EXHIBIT 10.6
________________________________________________________________________________
WARRANT REGISTRATION RIGHTS AGREEMENT
among
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED,
CHASE SECURITIES INC. and
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
Dated as of February 19, 1998
________________________________________________________________________________
WARRANT REGISTRATION RIGHTS AGREEMENT
WARRANT REGISTRATION RIGHTS AGREEMENT, dated as of February 19, 1998
(this "Agreement"), among DIVA SYSTEMS CORPORATION, a Delaware corporation (the
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"Company"), and ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
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Incorporated ("▇▇▇▇▇▇▇ ▇▇▇▇▇"), ▇▇▇▇▇ Securities Inc. and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co.
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Incorporated (collectively, the "Initial Purchasers").
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Pursuant to the terms of a Units Purchase Agreement, dated February
11, 1998 (the "Purchase Agreement"), among the Company and the Initial
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Purchasers, the Company has agreed to issue and sell to the Initial Purchasers
an aggregate of 1,214,994 warrants (the "Initial Purchaser Warrants"), each
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warrant (a "Warrant") initially entitling the holder thereof to purchase one
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share of Common Stock (as defined below) of the Company at an exercise price of
$.01 per share, as part of 404,998 units (the "Units"), each Unit consisting of
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one 12 5/8% Senior Discount Note due 2008 of the Company (each a "Note" and
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collectively, the "Notes") to be issued pursuant to the provisions of an
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Indenture dated as of February 19, 1998 (the "Indenture") between the Company,
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as issuer, and The Bank of New York, as trustee, and three Warrants. Pursuant to
the terms of an exchange offer memorandum and accompanying transmittal form from
the Company to the holders of the Company's outstanding 1996 Notes (the
"Exchange Noteholders"), the Company has agreed to issue to the Exchange
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Noteholders an aggregate of 174,006 Warrants (the "Exchange Warrants" and,
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together with the Initial Purchaser Warrants, the "Warrants"), as part of 58,002
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Units.
The Note and the three Warrants included in each Unit will become
separately transferable at the close of business upon the earliest to occur of
(i) the date that is six months following the Closing Date (as defined below),
(ii) the commencement of an exchange offer with respect to the Notes undertaken
pursuant to the Notes Registration Rights Agreement (as defined below), (iii)
the effectiveness of a shelf registration statement with respect to resales of
the Notes, (iv) the commencement of an Offer to Purchase the Notes (as defined
below) and (v) such earlier date as determined by ▇▇▇▇▇▇▇ ▇▇▇▇▇ in its sole
discretion (the "Separation Date").
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In consideration of the foregoing and of the mutual agreements
contained herein and in the Purchase Agreement, the Company and the Initial
Purchasers hereby agree as follows:
1. Definitions.
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As used in this Agreement, the following capitalized defined terms
shall have the following meanings:
"Auditors" means, at any time, the independent auditors of the Company
at such time.
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"Board" means the board of directors of the Company from time to time.
"Closing Date" means the date hereof.
"Comfort Letter" has the meaning specified in Section 3 hereof.
"Commission" means the United States Securities and Exchange
Commission.
"Common Stock" means the Common Stock, par value $0.001 per share, of
the Company.
"Common Shares" means the shares of the Common Stock of the Company.
"Company" has the meaning specified in the preamble to this Agreement.
"Company Shares" has the meaning specified in Section 2 hereof.
"Cutback Notice" has the meaning specified in Section 2 hereof.
"Exchange Noteholders" has the meaning specified in the preamble to
this Agreement.
"Expiration Date" means the second anniversary of the Closing Date.
"Holders" means the record holders of the Warrants and the holders of
Common Shares (or other securities) received upon exercise thereof.
"Indenture" has the meaning specified in the recitals to this
Agreement.
"Initial Public Offering" means the first firmly underwritten initial
public offering of the Common Stock of the Company registered under the
Securities Act.
"Initial Purchasers" has the meaning specified in the preamble to this
Agreement.
"Managing underwriter" has the meaning specified in Section 2 hereof.
"Maximum Shares" has the meaning specified in Section 2 hereof.
"Maximum Secondary Shares" has the meaning specified in Section 2
hereof.
"Notes" has the meaning specified in the recitals to this Agreement.
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"Notes Registration Rights Agreement" means the Registration Rights
Agreement dated the Closing Date among the Company and the Initial Purchasers
relating to the Notes.
"Opinion" has the meaning specified in Section 3 hereof.
"Other Shares" has the meaning specified in Section 2 hereof.
"Piggy-back Registration Rights" has the meaning specified in Section
2 hereof.
"Purchase Agreement" has the meaning specified in the recitals to this
Agreement.
"Registration Statement" has the meaning specified in Section 2
hereof.
"Resale Shelf" has the meaning specified in Section 3 hereof.
"Securities Act" means the United States Securities Act of 1933, as
amended.
"Shelf Expiration Date" has the meaning specified in Section 3 hereof.
"Stockholder Rights Agreement" means the Stockholders Rights
Agreement, dated February 19, 1998, among the Company and the holders of certain
securities of the Company, as amended from time to time.
"SRA Holders" means the holders of convertible securities of the
Company entitled to registration rights with respect to the shares of Common
Stock issued upon conversion of such securities pursuant to the Stockholders
Rights Agreement.
"Underlying Securities" means the Common Shares (or other securities)
issuable upon the exercise of the Warrants pursuant to the Warrant Agreement.
"Units" has the meaning specified in the recitals to this Agreement.
"Warrant" has the meaning specified in the recitals to this Agreement.
"Warrant Agent" means The Bank of New York, a bank and trust company
organized under the laws of the State of New York, as warrant agent under the
Warrant Agreement.
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"Warrant Agreement" means the Warrant Agreement dated as of the
Closing Date between the Company and the Warrant Agent.
"Warrant Registration Statement" has the meaning specified in Section
3 hereof.
"Warrant Shares" has the meaning specified in Section 2 hereof.
"1996 Warrant Registration Rights Agreement" means the Warrant
Registration Rights Agreement dated as of May 15, 1996 among the Company and
▇▇▇▇▇ ▇▇▇▇▇▇ Inc. and Toronto Dominion Securities (USA) Inc., as amended by
Amendment No. 1 thereto dated as of February 19, 1998.
"1996 Notes" means the Company's 13% Subordinated Discount Notes due
2006.
"1996 Warrantholders" means the holders of securities the Company
entitled to registration rights with respect to such securities pursuant to the
1996 Warrant Rights Agreement.
2. Piggy-Back Registration Rights.
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(a) If prior to the Shelf Expiration Date, the Company proposes to
file a registration statement with the Commission respecting an offering of any
shares of Common Stock (or other securities issuable upon exercise of the
Warrants) for cash (other than an offering registered solely on Form S-4 or S-8
or any successor form thereto and other than the initial public offering of
shares of Common Stock (or other securities issuable upon exercise of the
Warrants) if no stockholder of the Company participates therein), the Company
shall give prompt written notice to all the Holders of Warrants or Common Shares
or such other securities received upon exercise of Warrants at least 15 days
prior to the initial filing of the registration statement relating to such
offering (the "Registration Statement"). Each such Holder shall have the right,
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within 15 days after delivery of such notice, to request in writing that the
Company include all or a portion of such of the Common Shares issuable upon
exercise of such Holder's Warrants, such other securities as shall be issuable
upon the exercise of the Warrants, or the Common Shares or such other securities
previously received upon the exercise thereof pursuant to the Warrant Agreement,
in each case to the extent that such Common Shares or other securities would be
(upon issuance) or are, as the case may be, subject to restrictions on transfer
("Warrant Shares"), in such Registration Statement ("Piggy-back Registration
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Rights"). The Company shall include in such Registration Statement all of the
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Warrant Shares that a Holder has requested be included; provided, however, that
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the Company shall not be obligated to include in such Registration Statement any
Warrant Shares of such Holder that will not be sold to the underwriters pursuant
to Section 2(d) of this
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Agreement if and to the extent that the Commission shall object in writing to
the inclusion of such Warrant Shares in such Registration Statement. If the
Holder of any such Warrant Shares has requested to sell its Warrant Shares to
the underwriters of such offering pursuant to Section 2(d) of this Agreement and
the underwriter for the public offering or the underwriter managing the public
offering (in either case, the "managing underwriter") delivers a notice (a
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"Cutback Notice") pursuant to Section 2(b) or 2(c) hereof, any Warrant Shares
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not included in such public offering due to any Cutback Notice shall be included
in such Registration Statement (unless the Commission objects in writing to the
inclusion of such Warrant Shares in such Registration Statement) but not sold to
the underwriter(s) of such public offering under Section 2(d) of this Agreement,
and will be subject to any restrictions on transfer set forth in the Warrant
Agreement. The managing underwriter may deliver one or more Cutback Notices at
any time prior to the execution of the underwriting agreement for the public
offering.
(b) If a proposed public offering is initiated other than pursuant to
the exercise of demand registration rights of a stockholder of the Company
pursuant to a contractual commitment of the Company and includes securities to
be offered for the account of the Company ("Company Shares"), the provisions of
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this Section 2(b) shall be applicable if the managing underwriter delivers a
Cutback Notice stating that, in its opinion, the number of Common Shares (other
than Warrant Shares to be sold by the Holders) that selling stockholders propose
to sell therein, whether or not such selling stockholders have the right to
include shares therein, plus the number of Warrant Shares that the Holders have
requested to be sold therein pursuant to Section 2(d) of this Agreement, plus
the Company Shares, exceeds the maximum number of shares specified by the
managing underwriter in such Cutback Notice that may be distributed without
adversely affecting the price, timing or distribution of the Company Shares.
Such maximum number of shares that may be so sold, excluding the Company Shares,
are referred to as the "Maximum Shares."
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If the managing underwriter delivers such Cutback Notice, the number
of shares that may be included in the offering shall be allocated as follows:
(i) first, the Company Shares, (ii) second, the Warrant Shares held by Holders
which have been requested to be included in such offering pursuant to Section
2(d) of this Agreement, together with the securities of the SRA Holders which
have been requested to be included in such offering pursuant to the exercise of
"piggy-back" registration rights under the Stockholder Rights Agreement and the
securities of 1996 Warrantholders which have been requested to be included in
such offering pursuant to the exercise of "piggy-back" registration rights under
the 1996 Warrant Registration Rights Agreement (to be allocated on a pro rata
basis based on the amount of shares of Common Shares sought to be registered by
each such person), (iii) third, the securities of any other stockholders
entitled to exercise "piggy-back" registration rights pursuant to contractual
commitments of the Company, and (iv) fourth, any other Common Shares requested
to be included in such offering.
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(c) If a proposed public offering is either (A) initiated by
stockholders of the Company by the exercise of demand registration rights of
such stockholders pursuant to a contractual commitment of the Company or (B)
entirely a secondary offering, the provisions of this Section 2(c) shall be
applicable if the managing underwriter delivers a Cutback Notice stating that,
in its opinion, the aggregate number of Warrant Shares and Other Shares proposed
to be sold therein exceeds the maximum number of shares (the "Maximum Secondary
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Shares") specified by the managing underwriter in such Cutback Notice that may
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be distributed without adversely affecting the price, timing or distribution of
the Common Shares being distributed. If the managing underwriter delivers such
Cutback Notice, the number of shares that may be included in the offering shall
be allocated as follows:
(i) if the registration is being made pursuant to the exercise of
demand registration rights by 1996 Warrantholders, then (A) first, the
securities of 1996 Warrantholders which have been requested to be included
in such offering pursuant to the exercise of demand registration rights
under the 1996 Warrant Registration Rights Agreement, (B) second, the
Warrant Shares held by Holders which have been requested to be included in
such offering pursuant to Section 2(d) of this Agreement, together with the
securities of the SRA Holders which have been requested to be included in
such offering pursuant to the exercise of "piggy-back" registration rights
under the Stockholder Rights Agreement (to be allocated on a pro rata basis
based on the amount of shares of Common Shares sought to be registered by
each such person), (C) third, the securities of any other stockholders
entitled to exercise "piggy-back" registration rights pursuant to
contractual commitments of the Company, (D) fourth, the securities which
the Company proposes to register, and (E) fifth, any other Common Shares
requested to be included in such offering;
(ii) if the registration is being made pursuant to the exercise of
demand registration rights by SRA Holders, then (A) first, the Warrant
Shares held by Holders which have been requested to be included in such
offering pursuant to Section 2(d) of this Agreement, together with the
securities of SRA Holders which have been requested to be included in such
offering pursuant to the exercise of demand registration rights under the
Stockholder Rights Agreement and the securities of the 1996 Warrantholders
which have been requested to be included in such offering pursuant to the
exercise of "piggy-back" registration rights under the 1996 Warrant
Registration Rights Agreement (to be allocated on a pro rata basis based on
the amount of shares of Common Shares sought to be registered by each such
person), (B) second, the securities of any other stockholders entitled to
exercise "piggy-back" registration rights pursuant to contractual
commitments of the Company, (C) third, the securities which the Company
proposes to register, and (D) fourth, any other Common Shares requested to
be included in such offering; or
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(iii) if the registration is being made pursuant to the exercise of
demand registration rights by stockholders entitled to exercise demand
registration rights pursuant to contractual commitments of the Company
other than SRA Holders or 1996 Warrantholders, then (A) first, the
securities of such stockholders which have been requested to be included in
such offering pursuant to the exercise of demand registration rights under
such contractual commitments with the Company, (B) second, the Warrant
Shares held by Holders which have been requested to be included in such
offering pursuant to Section 2(d) of this Agreement, together with the
securities of SRA Holders which have been requested to be included in such
offering pursuant to the exercise of demand registration rights under the
Stockholder Rights Agreement and the securities of the 1996 Warrantholders
which have been requested to be included in such offering pursuant to the
exercise of "piggy-back" registration rights under the 1996 Warrant
Registration Rights Agreement (to be allocated on a pro rata basis based on
the amount of shares of Common Shares sought to be registered by each such
person), (C) third, the securities of any other stockholders entitled to
exercise "piggy-back" registration rights pursuant to contractual
commitments of the Company, (D) fourth, the securities which the Company
proposes to register, and (E) fifth, any other Common Shares requested to
be included in such offering.
(d) The underwriting agreement for such public offering shall provide
that each requesting Holder shall have the right to sell its Warrant Shares
(other than Warrant Shares excluded from such public offering pursuant to a
Cutback Notice and the terms of Sections 2(b) and 2(c)) to the underwriters and
that the underwriters shall purchase the Warrant Shares at the price paid by the
underwriters for the Common Shares sold by the Company and/or other selling
stockholders, as the case may be. Each Holder participating in such public
offering shall (i) enter into and perform its obligations under an underwriting
agreement, in usual and customary form, with the managing underwriter(s) of such
offering and (ii) be entitled to conduct due diligence, have its Warrant Shares
listed, receive copies of the prospectus included in the Registration Statement
relating to such offering and receive an Opinion and Comfort Letter upon
effectiveness of any such Registration Statement, in each case in the same
manner as provided for in Section 3(b)(i) through (iv) of this Agreement with
respect to a Resale Shelf.
3. Shelf Registration.
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(a) If only the Company sells Common Shares in an initial public
offering or all of the Warrant Shares have not been registered under the
Securities Act or sold in a public offering of Common Shares, the Company shall
file pursuant to Rule 415 under the Securities Act a shelf registration
statement on the appropriate form (the "Warrant Registration Statement")
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covering the issuance of the Warrant Shares upon exercise of the Warrants and
shall use its best efforts to cause the Warrant Registration Statement to become
effective under
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the Securities Act within 180 days after the closing date of the
initial public offering of Common Shares; provided, however, that (1) in no
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event may the Warrant Registration Statement be declared effective prior to the
first anniversary of the Closing Date and (2) if the Commission shall request
that the Company register the resale of the Warrant Shares instead of the
issuance thereof, the Warrant Registration Statement shall register such resale
as opposed to such issuance. The Company shall use reasonable efforts to keep
the Warrant Registration Statement continuously effective until the earlier of
(i) such time as all Warrants have been exercised thereunder or all Warrant
Shares have been sold thereunder, as the case may be, and (ii) the second
anniversary of the Closing Date (the "Shelf Expiration Date"). Prior to filing
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the Warrant Registration Statement or any amendment thereto, the Company shall
provide a copy thereof to the Initial Purchasers and their counsel and afford
them a reasonable time to comment thereon.
(b) If the Warrant Registration Statement shall register the resale of
the Warrant Shares (a "Resale Shelf") as provided in clause (2) of the proviso
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to the first sentence of Section 3(a) above, the Company agrees to:
(i) make available for inspection by a representative of the Holders,
any underwriter participating in any disposition pursuant to such Resale
Shelf and attorneys and accountants designated by the Holders, at
reasonable times and in a reasonable manner, financial and other records,
documents and properties of the Company that are pertinent to the conduct
of due diligence, and cause the 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
Resale Shelf;
(ii) use its best efforts to cause all Warrant Shares sold under a
Resale Shelf 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 Holders of Warrant Shares representing a
majority of the Warrants originally issued, to the extent such Warrant
Shares satisfy applicable listing requirements;
(iii) provide copies of the prospectus included in such Resale Shelf
to Holders that are selling Warrant Shares pursuant to such Resale Shelf;
(iv) cause to be provided to the Holders and beneficial owners of
Warrant Shares, upon the effectiveness of such Resale Shelf, a customary
"10b-5" opinion of independent counsel (an "Opinion") and a customary "cold
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comfort" letter of independent auditors (a "Comfort Letter");
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(v) cause to be provided to the Holders and beneficial owners of
Warrant Shares an Opinion and Comfort Letter with respect to each Form 10-K
and Form 10-Q,
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including any amendments thereto, that is incorporated by reference in such
Resale Shelf; and
(vi) notify the Holders, (A) when the Resale Shelf has become
effective and when any post-effective amendment thereto has been filed and
becomes effective, (B) of any request by the Commission or any state
securities authority for amendments and supplements to the Resale Shelf or
of any material request by the Commission or any state securities authority
for additional information after the Resale Shelf has become effective, (C)
of the issuance by the Commission or any state securities authority of any
stop order suspending the effectiveness of the Resale Shelf or the
initiation of any proceedings for that purpose, (D) if, between the
effective date of the Resale Shelf and the closing of any sale of Warrant
Shares covered thereby, the representations and warranties of the Company
contained in any underwriting agreement, securities sales agreement or
other similar agreement, including this Agreement, relating to disclosure
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 Warrant Shares for sale in any jurisdiction or the
initiation of any proceeding for such purpose, (E) of the happening of any
event during the period the Resale Shelf is effective such that such Resale
Shelf or the related prospectus contains an untrue statement of a material
fact or omits to state a material fact required to be stated therein or
necessary to make statements therein not misleading and (F) of any
determination by the Company that a post-effective amendment to a
Registration Statement would be appropriate.
4. Suspension.
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Notwithstanding the foregoing, during any consecutive 365-day period,
the Company shall have the privilege to suspend availability of the Warrant
Registration Statement and the related prospectus for one 60-consecutive-day
period, except during the 60 days immediately prior to the Expiration Date, if
the Board determines in good faith that there is a valid purpose for such
suspension and provides notice of such determination (but not the purpose) to
the Holders at their addresses appearing in the register of Warrants maintained
by the Warrant Agent.
5. Blue Sky.
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The Company shall use its reasonable best efforts to register or
qualify the Underlying Securities proposed to be sold or issued pursuant to the
Registration Statement or the Warrant Registration Statement under all
applicable securities or "blue sky" laws of all jurisdictions in the United
States in which any Holder of Warrants may or may be deemed to purchase
Underlying Securities upon the exercise of Warrants or resale of the Warrant
Shares, as the case may be, and shall use its reasonable best efforts to
maintain such registration or
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qualification through the earliest of (A) in the case of the Registration
Statement, the date upon which all of the Warrant Shares have been sold or such
other date as shall be required by applicable law, (B) the date upon which all
Warrants have been exercised or all Warrant Shares have been resold, as the case
may be, under the Warrant Registration Statement and (C) the Expiration Date;
provided, however, that the Company shall not be required to (i) qualify as a
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foreign corporation or as a broker or a dealer in securities in any jurisdiction
where it would not otherwise be required to qualify but for this Section 5, (ii)
file any general consent to service of process or (iii) subject itself to
taxation in any jurisdiction if it is not otherwise so subject.
6. Accuracy of Disclosure.
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The Company (and its successors) represents and warrants to each
Holder (and each beneficial owner of a Warrant or Warrant Share) and agrees for
the benefit of each Holder (and each beneficial owner of a Warrant or Warrant
Share) that, except during any period in which the availability of the Warrant
Registration Statement has been suspended, (i) the Warrant Registration
Statement and the documents incorporated by reference therein will not contain
any untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein not misleading; and (ii) the prospectus
delivered to such Holder upon its exercise of Warrants or pursuant to which such
Holder sells its Warrant Shares, as the case may be, and the documents
incorporated by reference therein 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.
7. Indemnity.
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The Company hereby indemnifies each beneficial owner of a Warrant and
each person, if any, who controls any beneficial owner of a Warrant within the
meaning of either Section 15 of the Securities Act or Section 20 of the
Securities Exchange Act of 1934 (the "Exchange Act"), or is under common control
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with, or is controlled by, any beneficial owner of a Warrant (whether or not it
is, at the time the indemnity provided for in this Section 7 is sought, such a
beneficial owner), from and against all losses, damages or liabilities which
such beneficial owner or any such controlling or affiliated person suffers as a
result of any breach, on the date of any exercise of a Warrant by such
beneficial owner or the resale of any Warrant Share by such Holder, in either
case pursuant to the Warrant Registration Statement, of the representations,
warranties or agreements contained in Section 6. Each beneficial owner of a
Warrant Share sold pursuant to a Resale Shelf or a Registration Statement, by
accepting its beneficial ownership of a Warrant, hereby (i) agrees to provide
the Company with information with respect to it that the Company reasonably
requests in connection with any Resale Shelf or a Registration Statement, if
applicable, and (ii) agrees, severally and not jointly, to indemnify the
Company, its directors and officers and each person, if any, who controls the
Company
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within the meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act against any liability incurred by it or such controlling person
as a result of any misstatement of information provided by such beneficial owner
to the Company in writing expressly for inclusion in the Resale Shelf or a
Registration Statement, if applicable.
8. Expenses.
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All expenses incident to the Company's performance of or compliance
with its obligations under this Agreement will be borne by the Company,
regardless of whether a Registration Statement or Warrant Registration Statement
becomes effective, including without limitation (i) all Commission or National
Association of Securities Dealers, Inc. registration and filing fees, (ii) all
reasonable fees and expenses incurred in connection with compliance with state
securities or "blue sky" laws, (iii) all reasonable expenses of any persons
incurred by or on behalf of the Company in preparing or assisting in preparing,
word processing, printing and distributing any registration statement, any
prospectus, any amendments or supplements thereto and other documents relating
to the performance of and compliance with this Agreement, (iv) the reasonable
fees (including legal fees and expenses) and disbursements of the Warrant Agent,
(v) the reasonable fees and disbursements of counsel for the Company and (vi)
the fees and disbursements, if any, of the Auditors but excluding (x) fees and
disbursements of counsel retained by the participating Holders and (y) the
Holders' share of underwriting discounts and commissions.
9. Miscellaneous.
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(a) No Inconsistent Agreements. Each of the Company and the Initial
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Purchasers represent to the other that it has not entered into, and agrees that
on or after the date of this Agreement it will not enter into, any agreement
which is inconsistent with the rights granted to the Holders of Warrants or
Warrant Shares in this Agreement or otherwise conflicts with the provisions
hereof. The Company represents that 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 agreements.
(b) Amendments and Waivers. The provisions of this Agreement,
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including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given unless the Company has
obtained the written consent of Holders of at least a majority of the
outstanding Warrants affected by such amendment, modification, supplement,
waiver or consent; provided that any amendment, modification or supplement to
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this Agreement which, in the good faith opinion of the Board of Directors of the
Company (and evidenced by a resolution of such board), does not adversely affect
any Holder, shall not be subject to such requirement for written consent.
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(c) Notices. All notices and other communications provided for or
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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 9(c); and (ii) if to the Company, initially at the Company's address set
forth in the Indenture and thereafter at such other address, notice of which is
given in accordance with the provisions of this Section 9(c).
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.
(d) Successors and Assigns. This Agreement shall inure to the benefit
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of and be binding upon the successors, assigns and transferees of each of the
parties, including, without limitation, subsequent Holders; provided that
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nothing herein shall be deemed to permit any assignment, transfer or other
disposition of Warrants in violation of the terms of the Purchase Agreement, the
Warrant Agreement or applicable law. If any transferee of any Holder shall
acquire Warrants, in any manner, whether by operation of law or otherwise, such
Warrants shall be held subject to all of the terms of this Agreement and the
Warrant Agreement, and by taking and holding such Warrants 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 or the Warrant Agreement and such person
shall be entitled to receive the benefits hereof.
(e) Purchases and Sales of Warrants. The Company shall not, and shall
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use its best efforts to cause its affiliates (as defined in Rule 405 under the
Securities Act) not to, purchase and then resell or otherwise transfer any
Warrants other than Warrants acquired and canceled.
(f) Third Party Beneficiary. The Holders shall be third party
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beneficiaries to the agreements made hereunder among the Company and the Initial
Purchasers, and each Holder 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
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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.
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(h) Headings. The headings in this Agreement are for convenience of
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reference only and shall not limit or otherwise affect the meaning hereof.
(i) Governing Law. This Agreement shall be governed by the laws of
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the State of New York.
(j) Severability. In the event that any one or more of the provisions
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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) Waiver of Immunity. To the extent that the Company has or
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hereafter may acquire any immunity from jurisdiction of any court or from any
legal process (whether through service of notice, attachment prior to judgement,
attachment in aid of execution, execution or otherwise) with respect to itself
or its property, it hereby irrevocably waives such immunity in respect of its
obligations under this Agreement to the fullest extent permitted by law.
(l) Initial Public Offering. Notwithstanding anything to the contrary
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herein contained, if the Company conducts an initial public offering of equity
securities (other than Common Shares), the Company will give the Holders the
opportunity to convert such Warrants into warrants to purchase such equity
securities and their Warrant Shares into such equity securities. Such
conversion opportunity will be on terms and conditions determined to be fair and
reasonable by the Company's Board of Directors.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
DIVA SYSTEMS CORPORATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President, Chief Operating Officer, Chief
Financial Officer and Secretary
Confirmed and accepted as of
the date first above written:
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
CHASE SECURITIES INC.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
By: ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
For itself and on behalf of the other Initial Purchasers
By: /s/ ▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇
Title: Authorized Signatory