GENIUS PRODUCTS, INC. REGISTRATION RIGHTS AGREEMENT
Exhibit
10.7
21
GENIUS
PRODUCTS, INC.
THIS
REGISTRATION RIGHTS AGREEMENT
(this
“Agreement”)
is
made and entered into as of July 21, 2006 by and between Genius Products, Inc.,
a Delaware corporation (the “Company”),
and
The Xxxxxxxxx Company LLC, a Delaware limited liability company for itself
and
on behalf of all other Holders of Registrable Securities (the “Investor”).
WHEREAS,
the Company and the Investor are parties to that certain Master Contribution
Agreement, dated as of December 5, 2005, as amended (the “Contribution
Agreement”),
pursuant to which, among other things, the Company agreed to contribute
substantially all of its assets and certain liabilities to The Xxxxxxxxx Company
Funding LLC, a Delaware limited liability company (which has been renamed
“Genius Products, LLC” prior to the date hereof) (the “Distributor”),
and
as a result thereof the Company and the other members of the Distributor will
have specified membership interests in the Distributor as set forth
therein.
WHEREAS,
the sole asset of the Distributor prior to the contribution of assets and
liabilities by the Company will be home video distribution rights with respect
to certain entertainment properties of the Investor pursuant to the Video
Distribution Agreement (as such term is defined in the Contribution Agreement).
WHEREAS,
the obligations in the Contribution Agreement are conditioned upon, among other
things, the execution and delivery of this Agreement by the Investor and the
Company.
NOW,
THEREFORE, in consideration of the foregoing, the mutual promises set forth
herein and other good and valuable consideration, the receipt of which is hereby
acknowledged, the parties hereto agree as follows:
| 1. | Registration Rights. |
| 1.1 | Definitions. |
For
purposes of this Agreement:
(a) “Class W
Units”
means
that certain class of units granted to the Investor pursuant to the Contribution
Agreement, which units represent a membership interest in the
Distributor.
(b) “Common
Stock”
means
the common stock, $0.0001 par value per share, of the Company.
(c) “Disclosure
Package”
means
(i) the preliminary prospectus, (ii) each Free Writing Prospectus and (iii)
all
other information that is deemed, under Rule 159 under the Securities Act,
to
have been conveyed to purchasers of securities at the time of sale (including,
without limitation, a contract of sale).
(d) “Exchange
Act”
means
the Securities Exchange Act of 1934, as amended.
1
(e) “Form S-3”
means
such form under the Securities Act as in effect on the date hereof or any
successor form under the Securities Act subsequently adopted by the SEC which
permits inclusion or incorporation of substantial information by reference
to
other documents filed by the Company with the SEC.
(f) “Free
Writing Prospectus”
means
any “free writing prospectus,” as defined in Rule 405 of the Securities
Act.
(g) “Hedging
Counterparty”
means
a
broker-dealer registered under Section 15(b) of the Exchange Act or an
affiliate thereof or any other financial institution or third
party.
(h) “Hedging
Transaction”
means
any transaction involving a security linked to the Registrable Class Securities
or any security that would be deemed to be a “derivative security” (as defined
in Rule 16a-1(c) under the Exchange Act) with respect to the Registrable Class
Securities or any transaction (even if not a security) which would (were it
a
security) be considered such a derivative security, or which transfers some
or
all of the economic risk of ownership of the Registrable Class Securities,
including, without limitation, any forward contract, equity swap, put or call,
put or call equivalent position, collar, non-recourse loan, sale of exchangeable
security or similar transaction. For the avoidance of doubt, the following
transactions shall be deemed to be Hedging Transactions:
(i) transactions
by a Holder in which a Hedging Counterparty engages in short sales of
Registrable Class Securities pursuant to a prospectus and may use Registrable
Securities to close out its short position;
(ii) transactions
pursuant to which a Holder sells short Registrable Class Securities pursuant
to
a prospectus and delivers Registrable Securities to close out its short
position; and
(iii) transactions
by a Holder in which the Holder delivers, in a transaction exempt from
registration under the Securities Act, Registrable Securities to the Hedging
Counterparty who will then publicly resell or otherwise transfer such
Registrable Securities pursuant to a prospectus or an exemption from
registration under the Securities Act.
(i) “Holder”
means
any person owning or having the right to acquire Registrable Securities or
any
assignee thereof in accordance with Section 1.11 hereof.
(j) “Limited
Liability Company Agreement”
means
the Amended and Restated Limited Liability Company Agreement of Genius Products,
LLC, dated as of July 21, 2006, by and among the Company, the Investor and
the
Distributor.
(k) “Public
Sale”
means
any sale of Registrable Securities to the public pursuant to a public offering
registered under the Securities Act or to the public through a broker or
market-maker pursuant to the provisions of Rule 144 (or any successor rule)
adopted under the Securities Act or any other public offering not required
to be
registered under the Securities Act.
2
(l) “Register,”
“registered”
and
“registration”
refer
to a registration effected by preparing and filing a registration statement
or
similar document in compliance with the Securities Act, and the declaration
or
ordering of effectiveness of such registration statement or
document.
(m) “Registrable
Class Securities”
means
securities of the Company that are of the same class and series as the
Registrable Securities.
(n) “Registrable
Securities”
means
(i) the Common Stock issued or issuable upon redemption of the Class W
Units pursuant to the Limited Liability Company Agreement; (ii) any Common
Stock issued as (or issuable upon the conversion or exercise of any warrant,
right or other security that is issued as) a dividend or other distribution
with
respect to, or in exchange for or in replacement of the shares referenced in
(i)
above; and (iii) any other securities of the Company acquired by the Investor
or
its affiliates after the date of this Agreement; provided, that Registrable
Securities shall not include shares of Common Stock previously (A) sold in
a Public Sale or (B) sold in a transaction in which the transferor’s rights
are not assigned.
(o) The
number of shares of “Registrable
Securities then outstanding”
shall
be determined by the number of shares of Common Stock outstanding which are,
and
the number of shares of Common Stock issuable pursuant to then exercisable
or
convertible securities which are, Registrable Securities.
(p) The
term
“SEC”
means
the Securities and Exchange Commission.
(q) “Securities
Act”
means
the Securities Act of 1933, as amended.
| 1.2 |
Request
for Registration.
|
(a) If
the
Company shall receive a written request from the Holders of at least a majority
of the Registrable Securities then outstanding (the “Initiating
Holders”)
that
the Company file a registration statement under the Securities Act covering
the
registration of at least 10% of the Registrable Securities then outstanding,
or
a lesser percent if the anticipated aggregate offering price, net of
underwriting discounts and commissions, would exceed $2.5 million, then the
Company shall:
(i) within
ten (10) days of the receipt thereof, give written notice of such request
to all Holders; and
(ii) use
reasonable best efforts to effect promptly, the registration under the
Securities Act of all Registrable Securities which the Holders request to be
registered, subject to the limitations of subsection 1.2(b), in a written
request received by the Company within twenty (20) days of the making of
the notice pursuant to Section 1.2(a)(i).
3
(b) If
the
Initiating Holders intend to distribute the Registrable Securities covered
by
their request by means of an underwriting, they shall so advise the Company
as a
part of their request made pursuant to subsection 1.2(a) and the Company
shall include such information in the written notice referred to in
subsection 1.2(a). The underwriter or underwriters will be selected by a
majority in interest of the Initiating Holders and shall be reasonably
acceptable to the Company. In such event, the right of any Holder to include
Registrable Securities in such registration shall be conditioned upon such
Holder’s participation in such underwriting and the inclusion of such Holder’s
Registrable Securities in the underwriting (unless otherwise mutually agreed
by
a majority in interest of the Initiating Holders and such Holder) to the extent
provided herein. All Holders proposing to distribute their securities through
such underwriting shall (together with the Company as provided in
subsection 1.5(e)) enter into an underwriting agreement in customary form
with the underwriter or underwriters selected for such underwriting.
Notwithstanding any other provision of this Section 1.2, if the managing
underwriter advises the Company and the Initiating Holders in writing that
marketing factors require a limitation of the number of shares to be
underwritten, then the Company shall so advise all Holders of Registrable
Securities which would otherwise be underwritten pursuant hereto, and the number
of shares of Registrable Securities that may be included in the underwriting
shall be allocated first among all Holders thereof, including the Initiating
Holders, in proportion (as nearly as practicable) to the amount of Registrable
Securities of the Company owned by each Holder at the time of the filing of
the
registration statement; provided, however, that the number of shares of
Registrable Securities held by Holders to be included in such underwriting
shall
not be reduced unless all other securities are first entirely excluded from
the
underwriting. Registrable Securities excluded or withdrawn from such
underwriting shall be withdrawn from the registration.
(c) Notwithstanding
the foregoing, if the Company shall furnish to Holders requesting a registration
statement pursuant to this Section 1.2, a certificate signed by the
Company’s chief executive officer or the chairman of the board of directors of
the Company (the “Board”)
stating that in the good faith judgment of the Board, as evidenced by a
resolution by the Board, it would be seriously detrimental to the Company and
its stockholders for such registration statement to be filed and it is therefore
essential to defer the filing of such registration statement, the Company shall
have the right to defer taking action with respect to such filing for a period
of not more than sixty (60) days after receipt of the request of the Initiating
Holders; provided,
that
the Company may not utilize this right more than once in any twelve-month
period; provided
further,
that
this right is cumulative to the right under Section 1.4(b)(iii) such that the
Company may only defer the filing of a registration statement under Section
1.2(c) or Section 1.4(b)(iii) once in any twelve-month period.
(d) In
addition, the Company shall not be obligated to effect, or to take any action
to
effect, any registration pursuant to this Section 1.2:
(i) After
the
Company has effected five (5) registrations pursuant to this Section 1.2,
and such registration statement has been declared or ordered effective;
provided,
that if
such request pursuant to this Section 1.2 is subsequently withdrawn by the
requester in writing, it shall not be counted against the limitation of requests
set forth in this Section 1.2(d)(i), provided further, that any such
registration shall be deemed to have been “effected” if the registration
statement relating thereto (A) has become or been declared or ordered effective
under the Securities Act, and any of the Registrable Securities of the
Initiating Holder(s) included in such registration have actually been sold
thereunder and (B) has remained effective for a period of at least 180 days;
4
(ii) If
the
Company has effected a registration pursuant to this Section 1.2 within the
preceding six (6) months, and such registration has been declared or ordered
effective;
(iii) If
the
Initiating Holders propose to dispose of shares of Registrable Securities that
may be immediately registered on Form S-3 pursuant to a request made
pursuant to Section 1.4 below; and
(iv) In
any
particular jurisdiction in which the Company would be required to qualify to
do
business or to execute a general consent to service of process in effecting
such
registration, qualification or compliance.
| 1.3 |
Company
Registration.
|
(a) If
(but
without any obligation to do so) the Company proposes to register any of its
capital stock under the Securities Act for its own account or the account of
any
of its stockholders with registration rights (other than in connection with
a
registration effected solely to implement an employee benefit plan or a business
combination transaction or any other similar transaction for which a
registration statement on Form S-4 under the Securities Act or any comparable
successor form is applicable), the Company will promptly give written notice
thereof to the Holders of Registrable Securities at least thirty (30) days
prior
to the filing of such registration statement, or such lesser time that is
reasonable taking into account the Company’s contractual obligation to file such
registration statement. Upon the written request of each Holder given within
twenty (20) days after the giving of such notice by the Company, the Company
shall, subject to the provisions of this Section 1.3 and the Company’s
contractual limitations on including other securities in such registration
statement, cause to be registered under the Securities Act in such registration
statement all of the Registrable Securities that each such Holder has requested
to be registered.
(b) In
connection with any offering involving an underwriting of shares of the
Company’s capital stock, the Company shall not be required under this Section
1.3 to include any of the Holders’ securities in such underwriting unless they
accept the terms of the underwriting as agreed upon between the Company and
the
underwriters selected by it, and then only in such quantity as the underwriters
determine in their sole discretion will not jeopardize the success of the
offering by the Company. Regardless of any other provision of this Section
1.3,
if the underwriter advises the Company that marketing factors require a
reduction in the number of shares to be underwritten, then the number of shares
of Registrable Securities that may be included in the underwriting shall be
allocated first, to the Company (or, if such registration is effected by the
Company for stockholders with registration rights other than the Holders, such
stockholders); second, to the Holders on a pro rata basis based on the total
number of Registrable Securities owned by the Holders; and third, to any other
stockholders of the Company (other than a Holder) on a pro rata basis;
provided,
that
any such reduction of shares included by Holders shall be borne pro rata based
on the number of shares requested to be sold by such Holders. The Company shall
have the right to terminate or withdraw any registration initiated by it under
this Section 1.3 prior to the effectiveness of such registration whether or
not
any Holder has elected to include securities in such registration. The
registration expenses of such withdrawn registration shall be borne by the
Company in accordance with Section 1.8 hereof.
5
| 1.4 |
Form
S-3
Registration.
|
Notwithstanding
anything in Section 1.2 or Section 1.3 to the contrary, in case the Company
shall receive from any Holders of Registrable Securities then outstanding a
written request or requests that the Company effect a registration on
Form S-3 and any related qualification or compliance with respect to all or
a part of the Registrable Securities owned by such Holder or Holders, and the
Company is then eligible to use Form S-3 for the resale of Registrable
Securities, the Company will:
(a) promptly
give written notice of the proposed registration, and any related qualification
or compliance, to all other Holders; and
(b) promptly
effect such registration and all such qualifications and compliances as may
be
so requested and as would permit or facilitate the sale and distribution of
all
or such portion of such Holder’s or Holders’ Registrable Securities as are
specified in such request, together with all or such portion of the Registrable
Securities of any other Holder or Holders joining in such request as are
specified in a written request given within fifteen (15) days after receipt
of
such written notice from the Company; provided,
that
the Company shall not be obligated to effect any such registration,
qualification or compliance, pursuant to this Section 1.4:
(i) if
Form S-3 is not available for such offering by the Holders;
(ii) if
the
Holders, together with the holders of any other securities of the Company
entitled to inclusion in such registration, propose to sell Registrable
Securities at an aggregate price to the public (net of any underwriters’
discounts or commissions) of less than $2.5 million;
(iii) if
the
Company shall furnish to the Holders a certificate signed by the Company’s chief
executive officer or chairman of the Board stating that in the good faith
judgment of the Board as evidenced by a resolution by the Board, it would be
seriously detrimental to the Company and its stockholders for such Form S-3
registration to be effected at such time, in which event the Company shall
have
the right to defer the filing of the Form S-3 registration statement for a
period of not more than sixty (60) days after receipt of the request of the
Holder or Holders under this Section 1.4; provided,
that
the Company shall not utilize this right more than once in any twelve-month
period; provided
further,
that
this right is cumulative to the right under Section 1.2(c) such that the Company
may only defer the filing of a registration statement under Section 1.2(c)
or
Section 1.4(b)(iii) once in any twelve-month period;
(iv) if
the
Company has, within the six (6) month period preceding the date of such request,
already effected one (1) registration on Form S-3 for the Holders pursuant
to
this Section 1.3, provided,
that
any such
registration shall be deemed to have been “effected” if the registration
statement relating thereto (A) has become or been declared or ordered effective
under the Securities Act, and any of the Registrable Securities of the
Initiating Holder(s) included in such registration have actually been sold
thereunder and (B) has remained effective for a period of at least 180 days;
or
6
(v) in
any
particular jurisdiction in which the Company would be required to qualify
to do
business or to execute a general consent to service of process in effecting
such
registration, qualification or compliance.
(c) Subject
to the foregoing, the Company shall file a registration statement covering
the
Registrable Securities and other securities so requested to be registered
promptly after receipt of the request or requests of the Holders. Registrations
effected pursuant to this Section 1.4 shall not be counted as requests for
registration effected pursuant to Section 1.2 or Section 1.3
respectively.
(d) If
the
Holders intend to distribute the Registrable Securities covered by their request
under this Section 1.4 by means of an underwriting, they shall so advise the
Company as a part of their request made pursuant to this Section 1.4 and the
Company shall include such information in the written notice referred to in
subsection 1.4(a). The underwriter or underwriters will be selected by a
majority in interest of the Holders participating in such registration and
shall
be reasonably acceptable to the Company. In such event, the right of any Holder
to include Registrable Securities in such registration shall be conditioned
upon
such Holder’s participation in such underwriting and the inclusion of such
Holder’s Registrable Securities in the underwriting (unless otherwise mutually
agreed by a majority in interest of the Holders participating in the
registration and the Holder) to the extent provided herein. All Holders
proposing to distribute their securities through such underwriting shall
(together with the Company as provided in subsection 1.5(e)) enter into an
underwriting agreement in customary form with the underwriter or underwriters
selected for such underwriting. Notwithstanding any other provision of this
Section 1.4, if the managing underwriter advises the Company and the
Holders participating in such underwriting in writing that marketing factors
require a limitation of the number of shares to be underwritten, then the
Company shall so advise all Holders of Registrable Securities which would
otherwise be underwritten pursuant hereto, and the number of shares of
Registrable Securities that may be included in the underwriting shall be
allocated first among all Holders thereof, in proportion (as nearly as
practicable) to the amount of Registrable Securities of the Company owned by
each Holder at the time of the filing of the registration statement; provided,
however, that the number of shares of Registrable Securities held by Holders
to
be included in such underwriting shall not be reduced unless all other
securities are first entirely excluded from the underwriting. Registrable
Securities excluded or withdrawn from such underwriting shall be withdrawn
from
the registration.
(e) Ordinary
S-3 Registration Statement.
Notwithstanding the foregoing, if the Company shall receive from any Holders
of
Registrable Securities then outstanding a written request or requests under
Section 1.4 that the Company effect a registration statement on Form S-3 that
includes only those items and that information that is required to be included
in parts I and II of such Form, and does not include any additional or
extraneous items of information (e.g. a lengthy description of the Company
or
the Company’s business) (an “Ordinary S-3 Registration Statement”), then Section
1.4(b)(iv) shall not apply to such Ordinary S-3 Registration Statement request.
7
| 1.5 |
Obligations
of the
Company.
|
Whenever
required under this Section 1 to effect the registration of any Registrable
Securities, the Company shall, as expeditiously as reasonably
possible:
(a) Prepare
and file with the SEC a registration statement with respect to such Registrable
Securities and use its reasonable best efforts to cause such registration
statement to become effective, and, upon the request of the Holders of a
majority of the Registrable Securities registered thereunder, keep such
registration statement effective for 180 days or, if earlier, until the
distribution contemplated in the registration statement has been completed;
provided,
that,
in the case of any registration of Registrable Securities on Form S-3 which
are
intended to be offered on a continuous or delayed basis, such 180-day period
shall be extended, if necessary, to keep the registration statement continuously
effective, supplemented and amended to the extent necessary to ensure that
it is
available for sales of such Registrable Securities, and to ensure that it
conforms with the requirements of this Agreement, the Securities Act and the
policies, rules and regulations of the SEC as announced from time to time,
until
the earlier of when (i) the Holders have sold all of such Registrable Securities
and (ii) the Holders may sell all of such Registrable Securities on a single
day
or pursuant to Rule 144(k) promulgated under the Securities Act as determined
by
the counsel to the Company pursuant to a written opinion letter to such effect,
addressed and acceptable to the Company’s transfer agent and the affected
Holders.
(b) Prepare
and file with the SEC such amendments and supplements to such registration
statement and the prospectus used in connection with such registration statement
as may be necessary to comply with the provisions of the Securities Act with
respect to the disposition of all securities covered by such registration
statement; provided that before filing a registration statement, or any
amendments or supplements thereto, the Company will furnish to counsel selected
by the Holders of the Registrable Securities covered by such registration
statement to represent such Holders, copies of all documents proposed to be
filed, which documents will be subject to the review of such
counsel.
(c) Furnish
to the Holders and any Hedging Counterparty, if any, such numbers of copies
of
such registration statement, the prospectus included in such registration
statement (including each preliminary prospectus, summary prospectus and Free
Writing Prospectus), and of each amendment and supplement thereto (in each
case
including all exhibits filed therewith, including any documents incorporated
by
reference), in conformity with the requirements of the Securities Act, and
such
other documents as they may reasonably request in order to facilitate the public
sale or other disposition of Registrable Securities owned by such Holder or
Hedging Counterparty.
(d) Register
and qualify the securities covered by such registration statement under such
other securities or blue sky laws of such jurisdictions as shall be reasonably
requested by the Holders and do any and all other acts and things which may
be
reasonably necessary or advisable to enable such Holders to consummate the
disposition in such jurisdictions of the Registrable Securities owned by such
Holder; provided, that the Company shall not be required in connection therewith
or as a condition thereto to qualify to do business or to file a general consent
to service of process in any such states or jurisdictions.
8
(e) Cause
such Registrable Securities covered by such registration statement to be
registered with or approved by such other governmental agencies or authorities
as may be necessary to enable the seller or sellers thereof to consummate the
disposition of such Registrable Securities.
(f) Notify
each Holder of Registrable Securities covered by such registration statement
and
any Hedging Counterparty, if applicable, at any time when a prospectus relating
thereto is required to be delivered under the Securities Act, of the Company’s
becoming aware that the prospectus included in such registration statement,
as
then in effect, includes an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances then
existing, and at the request of any such Holder or Hedging Counterparty, prepare
and furnish to such Holder and Hedging Counterparty a reasonable number of
copies of an amended or supplemental prospectus as may be necessary so that,
as
thereafter delivered to the purchasers of such Registrable Securities, such
amended or supplemental prospectus shall not include an untrue statement of
a
material fact or omit to state a material fact required to be stated therein
or
necessary to make the statements therein not misleading in the light of the
circumstances then existing.
(g) Cause
all
such Registrable Securities registered pursuant to this Agreement to be listed
on any securities exchange on which any shares of the Common Stock are then
listed.
(h) Provide
a
transfer agent and registrar for all Registrable Securities registered pursuant
hereunder and a CUSIP number for all such Registrable Securities, in each case
not later than the effective date of such registration.
(i) Enter
into and perform its obligations under such customary agreements (including
an
underwriting agreement in customary form), which may include indemnification
provisions in favor of underwriters and other persons in addition to, or in
substitution for the provisions of Section 1.9 hereof, and take such other
actions as sellers of a majority of shares of such Registrable Securities,
a
Hedging Counterparty, if any, or the underwriters, if any, reasonably request
in
order to expedite or facilitate the disposition of such Registrable Securities
or any Registrable Class Securities in connection with any Hedging
Transaction.
(j) Obtain
a
“cold comfort” letter or letters from the Company’s independent public accounts
in customary form and covering matters of the type customarily covered by “cold
comfort” letters as the seller or sellers of a majority of shares of such
Registrable Securities, or in connection with a Hedging Transaction, a Hedging
Counterparty, shall reasonably request.
(k) Make
available for inspection by any seller of such Registrable Securities covered
by
such registration statement, by any underwriter participating in any disposition
to be effected pursuant to such registration statement, by any Hedging
Counterparty, and by any attorney, accountant or other agent retained by any
such seller, any such underwriter, or any such Hedging Counterparty all
pertinent financial and other records, pertinent corporate documents and
properties of the Company, and cause all of the Company’s officers, directors
and employees to supply all information reasonably requested by any such seller,
underwriter, Hedging Counterparty, attorney, accountant or agent in connection
with such registration statement.
9
(l) Obtain
for delivery to the Holders of Registrable Securities being registered and
to
the underwriter or agent, and, in connection with a Hedging Transaction, to
any
Hedging Counterparty, an opinion or opinions from counsel for the Company in
customary form and in form, substance and scope reasonably satisfactory to
such
Holders, underwriters or agents and their counsel.
(m) Use
reasonable best efforts to prevent the issuance of any stop order suspending
the
effectiveness of the registration statement or of any order preventing or
suspending the use of any preliminary prospectus relating to such registration
statement, and, if any such order is issued, to obtain the withdrawal of any
such order at the earliest possible moment.
(n) Respond
promptly to any comments received from the SEC and request acceleration of
effectiveness promptly after it learns that the Commission will not review
the
registration statement or after it has satisfied comments received from the
SEC.
(o) Immediately
notify the Holders of Registrable Securities to be sold and confirm such notice
in writing, (i) when a prospectus or any prospectus supplement or post-effective
amendment has been filed, and, with respect to a registration statement or
any
post-effective amendment, when the same has become effective, (ii) of the
receipt of any comments from the SEC, (iii) of any request by the SEC or any
other federal or state governmental authority for amendments or supplements
to a
registration statement or related prospectus, (iv) of the issuance by the SEC
or
any other federal or state governmental authority of any stop order suspending
the effectiveness of a registration statement, or of any order preventing or
suspending the use of any preliminary prospectus relating to such registration
statement, or the initiation of any proceedings for such purpose(s), (v) of
the
receipt by the Company of any notification with respect to the suspension of
the
qualification or exemption from qualification of any of the Registrable
Securities for sale in any jurisdiction or the initiation or threatening of
any
proceeding for such purpose, (vi) of the discovery of any event that makes
any
statement made in such registration statement or related prospectus or any
document incorporated or deemed to be incorporated therein by reference untrue
in any material respect or that requires the making of any changes in a
registration statement, prospectus or any such document so that, in the case
of
the registration statement, it will not contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading, in light of the
circumstances under which they were made, and, in the case of the prospectus,
it
will not contain any untrue statement of a material fact or omit to state any
material fact required to be stated or necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading and
(vii) of the Company's reasonable determination that a post-effective amendment
to a registration statement would be appropriate. In the event a registration
statement is interfered with by any event of the kind described in clauses
(iv)
through (vii) of the first sentence of this Section 1.5(o), such registration
shall not be deemed “effected” for purposes of Section 1.2(d) or Section
1.4(b).
10
(p) If
requested by the managing underwriter or agent or any Holder of Registrable
Securities covered by the registration statement, promptly incorporate in a
prospectus supplement or post-effective amendment such information as the
managing underwriter or agent or such Holder reasonably requests to be included
therein, including, without limitation, with respect to the number of
Registrable Securities being sold by such Holder to such underwriter or agent,
the purchase price being paid therefor by such underwriter or agent and with
respect to any other terms of the underwritten offering of the Registrable
Securities to be sold in such offering; and make all required filings of such
prospectus supplement or post-effective amendment as soon as practicable after
being notified of the matters incorporated in such prospectus supplement or
post-effective amendment.
(q) Cooperate
with the Holders of Registrable Securities covered by the registration statement
and the managing underwriter or agent, if any, to facilitate the timely
preparation and delivery of certificates (not bearing any restrictive legends)
representing securities to be sold under the registration statement, and enable
such securities to be in such denominations and registered in such names as
the
managing underwriter or agent, if any, or such Holders may request.
(r) Cooperate
with each seller of Registrable Securities, any Hedging Counterparty, and each
underwriter or agent participating in the disposition of such Registrable
Securities and their respective counsel in connection with any filings required
to be made with the NASD.
(s) With
respect to each Free Writing Prospectus or other materials to be included in
the
Disclosure Package, ensure that no Registrable Securities be sold “by means of”
(as defined in Rule 159A(b) under the Securities Act) such Free Writing
Prospectus or other materials without the prior written consent of the Holders
of the Registrable Securities covered by such registration statement, which
Free
Writing Prospectuses or other materials shall be subject to the review of
counsel to such Holders.
(t) Make
all
required filings of all Free Writing Prospectuses with the
Commission.
| 1.6 |
Registration
In Connection With Hedging
Transactions.
|
(a) The
Company acknowledges that from time to time a Holder may seek to enter into
one
or more Hedging Transactions with a Hedging Counterparty. Notwithstanding
anything to the contrary provided herein, the Company agrees that, in connection
with any proposed Hedging Transaction, if, in the reasonable judgment of counsel
to the Holder (after good faith consultation with counsel to the Company),
it is
necessary or desirable to register under the Securities Act such Hedging
Transaction or sales or transfers (whether short or long) of Registrable Class
Securities in connection therewith, then the Company shall use its best efforts
to take such actions (which may include among other things, the filing of a
post-effective amendment to any shelf registration statement to include
additional or changed information that is material or is otherwise required
to
be disclosed, including, without limitation, a description of such Hedging
Transaction, the name of the Hedging Counterparty, identification of the Hedging
Counterparty or its affiliates as underwriters or potential underwriters, if
applicable, or any change to the plan of distribution) as may reasonably be
required to register such Hedging Transactions or sales or transfers of
Registrable Class Securities in connection therewith under the Securities Act
in
a manner consistent with the rights and obligations of the Company hereunder
with respect to the registration of Registrable Securities.
11
(b) The
Company agrees to include in each prospectus supplement filed in connection
with
any proposed Hedging Transaction language mutually agreed upon by the Company,
the Holder and the Hedging Counterparty describing such Hedging
Transaction.
(c) Any
information regarding the Hedging Transaction included in a registration
statement or prospectus pursuant to this Section 1.6 shall be deemed to be
information provided by the Holder selling Registrable Securities pursuant
to
such registration statement or prospectus for purposes of Section 1.5 of this
Agreement.
(d) If
in
connection with a Hedging Transaction a Hedging Counterparty or any affiliate
thereof is (or may be considered) an underwriter or selling securityholder,
then
it shall be required to provide customary indemnities to the Company regarding
itself, the plan of distribution and like matters.
| 1.7 |
Furnish
Information; Limitation of
Obligations.
|
(a) It
shall
be a condition precedent to the obligations of the Company to take any action
pursuant to this Section 1 with respect to the Registrable Securities of
any selling Holder that such Holder shall furnish to the Company such
information regarding itself, the Registrable Securities held by it, and the
intended method of disposition of such securities as shall be reasonably
required to effect the registration of such Holder’s Registrable
Securities.
(b) The
Company shall have no obligation with respect to any registration requested
pursuant to Section 1.2 or Section 1.4 if, due to any Holder’s failure
to provide information provided by subsection 1.7(a), the number of shares
or the anticipated aggregate offering price of the Registrable Securities to
be
included in the registration does not equal or exceed the number of shares
or
the anticipated aggregate offering price required to originally trigger the
Company’s obligation to initiate such registration as specified in
Section 1.2(a) or Section 1.4(b)(ii), whichever is
applicable.
| 1.8 |
Expenses
of
Registrations.
|
All
expenses other than underwriting discounts and commissions incurred in
connection with registrations pursuant to this Section 1, including without
limitation all registration, filing and qualification fees, printers’ and
accounting fees and reasonable fees and disbursements of counsel for the Company
and one counsel for the participating Holders, shall be borne by the Company;
provided,
that
the Company shall not be required to pay for any expenses of any registration
proceeding begun pursuant to Sections 1.2 or Section 1.4 as applicable, if
the registration request is subsequently withdrawn at the request of the Holders
of a majority of the Registrable Securities to be registered (in which case
all
participating Holders shall bear all such expenses incurred), unless, in the
case of a registration requested under Section 1.2, the Holders of a
majority of the Registrable Securities agree to forfeit one demand registration
pursuant to Section 1.2.
12
| 1.9 |
Indemnification.
|
(a) To
the
extent permitted by law, the Company will indemnify and hold harmless each
Holder, any underwriter (as defined in the Securities Act) for such Holder,
their respective affiliates and controlling persons (within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act, and the
partners, officers, directors members, representatives, agents and employees
of
each Holder, and each such person (collectively, the “Holder
Indemnified Parties”),
against any losses, claims, damages or liabilities (joint or several) to which
they may become subject under the Securities Act, the Exchange Act or other
federal or state law, insofar as such losses, claims, damages or liabilities
(or
actions in respect thereof) arise out of or are based upon any of the
following statements, omissions or violations (collectively, a “Violation”)
by the
Company: (i) any untrue statement or alleged untrue statement of a material
fact contained in such registration statement, including without limitation
any
preliminary prospectus or final prospectus contained therein or any amendments
or supplements thereto, (ii) the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make
the
statements therein not misleading,
(iii)
any untrue statement or alleged untrue statement of a material fact contained
in
the Disclosure Package or the omission or alleged omission to state therein
a
material fact required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances under which they were
made, or
(iv) any violation or alleged violation by the Company of the Securities
Act, the Exchange Act, any state securities law or any rule or regulation
promulgated under the Securities Act, the Exchange Act or any state securities
law in connection with the offering covered by such registration statement;
and
the Company will reimburse each such Holder Indemnified Party for any legal
or
other expenses reasonably incurred by them in connection with investigating
or
defending any such loss, claim, damage, liability or action; provided,
that
the indemnity agreement contained in this Section 1.9(a) shall not apply to
amounts paid in settlement of any such loss, claim, damage, liability or action
if such settlement is effected without the written consent of the Company,
which
consent shall not be unreasonably withheld, nor shall the Company be liable
in
any such case to any Holder Indemnified Party for any such loss, claim, damage,
liability or action to the extent that it arises out of or is based upon a
Violation which occurs in reliance upon and in conformity with written
information furnished by such Holder Indemnified Party under an instrument
duly
executed by any such Holder Indemnified Party expressly for use in connection
with such registration by such Holder; provided further,
that
the foregoing indemnity agreement with respect to any preliminary prospectus
shall not inure to the benefit of any Holder Indemnified Party from whom the
person asserting any such losses, claims, damages or liabilities purchased
shares in the offering, if a copy of the prospectus (as then amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto) was not sent or given by or on behalf of such Holder Indemnified Party
to such person, if required by law so to have been delivered, at or prior to
the
written confirmation of the sale of the shares to such person, and if the
prospectus (as so amended or supplemented) would have cured the defect giving
rise to such loss, claim, damage or liability. For purposes of the last proviso
to the immediately preceding sentence, the term “prospectus” shall not be deemed
to include the documents, if any, incorporated therein by reference, and no
person who participates as an underwriter in the offering or sale of Registrable
Securities or any other person, if any, who controls such underwriter within
the
meaning of the Securities Act, shall be obligated to send or give any supplement
or amendment to any document incorporated by reference in any preliminary
prospectus or the final prospectus to any person other than a person to whom
such underwriter had delivered such incorporated document or documents in
response to a written request therefor. Such indemnity shall remain in full
force and effect regardless of any investigation made by or on behalf of such
party and shall survive the transfer of such securities.
13
(b) To
the
extent permitted by law, each Holder shall, if shares held by such Holder are
included in the securities as to which such registration, qualification or
compliance is being effected, indemnify and hold harmless the Company, each
of
its directors, each of its officers who has signed the registration statement,
each person, if any, who controls the Company within the meaning of the
Securities Act, each underwriter and each other stockholder selling securities
under such registration statement against any losses, claims, damages or
liabilities (joint or several) to which any of the foregoing persons may
become subject under the Securities Act, the Exchange Act or other federal
or
state law, insofar as such losses, claims, damages or liabilities (or actions
in
respect thereto) arise out of or are based upon any Violation, in each case
to the extent (and only to the extent) that such Violation occurs in
reliance upon and in conformity with written information furnished by such
Holder under an instrument duly executed by such Holder expressly for use in
connection with such registration; and each Holder shall reimburse any legal
or
other expenses reasonably incurred by any person intended to be indemnified
pursuant to this Section 1.9(b), in connection with investigating or defending
any such loss, claim, damage, liability or action if it is judicially determined
that there was such violation; provided,
that
the indemnity agreement contained in this Section 1.9(b) shall not apply to
amounts paid in settlement of any such loss, claim, damage, liability or action
if such settlement is effected without the written consent of such Holder,
which
consent shall not be unreasonably withheld; provided further,
that
the liability of each Holder under this Section 1.9(b) shall be limited to
an amount equal to the net proceeds actually received and retained by such
Holder in the registered public offering out of which such liability arises,
unless such liability arises out of or is based on willful misconduct by such
Holder.
(c) Promptly
after receipt by an indemnified party under this Section 1.9 of notice of
the commencement of any action (including any governmental action), such
indemnified party will, if a claim in respect thereof is to be made against
any
indemnifying party under this Section 1.9, deliver to the indemnifying
party a written notice of the commencement thereof and the indemnifying party
shall have the right to participate in, and, to the extent the indemnifying
party so desires, jointly with any other indemnifying party similarly noticed,
to assume the defense thereof with counsel mutually satisfactory to the parties;
provided,
that an
indemnified party (together with all other indemnified parties which may be
represented without conflict by one counsel) shall have the right to retain
one
separate counsel, with the fees and expenses to be paid by the indemnifying
party, if representation of such indemnified party by the counsel retained
by
the indemnifying party would be inappropriate due to actual or potential
differing interests between such indemnified party and any other party
represented by counsel in such proceeding. The failure to deliver written notice
to the indemnifying party within a reasonable time of the commencement of any
such action, if materially prejudicial to its ability to defend such action,
shall relieve such indemnifying party of any liability to the indemnified party
under this Section 1.9 to the extent so prejudiced, but the omission so to
deliver written notice to the indemnifying party will not relieve it of any
liability that it may have to any indemnified party otherwise than under this
Section 1.9.
14
(d) If
the
indemnification provided for in this Section 1.9 is held by a court of
competent jurisdiction to be unavailable to an indemnified party with respect
to
any loss, liability, claim, damage or expense referred to therein, then the
indemnifying party, in lieu of indemnifying such indemnified party hereunder,
shall contribute to the amount paid or payable by such indemnified party as
a
result of such loss, liability, claim, damage or expense in such proportion
as
is appropriate to reflect the relative fault of the indemnifying party on the
one hand and of the indemnified party on the other in connection with the
Violation that resulted in such loss, liability, claim, damage or expense as
well as any other relevant equitable considerations; provided,
that in
no event shall any contribution by a Holder that is a selling party under this
Section 1.9(d) exceed the net proceeds from the offering received by such
Holder. The relative fault of the indemnifying party and of the indemnified
party shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission to state
a
material fact relates to information supplied by the indemnifying party or
by
the indemnified party and the parties’ relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission.
(e) Notwithstanding
the foregoing, to the extent that the provisions on indemnification and
contribution contained in the underwriting agreement entered into in connection
with the underwritten public offering are in conflict with the foregoing
provisions, the provisions in the underwriting agreement shall control. No
indemnifying party, in the defense of any such claim or litigation, shall,
except with the consent of each indemnified party, consent to entry of any
judgment or enter into any settlement that does not include as an unconditional
term thereof the giving by the claimant or plaintiff to such indemnified party
of a release from all liability in respect to such claim or
litigation.
(f) The
obligations of the Company and Holders under this Section 1.9 shall survive
the completion of any offering of Registrable Securities in a registration
statement under this Section 1 and otherwise.
| 1.10 |
Rule
144
Reporting.
|
With
a
view to making available to the Holders the benefits of Rule 144 promulgated
under the Securities Act and any other rule or regulation of the SEC which
may
permit the sale of the Registrable Securities to the public without registration
or pursuant to a registration on Form S-3, the Company agrees to use its
reasonable best efforts to:
(a) make
and
keep public information available, as those terms are understood and defined
in
SEC Rule 144 or any similar or analogous rule promulgated under the Securities
Act;
(b) file
with
the SEC in a timely manner all reports and other documents required of the
Company under the Exchange Act; and
(c) so
long
as a Holder owns any Registrable Securities, furnish to such Holder forthwith
upon written request: (i) a written statement by the Company as to its
compliance with the reporting requirements of SEC Rule 144 and the Exchange
Act;
(ii) a copy of the most recent annual or quarterly report of the Company;
and (iii) such other reports and documents as a Holder may reasonably
request in availing itself of any rule or regulation of the SEC allowing it
to
sell any such securities without registration.
15
| 1.11 |
Assignment
of Registration
Rights.
|
A
Holder
may assign any or all of its rights hereunder (but only with all related
obligations) to any person or entity to whom the Investor may transfer or assign
its Class W Units or an interest therein under the terms of the Limited
Liability Company Agreement; provided,
that:
(i) the Company is, within ten (10) days after such transfer,
furnished with written notice of the name and address of such transferee or
assignee and the securities with respect to which such registration rights
are
being assigned; (ii) such transferee or assignee agrees in writing to be
bound by and subject to the terms and conditions of this Agreement; and
(iii) such assignment shall be effective only if immediately following such
transfer the further disposition of such securities by the transferee or
assignee is restricted under the Securities Act.
| 1.12 |
Limitations
on Subsequent Registration
Rights.
|
The
Company shall not, without the prior written consent of the Holders of at least
a majority of the Registrable Securities then outstanding, enter into any
agreement with any holder or prospective holder of any securities of the Company
that would grant to such holder or prospective holder registration rights
superior to or on parity with those granted under this Section 1.
| 1.13 |
Termination
of Registration
Rights.
|
No
Holder
shall be entitled to exercise any right provided for in this Section 1
after such time at which all Registrable Securities held by such Holder (and
any
affiliate of the Holder or other person with whom such Holder must aggregate
sales under Rule 144 of the Securities Act) can be sold without restriction
(including volume and manner-of-sale restrictions) on a single day without
registration in compliance with Rule 144 of the Securities Act (or any
similar provision then in effect) and such Holder has received, upon such
Holder’s request, an opinion of counsel to the Company to that
effect.
| 2. |
Right
of First Offer.
|
|
| 2.1 |
Grant
of Right of First
Offer.
|
Subject
to (a) the terms and conditions specified in this Section 2,
(b) applicable law and any listing requirements and (c) Section 4.13
of that certain Securities Purchase Agreement, dated March 2, 2005, by and
among the Company and the purchasers signatory thereto, the Company hereby
grants to the Investor a right of first offer with respect to future sales
by
the Company or any of its subsidiaries of any shares of, or securities
convertible into or exercisable for any shares of, any class of its or any
of
its subsidiaries’ capital stock (“Shares”)
to any
person or entity (as determined pursuant to Section 2.2(b)
below).
16
| 2.2 |
Procedure.
|
Each
time
the Company proposes to offer to any person or entity any Shares, the Company
shall first make an offering of such Shares to the Investor in accordance with
the following provisions:
(a) The
Company shall deliver a notice (“Notice”) to the Investor stating (i) its
bona fide intention to offer such Shares, (ii) the number of such Shares to
be offered and (iii) the price and terms, if any, upon which it proposes to
offer such Shares.
(b) Within
5
business days after delivery of the Notice, the Investor may elect to purchase
or obtain, at the price and on the terms specified in the Notice, the Shares
being offered.
(c) If
all
Shares that the Investor is entitled to obtain pursuant to Section 2.2(b)
above are not elected to be obtained as provided in Section 2.2(b) above,
the Company may, during the 90-day period following the expiration of the period
provided in Section 2.2(b) above, offer the remaining unsubscribed portion
of such Shares to any person or persons at a price not less than, and upon
terms
no more favorable to the offeree than, those specified in the Notice. If the
Company does not enter into an agreement for the sale of the Shares within
such
period, or if such agreement is not consummated within 90 days of the execution
thereof, the right provided hereunder shall be deemed to be revived and such
Shares shall not be offered unless first reoffered to the Investor in accordance
herewith.
(d) The
right
of first offer in this Section 2 shall not be applicable to the issuance of
securities: (i) to employees, officers, directors or consultants to the
Company as incentive compensation; (ii) pursuant to the conversion or
exercise of convertible or exercisable securities previously offered;
(iii) in connection with an acquisition of or by the Company, whether by
merger, acquisition, consolidation, sale of assets, sale or exchange of stock
or
otherwise, approved by the Board; (iv) in connection with collaborative or
strategic partnership arrangements approved by the Board; or (v) in
connection with bona fide commercial lending or leasing arrangements approved
by
the Board.
| 2.3 |
Termination
of Right of First
Offer.
|
The
right
of first offer set forth in this Section 2 shall terminate and be of no
further force or effect immediately from and after the time the Investor and
its
affiliates cease to beneficially own at least 20% of the outstanding capital
stock of the Company.
| 3. |
Representations
and Warranties of the
Company.
|
|
The
Company represents and warrants to the Holders as follows:
| 3.1 |
Due
Authorization.
|
The
execution, delivery and performance of this Agreement by the Company have been
duly authorized by all requisite action, will not violate any provision of
law,
any order of any court or other agency of government, the Certificate of
Incorporation, bylaws or any provision of any indenture, agreement or other
instrument to which it or any of its properties or assets is bound, and will
not
conflict with, result in a breach of or constitute (with due notice or lapse
of
time or both) a default under any such indenture, agreement or other instrument
or result in the creation or imposition of any lien, charge or encumbrance
of
any nature whatsoever upon any of the properties or assets of the
Company.
17
| 3.2 |
Due
Execution.
|
This
Agreement has been duly executed and delivered by the Company and constitutes
the legal, valid and binding obligation of the Company, enforceable in
accordance with its terms, except as the enforcement thereof may be limited
by
bankruptcy and other laws of general application relating to creditor’s rights
or general principles of equity.
| 4. |
Miscellaneous.
|
|
| 4.1 |
Successors
and
Assigns.
|
Except
as
otherwise provided herein, the terms and conditions of this Agreement shall
inure to the benefit of and be binding upon the respective successors and
assigns of the parties (including transferees of any shares of Registrable
Securities). Nothing in this Agreement, express or implied, is intended to
confer upon any party other than the parties hereto or their respective
successors and assigns any rights, remedies, obligations, or liabilities under
or by reason of this Agreement.
| 4.2 |
Governing
Law.
|
The
rights and obligations of the parties shall be governed by, and this Agreement
shall be interpreted, construed and enforced in accordance with, the laws of
the
State of New York, excluding its conflict of laws rules to the extent such
rules
would apply the law of another jurisdiction.
| 4.3 |
Counterparts.
|
This
Agreement may be signed in any number of counterparts, each of which shall
be an
original, with the same effect as if the signatures thereto and hereto were
upon
the same instrument.
| 4.4 |
Titles
and
Subtitles.
|
The
titles and subtitles used in this Agreement are used for convenience only and
are not to be considered in construing or interpreting this
Agreement.
| 4.5 |
Notices.
|
Any
notice required or permitted to be given hereunder shall be sufficient if in
writing and given in accordance with Section 9.11 of the Contribution
Agreement.
18
| 4.6 |
Attorneys’
Fees.
|
If
any
action at law or in equity is necessary to enforce or interpret the terms of
this Agreement, the prevailing party shall be entitled to reasonable attorney’s
fees, costs and necessary disbursements in addition to any other relief to
which
such party may be entitled.
| 4.7 |
Amendments
and
Waivers.
|
Any
term
of this Agreement may be amended and the observance of any term of this
Agreement may be waived (either generally or in a particular instance and either
retroactively or prospectively), only with the written consent of the Company,
the holders of at least a majority of the Registrable Securities then
outstanding. Any amendment or waiver effected in accordance with this paragraph
shall be binding upon each holder of any Registrable Securities then
outstanding, each future holder of all such Registrable Securities and the
Company.
| 4.8 |
No
Inconsistent
Agreements.
|
Neither
the Company nor any of its subsidiaries has entered, as of the date hereof,
nor
shall the Company or any of its subsidiaries, on or after the date of this
Agreement, enter into any agreement with respect to its securities, that would
have the effect of impairing the rights granted to the Investor in this
Agreement or otherwise conflicts with the provisions hereof. Neither the Company
nor any of its subsidiaries has previously entered into any agreement granting
any registration rights with respect to any of its securities to any Person
containing obligations that have not been satisfied in full as of the date
hereof, to the extent such obligations arise on or before the date
hereof.
| 4.9 |
Specific
Performance.
|
The
parties hereto acknowledge and agree that irreparable damage would occur in
the
event that any of the provisions of this Agreement were not performed in
accordance with their specific terms or were otherwise breached. Accordingly,
it
is agreed that they shall be entitled to an injunction or injunctions to prevent
breaches of the provisions of this Agreement and to enforce specifically the
terms and provisions hereof in any court of competent jurisdiction in the United
States or any state thereof, in addition to any other remedy to which they
may
be entitled at law or in equity.
| 4.10 |
Severability.
|
If
any
provision of this Agreement, as applied to either party or to any circumstance,
is declared by a court of competent jurisdiction to be illegal, unenforceable
or
void, this Agreement shall continue in full force and effect without said
provision.
| 4.11 |
Rules
of
Construction.
|
(a) For
purposes of this Agreement, whenever the context requires: the singular number
shall include the plural, and vice versa; the masculine gender shall include
the
feminine and neuter genders; the feminine gender shall include the masculine
and
neuter genders; and the neuter gender shall include the masculine and feminine
genders.
19
(b) The
parties acknowledge that each party has read and negotiated the language used
in
this Agreement. The parties agree that, because all parties participated in
negotiating and drafting this Agreement, no rule of construction shall apply
to
this Agreement which construes ambiguous language in favor of or against any
party by reason of that party’s role in drafting this Agreement.
| 4.12 |
Entire
Agreement.
|
This
Agreement and the documents referred to herein constitutes the entire agreement
among the parties with regard to the subject matter hereof, and supercedes
any
and all prior negotiations, correspondence, understandings and agreements
between the parties regarding the subject matter hereof or thereof. No party
shall be liable or bound to any other party in any manner by any warranties,
representations or covenants, except as specifically set forth herein or
therein.
[Remainder
of page intentionally left blank]
20
IN
WITNESS WHEREOF, each of the parties has caused this Registration Rights
Agreement to be executed on its behalf as of the date first written above.
|
“Company”
GENIUS
PRODUCTS, INC.
By:
/s/ Xxxxxx Xxxxxxxxxx
Name:
Xxxxxx Xxxxxxxxxx
Title:
Chief Executive Officer
|
“Investor”
THE
XXXXXXXXX COMPANY LLC,
for
itself
and on behalf of all other
Holders
of Registrable Securities
By:
/s/ Xxxxxxxx Xxxxxx
Name:
Xxxxxxxx Xxxxxx
Title:
Chief Financial Officer
|
21
