EXHIBIT 4.7
________________________________________________________________________________
NOTES REGISTRATION RIGHTS AGREEMENT
Dated July 29, 1998
between
TVN ENTERTAINMENT CORPORATION
and
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
________________________________________________________________________________
NOTES REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made and entered
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into July 29, 1998, between TVN ENTERTAINMENT CORPORATION, a Delaware
corporation (the "Company"), and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED (the
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"Placement Agent").
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This Agreement is made pursuant to the Placement Agreement, dated July 24,
1998, between the Company and the Placement Agent (the "Placement Agreement"),
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which provides for the sale by the Company to the Placement Agent of 200,000
Units, each consisting of one 14% Senior Note due 2008 with a principal amount
of $1,000 (collectively, the "Notes") and one Warrant entitling the holder
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thereof to purchase initially 10.777 shares of Common Stock, par value $0.001
per share, of the Company. In order to induce the Placement Agent to enter into
the Placement Agreement, the Company has agreed to provide to the Placement
Agent and their direct and indirect transferees the registration rights set
forth in this Agreement. The execution of this Agreement is a condition to the
closing under the Placement Agreement.
In consideration of the foregoing, the parties hereto agree as follows:
1. Definitions.
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Defined terms used herein without other definition shall have the
respective meanings ascribed thereto, whether directly or indirectly by
reference, in the Placement Agreement.
As used in this Agreement, the following capitalized defined terms shall
have the following meanings:
"Business Day" shall have the meaning specified in the Indenture.
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"Closing Date" shall mean the Closing Date as defined in the Placement
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Agreement.
"Company" shall have the meaning set forth in the preamble and shall also
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include the Company's successors.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended
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from time to time.
"Exchange Offer" shall mean the exchange offer by the Company of Exchange
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Securities for Registrable Securities pursuant to Section 2(a) hereof.
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"Exchange Offer Registration" shall mean a registration under the
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Securities Act effected pursuant to Section 2(a) hereof.
"Exchange Offer Registration Statement" shall mean an exchange offer
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registration statement on Form S-4 (or, if applicable, on another appropriate
form) and all amendments and supplements to such registration statement, in each
case including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
"Exchange Securities" shall mean securities issued by the Company under the
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Indenture containing terms identical to the Notes (except that (i) interest
thereon shall accrue from the last date on which interest was paid on the Notes
and (ii) the Exchange Securities will not contain restrictions on transfer) and
to be offered to Holders of Notes in exchange for Notes pursuant to the Exchange
Offer.
"Holder" shall mean the Placement Agent, for so long as it owns any
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Registrable Securities, and each of its successors, assigns and direct and
indirect transferees who become registered owners of Registrable Securities
under the Indenture; provided that for purposes of Sections 4 and 5 of this
Agreement, the term "Holder" shall include Participating Broker-Dealers (as
defined in Section 4(a)).
"Indenture" shall mean the Indenture relating to the Notes dated as of July
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29, 1998, between the Company and The Bank of New York, as trustee, and as the
same may be amended from time to time in accordance with the terms thereof.
"Majority Holders" shall mean the Holders of a majority of the aggregate
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principal amount of outstanding Registrable Securities; provided that whenever
the consent or approval of Holders of a specified percentage of the outstanding
principal amount of Registrable Securities is required hereunder, Registrable
Securities held by the Company or any of its affiliates (as such term is defined
in Rule 405 under the Securities Act) (other than the Placement Agent or
subsequent holders of Registrable Securities if such subsequent holders are
deemed to be such affiliates solely by reason of their holding of such
Registrable Securities) shall not be counted in determining whether such consent
or approval was given by the Holders of such required percentage or amount.
"Person" shall mean an individual, partnership, corporation, limited
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liability company, trust or unincorporated organization, or a government or
agency or political subdivision thereof.
"Placement Agent" shall have the meaning set forth in the preamble.
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"Placement Agreement" shall have the meaning set forth in the preamble.
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"Prospectus" shall mean the prospectus included in a Registration
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Statement, including any preliminary prospectus, and any such prospectus as
amended or supplemented by any prospectus supplement, including a prospectus
supplement with respect to the terms of the offering of any portion of the
Registrable Securities covered by a Shelf Registration Statement, and by all
other amendments and supplements to such prospectus, and in each case including
all material incorporated by reference therein.
"Registrable Securities" shall mean the Notes; provided, however, that the
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Notes shall cease to be Registrable Securities (i) when a Registration Statement
with respect to such Notes shall have been declared effective under the
Securities Act and such Notes shall have been disposed of or exchanged pursuant
to such Registration Statement, (ii) when such Notes have been sold to the
public pursuant to Rule 144(k) (or any similar provision then in force, but not
Rule 144A) under the Securities Act or (iii) when such Notes shall have ceased
to be outstanding.
"Registration Expenses" shall mean any and all expenses incident to
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performance of or compliance by the Company with this Agreement, including
without limitation: (i) all SEC, stock exchange or National Association of
Securities Dealers, Inc. registration and filing fees, (ii) all fees and
expenses incurred in connection with compliance with state securities or blue
sky laws (including reasonable fees and disbursements of one counsel for any
underwriters or Holders in connection with blue sky qualification of any of the
Exchange Securities or Registrable Securities), (iii) all expenses of any
Persons in preparing or assisting in preparing, word processing, printing and
distributing any Registration Statement, any Prospectus, any amendments or
supplements thereto, any underwriting agreements, securities sales agreements
and other documents relating to the performance of and compliance with this
Agreement, in each case to the extent not paid or payable by any other Person,
(iv) all fees and disbursements relating to the qualification of the Indenture
under applicable securities laws, (v) the fees and disbursements of the Trustee
and its counsel, (vi) the fees and disbursements of counsel for the Company and,
in the case of a Shelf Registration Statement, the reasonable fees and
disbursements of one counsel for the Holders (which counsel shall be selected by
the Majority Holders and which counsel may also be counsel for the Placement
Agent) and (vii) the fees and disbursements of the independent public
accountants of the Company, including the expenses of any special audits or
"cold comfort" letters required by or incident to such performance and
compliance, but excluding fees and expenses of counsel to the underwriters
(other than fees and expenses set forth in clause (ii) above) or the Holders
(other than fees and expenses set forth in clause (vi) above) or accountants to
the Holders and underwriting discounts and commissions and transfer taxes, if
any, relating to the sale, disposition or exchange of Registrable Securities by
a Holder.
"Registration Statement" shall mean any registration statement of the
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Company that covers any of the Exchange Securities or Registrable Securities
pursuant to the provisions of this Agreement and all amendments and supplements
to any such Registration Statement, including
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post-effective amendments, in each case including the Prospectus contained
therein, all exhibits thereto and all material incorporated by reference
therein.
"SEC" shall mean the Securities and Exchange Commission.
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"Securities Act" shall mean the Securities Act of 1933, as amended from
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time to time.
"Shelf Registration" shall mean a registration effected pursuant to Section
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2(b) hereof.
"Shelf Registration Statement" shall mean a "shelf" registration statement
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of the Company pursuant to the provisions of Section 2(b) of this Agreement
which covers all of the Registrable Securities (but no other securities unless
approved by the Majority Holders whose Registrable Securities are covered by
such Shelf Registration Statement) on an appropriate form under Rule 415 under
the Securities Act, or any similar rule that may be adopted by the SEC, and all
amendments and supplements to such registration statement, including post-
effective amendments, in each case including the Prospectus contained therein,
all exhibits thereto and all material incorporated by reference therein.
"Trustee" shall mean the trustee with respect to the Notes under the
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Indenture.
"Underwritten Registration" or "Underwritten Offering" shall mean a
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registration in which Registrable Securities are sold to an Underwriter (as
hereinafter defined) for reoffering to the public.
2. Registration Under the Securities Act. (a) To the extent not prohibited
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by any applicable law or applicable interpretations of the Staff of the SEC, the
Company shall use its best efforts to cause to be filed an Exchange Offer
Registration Statement covering the offer by the Company to the Holders to
exchange all of the Registrable Securities for Exchange Securities and to have
such Registration Statement remain effective until the closing of the Exchange
Offer. The Company shall commence the Exchange Offer promptly after the Exchange
Offer Registration Statement has been declared effective by the SEC. The Company
shall commence the Exchange Offer by mailing the related exchange offer
Prospectus and accompanying documents to each Holder stating, in addition to
such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this
Registration Rights Agreement and that all Registrable Securities validly
tendered will be accepted for exchange;
(ii) the dates of acceptance for exchange (which shall be a period of
at least 20 Business Days from the date such notice is mailed) (the
"Exchange Dates");
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(iii) that any Registrable Security not tendered will remain
outstanding and continue to accrue interest, but will not retain any rights
under this Registration Rights Agreement;
(iv) that Holders electing to have a Registrable Security exchanged
pursuant to the Exchange Offer will be required to surrender such
Registrable Security, together with the enclosed letters of transmittal, to
the institution and at the address (located in the Borough of Manhattan,
The City of New York) specified in the notice prior to the close of
business on the last Exchange Date; and
(v) that any Holder will be entitled to withdraw its election, not
later than the close of business on the last Exchange Date, by sending to
the institution and at the address (located in the Borough of Manhattan,
The City of New York) specified in the notice a telegram, telex, facsimile
transmission or letter setting forth the name of such Holder, the principal
amount of Registrable Securities delivered for exchange and a statement
that such Holder is withdrawing its election to have such Notes exchanged.
As soon as practicable after the last Exchange Date, the Company shall:
(i) accept for exchange Registrable Securities or portions thereof
tendered and not validly withdrawn pursuant to the Exchange Offer; and
(ii) deliver, or cause to be delivered, to the Trustee for
cancellation all Registrable Securities or portions thereof so accepted for
exchange by the Company and issue, and cause the Trustee to promptly
authenticate and mail to each Holder, an Exchange Security equal in
principal amount to the principal amount of the Registrable Securities
surrendered by such Holder.
The Company shall use its best efforts to complete the Exchange Offer as
provided above and shall comply with the applicable requirements of the
Securities Act, the Exchange Act and other applicable laws and regulations in
connection with the Exchange Offer. The Exchange Offer shall not be subject to
any conditions, other than that the Exchange Offer does not violate applicable
law or any applicable interpretation of the Staff of the SEC. The Company shall
inform the Placement Agent of the names and addresses of the Holders to whom the
Exchange Offer is made, and the Placement Agent shall have the right, subject to
applicable law, to contact such Holders and otherwise facilitate the tender of
Registrable Securities in the Exchange Offer.
(b) In the event that (i) the Company determines that the Exchange Offer
Registration provided for in Section 2(a) above is not available or may not be
consummated as soon as practicable after the last Exchange Date because it would
violate applicable law or applicable interpretations of the Staff of the SEC,
(ii) the Exchange Offer is not for any other reason consummated by July 29, 1999
or (iii) the Exchange Offer has been completed and in the written
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opinion of counsel for the Placement Agent a Registration Statement must be
filed and a Prospectus must be delivered by the Placement Agent in connection
with any offering or sale of Registrable Securities (other than in situations
covered by Section 2(f) below), the Company shall use its best efforts to cause
to be filed as soon as practicable after such determination, date or notice of
such opinion of counsel is given to the Company, as the case may be, a Shelf
Registration Statement providing for the sale by the Holders of all of the
Registrable Securities and to have such Shelf Registration Statement declared
effective by the SEC. Subject to the penultimate paragraph of Section 3 hereof,
the Company agrees to use its best efforts to keep the Shelf Registration
Statement continuously effective until the second anniversary of the Closing
Date or such shorter period that will terminate when all of the Registrable
Securities covered by the Shelf Registration Statement have been sold pursuant
to the Shelf Registration Statement or all of the Notes cease to be Registrable
Securities. The Company further agrees to supplement or amend the Shelf
Registration Statement if required by the rules, regulations or instructions
applicable to the registration form used by the Company for such Shelf
Registration Statement or by the Securities Act or by any other rules and
regulations thereunder for shelf registration or if reasonably requested by a
Holder with respect to information relating to such Holder, and, subject to the
penultimate paragraph of Section 3 hereof, to use its best efforts to cause any
such amendment to become effective and such Shelf Registration Statement to
become usable as soon as thereafter practicable. The Company agrees to furnish
to the Holders of Registrable Securities copies of any such supplement or
amendment promptly after its being used or filed with the SEC.
(c) The Company shall pay all Registration Expenses in connection with the
registration pursuant to Section 2(a) or Section 2(b). Each Holder shall pay all
underwriting discounts and commissions and transfer taxes, if any, relating to
the sale or disposition of such Holder's Registrable Securities pursuant to the
Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a)
hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will
not be deemed to have become effective unless it has been declared effective by
the SEC; provided, however, that, if, after it has been declared effective, the
offering of Registrable Securities pursuant to a Shelf Registration Statement is
interfered with by any stop order, injunction or other order or requirement of
the SEC or any other governmental agency or court, such Registration Statement
will be deemed not to have become effective during the period of such
interference until the offering of Registrable Securities pursuant to such
Registration Statement may legally resume. As provided for in the Indenture, the
Notes will accrue interest at the rate of 14% per annum payable semiannually in
arrears on February 1 and August 1 of each year commencing February 1, 1999;
provided that if by July 29, 1999 the Company has not consummated the Exchange
Offer or caused the Shelf Registration Statement to be declared effective,
interest (in addition to interest otherwise due on the Exchange Securities on
such date) will accrue at a rate of 0.5% per annum and be payable in cash
semiannually on February 1 and August 1 of each year, commencing February 1,
1999, until the Exchange Offer is consummated or the Shelf Registration
Statement is declared effective.
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(e) In the event that, at any time after consummation of the Exchange Offer
or the effectiveness of the Shelf Registration Statement, the Placement Agent,
or any successor thereto, in its reasonable judgment becomes an affiliate (as
such term is defined in Rule 144 under the Securities Act) of the Company, or
any successor thereto, the Company (or its successor) shall use its best efforts
to cause to be filed as soon as practicable after receiving notice thereof from
the Placement Agent (or any successor thereto) a shelf registration statement
(the "Resale Registration Statement") under the Securities Act providing for the
sale by the Placement Agent (or any successor thereto) of all Notes or Exchange
Securities it acquires from time to time in connection with market-making
activities and to have such shelf registration statement declared effective by
the SEC. The provisions of this Agreement concerning the Shelf Registration
Statement shall apply to any Resale Registration Statement as if such
Registration Statement were the Shelf Registration Statement filed pursuant to
Section 2(b) hereof (except that the Company (or its successor) will use its
best efforts to keep the Resale Registration Statement effective until the
earlier of (i) the date on which no Notes or Exchange Securities remain
outstanding and (ii) such time as such Placement Agent shall, in its opinion,
have ceased to be an affiliate of the Company, as evidenced by written notice,
which shall be sent promptly upon such event). Notwithstanding the foregoing,
the Company shall not be required to maintain the effectiveness of any Resale
Registration Statement if the Placement Agent shall have ceased to make a market
in the Notes or the Exchange Securities.
3. Registration Procedures. In connection with the obligations of the
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Company with respect to the Registration Statements pursuant to Section 2(a) and
Section 2(b) hereof, the Company shall as expeditiously as is practicable:
(a) prepare and file with the SEC a Registration Statement on the
appropriate form under the Securities Act, which form (x) shall be selected by
the Company and (y) shall, in the case of a Shelf Registration, be available for
the sale of the Registrable Securities by the selling Holders thereof and (z)
shall comply as to form in all material respects with the requirements of the
applicable form and include all financial statements required by the SEC to be
filed therewith, and use its best efforts to cause such Registration Statement
to become effective and remain effective in accordance with Section 2 hereof;
(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 effective for the applicable period and cause each
Prospectus to be supplemented by any required prospectus supplement and, as so
supplemented, to be filed pursuant to Rule 424 under the Securities Act; to keep
each Prospectus current during the period described under Section 4(3) and Rule
174 under the Securities Act that is applicable to transactions by brokers or
dealers with respect to the Registrable Notes or Exchange Notes;
(c) in the case of a Shelf Registration, furnish to each Holder of
Registrable Securities, to counsel for the Placement Agent, to counsel for the
Holders and to each Underwriter of an
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Underwritten Offering of Registrable Securities, if any, without charge, as many
copies of each Prospectus, including, until a final Prospectus has been
prepared, each preliminary Prospectus, and any amendment or supplement thereto
and such other documents as such Holder or Underwriter may reasonably request,
in order to facilitate the public sale or other disposition of the Registrable
Securities; and the Company consents to the use of such Prospectus and any
amendment or supplement thereto in accordance with applicable law by each of the
selling holders of Registrable Securities and any such Underwriters in
connection with the offering and sale of the Registrable Securities covered by
and in the manner described in such Prospectus or any amendment or supplement
thereto in accordance with applicable law;
(d) use its best efforts to register or qualify the Registrable Securities
under all applicable state securities or "blue sky" laws of such jurisdictions
as any Holder of Registrable Securities covered by a Registration Statement
shall reasonably request in writing by the time the applicable Registration
Statement is declared effective by the SEC, to cooperate with such Holders in
connection with any filings required to be made with the National Association of
Securities Dealers, Inc. and do any and all other acts and things which may be
reasonably necessary or advisable to enable such Holder to consummate the
disposition in each such jurisdiction of such Registrable Securities owned by
such Holder; provided, however, that the Company shall not be required to (i)
qualify as a foreign corporation or as a dealer in securities in any
jurisdiction where it would not otherwise be required to qualify but for this
Section 3(d), (ii) file any general consent to service of process or (iii)
subject itself to taxation in any such jurisdiction if it is not so subject;
(e) in the case of a Shelf Registration, notify each Holder of Registrable
Securities, counsel for the Holders and counsel for the Placement Agent promptly
and, if requested by any such Holder or counsel, confirm such advice in writing
(i) when a Shelf Registration Statement has become effective and when any post-
effective amendment thereto has been filed and becomes effective, (ii) of any
request by the SEC or any state securities authority for amendments and
supplements to a Shelf Registration Statement and Prospectus or for additional
information after the Shelf Registration Statement has become effective, (iii)
of the issuance by the SEC or any state securities authority of any stop order
suspending the effectiveness of a Shelf Registration Statement or the initiation
of any proceedings for that purpose, (iv) if, between the effective date of a
Shelf Registration Statement and the closing of any sale of Registrable
Securities covered thereby, the representations and warranties of the Company
contained in any underwriting agreement, securities sales agreement or other
similar agreement, if any, relating to the offering cease to be true and correct
in all material respects or if the Company receives any notification with
respect to the suspension of the qualification of the Registrable Securities for
sale in any jurisdiction or the initiation of any proceeding for such purpose,
(v) of the happening of any event during the period a Shelf Registration
Statement is effective which makes any statement made in such Registration
Statement or the related Prospectus untrue in any material respect or which
requires the making of any changes in such Registration Statement or Prospectus
in order to make the statements therein not misleading and (vi) of any
determination
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by the Company that a post-effective amendment to a Registration Statement would
be appropriate;
(f) make every reasonable effort to obtain the withdrawal of any order
suspending the effectiveness of a Registration Statement at the earliest
possible moment and provide notice as promptly as practicable to each Holder of
the withdrawal of any such order;
(g) in the case of a Shelf Registration, furnish to each Holder of
Registrable Securities, without charge, at least one conformed copy of each
Registration Statement and any post-effective amendment thereto (without
documents incorporated therein by reference or exhibits thereto, unless
requested);
(h) in the case of a Shelf Registration, cooperate with the selling Holders
of Registrable Securities to facilitate the timely preparation and delivery of
certificates representing Registrable Securities to be sold and not bearing any
restrictive legends and to enable such Registrable Securities to be in such
denominations (consistent with the provisions of the Indenture) and registered
in such names as the selling Holders may reasonably request at least two
business days prior to the closing of any sale of Registrable Securities;
(i) in the case of a Shelf Registration, upon the occurrence of any event
contemplated by Section 3(e)(v) or (vi) hereof, use its best efforts to prepare
and file with the SEC a supplement or post-effective amendment to a Registration
Statement or the related Prospectus or any document incorporated therein by
reference or file any other required document so that, as thereafter delivered
to the purchasers of the Registrable Securities, such Prospectus will not
contain any untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading. The Company agrees to notify the Holders
to suspend use of the Prospectus as promptly as practicable after the occurrence
of such an event, and the Holders hereby agree to suspend use of the Prospectus
until the Company has amended or supplemented the Prospectus to correct such
misstatement or omission;
(j) a reasonable time prior to the filing of any Registration Statement,
any Prospectus, any amendment to a Registration Statement or amendment or
supplement to a Prospectus or any document which is to be incorporated by
reference into a Registration Statement or a Prospectus after initial filing of
a Registration Statement, provide copies of such document to the Placement Agent
and their counsel (and, in the case of a Shelf Registration Statement, the
Holders and their joint counsel) and make such of the representatives of the
Company as shall be reasonably requested by the Placement Agent or their counsel
(and, in the case of a Shelf Registration Statement, the Holders or their joint
counsel) available for discussion of such document, and shall not at any time
file or make any amendment to the Registration Statement, any Prospectus or any
amendment of or supplement to a Registration Statement or a Prospectus or file
any document which is to be incorporated by reference into a Registration
Statement or a Prospectus,
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of which the Placement Agent and their counsel (and, in the case of a Shelf
Registration Statement, the Holders and their counsel) shall not have previously
been advised and furnished a copy or to which the Placement Agent or their
counsel (and, in the case of a Shelf Registration Statement, the Holders or
their counsel) shall reasonably object without unreasonable delay;
(k) obtain a CUSIP number for all Exchange Securities or Registrable
Securities, as the case may be, not later than the effective date of a
Registration Statement;
(l) cause the Indenture to be qualified under the Trust Indenture Act of
1939, as amended (the "TIA"), in connection with the registration of the
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Exchange Securities or Registrable Securities, as the case may be, cooperate
with the Trustee and the Holders to effect such changes to the Indenture as may
be required for the Indenture to be so qualified in accordance with the terms of
the TIA and execute, and use its best efforts to cause the Trustee to execute,
all documents as may be required to effect such changes and all other forms and
documents required to be filed with the SEC to enable the Indenture to be so
qualified in a timely manner;
(m) in the case of a Shelf Registration, make available for inspection by a
representative of the Holders of the Registrable Securities, any Underwriter
participating in any disposition pursuant to such Shelf Registration Statement,
and one firm each of attorneys and accountants designated by the Holders, at
reasonable times and in a reasonable manner, all financial and other records,
pertinent documents and properties of the Company as shall reasonably be
requested, and cause the respective officers, directors and employees of the
Company to supply all information reasonably requested by any such
representative, Underwriter, attorney or accountant in connection with a Shelf
Registration Statement; provided, however, that any such representative,
Underwriter, attorney or accountant agrees to keep confidential any records,
documents or other information (collectively, "Information") received from the
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Company and designated by the Company as confidential and to use such
Information obtained pursuant to this provision only in connection with the
transaction for which such Information was obtained, and not for any other
purpose; provided further, however, that the foregoing confidentiality
obligation shall not apply to the extent that (i) such Information (x) is
available to the public, (y) subject to clause (z) below, is already in such
representative's, Underwriters', attorney's or accountant's possession prior to
receipt from the Company and such Person does not otherwise have any obligation
to keep such Information confidential or (z) is obtained by such representative,
Underwriter, attorney or accountant from a third Person who, insofar as is known
to such representative, Underwriter, attorney or accountant after due inquiry,
is not required to keep such Information confidential or (ii) disclosure of such
Information is required by court or administrative order after the exhaustion of
all appeals therefrom;
(n) in the case of a Shelf Registration, use its best efforts to cause all
Registrable Securities to be listed on any securities exchange or any automated
quotation system on which similar securities issued by the Company are then
listed if requested by the Majority Holders, to the extent such Registrable
Securities satisfy applicable listing requirements;
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(o) if reasonably requested by any Holder of Registrable Securities covered
by a Registration Statement, (i) promptly incorporate in a Prospectus supplement
or post-effective amendment such information with respect to such Holder as such
Holder reasonably requests to be included therein 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 filing; and
(p) in the case of a Shelf Registration, enter into such customary
agreements and take all such other customary actions in connection therewith
(including those requested by the Holders of a majority of the Registrable
Securities being sold) in order to expedite or facilitate the disposition of
such Registrable Securities including, but not limited to, an Underwritten
Offering and in such connection, (i) to the extent possible, make such
representations and warranties to the Holders and any Underwriters of such
Registrable Securities with respect to the business of the Company and its
subsidiaries, the Registration Statement, Prospectus and documents incorporated
by reference or deemed incorporated by reference, 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 (which counsel and opinions, in form, scope
and substance, shall be reasonably satisfactory to the Holders of a majority in
principal amount of the Registrable Securities to be sold in such Underwritten
Offering and any Underwriters and their respective counsel) addressed to each
selling Holder and Underwriter of Registrable Securities, covering the matters
customarily covered in opinions requested in underwritten offerings, (iii)
obtain "cold comfort" letters from the independent certified public accountants
of the Company (and, if necessary, any other certified public accountant of any
subsidiary of the Company, or of any business acquired by the Company for which
financial statements and financial data are or are required to be included in
the Registration Statement) addressed to each selling Holder and Underwriter of
Registrable Securities, such letters to be in customary form and covering
matters of the type customarily covered in "cold comfort" letters in connection
with underwritten offerings, and (iv) deliver such documents and certificates as
may be reasonably requested by the Holders of a majority in principal amount of
the Registrable Securities being sold or the Underwriters, and which are
customarily delivered in underwritten offerings, to evidence the continued
validity of the representations and warranties of the Company made pursuant to
clause (i) above and to evidence compliance with any customary conditions
contained in an underwriting agreement; provided that the Company shall be
required to use its best efforts to make an Underwritten Offering only upon the
request of Holders of at least (1) 25% of the aggregate principal amount of the
Registrable Securities outstanding at the time such request is delivered to the
Company and (2) 10% of the aggregate principal amount of the Notes outstanding
on the date hereof. In the case of any Underwritten Offering, the Company shall
provide written notice to the Holders of all Registrable Securities of such
Underwritten Offering at least 30 days prior to the filing of a prospectus
supplement for such Underwritten Offering, (y) specifying a date, which shall be
no earlier than 10 days following the date of such notice, by which each such
Holder must inform
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the Company of its intent to participate in such Underwritten Offering and (z)
including the instructions such Holder must follow in order to participate in
such Underwritten Offering.
In the case of a Shelf Registration Statement, the Company may require each
Holder of Registrable Securities to furnish to the Company such information
regarding the Holder and the proposed distribution by such Holder of such
Registrable Securities as the Company may from time to time reasonably request
in writing.
In the case of a Shelf Registration Statement, each Holder agrees that,
upon receipt of any notice from the Company of the happening of any event of the
kind described in Section 3(e)(v) hereof, such Holder will forthwith discontinue
disposition of Registrable Securities pursuant to a Shelf Registration Statement
until such Holder's receipt of the copies of the supplemented or amended
Prospectus contemplated by Section 3(i) hereof, and, if so directed by the
Company, such Holder will deliver to the Company (at its expense) all copies in
its possession, other than permanent file copies then in such Holder's
possession, of the Prospectus covering such Registrable Securities current at
the time of receipt of such notice. If the Company shall give any such notice to
suspend the disposition of Registrable Securities pursuant to a Shelf
Registration Statement, the Company shall extend the period during which the
Shelf Registration Statement shall be maintained effective pursuant to this
Agreement by the number of days during the period from and including the date of
the giving of such notice to and including the date when the Holders shall have
received copies of the supplemented or amended Prospectus necessary to resume
such dispositions. In addition, the Company may, for a good-faith business
purpose, provide the Holders with notice of the suspension of the disposition of
Registrable Securities pursuant to a Shelf Registration Statement. The Company
may give any such notice pursuant to the preceding sentence only twice during
any 365 day period and any such suspensions may not exceed 30 days for each
suspension and there may not be more than two suspensions in effect during any
365 day period (which may be consecutive).
The Holders of Registrable Securities covered by a Shelf Registration
Statement who desire to do so may sell such Registrable Securities in an
Underwritten Offering, subject to such terms and conditions as shall be
established by the Underwriters thereof. In any such Underwritten Offering, the
investment banker or investment bankers and manager or managers (the
"Underwriters") that will administer the offering will be selected by the
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Majority Holders of the Registrable Securities included in such offering,
subject to the approval of the Company, which approval shall not be unreasonably
withheld.
4. Participation of Broker-Dealers in Exchange Offer. (a) The Staff of the
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SEC has taken the position that any broker-dealer that receives Exchange
Securities for its own account in the Exchange Offer in exchange for Notes that
were acquired by such broker-dealer as a result of market-making or other
trading activities (a "Participating Broker-Dealer"), may be deemed to be an
---------------------------
"underwriter" within the meaning of the Securities Act and must deliver a
prospectus meeting the requirements of the Securities Act in connection with any
resale of such Exchange Securities.
13
The Company understands that it is the position of the Staff of the SEC
that if the Prospectus contained in the Exchange Offer Registration Statement
includes a plan of distribution containing a statement to the above effect and
the means by which Participating Broker-Dealers may resell the Exchange
Securities, without naming the Participating Broker-Dealers or specifying the
amount of Exchange Securities owned by them, such Prospectus may be delivered by
Participating Broker-Dealers to satisfy their prospectus delivery obligation
under the Securities Act in connection with resales of Exchange Securities for
their own accounts, so long as the Prospectus otherwise meets the requirements
of the Securities Act.
(b) In light of the above, notwithstanding the other provisions of this
Agreement, the Company agrees that the provisions of this Agreement as they
relate to a Shelf Registration shall also apply to an Exchange Offer
Registration to the extent, and with such reasonable modifications thereto as
may be, reasonably requested by the Placement Agent or by one or more
Participating Broker-Dealers, in each case as provided in clause (ii) below, in
order to expedite or facilitate the disposition of any Exchange Securities by
Participating Broker-Dealers consistent with the positions of the Staff recited
in Section 4(a) above; provided that:
(i) the Company shall not be required to amend or supplement the
Prospectus contained in the Exchange Offer Registration Statement, as would
otherwise be contemplated by Section 3(i), for a period exceeding 180 days
after the last Exchange Date (as such period may be extended pursuant to
the penultimate paragraph of Section 3 of this Agreement) and Participating
Broker-Dealers shall not be authorized by the Company to deliver and shall
not deliver such Prospectus after such period in connection with the
resales contemplated by this Section 4; and
(ii) the application of the Shelf Registration procedures set forth in
Section 3 of this Agreement to an Exchange Offer Registration, to the
extent not required by the positions of the Staff of the SEC or the
Securities Act and the rules and regulations thereunder, will be in
conformity with the reasonable request to the Company by the Placement
Agent or with the reasonable request in writing to the Company by one or
more broker-dealers who certify to the Placement Agent and the Company in
writing that they anticipate that they will be Participating Broker-
Dealers; and provided further that, in connection with such application of
the Shelf Registration procedures set forth in Section 3 to an Exchange
Offer Registration, the Company shall be obligated (x) to deal only with
one entity representing the Participating Broker-Dealers as a whole, which
shall be the Placement Agent unless it elects not to act as such
representative, (y) to pay the reasonable fees and expenses of only one
counsel representing the Participating Broker-Dealers, which shall be
counsel to the Placement Agent unless such counsel elects not to so act and
(z) to cause to be delivered only one, if any, "cold comfort" letter with
respect to the Prospectus in the form existing on the last Exchange Date
and with respect to each subsequent amendment or supplement, if any,
effected during the period specified in clause (i) above.
14
(c) The Placement Agent shall have no liability to the Company or any
Holder with respect to any request that it may make pursuant to Section 4(b)
above.
5. Indemnification and Contribution. (a) The Company agrees to indemnify
--------------------------------
and hold harmless the Placement Agent, and each person, if any, who controls
such Placement Agent within the meaning of either Section 15 of the Securities
Act or Section 20 of the Exchange Act, or is under common control with, or is
controlled by, such Placement Agent, from and against any and all losses,
claims, damages and liabilities (including, without limitation, any legal or
other expenses reasonably incurred by the Placement Agent or any such
controlling of affiliated person in connection with defending or investigating
any such action or claim) caused by any untrue statement or alleged untrue
statement of a material fact contained in either Memorandum (as amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto), or caused by any omission or alleged omission to state therein a
material fact necessary to make the statements therein in light of the
circumstances under which they were made not misleading, except insofar as such
losses, claims, damages or liabilities are caused by any such untrue statement
or omission or alleged untrue statement or omission based upon information
relating to the Placement Agent furnished to the Company in writing by the
Placement Agent expressly for use therein.
(b) The Placement Agent agrees to indemnify and hold harmless the
Company, its directors, its officers and each person, if any, who controls the
Company within the meaning of either Section 15 of the Securities Act or Section
20 of the Exchange Act to the same extent as the foregoing indemnity from the
Company to the Placement Agent, but only with reference to information relating
to the Placement Agent furnished to the Company in writing by the Placement
Agent expressly for use in either Memorandum or any amendments or supplements
thereto.
(c) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to either paragraph (a) or (b) above, such person (the
"indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding and
shall pay the fees and disbursements of such counsel related to such proceeding.
In any such proceeding, any indemnified party shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the expense
of such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It
15
is understood that the indemnifying party shall not, in respect of the legal
expenses of any indemnified party in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the fees and expenses of
more than one separate firm (in addition to any necessary local counsel) for all
such indemnified parties and that all such fees and expenses shall be reimbursed
as they are incurred. Such firm shall be designated in writing by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
& Co. Incorporated in the case of parties indemnified pursuant to paragraph (a)
above and by the Company in the case of parties indemnified pursuant to
paragraph (b) above. The indemnifying party shall not be liable for any
settlement of any proceeding effected without its written consent, but if
settled with such consent or if there be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party from and against
any loss or liability by reason of such settlement or judgment. Notwithstanding
the foregoing sentence, if at any time an indemnified party shall have requested
an indemnifying party to reimburse the indemnified party for fees and expenses
of counsel as contemplated by the second and third sentences of this paragraph,
the indemnifying party agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 30 days after receipt by such indemnifying party of the
aforesaid request and (ii) such indemnifying party shall not have reimbursed the
indemnified party in accordance with such request prior to the date of such
settlement. No indemnifying party shall, without the prior written consent of
the indemnified party, effect any settlement of any pending or threatened
proceeding in respect of which any indemnified party is or could have been a
party and indemnity could have been sought hereunder by such indemnified party,
unless such settlement includes an unconditional release of such indemnified
party from all liability on claims that are the subject matter of such
proceeding.
(d) To the extent the indemnification provided for in paragraph (a) or
(b) of this Section 5 is unavailable to an indemnified party or insufficient in
respect of any losses, claims, damages or liabilities, then each indemnifying
party under such paragraph, in lieu of indemnifying such indemnified party
thereunder, shall contribute to the amount paid or payable by such indemnified
party as a result of such losses, claims, damages or liabilities (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company, on the one hand, and the Placement Agent, on the other hand, from the
offering of the Units, Notes and Warrants or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company on the one hand and the
Placement Agent on the other hand in connection with the statements or omissions
that resulted in such losses, claims, damages or liabilities, as well as any
other relevant equitable considerations. The relative benefits received by the
Company on the one hand and the Placement Agent on the other hand in connection
with the offering of the Notes shall be deemed to be in the same respective
proportions as the net proceeds from the offering of the Notes (before deducting
expenses) received by the Company and the total discounts and commissions
received by the Placement Agent in respect thereof bear to the aggregate
offering price of the Notes. The
16
relative fault of the Company on the one hand and of the Placement Agent 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
or by the Placement Agent and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
(e) The Company and the Placement Agent agree that it would not be
just or equitable if contribution pursuant to this Section 5 were determined by
pro rata allocation or by any other method of allocation that does not take
--- ----
account of the equitable considerations referred to in paragraph (d) above. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages and liabilities referred to in paragraph (d) above shall be
deemed to include, subject to the limitations set forth above, any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 5, the Placement Agent shall not be required to
contribute any amount in excess of the amount by which the total price at which
the Notes resold by it in the initial placement of the Notes were offered to
investors exceeds the amount of any damages that the Placement Agent 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)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The remedies provided for in this Section 5 are
not exclusive and shall not limit any rights or remedies which may otherwise be
available to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this
Section 5 and the representations, warranties and other statements of the
Company contained in this Agreement shall remain operative and in full force and
effect regardless of (i) any termination of this Agreement, (ii) any
investigation made by or on behalf of any Placement Agent or any Person
controlling any Placement Agent or by or on behalf of the Company, its officers
or directors or any Person controlling the Company and (iii) acceptance of and
payment for any of the Notes.
6. Miscellaneous. (a) The Company agrees, for the sole benefit of the
-------------
Placement Agent:
(i) prior to the consummation of the Exchange Offer or the
effectiveness of a Shelf Registration Statement if, in the reasonable judgment
of the Placement Agent, the Placement Agent or any of its affiliates (as such
term is defined in the rules and regulations under the Securities Act) is
required to deliver an offering memorandum in connection with sales of, or
market-making activities with respect to, the Securities or the Exchange
Securities, (A) to periodically amend or supplement the Final Memorandum so that
the information contained in the Final Memorandum complies with the requirements
of Rule 144A of the Securities Act, (B)
17
to amend or supplement the Final Memorandum when necessary to reflect any
material changes in the information provided therein so that the Final
Memorandum will not contain any untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements therein, in
light of the circumstances existing as of the date the Final Memorandum is so
delivered, not misleading and (C) to provide the Placement Agent with copies of
each such amended or supplemental Final Memorandum, as the Placement Agent may
reasonably request;
(ii) following the consummation of the Exchange Offer or the
effectiveness of a Shelf Registration Statement and for so long as the
Securities or, the Exchange Securities are outstanding if, in the reasonable
judgment of the Placement Agent, the Placement Agent or any of its affiliates
(as such term is defined in the rules and regulations under the Securities Act)
is required to deliver a prospectus in connection with sales of, or market-
making activities with respect to, such securities, (A) to periodically amend
the applicable registration statement so that the information contained therein
complies with the requirements of Section 10(a) of the Securities Act, (B) if
requested by the Placement Agent, within 45 days following the end of the
Company's most recent fiscal quarter, file a supplement to the prospectus
included in the applicable registration statement which sets forth the financial
results of the Company for the previous quarter, (C) to amend the applicable
registration statement or supplement the related prospectus or the documents
incorporated therein when necessary to reflect any material changes in the
information provided therein so that the registration statement and the
prospectus will not contain any untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements therein, in
light of the circumstances existing as of the date the prospectus is so
delivered, not misleading and (D) to provide the Placement Agent with copies of
each such amendment or supplement as the Placement Agent may reasonably request;
(iii) notwithstanding clauses (i) and (ii) above, (A) prior to
amending the Final Memorandum or to filing any post-effective amendment to any
registration statement or supplementing any related prospectus, to furnish to
the Placement Agent and its counsel, copies of all such documents proposed to be
amended, filed or supplemented, and (B) not to issue any amendment to the Final
Memorandum, any post-effective amendment to a registration statement or any
supplement to a prospectus to which the Placement Agent or its counsel shall
reasonably object;
(iv) it shall notify the Placement Agent and its counsel and (if
requested by any such Person) confirm such advice in writing, (A) when any
amendment to the Final Memorandum has been issued, when any prospectus
supplement or amendment or post-effective amendment has been filed, and, with
respect to any post-effective amendment, when the same has become effective, (B)
of any request by the SEC for any post-effective amendment or supplement to a
registration statement, any supplement or amendment to a prospectus or for
additional information, (C) of the issuance by the SEC of any stop order
suspending the effectiveness of a registration statement or the initiation of
any proceedings for that purpose, (D) of the receipt by the Company of any
notification with respect to the suspension of the
18
qualification of the Registrable Securities or the Exchange Securities for sale
in any jurisdiction or the initiation or threatening of any proceedings for such
purpose and (E) of the happening of any event which makes any statement made in
the Final Memorandum, a registration statement, a prospectus or any amendment or
supplement thereto untrue or which requires the making of any change in the
Final Memorandum, a registration statement, a prospectus or any amendment or
supplement thereto, in order to make the statements therein not misleading;
(v) it consents to the use of the Final Memorandum and any
prospectus referred to in this Section 6 (a) or any amendment or supplement
thereto, by the Placement Agent in connection with the offering and sale of the
Registrable Securities or Exchange Securities, as the case may be;
(vi) it will comply with the provisions of this Section 6 (a) at its
own expense and will reimburse the Placement Agent for its reasonable expenses
associated with this Section 6 (a) (including reasonable fees of counsel); and
(vii) it hereby expressly acknowledges that the indemnification
and contribution provisions of Section 8 of the Placement Agreement shall be
specifically applicable and relate to each offering memorandum, registration
statement, prospectus, amendment or supplement referred to in this Section 6
(a).
(b) No Inconsistent Agreements. The Company has not entered into, and on or
--------------------------
after the date of this Agreement will not enter into, any agreement which is
inconsistent with the rights granted to the Holders of Registrable Securities in
this Agreement or otherwise conflicts with the provisions hereof. The rights
granted to the Holders hereunder do not in any way conflict with and are not
inconsistent with the rights granted to the holders of the Company's other
issued and outstanding securities under any such agreements.
(c) Amendments and Waivers. The provisions of this Agreement, including the
----------------------
provisions of this sentence, may not be amended, modified or supplemented, and
waivers or consents to departures from the provisions hereof may not be given
unless the Company has obtained the written consent of Holders of at least a
majority in aggregate principal amount of the outstanding Registrable Securities
affected by such amendment, modification, supplement, waiver or consent;
provided, however, that no amendment, modification, supplement, waiver or
consents to any departure from the provisions of Section 5 hereof shall be
effective as against any Holder of Registrable Securities unless consented to in
writing by such Holder.
(d) Notices. All notices and other communications provided for or permitted
-------
hereunder shall be made in writing by hand-delivery, registered first-class
mail, telex, telecopier, or any courier guaranteeing overnight delivery (i) if
to a Holder, at the most current address given by such Holder to the Company by
means of a notice given in accordance with the provisions of this Section 6(d),
which address initially is, with respect to the Placement Agent, the address set
forth
19
in the Placement Agreement; and (ii) if to the Company, initially at the
Company's address set forth in the Placement Agreement and thereafter at such
other address, notice of which is given in accordance with the provisions of
this Section 6(d).
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 is 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.
(e) Successors and Assigns. This Agreement shall inure to the benefit of
----------------------
and be binding upon the successors, assigns and transferees of each of the
parties. including, without limitation and without the need for an express
assignment, subsequent Holders; provided that nothing herein shall be deemed to
permit any assignment, transfer or other disposition of Registrable Securities
in violation of the terms of the Placement Agreement or applicable law. If any
transferee of any Holder shall acquire Registrable Securities, in any manner,
whether by operation of law or otherwise, such Registrable Securities shall be
held subject to all of the terms of this Agreement, and by taking and holding
such Registrable Securities such Person shall be conclusively deemed to have
agreed to be bound by and to perform all of the terms and provisions of this
Agreement and such Person shall be entitled to receive the benefits hereof. The
Placement Agent (in its capacity as Placement Agent) shall have no liability or
obligation to the Company with respect to any failure by any other Holder to
comply with, or any breach by any other Holder of, any of the obligations of
such Holder under this Agreement.
(f) Third Party Beneficiary. The Holders shall be third party beneficiaries
------------------------
to the agreements made hereunder between the Company, on the one hand, and the
Placement Agent, on the other hand, and shall have the right to enforce such
agreements directly to the extent it deems such enforcement necessary or
advisable to protect its rights or the rights of Holders hereunder.
(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 internal laws of the State of New York.
20
(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) Purchases and Sales of Registrable Securities. The Company shall not
---------------------------------------------
purchase and then resell or otherwise transfer any Registrable Securities.
21
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
TVN ENTERTAINMENT CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Senior Executive Vice President
Confirmed and accepted as of
the date first above written:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
-----------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President