including the expenses of any
special audit and "cold comfort" letters required by or incidental to
the preparation and filing of a Shelf Registration Statement and
Prospectus and the disposition of Transfer Restricted Securities); and
(vi) fees and expenses of listing the Transfer Restricted
Securities on any securities exchange or quotation system in
accordance with Section 5(p) hereof.
The Company will, in any event, bear its internal
expenses (including, without limitation, all salaries and expenses of
its officers and employees performing legal or accounting duties), the
expense of any annual audit, rating agency fees and the fees and
expenses of any person, including special experts, retained by the
Company.
(b) The Holders of Transfer Restricted Securities shall
bear the expense of any broker's commission or Underwriter's discount
or commission and the fees and expenses of any counsel for the
Holders. In addition, each Holder of Transfer Restricted Securities
shall pay all Registration Expenses to the extent required by
applicable law. Notwithstanding anything herein to the contrary, the
Company shall not be responsible for fees and expenses of counsel to
any Underwriter(s), whether in connection with the Shelf Registration
Statement, NASD matters or otherwise, except to the extent
specifically agreed in any underwriting agreement for an Underwritten
Offering.
SECTION 7. INDEMNIFICATION
--
(a)(i) The Company agrees to indemnify and hold harmless
(i) each of the Initial Purchasers, (ii) each Holder, and (iii) each
person, if any, who controls any of the Initial Purchasers or any
Holder within the meaning of Section 15 of the Act or Section 20 of
the Exchange Act (any person referred to in clause (i), (ii) or (iii)
may hereinafter be referred to as a Non-Company Indemnitee), from and
against any and all losses, claims, damages, liabilities and expenses
(including reasonable costs of investigation) arising out of or based
upon any untrue statement or alleged untrue statement of a material
fact contained in any Preliminary Prospectus or in the Shelf
Registration Statement or the Prospectus or in any amendment or
supplement thereto, or arising out of or based upon any omission or
alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein (in the
case of any Preliminary Prospectus or the Prospectus, in light of the
circumstances in which such statements were made) not misleading,
except insofar as such losses, claims, damages, liabilities or
expenses arise out of or are based upon any untrue statement or
omission or alleged untrue statement or omission which has been made
therein or omitted therefrom in reliance upon and in conformity with
the information relating to any Non-Company Indemnitee expressly for
use in connection therewith; provided, however, that the
-------- -------
indemnification contained in this paragraph (a) with respect to any
Preliminary Prospectus shall not inure to the benefit of any
Non-Company Indemnitee on account of any such loss, claim, damage,
liability or expense arising from the sale of the Transfer Restricted
Securities by such Non-Company Indemnitee to any person, at or prior
to the written confirmation of such sale, and the untrue statement or
alleged untrue statement or omission or alleged omission of a material
fact contained in such Preliminary Prospectus was corrected in the
Prospectus; provided that the Company has delivered the Prospectus to
--------
such Non-Company Indemnitee in requisite quantity on a timely basis to
permit such delivery or sending. The foregoing indemnity agreement
shall be in addition to any liability which the Company may otherwise
have.
(b) If any action, suit or proceeding shall be brought
against any Non-Company Indemnitee, such Non-Company Indemnitee shall
promptly notify the parties against whom indemnification is being
sought (the "indemnifying parties"), and such indemnifying parties
--------------------
shall assume the defense thereof, including the employment of counsel
and payment of all fees and expenses. Such Non-Company Indemnitee
shall have the right to employ separate counsel in any such action,
suit or proceeding and to participate in the defense thereof, but the
fees and
--
expenses of such counsel shall be at the expense of such Non-Company
Indemnitee unless (i) the indemnifying parties have agreed in writing
to pay such fees and expenses, (ii) the indemnifying parties have
failed to assume the defense and employ counsel, or (iii) the named
parties to any such action, suit or proceeding (including any
impleaded parties) include both such Non-Company Indemnitee and the
indemnifying parties and such Non-Company Indemnitee shall have been
advised by its counsel that representation of such indemnified party
and any indemnifying parties by the same counsel would be
inappropriate under applicable standards of professional conduct
(whether or not such representation by the same counsel has been
proposed) due to actual or potential differing interests between them
(in which case the indemnifying parties shall not have the right to
assume the defense of such action, suit or proceeding on behalf of
such Non-Company Indemnitee). It is understood, however, that the
indemnifying parties shall, in connection with any one such action,
suit or proceeding or separate but substantially similar or related
actions, suits or proceedings in the same jurisdiction arising out of
the same general allegations or circumstances, be liable for the
reasonable fees and expenses of only one separate firm of attorneys
(in addition to any local counsel) at any time for all such Non-
Company Indemnities not having actual or potential differing interests
with you or among themselves, which firm shall be designated in
writing by Xxxxx Xxxxxx Inc., and that all such fees and expenses
shall be reimbursed on a monthly basis. The indemnifying parties
shall not be liable for any settlement of any such action, suit or
proceeding effected without their written consent, but if settled with
such written consent, or if there be a final judgment for the
plaintiff in any such action, suit or proceeding, the indemnifying
parties agree to indemnify and hold harmless any Non-Company
Indemnitee, to the extent provided in paragraph (a) hereof, from and
against any loss, claim, damage, liability or expense by reason of
such settlement or judgment.
(c) Each Holder agrees to indemnify and hold harmless
(i) the Company, (ii) each of the Initial Purchasers, (iii) each
other Holder, (iv) any person controlling (within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act) the Company,
the Initial Purchasers and each other Holder and (v) the respective
directors, officers, employees, representatives, and agents of each of
the parties referred to in clauses (i), (ii), (iii) and (iv), to the
same extent as the foregoing indemnity from the Company to each Non-
Company Indemnitee set forth in paragraph (a) hereof, but only with
respect to information relating to such Holder furnished in
--
writing by or on behalf of such Holder expressly for use in the
Registration Statement, the Prospectus or any Preliminary Prospectus,
or any amendment or supplement thereto. If any action, suit or
proceeding shall be brought against the Company, any of its directors,
any such officer, or any such controlling person based on the
Registration Statement, the Prospectus or any Preliminary Prospectus,
or any amendment or supplement thereto, and in respect of which
indemnity may be sought against any Holder pursuant to this
paragraph (c), such Holder shall have the rights and duties given to
the Company by paragraph (b) above (except that if the Company shall
have assumed the defense thereof such Holder shall not be required to
do so, but may employ separate counsel therein and participate in the
defense thereof, but the fees and expenses of such counsel shall be at
such Holder's expense), and the Company, its directors, any such
officer, and any such controlling person, shall have the rights and
duties given to the Holders by paragraph (b) above. The foregoing
indemnity agreement shall be in addition to any liability which the
Holder may otherwise have.
(d) If the indemnification provided for in this
Section 7 is unenforceable although available by its terms to an
indemnified party under paragraphs (a) or (c) hereof in respect of any
losses, claims, damages, liabilities or expenses referred to therein,
then an indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages,
liabilities or expenses in such proportion as is appropriate to
reflect the relative fault of the indemnifying party, on the one hand,
and the indemnified party, on the other hand, in connection with the
statements or omissions which resulted in such losses, claims,
damages, liabilities or expenses, as well as other relevant equitable
considerations. The relative fault of the indemnifying party, on the
one hand, and the indemnified party, on the other hand, shall be
determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by
the indemnifying party, on the one hand, or the indemnified party, on
the other hand, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission.
(e) The Company, each of the Initial Purchasers and each
Holder of Transfer Restricted Securities agree that it would not be
just and equitable if contribution pursuant to this Section 7 were
determined by a pro rata allocation or by any
--
other method of allocation that does not take account of the equitable
considerations referred to in paragraph (d) above. The amount paid or
payable by an indemnified party as a result of the losses, claims,
damages, liabilities and expenses referred to in paragraph (d) above
shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating any claim or
defending any such action, suit or proceeding. Notwithstanding the
provisions of this Section 7, no Holder shall be required to
contribute any amount in excess of the amount by which the total
amount received by such Holder with respect to the sale of Transfer
Restricted Securities exceeds the sum of (A) the amount paid by such
Holder for such Shares plus (B) the amount of any damages which such
Holder has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. The
Holders' obligations to contribute pursuant to this Section 7 are
several in proportion to the respective liquidation preference of
Preferred Stock held by each of the Holders hereunder (or, if such
Preferred Stock has been converted, the liquidation preference of the
shares of Preferred Stock so converted) and not joint.
(f) No indemnifying party shall, without the prior
written consent of the indemnified party, effect any settlement of any
pending or threatened action, suit or proceeding in respect of which
any indemnified party is or could have been a party and indemnity
could have been sought hereunder by such indemnified party, unless
such settlement includes an unconditional release of such indemnified
party from all liability on claims that are the subject matter of such
action, suit or proceeding.
(g) Any losses, claims, damages, liabilities or expenses
for which an indemnified party is entitled to indemnification or
contribution under this Section 7 shall be paid by the indemnifying
party to the indemnified party on a monthly basis. The indemnity and
contribution agreements contained in this Section 7 and any
representations and warranties of the Company set forth in this
Agreement shall remain operative and in full force and effect,
regardless of (i) any investigation made by or on behalf of any
Initial Purchaser or any person controlling any Initial Purchaser, any
Holder, the Company, its directors or officers or any person
--
controlling the Company, and (ii) any termination of this Agreement.
A successor to any Initial Purchaser, or any person controlling any
Initial Purchaser, or to any Holder, or to the Company, its directors
or officers, or any person controlling the Company, shall be entitled
to the benefits of the indemnity, contribution and reimbursement
agreements contained in this Section 7.
SECTION 8. RULE 144A
The Company hereby agrees with each Holder, for so long
as any of the Shares or shares of Common Stock that are Transfer
Restricted Securities remain outstanding and during any such period in
which the Company is not subject to Section 13 or 15(d) of the
Exchange Act, to make available to any Initial Purchaser or any
beneficial owner of the Shares or shares of such Common Stock in
connection with any sale thereof and any prospective purchaser of such
Shares or Common Stock from such Initial Purchaser or beneficial
owner, the information required by Rule 144A(d)(4) under the Act in
order
--
to permit resales of such Transfer Restricted Securities pursuant to
Rule 144A.
SECTION 9. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS
No Holder may participate in any Underwritten Offering
hereunder unless such Holder (a) agrees to sell such Holder's Transfer
Restricted Securities on the basis provided in any underwriting
arrangements approved by the Persons entitled hereunder to approve
such arrangements, (b) completes and executes all questionnaires,
powers of attorney, indemnities, underwriting agreements and other
documents required under the terms of such underwriting arrangements
and (c) furnishes the Company in writing information in accordance
with Section 3(e) and agrees to indemnify and hold harmless the
Company, its directors, its officers who sign the Registration
Statement and any person controlling the Company within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act to the extent
contemplated by Section 7(c).
SECTION 10. MISCELLANEOUS
(a) Remedies. Each Initial Purchaser and Holder of
--------
Transfer Restricted Securities agrees that the liquidated damages
provided herein are the sole and exclusive remedy for the breach by
the Company of its obligations hereunder.
(b) No Inconsistent Agreements. The Company will not on
--------------------------
or after the date of this Agreement enter into any agreement with
respect to its securities that is inconsistent with the rights granted
to the Holders of Transfer Restricted Securities in this Agreement or
otherwise conflicts in any material respect with the provisions
hereof. The rights granted to the Holders of Transfer Restricted
Securities hereunder do not in any way conflict with and are not
inconsistent with the rights granted to the holders of the Company's
securities under any other agreements, including the Other
Registration Rights Agreements.
(c) Amendments and Waivers. The provisions of this
----------------------
Agreement, including the provisions of this sentence, may not be
amended, modified or supplemented, and waivers or consents to
departures from the provisions hereof may not be given unless the
Company has obtained the written consent of Holders of a majority of
the outstanding Transfer Restricted Securities affected by
--
such amendment, modification, supplement, waiver or departure (with
holders of Common Stock constituting Transfer Restricted Securities
being deemed to be Holders of the number of Shares converted by them
into such Common Stock for purposes of such calculation).
Notwithstanding the foregoing, a waiver or consent to departure from
the provisions hereof that relates exclusively to the rights of
Holders of Transfer Restricted Securities whose securities are being
sold pursuant to such Shelf Registration Statement and that does not
directly or indirectly affect the rights of other Holders of Transfer
Restricted Securities shall be valid only with the written consent of
Holders of at least 66-2/3% of the Transfer Restricted Securities
being sold, in each case calculated in accordance with the provisions
of Section 3(c).
(d) Notices. All notices and other communications
-------
provided for or permitted hereunder shall be made in writing by
hand-delivery, first-class mail (registered or certified, return
receipt requested), telex, telecopier, or air courier guaranteeing
overnight delivery:
(i) if to a Holder of Transfer Restricted Securities, at
the address set forth on the records of the Transfer Agent, with a
copy to the Registrar; and
(ii) if to the Company, at the address as follows:
Chancellor Broadcasting Company
00000 Xxxxx Xxxxxxx Xxxxxxxxxx
Xxxxx 000
Xxxxxx, XX 00000
Facsimile No: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxx
with copies to:
Weil, Gotshal & Xxxxxx LLP
000 Xxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxx, XX 00000-0000
Facsimile No: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx, Esq.
(iii) if to an Initial Purchaser, at the address as
follows:
--
Xxxxx Xxxxxx Inc.
Xxxx Xxxxx & Sons Incorporated
BT Securities Corporation
Credit Suisse First Boston Corporation
Xxxxxxx, Xxxxx & Co.
c/o BT Securities Corporation
Bankers Trust Plaza
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No: (000) 000-0000
Attention: Corporate Finance Department
with a copy to
Xxxxxx Xxxxxx & Xxxxxxx
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxxx, Esq.
All such notices and communications shall be deemed to
have been duly given: at the time delivered by hand, if personally
delivered; three business days after being deposited in the mail,
postage prepaid, if mailed; when answered back, if telexed; when
receipt acknowledged, if telecopied; and on the next business day, if
timely delivered to an air courier guaranteeing overnight delivery.
(e) Successors and Assigns. This Agreement shall inure
----------------------
to the benefit of and be binding upon the successors and assigns of
each of the parties, including, without limitation, and without the
need for an express assignment, subsequent Holders of Transfer
Restricted Securities; provided, however, that this Agreement shall
-------- -------
not inure to the benefit of or be binding upon a successor or assign
of a Holder of Transfer Restricted Securities unless and to the extent
such successor or assign acquired Transfer Restricted Securities from
such Holder; and provided, further, that nothing herein shall be
--- -------- -------
deemed to permit any assignment, transfer or any disposition of
Transfer Restricted Securities in violation of the terms of the
Purchase Agreement or applicable law. If any transferee of any Holder
shall acquire Transfer Restricted Securities, in any manner, whether
by operation of law or otherwise, such Transfer Restricted Securities
shall be held subject to all of the terms of this Agreement and by
taking and holding such Transfer Restricted Securities such person
shall be conclusively deemed to
--
have agreed to be bound by and to perform all of the terms and
provisions of this Agreement and such Person shall be entitled to
receive the benefits hereof.
(f) Counterparts. This Agreement may be executed in any
------------
number of counterparts and by the parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the
same agreement.
(g) Headings. The headings in this Agreement are for
--------
convenience of reference only and shall not limit or otherwise affect
the meaning hereof.
(h) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY
-------------
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK AS
APPLIED TO CONTRACTS MADE AND PERFORMED WHOLLY WITHIN THE STATE OF NEW
YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
(i) Severability. In the event that any one or more of
------------
the provisions contained herein, or the application thereof in any
circumstance, is held invalid, illegal or unenforceable, the validity,
legality and enforceability of any such provision in every other
respect and of the remaining provisions contained herein shall not be
affected or impaired thereby.
(j) Entire Agreement. This Agreement together with the
----------------
other Operative Documents (as defined in the Purchase Agreement) is
intended by the parties as a final expression of their agreement and
intended to be a complete and exclusive statement of the agreement and
understanding of the parties hereto in respect of the subject matter
contained herein. There are no restrictions, promises, warranties or
undertakings, other than those set forth or referred to herein with
respect to the registration rights granted by the Company with respect
to the securities sold pursuant to the Purchase Agreement. This
Agreement supersedes all prior agreements and understandings between
the parties with respect to such subject matter.
--
IN WITNESS WHEREOF, the parties have executed this
Agreement as of the date first written above.
CHANCELLOR BROADCASTING COMPANY
By: /s/ XXXXXX XXXXXX
-------------------------------------
Name: Xxxxxx Xxxxxx
Title: President and Chief
Executive Office
XXXXX XXXXXX INC.
/s/ AUTHORIZED SIGNATORY OF
By: XXXXX XXXXXX INC.
----------------------------------------
ALEX. XXXXX & SONS INCORPORATED
/s/ AUTHORIZED SIGNATORY OF
By: ALEX. XXXXX & SONS INCORPORATED
-----------------------------------
BT SECURITIES CORPORATION
/s/ AUTHORIZED SIGNATORY OF
By: BT SECURITIES CORPORATION
-----------------------------------
CREDIT SUISSE FIRST BOSTON CORPORATION
/s/ AUTHORIZED SIGNATORY OF
By: CREDIT SUISSE FIRST BOSTON CORPORATION
-----------------------------------------
XXXXXXX, SACHS & CO.
/s/ AUTHORIZED SIGNATORY OF
By: XXXXXXX, XXXXX & CO.
-----------------------------------
