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EXHIBIT 10.70
AMENDMENT NO. 1 TO
REGISTRATION RIGHTS AGREEMENT
AMENDMENT NO. 1, dated ____________, 1998, (the "Amended Agreement") to
the REGISTRATION RIGHTS AGREEMENT (the "AGREEMENT"), dated as of September 4,
1997, by and among NATIONAL MEDIA CORPORATION, a corporation organized under the
laws of the State of Delaware, with headquarters located at Eleven Penn Center,
0000 Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000 (the
"COMPANY"), X-X HOLDING CORP., a corporation organized under the laws of the
State of Delaware, and the undersigned (together with affiliates, the "INITIAL
INVESTORS").
In consideration of the premises and the mutual covenants contained
herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Company and the Initial Investors hereby
agree that the Agreement be amended as follows:
1. The recitals to the Agreement are amended in their entirety to
read as follows:
"WHEREAS:
"A. In connection with the Securities Purchase
Agreement dated September 4, 1997 by and between the Company
and the Initial Investors (the "SECURITIES PURCHASE
AGREEMENT"), the Company issued to the Initial Investors (i)
shares of its Series C Convertible Preferred Stock (the "C
PREFERRED STOCK") that are convertible into shares of the
Company's common stock, par value $.01 per share (the "COMMON
STOCK"), upon the terms and subject to the limitations and
conditions set forth in the Certificate of Designations,
Rights and Preferences with respect to such C Preferred Stock
(the "C CERTIFICATE OF DESIGNATION") and (ii) warrants (the
"WARRANTS") to acquire shares of Common Stock;
"B. In connection with the Redemption and
Consent Agreement dated as of January 5, 1998, among the
Company, the Initial Investors and ValueVision International,
Inc. (the "REDEMPTION AND CONSENT AGREEMENT"), the Company has
issued to the Initial Investors, in exchange for the C
Preferred Stock, newly issued shares of its Series D
Convertible Preferred Stock (the "PREFERRED STOCK") that are
also convertible into shares of the Company's Common Stock,
upon the terms and subject to the limitations and conditions
set forth in the Certificate of Designations, Rights and
Preferences with respect to such Preferred Stock (the
"CERTIFICATE OF DESIGNATION") and (ii) warrants (the "NEW
WARRANTS") to acquire shares of Common Stock. The Warrants and
the New Warrants are collectively referred to herein as the
"Warrants".
"C. To induce the Initial Investors to execute
and deliver the Redemption and Consent Agreement, the Company
has agreed to extend the registration rights provided in the
Agreement to the Common Stock issuable upon conversion of the
Preferred Stock and upon the exercise of the New Warrants."
"D. X-X Holdings Corp. is being made a party
hereto for the purpose of assuming the obligations of the
Company under the Agreement and this Amended Agreement
following the Closing of the Merger (as defined below)."
2. The term "Common Stock" shall have the meaning set forth above
in the Recitals, provided that upon the closing of the merger (the "Merger")
between the Company and ValueVision International, Inc. pursuant to the
Agreement and Plan of Reorganization and Merger dated January 5, 1998, "Common
Stock" shall thereafter mean the "common stock, par value $.01 per share of X-X
Holdings Corp., a Delaware corporation."
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The term "Company" shall have the meaning set forth above in
the Preamble, provided that upon the closing of the Merger, "Company" shall
thereafter mean X-X Holdings Corp.
3. Paragraph 1.a(iii) of the Agreement is hereby amended to read
in its entirety as follows:
"(iii) "REGISTRABLE SECURITIES" means shares of
Common Stock issuable upon the conversion of the Preferred
Stock (the "CONVERSION SHARES") and the shares of Common Stock
issuable upon exercise of the Warrants and the New Warrants
(collectively the "WARRANT SHARES") (including any Conversion
Shares issuable with respect to Conversion Default Payments
under the Certificate of Designation or in redemption of the
Preferred Stock and any Warrant Shares issuable with respect
to Exercise Default Payments under the Warrants) and any
shares of capital stock issued or issuable, from time to time
(with any adjustments), as a distribution on or in exchange
for or otherwise with respect to any of the foregoing;
provided that upon the redemption of all of the Preferred
Stock by the Company at the closing of the Merger, the term
"Registrable Securities" shall thereafter not include any
Conversion Shares."
4. The first five lines of paragraph 2.(a) of the Agreement are
amended in their entirety to read as follows:
"(a) Mandatory Registration. The Company has
prepared and filed with the SEC on a timely basis Registration
Statements on Form S-3, each of which has become effective
covering the resale of at least 7,000,000 Registrable. . ."
5. The first six lines of paragraph 2.b are amended in their
entirety to read as follows:
"(b) Payments by the Company. If, after the
Registration Statement has been declared effective by the SEC,
sales of all the Registrable. . ."
6. The last sentence of paragraph 3.c is hereby deleted.
7. The first four lines of paragraph 4.a are amended in their
entirety to read as follows:
"The Company shall keep the Registration Statement
referred to in Section 2(a) effective pursuant to Rule 415 at
all. . ."
8. Section 12.e of the Agreement is amended in its entirety to
read as follows:
"This Amended Agreement, the Agreement, the
Securities Purchase Agreement, the Redemption and Consent
Agreement, the Warrants and the New Warrants (including all
schedules and exhibits thereto) constitute the entire
agreement among the parties hereto with respect to the subject
matter hereof and thereof. This Agreement, the Amended
Agreement, the Securities Purchase Agreement, the Redemption
and Consent Agreement, the Warrants and the New Warrants
supersede all prior agreements and understandings among the
parties hereto with respect to the subject matter hereof and
thereof."
9. The undersigned parties hereby agree that any provisions in
the Agreement that relate to any failure or delay by the Company in preparing
and filing with the SEC a registration statement covering the Registrable
Securities or to have such Registration Statement declared effective (but not
the provisions relating to maintaining the effectiveness of the Registration
Statement) shall be deemed to be inapplicable as a result of the filing and
effectiveness of the Registration Statement described in Section 2(a) of the
Agreement, as amended. The undersigned parties hereby further agree that
notwithstanding anything to the contrary in the Agreement or in this Amended
Agreement, the Initial Investors hereby consent to and waive any claims,
benefits or rights with respect to, the failure of the Company to have a
Registration Statement covering the Registrable Shares effective during the 120
days following the closing of the Merger; provided, however, that such consent
and waiver are contingent upon a Registration Statement being filed by the
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Company with the SEC within thirty days after the closing of the Merger, and
being declared effective by the SEC within one hundred twenty days after the
closing of the Merger.
10. To the extent that there are any inconsistent provisions
between this Amended Agreement and the Agreement, the terms of the Amended
Agreement shall control, and such inconsistent provision in the Agreement is
hereby superseded by the Amended Agreement. In all other respects, the Agreement
is hereby confirmed and, as amended hereby, remains in full force and effect.
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IN WITNESS WHEREOF, the parties have caused this Amended Agreement to
be duly executed as of the date first above written.
NATIONAL MEDIA CORPORATION X-X HOLDINGS CORP.
By:_______________________ By:_______________________
Name:_____________________ Name:_____________________
Its:______________________ Its:______________________
INITIAL INVESTORS:
CAPITAL VENTURES INTERNATIONAL RGC INTERNATIONAL INVESTORS, LDC
By: Heights Capital Management, By: Xxxx Xxxx Capital Management, L.P.
its authorized agent Investment Manager
By:_______________________ By: RGC General Partner Corp.,
Name:_____________________ General Partner
Its:______________________
By:______________________
Name:____________________
Its:_____________________
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