1
Form of
Registration Rights Agreement
between
G.E. Capital Equity Investments, Inc.
and
ValueVision International, Inc.
Dated as of ________, 1999
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TABLE OF CONTENTS
Page
Section 1. Definitions.........................................................2
Section 2. Demand Registration.................................................3
(a) Requests for Registration by Holders...........................3
(b) Filing and Effectiveness.......................................4
(c) Priority on Demand Registration................................5
(d) Postponement of Demand Registration............................5
Section 3. Piggyback Registration..............................................5
(a) Right to Piggyback.............................................5
(b) Priority on Piggyback Registrations............................6
Section 4. Restrictions on Sale by Holders.....................................6
Section 5. Registration Procedures.............................................7
Section 6. Registration Expenses..............................................13
Section 7. Indemnification....................................................14
(a) Indemnification by the Company................................14
(b) Indemnification by Holders....................................14
(c) Conduct of Indemnification Proceedings........................15
(d) Contribution..................................................16
Section 8. Underwritten Registrations.........................................16
Section 9. Miscellaneous......................................................17
(a) Remedies......................................................17
(b) Amendments and Waivers........................................17
(c) Notices.......................................................17
(e) Successors and Assigns........................................18
(f) Counterparts..................................................19
(g) Headings......................................................19
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Page
(h) Governing Law.................................................19
(i) Severability..................................................19
(j) Entire Agreement..............................................19
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FORM OF
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made and
entered into as of _______, 1999, by and between ValueVision International,
Inc., a Minnesota corporation (together with is successors and assigns, the
"Company"), and G.E. Capital Equity Investments, Inc., a Delaware corporation
(together with its successors and assigns, the "Purchaser"), and each other
person who becomes a Holder hereunder.
RECITALS
WHEREAS, pursuant to an Investment Agreement dated as of March 8,
1999 (the "Investment Agreement") between the Company and the Purchaser, the
Purchaser is purchasing shares of Series A Redeemable Convertible Preferred
Stock of the Company, par value $0.01 per share (including any securities into
which such preferred stock may be or has been converted or exchanged in any
merger, consolidation or reclassification, the "Preferred Stock"), that are
convertible into Common Stock of the Company, par value $0.01 per share (the
"Common Stock"); and
WHEREAS, pursuant to the Investment Agreement the Purchaser is
purchasing warrants to purchase shares of Common Stock; and
WHEREAS, pursuant to the Distribution Agreement (as defined below),
the Purchaser or its Affiliate will, under certain terms and conditions
specified therein, receive warrants to purchase shares of Common Stock (together
with warrants received under the Investment Agreement, the "Warrants"); and
WHEREAS, the Company's shares of Common Stock are registered with
the SEC and quoted on the Nasdaq Stock Market; and
WHEREAS, to induce the Purchaser to execute and deliver the
Investment Agreement and NBC to execute and deliver the Distribution Agreement,
the Company has agreed to provide to the Holders (as defined below) certain
registration rights under the Securities Act; and
WHEREAS, the execution and delivery of this agreement by the parties
hereto is a condition to the closing of the transactions contemplated by the
Investment Agreement.
NOW, THEREFORE, in consideration of the mutual promises and
agreements set forth herein and in the Investment Agreement, and other valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties hereto hereby agree as follows:
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Registration Rights Agreement
Section 1. Definitions. For purposes of this Agreement, the following
capitalized terms have the following meanings:
"Common Stock": The Common Stock of the Company and any securities
into which such common stock may be or has been converted or exchanged in any
merger, consolidation or reclassification.
"Distribution Agreement": The Distribution and Marketing Agreement
dated as of March 8, 1999 between the Company and NBC pursuant to which NBC has
agreed to distribute certain programming of the Company, as such agreement may
be amended, supplemented or otherwise modified from time to time.
"Holders": Each Restricted Party (as defined in the Shareholder
Agreement) that from time to time owns Registrable Securities and each of their
permitted transferees pursuant to Section 9(e) who agree to be bound by the
provisions of this Agreement in accordance with said section.
"Prospectus": The prospectus included in any Registration Statement
(including, without limitation, a prospectus that discloses information
previously omitted from a prospectus filed as part of an effective registration
statement in reliance upon Rule 430A under the Securities Act), as amended or
supplemented by any prospectus supplement, with respect to the terms of the
offering of any portion of the Registrable Securities covered by such
Registration Statement and all other amendments and supplements to such
prospectus, including post-effective amendments, and all material incorporated
by reference or deemed to be incorporated by reference in such prospectus.
"Registrable Securities": All shares of Common Stock (i) held from
time to time by the Holders who are Restricted Parties (the "Restricted Party
Common Stock") or (ii) held by Holders who are not Restricted Parties (but only
to the extent that such Common Stock previously constituted Restricted Party
Common Stock or Common Stock described in clause (iii) below) or (iii) issued or
issuable upon the conversion of Preferred Stock into Common Stock or (iv) issued
or issuable upon the exercise of Warrants, excluding shares of Common Stock that
have been disposed of by a Holder pursuant to a Registration Statement relating
to the sale thereof that has become effective under the Securities Act or
pursuant to Rule 144 or Rule 145 under the Securities Act. Registrable
Securities shall also include any shares of the Common Stock or other securities
(or shares of Common Stock underlying such other securities) that may be
received by the Holders (x) as a result of a stock dividend on or stock split of
Registrable Securities or (y) on account of Registrable Securities in a
recapitalization of or other transaction involving the Company.
"Registration Statement": Any registration statement of the Company
under the Securities Act that covers any of the Registrable Securities pursuant
to the provisions of this
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Registration Rights Agreement
Agreement, including the related Prospectus, any preliminary prospectus, all
amendments and supplements to such registration statement (including
post-effective amendments), all exhibits and all material incorporated by
reference or deemed to be incorporated by reference in such registration
statement.
"SEC": The Securities and Exchange Commission.
"Securities Act": The Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder.
"Shareholder Agreement": The Shareholder Agreement, dated as of the
date hereof, between the Company and the Purchaser, as such agreement may be
amended, supplemented or otherwise modified from time to time.
"Underwritten Offering": A distribution, registered pursuant to the
Securities Act, in which securities of the Company are sold to the public
through one or more underwriters.
Section 2. Demand Registration.
(a) Requests for Registration by Holders. Subject to the terms and
conditions of the Shareholder Agreement, at any time and from time to time,
subject to the conditions set forth in this Agreement: (i) one or more Holders
will have the right, by written notice delivered to the Company (a "Demand
Notice"), to require the Company to register Registrable Securities under and in
accordance with the provisions of the Securities Act (a "Demand Registration"),
provided that the Holders may not make in the aggregate more than four (4)
Demand Registrations under this Agreement; provided, further, that: (i) no such
Demand Registration may be required unless the Holders requesting such Demand
Registration provide to the Company a certificate (the "Authorizing
Certificate"), seeking to include Registrable Securities in such Demand
Registration with a market value of at least $5,000,000 (calculated based on the
closing sale price of such securities on the principal securities exchange where
such securities are listed on the business day immediately preceding the date of
the Demand Notice) as of the date the Demand Notice is given; and (ii) no Demand
Notice may be given prior to six (6) months after the effective date of the
immediately preceding Demand Registration or, if later, the date on which a
registration pursuant to this Section 2 is terminated in its entirety prior to
the effective date of the applicable registration statement. The Authorizing
Certificate shall set forth (A) the name of each Holder signing such Authorizing
Certificate, (B) the number of Registrable Securities held by each such Holder,
and, if different, the number of Registrable Securities such Holder has elected
to have registered, and (C) the intended methods of disposition of the
Registrable Securities. Notwithstanding the foregoing, a good faith decision by
a Holder to withdraw Registrable Securities from registration will not affect
the Company's obligations hereunder even if the
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Registration Rights Agreement
amount remaining to be registered has a market value of less than $5,000,000
(calculated as aforesaid), provided that: (1) such continuing registration shall
constitute a Demand Registration, (2) the withdrawing Holder reimburses the
Company for any registration and filing fees (including any fees payable to the
National Association of Securities Dealers, Inc. or any successor organization)
it has incurred with respect to the withdrawn Registrable Securities (unless all
Registrable Securities are withdrawn, in which case the withdrawing Holder(s)
shall reimburse the Company for all costs and expenses incurred by it in
connection with the registration of such Registrable Securities) and (3) such
Holder (or the other Holders participating in the subject registration) did not
include the withdrawn Registrable Securities as a means of circumventing the
$5,000,000 threshold described above. Subject to compliance with clause (2) of
the preceding proviso, a registration that is terminated in its entirety prior
to the effective date of the applicable registration statement will not
constitute a Demand Registration.
(b) Filing and Effectiveness. The Company will file a Registration
Statement relating to any Demand Registration as promptly as practicable (but in
any event within 90 days) following the date on which the Demand Notice is given
and will use all reasonable efforts to cause the same to be declared effective
by the SEC as soon as practicable thereafter. If any Demand Registration is
requested to be effected as a shelf registration pursuant to Rule 415 under the
Securities Act by the Holders demanding such Demand Registration, the Company
will keep the Registration Statement filed in respect thereof effective for a
period of six (6) months from the date on which the SEC declares such
Registration Statement effective (subject to extension pursuant to Section 5) or
such shorter period that will terminate when all Registrable Securities covered
by such Registration Statement have been sold pursuant to such Registration
Statement.
Within ten (10) business days after receipt of such Demand Notice,
the Company will serve written notice thereof (the "Notice") to all other
Holders and will, subject to the provisions of Section 2(c), include in such
registration all Registrable Securities with respect to which the Company
receives written requests for inclusion therein within ten (10) business days
after receipt of the Notice by the applicable Holder. Subject to the proviso at
the end of Section 2(a), the Holder will be permitted to withdraw in good faith
all or part of the Registrable Securities from a Demand Registration at any time
prior to the effective date of such Demand Registration, in which event the
Company will promptly amend or, if applicable, withdraw the related Registration
Statement.
(c) Priority on Demand Registration. If Registrable Securities are
to be registered pursuant to a Demand Registration, the Company shall provide
written notice to the other Holders and will permit all such Holders who request
to be
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Registration Rights Agreement
included in the Demand Registration to include any or all Registrable Securities
held by such Holders in such Demand Registration. Notwithstanding the foregoing,
if the managing underwriter or underwriters of an Underwritten Offering to which
such Demand Registration relates advises the Holders that the total amount of
Registrable Securities that such Holders intend to include in such Demand
Registration is in the aggregate such as to materially and adversely affect the
success of such offering, then the number of Registrable Securities to be
included in such Demand Registration will, if necessary, be reduced and there
will be included in such underwritten offering the number of Registrable
Securities that, in the opinion of such managing underwriter or underwriters,
can be sold without materially and adversely affecting the success of such
Underwritten Offering. The Registrable Securities of the Holder or Holders
initiating the Demand Registration shall receive priority in such Underwritten
Offering to the full extent of the Registrable Securities such Holder or Holders
desire to sell (unless these securities would materially and adversely affect
the success of such offering, in which case the number of such Holder's
Registrable Securities included in the offering shall be reduced to the extent
necessary) and the remaining allocation available for sale, if any, shall be
allocated pro rata among the other Holders on the basis of the amount of
Registrable Securities requested to be included therein by each such Holder.
(d) Postponement of Demand Registration. The Company will be
entitled to postpone the filing period of any Demand Registration for a
reasonable period of time not in excess of 90 calendar days if the Company
determines, in the good faith exercise of the business judgment of its Board of
Directors, that such registration and offering could materially interfere with a
bona fide business or financing transaction of the Company or would require
disclosure of information, the premature disclosure of which could materially
and adversely affect the Company. If the Company postpones the filing of a
Registration Statement, it will promptly notify the Holders in writing (i) when
the events or circumstances permitting such postponement have ended and (ii)
that the decision to postpone was made by the Board of Directors of the Company
in accordance with this Section 2(d).
Section 3. Piggyback Registration.
(a) Right to Piggyback. If at any time the Company proposes to file
a Registration Statement, whether or not for sale for the Company's own account,
on a form and in a manner that would also permit registration of Registrable
Securities, the Company shall give to Holders holding Registrable Securities,
written notice of such proposed filing at least thirty (30) days before the
anticipated filing. The notice referred to in the preceding sentence shall offer
Holders the opportunity to register such amount of Registrable Securities as
each Holder may request (a "Piggyback Registration"). Subject to Section 3(b),
the Company will include in each such Piggyback Registration all Registrable
Securities with respect to which the Company has
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Registration Rights Agreement
received written requests for inclusion therein. Subject to clause (2) of the
proviso at the end of Section 2(a), the Holders will be permitted to withdraw
all or part of the Registrable Securities from a Piggyback Registration at any
time prior to the effective date of such Piggyback Registration.
Notwithstanding the foregoing, the Company will not be obligated to
effect any registration of Registrable Securities under this Section 3 as a
result of the registration of any of its securities solely in connection with
mergers, acquisitions, exchange offers, dividend reinvestment and share purchase
plans offered solely to current holders of the Common Stock, rights offerings or
option or other employee benefit plans.
(b) Priority on Piggyback Registrations. The Company will cause the
managing underwriter or underwriters of a proposed Underwritten Offering on
behalf of the Company to permit Holders holding Registrable Securities requested
to be included in the registration for such offering to include therein all such
Registrable Securities requested to be so included on the same terms and
conditions as any securities of the Company included therein (other than the
indemnification by the Holders, which will be limited as set forth in Section 7
hereof). Notwithstanding the foregoing, if the managing underwriter or
underwriters of such Underwritten Offering advises the Holders to the effect
that the total amount of securities that such Holders and the Company propose to
include in such Underwritten Offering is such as to materially and adversely
affect the success of such offering, then the Company will include in such
registration (i) first, 100% of the Common Stock the Company proposes to sell,
and (ii) second, to the extent of the number of Registrable Securities requested
to be included in such registration which, with the advice of such managing
underwriter, can be sold without having the adverse effect referred to above,
the number of Registrable Securities which the Holders have requested to be
included in such registration, such amount to be allocated pro rata among all
requesting Holders on the basis of the relative number of Registrable Securities
then held by each such Holder.
Section 4. Restrictions on Sale by Holders. Each Holder agrees, if such
Holder is so requested (pursuant to a timely written notice) by the managing
underwriter or underwriters in an Underwritten Offering, not to effect any
public sale or distribution of any of the Company's securities of such class or
securities convertible or exchangeable into such class (except as part of such
underwritten offering), including a sale pursuant to Rule 144 under the
Securities Act, during the 15-calendar day period prior to, and during the
90-calendar day period beginning on, the closing date of such Underwritten
Offering.
Section 5. Registration Procedures. In connection with the Company's
registration obligations pursuant to Sections 2 and 3, the Company will effect
such registrations to permit the sale of such Registrable Securities in
accordance with the intended method or methods of disposition thereof, and
pursuant thereto
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Registration Rights Agreement
the Company will as expeditiously as possible, and in each case to the extent
applicable (it being understood that the obligations of the Company in clauses
(a), (b), (d), (h), (j), (k), (l), (n) and (q) of this Section 5 will be subject
to the first sentence of Section 3(b) and, except as provided in Section 3(b),
the Holders will not have any right to effect an underwritten public offering
under Section 3):
(a) Prepare and file with the SEC a Registration Statement or
Registration Statements on any appropriate form under the Securities Act
available for the sale of the Registrable Securities by the holders
thereof in accordance with the intended method or methods of distribution
thereof, and cause each such Registration Statement to become effective
and remain effective as provided herein; provided, however, that before
filing a Registration Statement or Prospectus or any amendments or
supplements thereto (including documents that would be incorporated or
deemed to be incorporated therein by reference) the Company will furnish
to the Holders holding Registrable Securities covered by such Registration
Statement, not more than one counsel chosen by Holders holding a majority
of the Registrable Securities being registered ("Special Counsel") and the
managing underwriters, if any, copies of all such documents proposed to be
filed, which documents will be subject to the review of such Holders, such
Special Counsel and such underwriters, and the Company will not file any
such Registration Statement or amendment thereto or any Prospectus or any
supplement thereto (excluding such documents that, upon filing, will be
incorporated or deemed to be incorporated by reference therein) to which
the Holders holding a majority of the Registrable Securities covered by
such Registration Statement or the managing underwriter, if any, shall
reasonably object.
(b) Prepare and file with the SEC such amendments and
post-effective amendments to each Registration Statement as may be
necessary to keep such Registration Statement continuously effective for
the applicable periods specified in Section 2; cause the related
Prospectus to be supplemented by any required Prospectus supplement, and
as so supplemented to be filed pursuant to Rule 424 (or any similar
provisions then in force) under the Securities Act; and comply with the
provisions of the Securities 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 as so amended or
in such Prospectus as so supplemented.
(c) Notify the selling Holders and the managing underwriters,
if any, promptly, and (if requested by any such person) confirm such
notice in writing, (i) when a Prospectus or any Prospectus supplement or
post-effective amendment has been filed, and, with respect to a
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Registration Rights Agreement
Registration Statement or any post-effective amendment, when the same has
become effective, (ii) of any request by the SEC or any other federal or
state governmental authority for amendments or supplements to a
Registration Statement or related Prospectus or for additional
information, (iii) of the issuance by the SEC or any other federal or
state governmental authority of any stop order suspending the
effectiveness of a Registration Statement or the initiation of any
proceedings for that purpose, (iv) if at any time the representations and
warranties of the Company contained in any agreement contemplated by
Section 5(n) (including any underwriting agreement) cease to be true and
correct in any material respect, (v) of the receipt by the Company of any
notification with respect to the suspension of the qualification or
exemption from qualification of any of the Registrable Securities for sale
in any jurisdiction or the initiation or threatening of any proceeding for
such purpose, (vi) of the occurrence of any event that makes any statement
made in such Registration Statement or related Prospectus or any document
incorporated or deemed to be incorporated therein by reference untrue in
any material respect or that requires the making of any changes in a
Registration Statement, Prospectus or any such document so that, in the
case of the Registration Statement, it will not contain any untrue
statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein not
misleading and, in the case of the Prospectus, it will not contain any
untrue statement of a material fact or omit to state any material fact
required to be stated or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading, and
(vii) of the Company's reasonable determination that a post-effective
amendment to a Registration Statement would be appropriate.
(d) Use every reasonable effort to obtain the withdrawal of
any order suspending the effectiveness of a Registration Statement, or the
lifting of any suspension of the qualification (or exemption from
qualification) of any of the Registrable Securities for sale in any
jurisdiction, at the earliest possible moment.
(e) If requested by the managing underwriters, if any, or
Holders holding a majority of the Registrable Securities being registered,
(i) promptly incorporate in a Prospectus supplement or post-effective
amendment such information as the managing underwriters, if any, and such
Holders agree should be included therein as may be required by applicable
law and (ii) make all required filings of such Prospectus supplement or
such post-effective amendment as soon as practicable after the Company has
received notification of the matters to be incorporated in such Prospectus
supplement or post-effective amendment; provided, however, that the
Company will not be required to take any actions under this Section 5(e)
that are not, in the opinion
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of counsel for the Company, in compliance with applicable
law.
(f) Furnish to each selling Holder and each managing
underwriter, if any, without charge, at least one conformed copy of the
Registration Statement and any post-effective amendment thereto, including
financial statements (but excluding schedules, all documents incorporated
or deemed incorporated therein by reference and all exhibits, unless
requested in writing by such holder or underwriter).
(g) Deliver to each selling Holder and the underwriters, if
any, without charge as many copies of the Prospectus or Prospectuses
relating to such Registrable Securities (including each preliminary
prospectus) and any amendment or supplement thereto as such persons may
reasonably request; and, subject to the last paragraph of this Section 5,
the Company hereby consents to the use of such Prospectus or each
amendment or supplement thereto by each of the selling Holders and the
underwriters, if any, in connection with the offering and sale of the
Registrable Securities covered by such Prospectus or any amendment or
supplement thereto.
(h) Prior to any public offering of Registrable Securities, to
register or qualify or cooperate with the selling Holders, the
underwriters, if any, and their respective counsel in connection with the
registration or qualification (or exemption from such registration or
qualification) of such Registrable Securities for offer and sale under the
securities or blue sky laws of such jurisdictions within the United States
as any seller or underwriter reasonably requests in writing; use all
reasonable efforts to keep such registration or qualification (or
exemption therefrom) effective during the period the applicable
Registration Statement is required to be kept effective and do any and all
other acts or things necessary or advisable to enable the disposition in
each such jurisdiction of the Registrable Securities covered by the
applicable Registration Statement; provided, however, that the Company
will not be required to (i) qualify to do business in any jurisdiction
where it is not then so qualified or (ii) take any action that would
subject it to taxation or service of process in any such jurisdiction
where it is not then so subject.
(i) Cooperate with the selling Holders and the managing
underwriters, if any, to facilitate the timely preparation and delivery of
certificates representing Registrable Securities to be sold and enable
such Registrable Securities to be in such denominations and registered in
such names as the managing underwriters, if any, shall request at least
two business days prior to any sale of Registrable Securities to the
underwriters.
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(j) Use all reasonable 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 within the United States except as may be required solely as a
consequence of the nature of any selling Holder's business, in which case
the Company will cooperate in all reasonable respects with the filing of
such Registration Statement and the granting of such approvals 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) Upon the occurrence of any event contemplated by Section
5(c)(vi) or 5(c)(vii), prepare a supplement or post-effective amendment to
each Registration Statement or a supplement to the related Prospectus or
any document incorporated therein by reference or file any other required
document so that, as thereafter delivered to the purchasers of the
Registrable Securities being sold thereunder, such Prospectus will not
contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
(l) If requested by Holders holding a majority of the
Registrable Securities covered by such Registration Statement or the
managing underwriters, if any, use its best efforts to cause all
Registrable Securities covered by such Registration Statement to be (i)
listed on each securities exchange, if any, on which securities issued by
the Company of the same class are then listed or, if no such securities
issued by the Company are then so listed, on the New York Stock Exchange
or another national securities exchange if the securities qualify to be so
listed or (ii) authorized to be quoted on the National Association of
Securities Dealers Automated Quotation System ("Nasdaq") or the National
Market System of Nasdaq, if the securities qualify to be so quoted.
(m) As needed, (i) engage an appropriate transfer agent and
provide the transfer agent with printed certificates for the Registrable
Securities in a form eligible for deposit with The Depository Trust
Company and (ii) provide a CUSIP number for the Registrable Securities.
(n) Enter into such customary agreements (including, in the
event of an Underwritten Offering, an underwriting agreement in form,
scope and substance as is customary in underwritten offerings) and take
all such other commercially reasonable and customary actions in connection
therewith (including those reasonably requested by the Holders holding a
majority of the Registrable Securities being sold or, in the event of an
Underwritten Offering, those reasonably requested by the managing
underwriters) in
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order to facilitate the disposition of such Registrable Securities and in
such connection, but only where an underwriting agreement is entered into
in connection with an underwritten registration, (i) make such
representations and warranties to the underwriters with respect to the
businesses of the Company and its subsidiaries, the Registration
Statement, Prospectus and documents incorporated by reference or deemed
incorporated by reference therein, if any, in each case, in form,
substance and scope as are customarily made by issuers to underwriters in
underwritten offerings and confirm the same if and when requested; (ii)
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, addressed to each of
the underwriters covering the matters customarily covered in opinions
requested in underwritten offerings and such other matters as may be
reasonably requested by such underwriters; (iii) use reasonable efforts to
obtain "comfort" letters and updates thereof from the independent
certified public accountants of the Company (and, if necessary, any other
certified public accountants of any subsidiary of the Company or of any
business acquired by the Company for which financial statements and
financial data is, or is required to be, included in the Registration
Statement), addressed to each of the underwriters, such letters to be in
customary form and covering matters of the type customarily covered in
"comfort" letters in connection with underwritten offerings; and (iv)
deliver such documents and certificates as may be reasonably requested by
the managing underwriters, if any, to evidence the continued validity of
the representations and warranties of the Company and its subsidiaries
made pursuant to clause (i) above and to evidence compliance with any
customary conditions contained in the underwriting agreement entered into
by the Company. The foregoing actions will be taken in connection with
each closing under such underwriting agreement as and to the extent
required thereunder.
(o) Make available for reasonable inspection during normal
business hours by a representative of the Holders holding Registrable
Securities being sold, any underwriter participating in any disposition of
Registrable Securities, and any attorney or accountant retained by such
selling Holders or underwriter, all financial and other records, pertinent
corporate documents and properties of the Company and its subsidiaries,
and cause the officers, directors and employees of the Company and its
subsidiaries to supply all information reasonably requested by any such
representative, underwriter, attorney or accountant in connection with
such Registration Statement; provided, however, that any records,
information or documents that are designated by the Company in writing as
confidential at the time of delivery of such records, information or
documents will be kept confidential by such persons unless (i) such
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records, information or documents are in the public domain or otherwise
publicly available, (ii) disclosure of such records, information or
documents is required by court or administrative order or is necessary to
respond to inquiries of regulatory authorities, or (iii) disclosure of
such records, information or documents, in the reasonable opinion of
counsel to such person, is otherwise required by law (including, without
limitation, pursuant to the requirements of the Securities Act).
(p) Comply with all applicable rules and regulations of the
SEC and make generally available to its security holders earning
statements satisfying the provisions of Section 11(a) of the Securities
Act and Rule 158 thereunder (or any similar rule promulgated under the
Securities Act) no later than 45 calendar days after the end of any
12-month period (or 90 calendar days after the end of any 12-month period
if such period is a fiscal year) (i) commencing at the end of any fiscal
quarter in which Registrable Securities are sold to underwriters in a firm
commitment or best efforts underwritten offering, or (ii) if not sold to
underwriters in such an offering, commencing on the first day of the first
fiscal quarter of the Company, after the effective date of a Registration
Statement, which statements shall cover such 12-month period.
(q) In connection with any Underwritten Offering, cause
appropriate members of management to cooperate and participate on a
reasonable basis in the underwriters' "road show" conferences related to
such offering.
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 Registrable Securities as the
Company may, from time to time, reasonably request in writing, and the Company
may exclude from such registration the Registrable Securities of any seller who
unreasonably fails to furnish such information within a reasonable time after
receiving such request.
Each Holder will be deemed to have agreed by virtue of its
acquisition of Registrable Securities that, upon receipt of any notice from the
Company of the occurrence of any event of the kind described in Section
5(c)(ii), 5(c)(iii), 5(c)(v), 5(c)(vi) or 5(c)(vii) ("Suspension Notice"), such
Holder will forthwith discontinue disposition of such Registrable Securities
covered by such Registration Statement or Prospectus (a "Black-Out") until such
Holder's receipt of the copies of the supplemented or amended Prospectus
contemplated by Section 5(k), or until it is advised in writing (the "Advice")
by the Company that the use of the applicable Prospectus may be resumed, and
such Holder has received copies of any additional or supplemental filings that
are incorporated or deemed to be incorporated by reference in such Prospectus.
Except as expressly provided herein, there shall be no limitation with regard to
the number of Suspension
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Registration Rights Agreement
Notices that the Company is entitled to give hereunder; provided, however, that
in no event shall the aggregate number of days the Holders are subject to
Black-Out during any period of 12 consecutive months exceed 180 days.
Section 6. Registration Expenses. Subject to clause (2) of the proviso at
the end of section 2(a), all fees and expenses incident to the performance of or
compliance with this Agreement by the Company will be borne by the Company
whether or not any of the Registration Statements become effective. Such fees
and expenses will include, without limitation, (i) all registration and filing
fees (including, without limitation, fees and expenses for compliance with
securities or "blue sky" laws), (ii) printing expenses (including, without
limitation, expenses of printing certificates for Registrable Securities in a
form eligible for deposit with The Depository Trust Company and of printing a
reasonable number of prospectuses if the printing of such prospectuses is
requested by the Holders holding a majority of the Registrable Securities
included in any Registration Statement), (iii) messenger, telephone and delivery
expenses incurred by the Company, (iv) fees and disbursements of counsel for the
Company incurred by the Company, (v) fees and disbursements of all independent
certified public accountants referred to in Section 5(n)(iii) (including the
expenses of any special audit and "comfort" letter required by or incident to
such performance) incurred by the Company, (vi) Securities Act liability
insurance, if any, and (vii) fees and expenses of Special Counsel retained by
the Holders in connection with the registration and sale of their Registrable
Securities (which counsel will be selected by the Holders of a majority of the
Registrable Securities being sold), provided that any such fees and expenses of
Special Counsel in excess of $20,000 for any offering will not be reimbursed by
the Company. In addition, the Company will pay 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 any securities exchange on which securities of the same class
issued by the Company are then listed and the fees and expenses of any person,
including special experts, retained by the Company. In no event, however, will
the Company be responsible for any underwriting discount or selling commission
with respect to any sale of Registrable Securities pursuant to this Agreement,
and the Holders shall be responsible on a pro rata basis for any taxes of any
kind (including, without limitation, transfer taxes) with respect to any
disposition, sale or transfer of Registrable Securities and for any legal,
accounting and other expenses incurred by them in connection with any
Registration Statement.
Section 7. Indemnification.
(a) Indemnification by the Company. The Company will, without
limitation as to time, indemnify and hold harmless, to the fullest extent
permitted by law, each Holder holding
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Registration Rights Agreement
Registrable Securities registered pursuant to this Agreement, the officers,
directors and agents and employees of each of them, each person who controls
such a Holder (within the meaning of Section 15 of the Securities Act or Section
20 of the Exchange Act) and the officers, directors, agents and employees of any
such controlling person, from and against all losses, claims, damages,
liabilities, costs (including without limitation the costs of investigation and
attorneys' fees) and expenses (collectively, "Losses"), as incurred, arising out
of or based upon any untrue or alleged untrue statement of a material fact
contained in any Registration Statement, Prospectus or form of 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 and to the extent as the same are based
upon information furnished in writing to the Company by such Holder for use
therein; provided, however, that the Company will not be liable to any Holder to
the extent that any such Losses arise out of or are based upon an untrue
statement or alleged untrue statement or omission or alleged omission made in
any Registration Statement, Prospectus or preliminary prospectus if either (A)
(i) such Holder failed to send or deliver a copy of the Prospectus with or prior
to the delivery of written confirmation of the sale by such Holder of a
Registrable Security to the person asserting the claim from which such Losses
arise and (ii) the Prospectus would have corrected such untrue statement or
alleged untrue statement or such omission or alleged omission; or (B) such
untrue statement or alleged untrue statement, omission or alleged omission is
corrected in an amendment or supplement to the Prospectus previously furnished
by or on behalf of the Company with copies of the Prospectus, and such Holder
thereafter fails to deliver such Prospectus as so amended or supplemented prior
to or concurrently with the sale of a Registrable Security to the person
asserting the claim from which such Losses arise.
(b) Indemnification by Holders. In connection with any Registration
Statement in which a Holder is participating, such Holder will furnish to the
Company in writing such information as the Company reasonably requests for use
in connection with any Registration Statement, Prospectus or preliminary
prospectus and will indemnify, to the fullest extent permitted by law, the
Company, its directors and officers, agents and employees, each person who
controls the Company (within the meaning of Section 15 of the Securities Act and
Section 20 of the Exchange Act), and the directors, officers, agents or
employees of such controlling persons, from and against all Losses arising out
of or based upon any untrue statement of a material fact contained in any
Registration Statement, Prospectus or preliminary prospectus or arising out of
or based upon any omission of a material fact required to be stated therein or
necessary to make the statements therein not misleading, to the extent, but only
to the extent, that such untrue statement or omission is contained in any
information so furnished in writing
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Registration Rights Agreement
by such Holder to the Company for use in such Registration Statement, Prospectus
or preliminary prospectus and was relied upon by the Company in the preparation
of such Registration Statement, Prospectus or preliminary prospectus. In no
event will the liability of any selling Holder hereunder be greater in amount
than the dollar amount of the proceeds (net of payment of all expenses) received
by such Holder upon the sale of the Registrable Securities giving rise to such
indemnification obligation.
(c) Conduct of Indemnification Proceedings. If any person shall
become entitled to indemnity hereunder (an "indemnified party"), such
indemnified party shall give prompt notice to the party from which such
indemnity is sought (the "indemnifying party") of any claim or of the
commencement of any action or proceeding with respect to which such indemnified
party seeks indemnification or contribution pursuant hereto; provided, however,
that the failure to so notify the indemnifying party will not relieve the
indemnifying party from any obligation or liability except to the extent that
the indemnifying party has been prejudiced materially by such failure. All
reasonable fees and expenses (including any reasonable fees and expenses
incurred in connection with investigating or preparing to defend such action or
proceeding) will be paid to the indemnified party (provided appropriate
documentation for such expenses is also submitted with such notice), as
incurred, within five calendar days of written notice thereof to the
indemnifying party (regardless of whether it is ultimately determined that an
indemnified party is not entitled to indemnification hereunder). The
indemnifying party will not consent to entry of any judgment or enter into any
settlement or otherwise seek to terminate any action or proceeding in which any
indemnified party is or could be a party and as to which indemnification or
contribution could be sought by such indemnified party under this Section 7,
unless such judgment, settlement or other termination includes as an
unconditional term thereof the giving by the claimant or plaintiff to such
indemnified party of a release, in form and substance reasonably satisfactory to
the indemnified party, from all liability in respect of such claim or litigation
for which such indemnified party would be entitled to indemnification hereunder.
(d) Contribution. If the indemnification provided for in this
Section 7 is unavailable to an indemnified party under Section 7(a) or 7(b) in
respect of any Losses or is insufficient to hold such indemnified party
harmless, then each applicable indemnifying party, in lieu of indemnifying such
indemnified party, will, severally but not jointly, contribute to the amount
paid or payable by such indemnified party as a result of such Losses, in such
proportion as is appropriate to reflect the relative fault of the indemnifying
party or indemnifying parties, on the one hand, and such indemnified party, on
the other hand, in connection with the actions, statements or omissions that
resulted in such Losses as well as any other relevant equitable considerations.
The relative fault of such indemnifying party or
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Registration Rights Agreement
indemnifying parties, on the one hand, and such indemnified party, on the other
hand, will be determined by reference to, among other things, whether any action
in question, including any untrue or alleged untrue statement of a material fact
or omission or alleged omission of a material fact, has been taken or made by,
or related to information supplied by, such indemnifying party or indemnified
party, and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such action, statement or omission. The amount
paid or payable by a party as a result of any Losses will be deemed to include
any legal or other fees or expenses incurred by such party in connection with
any action or proceeding.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 7(d) were determined by pro rata
allocation or by any other method of allocation that does not take into account
the equitable considerations referred to in the immediately preceding paragraph.
Notwithstanding the provisions of this Section 7(d), an indemnifying party that
is a selling Holder will not be required to contribute any amount in excess of
the amount by which the total price at which the Registrable Securities sold by
such indemnifying party and distributed to the public were offered to the public
exceeds the amount of any damages that such indemnifying party has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) will be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
The indemnity, contribution and expense reimbursement obligations of
the Company hereunder will be in addition to any liability the Company may
otherwise have hereunder or otherwise. The provisions of this Section 7 will
survive so long as Registrable Securities remain outstanding, notwithstanding
any permitted transfer of the Registrable Securities by any Holder thereof or
any termination of this Agreement.
Section 8. Underwritten Registrations. If any of the Registrable
Securities included in any Demand Registration are to be sold in an Underwritten
Offering, the Holders holding a majority of the Registrable Securities included
in the Demand Notice may select an investment banker or investment bankers and
manager or managers to manage the Underwritten Offering, provided that such
investment banker or bankers is (are) reasonably acceptable to the Company. If
any Piggyback Registration is an Underwritten Offering, the Company will have
the exclusive right to select the investment banker or investment bankers and
managers to administer the offering. The Company agrees that, in connection with
any Underwritten Offering hereunder, it shall undertake to offer customary
indemnification to the participating underwriters.
Section 9. Miscellaneous.
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Registration Rights Agreement
(a) Remedies. In the event of a breach by a party of its obligations
under this Agreement, each other party, in addition to being entitled to
exercise all rights granted by law, including recovery of damages, will be
entitled to specific performance of its rights under this Agreement. Each party
agrees that monetary damages would not be adequate compensation for any loss
incurred by reason of a breach by it of any provision of this Agreement and
hereby further agrees that, in the event of any action for specific performance
in respect of such breach, it will waive the defense that a remedy at law would
be adequate.
(b) Amendments and Waivers. The provisions of this Agreement may not
be amended, modified or supplemented without the prior written consent of the
Company, and Holders holding in excess of 50% of the Registrable Securities in
respect of which Registrable Securities are issuable.
(c) Notices. Except as set forth below, all notices and other
communications provided for or permitted hereunder shall be in writing and shall
be deemed to have been duly given if delivered personally or sent by telex or
telecopier, registered or certified mail (return receipt requested), postage
prepaid or courier or overnight delivery service to the Company at the following
address and to a Holder at the address set forth on his or her signature page to
this Agreement (or at such other address for any party as shall be specified by
like notice, provided that notices of a change of address shall be effective
only upon receipt thereof):
If to the Company: ValueVision International, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: General Counsel
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
If to the G.E. Capital Equity Investments, Inc.
Purchaser: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
With copies to:
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Registration Rights Agreement
National Broadcasting Company, Inc.
▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Executive Vice
President and Managing Director, Worldwide
Business Development
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
and
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
(d) Merger or Consolidation of the Company. If the Company is a
party to any merger or consolidation pursuant to which the Preferred Stock or
Registrable Securities are converted into or exchanged for securities or the
right to receive securities of any other person ("Conversion Securities"), the
issuer of such Conversion Securities shall assume (in a writing delivered to all
Holders) all obligations of the Company hereunder. The Company will not effect
any merger or consolidation described in the immediately preceding sentence
unless the issuer of the Conversion Securities complies with this Section 9(d).
(e) Successors and Assigns. Subject to the terms and conditions of
the Shareholder Agreement, (i) any transferee of all or a portion of the
Preferred Stock or Registrable Securities and (ii) any Restricted Party that
holds Registrable Securities shall become a Holder hereunder to the extent it
agrees in writing to be bound by all of the provisions applicable hereunder to
the transferring Holder (such acknowledgment being evidenced by execution of a
Counterpart and Acknowledgment substantially in the form of Exhibit A). Subject
to the requirements of this Section 9(e), this Agreement shall inure to the
benefit of and be binding upon the successors and assigns of the parties hereto.
(f) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed will be deemed to be an original and all of which taken
together will constitute one and the same instrument.
(g) Headings. The headings in this Agreement are for convenience of
reference only and will not limit or otherwise affect the meaning.
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Registration Rights Agreement
(h) Governing Law. This agreement will be governed by and construed
in accordance with the laws of the State of New York, as applied to contracts
made and performed within the State of New York, without regard to principles of
conflict of laws.
(i) Severability. If any term, provision, covenant or restriction of
this Agreement is held by a court of competent jurisdiction to be invalid, void
or unenforceable, the remainder of the terms, provisions, covenants and
restrictions set forth herein will remain in full force and effect and will in
no way be affected, impaired or invalidated, and the parties hereto will use
their best efforts to find and employ an alternative means to achieve the same
or substantially the same result as that contemplated by such term, provision,
covenant or restriction. It is hereby stipulated and declared to be the
intention of the parties that they would have executed the remaining terms,
provisions, covenants and restrictions without including any of such which may
be hereafter declared invalid, void or unenforceable.
(j) Entire Agreement. This Agreement is intended by the parties as a
final expression of their agreement and intended to be the 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 such subject matter. This Agreement supersedes all prior
agreements and understandings between the parties with respect to such subject
matter.
[Signature page follows]
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Registration Rights Agreement
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first written above.
VALUEVISION INTERNATIONAL, INC.
By:
-------------------------------------
Name:
Title:
G.E. CAPITAL EQUITY INVESTMENTS,
INC.
By:
-------------------------------------
Name:
Title:
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Registration Rights Agreement
EXHIBIT A
REGISTRATION RIGHTS AGREEMENT
COUNTERPART AND ACKNOWLEDGMENT
TO: The Company
RE: The Registration Rights Agreement (the "Agreement") dated as of
_______, 1999, by and among the Company and the Holders (as defined
in the Agreement)
The undersigned hereby agrees to be bound by the terms of the
Agreement as a party to the Agreement, and shall be entitled to all benefits of
the Holders (as defined in the Agreement) and shall be subject to all
obligations and restrictions of the Holders pursuant to the Agreement, as fully
and effectively as though the undersigned had executed a counterpart of the
Agreement together with the other parties to the Agreement. The undersigned
hereby acknowledges having received and reviewed a copy of the Agreement.
DATED this _____ day of ____________, _____
By:
Title:
Number of
Shares of
Registrable Securities: