EXHIBIT 4.2
REGISTRATION RIGHTS AGREEMENT
Dated as of April 15, 1997
by and between
THE TIMES MIRROR COMPANY
and
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Liquid Yield Option/TM/ Notes due 2017
(Zero Coupon - Subordinated)
/TM/ Trademark of Xxxxxxx Xxxxx & Co., Inc.
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is made and
entered into as of April 15, 1997 by and between The Times Mirror Company, a
Delaware corporation (the "Company"), and Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch,
Pierce, Xxxxxx & Xxxxx Incorporated, a Delaware corporation (the "Purchaser").
This Agreement is made pursuant to the Purchase Agreement, dated of
even date herewith (the "Purchase Agreement"), between the Company and the
Purchaser, which provides for the sale by the Company to the Purchaser of
$435,000,000 aggregate principal amount at maturity of the Company's Liquid
Yield Option/TM/ Notes due 2017 (Zero Coupon-Subordinated) (the "XXXXx"/TM/) and
the grant by the Company to the Purchaser of the option to purchase all or any
part of an additional $65,000,000 aggregate principal amount at maturity of its
XXXXx. In order to induce the Purchaser to enter into the Purchase Agreement,
the Company has agreed to provide the registration rights set forth in this
Agreement. The execution of this Agreement is a condition to the closing under
the Purchase Agreement.
The parties hereby agree as follows:
Section 1. Definitions
-----------
Capitalized terms used herein without definition shall have their
respective meanings set forth in the Purchase Agreement or Indenture. As used
in this Agreement, the following terms shall have the following meanings:
Closing Date: April 15, 1997, or such other date as may be agreed
------------
upon for the sale and purchase of the XXXXx pursuant to the Purchase Agreement.
Exchange Act: The Securities Exchange Act of 1934, as amended, and
------------
the rules and regulations of the SEC promulgated thereunder.
Indenture: The Indenture, dated as of April 15, 1997, between the
---------
Company and Citibank, N.A., a national banking association, as Trustee, pursuant
to which the XXXXx are being issued, as amended or supplemented from time to
time in accordance with the terms thereof.
Prospectus: 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), as amended or supplemented by any
prospectus supplement, with respect to the terms of the offering of any portion
of the Registrable Securities covered by such Registration Statement, and all
other amendments and supplements to the Prospectus, including post-effective
amendments and all material incorporated by reference or deemed to be
incorporated by reference in such Prospectus.
1
Registrable Securities: All XXXXx and shares of Series A Common Stock
----------------------
that are Restricted Securities.
Registration Expenses: See Section 5 hereof.
---------------------
Registration Statement: Any registration statement of the Company
----------------------
that covers any of the Registrable Securities pursuant to the provisions of this
Agreement, including the Prospectus, amendments and supplements to such
registration statement, including post-effective amendments, all exhibits, and
all material incorporated by reference or deemed to be incorporated by reference
in such registration statement.
Restricted Securities: Any and all XXXXx upon original issuance
---------------------
thereof (and any shares of Series A Common Stock issued upon conversion thereof
other than pursuant to an effective registration statement under the Securities
Act) and at all times subsequent thereto until, as to any Restricted Security,
(i) the sale of such Restricted Security has been effectively registered under
the Securities Act and such Restricted Security has been disposed of in
accordance with the method of distribution set forth in the Registration
Statement relating thereto or (ii) it is distributed to the public, or is
otherwise able to be sold, pursuant to Rule 144(k) (or any similar provision
then in force, but not Rule 144A) under the Securities Act.
SEC: The Securities and Exchange Commission.
---
Securities Act: The Securities Act of 1933, as amended, and the rules
--------------
and regulations promulgated by the SEC thereunder.
Shelf Registration: See Section 3 hereof.
------------------
Special Counsel: Xxxxxx & Xxxxxxx, special counsel to the Purchaser
---------------
or such other special counsel as may be designated by the holders of a majority
in aggregate principal amount of Registrable Securities outstanding.
TIA: The Trust Indenture Act of 1939, as amended.
---
Section 2. Securities Subject to this Agreement
------------------------------------
(a) Securities. The securities entitled to the benefits of this
----------
Agreement are the Registrable Securities.
(b) Holders of Registrable Securities. A Person is deemed to be a
---------------------------------
holder of Registrable Securities whenever such Person beneficially owns
Registrable Securities; provided that only Registrable Securities of holders who
--------
are registered holders of Registrable Securities shall be counted for purposes
of calculating any proportion of holders of Registrable Securities entitled to
take action or give notice pursuant to this Agreement.
2
Section 3. Shelf Registrations
-------------------
(a) Shelf Registrations. As promptly as practicable and in no event
-------------------
later than 90 days after the date hereof, the Company shall prepare and file
with the SEC a Registration Statement (which may include any previously filed
Registration Statement meeting the requirements set forth herein) under the
Securities Act for an offering to be made on a continuous basis pursuant to Rule
415 (or any similar rule that may be adopted by the SEC) under the Securities
Act covering all the Registrable Securities (the "Shelf Registration").
(b) The Shelf Registration shall be on Form S-3 or another appropriate
form permitting registration of such Registrable Securities for resale by such
holders in the manner or manners designated by them.
(c) The Company shall use its best efforts to cause the Shelf
Registration to become effective under the Securities Act in accordance with
Section 3(a) hereof and shall keep the Shelf Registration continuously effective
for a period of two years from the Closing Date or such shorter period that will
terminate when all Registrable Securities covered by the Shelf Registration are
no longer Restricted Securities. The Company shall also supplement or make
amendments to any Shelf Registration if required by the rules, regulations or
instructions applicable to the registration form used by the Company or if
required by the Securities Act.
Section 4. Registration Procedures
-----------------------
In connection with the registration obligations pursuant to Section 3
hereof, the Company shall use its best efforts to effect such registration to
permit the sale of such Registrable Securities in accordance with the then
intended method or methods of disposition thereof, and pursuant thereto the
Company shall as expeditiously as possible:
(a) prepare and file with the SEC, within the time period specified in
Section 3, a Registration Statement or Registration Statements on any
appropriate form under the Securities Act, which form shall be available for the
sale of the Registrable Securities by the holders thereof in accordance with the
intended method or methods of distribution thereof, and use its best efforts to
cause each such Registration Statement to become effective and remain effective
as provided herein; provided, however, that before filing a Registration
Statement or Prospectus or any amendments or supplements thereto, the Company
shall furnish to the Special Counsel copies of the Registration Statement or
Prospectus and all such documents in the form proposed to be filed at least two
business days prior thereto, which documents will be subject to the review of
the Special Counsel, and the Company shall not file any such Registration
Statement or amendment thereto or any Prospectus or any supplement thereto to
which the Special Counsel shall reasonably object on a timely basis, unless the
Company is advised by its counsel that such Registration Statement or amendment
thereto or any Prospectus or supplement thereto is required to be filed by
applicable law;
3
(b) prepare and file with the SEC such amendments and post-effective
amendments to each Registration Statement as may be necessary to keep such
Registration Statement continuously effective for the applicable period; cause
the related Prospectus to be supplemented by any required Prospectus supplement,
and as so supplemented to be filed pursuant to Rule 424 (or any similar
provisions then in force) under the Securities Act;
(c) promptly notify Special Counsel to the holders of Registrable
Securities and, with respect to any event contemplated by clauses (i)(B), (iv),
(v) or (vi) hereof, notify such holders promptly (and in each case, if
requested, confirm any such oral or telephonic notice in writing), (i) when a
Prospectus or any Prospectus supplement or post-effective amendment related to
such Registrable Securities (A) has been filed, and, (B) with respect to a
Registration Statement or any post-effective amendment related to such
Registrable Securities, when the same has become effective, (ii) of the receipt
of any comments from the SEC, (iii) of any request by the SEC for amendments or
supplements to a Registration Statement or related Prospectus or for additional
information, (iv) of the issuance by the SEC of any stop order suspending the
effectiveness of a Registration Statement or the initiation of any proceedings
for that purpose, (v) if at any time the representations and warranties of the
Company contained in any agreement entered pursuant to paragraph (l) below in
connection with the sale of Restricted Securities by selling holders thereof
cease to be true and correct, (vi) of the receipt by the Company of any
notification with respect to the suspension of the qualification or exemption
from qualification of any of the Registrable Securities for sale or exchange in
any jurisdiction of the United States of America or the initiation of any
proceeding for such purpose, (vii) of the happening of any event that makes any
statement of a material fact made in such Registration Statement or related
Prospectus or any document incorporated or deemed to be incorporated therein by
reference untrue or that requires the making of any changes in a Registration
Statement or related Prospectus so that such documents will not contain any
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading (provided that the
timely filing of a report under the Exchange Act which is incorporated by
reference in the Registration Statement and related Prospectus shall constitute
effective notice under this subsection (vii)), and (viii) of the determination
of the Company that a post-effective amendment to a Registration Statement would
be appropriate;
(d) use every reasonable effort to obtain the withdrawal of any order
suspending the effectiveness of a Registration Statement or the lifting of any
suspension of the qualification (or exemption from qualification) of any of the
Registrable Securities for sale or exchange in any jurisdiction of the United
States of America, as promptly as practicable;
(e) if reasonably requested by any holder of Registrable Securities
covered by a Registration Statement, (i) promptly incorporate in a Prospectus
supplement or post-effective amendment such information as such holder
reasonably requests to be included therein as is required by applicable law,
(ii) make all required filings of such Prospectus supplement or such post-
effective amendment as soon as the Company has received
4
notification of the matters to be incorporated in such Prospectus supplement or
such post-effective amendment, and (iii) supplement or make amendments to any
Registration Statement as is required by applicable law;
(f) furnish to each selling holder of Registrable Securities upon
request, and the Special Counsel, without charge, at least one conformed copy of
the Registration Statement or Statements and any post-effective amendment
thereto, including financial statements and schedules, without charge, as well
as all documents incorporated therein by reference or deemed incorporated
therein by reference and all exhibits (including those previously furnished or
incorporated by reference) (provided that the Company may charge such holders
reasonable duplication costs for copies of any exhibit that is not specifically
incorporated by reference in the document to which it is an exhibit), at the
earliest practicable time under the circumstances after the filing of such
documents with the SEC;
(g) deliver to each selling holder of Registrable Securities and the
Special Counsel, without charge, as many copies of the Prospectus or
Prospectuses (including each preliminary prospectus) and any amendment or
supplement thereto as such Persons may reasonably request; the Company consents
to the use of such Prospectus or any amendment or supplement thereto in
accordance with applicable law by each of the selling holders of Registrable
Securities in connection with the offering and sale of the Registrable
Securities covered by such Prospectus or any amendment or supplement thereto in
accordance with applicable law;
(h) prior to any public offering of Registrable Securities, use its
best efforts to register or qualify or cooperate with the selling holders of
Registrable Securities and the Special Counsel in connection with the
registration or qualification (or exemption from such registration or
qualification) of such Registrable Securities for offer and sale, as the case
may be, under the securities or Blue Sky laws of such state or local
jurisdictions in the United States as any seller reasonably requests in writing;
keep each such registration or qualification (or exemption therefrom) effective
during the period such Registration Statement is required to be kept effective
and do any and all other acts or things necessary or advisable to enable the
disposition in such jurisdictions of the Registrable Securities covered by the
applicable Registration Statement; provided, however, that the Company will not
be required to (A) qualify generally to do business in any jurisdiction where it
is not then so qualified, (B) take any action that would subject it to general
service of process in any such jurisdiction where it is not then so subject or
(C) register or qualify securities prior to the effective date of any
Registration Statement under Section 3 hereof;
(i) cooperate with the selling holders of Registrable Securities to
facilitate the timely preparation and delivery of certificates representing
Registrable Securities, which certificates shall not bear any restrictive
legends; and enable such Registrable Securities to be in such denominations and
registered in such names, in all cases consistent with the requirements set
forth in the Indenture, as the holders may request;
5
(j) subject to the exceptions contained in (A), (B) and (C) of
subsection (h) hereof, use its best efforts to cause the Registrable Securities
covered by the applicable Registration Statement to be registered with or
approved by such other Federal, state and local governmental regulatory agencies
or authorities in the United States as may be necessary, by virtue of the
business and operations of the Company, to enable the seller or sellers thereof
to consummate the disposition of such Registrable Securities and cooperate with
each seller of Registrable Securities in connection with any filings required to
be made with the National Association of Securities Dealers, Inc.;
(k) upon the occurrence of any event contemplated by paragraph
4(c)(vii) or 4(c)(viii) above, as promptly as practicable thereafter, prepare
and file with the SEC a supplement or post-effective amendment to the applicable
Registration Statement or a supplement to the related Prospectus or any document
incorporated therein by reference or file any other required document so that,
as thereafter delivered to the purchasers of the Registrable Securities being
sold thereunder, such Prospectus will not 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, in light of the circumstances under
which they were made, not misleading;
(l) enter into such customary agreements and take all such other
actions in connection therewith (including those reasonably requested by the
holders of a majority of the Registrable Securities being sold) in order to
expedite or facilitate the disposition of such Registrable Securities; provided,
--------
however, that the Company shall not be required to enter into an underwriting
-------
agreement in connection with any such disposition;
(m) cause the Indenture to be qualified under the TIA not later than
the effective date of any Registration Statement; and in connection therewith,
cooperate with the Trustee to effect such changes to the Indenture as may be
required for the Indenture to be so qualified in accordance with the terms of
the TIA and execute, and use their best efforts to cause the Trustee to execute,
all documents as may be required to effect such changes, and all other forms and
documents required to be filed with the SEC to enable the Indenture to be so
qualified in a timely manner; and
(n) comply with all applicable rules and regulations of the SEC and
make generally available to the Company's securityholders an earnings statement
satisfying the provisions of Section 11(a) of the Securities Act and Rule 158
thereunder no later than the date required for the filing of the applicable
forms referred to in Rule 158 under the Exchange Act, commencing on the first
day of the first fiscal quarter of the Company commencing after the effective
date of a Registration Statement, which statement shall cover said 12-month
period.
Purchaser shall, as a condition to the sale of any Registrable
Security, require the holder to whom such Registrable Security is sold to agree
to be bound by this Agreement with respect to the obligations of holders of
Registrable Securities set forth herein. The Company may require each selling
holder of Registrable Securities under a Shelf Registration to furnish to the
Company such information regarding such selling holder and the distribution
6
of such Registrable Securities, including the information specified in Item 507
of Regulation S-K under the Securities Act, as the Company may from time to time
reasonably request in writing, and each holder in acquiring such Registrable
Securities agrees to supply such information to the Company promptly upon such
request.
Each holder of Registrable Securities agrees by acquisition of such
Registrable Securities that (i) such holder will promptly (and in any case
within two business days after completion of such sale or distribution) notify
the Company following any sale of Registrable Securities under a Shelf
Registration or distribution to the public pursuant to Rule 144(k) (or any
similar provision then in force, but not Rule 144A under the Securities Act) and
(ii) upon receipt of any notice from the Company of the happening of any event
of the kind described in Section 4(c)(iii), 4(c)(iv), 4(c)(vi), or 4(c)(vii)
hereof, such holder will forthwith discontinue disposition of such Registrable
Securities covered by such Registration Statement or Prospectus and will not
resume disposition of such Registrable Securities until such holder's receipt of
the copies of the supplemented or amended Prospectus contemplated by Section
4(k) 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 the
Registration Statement and Prospectus and any additional or supplemental filings
that are incorporated or deemed to be incorporated by reference in such
Prospectus.
Section 5. Registration Expenses
---------------------
The Company shall pay all fees and expenses incurred by it or
Purchaser incident to the performance of or compliance with this Agreement by
the Company including, without limitation, (i) all SEC, stock exchange or
National Association of Securities Dealers, Inc. registration and filing fees,
(ii) all fees and expenses incurred in 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 of the Registrable Securities), (iii) all expenses in
preparing or assisting in preparing, printing and distributing any Registration
Statement, any Prospectus, any amendments or supplements thereto, other
documents relating to the Company's performance of and compliance with this
Agreement, and (iv) all rating agency fees but excluding fees of any special
accountants retained by the selling holders, counsel to the underwriters and
underwriting discounts and commissions and transfer taxes, if any, relating to
the sale or disposition of Registrable Securities by a holder of Registrable
Securities.
Section 6. Indemnification
---------------
(a) The Company agrees to indemnify and hold harmless the Purchaser
and each holder of Registrable Securities and each person, if any, who controls
the Purchaser or any holder of Registrable Securities within the meaning of
either Section 15 of the Securities Act or Section 20 of the Exchange Act, as
follows:
(i) against any and all loss, liability, claim, damage and
reasonable expense (including the reasonable fees and disbursements of
counsel) whatsoever, as incurred, arising out of any untrue statement
or alleged untrue
7
statement of a material fact contained in the Registration Statement
(or any amendment thereto), or the omission or alleged omission
therefrom of a material fact required to be stated therein or
necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading or arising
out of any untrue statement or alleged untrue statement of a material
fact included in any preliminary prospectus or the Prospectus (or any
amendment or supplement thereto), or the omission or alleged omission
therefrom of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading;
(ii) against any and all loss, liability, claim, damage and
reasonable expense (including the reasonable fees and disbursements of
counsel) whatsoever, as incurred, to the extent of the aggregate
amount paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or
threatened, or of any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or
omission, provided that (subject to Section 6(d) below) any such
settlement is effected with the written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred
(including the reasonable fees and disbursements of counsel),
reasonably incurred in investigating, preparing or defending against
any litigation, or any investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever based
upon any such untrue statement or omission, or any such alleged untrue
statement or omission, to the extent that any such expense is not paid
under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
-------- -------
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by the
Purchaser or such holder of Registrable Securities (which also acknowledges the
indemnity provisions herein) and each person, if any, who controls the Purchaser
or any such holder of Registrable Securities expressly for use in the
Registration Statement (or any amendment thereto), or any preliminary prospectus
or the Prospectus (or any amendment or supplement thereto).
(b) In connection with any Shelf Registration in which a holder,
including, without limitation, the Purchaser, of Registrable Securities is
participating, in furnishing information relating to such holder of Registrable
Securities to the Company in writing expressly for use in such Registration
Statement, any preliminary prospectus, the Prospectus or any amendments or
supplements thereto, the holders of such Registrable Securities agree, severally
and not jointly, to indemnify and hold harmless the Purchaser and each person,
if any, who controls the Purchaser within the meaning of either Section 15 of
the Securities Act or Section 20 of the Exchange Act and the Company, its
directors and officers who sign a Registration Statement and each person, if
any, who controls the Company within the
8
meaning of either such Section, against any and all loss, liability, claim,
damage and expense described in the indemnity contained in subsection (a) of
this Section, as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the Registration
Statement (or any amendment thereto), or any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto) in reliance upon and in
conformity with written information furnished to the Company by such holder of
Registrable Securities (which also acknowledges the indemnity provisions herein)
and each person, if any, who controls any such holder of Registrable Securities
expressly for use in the Registration Statement (or any amendment thereto) or
such preliminary prospectus or the Prospectus (or any amendment or supplement
thereto).
The Purchaser agrees to indemnify and hold harmless the Company, the
holders of Registrable Securities, the directors of the Company, the officers of
the Company who sign the Registration Statement and each person, if any, who
controls the Company or any holder of Registrable Securities within the meaning
of either Section 15 of the Securities Act or Section 20 of the Exchange Act
against any and all loss, liability, claim, damage and expense described in the
indemnity contained in subsection (a) of this Section, as incurred, but only
with respect to untrue statements or omissions, or alleged untrue statements or
omissions, made in the Registration Statement (or any amendment thereto), or any
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto) in reliance upon and in conformity with written information furnished
to the Company by the Purchaser expressly for use in the Registration Statement
(or any amendment thereto) or such preliminary prospectus or the Prospectus (or
any amendment or supplement thereto).
(c) Each indemnified party shall give notice as promptly as
reasonably practicable to each indemnifying party of any action commenced
against it in respect of which indemnity may be sought hereunder, but failure to
so notify an indemnifying party shall not relieve such indemnifying party from
any liability hereunder to the extent it is not materially prejudiced as a
result thereof and in any event shall not relieve it from any liability which it
may have otherwise than on account of this indemnity agreement. An indemnifying
party may participate at its own expense in the defense of any such action;
provided, however, that counsel to the indemnifying party shall not (except with
the consent of the indemnified party) also be counsel to the indemnified party.
It is understood that the indemnifying party shall not, in respect of the legal
expenses of any indemnified party in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for (a) the fees and expenses of
more than one separate firm (in addition to any local counsel) for the Purchaser
and all persons, if any, who control the Purchaser within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act, (b) the fees
and expenses of more than one separate firm (in addition to any local counsel)
for the Company, its directors, its officers who sign the Registration Statement
and each person, if any, who controls the Company within the meaning of either
such Section and (c) the fees and expenses of more than one separate firm (in
addition to any local counsel) for all holders of Registrable Securities and all
persons, if any, who control any holders of Registrable Securities within the
meaning of either such Section, and that all such fees and expenses shall be
reimbursed as they are incurred. In such case involving the Purchaser and
control persons of the Purchaser, such firm shall be designated in writing by
the Purchaser and shall
9
be reasonably acceptable to the Company. In such case involving the holders of
Registrable Securities and such controlling persons of holders of Registrable
Securities, such firm shall be designated in writing by holders of a majority in
aggregate principal amount at maturity of Registrable Securities. In all other
cases, such firm shall be designated by the Company. No indemnifying party
shall, without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 6 hereof
(whether or not the indemnified parties are actual or potential parties
thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising out
of such litigation, investigation, proceeding or claim and (ii) does not include
a statement as to or an admission of fault, culpability or a failure to act by
or on behalf of any indemnified party.
(d) If at any time an indemnified party shall have requested, in
writing, an indemnifying party to reimburse the indemnified party for fees and
expenses of counsel, such indemnifying party agrees that it shall be liable for
any settlement of the nature contemplated by Section 6(a)(ii) effected without
its written consent if (i) such settlement is entered into more than 45 days
after receipt by such indemnifying party of aforesaid request, (ii) such
indemnifying party shall have received notice of the terms of such settlement at
least 30 days prior to such settlement being entered into and (iii) such
indemnifying party shall not have reimbursed such indemnified party in
accordance with such request prior to the date of such settlement; provided,
however, if at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel, an indemnifying party shall not be liable for any settlement of the
nature contemplated by this Section 6(d) effected without its written consent if
(x) such indemnifying party reimburses such indemnified party in accordance with
such request to the extent it considers such request to be reasonable; and (y)
such indemnifying party provides written notice to the indemnified party
substantiating the unpaid balance as unreasonable, in each case prior to the
date of such settlement.
(e) If the indemnification provided for in Section 6 hereof is for any
reason unavailable to or insufficient to hold harmless an indemnified party in
respect of any losses, liabilities, claims, damages or expenses referred to
therein, then each indemnifying party shall contribute to the aggregate amount
of such losses, liabilities, claims, damages and expenses incurred by such
indemnified party, as incurred, in such proportion as is appropriate to reflect
the relative fault of the indemnifying party or parties on the one hand and of
the indemnified party on the other hand in connection with the statements or
omissions which resulted in such losses, liabilities, claims, damages or
expenses, as well as any other relevant equitable considerations.
The relative fault of the Company on the one hand and the holders of
the Registrable Securities or the Purchaser on the other hand shall be
determined by reference to, among other things, whether any such untrue or
alleged untrue statement of a material fact or omission or alleged omission to
state a material fact relates to information supplied by the Company or by the
holder of the Registrable Securities or the Purchaser and the parties'
10
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
The parties hereto agree that it would not just and equitable if
contribution pursuant to this Section 6(e) were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to above in this Section 6(e). The
aggregate amount of losses, liabilities, claims, damages, and expenses incurred
by an indemnified party and referred to above in this Section 6(e) shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue or alleged untrue statement or omission.
Notwithstanding the provisions of this Section 6, no holder of
Registrable Securities shall be required to indemnify or contribute any amount
in excess of the amount by which the total price at which the Registrable
Securities sold by such holder of Registrable Securities and distributed to the
public were offered to the public exceeds the amount of any damages that such
holder of Registrable Securities has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 6(e), each person, if any, who controls
the Purchaser or any holder of Registrable Securities within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act shall have
the same rights to contribution of such Purchaser or holder, and each director
of the Company, each officer of the Company who signed the Registration
Statement, and each person, if any, who controls the Company within the meaning
of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have
the same rights to contribution as the Company.
Section 7. Miscellaneous
-------------
(a) Remedies. In the event of a breach by the Company of any of
--------
its obligations under this Agreement, each holder of Registrable Securities, in
addition to being entitled to exercise all rights granted by law, including
recovery of damages, will be entitled to specific performance of its rights
under this Agreement. The Company agrees that monetary damages would not be
adequate compensation for any loss incurred by reason of a breach by it of any
of the provisions of this Agreement and hereby further agrees that, in the event
of any action for specific performance in respect of such breach, they shall
waive the defense that a remedy at law would be adequate.
(b) No Inconsistent Agreements. The Company shall not, on or
--------------------------
after the date of this Agreement, enter into any agreement with respect to its
securities that is
11
inconsistent with the rights granted to the holders of Registrable Securities in
this Agreement or otherwise conflicts with the provisions hereof.
(c) Amendments and Waivers. The provisions of this Agreement,
----------------------
including the provisions of this sentence, may not be amended, modified or
supplemented (other than to cure any ambiguity or correct or supplement any
provision herein), and waivers or consents to departures from the provisions
hereof may not be given, unless the Company has obtained the written consent of
holders of a majority of the then outstanding aggregate principal amount at
maturity of Registrable Securities, except in the case of the Purchaser prior to
distribution of the XXXXx to the holders, then the consent of the Purchaser.
Notwithstanding the foregoing, a waiver or consent to depart from the provisions
hereof with respect to a matter that relates exclusively to the rights of
holders of Registrable Securities whose securities are being sold pursuant to a
Registration Statement and that does not directly or indirectly affect the
rights of other holders of Registrable Securities may be given by holders of at
least a majority in aggregate principal amount at maturity of the Registrable
Securities being sold by such holders.
(d) Notices. All notices and other communications provided for
-------
or permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, telex, or telecopier:
(i) if to a holder of Registrable Securities, at the most
current address given by such holder to the Company in accordance with
the provisions of this Section 8(d), except with respect to the
Purchaser prior to distribution of the XXXXx, then to the Purchaser at
the address set forth on the first page of the Purchase Agreement; and
(ii) if to the Company, to Corporate Secretary at The Times
Mirror Company, Times Xxxxxx Xxxxxx, Xxx Xxxxxxx, Xxxxxxxxxx 00000
(fax: 213) 000-0000), with a copy to Xxxxx X. Xxxxxxx, Esq., Xxxxxx,
Xxxx & Xxxxxxxx LLP, 000 Xxxxx Xxxxx Xxxxxx, Xxx Xxxxxxx, Xxxxxxxxxx
00000 (fax: (000) 000-0000), and thereafter by such other address,
notice of which is given in accordance with the provision of this
Section 8(d).
All such notices and communications shall be deemed to have been duly
given: when delivered by hand, if personally delivered; five business days
after being deposited in the mail, postage prepaid, if mailed; one business day
after being sent by next-day solvent air courier; when answered back, if
telexed; and when receipt acknowledged, if telecopied.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the person giving the same to the Trustee under the
Indenture at the address specified in such Indenture.
(e) Successors and Assigns. This Agreement shall inure to the
----------------------
benefit of and be binding upon the successors and assigns of each of the
parties, including
12
without limitation and without the need for an express assignment, subsequent
holders of Registrable Securities.
(f) Counterparts. This Agreement may be executed in any number of
------------
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(g) Headings. The headings in this Agreement are for convenience of
--------
reference only and shall not limit or otherwise affect the meaning hereof.
(h) Governing Law. This Agreement shall be governed by and construed
-------------
in accordance with the laws of the State of New York, without regard to
principles of conflicts of laws.
(i) Severability. If any term, provision, covenant or restriction of
------------
this Agreement is held by a court of competent jurisdiction to be invalid, void
or unenforceable, the remainder of the terms, provisions, covenants and
restrictions set forth herein shall remain in full force and effect and shall in
no way be affected, impaired or invalidated, and the parties hereto shall use
their best efforts to find and employ an alternative means to achieve the same
or substantially the same result as that contemplated by such term, provision,
covenant or restriction. It is hereby stipulated and declared to be the
intention of the parties that they would have executed the remaining terms,
provisions, covenants and restrictions without including any of such which may
be hereafter declared invalid, void or unenforceable.
(j) Entire Agreement. This Agreement is intended by the parties as a
----------------
final expression of their agreement, and is intended to be a complete and
exclusive statement of the agreement and understanding of the parties hereto in
respect of the subject matter contained herein. There are no restrictions,
promises, warranties or undertakings, other than those set forth or referred to
herein, with respect to the registration rights granted by the Company with
respect to the securities sold pursuant to the Purchase Agreement. This
Agreement supersedes all prior agreements and understandings between the parties
with respect to such subject matter.
13
(k) Securities Held by the Company or its Affiliates. Whenever the
------------------------------------------------
consent or approval of holders of a specified percentage of Registrable
Securities is required hereunder, Registrable Securities held by the Company or
any of its affiliates shall not be counted in determining whether such consent
or approval was given by the holders of such required percentage or amount.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
THE TIMES MIRROR COMPANY
By
----------------------------------
Name:
Title:
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By
----------------------------------
Name:
Title:
14
