EXHIBIT 99.4
EXECUTION COPY
EXECUTION COPY
HEARST-ARGYLE TELEVISION, INC.
Common Stock of Hearst-Argyle Television, Inc.
to be issued upon conversion of
7.5% Series A and B Convertible Preferred Securities
(Liquidation Preference $50 per
Convertible Preferred Security)
of Hearst-Argyle Capital Trust
REGISTRATION RIGHTS AGREEMENT
As of December 20, 2001
To the Purchasers Whose Names Appear in
the Acceptance Form at the End Hereof
Ladies and Gentlemen:
Hearst-Argyle Capital Trust, a statutory business trust created under the
laws of the State of Delaware (the "Trust") by Hearst-Argyle Television, Inc., a
Delaware corporation (the "Guarantor"), proposes to issue and sell to each of
you (each a "Purchaser", and collectively, the "Purchasers"), upon the terms set
forth in a Securities Purchase Agreement dated as of December 20, 2001 (the
"Purchase Agreement") among the Purchasers, the Guarantor and the Trust up to
1,400,000 of its 7.5% Series A Convertible Preferred Securities (liquidation
preference $50 per Convertible Preferred Security) (the "Series A Preferred
Securities") and 2,600,000 of its 7.5% Series B Convertible Preferred Securities
(liquidation preference $50 per Convertible Preferred Security (the "Series B
Preferred Securities" and, together with the Series A Preferred Securities, the
"Preferred Securities"). As an inducement to you to enter into the Purchase
Agreement and in satisfaction of a condition to your obligations thereunder, the
Guarantor agrees with you, (i) for your benefit and (ii) for the benefit of the
holders from time to time of the Preferred Securities, the Guarantor's 7.5%
Convertible Junior Subordinated Deferrable Interest Debentures, Series A, Due
2016 (the "Series A Debentures") and the Guarantor's 7.5% Convertible Junior
Subordinated Deferrable Interest Debentures, Series B, Due 2021 (the "Series B
Debentures" and, together with the Series A Debentures, the "Debentures") and
the Guarantor's Common Stock, $1 par value per share (the "Common
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Stock"), that have been issued from time to time upon conversion of the
Preferred Securities or the Debentures (individually a "Holder" and collectively
the "Holders"), as follows:
1. Definitions. Capitalized terms used herein without
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definition shall have their respective meanings set forth in or pursuant to the
Purchase Agreement or, if not defined therein, in the Declaration of Trust dated
as of December 20, 2001 (the "Declaration") relating to the Trust. As used in
this Agreement, the following capitalized defined terms shall have the following
meanings:
"Act" or "Securities Act" means the Securities Act of 1933, as
amended.
"Affiliate" means, at any time, with respect to any person
(including without limitation the Trust), any other person that at such time
directly or indirectly through one or more intermediaries Controls, or is
Controlled by, or is under common Control with, such first person. Unless the
context otherwise clearly requires, any reference to an "Affiliate" is a
reference to an Affiliate of the Guarantor.
"Commission" means the Securities and Exchange Commission.
"Control" means the possession, directly or indirectly, of the
power to direct or cause the direction of the management and policies of a
person, whether through the ownership of voting securities, by contract or
otherwise; and the terms "Controlling" and "Controlled" have meanings
correlative to the foregoing.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Majority Holders" means the holders of a majority of the
Registrable Securities covered by the Shelf Registration Statement.
"Managing Underwriters" means the investment banker or
investment bankers and manager or managers that shall administer an underwritten
offering, if any, as set forth in Section 6 hereof.
"Prospectus" means the prospectus included in the Shelf
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 Act), as
amended or supplemented by any prospectus supplement, with respect to the terms
of the offering of any portion of the Registrable Securities.
"Pulitzer Registration Rights Agreement" means the
Registration Rights Agreement dated May 25, 1998 by and among the Guarantor,
Xxxxx Xxxx Pulitzer, Xxxxx X. Xxxxx and Xxxxxxx X. Xxxxxxxx.
"Registrable Securities" means the shares of Common Stock
issued or issuable upon conversion of the Preferred Securities or the Debentures
other than shares of Common Stock which at the time have been sold or
transferred pursuant to Rule 144 under the Act.
"Shelf Registration" means a registration effected pursuant to
Section 2 hereof.
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"Shelf Registration Period" has the meaning set forth in
Section 2(b) hereof.
"Shelf Registration Statement" means the "shelf" registration
statement of the Guarantor pursuant to the provisions of Section 2 hereof filed
with the Commission which covers some or all of the Registrable Securities, as
applicable, on an appropriate form under Rule 415 under the 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.
"Underwriter" means any underwriter of Registrable Securities
in connection with an offering thereof under the Shelf Registration Statement.
2. Shelf Registration. (a) The Guarantor shall as promptly as
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practicable prepare and, not later than May 20, 2002, shall file with the
Commission and thereafter shall use its best efforts to cause to be declared
effective under the Act as soon as practicable, but in no event later than
August 19, 2002, the Shelf Registration Statement relating to the offer and sale
of the Registrable 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; provided that no Holder shall be entitled to have
the Registrable Securities held by it covered by such Shelf Registration unless
such Holder is in compliance with Section 3(k) hereof.
(b) The Guarantor shall use its best efforts (i) to keep the Shelf Registration
Statement continuously effective in order to permit the Prospectus forming part
thereof to be usable by Holders for so long as shall be required by Rule 144(k)
under the Securities Act or any successor rule or regulation thereto after the
date the Shelf Registration Statement is declared effective or such shorter
period that will terminate upon the earliest of the following: (A) when all the
Registrable Securities covered by the Shelf Registration Statement have been
sold pursuant to the Shelf Registration Statement, (B) when, in the written
opinion of counsel to the Guarantor, all outstanding Registrable Securities
(other than any such Registrable Securities held by an Affiliate of the
Guarantor) may be sold without registration under the Act and (C) the fifth
anniversary of the date hereof (in any such case, such period being called the
"Shelf Registration Period") and (ii) after the effectiveness of the Shelf
Registration Statement, promptly upon the request of any Holder, to take any
action reasonably necessary to register the sale of any Registrable Securities
of such Holder and to identify such Holder as a selling securityholder. The
Guarantor shall be deemed not to have used its best efforts to keep the Shelf
Registration Statement effective during the requisite period if the Guarantor
voluntarily takes any action that would result in Holders of Registrable
Securities covered thereby not being able to offer and sell any such Registrable
Securities during that period, unless (i) such action is required by applicable
law, (ii) the Guarantor complies with this Agreement or (iii) such action is
taken by the Guarantor in good faith and for valid business reasons and the
Guarantor thereafter promptly complies with the requirements of paragraph 3(i)
below. Notwithstanding the foregoing, the Guarantor may suspend the use of the
Shelf Registration Statement for a period not to exceed 180 days in any calendar
year, if the Guarantor determines in its good faith judgment that the
distribution of Registrable Shares covered by such Shelf Registration Statement
would have a material adverse effect on the business, operations or prospects of
the Guarantor or adversely affect a material financing, acquisition, disposition
of assets or stock,
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merger or other comparable transaction, provided, however, that any such
suspension will result in a similar extension of the Shelf Registration Period.
3. Registration Procedures. In connection with the Shelf
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Registration Statement, the following provisions shall apply:
(a) The Guarantor shall furnish to the Holders (other than the
Trust), prior to the filing thereof with the Commission, a copy of the
Shelf Registration Statement, and each amendment thereof and each
amendment or supplement, if any, to the Prospectus included therein.
(b) The Guarantor shall take such action as may be necessary
so that (i) the Shelf Registration Statement and any amendment thereto
and any Prospectus forming part thereof and any amendment or supplement
thereto (and each report or other document incorporated therein by
reference in each case) complies in all material respects with the
Securities Act and the Exchange Act and the respective rules and
regulations thereunder, (ii) the Shelf 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 the
Shelf Registration Statement, and 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 the light of the circumstances under which they were made,
not misleading.
(c) (i) The Guarantor shall advise the Purchasers and, in the
case of clause (1) below, the Holders (other than the Trust) and, if
requested by the Purchasers or any such Holder, confirm such advice in
writing:
(1) when the Shelf Registration Statement and any
amendment thereto has been filed with the Commission and when
the Shelf Registration Statement or any post-effective
amendment thereto has become effective; and
(2) of any request by the Commission for amendments
or supplements to the Shelf Registration Statement or the
Prospectus included therein or for additional information.
(ii) During the Shelf Registration Period, the Guarantor shall
advise the Purchasers and the Holders (other than the Trust) and, if
requested by the Purchasers or any such Holder, confirm such advice in
writing:
(1) of the issuance by the Commission of any stop
order suspending the effectiveness of the Shelf Registration
Statement or the initiation of any proceedings for that
purpose;
(2) of the receipt by the Guarantor of any
notification with respect to the suspension of the
qualification of the Registrable Securities included therein
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for sale in any jurisdiction or the initiation of any
proceeding for such purpose; and
(3) of the happening of any event that requires the
making of any changes in the Shelf Registration Statement or
the Prospectus so that, as of such date, the Shelf
Registration Statement and the Prospectus do not contain an
untrue statement of a material fact and do not omit to state 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 (which advice shall be accompanied by an
instruction to suspend the use of the Prospectus until the
requisite changes have been made).
(d) The Guarantor shall use its commercially reasonable
efforts to prevent the issuance, and if issued to obtain the
withdrawal, of any order suspending the effectiveness of the Shelf
Registration Statement at the earliest possible time.
(e) The Guarantor shall, upon written request of a Holder,
furnish to each Holder of Registrable Securities included within the
coverage of the Shelf Registration Statement, without charge, at least
one copy of such Shelf Registration Statement and any post-effective
amendment thereto (including any reports or other documents
incorporated therein by reference), including financial statements and
schedules, and, if the Holder so requests in writing, all exhibits
(including those incorporated by reference).
(f) The Guarantor shall, during the Shelf Registration Period,
deliver to each Holder of Registrable Securities included within the
coverage of the 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
Guarantor consents to the use of the Prospectus or any amendment or
supplement thereto by each of the selling Holders of Registrable
Securities in connection with the offering and sale of the Registrable
Securities covered by the Prospectus or any amendment or supplement
thereto during the Shelf Registration Period.
(g) Prior to any offering of Registrable Securities pursuant
to the Shelf Registration Statement, the Guarantor shall register or
qualify or cooperate with the Holders of Registrable Securities
included therein and their respective counsel in connection with the
registration or qualification of such Registrable Securities for offer
and sale under the securities or blue sky laws of such jurisdictions 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 jurisdictions of the Registrable Securities covered by such Shelf
Registration Statement; provided that the Guarantor will not be
required to qualify generally to do business or as a dealer in
securities in any jurisdiction where it is not then so qualified or to
take any action which would subject it to general service of process or
to taxation in any such jurisdiction where it is not then so subject.
(h) Unless any Registrable Securities shall be in book-entry
only form, the Guarantor shall cooperate with the Holders of
Registrable Securities to facilitate the
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timely preparation and delivery of certificates representing
Registrable Securities to be sold pursuant to the Shelf Registration
Statement free of any restrictive legends and in such permitted
denominations and registered in such names as Holders may request prior
to and in connection with the sale of Registrable Securities pursuant
to such Shelf Registration Statement.
(i) Upon the occurrence of any event contemplated by paragraph
3(c)(ii)(3) above, the Guarantor shall promptly prepare a
post-effective amendment to the Shelf Registration Statement or an
amendment or supplement to the related Prospectus or file any other
required document so that, as thereafter delivered to purchasers of the
Registrable 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 the light of
the circumstances under which they were made, not misleading. If the
Guarantor notifies the Holders of the occurrence of any event
contemplated by paragraph 3(c)(ii)(3) above, the Holders shall promptly
suspend the use of the Prospectus until the requisite changes to the
Prospectus have been made. Notwithstanding the foregoing, the Guarantor
shall not be required to amend or supplement the Shelf Registration
Statement, any related Prospectus or any document incorporated therein
by reference, for a period not to exceed an aggregate of 180 days in
any calendar year, if the Guarantor 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
Guarantor, or adversely affect a material financing, acquisition,
disposition of assets or stock, merger or other comparable transaction.
(j) The Guarantor 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 or otherwise in accordance
with Section 11(a) of the Securities Act as soon as practicable after
the effective date of the Shelf Registration Statement an earnings
statement satisfying the provisions of Section 11(a) of the Securities
Act.
(k) The Guarantor may require each Holder of Registrable
Securities to be sold pursuant to the Shelf Registration Statement to
furnish to the Guarantor such information regarding the Holder and the
distribution of such Registrable Securities as the Guarantor may from
time to time reasonably require for inclusion in such Shelf
Registration Statement and the Guarantor may exclude from such
registration the Registrable Securities of any Holder that fails to
furnish such information within a reasonable time after receiving such
request.
(l) In connection with an underwritten offering pursuant to
Section 6, the Guarantor shall, if requested, promptly incorporate in a
Prospectus supplement or post-effective amendment to the Shelf
Registration Statement, such information as the Managing Underwriters
reasonably agree should be included therein and to which the Guarantor
does not reasonably object and shall make all required filings of such
Prospectus supplement or post-effective amendment as soon as
practicable after it is notified of the matters to be incorporated in
such Prospectus supplement or post-effective amendment.
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(m) In connection with an underwritten offering pursuant to
Section 6, the Guarantor shall enter into such customary agreements
(including underwriting agreements in customary form) and take all
other appropriate actions in order to expedite or facilitate the
registration or the disposition of the Registrable Securities, and in
connection therewith, if an underwriting agreement is entered into,
cause the same to contain indemnification provisions and procedures
substantially the same as those set forth in Section 5 (or such other
provisions and procedures acceptable to the Managing Underwriters,
if any) with respect to all parties to be indemnified pursuant to
Section 5.
(n) In connection with an underwritten offering pursuant to
Section 6, the Guarantor shall (i) make reasonably available for
inspection by the Holders of Registrable 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 such Holders or any such underwriter all
relevant financial and other records, pertinent corporate documents and
properties of the Guarantor and its subsidiaries; (ii) cause its
officers, directors and employees to supply all relevant information
reasonably requested by such Holders or any such underwriter, attorney,
accountant or agent in connection with any such underwritten offering
pursuant to Section 6 as is customary for similar due diligence
examinations; provided that any information that is designated in
writing by the Guarantor, in good faith, as confidential at the time of
delivery of such information shall be kept confidential by such 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 becomes available to the public generally or
through a third party without an accompanying obligation of
confidentiality other than as a result of an unauthorized disclosure of
such information by any such Holder, underwriter, attorney, accountant
or agent; and provided further that the foregoing inspection and
information gathering shall, to the greatest extent possible, be
coordinated on behalf of the Holders and the other parties entitled
thereto by one counsel designated by and on behalf of such Holders and
other parties and reasonably acceptable to the Guarantor; (iii) make
such representations and warranties to the Holders of Registrable
Securities registered thereunder and the underwriters, if any, in form,
substance and scope as are customarily made by an issuer to
underwriters in similar underwritten offerings as may be reasonably
requested by them; (iv) obtain an opinion of counsel to the Guarantor
and updates thereof (which counsel and opinion (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 underwritten offerings and such other matters
as may be reasonably requested by such Holders and underwriters (it
being agreed that the matters to be covered in such opinion shall
include, without limitation, customary language as to the absence from
such Shelf Registration Statement of an untrue statement of a material
fact or the omission of a required material fact); (v) obtain "cold
comfort" letters and updates thereof from the independent certified
public accountants of the Guarantor (and, if necessary, any other
independent certified public accountants of any subsidiary of the
Guarantor or of any business acquired by the Guarantor for which
financial statements and financial data are, or are required to be,
included in the Shelf Registration Statement), addressed to each such
Holder of Registrable Securities registered thereunder and the
underwriters, if any, in customary
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form and covering matters of the type customarily covered in "cold
comfort" letters in connection with similar underwritten offerings; and
(vi) deliver such documents and certificates as may be reasonably
requested by the Majority Holders and the Managing Underwriters, if
any, including those to evidence compliance with Section 3(i) and with
any customary conditions contained in the underwriting agreement or
other agreement entered into by the Guarantor. The foregoing actions
set forth in clauses (iii), (iv), (v) and (vi) of this Section 3(n)
shall be performed at each closing under any underwritten offering to
the extent required thereunder.
(o) The Guarantor will use its best efforts to cause the
Registrable Securities relating to such Shelf Registration Statement to
be listed on each securities exchange, if any, on which any shares of
Common Stock are then listed.
(p) The Guarantor shall, in the event that any broker-dealer
registered under the Exchange Act shall underwrite any Registrable
Securities or participate as a member of an underwriting syndicate or
selling group or "assist in the distribution" (within the meaning of
Rule 2720 of the Conduct Rules ("Rule 2720") of the National
Association of Securities Dealers, Inc. ("NASD")), whether as a Holder
of such Registrable Securities or as an underwriter, a placement or
sales agent or a broker or dealer in respect thereof, or otherwise,
assist such broker or dealer in complying with the requirements of Rule
2720, including, without limitation, by (A) if Rule 2720 shall so
require, engaging a "qualified independent underwriter" (as defined in
Rule 2720) to participate in the offer and sale of such Registrable
Securities, and to exercise usual standards of due diligence in respect
thereto, (B) indemnifying any such qualified independent underwriter to
the extent of the indemnification of underwriters provided in Section 5
hereof and (C) providing such information to such broker-dealer as may
be required in order for such broker-dealer to comply with the
requirements of the Conduct Rules of the NASD.
(q) The Guarantor shall use its best efforts to take all other
steps necessary to effect the registration, offering and sale of the
Registrable Securities covered by the Shelf Registration Statement
contemplated hereby.
4. Registration Expenses. Except as otherwise provided in
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Section 6, the Guarantor shall bear all fees and expenses incurred in connection
with the performance of its obligations under Sections 2 and 3 hereof and shall
bear or reimburse the Holders for the reasonable fees and disbursements of one
firm of counsel designated by the Guarantor and reasonably acceptable to the
Majority Holders to act as counsel for the Holders in connection therewith.
5. Indemnification and Contribution. (a) In connection with
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the Shelf Registration Statement, the Guarantor, agrees to indemnify and hold
harmless the Purchasers, the officers, directors and trustees of the Purchasers,
each Holder of Registrable Securities covered thereby (including the Purchasers)
and each person who controls the Purchasers or any 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
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actions in respect thereof) arise out of or are based upon any untrue statement
or alleged untrue statement of a material fact contained in the Shelf
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 any preliminary
prospectus or 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,
liability or action; provided that (i) the Guarantor 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 Guarantor by or on behalf of the
Purchasers or any Holder or any indemnified party specifically for inclusion
therein or any information included therein pursuant to Section 3(l) and (ii)
the foregoing indemnity with respect to any untrue statement or alleged untrue
statement or omission or alleged omission made in any preliminary prospectus or
Prospectus or in any amendment thereof or supplement thereto shall not inure to
the benefit of, and the Guarantor shall not be liable to, any indemnified party
from whom the person asserting any such loss, claim, damage or liability
purchases any of the Registrable Securities that are the subject thereof if such
person was not sent or given a copy of the Prospectus (as amended or
supplemented) at or prior to the written confirmation of the sale of such
Registrable Securities to such person and the untrue statement or alleged untrue
statement or omission or alleged omission contained in the preliminary
prospectus was corrected in the Prospectus (as amended or supplemented). This
indemnity agreement will be in addition to any liability which the Guarantor may
otherwise have.
The Guarantor also agrees to indemnify or contribute to Losses
(as defined below) of, as provided in Section 5(d), any underwriters of
Registrable Securities registered under the Shelf Registration Statement, their
officers, directors, employees and agents and each person who controls such
underwriters on substantially the same basis as that of the indemnification of
the Purchasers and the selling Holders provided in this Section 5(a) and shall,
if requested by any Holder, enter into an underwriting agreement reflecting such
agreement, as provided in Section 3(m) and Section 6 hereof.
(b) Each Holder of Registrable Securities covered by the Shelf
Registration Statement (including the Purchasers) severally agrees to indemnify
and hold harmless the Guarantor, each of its directors and officers and each
person who controls the Guarantor within the meaning of either the Securities
Act or the Exchange Act to the same extent as the foregoing indemnity from the
Guarantor, but only with reference to written information furnished to the
Guarantor 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 which any such Holder may otherwise have.
Notwithstanding the foregoing, the liability of each Holder under this
subsection (b) shall be limited to the proportion of any such loss, claim,
damage, liability or expense which is equal to the proportion that the net
proceeds received by such Holder from the sale of Registrable Securities covered
by the Shelf Registration Statement bears to the total net proceeds received by
all Holders from the sale of Securities covered by the Shelf Registration
Statement, but in no event to exceed the amount of such net proceeds received
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by such Holder from the sale of Registrable Securities covered by such Shelf
Registration Statement; provided that the limitation stated in this sentence
will not apply to the extent the liability of a Holder is specifically
determined by the applicable adjudicating body not to be predicated on such
party's status as a selling securityholder and to be predicated instead on (x)
such Holder being a director, officer or control person of the Guarantor or (y)
the willful misconduct of such party. A Holder will not be required to enter
into any agreement or undertaking in connection with any registration under this
Section 5 providing for any indemnification or contribution to the Guarantor on
the part of such Holder greater than the Holder's obligations under this Section
5(b).
(c) Promptly after receipt by an indemnified party under this
Section 5 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 5, notify the indemnifying party of the commencement thereof;
but the omission so to notify the indemnifying party will not relieve the
indemnifying party from any liability it may have to any indemnified party
otherwise than under paragraph (a) or (b) above. In case any such action is
brought against any indemnified party and it notifies the indemnifying party of
the commencement thereof, the indemnifying party will be entitled to participate
therein and, to the extent that it may wish, jointly with any other indemnifying
party similarly notified, to assume the defense thereof, with counsel
satisfactory to such indemnified party (who shall not, except with the consent
of such indemnified party, be counsel to the indemnifying party), and after
notice from the indemnifying party to such indemnified party of its election so
to assume the defense thereof, the indemnifying party will not be liable to such
indemnified party under this Section 5 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof other than reasonable costs of investigation. No indemnifying party
shall, without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened action 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 any claims
that are the subject matter of such action.
(d) In the event that the indemnity provided in paragraph (a)
or (b) of this Section 5 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 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 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 sale of Registrable Securities covered by the
Shelf Registration Statement which resulted in such Losses; provided that in no
case shall any Purchaser or any subsequent Holder of any Registrable Securities
be responsible for any amount in excess of the amount by which the net proceeds
received by such Purchaser or Holder from the sale of the Registrable Securities
pursuant to the Shelf Registration Statement exceeds the amount of damages which
such Purchaser or Holder have otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. 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
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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, sale of Registrable Securities covered by
the Shelf Registration Statement which resulted in such Losses as well as any
other relevant equitable considerations. 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 which does 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 5, each person who controls a
Purchaser or Holder within the meaning of either the Securities Act or the
Exchange Act shall have the same rights to contribution as such Purchaser or
Holder, and each person who controls the Guarantor within the meaning of either
the Securities Act or the Exchange Act, each officer of the Guarantor who shall
have signed the Shelf Registration Statement and each director of the Guarantor
shall have the same rights to contribution as the Guarantor, subject in each
case to the applicable terms and conditions of this paragraph (d).
(e) The provisions of this Section 5 will remain in full force
and effect, regardless of any investigation made by or on behalf of any
Purchaser, any Holder or the Guarantor or any of the officers, directors,
employees, agents or controlling persons referred to in Section 5 hereof, and
will survive the sale by a Purchaser or Holder of Registrable Securities covered
by the Shelf Registration Statement.
6. Underwritten Offering. Upon the written request to the
---------------------
Guarantor from time to time as below provided, the Holders of Registrable
Securities covered by the Shelf Registration Statement who desire to do so may
sell such Registrable Securities in an underwritten offering. In such
underwritten offering, the investment banker or bankers and manager or managers
that will administer the offering will be selected by, and the underwriting
arrangements with respect thereto will be approved by, the Guarantor; provided
that such investment bankers and managers and underwriting arrangements must be
reasonably satisfactory to the Holders of a majority in liquidation amount of
the Registrable Securities to be included in such offering. Notwithstanding the
foregoing, the Guarantor shall not be obligated to (i) arrange for more than two
underwritten offerings, (ii) arrange for an underwritten offering after the
fifth anniversary of the date hereof, (iii) arrange for the second such
underwritten offering prior to the second anniversary of the date hereof, (iv)
arrange for the second such underwritten offering if the proceeds thereof are
expected by the Guarantor, after consultation with the managing underwriter, to
be less than $30,000,000 (without taking into account any underwriting discounts
and commissions) or (v) arrange for an underwritten offering unless at least 25%
of the outstanding Registrable Securities are included in such underwritten
offering (or at least 20% of the outstanding Registrable Securities if at the
time the Purchasers and their Affiliates hold, in the aggregate on an as
converted basis, less than 50% of the number of Registrable Securities into
which the Preferred Securities are convertible on the date hereof). No Holder
may participate in any underwritten offering contemplated hereby unless (a) such
Holder agrees to sell such Holder's Registrable Securities in accordance with
any approved underwriting arrangements and completes and executes all reasonable
questionnaires, powers of attorney,
12
indemnities, underwriting agreements, lock-up letters and other documents
required under the terms of such approved underwriting arrangements and (b) at
least 25% of the outstanding Registrable Securities are included in such
underwritten offering (or at least 20% of the outstanding Registrable Securities
if at the time the Purchasers and their Affiliates hold, in the aggregate on an
as converted basis, less than 50% of the number of Registrable Securities into
which the Preferred Securities are convertible on the date hereof). The
Guarantor shall be responsible for all reasonable out-of-pocket expenses of the
selling securityholders in connection with such underwritten offering (excluding
underwriting discounts and commissions), including the reasonable fees and
disbursements of one firm to act as counsel to the selling securityholders and
any printing expenses incurred in connection with such underwritten offerings.
Notwithstanding the foregoing or the provisions of Section 3(l) hereof, upon
receipt of a request from the Managing Underwriter or a representative of
Holders of a majority of the Registrable Securities participating in such
underwritten offering to prepare and file an amendment or supplement to the
Shelf Registration Statement and Prospectus in connection with an underwritten
offering, the Guarantor may delay the filing of any such amendment or supplement
or postpone taking action with respect to an underwritten offering for a period
not to exceed an aggregate of 180 days in any calendar year, if the Guarantor
determines in its good faith judgment that the filing of such amendment or
supplement or the taking of such action with respect to an underwritten offering
would have a material adverse effect on the business, operations or prospects of
the Guarantor, or adversely affect a material financing, acquisition,
disposition of assets or stock, merger or other comparable transaction.
7. Holdback Agreement. If Guarantor (i) shall file or propose
------------------
to file a registration statement (other than in connection with the registration
of securities issuable pursuant to a continuous "at the market offering"
pursuant to Rule 415(a)(4) under the Securities Act, an employee stock option,
stock purchase, dividend reinvestment plan or similar plan or pursuant to a
merger, exchange offer or a transaction of the type specified in Rule 145(a)
under the Securities Act) with respect to any securities of the Guarantor or
(ii) desires to make an underwritten primary or secondary offering of its
securities pursuant to an existing registration statement and (iii) with
reasonable prior notice, the Guarantor in its good faith judgment determines
that a sale or distribution of Registrable Securities would adversely affect
such offering, then each Holder agrees not to effect any public sale or
distribution (including a sale under Rule 144A under the Securities Act) of
Registrable Securities during the period commencing on the date that is fifteen
days prior to the date the Guarantor in good faith estimates will be the date of
filing of, and ending on the date which is 90 days following the effective date
of, such registration statement, or if a registration statement already exists,
the date that is fifteen days prior to the date the Guarantor in good faith
estimates will be the date of the commencement of the offering and ending on the
date which is 90 days following the completion of such offering.
8. Miscellaneous.
-------------
(a) No Inconsistent Agreements. Except for the Pulitzer
--------------------------
Registration Rights Agreement, the Guarantor is not, as of the date hereof, a
party to any registration rights agreement with respect to its securities.
13
(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 Guarantor has obtained the
written consent of the Purchasers.
(c) Notices. All notices and other communications provided for
-------
or permitted hereunder shall be made in writing (i) by hand, (ii) by telecopy if
the sender on the same day sends a confirming copy of such notice by a
recognized overnight delivery service (charges prepaid), or (iii) by a
recognized overnight delivery service (with charges prepaid):
(i) if to a Holder, at the most current address given
by such Holder to the Guarantor in accordance with the
provisions of this Section 8(c);
(ii) if to the Purchasers, initially at the
applicable address for each Purchaser set forth in the
Purchase Agreement; and
(iii) if to the Guarantor, initially at its address
set forth in the Purchase Agreement.
All such notices and communications shall be deemed to have been duly given when
received.
The Purchasers or the Guarantor by notice to the other 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
and the Holders, including, without the need for an express assignment or any
consent by the Guarantor thereto, subsequent Holders of Registrable Securities.
The Guarantor hereby agrees to extend the benefits of this Agreement to any
Holder of Registrable 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 internal laws of the State of New York
applicable to agreements made and to be performed in said State without regard
to principles of conflicts of laws.
(h) Severability. In the event that any one of 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,
14
it being intended that all of the rights and privileges of the parties
shall be enforceable to the fullest extent permitted by law.
15
Please confirm that the foregoing correctly sets forth the
agreement between the Guarantor and you by signing the acceptance form in the
space below provided.
Very truly yours,
HEARST-ARGYLE TELEVISION, INC.
By /s/ Xxxxx X. Xxxxx
--------------------------------------
Title: Executive Vice President and
Chief Financial Officer
The foregoing Registration Rights Agreement is
hereby confirmed and accepted as of the date
first above written.
TEACHERS INSURANCE AND ANNUITY ASSOCIATION
By /s/ Xxxxxxx X. Xxxxxx
---------------------------------------
Title: Associate Director
AIG LIFE INSURANCE COMPANY
By /s/ Xxxxxx X. Xxxxxx
---------------------------------------
Title: Vice President
AMERICAN GENERAL ANNUITY INSURANCE COMPANY
By: American General Investment Management, L.P.
By: American General Investment Management Corporation, its general partner
By /s/ Xxxxxxx X. Xxxxxx
---------------------------------------
Title: Senior Vice President
16
THE FRANKLIN LIFE INSURANCE COMPANY
By: American General Investment Management, L.P.
BY: American General Investment Management Corporation, its general partner
By /s/ Xxxxxxx X. Xxxxxx
---------------------------------------
Title: Senior Vice President
ALL AMERICAN LIFE INSURANCE COMPANY
By: American General Investment Management, L.P.
By: American General Investment Management Corporation, its general partner
By /s/ Xxxxxxx X. Xxxxxx
---------------------------------------
Title: Senior Vice President
METROPOLITAN LIFE INSURANCE COMPANY
By /s/ Xxxxxxx X. Xxxxxx
---------------------------------------
Title: Director
XXXX XXXXXXX LIFE INSURANCE COMPANY
By /s/ Xxxx X. Xxxxxxxxx
---------------------------------------
Title: Managing Director
XXXX XXXXXXX VARIABLE LIFE INSURANCE COMPANY
By /s/ Xxxx X. Xxxxxxxxx
---------------------------------------
Title: Managing Director
17
MONY LIFE INSURANCE COMPANY OF AMERICA
By /s/ Xxxxx X. Xxxxxxxxxxx
---------------------------------------
Title: Authorized Agent
ALLSTATE LIFE INSURANCE COMPANY
By /s/ Xxxxxxxx Xxxxxx /s/ Xxxxxx X. Xxxxxxxx
-------------------------------------- ------------------------------
Title: Authorized Signatory Authorized Signatory
HEARST BROADCASTING, INC.
By Xxxxx X. Xxxxx
---------------------------------------
Title: Vice President
THE TRAVELERS INSURANCE COMPANY
By /s/ Xxxxxx Xxxxxxxxxxxx
---------------------------------------
Title: Investment Officer
PRIMERICA LIFE INSURANCE COMPANY
By /s/ Xxxxxx Xxxxxxxxxxxx
---------------------------------------
Title: Investment Officer
18
THE TRAVELERS LIFE AND ANNUITY COMPANY
By /s/ Xxxxxx Xxxxxxxxxxxx
---------------------------------------
Title: Investment Officer
NATIONAL BENEFIT LIFE INSURANCE COMPANY
By /s/ Xxxxxx Xxxxxxxxxxxx
---------------------------------------
Title: Investment Officer
THE TRAVELERS INSURANCE COMPANY
By /s/ Xxxxxx Xxxxxxxxxxxx
---------------------------------------
Title: Investment Officer
THE TRAVELERS INDEMNITY COMPANY
By /s/ Xxxxxx Xxxxxxxxxxxx
---------------------------------------
Title: Investment Officer
CITICORP LIFE INSURANCE COMPANY
By: Travelers Asset Management International Company LLC
By /s/ Xxxxxx Xxxxxxxxxxxx
---------------------------------------
Title: Investment Officer
