EXHIBIT 10.9
SPANISH BROADCASTING SYSTEM, INC.
10 3/4% SERIES A CUMULATIVE EXCHANGEABLE REDEEMABLE PREFERRED STOCK
REGISTRATION RIGHTS AGREEMENT
October 30, 2003
XXXXXX BROTHERS INC.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
DEUTSCHE BANK SECURITIES INC.
As the Initial Purchasers,
c/x Xxxxxx Brothers Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Spanish Broadcasting System Inc., a Delaware corporation (the
"COMPANY"), proposes to issue and sell (the "PRIVATE PLACEMENT") to Xxxxxx
Brothers Inc., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated and Deutsche
Bank Securities Inc., as initial purchasers (the "INITIAL PURCHASERS"), upon
terms set forth in a purchase agreement dated as of October 15, 2003 (the
"PURCHASE AGREEMENT") among the Company and the Initial Purchasers, 75,000
shares of its 10 3/4% Series A Cumulative Exchangeable Redeemable Preferred
Stock, par value $.01 per share, liquidation preference $1,000 per share (the
"SERIES A PREFERRED STOCK"), to be issued under a certificate of designations
filed with the Secretary of State of the State of Delaware on October 29, 2003.
As an inducement to you to enter into the Purchase Agreement and purchase the
Series A Preferred Stock and in satisfaction of a condition to your obligations
under the Purchase Agreement, the Company agrees with you for the benefit of the
holders from time to time of the Series A Preferred Stock (including the Initial
Purchasers), as follows:
1. DEFINITIONS. Capitalized terms used herein without definition shall
have their respective meanings set forth in the Purchase Agreement. As used in
this Agreement, the following capitalized defined terms shall have the following
meanings:
"ADDITIONAL DIVIDENDS" has the meaning set forth in Section
5(b).
"AFFILIATE" of any specified person means any other person
that, directly or indirectly, is in control of, is controlled
by, or is under common control with, such specified person.
For purposes of this definition, "control" of a person means
the power, direct or indirect, to direct or cause the
direction of the management and policies of such person
whether by contract or otherwise; and the terms "controlling"
and "controlled" have meanings correlative to the foregoing.
"CERTIFICATE OF DESIGNATIONS" means the certificate of
designations filed with the Secretary of State of the State of
Delaware on October 29, 2003, pursuant to which the Series A
Preferred Stock is to be issued, as such Certificate of
Designations may be amended or supplemented from time to time
in accordance with the terms thereof.
"CERTIFICATED SHARES" has the meaning set forth in the
Certificate of Designations.
"CLOSING DATE" has the meaning set forth in the Purchase
Agreement.
"COMMISSION" means the Securities and Exchange Commission.
"COMPANY" has the meaning set forth in the preamble hereto.
"DIVIDENDS PAYMENT DATE" means, with respect to the Series A
Preferred Stock, each date on which dividends are paid in
accordance with the Certificate of Designations.
"EFFECTIVENESS TARGET DATE" has the meaning set forth in
Section 5(b).
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission
promulgated thereunder.
"EXCHANGE NOTES INDENTURE" means the indenture pursuant to
which the Exchange Notes would, if issued, be issued, as such
indenture is amended or supplemented from time to time.
"EXCHANGE NOTES" means the Company's 10 3/4% Subordinated
Exchange Notes due 2013, for which the Preferred Stock is
exchangeable pursuant to the terms of the Certificate of
Designations or the Registered Preferred Stock Certificate of
Designations, as the case may be.
"EXCHANGE OFFER" means the registered offer by the Company
under the Securities Act to Holders of Series A Preferred
Stock to issue and deliver to such Holders, in exchange for
the Series A Preferred Stock held by such Holders, Registered
Preferred Stock in an aggregate liquidation preference equal
to the aggregate liquidation preference of the Transfer
Restricted Securities tendered in such exchange offer by such
Holders. Such Exchange Offer shall include the registration
under the Securities Act of Exchange Notes issuable in
exchange for the Registered Preferred Stock pursuant to the
terms of the Registered Preferred Stock Certificate of
Designations.
"EXCHANGE OFFER REGISTRATION PERIOD" means the longer of (A)
the period until the consummation of the Exchange Offer and
(B) 90 days after effectiveness of the Exchange Offer
Registration Statement, exclusive of any period during which
any stop order shall be in effect suspending the effectiveness
of the Exchange Offer Registration Statement; PROVIDED,
HOWEVER, that in the event that all resales of Registered
Preferred Stock (including, subject to the time periods set
forth herein, any resales by Exchanging Dealers) covered by
such Exchange Offer Registration Statement have been made, the
Exchange Offer Registration Statement need not remain
continuously effective for the period set forth in clause (B)
above.
"EXCHANGE OFFER REGISTRATION STATEMENT" means a Registration
Statement of the Company on an appropriate form under the
Securities Act with respect to the Exchange Offer, all
amendments and supplements to such Registration Statement,
including post-effective amendments, in each case including
the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
"EXCHANGING DEALER" means any Holder (which may include the
Initial Purchasers) that is a broker-dealer, electing to
exchange Series A Preferred Stock acquired for its own account
as a result of market-making activities or other trading
activities for Registered Preferred Stock.
"GLOBAL PREFERRED SHARES" has the meaning set forth in the
Certificate of Designations.
"HOLDER" means the holders from time to time of the Series A
Preferred Stock and the Registered Preferred Stock received in
exchange for the Series A Preferred Stock.
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"PRIVATE PLACEMENT" has the meaning set forth in the preamble
hereto.
"INITIAL PURCHASERS" has the meaning set forth in the preamble
hereto.
"LOSSES" has the meaning set forth in Section 6(d) hereto.
"MAJORITY HOLDERS" means the Holders of a majority of the
aggregate liquidation preference of Preferred Stock registered
under a Registration Statement.
"MANAGING UNDERWRITERS" means the investment banker or
investment bankers and manager or managers that shall
administer an underwritten offering under a Shelf Registration
Statement.
"OFFERING MEMORANDUM" has the meaning set forth in the
Purchase Agreement.
"PREFERRED STOCK" means the Series A Preferred Stock and the
Registered Preferred Stock.
"PROSPECTUS" means the prospectus included in any Registration
Statement (including, without limitation, a prospectus that
discloses information previously omitted from a prospectus
filed as part of an effective registration statement in
reliance upon Rule 430A under the Securities Act), as amended
or supplemented by any prospectus supplement, with respect to
the terms of the offering of any portion of the Preferred
Stock or, if issued, Exchange Notes covered by such
Registration Statement, and all amendments and supplements to
the Prospectus, including post-effective amendments.
"PURCHASE AGREEMENT" has the meaning set forth in the preamble
hereto.
"PERSON" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust,
unincorporated organization, limited liability company or
government or any agency or political subdivision thereof or
any other entity.
"REGISTERED PREFERRED STOCK" means the Series B Preferred
Stock issued by the Company, identical in all material
respects to the Series A Preferred Stock, pursuant to the
Registered Preferred Stock Certificate of Designations.
"REGISTERED PREFERRED STOCK CERTIFICATE OF DESIGNATIONS" means
the certificate of designations filed with the Secretary of
State of the State of Delaware on October 29, 2003, pursuant
to which the Registered Preferred Stock is to be issued, as
such Registered Preferred Stock Certificate of Designations
may be amended or supplemented from time to time in accordance
with the terms thereof.
"REGISTRATION DEFAULT" has the meaning set forth in Section
5(b) hereof.
"REGISTRATION STATEMENT" means any Exchange Offer Registration
Statement or Shelf Registration Statement pursuant to the
provisions of this Agreement, amendments and supplements to
such registration statement, including post-effective
amendments, in each case including the Prospectus contained
therein, all exhibits thereto, and all material incorporated
by reference therein.
"SECURITIES ACT" means the Securities Act of 1933, as amended,
and the rules and regulations of the Commission promulgated
thereunder.
"SENIOR DEBT" has the meaning set forth in the Certificate of
Designations.
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"SERIES A PREFERRED STOCK" means the Company's 10 3/4% Series
A Cumulative Redeemable Exchangeable Preferred Stock to be
issued pursuant to the Certificate of Designations.
"SHELF REGISTRATION" means a registration effected pursuant to
Section 3 hereof.
"SHELF REGISTRATION PERIOD" has the meaning set forth in
Section 3(b) hereof.
"SHELF REGISTRATION STATEMENT" means a "shelf" registration
statement of the Company pursuant to the provisions of Section
3 hereof, which covers some or all of the Transfer Restricted
Securities on an appropriate form under Rule 415 under the
Securities Act, or any similar rule that may be adopted by the
Commission, amendments and supplements to such registration
statement, including post-effective amendments, in each case
including the Prospectus contained therein, all exhibits
thereto and all material incorporated by reference therein.
"TRANSFER AGENT" means Wachovia Bank, National Association.
"TRANSFER RESTRICTED SECURITIES" means each share of Preferred
Stock or Exchange Note, if issued, until: (i) the date on
which such share of Series A Preferred Stock has been
exchanged by a Person other than a broker-dealer for
Registered Preferred Stock in the Exchange Offer; (ii)
following the exchange by a broker-dealer in the Exchange
Offer of Series A Preferred Stock for Registered Preferred
Stock, the date on which such Registered Preferred Stock or
Exchange Note is sold to a purchaser who receives from such
broker-dealer on or prior to the date of such sale a copy of
the Prospectus contained in the Exchange Offer Registration
Statement; (iii) the date on which such Preferred Stock or
Exchange Note has been effectively registered under the
Securities Act and disposed of in accordance with the Shelf
Registration Statement; or (iv) the date on which such
Preferred Stock or Exchange Note is distributed to the public
pursuant to Rule 144 under the Securities Act.
"TRUST INDENTURE ACT" means the Trust Indenture Act of 1939,
as amended.
"TRUSTEE" means Wachovia Bank, National Association.
"UNDERWRITER" means any underwriter of Preferred Stock in
connection with an offering thereof under a Shelf Registration
Statement.
"UNDERWRITTEN REGISTRATION" or "UNDERWRITTEN OFFERING" means a
registration in which securities of the Company are sold to an
underwriter for reoffering to the public.
2. EXCHANGE OFFER; RESALES OF REGISTERED PREFERRED STOCK OR EXCHANGE
NOTES BY EXCHANGING DEALERS; PRIVATE EXCHANGE.
(a) The Company shall prepare and file with the Commission the
Exchange Offer Registration Statement with respect to the Exchange
Offer on or before the 90th calendar day after the Closing Date. The
Company shall use its commercially reasonable efforts (i) to cause the
Exchange Offer Registration Statement to be declared effective under
the Securities Act on or prior to the 180th calendar day following the
Closing Date and remain effective until the closing of the Exchange
Offer and (ii) to consummate the Exchange Offer on or prior to the
210th calendar day following the Closing Date.
(b) Upon the effectiveness of the Exchange Offer Registration
Statement, the Company shall promptly commence the Exchange Offer, it
being the objective of such Exchange Offer to enable each Holder
electing to exchange Series A Preferred Stock for Registered Preferred
Stock (assuming that such Holder (x) is not an "affiliate" of the
Company within the meaning of the Securities Act, (y) is not a
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broker-dealer that acquired the Series A Preferred Stock in a
transaction other than as a part of its market-making or other trading
activities and (z) if such Holder is not a broker-dealer, acquires the
Registered Preferred Stock in the ordinary course of such Holder's
business, is not participating in the distribution of the Registered
Preferred Stock and has no arrangements or understandings with any
person to participate in the distribution of the Registered Preferred
Stock) to resell such Registered Preferred Stock or, if issued,
Exchange Notes and after their receipt without any limitations or
restrictions under the Securities Act and without material restrictions
under the securities laws of a substantial proportion of the several
states of the United States.
(c) In connection with the Exchange Offer, the Company shall
mail to each Holder a copy of the Prospectus forming part of the
Exchange Offer Registration Statement, together with an appropriate
letter of transmittal and related documents, stating, in addition to
such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to
this Agreement and that all shares of Series A Preferred Stock
validly tendered will be accepted for exchange;
(ii) the dates of acceptance for exchange;
(iii) that any shares of Series A Preferred Stock not
tendered will remain outstanding and continue to accumulate
dividends, but will not retain any rights under this
Agreement;
(iv) that Holders electing to have shares of Series A
Preferred Stock exchanged pursuant to the Exchange Offer will
be required to surrender such shares of Series A Preferred
Stock, together with the enclosed letters of transmittal, to
the institution and at the address (located in the Borough of
Manhattan, The City of New York) specified in the notice prior
to the close of business on the last day of acceptance for
exchange; and
(v) that Holders will be entitled to withdraw their
election, not later than the close of business on the last day
of acceptance for exchange, by sending to the institution and
at the address (located in the Borough of Manhattan, The City
of New York) specified in the notice a telegram, telex,
facsimile transmission or letter setting forth the name of
such Holder, the aggregate liquidation preference of shares of
Series A Preferred Stock delivered for exchange and a
statement that such Holder is withdrawing his election to have
such shares of Series A Preferred Stock exchanged; and shall
keep the Exchange Offer open for acceptance for not less than
30 days (or longer if required by applicable law) after the
date notice thereof is mailed to the Holders; utilize the
services of a depositary for the Exchange Offer with an
address in the Borough of Manhattan, The City of New York; and
comply in all respects with all applicable laws relating to
the Exchange Offer.
(d) As soon as practicable after the close of the Exchange
Offer, the Company shall:
(i) accept for exchange all shares of Series A
Preferred Stock duly tendered and not validly withdrawn
pursuant to the Exchange Offer;
(ii) deliver to the Transfer Agent for cancellation
all shares of Series A Preferred Stock so accepted for
exchange; and
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(iii) cause the Transfer Agent promptly to issue and
deliver to each Holder Registered Preferred Stock having an
aggregate liquidation preference equal to the Series A
Preferred Stock of such Holder so accepted for exchange.
(e) The Initial Purchasers and the Company acknowledge that,
pursuant to interpretations by the staff of the Commission of Section 5
of the Securities Act, and in the absence of an applicable exemption
therefrom, each Exchanging Dealer is required to deliver a Prospectus
in connection with a sale of any Registered Preferred Stock received by
such Exchanging Dealer pursuant to the Exchange Offer in exchange for
Series A Preferred Stock acquired for its own account as a result of
market-making activities or other trading activities. Accordingly, the
Company shall:
(i) include the information set forth in (A) ANNEX A
hereto on the cover of the Exchange Offer Registration
Statement, (B) in ANNEX B hereto in the forepart of the
Exchange Offer Registration Statement in a section setting
forth details of the Exchange Offer, (C) in ANNEX C hereto in
the underwriting or plan of distribution section of the
Prospectus forming a part of the Exchange Offer Registration
Statement, and (D) in ANNEX D hereto in the letter of
transmittal delivered pursuant to the Exchange Offer; and
(ii) use its reasonable best efforts to keep the
Exchange Offer Registration Statement continuously effective
under the Securities Act during the Exchange Offer
Registration Period for delivery of the prospectus included
therein by Exchanging Dealers in connection with sales of
Registered Preferred Stock (or, if issued, Exchange Notes)
received pursuant to the Exchange Offer, as contemplated by
Section 4(h) below; PROVIDED, HOWEVER, that the Company shall
not be required to maintain the effectiveness of the Exchange
Offer Registration Statement for more than 30 days following
the consummation of the Exchange Offer unless the Company has
been notified in writing on or prior to the 30th day following
the consummation of the Exchange Offer by one or more
Exchanging Dealers that such Holder has received Registered
Preferred Stock or, if issued, Exchange Notes as to which it
will be required to deliver a prospectus upon resale.
(f) In the event that an Initial Purchaser determines that it
is not eligible to participate in the Exchange Offer with respect to
the exchange of Series A Preferred Stock constituting any portion of an
unsold allotment, upon the effectiveness of the Shelf Registration
Statement as contemplated by Section 3 hereof and at the request of the
Initial Purchasers, the Company shall issue and deliver to the Initial
Purchasers, or to the party purchasing Series A Preferred Stock
registered under the Shelf Registration Statement from the Initial
Purchasers, in exchange for such Series A Preferred Stock, shares of
Registered Preferred Stock having a like liquidation preference or, if
issued, Exchange Notes having a like principal amount. The Company
shall use its reasonable best efforts to cause the CUSIP Service Bureau
to issue the same CUSIP number for such Registered Preferred Stock as
for Registered Preferred Stock issued pursuant to the Exchange Offer.
(g) The Company shall use its commercially reasonable efforts
to complete the Exchange Offer as provided above and shall comply with
the applicable requirements of the Securities Act, the Exchange Act and
other applicable laws and regulations in connection with the Exchange
Offer. The Exchange Offer shall not be subject to any conditions, other
than that (i) the Exchange Offer does not violate applicable law or any
applicable interpretation of the staff of the Commission, (ii) no
action or proceeding shall have been instituted or threatened in any
court or by any governmental agency which might materially impair the
ability of the Company to proceed with the Exchange Offer, and no
material adverse development shall have occurred in any existing action
or proceeding with respect to the Company and (iii) all governmental
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approvals shall have been obtained, which approvals the Company deems
necessary for the consummation of the Exchange Offer. The Company shall
inform the Initial Purchasers, upon their request, of the names and
addresses of the Holders to whom the Exchange Offer is made, and the
Initial Purchasers shall have the right, subject to applicable law, to
contact such Holders and otherwise facilitate the tender of the shares
of Series A Preferred Stock in the Exchange Offer.
(h) As a condition to its participation in the Exchange Offer
pursuant to the terms of this Agreement, each Holder of Transfer
Restricted Securities shall furnish, upon the request of the Company,
prior to the consummation thereof, a written representation to the
Company (which may be contained in the letter of transmittal
contemplated by the Exchange Offer Registration Statement) to the
effect that (A) it is not an affiliate of the Company, (B) it is not
engaged in, and does not intend to engage in, and has no arrangement or
understanding with any person to participate in, a distribution of the
Registered Preferred Stock to be issued in the Exchange Offer and (C)
it is acquiring the Registered Preferred Stock in its ordinary course
of business. In addition, all such Holders of Transfer Restricted
Securities shall otherwise cooperate in the Company's preparations for
the Exchange Offer. Each Holder hereby acknowledges and agrees that any
broker-dealer and any such Holder using the Exchange Offer to
participate in a distribution of the securities to be acquired in the
Exchange Offer (1) could not under Commission policy as in effect on
the date of this Agreement rely on the position of the Commission
enunciated in Xxxxxx Xxxxxxx and Co., Inc. (available June 5, 1991) and
Exxon Capital Holdings Corporation (available May 13, 1988), as
interpreted in the Commission's letter to Shearman & Sterling dated
July 2, 1993, and similar no-action letters, and (2) must comply with
the registration and prospectus delivery requirements of the Securities
Act in connection with a secondary resale transaction and that such a
secondary resale transaction should be covered by an effective
registration statement containing the selling security holder
information required by Item 507 or 508, as applicable, of Regulation
S-K if the resales are of Registered Preferred Stock obtained by such
Holder in exchange for Series A Preferred Stock acquired by such Holder
directly from the Company.
3. SHELF REGISTRATION. If (i) because of any change in law or
applicable interpretations thereof by the Commission's staff, the Company
determines upon advice of its outside counsel that it is not permitted to effect
the Exchange Offer as contemplated by Section 2 hereof, or (ii) the Company is
not required to file the Exchange Offer Registration Statement for any reason
other than those specified in clause (i) above, or (iii) with respect to any
Holder of Transfer Restricted Securities, such Holder notifies the Company prior
to the 20th day following the consummation of the Exchange Offer that (A) such
Holder is prohibited by applicable law or Commission policy from participating
in the Exchange Offer, or (B) such Holder may not resell the Registered
Preferred Stock acquired by it in the Exchange Offer or, if issued, Exchange
Notes to the public without delivering a prospectus and that the Prospectus
contained in the Exchange Offer Registration Statement is not appropriate or
available for such resales by such Holder, or (C) such Holder is an Exchanging
Dealer and holds Series A Preferred Stock, or, if issued, Exchange Notes
acquired directly from the Company or one of its affiliates (it being understood
that, for purposes of this Section 3, (x) the requirement that the Initial
Purchasers deliver a Prospectus containing the information required by Items 507
and/or 508 of Regulation S-K under the Securities Act in connection with sales
of Registered Preferred Stock or, if issued, Exchange Notes acquired in exchange
for such Series A Preferred Stock shall result in such Registered Preferred
Stock or Exchange Notes, as the case may be, being not "freely tradeable" and
(y) the requirement that an Exchanging Dealer deliver a Prospectus in connection
with sales of Registered Preferred Stock or, if issued, Exchange Notes, acquired
in the Exchange Offer in exchange for Series A Preferred Stock acquired as a
result of market-making activities or other trading activities shall not result
in such Registered Preferred Stock or Exchange Notes, as the case may be, being
not "freely tradeable"), the following provisions shall apply:
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(a) The Company shall, as promptly as practicable (but in no
event later than the 90th calendar day after the obligation to file a
Shelf Registration Statement under this Section 3 arises), file with
the Commission a Shelf Registration Statement relating to the offer and
sale of the Transfer Restricted Securities by the Holders from time to
time in accordance with the methods of distribution elected by such
Holders and set forth in such Shelf Registration Statement and Rule 415
under the Securities Act; PROVIDED that, with respect to Registered
Preferred Stock received by the Initial Purchasers in exchange for
Series A Preferred Stock constituting any portion of an unsold
allotment, the Company may, if permitted by current interpretations by
the Commission's staff, file a post-effective amendment to the Exchange
Offer Registration Statement containing the information required by
Regulation S-K Items 507 and/or 508, as applicable, in satisfaction of
its obligations under this paragraph (a) with respect thereto, and any
such Exchange Offer Registration Statement, as so amended, shall be
referred to herein as, and governed by the provisions herein applicable
to, a Shelf Registration Statement.
(b) The Company shall use its commercially reasonable efforts
to cause the Shelf Registration Statement to be declared effective
under the Securities Act on or prior to the 180th calendar day after
the obligation to file a Shelf Registration Statement under this
Section 3 arises and to keep such Shelf Registration Statement
continuously effective in order to permit the Prospectus contained
therein to be usable by Holders for a period of two years from the date
the Shelf Registration Statement is declared effective by the
Commission or such shorter period that will terminate when all the
Transfer Restricted Securities covered by the Shelf Registration
Statement have been sold pursuant to the Shelf Registration Statement
(in any such case, such period being called the "SHELF REGISTRATION
PERIOD"). The Company shall be deemed not to have used its commercially
reasonable efforts to keep the Shelf Registration Statement effective
during the requisite period if the Company voluntarily takes any action
that would result in Holders of Transfer Restricted Securities covered
thereby not being able to offer and sell such Transfer Restricted
Securities during that period, unless (i) such action is required by
applicable law, (ii) the Company complies with this Agreement or (iii)
such action is taken by the Company or any Affiliates in good faith and
for valid business reasons (not including avoidance of the Company's
obligations hereunder), including the acquisition or divestiture of
assets, so long as the Company promptly thereafter complies with the
requirements of Section 4(m) hereof, if applicable.
4. REGISTRATION PROCEDURES. In connection with any Shelf Registration
Statement and, to the extent applicable, any Exchange Offer Registration
Statement, the following provisions shall apply:
(a) The Company shall, within a reasonable time prior to the
filing of any Registration Statement, any Prospectus, any amendment to
a Registration Statement or amendment or supplement to a Prospectus or
any document which is to be incorporated by reference into a
Registration Statement or a Prospectus after initial filing of a
Registration Statement, provide copies of such document to the Initial
Purchasers and their counsel (and, in the case of a Shelf Registration
Statement, the Holders and their counsel, upon their request) and make
such representatives of the Company as shall be reasonably requested by
the Initial Purchasers or their counsel (and, in the case of a Shelf
Registration Statement, the Majority Holders or their counsel)
available for discussion of such document, and shall not at any time
file or make any amendment to the Registration Statement, any
Prospectus or any amendment of or supplement to a Registration
Statement or a Prospectus or any document which is to be incorporated
by reference into a Registration Statement or a Prospectus, of which
the Initial Purchasers and their counsel (and, in the case of a Shelf
Registration Statement, the Holders and their counsel) shall not have
previously been advised and furnished a copy or to which the Initial
Purchasers or their counsel (and, in the case of a Shelf Registration
Statement, the Holders or their counsel) shall object, except for any
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amendment or supplement or document (a copy of which has been
previously furnished to the Initial Purchasers and their counsel (and,
in the case of a Shelf Registration Statement, the Majority Holders and
their counsel, upon their request)) which counsel to the Company shall
advise the Company, in the form of a written opinion, is required in
order to comply with applicable law; each Initial Purchaser agrees
that, if it receives timely notice and drafts under this clause (a), it
will not take actions or make objections pursuant to this clause (a)
such that the Company is unable to comply with its obligations under
Section 2.
(b) The Company shall ensure that:
(i) any Registration Statement and any amendment
thereto and any Prospectus contained therein and any amendment
or supplement thereto complies in all material respects with
the Securities Act and the rules and regulations thereunder;
(ii) any Registration Statement and any amendment
thereto does not, when it becomes effective, contain an untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the
statements therein not misleading; and
(iii) any Prospectus forming part of any Registration
Statement, including any amendment or supplement to such
Prospectus, does not include an untrue statement of a material
fact or omit to state a material fact necessary in order to
make the statements therein, in light of the circumstances
under which they were made, not misleading.
(c) (1) The Company shall advise the Initial Purchasers and,
in the case of a Shelf Registration Statement, the Holders of Transfer
Restricted Securities covered thereby, and, if requested by the Initial
Purchasers or any such Holder, confirm such advice in writing:
(i) when a Registration Statement and any amendment
thereto has been filed with the Commission and when the
Registration Statement or any post-effective amendment thereto
has become effective; and
(ii) of any request by the Commission for amendments
or supplements to the Registration Statement or the Prospectus
included therein or for additional information.
(2) During the Shelf Registration Period or the Exchange Offer
Registration Period, as applicable, the Company shall advise the
Initial Purchasers and, in the case of a Shelf Registration Statement,
the Holders of Transfer Restricted Securities covered thereby, and, in
the case of an Exchange Offer Registration Statement, any Exchanging
Dealer that has provided in writing to the Company a telephone or
facsimile number and address for notices, and, if requested by the
Initial Purchasers or any Holder or Exchanging Dealer, confirm such
advice in writing:
(i) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration
Statement or the initiation of any proceedings for that
purpose;
(ii) of the receipt by the Company of any
notification with respect to the suspension of the
qualification of the Transfer Restricted Securities included
therein for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose; and
(iii) of the happening of any event that requires the
making of any changes in the Registration Statement or the
Prospectus so that, as of such date, the Registration
Statement or the Prospectus does not include an untrue
statement of a material fact or omit to state a material fact
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necessary to make the statements therein (in the case of the
Prospectus, in light of the circumstances under which they
were made) not misleading (which advice shall be accompanied
by an instruction to suspend the use of the Prospectus until
the requisite changes have been made).
(d) The Company shall use its reasonable best efforts to
obtain the withdrawal of any order suspending the effectiveness of any
Registration Statement at the earliest possible time.
(e) The Company shall furnish to each Holder of Transfer
Restricted Securities covered by any Shelf Registration Statement that
so requests, without charge, at least one copy of such Shelf
Registration Statement and any post-effective amendment thereto,
including financial statements and schedules, and, if the Holder so
requests in writing, all exhibits thereto.
(f) The Company shall, during the Shelf Registration Period,
deliver to each Holder of Transfer Restricted Securities covered by any
Shelf Registration Statement, without charge, as many copies of the
Prospectus (including each preliminary Prospectus) included in such
Shelf Registration Statement and any amendment or supplement thereto as
such Holder may reasonably request; and the Company consents to the use
of the Prospectus or any amendment or supplement thereto by each of the
selling Holders of Transfer Restricted Securities in connection with
the offering and sale of the Transfer Restricted Securities covered by
the Prospectus or any amendment or supplement thereto.
(g) The Company shall furnish to each Exchanging Dealer that
so requests, without charge, at least one copy of the Exchange Offer
Registration Statement and any post-effective amendment thereto,
including financial statements and schedules, any documents
incorporated by reference therein and, if the Exchanging Dealer so
requests in writing, all exhibits thereto.
(h) The Company shall, during the Exchange Offer Registration
Period, promptly deliver to each Exchanging Dealer, without charge, as
many copies of the Prospectus included in such Exchange Offer
Registration Statement and any amendment or supplement thereto as such
Exchanging Dealer may reasonably request for delivery by such
Exchanging Dealer in connection with a sale of Registered Preferred
Stock or, if issued, Exchange Notes or received by it pursuant to the
Exchange Offer; and the Company consents to the use of the Prospectus
or any amendment or supplement thereto by any such Exchanging Dealer,
as provided in Section 2(e) above.
(i) Each Holder of Transfer Restricted Securities and each
Exchanging Dealer agrees by its acquisition of such Transfer Restricted
Securities to be sold by such Exchanging Dealer that, upon actual
receipt of any notice from the Company of the happening of any event of
the kind described in paragraph (c)(2)(i), (c)(2)(ii), or (c)(2)(iii)
of this Section 4, such Holder will forthwith discontinue disposition
of such Transfer Restricted Securities covered by such Registration
Statement or Prospectus or Registered Preferred Stock or, if issued,
Exchange Notes to be sold by such Holder or Exchanging Dealer, as the
case may be, until such Holder's or Exchanging Dealer's receipt of the
copies of the supplemented or amended Prospectus contemplated by
Section 4(l) hereof, or until it is advised in writing by the Company
that the use of the applicable Prospectus may be resumed, and has
received copies of any amendments or supplements thereto. In the event
that the Company shall give any such notice, the Exchange Offer
Registration Period shall be extended by the number of days during such
periods from and including the date of the giving of such notice to and
including the date when each seller of the Registered Preferred Stock
covered by such Registration Statement or Registered Preferred Stock to
be sold by such Exchanging Dealer, as the case may be, shall have
received (x) the copies of the supplemented or amended Prospectus
contemplated by Section 4(l) hereof or (y) the advice in writing.
10
(j) Prior to the Exchange Offer or any other offering of
Transfer Restricted Securities pursuant to any Registration Statement,
the Company shall register or qualify or cooperate with the Holders of
Transfer Restricted Securities included therein and their respective
counsel in connection with the registration or qualification of such
Transfer Restricted Securities for offer and sale under the securities
or blue sky laws of such states as any such Holders reasonably request
in writing and do any and all other acts or things necessary or
advisable to enable the offer and sale in such states of the Transfer
Restricted Securities covered by such Registration Statement; PROVIDED,
HOWEVER, that the Company will not be required to qualify as a foreign
corporation or as a dealer in securities in any jurisdiction in which
it is not then so qualified, to file any general consent to service of
process or to take any action that would subject it to general service
of process in any such jurisdiction where it is not then so subject or
to subject itself to taxation in respect of doing business in any
jurisdiction in which it is not otherwise so subject.
(k) The Company shall issue, upon the request of any Holder of
Series A Preferred Stock covered by the Shelf Registration Statement,
Registered Preferred Stock, having an aggregate liquidation preference
equal to the aggregate liquidation preference of Series A Preferred
Stock surrendered to the Company by such Holder in exchange therefor or
being sold by such Holder; such Registered Preferred Stock to be
registered in the name of the purchaser(s) of such Registered Preferred
Stock, as the case may be; in return, the Series A Preferred Stock held
by such Holder shall be surrendered to the Company for cancellation.
(l) The Company shall cooperate with the Holders to facilitate
the timely preparation and delivery of certificates representing
Registered Preferred Stock or, if issued, Exchange Notes to be sold
pursuant to any Registration Statement free of any restrictive legends
and enable such Registered Preferred Stock or Exchange Notes, as the
case may be, to be in such denominations and registered in such names
as Holders may request prior to sales of Registered Preferred Stock or
Exchange Notes, as the case may be, pursuant to such Registration
Statement.
(m) Upon the occurrence of any event contemplated by paragraph
(c)(2)(iii) of this Section 4, the Company shall promptly prepare and
file a post-effective amendment to any Registration Statement or an
amendment or supplement to the related Prospectus or any other required
document so that, as thereafter delivered to purchasers of the Transfer
Restricted Securities included therein, the Prospectus will not include
an untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading and, in the
case of a Shelf Registration Statement, notify the Holders to suspend
use of the Prospectus as promptly as practicable after the occurrence
of such an event. Notwithstanding the foregoing, the Company shall not
be required to amend or supplement a Shelf Registration Statement, any
related Prospectus or any document incorporated therein by reference,
for a period not to exceed an aggregate of 90 days in any calendar
year, if the Company determines in its good faith judgment that the
disclosure of such event at such time would have a material adverse
effect on the business, operations, or prospects of the Company or the
disclosure otherwise related to a pending material business transaction
that has not yet been publicly disclosed.
(n) Not later than the effective date of any such Registration
Statement hereunder, the Company shall provide a CUSIP number for the
Transfer Restricted Securities registered under such Registration
Statement, and provide the Transfer Agent with certificates for such
Transfer Restricted Securities, in a form eligible for deposit with The
Depository Trust Company.
(o) The Company shall use its best efforts to comply with all
applicable rules and regulations of the Commission and shall make
generally available to its security holders as soon as practicable
11
after the effective date of the applicable Registration Statement an
earnings statement meeting the requirements of Rule 158 under the
Securities Act.
(p) The Company shall cause the Exchange Notes Indenture to be
qualified under the Trust Indenture Act not later than the effective
date of the first Registration Statement required by this Agreement,
and, in connection therewith, cooperate with the Trustee under the
Exchange Notes Indenture and the Holders of Preferred Stock to effect
such changes to the Exchange Notes Indenture as may be required for
such Exchange Notes Indenture to be so qualified in accordance with the
terms of the Trust Indenture Act; and to execute and use its best
efforts to cause the Trustee under the Exchange Notes Indenture to
execute, all documents that may be required to effect such changes and
all other forms and documents required to be filed with the Commission
to enable such Exchange Notes Indenture to be so qualified in a timely
manner.
(q) The Company may require each Holder of Transfer Restricted
Securities to be sold pursuant to any Shelf Registration Statement to
furnish to the Company such information regarding the Holder and the
distribution of such Transfer Restricted Securities as the Company may
from time to time reasonably require for inclusion in such Registration
Statement.
(r) The Company shall, if requested, promptly incorporate in a
Prospectus supplement or post-effective amendment to a Shelf
Registration Statement, such information as the Managing Underwriters,
if any, and Majority Holders reasonably agree should be included
therein, and shall make all required filings of such Prospectus
supplement or post-effective amendment promptly upon notification of
the matters to be incorporated in such Prospectus supplement or
post-effective amendment.
(s) In the case of any Shelf Registration Statement, the
Company shall enter into such agreements (including underwriting
agreements) and take all other appropriate actions in order to expedite
or to facilitate the registration or the disposition of any Transfer
Restricted Securities included therein, and in connection therewith, if
an underwriting agreement is entered into, cause the same to contain
indemnification provisions and procedures no less favorable than those
set forth in Section 6 (or such other provisions and procedures
acceptable to the Majority Holders and the Managing Underwriters, if
any) with respect to all parties to be indemnified pursuant to Section
6.
(t) In the case of any Shelf Registration Statement, the
Company shall:
(i) make reasonably available for inspection by the
Holders of Transfer Restricted Securities to be registered
thereunder, any underwriter participating in any disposition
pursuant to such Shelf Registration Statement, and any
attorney, accountant or other agent retained by the Holders or
any such underwriter all relevant financial and other records,
pertinent corporate documents and properties of the Company
and any of its subsidiaries;
(ii) cause the Company's officers, directors and
employees to supply all relevant information reasonably
requested by the Holders or any such underwriter, attorney,
accountant or agent in connection with any such Registration
Statement as is customary for similar due diligence
examinations and make such representatives of the Company as
shall be reasonably requested by the Initial Purchasers or
Managing Underwriters, if any, available for discussion of any
such Registration Statement; PROVIDED, HOWEVER, that any
non-public information that is designated in writing by the
Company, in good faith, as confidential at the time of
delivery of such information shall be kept confidential by the
Holders or any such underwriter, attorney, accountant or
agent, unless such disclosure is made in connection with a
court proceeding or required by law, or such information
12
becomes available to the public generally or through a third
party without an accompanying obligation of confidentiality
other than as a result of a disclosure of such information by
any such Holder, underwriter, attorney, accountant or agent;
(iii) make such representations and warranties to the
Holders of Transfer Restricted Securities registered
thereunder and the underwriters, if any, in form, substance
and scope as are customarily made by issuers to underwriters
in similar underwritten offerings as may be reasonably
requested by them;
(iv) obtain opinions of counsel to the Company and
updates thereof (which counsel and opinions (in form, scope
and substance) shall be reasonably satisfactory to the
Managing Underwriters, if any) addressed to each selling
Holder and the underwriters, if any, covering such matters as
are customarily covered in opinions requested in similar
underwritten offerings and such other matters as may be
reasonably requested by such Holders and underwriters;
(v) obtain "cold comfort" letters and updates thereof
from the independent certified public accountants of the
Company (and, if necessary, any other independent certified
public accountants of any subsidiary of the Company or of any
business acquired by the Company for which financial
statements and financial data are, or are required to be,
included in the Registration Statement), addressed to the
underwriters, if any, and use reasonable efforts to have such
letter addressed to the selling Holders of Transfer Restricted
Securities registered thereunder (to the extent consistent
with Statement on Auditing Standards No. 72 of the American
Institute of Certified Public Accountants (AICPA) ("SAS 72")),
in customary form and covering matters of the type customarily
covered in "cold comfort" letters in connection with similar
underwritten offerings, or if the provision of such "cold
comfort" letters is not permitted by SAS 72 or if requested by
the Initial Purchasers or their counsel in lieu of a "cold
comfort" letter, an agreed-upon procedures letter under
Statement on Auditing Standards No. 75 of the AICPA, covering
matters requested by the Initial Purchasers or their counsel;
and
(vi) deliver such documents and certificates as may
be reasonably requested by the Majority Holders and the
Managing Underwriters, if any, and customarily delivered in
similar offerings, including those to evidence compliance with
Section 4(m) and with any conditions contained in the
underwriting agreement or other agreement entered into by the
Company.
The foregoing actions set forth in clauses (iii), (iv), (v) and (vi) of
this Section 4(t) shall be performed at (A) the effectiveness of such Shelf
Registration Statement and each post-effective amendment thereto and (B) each
closing under any underwriting or similar agreement as and to the extent
required thereunder.
(u) The Company shall, in the case of a Shelf Registration,
use its best efforts to cause all Transfer Restricted Securities to be
listed on any securities exchange or any automated quotation system on
which similar securities issued by the Company are then listed if
requested by the Majority Holders, to the extent such Transfer
Restricted Securities satisfy applicable listing requirements.
5. REGISTRATION EXPENSES; REMEDIES.
(a) The Company shall bear all expenses incurred in connection
with the performance of its obligations under Sections 2, 3 and 4
hereof, including without limitation: (i) all Commission, stock
exchange or National Association of Securities Dealers, Inc.
registration and filing fees, (ii) all fees and expenses incurred in
13
connection with compliance with state securities or blue sky laws
(including reasonable fees and disbursements of counsel for any
underwriters or Holders in connection with blue sky qualification of
any Transfer Restricted Securities), (iii) all expenses of any persons
in preparing or assisting in preparing, word processing, printing and
distributing any Registration Statement, any Prospectus, any amendments
or supplements thereto, any underwriting agreements, securities sales
agreements and other documents relating to the performance of and
compliance with this Agreement, (iv) the fees and disbursements of the
Transfer Agent, the Trustee and their respective counsel, (v) the fees
and disbursements of counsel for the Company and, in the case of a
Shelf Registration Statement, the reasonable fees and disbursements of
one counsel for the Holders (which shall be selected by the Majority
Holders and which counsel may also be counsel for the Initial
Purchasers) and, in the case of any Exchange Offer Registration
Statement, the fees and expenses of counsel to the Initial Purchasers
acting in connection therewith and (vi) the fees and disbursements of
the independent public accountants of the Company, including the
expenses of any special audits or "cold comfort" letters required by or
incident to such performance and compliance, but excluding fees and
expenses of counsel to the underwriters (other than fees and expenses
set forth in clause (ii) above) or the Holders and underwriting
discounts and commissions and transfer taxes, if any, relating to the
sale or disposition of Transfer Restricted Securities by a Holder.
(b) In the event that the Company:
(i) fails to file the Exchange Offer Registration
Statement or Shelf Registration Statement, as the case may be,
on or before the date specified for either such filing;
(ii) either such registration statement is not
declared effective by the Commission on or prior to the date
specified for such effectiveness (the "EFFECTIVENESS TARGET
DATE");
(iii) the Company fails to consummate the Exchange
Offer within 30 days of the Effectiveness Target Date with
respect to the Exchange Offer Registration Statement; or
(iv) the Shelf Registration Statement or the Exchange
Offer Registration Statement is declared effective but
thereafter ceases to be effective or usable in connection with
the resales of Transfer Restricted Securities during the
periods specified in this Registration Rights Agreement (each
such event referred to in clauses (i) through (iv) above, a
"REGISTRATION DEFAULT"),
then the Company will pay additional dividends as liquidated damages
("ADDITIONAL DIVIDENDS"), at a rate of 0.25% per year from and
including the date of the Registration Default. The applicable
additional dividend rate will increase by an additional 0.25% per year
with respect to each subsequent 90-day period until all Registration
Defaults have been cured; PROVIDED, HOWEVER, that in no event will the
additional dividend rate exceed 2.00% per year in the aggregate
regardless of the number of Registration Defaults; and PROVIDED,
FURTHER, HOWEVER, that the additional dividend rate will increase
without duplication for any additional events that would constitute an
additional Registration Default arising as a result of the continuing
circumstances of the initial Registration Default.
(c) If, after the cure of all Registration Defaults then in
effect, there is a subsequent Registration Default, the additional
14
dividend rate for that subsequent Registration Default shall initially
be 0.25%, regardless of the additional dividend rate in effect with
respect to any prior Registration Default at the time of the cure of
that Registration Default.
(d) The Company shall pay all Additional Dividends in cash on
each Dividend Payment Date commencing on the first Dividend Payment
Date after the date of the applicable Registration Default; PROVIDED,
HOWEVER, that if the Company is prohibited by the terms of its Senior
Debt from paying such Additional Dividends in cash, such Additional
Dividends may be paid by issuing additional shares of Series A
Preferred Stock in lieu of cash.
(e) Following the cure of all Registration Defaults, the
accrual of Additional Dividends will cease.
(f) Without limiting the remedies available to the Initial
Purchasers and the Holders, the Company acknowledges that any failure
by the Company to comply with its obligations under Sections 2 and 3
hereof may result in material irreparable injury to the Initial
Purchasers or the Holders for which there is no adequate remedy at law,
that it will not be possible to measure damages for such injuries
precisely and that, in the event of any such failure, the Initial
Purchasers or any Holder may obtain such relief as may be required to
specifically enforce the Company's obligations under Sections 2 and 3
hereof.
6. INDEMNIFICATION AND CONTRIBUTION.
(a) In connection with any Registration Statement, the Company
agrees to indemnify and hold harmless each Holder of Transfer
Restricted Securities covered thereby (including the Initial Purchasers
and, with respect to any Prospectus delivery as contemplated by
Sections 2(e) and 4(h) hereof, each Exchanging Dealer) the directors,
officers, employees and agents of such Holder and each person who
controls such Holder within the meaning of either the Securities Act or
the Exchange Act, against any and all losses, claims, damages or
liabilities, joint or several, to which they or any of them may become
subject under the Securities Act, the Exchange Act or other federal or
state statutory law or regulation, at common law or otherwise, insofar
as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in such Registration
Statement as originally filed or in any amendment thereof, or in any
preliminary Prospectus or Prospectus, or in any amendment thereof or
supplement thereto, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein (in the case of the
Prospectus, in light of the circumstances under which they were made)
not misleading, and agrees to reimburse each such indemnified party, as
incurred, for any legal or other expenses reasonably incurred by them
in connection with investigating or defending any such loss, claim,
damage or liability (or action in respect thereof); PROVIDED, HOWEVER,
that the Company will not be liable in any case to the extent that any
such loss, claim, damage or liability arises out of or is based upon
any such untrue statement or alleged untrue statement or omission or
alleged omission made therein in reliance upon and in conformity with
written information furnished to the Company by or on behalf of any
such indemnified party specifically for inclusion therein or any
information included therein pursuant to Section 4(r); PROVIDED
FURTHER, HOWEVER, that the Company will not be liable in any case with
respect to any untrue statement or omission or alleged untrue statement
or omission made in any preliminary Prospectus or Prospectus, or in any
amendment thereof or supplement thereto to the extent that any such
loss, claim, damage or liability (or action in respect thereof)
resulted from the fact that any indemnified party sold Transfer
Restricted Securities to a person to whom there was not sent or given,
at or prior to the written confirmation of such sale, a copy of the
Prospectus as then amended or supplemented, if the Company had
previously complied with the provisions of Section 4(c)(2) and 4(f) or
4(h) hereof and if the untrue statement contained in or omission from
such preliminary Prospectus or Prospectus was corrected in the
15
Prospectus as then amended or supplemented. This indemnity agreement
will be in addition to any liability that the Company may otherwise
have.
The Company also agrees to indemnify or contribute to Losses of, as
provided in Section 6(d) hereof, any underwriters of Transfer Restricted
Securities registered under a Shelf Registration Statement, their employees,
officers, directors and agents and each person who controls such underwriters on
the same basis as that of the indemnification of the Initial Purchasers and the
selling Holders provided in this Section 6(a) and shall, if requested by any
Holder, enter into an underwriting agreement reflecting such agreement, as
provided in Section 4(s) hereof.
(b) Each Holder of Transfer Restricted Securities covered by a
Registration Statement (including the Initial Purchasers and, with
respect to any Prospectus delivery as contemplated by Sections 2(e) and
4(h) hereof, each Exchanging Dealer) severally and not jointly agrees
to indemnify and hold harmless (i) the Company, (ii) each of the
directors of the Company, (iii) each of the officers of the Company who
signs such Registration Statement and (iv) each Person who controls the
Company within the meaning of either the Securities Act or the Exchange
Act to the same extent as the foregoing indemnity from the Company to
each such Holder, but only with respect to written information
furnished to the Company by or on behalf of such Holder specifically
for inclusion in the documents referred to in the foregoing indemnity.
This indemnity agreement will be in addition to any liability that any
such Holder may otherwise have.
(c) Promptly after receipt by an indemnified party under this
Section 6 of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the
indemnifying party under this Section 6, notify the indemnifying party
in writing of the commencement thereof; but the failure so to notify
the indemnifying party (i) will not relieve the indemnifying party from
liability under paragraph (a) or (b) above unless and to the extent it
did not otherwise learn of such action and such failure results in the
forfeiture by the indemnifying party of substantial rights and
defenses, and (ii) will not, in any event, relieve the indemnifying
party from any obligations to any indemnified party other than the
indemnification obligation provided in paragraph (a) or (b) above. The
indemnifying party shall be entitled to appoint counsel (including
local counsel) of the indemnifying party's choice at the indemnifying
party's expense to represent the indemnified party in any action for
which indemnification is sought (in which case the indemnifying party
shall not thereafter be responsible for the fees and expenses of any
separate counsel retained by the indemnified party or parties except as
set forth below); PROVIDED, HOWEVER, that such counsel shall be
reasonably satisfactory to the indemnified party. Notwithstanding the
indemnifying party's election to appoint counsel to represent the
indemnified party in an action, the indemnified party shall have the
right to employ separate counsel (including local counsel), and the
indemnifying party shall bear the reasonable fees, costs and expenses
of such separate counsel (and local counsel) if (i) the use of counsel
chosen by the indemnifying party to represent the indemnified party
would present such counsel with a conflict of interest, (ii) the actual
or potential defendants in, or targets of, any such action include both
the indemnified party and the indemnifying party and the indemnified
party shall have reasonably concluded that there are legal defenses
available to it and/or other indemnified parties that are different
from or additional to those available to the indemnifying party, (iii)
the indemnifying party shall not have employed counsel satisfactory to
the indemnified party to represent the indemnified party within a
reasonable time after notice of the institution of such action or (iv)
the indemnifying party shall authorize the indemnified party to employ
separate counsel at the expense of the indemnifying party. It is
understood that the indemnifying party shall not, in connection with
any proceeding or related proceedings in the same jurisdiction, be
liable for the fees and expenses of more than one separate firm (in
addition to any local counsel) for all such indemnified parties and
that all such fees and expenses shall be reimbursed as they are
16
incurred. An indemnifying party will not, without the prior written
consent of the indemnified parties, settle or compromise or consent to
the entry of any judgment with respect to any pending or threatened
claim, action, suit or proceeding in respect of which indemnification
or contribution may be sought hereunder (whether or not the indemnified
parties are actual or potential parties to such claim or action) unless
such settlement, compromise or consent includes an unconditional
release of each indemnified party from all liability arising out of
such claim, action, suit or proceeding. Anything in this subsection to
the contrary notwithstanding, an indemnifying party shall not be liable
for any settlement of any claim or action effected without its prior
written consent; PROVIDED, HOWEVER, that such consent was not
unreasonably withheld.
(d) In the event that the indemnity provided in paragraph (a)
or (b) of this Section 6 is unavailable to or insufficient to hold
harmless an indemnified party for any reason, then each applicable
indemnifying party, in lieu of indemnifying such indemnified party,
shall have a joint and several obligation to contribute to the
aggregate losses, claims, damages and liabilities (including legal or
other expenses reasonably incurred in connection with investigating or
defending the same) (collectively "LOSSES") to which such indemnified
party may be subject in such proportion as is appropriate to reflect
the relative benefits received by such indemnifying party, on the one
hand, and such indemnified party, on the other hand, from the Private
Placement and the Registration Statement that resulted in such Losses;
PROVIDED, HOWEVER, that in no case shall the Initial Purchasers or any
subsequent Holder of any Transfer Restricted Security be responsible,
in the aggregate, for any amount in excess of the purchase discount or
commission applicable to such Transfer Restricted Security, or in the
case of a Registered Preferred Stock, applicable to the Series A
Preferred Stock that was exchangeable into such Registered Preferred
Stock nor shall any underwriter be responsible for any amount in excess
of the underwriting discount or commission applicable to the Transfer
Restricted Securities purchased by such underwriter under the
Registration Statement that resulted in such Losses. If the allocation
provided by the immediately preceding sentence is unavailable for any
reason, the indemnifying party and the indemnified party shall
contribute in such proportion as is appropriate to reflect not only
such relative benefits but also the relative fault of such indemnifying
party, on the one hand, and such indemnified party, on the other hand,
in connection with the statements or omissions that resulted in such
Losses as well as any other relevant equitable considerations. Benefits
received by the Company shall be deemed to be equal to the total net
proceeds from the Private Placement (before deducting expenses) as set
forth on the cover page of the Offering Memorandum. Benefits received
by the Initial Purchasers shall be deemed to be equal to the total
purchase discounts and commissions as set forth on the cover page of
the Offering Memorandum, and benefits received by any other Holders
shall be deemed to be equal to the value of receiving Transfer
Restricted Securities registered under the Securities Act. Benefits
received by any underwriter shall be deemed to be equal to the total
underwriting discounts and commissions, as set forth on the cover page
of the Prospectus forming a part of the Registration Statement that
resulted in such Losses. Relative fault shall be determined by
reference to whether any alleged untrue statement or omission relates
to information provided by the indemnifying party, on the one hand, or
by the indemnified party, on the other hand. The parties agree that it
would not be just and equitable if contribution were determined by pro
rata allocation or any other method of allocation that did not take
account of the equitable considerations referred to above.
Notwithstanding the provisions of this paragraph (d), 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. For purposes
of this Section 6, each person who controls a Holder within the meaning
17
of either the Securities Act or the Exchange Act and each director,
officer, employee and agent of such Holder shall have the same rights
to contribution as such Holder, and each person who controls the
Company within the meaning of either the Securities Act or the Exchange
Act, each officer of the Company who shall have signed the Registration
Statement and each director of the Company shall have the same rights
to contribution as the Company, subject in each case to the applicable
terms and conditions of this paragraph (d).
(e) The provisions of this Section 6 will remain in full force
and effect, regardless of any investigation made by or on behalf of any
Holder or the Company or any of the officers, directors or controlling
persons referred to in Section 6 hereof, and will survive the sale by a
Holder of Transfer Restricted Securities covered by a Registration
Statement.
7. RULE 144A. The Company hereby agrees with each Holder, for so long
as any Transfer Restricted Securities remain outstanding, to make available to
any Holder or beneficial owner of Transfer Restricted Securities in connection
with any sale thereof and any prospective purchaser of such Transfer Restricted
Securities from such Holder or beneficial owner, the information required by
Rule 144A(d)(4) under the Securities Act in order to permit resales of such
Transfer Restricted Securities pursuant to Rule 144A.
8. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS. No Holder may
participate in any Underwritten Registration hereunder unless such Holder (a)
agrees to sell such Holder's Transfer Restricted Securities on the basis
provided in any underwriting arrangements approved by the Persons entitled
hereunder to approve such arrangements and (b) completes and executes all
reasonable questionnaires, powers of attorney, indemnities, underwriting
agreements, lock-up letters and other documents required under the terms of such
underwriting arrangements.
9. SELECTION OF UNDERWRITERS. The Holders of Transfer Restricted
Securities covered by the Shelf Registration Statement who desire to do so may
sell such Transfer Restricted Securities in an Underwritten Offering. In any
such Underwritten Offering, the investment banker or investment bankers and
manager or managers that will administer the offering will be selected by the
Holders of a majority in aggregate liquidation preference or principal amount of
the Transfer Restricted Securities included in such offering; PROVIDED, that
such investment bankers and managers must be reasonably satisfactory to the
Company.
10. MISCELLANEOUS.
(a) NO INCONSISTENT AGREEMENT. The Company has not, as of the
date hereof, entered into, nor shall it, on or after the date hereof,
enter into, any agreement that conflicts with the rights granted to the
Holders herein or otherwise conflicts with the provisions hereof.
(b) AMENDMENTS AND WAIVERS. The provisions of this Agreement,
including the provisions of this sentence, may not be amended,
qualified, 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 the Holders of at least a
majority of the then outstanding aggregate liquidation preference or
principal amount of Transfer Restricted Securities (or, after the
consummation of any Exchange Offer in accordance with Section 2 hereof,
of Registered Preferred Stock or, if issued, Exchange Notes); PROVIDED
that, with respect to any matter that directly or indirectly affects
the rights of the Initial Purchasers hereunder, the Company shall
obtain the written consent of the Initial Purchasers. Notwithstanding
the foregoing (except the foregoing proviso), a waiver or consent to
departure from the provisions hereof with respect to a matter that
relates exclusively to the rights of Holders whose Transfer Restricted
Securities are being sold pursuant to a Registration Statement and that
does not directly or indirectly affect the rights of other Holders may
be given by the Majority Holders, determined on the basis of Transfer
Restricted Securities being sold rather than registered under such
Registration Statement.
18
(c) NOTICES. All notices and other communications provided for
or permitted hereunder shall be made in writing by hand-delivery,
first-class mail, telex, telecopier, or air courier guaranteeing
overnight delivery:
(i) if to a Holder, at the most current address given
by such Holder to the Company in accordance with the
provisions of this Section 10(c), which address initially is,
with respect to each Holder, the address of such Holder
maintained by the Transfer Agent, with a copy in like manner
to Xxxxxx Brothers Inc.;
(ii) if to the Initial Purchasers, c/x Xxxxxx
Brothers Inc., 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xxxxxxx Xxxxx (Fax: 000-000-0000), with a copy, in
the case of any notice pursuant to Section 6(c), to the
Director of Litigation, Office of the General Counsel, Xxxxxx
Brothers Inc., 000 Xxxx Xxxxxx, Xxx Xxxx, XX 00000, with a
copy to Xxxxxxxx Chance US LLP, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: Xxxxxx X. Xxxxxxxxx, Esq.; and
(iii) if to the Company, Spanish Broadcasting System,
Inc., 0000 Xxxxx Xxxxxxxx Xxxxx, Xxxxxxx Xxxxx, Xxxxxxx 00000,
Attention: Xxxxxx X. Xxxxxx (Fax: 000-000-0000), with a copy
to Xxxx Xxxxxxx LLP, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000-0000, Attention: Xxxxxxx X. Xxxxxxx, Xx., Esq.
All such notices and communications shall be deemed to have been duly
given when received. The Initial Purchasers, on the one hand, or the Company, on
the other, by notice to the other party or parties may designate additional or
different addresses for subsequent notices or communications.
(d) SUCCESSORS AND ASSIGNS. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of
the parties, including, without the need for an express assignment or
any consent by the Company thereto, subsequent Holders of Transfer
Restricted Securities. The Company hereby agrees to extend the benefits
of this Agreement to any Holder of Transfer Restricted Securities and
any such Holder may specifically enforce the provisions of this
Agreement as if an original party hereto.
(e) COUNTERPARTS. This Agreement may be executed in any number
of counterparts and by the parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original and
all of which taken together shall constitute one and the same
Agreement.
(f) HEADINGS. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect
the meaning hereof.
(g) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT
REGARD TO PRINCIPLES OF CONFLICTS OF LAWS.
(h) SEVERABILITY. In the event that any one or more of the
provisions contained herein, or the application thereof in any
circumstances, is held invalid, illegal or unenforceable in any respect
for any reason, the validity, legality and enforceability of any such
provision in every other respect and of the remaining provisions hereof
shall not be in any way impaired or affected thereby, it being intended
that all of the rights and privileges of the parties shall be
enforceable to the fullest extent permitted by law.
(i) TRANSFER RESTRICTED SECURITIES HELD BY THE COMPANY, ETC.
Whenever the consent or approval of Holders of a specified percentage
of the aggregate liquidation preference or principal amount of Transfer
Restricted Securities is required hereunder, Transfer Restricted
19
Securities held by the Company or its Affiliates (other than subsequent
Holders of Transfer Restricted Securities if such subsequent Holders
are deemed to be Affiliates solely by reason of their holdings of such
Transfer Restricted Securities) shall not be counted in determining
whether such consent or approval was given by the Holders of such
required percentage.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
20
Please confirm that the foregoing correctly sets forth the agreement
between the Company and you.
Very truly yours,
SPANISH BROADCASTING SYSTEM, INC.
By: /s/ XXXXXX X. XXXXXX
--------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Chief Financial Officer,
Executive Vice President
and Secretary
The foregoing Agreement is hereby
accepted as of the date first above written.
XXXXXX BROTHERS INC.
By: /s/ XXXXXXXXX SATIN
--------------------------------------
Name: Xxxxxxxxx Satin
Title: Managing Director
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By: /s/ XXXX XXXXXXX
--------------------------------------
Name: Xxxx Xxxxxxx
Title: Authorized Signatory
DEUTSCHE BANK SECURITIES INC
By: /s/ XXXXXXX X. XXXXXX
--------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Managing Director
By: /s/ XXXXX XXXXXXXXX
--------------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Director
21
ANNEX A
Each broker-dealer that receives Registered Preferred Stock for its own
account pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such Registered Preferred Stock or,
if issued, Exchange Notes. The Letter of Transmittal states that by so
acknowledging and by delivering a prospectus, a broker-dealer will not be deemed
to admit that it is an "underwriter" within the meaning of the Securities Act.
This Prospectus, as it may be amended or supplemented from time to time, may be
used by a broker-dealer in connection with resales of Registered Preferred
Stock, or if issued, Exchange Notes, received in exchange for Series A Preferred
Stock where such Series A Preferred Stock were acquired by such broker-dealer as
a result of market-making activities or other trading activities. The Company
has agreed that, starting on the Expiration Date (as defined herein) and ending
on the close of business one year after the Expiration Date, it will make this
Prospectus available to any broker-dealer for use in connection with any such
resale. See "Plan of Distribution."
22
ANNEX B
Each broker-dealer that receives Registered Preferred Stock for its own
account in exchange for Series A Preferred Stock, where such Series A Preferred
Stock were acquired by such broker-dealer as a result of market-making
activities or other trading activities, must acknowledge that it will deliver a
prospectus in connection with any resale of such Registered Preferred Stock, or
if issued, Exchange Notes. See "Plan of Distribution."
23
ANNEX C
Each broker-dealer that receives Registered Preferred Stock for its own
account pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such Registered Preferred Stock, or
if issued, Exchange Notes. This Prospectus, as it may be amended or supplemented
from time to time, may be used by a broker-dealer in connection with resales of
Registered Preferred Stock, or if issued, Exchange Notes received in exchange
for Series A Preferred Stock where such Series A Preferred Stock were acquired
as a result of market-making activities or other trading activities. The Company
has agreed that, starting on the Expiration Date and ending on the close of
business one year after the Expiration Date, it will make this Prospectus, as
amended or supplemented, available to any broker-dealer for use in connection
with any such resale. In addition, until such date all dealers effecting
transactions in the Registered Preferred Stock, or if issued, Exchange Notes may
be required to deliver a prospectus.
24
ANNEX D
If the undersigned is a broker-dealer that will receive Registered
Preferred Stock for its own account in exchange for Series A Preferred Stock, it
represents that the Series A Preferred Stock to be exchanged for the Registered
Preferred Stock were acquired by it as a result of market-making activities or
other trading activities and acknowledges that it will deliver a prospectus in
connection with any resale of such Series A Preferred Stock; however, by so
acknowledging and by delivering a prospectus, the undersigned will not be deemed
to admit that it is an "underwriter" within the meaning of the Securities Act.
25
