Exhibit 10.2
REGISTRATION RIGHTS AGREEMENT
, 2002
To the Purchasers Named in the
Purchase Agreement referred to below
Ladies and Gentlemen:
This shall confirm that, in consideration of your purchase on or
prior to the date hereof of an aggregate of shares of Series A
Convertible Preferred Stock, $0.01 par value (the "Preferred Stock"), of Interep
National Radio Sales, Inc., a New York corporation (the "Company"), pursuant to
the Stock Purchase Agreement, dated as of , 2002, between the Company and
each of you (the "Purchase Agreement"), and as an inducement to each of you to
consummate the transactions contemplated by the Purchase Agreement, the Company
agrees with each of you, and with each subsequent holder of Restricted Stock (as
such term is defined below), as follows:
1. Certain Definitions. As used herein, the following terms shall
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have the following respective meanings:
"Affiliates" means, as to any party, a person or entity that
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controls, is controlled by or is under common control with such party
(it being understood that such term shall be interpreted in a manner
consistent with the definition of "affiliate" set forth in Rule 144
promulgated under the Securities Act).
"Commission" means the Securities and Exchange Commission, or any
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other federal agency at the time administering the Securities Act.
"Common Stock" means the Class A Common Stock of the Company, as
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constituted as of the date of this Agreement, subject to adjustment
pursuant to the provisions of Section 10 hereof.
"Conversion Shares" means shares of Common Stock issued on
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conversion of the Preferred Stock or on exercise of the Warrants.
"Default" has the meaning set forth in Section 4(c).
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"Exchange Act" means the Securities Exchange Act of 1934 or any
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similar federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
"Filing Deadline" means the close of business on the 30th day
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after the date of the Agreement.
"Preferred Stock" has the meaning given in the preamble of this
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Agreement.
"Purchasers" has the meaning given in the Purchase Agreement.
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"Registerable Securities" means Conversion Shares; provided,
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however, that Registerable Securities shall not include any Conversion
Shares which have previously been registered or which have been sold to
the public, or which have been sold in a private transaction to a
permitted transferee that does not, together with its Affiliates, hold
at least shares of Restricted Stock (on an as converted basis).
"Registration Expenses" means the expenses so described in Section
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6 hereof.
"Restricted Stock" means any shares of Preferred Stock or any
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Conversion Shares.
"Securities Act" means the Securities Act of 1933 or any similar
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federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
"Selling Expenses" means the expenses so described in Section 6
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hereof.
"Shelf Registration Statement" means a registration statement on
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Form S-3 relating to the resale of all of the Registerable Securities
and filed with the Commission pursuant to Rule 415.
"Warrants" means the Warrants of even date herewith issued to the
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Purchasers pursuant to the Purchase Agreement.
2. Restrictive Legend. Each certificate issued on exchange or
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transfer of any Preferred Stock or Conversion Shares, other than shares acquired
in a public sale or as otherwise permitted by the last paragraph of paragraph 3
hereof, shall be stamped or otherwise imprinted with a legend substantially in
the form provided in Section 6.8 of the Purchase Agreement.
3. Notice of Proposed Transfer. Prior to any proposed transfer of
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any Restricted Stock or Warrants (other than under the circumstances described
in Section 4 hereof), the holder thereof shall give written notice to the
Company of its intention to effect such transfer. Each such notice shall
describe the manner of the proposed transfer and, if reasonably requested by the
Company, shall be accompanied by an opinion of counsel reasonably satisfactory
to the Company to the effect that the proposed transfer of the Restricted Stock
or Warrants may be effected without registration under the Securities Act,
whereupon the holder of such Restricted Stock or Warrants shall be entitled to
transfer such Restricted Stock or Warrants in accordance with the terms of its
notice. Each certificate for Restricted Stock or Warrants transferred as
provided above shall bear the legend referred to in Section 2, unless (i) such
transfer is in accordance with the provisions of Rule 144 (or any other rule
permitting public sale without registration under the Securities Act) or (ii)
the opinion of counsel referred to above is to the further effect that the
transferee and any subsequent transferee (other than an Affiliate of the
Company) would be entitled to transfer such securities in a public sale without
registration under the Securities Act.
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Whenever a holder of Restricted Stock or Warrants is able to
demonstrate to the Company (and its counsel) that the provisions of Rule 144(k)
of the Securities Act are available to such holder without limitation, such
holder of Restricted Stock shall be entitled to receive from the Company,
without expense, a new certificate not bearing the restrictive legend referred
to in Section 2.
4. Registration.
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(a) The Company shall (i) cause the Shelf Registration Statement
to be filed with the Commission as soon as practicable after the date hereof,
but in no event later than the Filing Deadline, (ii) use its best efforts to
cause the Shelf Registration Statement to become effective at the earliest
possible time and (iii) in connection with the foregoing, (A) file all
pre-effective amendments to the Shelf Registration Statement as may be necessary
to cause it to become effective, (B) file, if applicable, a post-effective
amendment to the Shelf Registration Statement pursuant to Rule 430A under the
Securities Act and (C) cause all necessary filings, if any, in connection within
the registration and qualification of the Registerable Securities to be made
under the blue sky laws of such jurisdictions as are necessary to permit the
offer and sale of the Registerable Securities in such jurisdictions.
(b) The Company shall use its best efforts to cause the Shelf
Registration Statement to be effective continuously until such time as all of
the Registerable Securities have been sold or the holders of Registerable
Securities are able to effect resales of Registerable Securities pursuant to
Rule 144(k) under the Securities Act, but in no event beyond the fifth
anniversary date of this Agreement, and to comply with all applicable federal
and state securities laws. No securities to be sold for the account of the
Company shall be included in the Shelf Registration Statement.
(c) If the Shelf Registration Statement is not filed with the
Commission on or before the Filing Deadline (a "Default"), the holders of the
Preferred Stock shall be entitled to receive Additional Dividends (as provided
in the Certificate of Amendment of the Company's Restated Certificate of
Incorporation setting forth the terms of the Preferred Stock) from the Filing
Deadline until the date on which such Default is cured by the filing of the
Shelf Registration Statement with the Commission. The Company shall have no
liability for damages for any Default in addition to the Additional Dividends;
provided, however, that the holders of the Registerable Securities shall be
entitled to equitable relief, including injunction and specific performance.
(d) No holder of Registerable Securities may include any of
its Registerable Securities in the Shelf Registration Statement unless and until
such holder furnishes to the Company in writing, within 15 days after receipt of
a request therefor, the information specified in Items 507 or 508 of Regulation
S-K under the Securities Act, as applicable, for use in connection with the
Shelf Registration Statement and any prospectus included therein. No holder
shall be entitled to Additional Dividends pursuant to Section 4(c) above unless
and until such holder shall have provided all such information. Each holder
agrees to promptly furnish additional information required to be disclosed in
order to make the information previously furnished to the Company by such holder
not materially misleading.
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5. Registration Procedures. In connection with the Shelf
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Registration Statement, the Company shall, as soon as practicable:
(a) prepare (and afford counsel for the selling holders
reasonable opportunity to review and comment thereon) and file with the
Commission the Shelf Registration Statement and use its best efforts to
cause it to become and remain effective for the period referred to in
Section 4(b);
(b) prepare (and afford counsel for the selling holders
reasonable opportunity to review and comment thereon) and file with the
Commission such amendments and supplements to the Shelf Registration
Statement and the prospectus used in connection therewith as may be
necessary to keep it effective for the period referred to in Section
4(b) and to comply with the provisions of the Securities Act with
respect to the disposition of all Registerable Securities covered by
the Shelf Registration Statement in accordance with the sellers'
intended method of disposition (i.e., underwritten or not underwritten)
set forth in the Shelf Registration Statement;
(c) furnish to each seller and to each underwriter such
number of copies of the Shelf Registration Statement and the prospectus
included therein (including any preliminary prospectus) as such persons
may reasonably request in order to facilitate the public sale or other
disposition of the Registerable Securities;
(d) use its best efforts to register or qualify the
Registerable Securities under the securities or blue sky laws of such
jurisdictions as the sellers of Registerable Securities or, in the case
of an underwritten public offering, the managing underwriter, shall
reasonably request (provided that the Company shall not be required to
(i) qualify generally to do business in any jurisdiction where it would
not otherwise be required to qualify but for this paragraph (d), (ii)
subject itself to taxation in any such jurisdiction or (iii) consent to
general service of process in any jurisdiction);
(e) notify each seller and each underwriter, at any time when
a prospectus relating thereto is required to be delivered under the
Securities Act, of the happening of any event as a result of which the
prospectus contained in the Shelf Registration Statement, as then in
effect, includes an untrue statement of a material fact or omits to
state any material fact required to be stated therein or necessary to
make the statements therein not misleading in the light of the
circumstances then existing;
(f) use its best efforts (if the offering is underwritten) to
furnish, at the request of any seller or underwriter, on the date that
Registerable Securities are delivered to the underwriters for sale
pursuant to such registration: (i) an opinion dated such date of
counsel representing the Company for the purposes of such registration,
addressed to the underwriters and to such seller (if requested by a
seller), stating that such registration statement has become effective
under the Securities Act and that (A) to the best knowledge of such
counsel, no stop order suspending the effectiveness thereof has been
issued and no proceedings for that purpose have been instituted or are
pending or contemplated under the Securities Act, (B) the Shelf
Registration Statement, the related prospectus, and each amendment or
supplement thereof, comply as to form in all material
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respects with the requirements of the Securities Act and the applicable
rules and regulations of the Commission thereunder (except that such
counsel need express no opinion as to financial statements, the notes
thereto, and the financial schedules and other financial and
statistical data contained therein) and (C) to such other effects as
may reasonably be requested by counsel for the sellers or the
underwriters, and (ii) a letter dated such date from the independent
public accountants retained by the Company, addressed to the sellers
and the underwriters, stating that they are independent public
accountants within the meaning of the Securities Act and that, in the
opinion of such accountants, the financial statements of the Company
included in the Shelf Registration Statement or the prospectus, or any
amendment or supplement thereof, comply as to form in all material
respects with the applicable accounting requirements of the Securities
Act, and such letter shall additionally cover such other financial
matters with respect to the registration in respect of which such
letter is being given as such underwriters or seller may reasonably
request; and
(g) make available for inspection by each seller, any
underwriter participating in any distribution pursuant to the Shelf
Registration Statement, and any attorney, accountant or other agent
retained by such seller or underwriter, all financial and other
records, pertinent corporate documents and properties of the Company,
and cause the Company's officers, directors and employees to supply all
information reasonably requested by any such seller, underwriter,
attorney, accountant or agent in connection with the Shelf Registration
Statement.
(h) (i) cause all the Registerable Securities covered by the
Shelf Registration Statement to be listed on each national securities
exchange on which securities of the same class or series issued by the
Company are then listed, if any, if the listing of such Registerable
Securities is then permitted under the rules of such exchange, or (ii)
to the extent the securities of the same class or series are not then
listed on a national securities exchange, secure the designation and
quotation of all Registerable Securities covered by the Shelf
Registration Statement on the Nasdaq National Market.
If the offering contemplated by the Shelf Registration Statement
is an underwritten public offering, the Company shall enter into a written
agreement with the managing underwriter in such form and containing such
provisions as are customary in the securities business for such an arrangement
between major underwriters and companies of the Company's size and investment
stature; provided, however, that such agreement shall not contain any such
provision applicable to the Company which is inconsistent with the provisions
hereof. Each selling holder of Registerable Securities participating in an
underwritten public offering shall also enter into and perform its obligations
under such an agreement.
Following the effectiveness of the Shelf Registration Statement,
the Company may, at any time, suspend the effectiveness of such registration for
up to 30 days (a "Suspension Period"), by giving notice to the holders of
Registerable Securities, if the Company shall have reasonably determined that
the Company may be required to disclose any corporate development which
disclosure may have a material adverse effect on the business, assets,
properties or financial condition of the Company. The Company shall use its best
efforts to limit the duration and number of any Suspension Periods. Each holder
of Registerable Securities shall, on receipt
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of any notice from the Company of a Suspension Period, discontinue disposition
of the Registerable Securities pursuant to the Shelf Registration Statement,
prospectus contained therein, or any amendment or supplement thereof until such
holder (i) is notified in writing by the Company that the use of the applicable
prospectus may be resumed, (ii) has received copies of a supplemental or amended
prospectus, if applicable, or (iii) has received copies of any additional or
supplemental filings which are incorporated or deemed to be incorporated by
reference into such prospectus.
6. Expenses. All expenses incurred by the Company in complying with
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Section 4 hereof, including, without limitation, all registration and filing
fees, printing expenses, fees and disbursements of counsel and independent
public accountants for the Company, fees and disbursements of one special
counsel to the sellers of Registerable Securities, and fees of the National
Association of Securities Dealers, Inc., transfer taxes, fees of transfer agents
and registrars but excluding any Selling Expenses, are herein called
"Registration Expenses". All underwriting discounts and selling commissions
applicable to the sale of Registerable Securities are herein called "Selling
Expenses".
The Company shall pay all Registration Expenses in connection with
each registration pursuant to Section 4 hereof. All Selling Expenses shall be
borne by the participating sellers in proportion to the number of shares sold by
each, or by such persons other than the Company (except to the extent the
Company shall be a seller) as they may agree.
7. Indemnification.
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(a) In connection with the registration of the Registerable
Securities under the Securities Act pursuant to Section 4 hereof, the Company
shall indemnify and hold harmless each seller of such Registerable Securities
thereunder and each underwriter of Registerable Securities thereunder and each
other person, if any, who controls such seller or underwriter within the meaning
of the Securities Act, against any losses, claims, damages or liabilities, joint
or several, to which such seller or underwriter or controlling person may become
subject under the Securities Act 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 the Shelf Registration Statement under which such Registerable
Securities were registered under the Securities Act pursuant to Section 4, any
preliminary prospectus or final prospectus contained therein, or any amendment
or supplement thereof, 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 not misleading, and shall reimburse
each such seller, each such underwriter and each such controlling person 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, however, that the Company shall not be liable in any such case if and
to the extent that any such loss, claim, damage or liability arises out of or is
based upon an untrue statement or alleged untrue statement of a material fact or
omission or alleged omission so made in conformity with information furnished by
such seller, such underwriter or such controlling person in writing specifically
for use in the Shelf Registration Statement or prospectus.
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(b) In connection with the registration of the Registerable
Securities under the Securities Act pursuant to Section 4 hereof, each seller of
such Registerable Securities thereunder, severally and not jointly, shall
indemnify and hold harmless the Company and each person, if any, who controls
the Company within the meaning of the Securities Act, each officer of the
Company, each director of the Company, each underwriter, each person who
controls any underwriter within the meaning of the Securities Act, legal
counsel, and accountant against all losses, claims, damages or liabilities,
joint or several, to which the Company or such officer or director or
underwriter or controlling person or legal counsel or accountant may become
subject under the Securities Act 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 any material fact
contained in the Shelf Registration Statement under which such Registerable
Securities were registered under the Securities Act pursuant to Section 4, any
preliminary prospectus or final prospectus contained therein, or any amendment
or supplement thereof, 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 not misleading, and shall reimburse the
Company and each such officer, director, underwriter, controlling person, legal
counsel, or accountant 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, however, that such seller shall be liable
hereunder in any such case if and only to the extent that any such loss, claim,
damage or liability arises out of or is based solely upon an untrue statement or
alleged untrue statement of a material fact or omission or alleged omission made
in reliance upon and in conformity with information pertaining to such seller,
as such, furnished in writing to the Company by such seller specifically for use
in such registration statement or prospectus; and provided, further, however,
that the liability of each seller hereunder shall be limited to the proportion
of any such loss, claim, damage, liability or expense which is equal to the
proportion that the public offering price of shares sold by such seller under
such registration statement bears to the total public offering price of all
securities sold thereunder, but not to exceed the proceeds (net of underwriting
discounts and commissions) received by such seller from the sale of Registerable
Securities covered by the Shelf Registration Statement.
(c) Each party entitled to indemnification under this Section 7 (the
"Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified Party
has actual knowledge of any claim as to which indemnity may be sought, and shall
permit the Indemnifying Party to assume the defense of such claim or any
litigation resulting therefrom; provided that counsel for the Indemnifying
Party, who shall conduct the defense of such claim or any litigation resulting
therefrom, shall be approved by the Indemnified Party (whose approval shall not
unreasonably be withheld), and the Indemnified Party may participate in such
defense at such party's expense; and provided, further, that the failure of any
Indemnified Party to give notice as provided herein shall not relieve the
Indemnifying Party of its obligations under this Section 7 to the extent such
failure is not prejudicial. No Indemnifying Party, in the defense of any such
claim or litigation, shall, except with the consent of each Indemnified Party,
consent to entry of any judgment or enter into any settlement that does not
include as an unconditional term thereof the giving by the claimant or plaintiff
to such Indemnified Party of a release from all liability in respect to such
claim or litigation. Each Indemnified Party shall furnish such information
regarding itself or the
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claim in question as an Indemnifying Party may reasonably request in writing and
as shall be reasonably required in connection with defense of such claim and
litigation resulting therefrom.
(d) Notwithstanding the foregoing, any Indemnified Party shall have
the right to retain its own counsel in any such action, but the fees and
disbursements of such counsel shall be at the expense of such Indemnified Party
unless (i) the Indemnifying Party shall have failed to retain counsel for the
Indemnified Party as aforesaid or (ii) the Indemnifying Party and such
Indemnified Party shall have mutually agreed to the retention of such counsel.
It is understood that the Indemnifying Party shall not, in connection with any
action or related actions in the same jurisdiction, be liable for the fees and
disbursements of more than one separate firm qualified in such jurisdiction to
act as counsel for the Indemnified Party.
(e) If the indemnification provided for in this Section 7 is held by
a court of competent jurisdiction to be unavailable to an Indemnified Party with
respect to any loss, liability, claim, damage, or expense referred to therein,
then the Indemnifying Party, in lieu of indemnifying such Indemnified Party
hereunder, shall contribute to the amount paid or payable by such Indemnified
Party as a result of such loss, liability, claim, damage, or expense in such
proportion as is appropriate to reflect the relative fault of the Indemnifying
Party on the one hand and of the Indemnified Party on the other in connection
with the statements or omissions that resulted in such loss, liability, claim,
damage, or expense as well as any other relevant equitable considerations. The
relative fault of the Indemnifying Party and of the Indemnified Party shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Indemnifying Party or by
the Indemnified Party and the parties' relative intent, knowledge, access to
information, and opportunity to correct or prevent such statement or omission.
(f) Notwithstanding the foregoing, to the extent that the provisions
on indemnification and contribution contained in the underwriting agreement
entered into in connection with an underwritten public offering are in conflict
with the foregoing provisions, the provisions in the underwriting agreement
shall control.
8. Changes in Common Stock. If, and as often as, there are any
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changes in the Common Stock by way of stock split, stock dividend, combination
or reclassification, or through merger, consolidation, reorganization or
recapitalization, or by any other means, appropriate adjustment shall be made in
the provisions hereof, as may be required, so that the rights and privileges
granted hereby shall continue with respect to the Registerable Securities as so
changed.
9. Rule 144 Reporting. The Company agrees to use its best efforts
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to:
(a) make and keep public information available, as those terms are
understood and defined in Rule 144 under the Securities Act, at all times from
and after 90 days following the date it is first required by law to do so;
(b) file with the Commission in a timely manner all reports and
other documents as the Commission may prescribe under Section 13(a) or 15(d) of
the Exchange Act
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at any time after the Company has become subject to such reporting requirements
of the Exchange Act; and
(c) so long as a holder of Registerable Securities owns any
Registerable Securities, furnish to such holder forthwith upon written request
(i) a written statement by the Company as to its compliance with the reporting
requirements of Rule 144 (at any time from and after 90 days following the date
it first becomes subject to such reporting requirements), and of the Securities
Act and the Exchange Act (at any time after it has become subject to such
reporting requirements), (ii) a copy of the most recent annual or quarterly
report of the Company and (iii) such other reports and documents so filed as a
holder may reasonably request to avail itself of any rule or regulation of the
Commission allowing such holder to sell any such Registerable Securities without
registration.
10. Termination of Registration Rights. The right of any holder of
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Registerable Securities to request registration or inclusion in any registration
pursuant to Section 4 hereof shall terminate upon the earliest to occur of (i)
such time as all Registrable Securities held by such holder have been sold by
such holder, (ii) such time as all Registerable Securities held or entitled to
be held upon conversion by such holder may immediately be sold under Rule 144(k)
or (iii) the closing of an acquisition or of another transaction in which the
Registerable Securities are exchanged for publicly traded stock of another
entity.
11. Miscellaneous.
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(a) Except as otherwise expressly provided herein, all covenants and
agreements contained in this Agreement by or on behalf of any of the parties
hereto shall bind and inure to the benefit of the respective successors and
permitted assigns. The registration rights conferred herein on the holders of
Registerable Securities shall inure to the benefit of any transferee (provided
that any such transferee shall, together with its Affiliates, hold at least
shares of Restricted Stock, on an as-converted basis) for so long as the
certificates representing the Registerable Securities shall be required to bear
the legend specified in Section 2 hereof.
(b) All notices, requests, consents and other communications
hereunder shall be in writing and shall be delivered personally or by nationally
recognized air courier, or mailed by first class registered mail, postage
prepaid, addressed as follows:
if to the Company, to it at the address specified in the Purchase
Agreement;
if to any holder of Restricted Stock, at its address as set forth in
Exhibit A to the Purchase Agreement;
if to any subsequent holder of Restricted Stock, to it at such
address as may have been furnished to the Company in writing by such
holder;
or, in any case, at such other address or addresses as shall have
been furnished in writing to the Company (in the case of a holder of
Restricted Stock) or to the holders of Restricted Stock (in the case of the
Company).
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(c) This Agreement shall in all respects be governed by and construed
in accordance with the laws of the State of New York applicable to agreements
made and fully to be performed in such state, without giving effect to conflicts
of law principles.
(d) This Agreement constitutes the entire agreement of the parties
with respect to the subject matter hereof and may not be modified or amended
except in writing signed by the Company and the holders of a majority in
interest of the Preferred Stock (determined on an as-converted basis).
(e) This Agreement may be executed in two or more counterparts, each
of which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
Please indicate your acceptance of the foregoing, by signing and
returning the enclosed counterpart of this letter, whereupon this letter (herein
sometimes called "this Agreement") shall be a binding agreement between the
Company and you.
INTEREP NATIONAL RADIO SALES, INC.
By
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Xxxxx X. Guild
Chairman of the Board
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