Exhibit 4.2
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REGISTRATION RIGHTS AGREEMENT
Dated as of December 20, 1996
by and among
TV FILME, INC.,
BEAR, ▇▇▇▇▇▇▇ & CO. INC.,
BT SECURITIES CORPORATION,
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
and
ALEX. ▇▇▇▇▇ & SONS INCORPORATED
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This Registration Rights Agreement (this "Agreement") is made and entered
into as of December 20, 1996 by and among TV Filme, Inc., a Delaware corporation
("TV Filme"), Bear, ▇▇▇▇▇▇▇ & Co. Inc. ("Bear ▇▇▇▇▇▇▇"), BT Securities
Corporation ("BT Securities"), ▇.▇. ▇▇▇▇▇▇ Securities Inc. ("▇.▇. ▇▇▇▇▇▇") and
▇▇▇▇. ▇▇▇▇▇ & Sons Incorporated ("Alex. ▇▇▇▇▇"). Bear ▇▇▇▇▇▇▇, ▇▇ Securities,
▇.▇. ▇▇▇▇▇▇ and ▇▇▇▇. ▇▇▇▇▇ are hereafter referred to collectively as the
"Initial Purchasers".
Pursuant to the Purchase Agreement, dated December 16, 1996 (the "Purchase
Agreement"), by and among TV Filme and the Initial Purchasers, the Initial
Purchasers have agreed to purchase $140,000,000 aggregate principal amount of TV
Filme's 12 7/8% Senior Notes due 2004 (the "Initial Notes").
In order to induce the Initial Purchasers to enter into the Purchase
Agreement and purchase the Initial Notes, TV Filme has agreed to provide the
registration rights set forth in this Agreement. The execution and delivery of
this Agreement is a condition to the obligations of the Initial Purchasers set
forth in Section 3 of the Purchase Agreement.
The parties hereby agree as follows:
SECTION 1. DEFINITIONS
As used in this Agreement, the following capitalized terms shall have the
following meanings:
Act: The Securities Act of 1933, as amended.
Broker-Dealer: Any broker or dealer registered under the Exchange Act.
Business Day: Any day except a Saturday, Sunday or other day in the City
of New York on which banks are authorized to close or a federal holiday,
consisting, in each case, of the time period from 12:01 a.m. through 12:00
midnight Eastern time.
Closing Date: The date of this Agreement.
Commission: The Securities and Exchange Commission.
Consummate: An Exchange Offer shall be deemed "Consummated" for purposes
of this Agreement upon the occurrence of (i) the filing and effectiveness under
the Act of the Exchange Offer Registration Statement relating to the Exchange
Notes to be issued in the Exchange Offer, (ii) the maintenance of such
Registration Statement continuously effective and the keeping of the Exchange
Offer open for a period not less than the minimum period required pursuant to
Section 3(b) hereof, and (iii) the delivery by TV Filme to the Trustee under the
Indenture of Exchange Notes in the same aggregate principal amount as the
aggregate principal amount of Initial Notes that were validly tendered by
Holders thereof pursuant to the Exchange Offer.
Damages Payment Date: With respect to the Initial Notes, each Interest
Payment Date.
Effectiveness Target Date: As defined in Section 5 hereof.
Exchange Act: The Securities Exchange Act of 1934, as amended.
Exchange Notes: TV Filme's 12 7/8% Senior Notes due 2004 to be issued
pursuant to the Indenture in the Exchange Offer or pursuant to a Shelf
Registration Statement, in each case in exchange for Initial Notes.
Exchange Offer: The registration by TV Filme under the Act of the Exchange
Notes pursuant to the Exchange Offer Registration Statement pursuant to which TV
Filme offers the Holders of all outstanding Transfer Restricted Securities the
opportunity to exchange all such outstanding Transfer Restricted Securities held
by such
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Holders for Exchange Notes in an aggregate principal amount equal to the
aggregate principal amount of the Transfer Restricted Securities validly
tendered in such exchange offer by such Holders.
Exchange Offer Registration Statement: The Registration Statement relating
to the Exchange Offer, including the related Prospectus.
Exempt Resales: The transactions in which the Initial Purchasers propose
to sell the Initial Notes to (i) certain "qualified institutional buyers," as
such term is defined in Rule 144A under the Act in reliance upon the exemption
from the registration requirements of the Act provided by Rule 144A under the
Act, (ii) certain institutional "accredited investors," as such term is defined
in Rule 501(a)(1), (2), (3) and (7) under the Act ("Accredited Institutions") in
a private placement exempt from the registration requirements under the Act or
(iii) non-U.S. Persons in reliance upon Regulation S under the Act.
Holders: As defined in Section 2(b) hereof.
Indenture: The Indenture, dated as of December 20, 1996, between TV Filme
and IBJ ▇▇▇▇▇▇▇▇ Bank & Trust Company, as trustee (the "Trustee"), pursuant to
which the Securities are to be issued, as such Indenture is amended or
supplemented from time to time in accordance with the terms thereof.
Initial Notes: As defined in the preamble hereto.
Initial Purchasers: As defined in the preamble hereto.
Interest Payment Date: As defined in the Indenture and the Securities.
Liquidated Damages: As defined in Section 5 hereof.
NASD: National Association of Securities Dealers, Inc.
Person: An individual, partnership, corporation, limited liability
company, joint venture, association, joint stock company, trust or other
organization whether or not a legal entity, or a government or agency or
political subdivision thereof.
Prospectus: The prospectus included in a Registration Statement
(including, without limitation, any prospectus subject to completion and a
prospectus that includes any information previously omitted from a prospectus
filed as part of an effective Registration Statement in reliance upon Rule 430A
promulgated under the Act), as amended or supplemented by any prospectus
supplement and by all other amendments thereto, including post-effective
amendments, and all material incorporated by reference into such Prospectus.
Purchase Agreement: As defined in the preamble hereto.
Record Holder: With respect to any Damages Payment Date relating to the
Securities, each Person who is a Holder of the Securities on the record date
with respect to the Interest Payment Date on which such Damages Payment Date
shall occur.
Registration Default: As defined in Section 5 hereof.
Registration Statement: Any registration statement of TV Filme relating to
(a) an offering of Exchange Notes pursuant to an Exchange Offer or (b) the
registration for resale of Transfer Restricted Securities pursuant to the Shelf
Registration Statement, which is filed pursuant to the provisions of this
Agreement, in each case, including the Prospectus included therein, all
amendments and supplements thereto (including post-effective amendments) and all
exhibits and material incorporated by reference therein.
Securities: The Initial Notes and the Exchange Notes.
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Shelf Filing Deadline: As defined in Section 4 hereof.
Shelf Registration: A registration effected by the filing of a Shelf
Registration Statement pursuant to Section 4 hereof.
Shelf Registration Statement: As defined in Section 4 hereof.
TIA: The Trust Indenture Act of 1939, as amended (15 U.S.C. Section
77aaa-77bbbb) as in effect on the date of the Indenture.
Transfer Restricted Securities: Each of the Securities, upon original
issuance thereof, until the earliest to occur, with respect to a particular
Security, of (a) the date on which such Security is exchanged by a Holder other
than a Broker-Dealer in the Exchange Offer and entitled to be resold to the
public by the Holder thereof without complying with the prospectus delivery
requirements of the Act, (b) following the exchange by a Broker-Dealer in the
Exchange Offer of an Initial Note for an Exchange Note, the date on which the
Exchange Note is sold to a purchaser who receives from such Broker-Dealer on or
prior to the date of such sale a copy of the Prospectus contained in the
Exchange Offer Registration Statement, (c) the date on which such Security has
been effectively registered under the Act and disposed of in accordance with a
Shelf Registration Statement, (d) the date on which such Security may be
distributed to the public pursuant to Rule 144 under the Act or by a
Broker-Dealer pursuant to the "Plan of Distribution" contemplated by the
Exchange Offer Registration Statement (including delivery of the Prospectus
contained therein) or (e) the date on which such Security ceases to be
outstanding.
Underwritten Registration or Underwritten Offering: A registration on a
Shelf Registration Statement in which securities of TV Filme are sold to an
underwriter for re-offering to the public.
SECTION 2. SECURITIES SUBJECT TO THIS AGREEMENT
(a) Transfer Restricted Securities. The Securities entitled to the
benefits of this Agreement are the Transfer Restricted Securities.
(b) Holders of Transfer Restricted Securities. A Person is deemed to be a
holder of Transfer Restricted Securities (each, a "Holder") whenever such Person
owns Transfer Restricted Securities.
SECTION 3. REGISTERED EXCHANGE OFFER
(a) Unless the Exchange Offer shall not be permissible under applicable
law or Commission policy (so long as the procedures set forth in Section 6(a)
below are being or have been complied with), TV Filme shall (i) use its best
efforts to cause to be filed with the Commission, as soon as practicable but in
no event later than 60 days after the Closing Date, the Exchange Offer
Registration Statement, (ii) use its best efforts to cause such Exchange Offer
Registration Statement to be declared effective by the Commission at the
earliest practicable time, but not later than 120 days after the Closing Date,
(iii) in connection with the foregoing, file (A) all pre-effective amendments to
such Exchange Offer Registration Statement as may be necessary in order to cause
such Exchange Offer Registration Statement to become effective, (B) if
applicable, a post-effective amendment to such Exchange Offer Registration
Statement pursuant to Rule 430A under the Act and (C) cause all necessary
filings in connection with the registration and qualification of the Exchange
Notes to be made under the Blue Sky laws of such jurisdictions as are necessary
to permit Consummation of the Exchange Offer, except as would subject TV Filme
to service of process or general taxation where it is not currently subject, and
(iv) upon the effectiveness of such Exchange Offer Registration Statement,
commence and Consummate the Exchange Offer. The Exchange Offer shall be on an
appropriate form permitting registration of the Exchange Notes to be offered in
exchange for the Initial Notes and to permit resales of Securities held by
Broker-Dealers as contemplated by Section 3(c) below. If, after such Exchange
Offer Registration Statement initially is declared effective by the Commission,
the Exchange Offer or the issuance of Exchange Notes thereunder or the sale of
Transfer Restricted Securities pursuant thereto as contemplated
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by Section 3(c) below is interfered with by any stop order, injunction or other
order or requirement of the Commission or any other governmental agency or
court, such Exchange Offer Registration Statement shall be deemed not to have
become effective for purposes of this Agreement during the period that such stop
order, injunction or other similar order or requirement shall remain in effect.
(b) TV Filme shall use its best efforts to cause the Exchange Offer
Registration Statement to be effective continuously and shall keep the Exchange
Offer open for a period of not less than the minimum period required under
applicable federal and state securities laws to Consummate the Exchange Offer;
provided, however, that in no event shall such period be less than 20 Business
Days. TV Filme shall cause the Exchange Offer to comply with all applicable
federal and state securities laws. No securities other than the Securities shall
be included in the Exchange Offer Registration Statement. TV Filme shall use its
reasonable best efforts to cause the Exchange Offer to be Consummated on the
earliest practicable date after the Exchange Offer Registration Statement has
become effective, but not later than 30 days after the Exchange Offer
Registration Statement has become effective.
(c) TV Filme shall indicate in a "Plan of Distribution" section contained
in the Prospectus included in the Exchange Offer Registration Statement that any
Broker-Dealer who holds Initial Notes that are Transfer Restricted Securities
and that were acquired for its own account as a result of market-making
activities or other trading activities (other than Transfer Restricted
Securities acquired directly from TV Filme), may exchange such Initial Notes
pursuant to the Exchange Offer; provided, however, such Broker-Dealer may be
deemed to be an "underwriter" within the meaning of the Act and must, therefore,
deliver a prospectus meeting the requirements of the Act in connection with any
resales of the Exchange Notes received by such Broker-Dealer in the Exchange
Offer, which prospectus delivery requirement may be satisfied by the delivery by
such Broker-Dealer of the Prospectus contained in the Exchange Offer
Registration Statement. Such "Plan of Distribution" section shall also contain
all other information with respect to such resales by Broker-Dealers that the
Commission may require in order to permit such resales pursuant thereto, but
such "Plan of Distribution" shall not name any such Broker-Dealer or disclose
the amount of Securities held by any such Broker-Dealer except to the extent
required by the Commission as a result of a change in policy after the date of
this Agreement.
TV Filme shall use its best efforts to keep the Exchange Offer
Registration Statement continuously effective, supplemented and amended as
required by the provisions of Section 6(c) below to the extent necessary to
ensure that it is available for resales of Securities acquired by Broker-Dealers
for their own accounts as a result of market-making activities or other trading
activities, and to ensure that it conforms with the requirements of this
Agreement, the Act and the policies, rules and regulations of the Commission as
announced from time to time, for a period of twelve months from the date on
which the Exchange Offer Registration Statement is declared effective or such
longer period, if extended pursuant to the provisions of Section 6(d) hereof.
TV Filme shall provide sufficient copies of the latest version of such
Prospectus to Broker-Dealers promptly upon request at any time during such
period in order to facilitate such resales.
SECTION 4. SHELF REGISTRATION
(a) Shelf Registration. If (i) TV Filme is not permitted to file an
Exchange Offer Registration Statement or consummate the Exchange Offer because
the Exchange Offer is not permitted by applicable law or Commission policy
(after the procedures set forth in Section 6(a) below have been complied with)
or (ii) any Holder of Transfer Restricted Securities shall notify TV Filme on or
prior to the 20th Business Day following the consummation of the Exchange Offer
that (A) such Holder is prohibited by a change in applicable law or Commission
policy from participating in the Exchange Offer, or (B) such Holder may not
resell the Exchange Notes to be acquired by it in the Exchange Offer to the
public without delivering a prospectus and that the Prospectus contained in the
Exchange Offer Registration Statement is not appropriate or available for such
resales by such Holder, or (C) that such Holder is a Broker-Dealer and holds
Initial Notes acquired directly from TV Filme or an affiliate of TV Filme, then
TV Filme shall:
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(x) use its best efforts to cause to be filed a shelf registration
statement pursuant to Rule 415 under the Act, which may be an amendment to
the Exchange Offer Registration Statement (in either event, the "Shelf
Registration Statement"), on or prior to the 60th day after the obligation
to file such Shelf Registration Statement arises (and in any event within
120 days after the Closing Date) (the "Shelf Filing Deadline"), which
Shelf Registration Statement shall provide for resales of all Transfer
Restricted Securities, the Holders of which shall have provided the
information required pursuant to Section 4(b) hereof; and
(y) use its best efforts to cause such Shelf Registration Statement
to be declared effective by the Commission on or before the 120th day
after the obligation to file such Shelf Registration Statement arises.
TV Filme shall use its best efforts to keep such Shelf Registration Statement
continuously effective, supplemented and amended as required by the provisions
of Sections 6(b) and (c) hereof to the extent necessary to ensure that it is
available for resales of Securities by the Holders of Transfer Restricted
Securities entitled to the benefit of this Section 4(a), and to ensure that it
conforms with the requirements of this Agreement, the Act and the policies,
rules and regulations of the Commission as announced from time to time, for a
period of three years following the Closing Date (or such longer period, if
extended pursuant to the provisions of Section 6(d) hereof), or such shorter
period ending when either (1) all Transfer Restricted Securities covered by the
Shelf Registration Statement have been sold in the manner set forth and as
contemplated in the Shelf Registration Statement or (2) there cease to be
outstanding any Transfer Restricted Securities.
(b) Provision by Holders of Certain Information in Connection with the
Shelf Registration Statement. No Holder of Transfer Restricted Securities may
include any of its Transfer Restricted Securities in any Shelf Registration
Statement pursuant to this Agreement unless and until such Holder furnishes to
TV Filme in writing, within 10 Business Days after receipt of a written request
therefor, such information specified in Item 507 and Item 508, as applicable, of
Regulation S-K under the Act or any other information required by the Act or
applicable state securities laws for use in connection with any Shelf
Registration Statement or Prospectus or preliminary Prospectus included therein.
Each Holder as to which any Shelf Registration Statement is being effected
agrees to furnish promptly to TV Filme all information required to be disclosed
in order to make the information previously furnished to TV Filme by such Holder
not materially misleading. No Holder of Transfer Restricted Securities shall be
entitled to Liquidated Damages pursuant to Section 5 hereof unless and until
such Holder shall have used its best efforts to provide all such reasonably
requested information.
SECTION 5. LIQUIDATED DAMAGES
If (i) any of the Registration Statements required by this Agreement is
not filed with the Commission on or prior to the date specified for such filing
in this Agreement, (ii) any of such Registration Statements has not been
declared effective by the Commission on or prior to the date specified for such
effectiveness in this Agreement (the "Effectiveness Target Date"), (iii) TV
Filme fails to commence, accept tenders and, in the case of accepted tenders,
issue Exchange Notes, under the Exchange Offer within 30 Business Days after the
Effectiveness Target Date with respect to the Exchange Offer Registration
Statement or (iv) any Registration Statement required by this Agreement is filed
and declared effective but thereafter ceases to be effective or fails to be
usable for its intended purpose without being succeeded immediately by a
post-effective amendment to such Registration Statement that cures such failure
and that is itself immediately declared effective (each such event referred to
in clauses (i) through (iv), a "Registration Default"), TV Filme hereby agrees
to pay liquidated damages ("Liquidated Damages") to each Holder of Transfer
Restricted Securities on each Interest Payment Date following the occurrence of
a Registration Default. Liquidated Damages shall accrue from and after the date
of each Registration Default, and continuing thereafter until such Registration
Default has been cured or waived, in an amount equal to $.05 per week per $1,000
principal amount of the Transfer Restricted Securities during the first 90-day
period immediately following the occurrence of the first such Registration
Default, which amount shall increase by an additional $.05 per week per $1,000
principal amount of the Transfer Restricted Securities during each subsequent
90-day period until all Registration Defaults have been cured, up to a maximum
amount of Liquidated Damages of $.20 per week per $1,000 principal amount of the
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Transfer Restricted Securities. TV Filme shall notify the Trustee within one
Business Day after (i) each and every Registration Default and (ii) the date
such Registration Default has been so cured. All accrued Liquidated Damages
shall be paid to Record Holders by TV Filme in New York, New York by wire
transfer of immediately available funds or by federal funds check on each
Interest Payment Date following the occurrence of a Registration Default as
provided in the Indenture. Following the cure or waiver of all Registration
Defaults relating to any particular Transfer Restricted Securities, the accrual
of Liquidated Damages with respect to such Transfer Restricted Securities will
cease.
All obligations of TV Filme set forth in the preceding paragraph that are
outstanding with respect to any Transfer Restricted Security at the time such
security ceases to be a Transfer Restricted Security shall survive until such
time as all such obligations with respect to such security shall have been
satisfied in full.
SECTION 6. REGISTRATION PROCEDURES
(a) Exchange Offer Registration Statement. In connection with the Exchange
Offer, TV Filme shall comply with all of the provisions of Section 6(c) below,
shall use its best efforts to effect such Exchange Offer to permit the sale of
Transfer Restricted Securities being sold in accordance with the intended method
or methods of distribution thereof, and shall comply with all of the following
provisions:
(i) If in the reasonable opinion of counsel to TV Filme there is a
question as to whether the Exchange Offer is permitted by applicable law,
TV Filme hereby agrees to seek a no-action letter or other favorable
decision from the Commission, including oral advice from the staff of the
Commission, allowing TV Filme to Consummate an Exchange Offer for such
Initial Notes. TV Filme hereby agrees to pursue the issuance of such a
decision to the Commission staff level but shall not be required to take
commercially unreasonable action to effect a change of Commission policy.
In connection with the foregoing, TV Filme hereby agrees, however, to (A)
participate in telephonic conferences with the Commission, (B) deliver to
the Commission staff an analysis prepared by counsel to TV Filme setting
forth the legal bases, if any, upon which such counsel has concluded that
such an Exchange Offer should be permitted and (C) diligently pursue a
resolution of such submission (which need not be favorable) by the
Commission staff.
(ii) As a condition to its participation in the Exchange Offer
pursuant to the terms of this Agreement, each Holder of Transfer
Restricted Securities shall furnish, upon the request of TV Filme, prior
to the Consummation thereof, a written representation to TV Filme (which
may be contained in the letter of transmittal contemplated by the Exchange
Offer Registration Statement) to the effect that (A) it is not an
affiliate of TV Filme, (B) it is not engaged in, and does not intend to
engage in, and has no arrangement or understanding with any Person to
participate in, a distribution of the Exchange Notes to be issued in the
Exchange Offer and (C) it is acquiring the Exchange Notes in its ordinary
course of business. Each Holder hereby acknowledges and agrees that any
Broker-Dealer who acquired Initial Notes directly from TV Filme or any
affiliate of TV Filme and any such Holder intending to use the Exchange
Offer to participate in a distribution of the securities to be acquired in
the Exchange Offer (1) could not under Commission policy as in effect on
the date of this Agreement rely on the position of the Commission
enunciated in ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and Co., Inc. (available June 5, 1991) and
Exxon Capital Holdings Corporation (available May 13, 1988), as
interpreted in the Commission's letter to Shearman & Sterling, dated July
2, 1993, and similar no-action letters (including any no-action letter
obtained pursuant to clause (i) above), and (2) must comply with the
registration and prospectus delivery requirements of the Act in connection
with a secondary resale transaction and that such a secondary resale
transaction should be covered by an effective registration statement
containing the selling security holder information required by Item 507 or
508, as applicable, of Regulation S-K or any other information required by
the Act or applicable state securities laws if the resales are of Exchange
Notes obtained by such Holder in exchange for Initial Notes acquired by
such Holders directly from TV Filme.
(iii) Prior to effectiveness of the Exchange Offer Registration
Statement, TV Filme shall provide a supplemental letter to the Commission
(A) stating that TV Filme is registering the Exchange Offer in reliance on
the position of the Commission enunciated in Exxon Capital Holdings
Corporation (available May 13, 1988),
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and Co., Inc. (available June 5, 1991) and, if applicable,
any no-action letter obtained pursuant to clause (i) above, (B) including
a representation that TV Filme has not entered into any arrangement or
understanding with any Person to distribute the Exchange Notes to be
received in the Exchange Offer and that, to the best of TV Filme's
information and belief, each Holder participating in the Exchange Offer is
acquiring the Exchange Notes in its ordinary course of business and has no
arrangement or understanding with any Person to participate in the
distribution of the Exchange Notes received in the Exchange Offer.
(b) Shelf Registration Statement. In connection with the Shelf
Registration Statement, TV Filme shall comply with all the provisions of Section
6(c) below and shall use its best efforts to effect such registration to permit
the sale of the Transfer Restricted Securities being sold in accordance with the
intended method or methods of distribution thereof, and pursuant thereto TV
Filme will as expeditiously as practicable prepare and file with the Commission
a Registration Statement relating to the registration on any appropriate form
under the Act, which form shall be available for the sale of the Transfer
Restricted Securities in accordance with the intended method or methods of
distribution thereof.
(c) General Provisions. In connection with any Registration Statement and
any related Prospectus required by this Agreement to permit the sale or resale
of Transfer Restricted Securities (including, without limitation, any
Registration Statement and the related Prospectus required to permit resales of
Securities by Broker-Dealers), TV Filme shall:
(i) prepare and file with the Commission such Registration Statement
and use its best efforts to cause such Registration Statement to become
effective and keep such Registration Statement continuously effective and
provide all requisite financial statements for the period specified in
Section 3 or 4 of this Agreement, as applicable; upon the occurrence of
any event that would cause any such Registration Statement or the
Prospectus contained therein (A) to contain a material misstatement or
omission or (B) not to be effective and usable for resale of Transfer
Restricted Securities during the period required by this Agreement, TV
Filme shall file promptly an appropriate amendment to such Registration
Statement, in the case of clause (A), correcting any such material
misstatement or omission, and, in the case of either clause (A) or (B),
use its best efforts to cause such amendment to be declared effective and
such Registration Statement and the related Prospectus to become usable
for their intended purpose(s) as soon as reasonably practicable
thereafter;
(ii) prepare and file with the Commission such amendments and
post-effective amendments to the Registration Statement as may be
necessary to keep the Registration Statement continuously effective for
the applicable period set forth in Section 3 or 4 of the Agreement, as
applicable, or such shorter period as will terminate when all Transfer
Restricted Securities covered by such Registration Statement have been
exchanged or sold or until such Transfer Restricted Securities no longer
constitute Transfer Restricted Securities or are no longer outstanding;
cause the Prospectus to be supplemented by any required Prospectus
supplement, and as so supplemented to be filed pursuant to Rule 424 under
the Act (or any similar provisions then in force), and to comply fully
with the applicable provisions of Rules 424 and 430A under the Act (or any
similar provisions then in force) in a timely manner; and comply with the
provisions of the Act, the Exchange Act and the rules and regulations of
the Commission promulgated thereunder applicable to it with respect to the
disposition of all securities covered by such Registration Statement
during the applicable period in accordance with the intended method or
methods of distribution by the sellers thereof set forth in such
Registration Statement or supplement to the Prospectus;
(iii) promptly advise the underwriter(s), if any, and selling
Holders and, if requested by such Persons, to confirm such advice in
writing, (A) when the Prospectus or any Prospectus supplement or
post-effective amendment has been filed, and, with respect to any
Registration Statement or any post-effective amendment thereto, when the
same has become effective, (B) of any request by the Commission for
amendments to the Registration Statement or amendments or supplements to
the Prospectus or for additional information relating thereto, (C) of the
issuance by the Commission of any stop order suspending the effectiveness
of the Registration Statement under the Act or of the suspension by any
state securities commission of the qualification of the Transfer
Restricted Securities for offering or sale in any jurisdiction, or the
initiation of any proceeding for any of the preceding purposes or (D) of
the existence of any fact or the
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happening of any event that makes any statement of a material fact made in
the Registration Statement, the Prospectus, any amendment or supplement
thereto, or any document incorporated by reference therein untrue, or that
requires the making of any additions to or changes in the Registration
Statement or the Prospectus in order to make the statements therein not
misleading (in the case of the Prospectus, in the light of the
circumstances under which they were made). If at any time the Commission
shall issue any stop order suspending the effectiveness of the
Registration Statement, or any state securities commission or other
regulatory authority shall issue an order suspending the qualification or
exemption from qualification of the Transfer Restricted Securities under
state securities or Blue Sky laws, TV Filme shall use its reasonable best
efforts to obtain the withdrawal or lifting of such order at the earliest
practicable time;
(iv) furnish to the Initial Purchasers, each selling Holder named in
any Registration Statement or Prospectus and each of the underwriter(s) in
connection with such sale, if any, before filing with the Commission,
copies of any Registration Statement or any Prospectus included therein or
any amendments or supplements to any such Registration Statement or
Prospectus if requested by such Person, which documents will be subject to
the review of such Holders and underwriter(s) in connection with such
sale, if any, for a period of at least five Business Days, and TV Filme
will not file any such Registration Statement or Prospectus or any
amendment or supplement to any such Registration Statement or Prospectus
if requested by such Person to which a selling Holder of Transfer
Restricted Securities covered by such Registration Statement or the
underwriter(s) in connection with such sale, if any, shall reasonably
object within five Business Days after the receipt thereof. A selling
Holder or underwriter, if any, shall be deemed to have reasonably objected
to such filing if such Registration Statement, amendment, Prospectus or
supplement, as applicable, as proposed to be filed, contains a material
misstatement or omission or fails to comply with the applicable
requirements of the Act;
(v) promptly prior to the filing of any document that is to be
incorporated by reference into a Registration Statement or Prospectus, if
requested by any selling Holder or the underwriter(s), if any, within five
Business Days after receipt of notification thereof from TV Filme, provide
copies of such document to the selling Holders and to the underwriter(s),
if any, make TV Filme's representatives available for discussion of such
document and other customary due diligence matters, and include such
information in such document prior to the filing thereof as such selling
Holders or underwriter(s), if any, reasonably may request;
(vi) make available at reasonable times for inspection by the
selling Holders, any underwriter participating in any disposition pursuant
to such Registration Statement, and any attorney or accountant retained by
such selling Holders or any underwriter, all financial and other records,
pertinent corporate documents and properties of TV Filme and cause TV
Filme' officers, directors and employees to supply all information
reasonably requested by any such Holder, underwriter, attorney or
accountant in connection with such Registration Statement subsequent to
the filing thereof and prior to its effectiveness;
(vii) if requested by any selling Holders or any underwriter in
connection with such sale, if any, promptly include in any Registration
Statement or Prospectus, pursuant to a supplement or post-effective
amendment if necessary, such information as such selling Holders and such
underwriter, if any, may reasonably request to have included therein,
including, without limitation, information relating to the "Plan of
Distribution" of the Transfer Restricted Securities, information with
respect to the principal amount of Transfer Restricted Securities being
sold to such underwriter(s), the purchase price being paid therefor and
any other terms of the offering of the Transfer Restricted Securities to
be sold in such offering; and make all required filings of such Prospectus
supplement or post-effective amendment as soon as practicable after TV
Filme is notified of the matters to be included in such Prospectus
supplement or post-effective amendment;
(viii) use its best efforts to cause the Transfer Restricted
Securities covered by the Registration Statement to be rated with the
appropriate rating agencies, if so requested by the Holders of a majority
in aggregate principal amount of Notes covered thereby or the
underwriter(s), if any;
8
(ix) furnish to each selling Holder and each underwriter, if any,
without charge, at least one copy of the Registration Statement, as first
filed with the Commission, and of each amendment thereto, including all
documents incorporated by reference therein and all exhibits thereto, if
so requested by such Person;
(x) deliver to each selling Holder and each of the underwriter(s) in
connection with such sale, if any, without charge, as many copies of the
Prospectus (including each preliminary prospectus) and any amendment or
supplement thereto as such Persons reasonably may request; TV Filme hereby
consents to the use of the Prospectus and any amendment or supplement
thereto by each of the selling Holders and each of the underwriter(s), if
any, in connection with the offering and the sale of the Transfer
Restricted Securities covered by the Prospectus or any amendment or
supplement thereto;
(xi) in the case of the Shelf Registration Statement, enter into
such agreements (including an underwriting agreement), and make such
representations and warranties, and take all such other actions in
connection therewith in order to expedite or facilitate the disposition of
the Transfer Restricted Securities pursuant to such Shelf Registration
Statement contemplated by this Agreement, all to such extent as may be
reasonably acceptable to TV Filme and reasonably requested by the Initial
Purchasers or by any Holder of Transfer Restricted Securities or any
underwriter in connection with any sale or resale pursuant to such Shelf
Registration Statement contemplated by this Agreement; and whether or not
an underwriting agreement is entered into and whether or not the
registration is an Underwritten Registration, TV Filme shall:
(A) furnish to each selling Holder and each underwriter, if
applicable, in such substance and scope as they may reasonably
request and as are customarily made by issuers to underwriters in
primary underwritten offerings, upon the effectiveness of the Shelf
Registration Statement or, in the case of an Underwritten
Registration, on the closing date of any underwriting (and, in the
case of clause (3) below, on the date of execution of the
underwriting agreement):
(1) certificates, dated the delivery date thereof,
signed by the president, chief operating officer and principal
financial officer of TV Filme, confirming, as the date
thereof, the matters set forth in paragraphs (a), (b), (c) and
(d) of Section 8 of the Purchase Agreement and such other
matters as such parties may reasonably request;
(2) opinions, dated the delivery date thereof, of
counsel for TV Filme, covering such matters as such parties
may reasonably request, and in any event including a statement
to the effect that such counsel has participated in
conferences with officers, directors and representatives of TV
Filme and its independent auditors at which the contents of
the Shelf Registration Statement, the related Prospectus and
related matters were discussed, although such counsel has not
independently verified the accuracy or completeness of
statements in the Shelf Registration Statement and the related
Prospectus; and that such counsel advises that, on the basis
of the foregoing (relying as to materiality to a large extent
upon facts provided to such counsel by officers and other
representatives of TV Filme and without independent check or
verification), nothing came to such counsel's attention in the
course of rendering such services that caused such counsel to
believe that the Shelf Registration Statement, at the time the
Shelf Registration Statement or any post-effective amendment
thereto became effective, contained an untrue statement of a
material fact or omitted to state a material fact required to
be stated therein or necessary to make the statements therein
not misleading, or that the Prospectus contained in the Shelf
Registration Statement as of its date and, in the case of the
opinion dated the closing date of any underwriting, as of such
closing date, contained an untrue statement of a material fact
or omitted 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. Without limiting
the foregoing, such counsel may state further that such
counsel makes no comment with respect to, assumes no
responsibility for, and has not independently verified, the
accuracy, completeness or fairness of the financial statements
and supporting notes and schedules and other financial and
statistical data contained in the Shelf Registration Statement
or the related Prospectus; and
9
(3) a customary comfort letter or letters, dated the
delivery date or dates thereof, from TV Filme's independent
auditors, in the customary form and covering matters of the
type customarily covered in comfort letters by underwriters in
connection with primary underwritten offerings;
(B) set forth in full or incorporate by reference in the
underwriting agreement, if any, the indemnification provisions and
procedures of Section 8 hereof with respect to all parties to be
indemnified pursuant to said Section;
(C) deliver such other documents and certificates as may be
reasonably requested by such parties to evidence compliance with
clause (A) above and with any customary conditions contained in the
underwriting agreement or other agreement entered into by TV Filme
pursuant to this clause (xi), if any; and
if at any time the representations and warranties of TV Filme contemplated
in clause (A)(1) above cease to be true and correct, TV Filme shall so
advise the underwriter(s), if any, and each Holder promptly and, if
requested by such Persons, shall confirm such advice in writing;
(xii) prior to any public offering of Transfer Restricted
Securities, cooperate with the selling Holders, the underwriter(s), if
any, and their respective counsel in connection with the registration and
qualification of the Transfer Restricted Securities under the securities
or Blue Sky laws of such jurisdictions as the selling Holders or
underwriter(s), if any, may reasonably request and do any and all other
acts or things necessary or advisable (including, without limitation, the
imposition of such restrictions on offers or sales of the Securities as
are referred to in paragraph 3(b) of this Agreement) to enable the
disposition in such jurisdictions of the Transfer Restricted Securities
covered by the applicable Registration Statement; provided, however, that
TV Filme shall not be required to register or qualify as a foreign
corporation in any jurisdiction where it is not now so qualified or to
take any action that would subject it to general consent to service of
process in any jurisdiction where it is not now so subject or to subject
itself to general taxation in any such jurisdiction;
(xiii) upon the request of any Holder of Initial Notes covered by
the Shelf Registration Statement, TV Filme shall issue Exchange Notes
having an aggregate principal amount equal to the aggregate principal
amount of Initial Notes surrendered to TV Filme by such Holder in exchange
therefor or being sold by such Holder; such Exchange Notes to be
registered in the name of such Holder or in the name of the purchaser(s)
of such Exchange Notes, as the case may be; in return, the Initial Notes
held by such Holder shall be surrendered to TV Filme for cancellation;
(xiv) cooperate with the selling Holders and the underwriter(s), if
any, to facilitate the timely preparation and delivery of certificates
representing Transfer Restricted Securities to be sold and not bearing any
restrictive legends; and to register such Transfer Restricted Securities
in such denominations (which denominations shall be in a minimum of $1,000
and integral multiples thereof) and such names as the Holders or the
underwriter(s), if any, may request at least two Business Days prior to
such sale of Transfer Restricted Securities made by such underwriter(s);
(xv) use its best efforts to cause the Transfer Restricted
Securities covered by the Registration Statement to be registered with or
approved by such other governmental agencies or authorities as may be
necessary to enable the seller or sellers thereof or the underwriter(s),
if any, to consummate the disposition of such Transfer Restricted
Securities;
(xvi) if any fact or event contemplated by Section 6(c)(iii)(D)
above shall exist or have occurred, prepare a supplement or post-effective
amendment to the Registration Statement or related Prospectus or any
document incorporated therein by reference or file any other required
document so that, as thereafter delivered to the purchasers of Transfer
Restricted Securities, the Prospectus will not contain an untrue statement
of a material fact or omit to state any material fact necessary to make
the statements therein, in the light of the circumstances under which they
were made, not misleading;
10
(xvii) provide a CUSIP number for all Transfer Restricted Securities
not later than the effective date of the Registration Statement covering
such Transfer Restricted Securities and provide the Trustee with printed
certificates for the Transfer Restricted Securities which are in a form
eligible for deposit with the Depository Trust Company;
(xviii) cooperate and assist in any filings required to be made with
the NASD and in the performance of any due diligence investigation by any
underwriter (including any "qualified independent underwriter") that is
required to be retained in accordance with the rules and regulations of
the NASD, and use its best efforts to cause such Registration Statement to
become effective and approved by such governmental agencies or authorities
as may be necessary to enable the Holders selling Transfer Restricted
Securities to consummate the disposition of such Transfer Restricted
Securities;
(xix) otherwise use its best efforts to comply with all applicable
rules and regulations of the Commission, and make generally available to
Holders, as soon as reasonably practicable, a consolidated earnings
statement meeting the requirements of Rule 158 under the Act (which need
not be audited) covering a twelve-month period beginning after the
effective date of the applicable Registration Statement;
(xx) cause the Indenture to be qualified under the TIA not later
than the effective date of the first Registration Statement required by
this Agreement, and, in connection therewith, cooperate, with the Trustee
and the Holders of Securities to effect such changes to the Indenture as
may be required for such Indenture to be so qualified in accordance with
the terms of the TIA; and execute, and use its best efforts to cause the
Trustee to execute, all documents that may be required to effect such
changes and all other forms and documents required to be filed with the
Commission to enable such Indenture to be so qualified in a timely manner;
and
(xxi) provide promptly to each Holder, upon request, each document
filed with the Commission pursuant to the requirements of Section 13 or
Section 15 of the Exchange Act.
(d) Restrictions on Holders. Each Holder agrees by its acquisition of a
Transfer Restricted Security that, upon receipt of any notice from TV Filme of
the existence of any fact of the kind described in Section 6(c)(iii)(D) hereof,
such Holder will forthwith discontinue disposition of Transfer Restricted
Securities pursuant to the applicable Registration Statement until such Holder's
receipt of the copies of the supplemented or amended Prospectus contemplated by
Section 6(c)(xvi) hereof, or until it is advised in writing (the "Advice") by TV
Filme that the use of the Prospectus may be resumed, and has received copies of
any additional or supplemental filings that are incorporated by reference in the
Prospectus. If so directed by TV Filme, each Holder will deliver to TV Filme (at
TV Filme's expense) all copies, other than permanent file copies then in such
Holder's possession, of the Prospectus covering such Transfer Restricted
Securities that was current at the time of receipt of such notice. In the event
TV Filme shall give any such notice, the time period regarding the effectiveness
of such Registration Statement set forth in Section 3 or 4 hereof, as
applicable, shall be extended by the number of days during the period from and
including the date of the giving of such notice pursuant to Section 6(c)(iii)(D)
hereof to and including the date when each selling Holder covered by such
Registration Statement shall have received the copies of the supplemented or
amended Prospectus contemplated by Section 6(c)(xvi) hereof or shall have
received the Advice.
SECTION 7. REGISTRATION EXPENSES
(a) All expenses incident to TV Filme's performance of or compliance with
this Agreement will be borne by TV Filme, regardless of whether a Registration
Statement becomes effective, including without limitation: (i) all registration
and filing fees and expenses (including filings made by any Purchaser or Holder
with the NASD (and, if applicable, the reasonable fees and expenses of any
"qualified independent underwriter" and its counsel that may be required by the
rules and regulations of the NASD)); (ii) all fees and expenses incurred in
connection with compliance with federal securities and state Blue Sky or
securities laws; (iii) all expenses of printing (including printing certificates
for the Exchange Notes to be issued in the Exchange Offer and printing of
prospectuses), messenger and delivery services and telephone; (iv) all fees and
disbursements of counsel for TV Filme, and in
11
accordance with Section 7(b) below, counsel to the Holders of Transfer
Restricted Securities; (v) if applicable, all application and filing fees in
connection with listing Securities on a national securities exchange or
automated quotation system pursuant to the requirements hereof; and (vi) all
fees and disbursements of independent auditors of TV Filme (including the
expenses of any special audit and comfort letters required by or incident to
such performance).
TV Filme will bear its internal expenses (including, without limitation,
all salaries and expenses of its officers and employees performing legal or
accounting duties), the expenses of any annual audit and the fees and expenses
of any Person, including special experts, retained by TV Filme.
(b) In connection with any Registration Statement required by this
Agreement (including, without limitation, the Exchange Offer Registration
Statement and the Shelf Registration Statement), TV Filme will reimburse the
Initial Purchasers and the Holders of Transfer Restricted Securities being
tendered in the Exchange Offer and/or resold pursuant to the "Plan of
Distribution" contained in the Exchange Offer Registration Statement or
registered pursuant to the Shelf Registration Statement, as applicable, for the
reasonable fees and disbursements of not more than one U.S. counsel, which shall
be ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ (a partnership which includes professional
corporations) or such other counsel as may be chosen by the Holders of a
majority in principal amount of the Transfer Restricted Securities for whose
benefit such Registration Statement is being prepared and one Brazilian counsel,
which shall be ▇▇▇▇▇▇▇ & Mussnich Advogados or such other Brazilian counsel as
may be chosen by the Holders of a majority in principal amount of the Transfer
Restricted Securities for whose benefit such Registration Statement is being
prepared.
SECTION 8. INDEMNIFICATION
(a) TV Filme agrees to indemnify and hold harmless each of the Holders,
each Person, if any, who controls any Holder within the meaning of Section 15 of
the Act or Section 20 of the Exchange Act and the respective officers,
directors, partners, employees, representatives and agents of each Holder or any
controlling Person, against any and all losses, liabilities, claims, damages and
expenses whatsoever (including but not limited to reasonable attorneys' fees and
expenses and all other expenses whatsoever incurred in investigating, preparing
or defending against any investigation or litigation, commenced or threatened,
or any claim whatsoever, and any and all amounts paid in settlement of any claim
or litigation) (collectively, "Losses"), joint or several, to which they or any
of them may become subject under the Act, the Exchange Act or otherwise, insofar
as such Losses (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
any Registration Statement or related Prospectus, or in any supplement thereto
or amendment 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, in the light of the circumstances
under which they were made, not misleading; provided, however, that TV Filme
will not be liable in any such case to the extent, but only to the extent, that
any such Loss arises out of or is based upon any (i) untrue statement or alleged
untrue statement or omission or alleged omission made therein in reliance upon
and in conformity with written information furnished to TV Filme by or on behalf
of any Holders expressly for use in the Registration Statement and related
Prospectus or in any supplement or amendment thereto or (ii) any untrue
statement or alleged untrue statement or omission or alleged omission from any
related preliminary prospectus if a copy of the related Prospectus (as then
amended or supplemented) was not delivered by or on behalf of any Holder seeking
indemnification to the Person asserting the claim or action, if required by law
to have been so delivered by such Holder and the untrue statement or alleged
omission from such preliminary prospectus was corrected in the related
Prospectus. This indemnity will be in addition to any liability which TV Filme
may otherwise have, including, under this Agreement.
(b) Each of the Holders agrees, severally and not jointly, to indemnify
and hold harmless TV Filme, each Person, if any, who controls TV Filme within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act and the
respective officers, directors, partners, employees, representatives and agents
of TV Filme or any controlling Person, against any and all Losses, joint or
several, to which they or any of them may become subject under the Act, the
Exchange Act or otherwise, insofar as such Losses (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 any Registration
12
Statement 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 light of the circumstances under which they were
made, not misleading, in each case to the extent, but only to the extent, that
any such Loss arises out of or is based upon any untrue statement or alleged
untrue statement or omission or alleged omission made therein in reliance upon
and in conformity with written information furnished to TV Filme by or on behalf
of such Holder expressly for use therein; provided, however, that in no case
shall any Holder be liable or responsible for any amount in excess of the dollar
amount of the proceeds received by such Holder upon the sale of the Securities
giving rise to such indemnification obligation. This indemnity will be in
addition to any liability which any Holder may otherwise have, including under
this Agreement.
(c) Promptly after receipt by an indemnified party under subsection (a) or
(b) above of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under such subsection, notify each party against whom indemnification is
to be sought in writing of the commencement thereof (but the failure so to
notify an indemnifying party shall not relieve such indemnifying party from any
liability which it may have under this Section 8 except to the extent that it
has been prejudiced in any material respect by such failure, or from any
liability which it may otherwise have). In case any such action is brought
against any indemnified party, and it notifies an indemnifying party of the
commencement thereof, the indemnifying party will be entitled to participate
therein, and to the extent it may elect by written notice delivered to the
indemnified party promptly after receiving the aforesaid notice from such
indemnified party, to assume the defense thereof with counsel reasonably
satisfactory to such indemnified party. Notwithstanding the foregoing, the
indemnified party or parties shall have the right to employ its or their own
counsel in any such case, but the fees and expenses of such counsel shall be at
the expense of such indemnified party or parties unless (i) the employment of
such counsel shall have been authorized in writing by the indemnifying parties
in connection with the defense of such action and the indemnifying party has
agreed in writing to pay the fees and expenses of such counsel, (ii) the
indemnifying parties shall not have employed counsel to take charge of the
defense of such action within a reasonable time after notice of commencement of
the action, or (iii) such indemnified party or parties shall have reasonably
concluded, upon the advice of counsel, that there may be defenses available to
it or them which are different from or additional to those available to one or
all of the indemnifying parties (in which case the indemnifying parties shall
not have the right to direct the defense of such action on behalf of the
indemnified party or parties), in any of which events such fees and expenses of
counsel shall be borne by the indemnifying parties; provided, however, that the
indemnifying party under subsection (a) or (b) above, shall only be liable for
the legal expenses of one counsel (in addition to any local counsel) for all
indemnified parties in each jurisdiction in which any claim or action is
brought. Anything in this subsection to the contrary notwithstanding, an
indemnifying party shall not be liable for any settlement of any claim or action
effected without its written consent; provided, however, that such consent was
not unreasonably withheld. In addition, the indemnifying party will not, without
the prior written consent of the indemnified party, which consent may not be
unreasonably withheld, settle or compromise or consent to entry of any judgment
in any pending or threatened claim, action or proceeding of which
indemnification may be sought hereunder (whether or not any indemnified party is
an actual or potential party to such claim, action, or proceeding) unless such
settlement, compromise or consent includes an unconditional release of each
indemnified party from all liability arising out of such claim, action or
proceeding.
(d) In order to provide for contribution in circumstances in which the
indemnification provided for in this Section 8 is for any reason held to be
unavailable or is insufficient to hold harmless a party indemnified hereunder,
TV Filme, on the one hand, and each Holder, on the other hand, shall contribute
to the aggregate Losses of the nature contemplated by such indemnification
provision (including any investigation, legal and other expenses incurred in
connection with, and any amount paid in settlement of, any action, suit or
proceeding or any claims asserted, but after deducting in the case of Losses
suffered by TV Filme any contribution received by TV Filme from Persons, other
than the Holders, who may also be liable for contribution, including Persons who
control TV Filme within the meaning of Section 15 of the Act or Section 20 of
the Exchange Act) to which TV Filme and such Holder may be subject, in such
proportion as is appropriate to reflect the relative benefits received by TV
Filme, on the one hand, and any such Holder, on the other hand, or, if such
allocation is not permitted by applicable law or if indemnification is not
available as a result of the indemnifying party not having received notice as
provided in this Section 8, in such proportion as is appropriate to reflect not
only the relative benefits referred to above but also the relative fault of TV
Filme, on the one hand, and the Holders, on the other hand, in connection with
the statements or omissions which
13
resulted in such Losses, as well as any other relevant equitable considerations.
The relative benefits received by TV Filme, on the one hand, and any Holder, on
the other hand, shall be deemed to be in the same proportion as (x) the total
proceeds from the offering of the Securities (net of discounts and commissions
but before deducting expenses) received by TV Filme and (y) the total proceeds
received by such Holder upon its sale of Securities which would otherwise give
rise to the indemnification obligation, respectively. The relative fault of TV
Filme, on the one hand, and of the Holders, on the other hand, shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by TV Filme, on the one hand, or
the Holders, on the other hand, and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. TV Filme and each Holder agree that it would not be just and equitable
if contribution pursuant to this Section 8 were determined by pro rata
allocation (even if all Holders were treated as one entity for such purpose) or
by any other method of allocation which does not take into account the equitable
considerations referred to above. Notwithstanding the provisions of this Section
8, (i) no Holder shall be required to contribute, in the aggregate, any amount
in excess of the U.S. dollar amount by which the proceeds received by such
Holder with respect to the sale of its Securities exceeds the amount of any
damages which such Holder has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission and (ii) no
Person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any Person who was not
guilty of such fraudulent misrepresentation. For purposes of this Section 8,
each Person, if any, who controls a Holder within the meaning of Section 15 of
the Act or Section 20 of the Exchange Act and the respective officers,
directors, partners, employees, representatives and agents of a Holder or any
controlling Person shall have the same rights to contribution as such Holder,
and each Person, if any, who controls TV Filme within the meaning of Section 15
of the Act or Section 20 of the Exchange Act and the respective officers,
directors, partners, employees, representatives and agents of TV Filme or any
controlling Person shall have the same rights to contribution as TV Filme,
subject in each case to clauses (i) and (ii) of this Section 8(d). Any party
entitled to contribution will, promptly after receipt of notice of commencement
of any action, suit or proceeding against such party in respect of which a claim
for contribution may be made against another party or parties under this Section
8, notify such party or parties from whom contribution may be sought, but the
failure to so notify such party or parties shall not relieve the party or
parties from whom contribution may be sought from any obligation it or they may
have under this Section 8 or otherwise. No party shall be liable for
contribution with respect to any action or claim settled without its prior
written consent; provided, however, that such written consent was not
unreasonably withheld.
SECTION 9. RULE 144A
TV Filme hereby agrees with each Holder, for so long as any Transfer
Restricted Securities remain outstanding, to make available to any Holder or
beneficial owner of Transfer Restricted Securities in connection with any sale
thereof and any prospective purchaser of such Transfer Restricted Securities
from such Holder or beneficial owner, the information required by Rule
144A(d)(4) under the Act in order to permit resales of such Transfer Restricted
Securities pursuant to Rule 144A.
SECTION 10. UNDERWRITTEN REGISTRATIONS
No Holder may participate in any Underwritten Registration hereunder
unless such Holder (a) agrees to sell such Holder's Transfer Restricted
Securities on the basis provided in any underwriting arrangements approved by
the Persons entitled hereunder to approve such arrangements and (b) completes
and executes all reasonable questionnaires, powers of attorney, indemnities,
underwriting agreements, lock-up letters and other documents required under the
terms of such underwriting arrangements.
14
SECTION 11. SELECTION OF UNDERWRITERS
The Holders of Transfer Restricted Securities covered by the Shelf
Registration Statement who desire to do so may sell such Transfer Restricted
Securities in an Underwritten Offering. In any such Underwritten Offering, the
investment banker or investment bankers and manager or managers that will
administer the offering will be selected by the Holders of a majority in
aggregate principal amount of the Transfer Restricted Securities included in
such offering; provided, that such investment bankers and managers must be
reasonably satisfactory to TV Filme (it being understood that Bear ▇▇▇▇▇▇▇, ▇▇
Securities, ▇.▇. ▇▇▇▇▇▇ and Alex. ▇▇▇▇▇ are reasonably satisfactory); such
investment banker or investment bankers and manager or managers are referred to
herein as the "underwriters".
SECTION 12. MISCELLANEOUS
(a) Remedies. Each Holder, in addition to being entitled to exercise all
rights provided herein, in the Indenture, in the Purchase Agreement or granted
by law, including recovery of Liquidated Damages or other damages, will be
entitled to specific performance of its rights under this Agreement. TV Filme
agrees that monetary damages (including the Liquidated Damages contemplated
hereby) would not be adequate compensation for any loss incurred by reason of a
breach by it of the provisions of this Agreement and hereby agree to waive the
defense in any action for specific performance that a remedy at law would be
adequate.
(b) No Inconsistent Agreements. TV Filme will not, on or after the date of
this Agreement, enter into any agreement with respect to its securities that is
inconsistent with the rights granted to the Holders in this Agreement or
otherwise conflicts with the provisions hereof. TV Filme has not previously
entered into any agreement granting any registration rights with respect to the
Securities to any Person. The rights granted to the Holders hereunder do not in
any way conflict with and are not inconsistent with the rights granted to
holders of TV Filme's securities under any agreement in effect on the date
hereof.
(c) Adjustments Affecting the Securities. TV Filme will not take any
action, or permit any change to occur, with respect to the Securities that would
materially and adversely affect the ability of the Holders to Consummate any
Exchange Offer.
(d) Amendments and Waivers. The provisions of this Agreement may not be
amended, modified or supplemented, and waivers or consents to or departures from
the provisions hereof may not be given unless TV Filme has obtained the written
consent of Holders of a majority of the outstanding principal amount of Transfer
Restricted Securities. Notwithstanding the foregoing, a waiver or consent to
departure from the provisions hereof that relates exclusively to the rights of
Holders whose Securities are being tendered pursuant to the Exchange Offer or
registered pursuant to the Shelf Registration and that does not affect directly
or indirectly the rights of other Holders whose Securities are not being
tendered pursuant to such Exchange Offer or registered pursuant to the Shelf
Registration may be given by the Holders of a majority of the outstanding
principal amount of Transfer Restricted Securities being tendered or registered,
as applicable.
(e) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail
(registered or certified, return receipt requested), telex, telecopier, or air
courier guaranteeing overnight delivery:
(i) if to a Holder, at the address set forth on the records of the
Registrar under the Indenture, with a copy to the Registrar under the
Indenture; and
15
(ii) if to TV Filme:
TV Filme, Inc.
▇/▇ ▇▇▇▇ - ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇, ▇▇▇▇▇▇ ▇▇-▇▇. A
Ed. Executive Tower
Sala 601
70.300.911 Brasilia - DF Brazil
Phone No.: ▇▇▇-▇▇-▇▇-▇▇▇-▇▇▇▇
Telecopier No.: 011-55-61-323-5660
Attention: Hermano Studart Lins de Albuquerque
With copies to:
▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇ LLP
Two Stamford Plaza
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Phone No.: ▇▇▇-▇▇▇-▇▇▇▇
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; ten Business Days
after being deposited in the mail, postage prepaid, if mailed; when answered
back, if telexed; when receipt acknowledged, if telecopied; and on the second
Business Day, if timely delivered to an air courier guaranteeing two day
delivery.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee at the
address specified in the Indenture.
(f) Successors and Assigns. This Agreement shall inure to the benefit of
and be binding upon the successors and assigns of each of the parties,
including, without limitation and without the need for an express assignment,
subsequent Holders of Transfer Restricted Securities; provided, however, that
this Agreement shall not inure to the benefit of or be binding upon a successor
or assign of a Holder unless and to the extent such successor or assign acquired
Transfer Restricted Securities from such Holder.
(g) 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.
(h) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(i) Submission to Jurisdiction; Appointment of Agent for Service; Currency
Indemnity. (i) To the fullest extent permitted by applicable law, TV Filme
irrevocably submits to the jurisdiction of any Federal or State court in the
City, County and State of New York, United States of America, in any suit or
proceeding based on or arising under this Agreement (solely in connection with
any such suit or proceeding), and irrevocably agree that all claims in respect
of such suit or proceeding may be determined in any such court. TV Filme
irrevocably and fully waives the defense of an inconvenient forum to the
maintenance of such suit or proceeding. TV Filme hereby irrevocably designates
and appoints Corporation Service Company, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇.▇.▇. (the "Process Agent"), as the authorized agent of TV Filme upon
whom process may be served in any such suit or proceeding, it being understood
that the designation and appointment of the Process Agent as such authorized
agent shall become effective immediately without any further action on the part
of TV Filme. TV Filme represents to the
16
Holders that it has notified the Process Agent of such designation and
appointment and that the Process Agent has accepted the same in writing. TV
Filme hereby irrevocably authorizes and directs the Process Agent to accept such
service. TV Filme further agrees that service of process upon the Process Agent
and written notice of said service to TV Filme mailed by prepaid registered
first class mail or delivered to the Process Agent at its principal office,
shall be deemed in every respect effective service of process upon TV Filme in
any such suit or proceeding. Nothing herein shall affect the right of any Holder
or any Person controlling such Holder to serve process in any other manner
permitted by law. TV Filme further agrees to take any and all action, including
the execution and filing of any and all such documents and instruments as may be
necessary to continue such designation and appointment of the Process Agent in
full force and effect so long as TV Filme has any outstanding obligations under
this Agreement, the Securities, the Indenture or the Purchase Agreement. To the
extent that TV Filme has or hereafter may acquire any immunity from jurisdiction
of any court or from any legal process (whether through service of note,
attachment prior to judgment, attachment in aid of execution, executor or
otherwise) with respect to itself or its property, TV Filme hereby irrevocably
waives such immunity in respect of its obligations under this Agreement, to the
extent permitted by law.
(ii) The obligation of the parties to make payments hereunder is in U.S.
dollars (the "Obligation Currency") and such obligation shall not be discharged
or satisfied by any tender or recovery pursuant to any judgment expressed in or
converted into any currency other than the Obligation Currency or any other
realization in such other currency, whether as proceeds of set-off, security,
guarantee, distributions, or otherwise, except to the extent to which such
tender, recovery or realization shall result in the effective receipt by the
party which is to receive such payment of the full amount of the Obligation
Currency expressed to be payable hereunder, and the party liable to make such
payment agrees to indemnify the party which is to receive such payment (as an
additional, separate and independent cause of action) for the amount (if any) by
which such effective receipt shall fall short of the full amount of the
Obligation Currency expressed to be payable hereunder and such obligation to
indemnify shall not be affected by judgment being obtained for any other sums
due under this Agreement.
(j) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE
CONFLICT OF LAW RULES THEREOF.
(k) Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
(l) No Piggyback on Registrations. Neither TV Filme nor any of its
security holders (other than the Holders of Transfer Restricted Securities in
such capacity) has any right (other than a right which has been irrevocably
waived) to include any securities of TV Filme in any Registration Statement
other than Transfer Restricted Securities. TV Filme covenants that it will not
enter into any instrument, agreement or understanding which will grant to any
person piggyback registration rights which are exercisable with respect to any
Registration Statement or otherwise confer a right to include securities in any
Registration Statement other than Transfer Restricted Securities.
(m) Entire Agreement. This Agreement together with the other Operative
Documents (as defined in the Purchase Agreement) is intended by the parties
hereto as a final expression of their agreement and intended to be a complete
and exclusive statement of the agreement and understanding of the parties hereto
in respect of the subject matter contained herein. There are no restrictions,
promises, warranties or undertakings, other than those set forth or referred to
herein with respect to the registration rights granted by TV Filme with respect
to the Transfer Restricted Securities. This Agreement supersedes all prior
agreements and understandings among the parties with respect to the subject
matter hereof.
17
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
TV FILME, INC.
By: /s/ Hermano Studart Lins de Albuquerque
---------------------------------------
Name: Hermano Studart Lins de Albuquerque
Title: Chief Executive Officer
BEAR, ▇▇▇▇▇▇▇ & CO. INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Senior Managing Director
BT SECURITIES CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Associate
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
By: /s/ ▇▇▇▇ ▇▇▇▇
-------------------------
Name: ▇▇▇▇ ▇▇▇▇
Title: Vice President
ALEX. ▇▇▇▇▇ & SONS INCORPORATED
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Director
WITNESSES:
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
STATE OF NEW YORK )
: ss.
COUNTY OF NEW YORK )
On this 16th day of December, 1996, before me, a notary public
within and for said county, personally appeared Hermano Studart Lins de
Albuquerque to me personally known who being duly sworn, did say that she/he is
Chief Executive Officer of TV Filme, Inc., one of the persons described in and
which executed the foregoing instrument, and acknowledges said instrument to be
the free act and deed of said corporation.
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------
Notary Public
[NOTARIAL SEAL]
STATE OF NEW YORK )
: ss.
COUNTY OF NEW YORK )
On this 16th day of December, 1996, before me, a notary public
within and for said county, personally appeared ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ to me
personally known who being duly sworn, did say that she/he is Senior Managing
Director of Bear, ▇▇▇▇▇▇▇ & Co. Inc., one of the persons described in and which
executed the foregoing instrument, and acknowledges said instrument to be the
free act and deed of said corporation.
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------
Notary Public
[NOTARIAL SEAL]
STATE OF NEW YORK )
: ss.
COUNTY OF NEW YORK )
On this 16th day of December, 1996, before me, a notary public
within and for said county, personally appeared ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ to me
personally known who being duly sworn, did say that she/he is Associate of BT
Securities Corporation, one of the persons described in and which executed the
foregoing instrument, and acknowledges said instrument to be the free act and
deed of said corporation.
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------
[NOTARIAL SEAL]
STATE OF NEW YORK )
: ss.
COUNTY OF NEW YORK )
On this 16th day of December, 1996, before me, a notary public
within and for said county, personally appeared ▇▇▇▇ ▇▇▇▇ to me personally
known who being duly sworn, did say that she/he is Vice President of ▇.▇.
▇▇▇▇▇▇ Securities Inc., one of the persons described in and which executed the
foregoing instrument, and acknowledges said instrument to be the free act and
deed of said corporation.
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------
Notary Public
[NOTARIAL SEAL]
STATE OF NEW YORK )
: ss.
COUNTY OF NEW YORK )
On this 16th day of December, 1996, before me, a notary public
within and for said county, personally appeared ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ to me
personally known who being duly sworn, did say that she/he is Managing Director
of Alex. ▇▇▇▇▇ & Sons Incorporated, one of the persons described in and which
executed the foregoing instrument, and acknowledges said instrument to be the
free act and deed of said corporation.
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------
Notary Public
[NOTARIAL SEAL]