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EXHIBIT 4.3
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WARRANT REGISTRATION RIGHTS AGREEMENT
Dated as of May 27, 1998
by and among
PARK `N VIEW, INC.
and
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ SECURITIES CORPORATION
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This Warrant Registration Rights Agreement (the "Agreement")
is made and entered into as of May 27, 1998, by and among Park `N View, Inc., a
Delaware corporation (the "Company"), and ▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇
Securities Corporation (the "Initial Purchaser"), who has agreed to purchase an
aggregate of 75,000 Units consisting of $75,000,000 in aggregate principal
amount of the Company's 13% Series A Senior Notes due 2008 and warrants (the
"Warrants") to purchase an aggregate of 505,375 shares of the Company's Common
Stock, $.001 par value, pursuant to the Purchase Agreement (as defined below).
This Agreement is made pursuant to the Purchase Agreement (the
"Purchase Agreement"), dated as of May 20, 1998, by and among the Company and
the Initial Purchaser. In order to induce the Initial Purchaser to purchase the
Units, the Company has agreed to provide the registration rights set forth in
this Agreement. The execution and delivery of this Agreement is a condition to
the obligations of the Initial Purchaser set forth in Section 8 of the Purchase
Agreement. All defined terms used but not defined herein shall have the meanings
ascribed to them in the Indenture (as defined below).
The parties hereby agree as follows:
SECTION 1. DEFINITIONS
As used in this Agreement, the following capitalized terms
shall have the following meanings:
Act: The Securities Act of 1933, as amended.
Business Day: Any day except a Saturday, Sunday or other day
in the City of New York, or in the city of the corporate trust office of the
Trustee, on which banks are authorized to close.
Closing Date: The date hereof.
Commission: The Securities and Exchange Commission.
Common Stock: The common stock, $.001 par value, of the
Company.
Exchange Act: The Securities Exchange Act of 1934, as amended
from time to time.
Exchange Offer: As defined in the Registration Rights
Agreement, dated the Closing Date, among the Company and the Initial Purchaser.
Holders: As defined in Section 2 hereof.
Indenture: The Indenture, dated the Closing Date, between the
Company and State Street Bank and Trust Company, as trustee (the "Trustee"),
pursuant to which the Units are
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to be issued, as such Indenture is amended or supplemented from time to time in
accordance with the terms thereof.
NASD: National Association of Securities Dealers, Inc.
Notes: The 13% Series A Senior Notes due 2008 of the Company,
being sold and issued pursuant to the Purchase Agreement and the Indenture, or
any notes exchanged therefor as contemplated by the Indenture.
Person: An individual, partnership, corporation, trust,
unincorporated organization, or a government or agency or political subdivision
thereof.
Prospectus: The prospectus included in a Registration
Statement at the time such Registration Statement is declared effective, as
amended or supplemented by any prospectus supplement and by all other amendments
thereto, including post-effective amendments, and all material incorporated by
reference into such Prospectus.
Registrable Securities: The Warrants, Warrant Shares and any
other securities issued or issuable with respect to the Warrants or the Warrant
Shares by way of a stock dividend or stock split or in connection with a
combination of shares, recapitalization, merger, consolidation or other
reorganization; provided that a security ceases to be a Registrable Security
when it is no longer a Transfer Restricted Security.
Registration Expenses: See Section 6 hereof.
Registration Statement: Any registration statement of the
Company 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.
Transfer Restricted Securities: A Warrant or Warrant Share,
until such Warrant or Warrant Share (i) has been effectively registered under
the Act and disposed of in accordance with the Registration Statement covering
it, (ii) is distributed to the public pursuant to Rule 144 or (iii) may be sold
or transferred pursuant to Rule 144(k) (or any similar provisions then in force)
under the Act or otherwise.
Warrants: The warrants of the Company issued and sold pursuant
to the Purchase Agreement and the Warrant Agreement, together with any warrants
issued in substitution or replacement therefor.
Warrant Agreement: The Warrant Agreement dated the Closing
Date by and among the Company and State Street Bank and Trust Company, as
Warrant Agent.
Warrant Shares: The Common Stock or other securities which any
Holder may acquire upon exercise of a Warrant, together with any other
securities which such Holder may
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acquire on account of any such securities, including, without limitation, as the
result of any dividend or other distribution on Common Stock or any split-up of
such Common Stock as provided for in the Warrant Agreement.
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 acquisition has actually been effected; provided that the Company shall
be required only to use its reasonable best efforts to establish the identity of
the Holders of Registrable Securities in order to enable such Holders to
exercise their respective rights under this Agreement.
SECTION 3. SHELF REGISTRATION
(a) The Company shall file and shall use its best efforts to have a
"shelf" registration with respect to all Registrable Securities on any
appropriate form pursuant to Rule 415 (or similar rule that may be adopted by
the Commission) under the Act (the "Shelf Registration") (i) covering resales by
the Holders of the Warrants or the resale of Warrant Shares upon the exercise of
the Warrants by broker-dealers and (ii) covering the issuance of the Warrant
Shares by the Company upon exercise, or if such issuance is not then permitted
to be registered by applicable rule or policy of the Commission, covering
resales of the Warrant Shares, on the earlier of (A) May 27, 1999 or (B) 65 days
after a Change of Control (as defined in the Indenture). Notwithstanding the
foregoing, the Company shall not be required to file such Shelf Registration on
or prior to the consummation of the Exchange Offer; provided that, in the event
the Exchange Offer is consummated later than the filing time required by the
preceding sentence for each Shelf Registration, the Company shall file such
Shelf Registration(s) within 30 days after the date of the consummation of the
Exchange Offer provided, further, that the Company shall not be required to
include any Holder who has not provided its information in accordance with
Section 5(b)(ii), so long as the Company within 30 days of the receipt of such
information agrees to include such Holder in such Shelf Registration Statement
provided that the Company shall be required to update such Shelf Registration
Statement no more than once per calendar month.
(b) If the Holders of a majority of the outstanding Registrable
Securities consisting of Warrants or Warrant Shares to be registered in the
Shelf Registration so elect, an offering of Registrable Securities pursuant to
the Shelf Registration may be effected in the form of an underwritten offering.
In such event, and if the managing underwriters advise the Company and the
Holders of such Registrable Securities in writing that in their opinion the
amount of Registrable Securities proposed to be sold in such offering exceeds
the amount of Registrable Securities which can be sold in such offering, there
shall be included in such underwritten offering the amount of such Registrable
Securities which in the opinion of such
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underwriters can be sold, and such amount shall be allocated pro rata among the
Holders of such Registrable Securities on the basis of the number of Registrable
Securities requested to be included by such Holders. The Holders of the
Registrable Securities to be registered shall pay all underwriting discounts and
commissions of such underwriters.
(c) If any of the Registrable Securities covered by the
Shelf Registration are to be sold 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 such Registrable
Securities consisting of outstanding Warrants or Warrant Shares included in such
offering; provided that such investment bank or manager shall be reasonably
satisfactory to the Company.
(d) The Company shall use its best efforts to keep the
Shelf Registration continuously effective until May 15, 2008 or such shorter
period that will terminate upon the earlier of such time as (i) all of the
Registrable Securities covered by the Shelf Registration Statement have been
sold pursuant to the terms of the Shelf Registration Statement or (ii) the
Registrable Securities may be distributed pursuant to Rule 144 under the Act or
transferred pursuant to Rule 144(k) under the Act.
The Company further agrees to use its best efforts to prevent
the happening of any event that would cause the Registration Statement pursuant
to Section 3 hereof to contain a material misstatement or omission or to be not
effective and usable for resale of the Registrable Securities during the period
that such Registration Statement is required to be effective and usable.
(e) Each Holder of Registrable Securities whose
Registrable Securities are covered by a Registration Statement filed pursuant to
this Section 3 agrees, if requested by the managing underwriters in an
underwritten offering that occurs either pursuant to this Agreement or in
connection with a registered initial public offering of the Common Stock of the
Company, not to effect any public sale or distribution of securities of the
Company of the same class as any Securities included in such Registration
Statement, including a sale pursuant to Rule 144 under the Act (except as part
of such underwritten registration), during the 10-day period prior to, and
during the 90-day period beginning on, the closing date of each such
underwritten offering (the "Lock-up Period"), to the extent that such Holders
are timely notified in writing by the Company or the managing underwriters;
provided that each Holder of Registrable Securities shall be subject to the
hold-back restrictions of this Section 3(e) only once during the term of this
Agreement; and provided, further, that such notice shall be deemed to be timely
for purposes of this Section 3(e) if such notice is electronically posted at the
facilities of the Depositary Trust Company or similar or successor entity at
least 15-days prior to the beginning of the Lock-up Period.
The foregoing provisions shall not apply to any Holder of
Registrable Securities if such Holder is prevented by applicable statute or
regulation from entering into 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 any applicable class
of
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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.
SECTION 4. LIQUIDATED DAMAGES
If the Registration Statement: (i) is not filed with the Commission on
or prior to the date specified for such filing in Section 3(a) hereof; (ii) has
not been declared effective by the Commission pursuant to Section 3(a) hereof;
or (iii) following the date such Registration Statement is declared effective by
the Commission, shall cease to be effective without being restored to
effectiveness by amendment or otherwise within 30 business days, (each such
event referred to in clauses (i) through (iii), a "Shelf Registration Default")
to the extent permitted by applicable law, the Company shall pay as liquidated
damages and not as a penalty to each Holder during the first 90-day period
immediately following the occurrence, and during the continuance of such Shelf
Registration Default, an amount equal to $.0025 per week per Warrant (or per
such number of Warrant Shares then issuable upon exercise of or in respect of a
Warrant) with respect to each subsequent 90-day period until all Shelf
Registration Defaults have been cured, up to a maximum amount of liquidated
damages of $.0125 per week per Warrant (or per such number of Warrant Shares
then issuable upon exercise of or in respect of a Warrant); provided that the
Company shall in no event be required to pay liquidated damages for more than
one Registration Default at any given time. Notwithstanding anything to the
contrary set forth herein, (1) upon filing of the Shelf Registration Statement,
in the case of (i) above, (2) upon the effectiveness of the Shelf Registration
Statement or (3) upon the filing of a post-effective amendment to the Shelf
Registration Statement or an additional Registration Statement that causes the
Shelf Registration Statement to again be declared effective or made usable in
the case of (iii) above, the liquidated damages payable with respect to the
Transfer Restricted Securities as a result of such clause (i), (ii) or (iii), as
applicable, shall cease. Notwithstanding the foregoing, the Company will not be
obligated to pay any liquidated damages as provided in clause (iii) above during
the period that dispositions of Transfer Restricted Securities are permitted to
be suspended in accordance with Section 5(b); provided, that the Company is
otherwise in compliance with its obligations hereunder.
All accrued liquidated damages shall be paid to record Holders by the
Company by wire transfer of immediately available funds, or by mailing a federal
funds check, on each Interest Payment Date (as defined in the Indenture). All
obligations of the Company set forth in the preceding paragraph that are
outstanding with respect to any Registrable Security at the time such security
has been effectively registered under the Act shall survive until such time as
all such obligations with respect to such security have been satisfied in full.
SECTION 5. REGISTRATION PROCEDURES
(a) General Provisions. In connection with the Company's registration
obligations pursuant to Section 3 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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(1) use its best efforts to keep such Registration
Statement continuously effective and provide or incorporate by
reference all requisite financial statements for the period specified
in Section 3 of this Agreement. Upon the occurrence of any event that
would cause any such Registration Statement or the Prospectus contained
therein (A) to contain a material misstatement or omission or (B) not
to be effective and usable for resale of Registrable Securities during
the period required by this Agreement, the Company shall file promptly
an appropriate amendment to such Registration Statement or file
appropriate documents that will be so incorporated by reference, (1) in
the case of clause (A), correcting any such misstatement or omission,
and (2) in the case of either clause (A) or (B), use its best efforts
to cause such amendment to be declared effective and such Registration
Statement and the related Prospectus to become usable for their
intended purpose(s) as soon as practicable thereafter;
(2) prepare and file with the Commission such
amendments and post-effective amendments to the Registration Statement
as may be necessary to keep the Registration Statement effective for
the period set forth in Section 3(d) hereof; cause the Prospectus to be
supplemented by any required Prospectus supplement, and as so
supplemented to be filed pursuant to Rule 424 under the Act; and comply
in all material respects with the provisions of the Act with respect to
the disposition of all securities covered by such Registration
Statement during the applicable period in accordance with the intended
method or methods of distribution by the sellers thereof set forth in
such Registration Statement or supplement to the Prospectus; the
Company shall not be deemed to have used its best efforts to keep a
Registration Statement effective during the applicable period if it
voluntarily takes any action that would result in selling Holders of
the Registrable Securities covered thereby not being able to sell such
Registrable Securities during that period unless such action is
required under applicable law, provided that the foregoing shall not
apply to actions taken by the Company in good faith and for valid
business reasons, including without limitation the acquisition or
divestiture of assets, so long as the Company promptly thereafter
complies with the requirements of clause (14) below, if applicable;
(3) advise the underwriter(s), if any, and selling
Holders promptly and, if requested by such Persons, confirm such advice
in writing, (A) when the Prospectus or any Prospectus supplement or
post-effective amendment has been filed, and, with respect to any
Registration Statement or any post-effective amendment thereto, when
the same has become effective, (B) of any request by the Commission for
amendments to the Registration Statement or amendments or supplements
to the Prospectus or for additional information relating thereto, (C)
of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement under the Act or of the
suspension by any state securities commission of the qualification of
the Registrable Securities for offering or sale in any jurisdiction, or
the initiation of any proceeding for any of the preceding purposes, (D)
of the existence of any fact or the happening of any event that makes
any statement of a material fact made in the Registration Statement,
the
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Prospectus, any amendment or supplement thereto or any document
incorporated by reference therein untrue, or that requires the making
of any additions to or changes in the Registration Statement in order
to make the statements therein not misleading, or that requires the
making of any additions to or changes in the Prospectus in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading. If at any time the Commission
shall issue any stop order suspending the effectiveness of the
Registration Statement, or any state securities commission or other
regulatory authority shall issue an order suspending the qualification
or exemption from qualification of the Registrable Securities under
state securities or Blue Sky laws, the Company shall use its best
efforts to obtain the withdrawal or lifting of such order at the
earliest possible time provided, however, that with respect to the
foregoing clauses (A) and (B), the Company shall only be obligated to
advise the selling Holders of such events upon the receipt of a written
request by such selling Holder to be so advised;
(4) upon request, make available to each selling
Holder named in any Registration Statement or Prospectus and each of
the underwriter(s) in connection with such sale, if any, before filing
with the Commission, copies of any Registration Statement or any
Prospectus included therein or any amendments or supplements to any
such Registration Statement or Prospectus and the Company will not file
or will correct any such Registration Statement or Prospectus or any
amendment or supplement to any such Registration Statement or
Prospectus (including all such documents incorporated by reference) to
which the selling Holders of the Registrable Securities covered by such
Registration Statement or the underwriter(s) in connection with such
sale, if any, shall reasonably object within five days after the
receipt thereof. A selling Holder or underwriter, if any, shall be
deemed to have reasonably objected to such filing if such Registration
Statement, amendment, Prospectus or supplement, as applicable, as
proposed to be filed, contains a material misstatement or omission or
fails to comply with the applicable requirements of the Act;
(5) upon request, promptly upon the filing of any
document that is to be incorporated by reference into a Registration
Statement or Prospectus, make available copies of such document to the
selling Holders and to the underwriter(s) in connection with such sale,
if any, make the Company's representatives available for discussion of
such document and other customary due diligence matters, and include
such information in such document prior to the filing thereof as such
selling Holders or underwriter(s), if any, reasonably may request;
(6) upon request, make available at reasonable times
for inspection by the selling Holders, any underwriter participating in
any disposition pursuant to such Registration Statement and any
attorney or accountant retained by such selling Holders or any of such
underwriter(s), 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 Holder, underwriter, attorney or accountant in
connection with such Registration Statement or any post-effective
amendment thereto subsequent to the filing thereof and prior to its
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effectiveness; provided that any person to whom information is provided
under this clause (6) agrees in writing to maintain the confidentiality
of such information to the extent such information is not in the public
domain;
(7) if requested by any selling Holders or the
underwriter(s) in connection with such sale, if any, promptly include
in any Registration Statement or Prospectus, pursuant to a supplement
or post-effective amendment if necessary, such information as such
selling Holders and underwriter(s), if any, may reasonably request to
have included therein, including, without limitation, information
relating to the "Plan of Distribution" of the Registrable Securities,
information with respect to the principal amount of Registrable
Securities being sold to such underwriter(s), the purchase price being
paid therefor and any other terms of the 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
practicable after the Company is notified of the matters to be included
in such Prospectus supplement or post-effective amendment;
(8) upon request, furnish to each selling Holder and
each of the underwriter(s) in connection with such sale, if any,
without charge, at least one copy of the Registration Statement, as
first filed with the Commission, and of each amendment thereto, and
make available all documents incorporated by reference therein and all
exhibits (including exhibits incorporated therein by reference);
(9) deliver to each selling Holder and each of the
underwriter(s), if any, without charge, as many copies of the
Prospectus (including each preliminary prospectus) and any amendment or
supplement thereto as such Persons reasonably may request; the Company
hereby consents to the use of the Prospectus and any amendment or
supplement thereto by each of the selling Holders and each of the
underwriter(s), if any, in connection with the offering and the sale of
the Registrable Securities covered by the Prospectus or any amendment
or supplement thereto;
(10) in connection with an underwritten offering
pursuant to Section 3 hereof, enter into such agreements (including,
unless not required pursuant to Section 3 hereof, an underwriting
agreement) and make such representations and warranties and take all
such other actions in connection therewith in order to expedite or
facilitate the disposition of the Registrable Securities pursuant to
any Registration Statement contemplated by this Agreement as may be
reasonably requested by any Holder of Registrable Securities or
underwriter in connection with any sale or resale pursuant to any
Registration Statement contemplated by this Agreement, and in such
connection, the Company shall:
(A) furnish to each selling Holder and each
underwriter, if any, upon the effectiveness of the Registration
Statement:
(1) a certificate, dated the date of
effectiveness of the Registration Statement, signed
by (x) the President and (y) any Vice
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President, the Secretary or an Assistant Secretary of
the Company, confirming, as of the date thereof, the
matters set forth in paragraphs (a), (b), (c) and (d)
of Section 8 of the Purchase Agreement and such other
matters as the Holders and/or underwriter(s) may
reasonably request;
(2) an opinion, dated the date of
effectiveness of the Registration Statement, of
counsel for the Company, covering (i) due
authorization and enforceability of the Warrants,
(ii) a statement to the effect that such counsel has
participated in conferences with officers and other
representatives of the Company and representatives of
the independent public accountants for the Company
and have considered the matters required to be stated
therein and the statements contained therein,
although such counsel has not independently verified
the accuracy, completeness or fairness of such
statements; and that such counsel advises that, on
the basis of the foregoing (relying as to materiality
to a large extent upon facts provided to such counsel
by officers and other representatives of the Company
and without independent check or verification), no
facts came to such counsel's attention that caused
such counsel to believe that the applicable
Registration Statement, at the time such Registration
Statement or any post-effective amendment thereto
became effective, and contained an untrue statement
of a material fact or omitted to state a material
fact required to be stated therein or necessary to
make the statements therein not misleading, or that
the Prospectus contained in such Registration
Statement as of its date and, contained an untrue
statement of a material fact or omitted to state a
material fact necessary in order to make the
statements therein, in the light of the circumstances
under which they were made, not misleading and (iii)
such other matters of the type customarily covered in
opinions of counsel for an issuer in connection with
similar securities offerings, as may reasonably be
requested by such parties. Without limiting the
foregoing, such counsel may state further that such
counsel assumes no responsibility for, and has not
independently verified, the accuracy, completeness or
fairness of the financial statements, notes and
schedules and other financial, statistical and
accounting data included in any Registration
Statement contemplated by this Agreement or the
related Prospectus; and
(3) a customary comfort letter, dated as of
the date of effectiveness of the Registration
Statement, from the Company's independent
accountants, in the customary form and covering
matters of the type customarily covered in comfort
letters to underwriters in connection with primary
underwritten offerings, and affirming the matters set
forth in the comfort letters delivered pursuant to
Section 8(i) of the Purchase Agreement, without
exception;
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(B) set forth in full or incorporate by reference in
the underwriting agreement, if any, in connection with any
sale or resale pursuant to any Registration Statement the
indemnification provisions and procedures of Section 7 hereof
with respect to all parties to be indemnified pursuant to said
Section; and
(C) deliver such other documents and certificates as
may be reasonably requested by such parties to evidence
compliance with clause (A) above and with any customary
conditions contained in the underwriting agreement or other
agreement entered into by the Company pursuant to this clause
(10), if any.
The above shall be done at each closing under such
underwriting or similar agreement, as and to the extent required
thereunder, and if at any time the representations and warranties of
the Company contemplated in (A)(l) above cease to be true and correct,
the Company shall so advise the underwriter(s), if any, and selling
Holders promptly and if requested by such Persons, shall confirm such
advice in writing;
(11) prior to any public offering of Registrable
Securities, cooperate with the selling Holders, the underwriter(s), if
any, and their respective counsel in connection with the registration
and qualification of the Registrable Securities under the securities or
Blue Sky laws of such jurisdictions as the selling Holders or
underwriter(s), if any, may request and do any and all other acts or
things necessary or advisable to enable the disposition in such
jurisdictions of the Registrable Securities covered by the applicable
Registration Statement; provided that the Company shall not be required
to register or qualify as a foreign corporation where it is not now so
qualified or to take any action that would subject it to the service of
process in suits or to taxation, other than as to matters and
transactions relating to the Registration Statement, in any
jurisdiction where it is not now so subject;
(12) in connection with any sale of Registrable
Securities that will result in such securities no longer being Transfer
Restricted Securities, cooperate with the selling Holders and the
underwriter(s), if any, to facilitate the timely preparation and
delivery of certificates representing Registrable Securities to be sold
and not bearing any restrictive legends; and to register such
Registrable Securities in such denominations and such names as the
Holders or the underwriter(s), if any, may request at least two
Business Days prior to such sale of Registrable Securities;
(13) use its best efforts to cause the Registrable
Securities covered by the Registration Statement to be registered with
or approved by such other governmental agencies or authorities as may
be necessary to enable the seller or sellers thereof or the
underwriter(s), if any, to consummate the disposition of such
Registrable Securities, subject to the proviso contained in clause (11)
above;
(14) if any fact or event contemplated by clause (2)
above shall exist or have occurred, prepare a supplement or
post-effective amendment to the Registration Statement or related
Prospectus or any document incorporated therein by reference or file
any other required document so that, as thereafter delivered to the
purchasers of
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Registrable Securities, the Prospectus will not contain an untrue
statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(15) provide a CUSIP number for all Registrable
Securities not later than the effective date of a Registration
Statement covering such Registrable Securities and provide the Trustee
under the Indenture with printed certificates for the Registrable
Securities which are in a form eligible for deposit with the Depository
Trust Company;
(16) cooperate and assist in any filings required to
be made with the NASD and in the performance of any due diligence
investigation by any underwriter (including any "qualified independent
underwriter") that is required to be retained in accordance with the
rules and regulations of the NASD, and use its best efforts to cause
such Registration Statement to become effective and approved by such
governmental agencies or authorities as may be necessary to enable the
Holders selling Registrable Securities to consummate the disposition of
such Registrable Securities;
(17) otherwise use its best efforts to comply with
all applicable rules and regulations of the Commission, and make
generally available to its security holders with regard to any
applicable Registration Statement, as soon as practicable, a
consolidated earnings statement meeting the requirements of Rule 158
(which need not be audited) covering a twelve-month period beginning
after the effective date of the Registration Statement (as such term is
defined in paragraph (c) of Rule 158 under the Act);
(18) cause all Registrable Securities covered by the
Registration Statement to be listed on each securities exchange on
which similar securities issued by the Company are then listed if
requested by the Holders of a majority in aggregate principal amount of
Registrable Securities or the managing underwriter(s), if any;
(19) provide promptly to each Holder upon written
request each document filed with the Commission pursuant to the
requirements of Section 13 or Section 15(d) of the Exchange Act; and
(20) if the registration is a registration in which
securities of the Company are sold to an underwriter for reoffering to
the public, obtain a customary comfort letter, dated as of the date of
effectiveness of each Registration Statement, addressed to the Board of
Directors of the Company from the Company's independent accountants, in
the customary form and covering matters of the type customarily covered
in comfort letters to boards of directors in underwritten offerings.
(b) Restrictions on and Obligations of Holders. (i) Each
Holder agrees by acquisition of a Registrable Security that, upon receipt of any
notice from the Company of the existence of any fact of the kind described in
Section 5(a)(3)(C) or (D) hereof, such Holder will forthwith discontinue
disposition of Registrable Securities pursuant to the applicable Registration
Statement until such Holder's receipt of the copies of the supplemented or
amended Prospectus contemplated by Section 5(a)(14) hereof, or until it is
advised in writing (the "Advice") by the
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Company that the use of the Prospectus may be resumed, and has received copies
of any additional or supplemental filings that are incorporated by reference in
the Prospectus. If so directed by the Company, each 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 that was current at the time of receipt of such notice. The Company
will be deemed not to have used its best efforts to cause a Registration
Statement to remain effective during the requisite period if the Company has
voluntarily taken any action that resulted in the delivery of a notice described
in Section 5(a)(3)(D) hereof unless (A) such action was required by applicable
law or (B) such action was taken by the Company in good faith and for valid
business reasons (but not including avoidance of the Company's obligations
hereunder), including a material corporate transaction; provided that, in any
event, the aggregate number of days in any consecutive twelve-month period for a
which a Registration Statement is not effective or usable does not exceed 45
days. In the event the Company shall give any such notice, the time period
regarding the effectiveness of such Registration Statement set forth in Section
3 hereof, as applicable, shall be extended by the number of days during the
period from and including the date of the giving of such notice pursuant to
Section 5(a)(3)(D) hereof to and including the date when each selling Holder
covered by such Registration Statement shall have received the copies of the
supplemented or amended Prospectus contemplated by Section 5(a)(14) hereof or
shall have received the Advice.
(ii) Each Holder agrees (A) to the extent that it is required by the
Act to comply with the registration and prospectus delivery requirements of the
Act in connection with its use of the Shelf Registration Statement, such Holder,
by its acquisition of a Registrable Security, agrees to comply with such
requirements and (B) it will furnish to the Company in writing, within 20 days
after receipt of a request therefor, the information specified in Item 507 or
508 of Regulation S-K, as applicable, of the Act for use in connection with any
Shelf Registration Statement or Prospectus or preliminary Prospectus included
therein. In the event that any such Holder fails to provide such information
such Holder of Transfer Restricted Securities shall not be entitled to
liquidated damages pursuant to Section 4 hereof unless and until such Holder
shall have provided all such information. Each selling Holder agrees to promptly
furnish additional information required to be disclosed in order to make the
information previously furnished to the Company by such Holder not materially
misleading.
SECTION 6. REGISTRATION EXPENSES
(a) All expenses incident to the Company's performance of or
compliance with this Agreement will be borne by the Company, regardless of
whether a Registration Statement becomes effective, including without
limitation: (i) all registration and filing fees and expenses (including filings
made by any Holder with the NASD (and, if applicable, the fees and expenses of
any "qualified independent underwriter") and its counsel, as may be required by
the rules and regulations of the NASD); (ii) all fees and expenses of compliance
with federal securities and state Blue Sky or securities laws; (iii) all
expenses of printing (including, without limitation, expenses of printing or
engraving certificates for the Registrable Securities in a form eligible for
deposit with the Depositary Trust Company and printing of Prospectuses),
messenger and delivery services and telephone; (iv) all fees and disbursements
of counsel for the Company and
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the Holders of Transfer Restricted Securities; (v) all application and filing
fees in connection with listing the Registrable Securities on a national
exchange or automated quotation system pursuant to the requirements hereof; and
(vi) all fees and disbursements of independent certified public accountants of
the Company (including the expenses of any special audit and comfort letters
required by or incident to such performance).
The Company will, in any event, bear its internal expenses (including,
without limitation, all salaries and expenses of its officers and employees
performing legal or accounting duties), the expenses of any annual audit and the
fees and expenses of any Person, including special experts, retained by the
Company.
(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 fees and
disbursements of not more than one counsel chosen by the Holders of a majority
of the principal amount of such Registrable Securities, or more than one, if, in
the reasonable judgment of counsel for the Holders and counsel for the Company,
a conflict exists among such Holders. Notwithstanding the provisions of this
Section 6, each Holder of Registrable Securities shall pay all registration
expenses to the extent required by applicable law.
SECTION 7. INDEMNIFICATION
(a) The Company agrees to indemnify and hold harmless each Holder,
its directors, officers and each Person, if any, who controls such Holder
(within the meaning of Section 15 of the Act or Section 20 of the Exchange Act),
from and against any and all losses, claims, damages, liabilities, judgments,
(including without limitation, any legal or other expenses reasonably incurred
in connection with investigating or defending any matter, including any action
that could give rise to any such losses, claims, damages, liabilities or
judgments) caused by any untrue statement or alleged untrue statement of a
material fact contained in any Registration Statement, preliminary prospectus or
Prospectus (or any amendment or supplement thereto) provided by the Company to
any Holder, or caused by 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 judgments are caused by an untrue statement or omission or
alleged untrue statement or omission that is (i) based upon information relating
to any of the Holders furnished in writing to the Company by or on behalf of any
of the Holders or (ii) made in any preliminary prospectus if a copy of the
Prospectus (as amended or supplemented, if the Company shall furnish such
amendment or supplement thereto) was not sent or given by or on behalf of such
Holder to the person asserting any such loss, claim, damage, liability or
expense, if required to law so to have been delivered, at or prior to the
written confirmation of the sale of the Registrable Securities as required by
the Act and the Prospectus (as so amended or supplemented) would have corrected
in all material respects such untrue statement or omission.
(b) Each Holder of Registrable Securities agrees, severally and
not jointly, to indemnify and hold harmless the Company, and its directors and
officers, and each person, if
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any, who controls (within the meaning of Section 15 of the Act or Section 20 of
the Exchange Act) the Company, to the same extent as the foregoing indemnity
from the Company set forth in section (a) above, but only with reference to
information relating to such Holder furnished in writing to the Company by or on
behalf of such Holder expressly for use in any Registration Statement. In no
event shall any Holder, its directors, officers or any Person who controls such
Holder be liable or responsible for any amount in excess of the amount by which
the total amount received by such Holder with respect to its sale of Registrable
Securities pursuant to a Registration Statement exceeds (i) the amount paid by
such Holder for such Registrable Securities and (ii) the amount of any damages
that such Holder, its directors, officers or any Person who controls such Holder
has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission.
(c) In case any action shall be commenced involving any person in
respect of which indemnity may be sought pursuant to Section 7(a) or 7(b) (the
"INDEMNIFIED PARTY"), the indemnified party shall promptly notify the person
against whom such indemnity may be sought (the "INDEMNIFYING PERSON") in writing
and the indemnifying party shall assume the defense of such action, including
the employment of counsel reasonably satisfactory to the indemnified party and
the payment of all fees and expenses of such counsel, as incurred (except that
in the case of any action in respect of which indemnity may be sought pursuant
to both Sections 7(a) and 7(b), a Holder shall not be required to assume the
defense of such action pursuant to this Section 7(c), but may employ separate
counsel and participate in the defense thereof, but the fees and expenses of
such counsel, except as provided below, shall be at the expense of the Holder).
Any indemnified party shall have the right to employ separate counsel in any
such action and participate in the defense thereof, but the fees and expenses of
such counsel shall be at the expense of the indemnified party unless (i) the
employment of such counsel shall have been specifically authorized in writing by
the indemnifying party, (ii) the indemnifying party shall have failed to assume
the defense of such action or employ counsel reasonably satisfactory to the
indemnified party or (iii) the named parties to any such action (including any
impleaded parties) include both the indemnified party and the indemnifying
party, and the indemnified party shall have been advised by such counsel that
there may be one or more legal defenses available to it which are different from
or additional to those available to the indemnifying party (in which case the
indemnifying party shall not have the right to assume the defense of such action
on behalf of the indemnified party). In any such case, the indemnifying party
shall not, in connection with any one action or separate but substantially
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances, be liable for the fees and expenses of
more than one separate firm of attorneys (in addition to any local counsel) for
all indemnified parties and all such fees and expenses shall be reimbursed as
they are incurred. Such firm shall be designated in writing by a majority of the
Holders, in the case of the parties indemnified pursuant to Section 7(a), and by
the Company, in the case of parties indemnified pursuant to Section 7(b). The
indemnifying party shall indemnify and hold harmless the indemnified party from
and against any and all losses, claims, damages, liabilities and judgments by
reason of any settlement of any action (i) effected with its written consent or
(ii) effected without its written consent if the settlement is entered into more
than twenty business days after the indemnifying party shall have received a
request from the indemnified party for reimbursement for the fees and expenses
of counsel (in any case where such fees and expenses are at the expense of the
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indemnifying party) and, prior to the date of such settlement, the indemnifying
party shall have failed to comply with such reimbursement request. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement or compromise of, or consent to the entry of
judgment with respect to, any pending or threatened action in respect of which
the indemnified party is or could have been a party and indemnity or
contribution may be or could have been sought hereunder by the indemnified
party, unless such settlement, compromise or judgment (i) includes an
unconditional release of the indemnified party from all liability on claims that
are or could have been the subject matter of such action and (ii) does not
include a statement as to or an admission of fault, culpability or a failure to
act, by or on behalf of the indemnified party.
(d) To the extent that the indemnification provided for in this
Section 7 is unavailable to an indemnified party in respect of any losses,
claims, damages, liabilities or judgments referred to therein, then each
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 judgments (i) in such proportion
as is appropriate to reflect the relative benefits received by the Company, on
the one hand, and the Holders, on the other hand, from their sale of Registrable
Securities or (ii) if the allocation provided by clause 7(d)(i) is not permitted
by applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause 7(d)(i) above but also the relative
fault of the Company, on the one hand, and of the Holder, on the other hand, in
connection with the statements or omissions which resulted in such losses,
claims, damages, liabilities or judgments, as well as any other relevant
equitable considerations. The relative fault of the Company, on the one hand,
and of the Holder, on the other hand, shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Company, on the one hand, or by the Holder, on the
other hand, 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 judgments referred to above shall be deemed to include, subject
to the limitations set forth in the second paragraph of Section 7(a), any legal
or other fees or expenses reasonably incurred by such party in connection with
investigating or defending any action or claim.
SECTION 8. RULE 144A
The Company hereby agrees with each Holder, for so long as any
Registrable Securities remain outstanding, to make available, upon request of
any Holder of Registrable Securities, to any Holder or beneficial owner of
Registrable Securities in connection with any sale thereof and any prospective
purchaser of such Registrable Securities designated by such Holder or beneficial
owner, the information required by Rule 144A(d)(4) under the Act in order to
permit resales of such Registrable Securities pursuant to Rule 144A.
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SECTION 9. MISCELLANEOUS
(a) Remedies. Each Holder of Registrable Securities, in addition
to being entitled to exercise all rights provided herein, and as provided in the
Purchase Agreement and the Warrant Agreement 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 that conflicts with the rights granted to the Holders of Registrable
Securities in this Agreement or otherwise conflicts with the provisions hereof.
The Company has not previously entered into any agreement granting any
registration rights of its securities to any Person except as set forth in the
Offering Memorandum, dated May 20, 1997 with respect to the Offering. Except as
described in Schedule 1, 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
other agreement in effect on the date hereof, except where a waiver with respect
thereto has been obtained prior to the date of effectiveness of any Registration
Statement required under this Agreement.
(c) Adjustments Affecting the 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 any 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 a majority of the outstanding Registrable Securities consisting of
outstanding Warrants or Warrant Shares. Notwithstanding the foregoing, a waiver
or consent to departure from the provisions hereof that relates exclusively to
the rights of Holders of Registrable Securities whose securities are being sold
pursuant to a Registration Statement and that does not directly or indirectly
affect the rights of other Holders of Registrable Securities may be given by the
Holders of at least 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, first-class mail
(registered or certified, return receipt requested), telex, telecopier, or air
courier guaranteeing overnight delivery:
(i) if to a Holder, at the address set forth on the records of
the Registrar under the Indenture, with a copy to the Registrar under
the Indenture; and
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(ii) if to the Company:
Park `N View, Inc.
▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
With a copy to:
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, LLP
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇'▇▇▇▇▇▇▇, Esq.
All such notices and communications shall be deemed to have
been duly given: at the time delivered by hand, if personally delivered; 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.
Copies of all such notices, demands or other communications
shall be concurrently delivered by the Person giving the same to the Trustee at
the address specified in the Indenture.
(f) Successors and Assigns. This Agreement shall inure
to the benefit of and be binding upon the successors and assigns of each of the
parties, including without limitation and without the need for an express
assignment, subsequent Holders of Registrable Securities.
(g) Counterparts. This Agreement may be executed in any
number of counterparts and by the parties hereto in separate counterparts, each
of which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT
REGARD TO THE CONFLICT OF LAW RULES THEREOF.
(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 together with the
other Documents (as defined in the Purchase Agreement) is intended by the
parties as a final expression of their
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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
sold pursuant to the Purchase Agreement. This Agreement supersedes all prior
agreements and understandings between the parties with respect to such subject
matter.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
PARK `N VIEW, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: CFO, COO
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ SECURITIES CORPORATION
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: M.E.
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SCHEDULE I
EXISTING
REGISTRATION RIGHTS
The Holders of the Company's Series B Preferred Stock and Series C Preferred
Stock and certain holders of Common Stock and warrants to purchase shares of
Common Stock are parties to a Registration Rights Agreement, dated as of
November 13, 1996, as amended by the Amendment to Registration Rights Agreement,
dated as of August 22, 1997, and subsequently amended by letter agreement, dated
as of May 20, 1998 (collectively referred to herein as the "Registration Rights
Agreement"). The Registration Rights Agreement, as amended, prohibits the
Company from granting demand registration rights and piggyback registration
rights under certain circumstances, but does not prohibit the Company from
granting the registration rights provided pursuant to this Agreement.
Furthermore, the Registration Rights Agreement provides that such holders of the
Series B Preferred Stock and Series C Preferred Stock, as well as certain
holders of Common Stock and warrants to purchase shares of Common Stock,
generally have piggyback registration rights, but such holders do not have any
such rights in connection with the registration contemplated by this Agreement.
The holder of a warrant to purchase up to 180,000 shares of Common Stock at an
exercise price of $8.00 per share also has piggyback registration rights. The
warrant granting such piggyback registration rights provides that, if the
proposed registration is an underwritten offering and the managing underwriter
determines cutbacks are necessary, then all selling security holders (other than
the holders of the Series B Preferred Stock and the Series C Preferred Stock and
certain holders of Common Stock and warrants to purchase shares of Common Stock,
who will have priority as to the holder of the warrant) will be reduced pro
rata. Prior to exercise of such piggyback registration rights, the warrant
holder must exercise the warrant for at least the number of shares being
registered.
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