EXHIBIT 10.10
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REGISTRATION RIGHTS AGREEMENT
BY AND BETWEEN
NATIONAL MEDIA CORPORATION
and
VALUEVISION INTERNATIONAL, INC.
Dated as of January 5, 1998
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TABLE OF CONTENTS*
PAGE
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SECTION 1. Definitions................................................. 1
SECTION 2. Securities Subject to this Agreement........................ 3
(a) Registrable Securities...................................... 3
(b) Holders of Registrable Securities........................... 3
SECTION 3. Demand Registrations........................................ 3
(a) Demand by Holders........................................... 3
(b) Effective Registration...................................... 4
(c) Registration Statement Form................................. 5
(d) Selection of Underwriters................................... 5
(e) Registration of Other Securities............................ 6
(f) Priority in Requested Registration.......................... 6
SECTION 4. Piggyback Registrations..................................... 6
(a) Participation............................................... 6
(b) Underwriter's Cutback....................................... 7
(c) No Effect on Demand Registrations........................... 8
SECTION 5. Hold-Back Agreements........................................ 8
(a) Restrictions on Public Sale by Holder of Registrable
Securities................................................ 8
(b) Restrictions on Public Sale by the Company and Others....... 9
SECTION 6. Registration Procedures..................................... 9
SECTION 7. Registration Expenses....................................... 16
SECTION 8. Indemnification............................................. 18
(a) Indemnification by the Company.............................. 18
(b) Indemnification by Holder of Registrable Securities......... 20
(c) Contribution................................................ 20
SECTION 9. Rule 144.................................................... 21
SECTION 10. Participation in Underwritten Registrations................. 22
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* This Table of Contents does not constitute a part of this Agreement or have
any bearing upon the interpretation of any of its terms or provisions.
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PAGE
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SECTION 11. Miscellaneous.............................................. 22
(a) Remedies..................................................... 22
(b) No Inconsistent Agreements................................... 22
(c) Adjustments Affecting Registrable Securities................. 22
(d) Amendments and Waivers....................................... 22
(e) Notices...................................................... 23
(f) Successors and Assigns....................................... 23
(g) Counterparts................................................. 23
(h) Headings..................................................... 24
(i) Governing Law................................................ 24
(j) Severability................................................. 24
(k) Entire Agreement............................................. 24
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THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is dated as of
January 5, 1998 and entered into by and between NATIONAL MEDIA CORPORATION, a
Delaware corporation (the "Company") and VALUEVISION INTERNATIONAL, INC., a
Minnesota corporation (the "Investor").
This Agreement is made pursuant to the Demand Note (as defined below).
In order to induce Victory to issue the loan evidenced by the Demand Note, the
Company has agreed to provide the registration rights set forth in this
Agreement. The execution of this Agreement is a condition to the issuance of
the Demand Note.
The parties hereby agree as follows:
SECTION 1. Definitions.
As used in this Agreement, the following capitalized terms shall have
the following meanings:
Agent: Any Person authorized to act and who acts on behalf of the
Investor with respect to the transactions contemplated by this Agreement.
Common Stock: The common stock, $0.01 par value, of the Company.
Convertible Note Shares: The shares of Common Stock issuable in
certain circumstances pursuant to the Demand Note.
Demand Note: The $10,000,000 Demand Promissory Note dated the date
hereof issued by the Company in favor of the Investor.
Exchange Act: The Securities Exchange Act of 1934, as amended from
time to time.
NASD: National Association of Securities Dealers, Inc.
Person: An individual, partnership, corporation, trust or
unincorporated organization, or a government or agency or political subdivision
thereof.
Prospectus: The prospectus included in any Registration Statement, as
amended or supplemented by any prospectus supplement with respect to the terms
of the offering of any portion of the Registrable Securities covered by the
Registration Statement and by all other amendments and supplements to the
prospectus, including post-effective amendments and all material incorporated
by reference in such prospectus.
Registrable Securities: (i) the Warrant Shares and (ii) the Convertible
Note Shares. Registrable Securities shall also include any securities which
may be issued or distributed with respect to, or in exchange for, such
Registrable Securities pursuant to a stock dividend, stock split or other
distribution, merger, consolidation, recapitalization or reclassification or
similar transaction; provided, however, that any such Registrable Securities
shall cease to be Registrable Securities to the extent (i) a Registration
Statement with respect to the sale of such Registrable Securities has been
declared effective under the Securities Act and such Registrable Securities
have been disposed of in accordance with the plan of distribution set forth in
such Registration Statement, (ii) such Registrable Securities may be
distributed pursuant to Rule 144 (or any similar provision then in force) under
the Securities Act, or (iii) such Registrable Securities shall have been
otherwise transferred, new certificates for them not bearing a legend
restricting transfer under the Securities Act shall have been delivered by the
Company and they may be publicly resold without subsequent registration under
the Securities Act or in compliance with Rule 144 thereunder; provided,
further, however, that any securities that have ceased to be Registrable
Securities cannot thereafter become Registrable Securities, and any securities
that are issued or distributed in respect of securities that have ceased to be
Registrable Securities are not Registrable Securities.
Registration: A Demand Registration (as defined in Section 3) or a
Piggyback Registration (as defined in Section 4) of the Company's securities
for sale to the public under a Registration Statement.
Registration Expenses: See Section 7 hereof.
Registration Statement: Any registration statement of the Company filed
with the Securities and Exchange Commission under the rules and regulations
promulgated under the Securities Act which covers Registrable Securities
pursuant to the provisions of this Agreement, including the Prospectus,
amendments and supplements to such Registration Statement, including
post-effective amendments, and all exhibits and all material incorporated by
reference in such Registration Statement.
Securities Act: The Securities Act of 1933, as amended from time to time.
SEC: The Securities and Exchange Commission.
Underwritten Registration or Underwritten Offering: A Registration in
which securities of the Company are sold to an underwriter for reoffering to
the public.
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1995 Warrants: The Warrants to purchase 500,000 shares of Common Stock
(subject to customary anti-dilution adjustments) issued by the Company to the
Investor pursuant to a Telemarketing, Production and Post-Production Agreement
dated November 24, 1995 (the "Telemarketing Agreement") by and between the
Company and the Investor.
1997 Warrants: The Warrants to purchase 250,000 shares of Common Stock
(subject to customary anti-dilution adjustments) issued pursuant to the Warrant
Agreement (as defined below).
Warrant Agreement: The Warrant Agreement dated the date hereof by and
between the Company and the Investor.
Warrant Shares: Any shares of Common Stock issued or issuable upon
exercise of the 1995 Warrants or the 1997 Warrants.
SECTION 2. Securities Subject to this Agreement.
(a) Registrable Securities. The securities entitled to the benefits of
this Agreement are the Registrable Securities.
(b) Holders of Registrable Securities. A Person is deemed to be a holder
of Registrable Securities whenever such Person owns Registrable Securities or
has the right to acquire such Registrable Securities, whether or not such
ownership or right was acquired pursuant to the Telemarketing Agreement, the
Warrant Agreement or the Demand Note, and whether or not such acquisition has
actually been effected and disregarding any legal restrictions upon the
exercise of such right.
SECTION 3. Demand Registrations.
(a) Demand by Holders. The majority of the holders of Registrable
Securities, at any time from and after the date hereof, may make, in the
aggregate, one written request to the Company for Registration under and in
accordance with the provisions of the Securities Act of all or part of the
Registrable Securities. Any such Registration requested shall hereinafter be
referred to as a "Demand Registration." Such request for a Demand Registration
shall specify the kind and aggregate amount of Registrable Securities to be
registered and the intended methods of disposition thereof. Upon such request
for a Demand Registration, the Company shall use its best efforts to effect the
Registration of such Registrable Securities under (i) the Securities Act, and
(ii)
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the blue sky laws of such jurisdictions as any holder of such Registrable
Securities requesting such Registration or any underwriter, if any, may
reasonably request; provided, however, that the Company shall not be required
in connection therewith or as a condition thereto to qualify to do business in
any jurisdiction where it would not otherwise be required to qualify but
for this Section 3(a). The Company shall also use its best efforts to have all
such Registrable Securities registered with or approved by such other federal
or state governmental agencies or authorities as may be necessary in the
opinion of counsel to the Company and counsel to the holders of a majority of
such Registrable Securities to consummate the disposition of such Registrable
Securities.
(b) Effective Registration. The Company shall be deemed to have effected
a Demand Registration if the Registration Statement relating to such Demand
Registration is declared effective by the SEC and remains effective at all
times until such date as is the earlier of (i) the date on which all of the
Registrable Securities have been sold and (ii) the date on which all of the
Registrable Securities may be immediately sold to the public without
registration under Rule 144(k) under the Securities Act (the "Registration
Period"); provided, however, that no Demand Registration shall be deemed to
have been effected if (i) such registration, after it has become effective, is
interfered with by any stop order, injunction or other order or requirement of
the SEC or other governmental agency or court for any reason not attributable
to the selling holders of Registrable Securities, or (ii) the conditions to
closing specified in the purchase agreement or underwriting agreement entered
into in connection with such registration are not satisfied, other than by
reason of a failure on the part of the selling holders of Registrable
Securities and other than by reasons of a failure on the part of an underwriter
selected by the selling holders of Registrable Securities.
Notwithstanding the foregoing, if at any time prior to the expiration of
the Registration Period, in the good faith reasonable judgment of the Company's
Board of Directors, the disposition of Registrable Securities would require the
premature disclosure of material non-public information which may reasonably be
expected to have an adverse effect on the Company, then the Company shall not
be required to maintain the effectiveness of or amend or supplement such
Registration Statement for a period (a "Disclosure Delay Period") expiring upon
the earlier to occur of (i) the date on which such material information is
disclosed to the public or ceases to be material or (ii) subject to the
following paragraph, up to 30 calendar days after the date on which the Company
provides a notice to the holders of Registrable Securities stating that the
failure to disclose such non-public information causes the prospectus included
in the Registration Statement, as then in effect, to include an untrue
statement of a material fact or to omit to state a
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material fact required to be stated therein or necessary to make the
statements therein not misleading. In no event shall a Disclosure Delay Period
exceed 30 calendar days.
The Company will give prompt written notice to the holders of Registrable
Securities, in the manner prescribed by Section 11(e) hereof, of each
Disclosure Delay Period. Advance notice of the Disclosure Delay Period
shall be given to the extent practicable. If practicable, such notice shall
estimate the duration of such Disclosure Delay Period. Each holder of
Registrable Securities, by accepting such Registrable Securities, agrees that,
upon receipt of such notice prior to such holder's disposition of all such
Registrable Securities, such holder will forthwith discontinue disposition of
such Registrable Securities pursuant to the Registration Statement and will not
deliver any prospectus forming a part thereof in connection with any sale of
such Registrable Securities until the expiration of such Disclosure Delay
Period. Notwithstanding anything in this Section 3(b) to the contrary, there
shall not be more than an aggregate of 30 calendar days in any 12 month period
during which the Company is in a Disclosure Delay Period, nor more than an
aggregate of 30 calendar days in any 90 calendar day period during which the
Company is in a Disclosure Delay Period, nor more than an aggregate of 60
calendar days during the Registration Period during which the Company is in a
Disclosure Delay Period.
(c) Registration Statement Form. Registrations under this Section 3 shall
be on such appropriate registration form of the SEC (i) as shall be selected by
the Company and as shall be reasonably satisfactory to the holders of a
majority of the Registrable Securities requesting a Demand Registration and
(ii) as shall permit the disposition of such Registrable Securities in
accordance with the intended method or methods of disposition specified in such
holders' requests for such Registration. If, in connection with any
Registration under this Section 3 which is proposed by the Company to be on
Form S-3 or any successor form to such Form, the managing underwriter (if any)
or holders of a majority of the Registrable Securities requesting a Demand
Registration shall advise the Company in writing that in its reasonable opinion
the use of another permitted form is of material importance to the success of
the offering, then such Registration shall be on such other permitted form.
(d) Selection of Underwriters. If at any time or from time to time a
majority of the holders of Registrable Securities covered by a Registration
Statement desire to sell Registrable Securities in an 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 of the
Registrable Securities included in such offering.
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(e) Registration of Other Securities. Whenever the Company shall effect a
Registration pursuant to this Section 3 in connection with an Underwritten
Offering by one or more holders of Registrable Securities, no securities other
than Registrable Securities shall be included among the securities covered by
such Registration unless (a) the managing underwriter of such offering shall
have advised each selling holder of Registrable Securities to be covered by
such Registration in writing that the inclusion of such other securities
would not adversely affect such offering or (b) the selling holders of a
majority of all Registrable Securities to be covered by such Registration shall
have consented in writing to the inclusion of such other securities.
(f) Priority in Requested Registration. If the Company shall effect a
Registration pursuant to this Section 3 in connection with an Underwritten
Offering by one or more holders of Registrable Securities, and if the managing
underwriter of such offering shall advise the Company in writing (with a copy
to each selling holder of Registrable Securities requesting Registration) that,
in its opinion, the number of securities requested to be included in such
Registration exceeds the number which can be sold in such offering within a
price range acceptable to the selling holders of a majority of the Registrable
Securities requested to be included in such Registration, the Company will
include in such Registration, to the extent of the number which the Company is
so advised can be sold in such offering, Registrable Securities requested to be
included in such Registration, selected pro rata from the Registrable
Securities of the selling holders requesting such Registration on the basis of
the percentage of the total amount of the Registrable Securities which such
selling holders requested to be so registered. In connection with any such
Registration to which this Section 3(f) is applicable, no securities other than
Registrable Securities shall be covered by such Registration.
SECTION 4. Piggyback Registrations.
(a) Participation. Subject to Section 4(b) hereof, if at any time from
and after the date hereof, the Company proposes to file a Registration
Statement under the Securities Act with respect to any offering of any of its
securities, whether or not for its own account (other than (i) a registration
on Form S-4 or S-8 or any successor form to such Forms, (ii) any registration
of securities as it relates to an offering and sale to employees, officers or
directors of the Company pursuant to any employee stock plan or other employee
benefit plan arrangement or (iii) any Registration Statement filed at the
demand or request of a holder of the Company's Series C Convertible Preferred
Stock, or securities issued in exchange for such Series C Convertible Preferred
Stock), then, as promptly as practicable, the Company shall give written notice
of such proposed filing to each holder of Registrable
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Securities and such notice shall offer the holders of Registrable
Securities the opportunity to register such number of Registrable Securities as
each such holder may request (a "Piggyback Registration"). Subject to Section
4(b), the Company shall include in such Registration Statement all Registrable
Securities requested within 15 days after the receipt of any such notice (which
request shall specify the Registrable Securities intended to be disposed of by
such holder) to be included in the Registration for such offering pursuant to a
Piggyback Registration. Each holder of Registrable Securities shall be
permitted to withdraw all or part of such holder's Registrable Securities
from a Piggyback Registration at any time prior to the effective date thereof.
(b) Underwriter's Cutback. The Company shall use its best efforts to
cause the managing underwriter or underwriters of a proposed Underwritten
Offering to permit the Registrable Securities requested to be included in the
Registration for such offering under Section 4(a) or pursuant to other
piggyback registration rights granted by the Company, if any (the "Piggyback
Securities"), to be included on the same terms and conditions as any similar
securities included therein. Notwithstanding the foregoing, if the managing
underwriter or underwriters of any such proposed Underwritten Offering informs
the Company and the holders of such Piggyback Securities in writing that the
total amount or kind of securities, including Piggyback Securities, which such
holders and any other persons or entities intend to include in such offering
would be reasonably likely to adversely affect the price or distribution of the
securities offered in such offering or the timing thereof, then the securities
to be included in such Registration shall be the number of securities that, in
the opinion of such underwriter or underwriters, can be sold without an adverse
effect on the price, timing or distribution of the securities to be included,
selected (i) first, from the securities originally proposed by the Company to
be included in the Registration for such offering, (ii) second, and only if all
the securities originally proposed by the Company to be included in such
Registration have been so included, from the Piggyback Securities requested for
inclusion in such Registration, provided that if less than 100% of such
Piggyback Securities is to be included in such Registration, the Piggyback
Securities to be so included shall be selected pro rata from the Piggyback
Securities of the selling holders requesting such Piggyback Registration on the
basis of the percentage of the total amount of the Piggyback Securities which
such selling holders requested to be so registered, and (iii) third, and only
if all of the Piggyback Securities requested for inclusion in such Registration
have been so included, from any other securities eligible for inclusion in such
Registration.
Notwithstanding the foregoing, in the case of a registration statement
registering securities pursuant to the Registration Rights Agreement, dated as
of December 19, 1994, by and among the Company and the other signatories
thereto (the "December 1994 Agreement"), the holders of a majority of the
securities to be registered pursuant to
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such agreement have in good faith determined that the inclusion of
Registrable Securities would be detrimental to the offering of such securities,
then in each case the Company shall be obligated to include in such
Registration Statement only such limited portion of the Registrable Securities
with respect to which a holder of Registrable Securities has requested
inclusion hereunder as the underwriter or such other holders, respectively,
shall permit. Any exclusion of Registrable Securities shall be made pro rata
among the holders of Registrable Securities seeking to include Registrable
Securities, in proportion to the number of Registrable Securities sought to be
included by such holders; provided, however, that the Company shall not exclude
any Registrable Securities unless the Company has first excluded all
outstanding securities, the holders of which are not entitled to inclusion of
such securities in such Registration Statement or are not entitled to pro rata
inclusion with the Registrable Securities; and provided, further, however,
that, after giving effect to the immediately preceding proviso, any exclusion
of Registrable Securities shall be made pro rata with holders of other
securities having the right to include such securities in the Registration
Statement other than holders of securities entitled to inclusion of their
securities in such Registration Statement by reason of demand registration
rights and provided that any reduction of securities to be registered pursuant
to the December 1994 Agreement or the Securities Purchase Agreement, dated as
of September 30, 1994, as amended as of December 19, 1994, by and among the
Company and the other signatories thereto or the Option Agreement dated as of
January 13, 1995, between the Company and Buckeye Communications, Inc., or the
1995 Warrants shall be allocated among the parties hereto as provided therein.
No right to registration of Registrable Securities under this Section 4(b)
shall be construed to limit any registration required under Section 3(a)
hereof. If an offering in connection with which a holder of Registrable
Securities is entitled to registration under this Section 4(b) is an
underwritten offering, then each holder of Registrable Securities whose
Registrable Securities are included in such Registration Statement shall,
unless otherwise agreed by the Company, offer and sell such Registrable
Securities in an underwritten offering using the same underwriter or
underwriters and, subject to the provisions of this Agreement, on the same
terms and conditions as other shares of Common Stock included in such
underwritten offering.
(c) No Effect on Demand Registrations. No Registration of Registrable
Securities effected pursuant to a request under this Section 4 shall be deemed
to have been effected pursuant to Section 3 hereof or shall relieve the Company
of its obligation to effect any Registration upon request under Section 3
hereof.
SECTION 5. Hold-Back Agreements.
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(a) Restrictions on Public Sale by Holder of Registrable Securities. Each
holder of Registrable Securities agrees, if requested by (i) the managing
underwriters in an Underwritten Offering, or (ii) the holders of a majority of
the Registrable Securities included pursuant to Section 3 hereof in a Demand
Registration not being underwritten, not to effect any public sale or
distribution of securities of the Company the same as or similar to those being
registered, or any securities convertible into or exchangeable or exercisable
for such securities, in such Registration Statement, including a sale pursuant
to Rule 144 under the Securities Act (except as part of such Underwritten
Registration), during the 10-day period prior to, and during the 90-day period
(or, with respect to a Piggyback Registration, such longer period of up to 180
days as may be required by such underwriter) beginning on, the effective date
of any Registration Statement in which holders of Registrable Securities are
participating (except as part of such registration) or the commencement of the
public distribution of securities, to the extent timely notified in writing by
the Company or the managing underwriters (or the holders, as the case may be).
The foregoing provisions shall not apply to any holder of Registrable
Securities if such holder is prevented by applicable statute or regulation from
entering any such agreement; provided that any such holder shall undertake, in
its request to participate in any such Underwritten Offering, not to effect any
public sale or distribution of the applicable class of Registrable Securities
commencing on the date of sale of such applicable class of Registrable
Securities unless it has provided 45 days' prior written notice of such sale or
distribution to the underwriter or underwriters.
(b) Restrictions on Public Sale by the Company and Others. The Company
agrees that if, after the date hereof, any "holdback" or any other similar
right relating to restrictions on the public or private sale of the Company's
equity securities is granted by the Company or any other holders of the
Company's equity securities with respect to any of the Company's equity
securities, then the Company shall immediately amend this Agreement to provide
for at least as favorable of a holdback or other similar right for the benefit
of the holders of the Registrable Securities.
SECTION 6. Registration Procedures.
In connection with the Company's registration obligations pursuant to
Sections 3 and 4 hereof, the Company will use its best efforts to effect such
registration to permit the sale of such Registrable Securities in accordance
with the intended method or methods of disposition thereof, and pursuant
thereto the Company will as expeditiously as possible:
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(a) before filing a Registration Statement or Prospectus or any
amendments or supplements thereto, furnish to the holders of the
Registrable Securities covered by such Registration Statement and the
underwriters, if any, copies of all such documents proposed to be filed,
which documents will be subject to the review of such holders and
underwriters (it being understood that, with respect to the holders of
the Registrable Securities, such review shall be completed as
expeditiously as possible), and the Company will not file any
Registration Statement or amendment thereto or any Prospectus or any
supplement thereto to which the holders of a majority of the Registrable
Securities covered by such Registration Statement or the underwriters,
if any, shall reasonably object;
(b) prepare and file with the SEC a Registration Statement or
Registration Statements relating to the applicable Demand Registration or
Piggyback Registration including all exhibits and financial statements
required by the SEC to be filed therewith, and use its best efforts to
cause such Registration Statement to become effective under the
Securities Act; and prepare and file with the SEC such amendments and
post-effective amendments to such Registration Statement, and such
supplements to the Prospectus, as may be reasonably requested by any
holder of Registrable Securities or any underwriter of Registrable
Securities or as may be required by the rules, regulations or
instructions applicable to the registration form utilized by the Company
or by the Securities Act or rules and regulations otherwise necessary to
keep the Registration Statement effective for a period of not less than
90 days (or such shorter period which will terminate when all Registrable
Securities covered by such Registration Statement have been sold or
withdrawn) with respect to a Piggyback Registration, and for a period
continuing during the Registration Period with respect to a Demand
Registration, or, if such Registration Statement relates to an
Underwritten Offering, such longer period as in the opinion of counsel
for the underwriters a Prospectus is required by law to be delivered in
connection with sales of Registrable Securities by an underwriter or
dealer; and cause the Prospectus as so supplemented to be filed pursuant
to Rule 424 under the Securities Act; and comply with the provisions of
the Securities Act and the Exchange Act with respect to the disposition
of all securities covered by such Registration Statement during the
applicable period in accordance with the intended methods of disposition
by the sellers thereof set forth in such Registration Statement or
supplement to the Prospectus;
(c) notify the selling holders of Registrable Securities and the
managing underwriters, if any, promptly, and (if requested by any such
Person) confirm such advice in writing,
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(1) when the Prospectus or any Prospectus supplement or
post-effective amendment has been filed, and, with respect to the
Registration Statement or any post-effective amendment, when the
same has become effective,
(2) of any request by the SEC for amendments or supplements
to the Registration Statement or the Prospectus or for additional
information,
(3) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose,
(4) if at any time the representations and warranties of the
Company contemplated by paragraph (o) below cease to be true and
correct,
(5) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Registrable
Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose, and
(6) of the existence of any fact which results in the
Registration Statement, the Prospectus or any document
incorporated therein by reference containing an untrue statement
of material fact or omitting to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading;
(d) make every reasonable effort to obtain the withdrawal of any
order suspending the effectiveness of the Registration Statement at the
earliest possible moment;
(e) if requested by the managing underwriter or underwriters or a
holder of Registrable Securities being sold in connection with an
Underwritten Offering, immediately incorporate in a Prospectus supplement
or post-effective amendment such information as the managing underwriters
and the holders of a majority of the Registrable Securities being sold
agree should be included therein relating to the plan of distribution
with respect to such Registrable Securities, including, without
limitation, information with respect to the amount of Registrable
Securities being
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sold to such underwriters, the purchase price being paid
therefor by such underwriters and with respect to any other terms of the
underwritten (or best efforts underwritten) offering of the Registrable
Securities to be sold in such offering; and make all required filings of
such Prospectus supplement or post-effective amendment as soon as
notified of the matters to be incorporated in such Prospectus supplement
or post-effective amendment;
(f) furnish to each selling holder of Registrable Securities and
each managing underwriter, without charge, at least one signed copy of
the Registration Statement and any post-effective amendment thereto,
including financial statements and schedules, all documents incorporated
therein by reference and all exhibits (including, if requested, those
incorporated by reference);
(g) deliver to each selling holder of Registrable Securities and the
underwriters, if any, without charge, as many copies of the Prospectus
(including each preliminary prospectus) and any amendment or supplement
thereto as such Persons may reasonably request (it being understood that
the Company consents to the use of the Prospectus or any amendment or
supplement thereto by each of the selling holders of Registrable
Securities and the underwriters, if any, in connection with the offering
and sale of the Registrable Securities covered by the Prospectus or any
amendment or supplement thereto) and such other documents as such selling
holder may reasonably request in order to facilitate the disposition of
the Registrable Securities by such holder and underwriters, if any;
(h) prior to any public offering of Registrable Securities, register
or qualify or cooperate with the selling holders of Registrable
Securities, the underwriters, if any, and their respective counsel in
connection with the registration or qualification of such Registrable
Securities for offer and sale under the securities or blue sky laws of
such jurisdictions as any selling holder of Registrable Securities or any
underwriter reasonably requests in writing and do any and all other acts
or things necessary or advisable to enable the disposition in such
jurisdictions of the Registrable Securities covered by the Registration
Statement; provided that the Company will not be required to qualify
generally to do business in any jurisdiction where it is not then so
qualified or to take any action which would subject it to general service
of process in any such jurisdiction where it is not then so subject;
(i) cooperate with the selling holders of Registrable Securities and
the managing underwriters, if any, to facilitate the timely preparation
and delivery of certificates representing Registrable Securities to be
sold and not bearing any
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restrictive legends; and enable such Registrable Securities to be in
such denominations and registered in such names as the managing
underwriters may request at least two business days prior to any sale of
Registrable Securities to the underwriters;
(j) use its best efforts to cause the Registrable Securities covered
by the applicable 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 underwriters, if
any, to consummate the disposition of such Registrable Securities;
(k) if any fact contemplated by paragraph (c)(6) above shall exist,
prepare a supplement or post-effective amendment to the Registration
Statement or the related Prospectus or any document incorporated therein
by reference or file any other required document so that, as thereafter
delivered to the purchasers of the Registrable Securities, the Prospectus
will not contain an untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to make the
statements therein not misleading;
(l) cause all Registrable Securities covered by the Registration
Statement to be listed on the New York Stock Exchange (the "NYSE") or, if
not listed on the NYSE, (i) to be listed on each securities exchange on
which similar securities issued by the Company are then listed or (ii) to
be quoted on the Nasdaq National Market, if requested by the holders of a
majority of such Registrable Securities or the managing underwriters, if
any;
(m) cause the Registrable Securities covered by the Registration
Statement to be rated with the appropriate rating agencies, if so
requested by the holders of a majority of such Registrable Securities or
the managing underwriters, if any;
(n) not later than the effective date of the applicable Registration
Statement, provide a CUSIP number for all Registrable Securities and
provide the applicable transfer agent with printed certificates for the
Registerable Securities which are in a form eligible for deposit with
Depositary Trust Company;
(o) enter into agreements (including underwriting agreements) and
take all other appropriate actions in order to expedite or facilitate the
disposition of such Registrable Securities and in such connection,
whether or not an underwriting
13
agreement is entered into and whether or not the registration is an
Underwritten Registration, deliver such documents and certificates as may
be requested by the holders of a majority of the Registrable Securities
being sold and the managing underwriters, if any, to evidence compliance
with paragraph (k) above and with any customary conditions contained in
the underwriting agreement or other agreement entered into by the Company,
and if an underwriting agreement is entered into or if the registration is
an Underwritten Registration:
(1) make such representations and warranties to the holders
of such Registrable Securities and the underwriters, if any, in
form, substance and scope as are customarily made by issuers to
underwriters in primary Underwritten Offerings and covering
matters including, but not limited to, those set forth in the
Agreement and Plan of Reorganization and Merger dated as of the
date hereof by and among the Investor, the Company and ▇-▇ Holdings
Corp.;
(2) obtain opinions of counsel to the Company and updates
thereof (which counsel and opinions (in form, scope and substance)
shall be reasonably satisfactory to the managing underwriters, if
any, and the holders of a majority of the Registrable Securities
being sold) addressed to each selling holder and the underwriters,
if any, covering the matters customarily covered in opinions
requested in Underwritten Offerings and such other matters as may
be reasonably requested by such holders and underwriters;
(3) obtain "cold comfort" letters and updates thereof from
the Company's independent certified public accountants addressed
to the selling holders of Registrable Securities and the
underwriters, if any, such letters to be in customary form and
covering matters of the type customarily covered in "cold comfort"
letters by underwriters in connection with primary Underwritten
Offerings; and
(4) if an underwriting agreement is entered into, cause the
same to set forth in full the indemnification provisions and
procedures of Section 8 hereof with respect to all parties to be
indemnified pursuant to said Section.
The above shall be done at the effectiveness of such Registration
Statement, each closing under any underwriting or similar agreement as
and to the extent required
14
thereunder and from time to time as may be requested by any selling
holder in connection with the disposition of Registrable Securities
pursuant to such Registration Statement;
(p) make available for inspection by a representative of the holders
of a majority of the Registrable Securities, any underwriter
participating in any disposition pursuant to such Registration Statement,
and any attorney or accountant retained by the sellers 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
representative, underwriter, attorney or accountant in connection with
the registration; provided that any records, information or documents
that are designated by the Company in writing as confidential shall be
kept confidential by such Persons unless disclosure of such records,
information or documents is required by court or administrative order;
(q) otherwise use its best efforts to comply with all applicable
rules and regulations of the SEC, and make generally available to its
security holders, earnings statements satisfying the provisions of
Section 11(a) of the Securities Act, no later than 45 days after the end
of any 12-month period (or 90 days, if such period is a fiscal year) (1)
commencing at the end of any fiscal quarter in which Registrable
Securities are sold to underwriters in an Underwritten Offering, or, if
not sold to underwriters in such an offering and (2) beginning with the
first month of the Company's first fiscal quarter commencing after the
effective date of the Registration Statement, which statements shall
cover said 12-month periods;
(r) 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
(s) promptly prior to the filing of any document which is to be
incorporated by reference into the Registration Statement or the
Prospectus (after initial filing of the Registration Statement), provide
copies of such document to counsel to the selling holders of Registrable
Securities and to the managing underwriters, if any, make the Company's
representatives available for discussion of such document and make such
changes in such document prior to the filing thereof as counsel for such
selling holders or underwriters may reasonably request; it being
understood that any document filed pursuant to the Exchange Act will be
15
provided concurrently with such filing and will not be subject to prior
review before filing.
The Company may require each seller of Registrable Securities as to
which any registration is being effected to furnish to the Company such
information regarding the distribution of such securities as the Company may
from time to time reasonably request in writing.
Each holder of Registrable Securities agrees by acquisition of such
Registrable Securities that, upon receipt of any notice from the Company of the
happening of any event of the kind described in Section 6(k) hereof, such holder
will forthwith discontinue disposition of Registrable Securities until such
holder's receipt of the copies of the supplemented or amended Prospectus
contemplated by Section 6(k) hereof, or until it is advised in writing by the
Company that the use of the Prospectus may be resumed, and has received copies
of any additional or supplemental filings which are incorporated by reference in
the Prospectus, and, if so directed by the Company, such holder will deliver to
the Company (at the Company's expense) all copies, other than permanent file
copies then in such holder's possession, of the Prospectus covering such
Registrable Securities current at the time of receipt of such notice. In the
event the Company shall give any such notice, the time periods during which such
Registration Statement shall be maintained effective shall be extended by the
number of days during the period from and including the date of the giving of
such notice to and including the date when each seller of Registrable Securities
covered by such Registration Statement either receives the copies of the
supplemented or amended prospectus contemplated by Section 6(k) hereof or is
advised in writing by the Company that the use of the Prospectus may be resumed.
On or before the tenth (10th) day of each month immediately following a
month in which the Investor sells Registrable Securities on the NYSE or
otherwise, the Investor shall deliver a notice to the Company setting forth the
number of Registrable Securities sold by the Investor during such month and the
number of Registrable Securities held by the Investor as of the end of such
month.
SECTION 7. Registration Expenses.
(a) All expenses incident to the Company's performance of or compliance
with this Agreement will be paid by the Company, regardless of whether the
Registration Statement becomes effective, including without limitation:
16
(1) all registration and filing fees (including with respect to
filings required to be made with the SEC, the NYSE and the NASD);
(2) fees and expenses of compliance with securities or blue sky laws
(including fees and disbursements of counsel for the underwriters or
selling holders in connection with blue sky qualifications of the
Registrable Securities and determination of their eligibility for
investment under the laws of such jurisdictions as the managing
underwriters or holders of a majority of the Registrable Securities being
sold may designate);
(3) printing (including expenses of printing certificates for the
Registrable Securities in a form eligible for deposit with the Depositary
Trust Company and of printing prospectuses), messenger, telephone and
delivery expenses;
(4) fees and disbursements of counsel for (i) the Company, (ii)
subject to the last paragraph of this Section 7(a), the underwriters and
(iii) subject to the last paragraph of this Section 7(a), the
sellers of the Registrable Securities (subject to the provisions of
Section 7(b) hereof);
(5) fees and disbursements of all independent certified public
accountants of the Company (including the expenses of any special audit
and "cold comfort" letters required by or incident to such performance);
(6) subject to the last paragraph of this Section 7(a), fees and
disbursements of underwriters (excluding discounts, commissions or fees
of underwriters, selling brokers, dealer managers or similar securities
industry professionals relating to the distribution of the Registrable
Securities and legal expenses of any Person other than the Company, the
underwriters and the selling holders);
(7) fees and expenses of other Persons retained by the Company; and
(8) fees and expenses associated with any NASD filing required to be
made in connection with the Registration Statement, including, if
applicable, the fees and expenses of any "qualified independent
underwriter" (and its counsel) that is required to be retained in
accordance with the rules and regulations of the NASD (all such expenses
being herein called "Registration Expenses").
17
The Company will, in any event, pay its internal expenses (including,
without limitation, all salaries and expenses of its officers and employees
performing legal or accounting duties), the expense of any annual audit, the
fees and expenses incurred in connection with the listing of the securities to
be registered on each securities exchange on which similar securities issued by
the Company are then listed, rating agency fees and the fees and expenses of
any Person, including special experts, retained by the Company.
The Company shall not be required to pay more than $25,000 for the fees
and expenses referred to in Section 7(a)(4)(ii) and (iii) and Section 7(a)(6)
above.
(b) In connection with each Registration Statement required hereunder, the
Company will reimburse the holders of Registrable Securities being registered
pursuant to such Registration Statement for the reasonable fees and
disbursements of not more than one counsel (or more than one counsel if a
conflict exists among such selling holders in the exercise of the reasonable
judgment of counsel for the selling holders and counsel for the Company) chosen
by the holders of a majority of such Registrable Securities.
SECTION 8. Indemnification.
(a) Indemnification by the Company. The Company agrees to indemnify and
hold harmless each holder of Registrable Securities, its officers, directors,
employees and Agents and each Person who controls such holder within the
meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act (each such person being sometimes hereinafter referred to as an
"Indemnified Holder") from and against all losses, claims, damages, liabilities
and expenses (including reasonable costs of investigation and legal expenses)
arising out of or based upon any untrue statement or alleged untrue statement
of a material fact contained in any Registration Statement or Prospectus or in
any amendment or supplement thereto or in any preliminary prospectus, or
arising out of or based upon any omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such losses, claims,
damages, liabilities or expenses arise out of or are based upon any such untrue
statement or omission or allegation thereof based upon information furnished in
writing to the Company by such holder expressly for use therein; provided,
however, that the Company shall not be liable in any such case to the extent
that any such loss, claim, damage, liability or expense arises out of or is
based upon an untrue statement or alleged untrue statement or omission or
alleged omission in any Prospectus or preliminary prospectus, if such untrue
statement or alleged untrue statement, omission or alleged omission is
completely corrected in an amendment or supplement to the Prospectus or
preliminary prospectus and if, having previously been furnished by or on behalf
of the
18
Company with copies of the Prospectus or preliminary prospectus as so
amended or supplemented, such holder thereafter fails to deliver such
Prospectus or preliminary prospectus as so amended or supplemented, prior to or
concurrently with the sale of a Registrable Security to the person asserting
such loss, claim, damage, liability or expense who purchased such Registrable
Security which is the subject thereof from such holder. This indemnity will be
in addition to any liability which the Company may otherwise have. The Company
will also indemnify underwriters, selling brokers, dealer managers and similar
securities industry professionals participating in the distribution, their
officers and directors and each Person who controls such Persons (within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act)
to the same extent as provided above with respect to the indemnification of the
Indemnified Holders of Registrable Securities.
If any action or proceeding (including any governmental investigation or
inquiry) shall be brought or asserted against an Indemnified Holder in respect
of which indemnity may be sought from the Company, such Indemnified Holder
shall promptly notify the Company in writing, and the Company shall assume the
defense thereof, including the employment of counsel reasonably satisfactory to
such Indemnified Holder and the payment of all expenses. Such Indemnified
Holder shall have the right to employ separate counsel in any such action and
to participate in the defense thereof, but the fees and expenses of such
counsel shall be at the expense of such Indemnified Holder unless (a) the
Company has agreed to pay such fees and expenses or (b) the Company shall have
failed to assume the defense of such action or proceeding and has failed to
employ counsel satisfactory to such Indemnified Holder in any such action or
proceeding or (c) the named parties to any such action or proceeding (including
any impleaded parties) include both such Indemnified Holder and the Company,
and such Indemnified Holder shall have been advised by counsel that there may
be one or more legal defenses available to such Indemnified holder which are
different from or additional to those available to the Company (in which case,
if such Indemnified Holder notifies the Company in writing that it elects to
employ separate counsel at the expense of the Company, the Company shall not
have the right to assume the defense of such action or proceeding on behalf of
such Indemnified Holder, it being understood, however, that the Company shall
not, in connection with any one such action or proceeding or separate but
substantially similar or related actions or proceedings in the same
jurisdiction arising out of the same general allegations or circumstances, be
liable for the reasonable fees and expenses of more than one separate firm of
attorneys at any time for such Indemnified Holder and any other Indemnified
Holders, which firm shall be designated in writing by such Indemnified
Holders). The Company shall not be liable for any settlement of any such
action or proceeding effected without its written consent, but if settled with
its written consent, or
19
if there be a final judgment for the plaintiff in any such action or
proceeding, the Company agrees to indemnify and hold harmless such Indemnified
Holders from and against any loss or liability by reason of such settlement or
judgment.
(b) Indemnification by Holder of Registrable Securities. Each holder of
Registrable Securities agrees to indemnify and hold harmless the Company, its
officers, directors, employees and Agents and each Person, if any, who controls
the Company within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act to the same extent as the foregoing indemnity
from the Company to such holder, but only with respect to information relating
to such holder furnished in writing by such holder expressly for use in any
Registration Statement or Prospectus, or any amendment or supplement thereto,
or any preliminary prospectus. In case any action or proceeding shall be
brought against the Company or its directors or officers or any such
controlling person, in respect of which indemnity may be sought against a
holder of Registrable Securities, such holder shall have the rights and duties
given the Company and the Company or its officers, directors, employees and
Agents or such controlling person shall have the rights and duties given to
each holder by the preceding paragraph. In no event shall the liability of any
selling holder of Registrable Securities hereunder be greater in amount than
the dollar amount of the proceeds received by such holder upon the sale of
the Registrable Securities giving rise to such indemnification obligation.
The Company shall be entitled to receive indemnities from underwriters,
selling brokers, dealer managers and similar securities industry professionals
participating in the distribution, to the same extent as provided above with
respect to information so furnished in writing by such Persons specifically for
inclusion in any Prospectus or Registration Statement or any amendment or
supplement thereto, or any preliminary prospectus.
(c) Contribution. If the indemnification provided for in this Section 8
is unavailable to an indemnified party under Section 8(a) or Section 8(b)
hereof (other than by reason of exceptions provided in those Sections) in
respect of any losses, claims, damages, liabilities or expenses referred to
therein, then each applicable indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages, liabilities or
expenses in such proportion as is appropriate to reflect the relative fault of
the Company on the one hand and of the Indemnified Holder on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages, liabilities or expenses, as well as any other relevant
equitable considerations. The relative fault of the Company on the one hand
and of the Indemnified Holder on the other shall be determined
20
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 Company or by the
Indemnified Holder and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The amount paid or payable by a party as a result of the losses, claims,
damages, liabilities and expenses referred to above shall be deemed to include,
subject to the limitations set forth in the second paragraph of Section 8(a),
any legal or other fees or expenses reasonably incurred by such party in
connection with investigating or defending any action or claim.
The Company and each holder of Registrable Securities agree that it would
not be just and equitable if contribution pursuant to this Section 8(c) were
determined by pro rata allocation or by any other method of allocation which
does not take account of the equitable considerations referred to in the
immediately preceding paragraph. Notwithstanding the provisions of this Section
8(c), an Indemnified Holder shall not be required to contribute any amount in
excess of the amount by which the total price at which the Securities sold by
such Indemnified Holder or its affiliated Indemnified Holders and distributed
to the public were offered to the public exceeds the amount of any damages
which such Indemnified Holder, or its affiliated Indemnified Holder, has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
SECTION 9. Rule 144.
The Company covenants that it will file the reports required to be filed
by it under the Securities Act and the Exchange Act and the rules and
regulations adopted by the SEC thereunder (or, if the Company is not required
to file such reports, it will, upon the request of any holder of Registrable
Securities made after the first anniversary of the date hereof, make publicly
available such information as necessary to permit sales pursuant to Rule 144
under the Securities Act), and it will take such further action as any holder
of Registrable Securities may reasonably request, all to the extent required
from time to time to enable such holder to sell Registrable Securities without
registration under the Securities Act within the limitation of the exemptions
provided by (a) Rule 144 under the Securities Act, as such Rule may be amended
from time to time, or (b) any similar rule or regulation hereafter adopted by
the SEC. Upon the request of any holder of Registrable Securities, the Company
will deliver to such holder a written statement as to whether it has complied
with such information and requirements.
21
SECTION 10. Participation in Underwritten Registrations.
No Person may participate in any Underwritten Registration hereunder
unless such Person (a) agrees to sell such Person's 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
questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents required under the terms of such underwriting arrangements.
SECTION 11. Miscellaneous.
(a) Remedies. Each holder of Registrable Securities, in addition to being
entitled to exercise all rights provided herein, in the Warrant Agreement, the
Telemarketing Agreement and the Demand Note and granted by law, including
recovery of damages, will be entitled to specific performance of its rights
under this Agreement. The Company agrees that monetary damages would not be
adequate compensation for any loss incurred by reason of a breach by it of the
provisions of this Agreement and hereby agrees to waive the defense in any
action for specific performance that a remedy at law would be adequate.
(b) No Inconsistent Agreements. The Company will not on or after the date
of this Agreement enter into any agreement with respect to its securities which
is inconsistent with the rights granted to the holders of Registrable
Securities in this Agreement or otherwise conflicts with the provisions hereof.
The Company represents and warrants that the rights granted to the holders of
Registrable Securities hereunder do not in any way conflict with and are not
inconsistent with the rights granted to the holders of the Company's securities
under any agreement in effect on the date hereof.
(c) Adjustments Affecting Registrable Securities. The Company will not
take any action, or permit any change to occur, with respect to the Registrable
Securities which would adversely affect the ability of the holders of
Registrable Securities to include such Registrable Securities in a registration
undertaken pursuant to this Agreement.
(d) Amendments and Waivers. The provisions of this Agreement, including
the provisions of this sentence, may not be amended, modified or supplemented,
and waivers or consents to departures from the provisions hereof may not be
given unless the Company has obtained the written consent of holders of at
least a majority of the outstanding Registrable Securities. Notwithstanding
the foregoing, a waiver or consent to departure from the provisions hereof that
relates exclusively to the rights of holders of
22
Registrable Securities whose securities are being sold pursuant to a
Registration Statement and that does not directly or indirectly affect the
rights of other holders of Registrable Securities may be given by the holders
of a majority of the Registrable Securities being sold.
(e) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, telex, telecopier, or air courier guaranteeing overnight
delivery:
(i) if to a holder of Registrable Securities, at the most current
address given by such holder to the Company in accordance with the
provisions of this Section 11(e), which address initially is, with
respect to the Investor, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇-▇▇▇▇, Attention: General Counsel, with a copy to ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, Esq.; and
(ii) if to the Company, initially at Eleven Penn Center, Suite 1100,
1835 Market Street, Philadelphia, Pennsylvania, Attention: General
Counsel and thereafter at such other address, notice of which is given in
accordance with the provisions of this Section 11(e), with a copy to
Klehr, Harrison, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five 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
next business day, if timely delivered to an air courier guaranteeing overnight
delivery.
(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 Registrable Securities; provided, however, that after the
date hereof this Agreement shall not inure to the benefit of or be binding upon
a successor or assign of a holder of Registrable Securities unless and to the
extent such successor or assign acquired Registrable 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
23
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) Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware.
(j) 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.
(k) Entire Agreement. This Agreement is intended by the parties 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 the Company with respect to
the securities issued pursuant to the Warrant Agreement or the Demand Note.
This Agreement supersedes all prior agreements and understandings between the
parties with respect to such subject matter.
[Signature Page to Follow]
24
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
NATIONAL MEDIA CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: President and Chief
Executive Officer
VALUEVISION INTERNATIONAL, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Chairman and Chief
Executive Officer
S-1