REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement"), dated as of
December 12, 1997, is among Platinum Entertainment, Inc., a Delaware corporation
(the "COMPANY"), Platinum Venture Partners I, L.P. ("PVP-I") and Platinum
Venture Partners II, L.P. ("PVP-II", together with PVP-I, the "AFFILIATES")
WHEREAS, the Company and the Affiliates deem it desirable to enter
into this Agreement in order to induce the Affiliates to purchase an aggregate
of 2,500 shares of Series C Preferred Stock, par value $.001 per share (the
"SERIES C PREFERRED STOCK") and warrants (the "WARRANTS", together with the
Series C Preferred Stock, the "SECURITIES") for an aggregate of 450,000 shares
of common stock of the Company, par value $.001 per share ("COMMON STOCK"), such
securities to be issued and sold to the Affiliates at the closing of the
Investment Agreement, dated October 12, 1997, as amended (the "INVESTMENT
AGREEMENT"), among the Company, MAC Music LLC ("MAC") and SK-Palladin Partners,
LP (together with MAC, the "Investors").
In consideration of the mutual promises and covenants herein contained
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto hereby agree as follows:
1. DEFINITIONS.
The terms defined in this Section 1 shall have the following meanings
for all purposes of this Agreement:
"Act" means the Securities Act of 1933, as amended, or any superseding
Federal statute, and the rules and regulations promulgated thereunder, all as
the same shall be in effect from time to time. References to a particular
section of the Securities Act of 1933, as amended, shall include a reference to
the comparable section, if any, of any such superseding Federal statute.
"Business Day" means any day other than a Saturday, Sunday or federal
holiday, and consists of the time period from 12:00 a.m. through 12:00 midnight,
New York City time.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
or any superseding Federal statute, and the rules and regulations promulgated
thereunder, all as the same shall be in effect at the time. Reference to a
particular section of the Securities Exchange Act of 1934, as amended, shall
include a reference to the comparable section, if any, of such superseding
Federal statute.
"Investor Warrants" means the warrants initially issued to the
Investors pursuant to the Investment Agreement.
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"Person" means any individual, firm, corporation, partnership, limited
liability company or partnership, trust, incorporated or unincorporated
association, joint venture, joint stock company, government (or an agency or
political subdivision thereof) or other entity of any kind, and shall include
any successor (by merger or otherwise) of such entity.
"Registrable Securities" shall mean the shares of Common Stock issued
or issuable upon conversion or exercise of the Securities.
"SEC" means the Securities and Exchange Commission.
"Series B Preferred Stock" means the Series B Convertible Preferred
Stock, par value $.001 per share, initially issued to the Investors pursuant to
the Investment Agreement.
"Transfer" means, with respect to any Securities, any sale,
assignment, transfer or disposition by gift or otherwise, including without
limitation, any distribution in liquidation or otherwise by a corporation or
partnership or other Person.
2. SECURITIES SUBJECT TO THIS AGREEMENT.
2.1. REGISTRABLE SECURITIES. Registrable Securities will cease to
be Registrable Securities when such Registrable Securities are sold pursuant to
Rule 144 under the Act or a registration statement covering such Registrable
Securities has been declared effective under the Securities Act by the SEC and
such Registrable Securities have been disposed of pursuant to such effective
registration statement.
2.2. HOLDERS OF REGISTRABLE SECURITIES. A Person is deemed to be a
holder of Registrable Securities whenever such Person owns of record Registrable
Securities, or holds a warrant to purchase, or a security convertible into or
exercisable or exchangeable for, Registrable Securities whether or not such
acquisition or conversion has actually been effected and disregarding any legal
restrictions upon the exercise of such rights. If the Company receives
conflicting instructions, notices or elections from two or more persons with
respect to the same Registrable Securities, the Company may act upon the basis
of the instructions, notice or election received from the registered owner of
such Registrable Securities. Registrable Securities issuable upon exercise of
an option or upon conversion of another security shall be deemed outstanding.
3. PIGGY-BACK REGISTRATION.
3.1. PIGGY-BACK RIGHTS. If the Company proposes to file a
registration statement under the Act with respect to an offering by the Company
for its
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own account or for the account of any other holder of registration rights
exercising demand registration rights (such other holder or registration rights
being "DEMAND HOLDER") of any class of equity securities (other than a
registration statement on Form S-4 or S-8 or any successor or other forms not
available for registering equity securities for sale to the public), then the
Company shall give written notice of such proposed filing to each holder of
Registrable Securities at least thirty (30) days before the anticipated filing
date, and such notice shall describe in detail the proposed registration and
distribution (including those jurisdictions where registration under the
securities or blue sky laws is intended) and offer such holders the opportunity
to register such number of Registrable Securities as each such holder may
request. The Company shall use its best efforts (within ten (10) days of the
notice provided for in the preceding sentence) to cause the managing underwriter
or underwriters of a proposed underwritten offering (the "UNDERWRITER") to
permit the holders of Registrable Securities that have requested to participate
in the registration for such offering to include such Registrable Securities in
such offering on the same terms and conditions as the securities of the Company
or the Demand Holder, as the case may be, included therein. Notwithstanding the
foregoing, (x) if in the opinion of the Underwriter the total amount or kind of
securities which the holders of Registrable Securities, the Company and any
other persons or entities intend to include in such offering (the "TOTAL
SECURITIES") is sufficiently large so as to have a material adverse effect on
the distribution of the Total Securities, then the amount or kind of securities
to be offered for the account of such holders of Registrable Securities and such
other persons or entities other than (i) the Company, if such registration is
being filed for the Company's own account, or (ii) the Demand Holders, if such
registration is being made at the demand of a Demand Holder, shall be reduced
pro rata (to zero, if necessary) to the extent necessary to reduce the Total
Securities to the amount recommended by the Underwriter and (y) holders of
Registrable Securities shall have no piggyback rights in connection with a
registration statement filed as a result of the exercise of a demand
registration right by the holders of Series B Preferred Stock or Investor
Warrants (or, in each case, shares of Common Stock issued or issuable upon
exercise thereof) pursuant to the Investment Agreement unless holders of (x)
662/3% of the outstanding shares of Series B Preferred Stock, if any, and (y)
662/3% in interest of the shares of Common Stock underlying the Investor
Warrants consent in writing to the grant of such piggyback rights.
3.2. EXPENSES. The Company shall bear all Registration Expenses in
connection with any registration pursuant to this Section 3.
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4. HOLDBACK AGREEMENTS.
4.1. RESTRICTIONS ON PUBLIC SALE BY HOLDERS OF REGISTRABLE
SECURITIES. To the extent not inconsistent with applicable law, each holder of
Registrable Securities participating in such registration agrees not to effect
any public sale or distribution of any Registrable Securities being registered
or of any securities convertible into or exchangeable or exercisable for such
Registrable Securities, including a sale pursuant to Rule 144 under the
Securities Act, during the ten (10) Business Days prior to, and during the
ninety (90) days beginning on, the effective date of such registration statement
(except as part of such registration), if and to the extent requested by the
Company in the case of a non-underwritten public offering or if and to the
extent requested by the Underwriter in the case of an underwritten public
offering.
4.2. RESTRICTIONS ON PUBLIC SALE BY THE COMPANY. The Company agrees
not to effect any public sale or distribution of any of its equity securities,
or any securities convertible into or exchangeable or exercisable for such
equity securities (except pursuant to registrations on Form S-4 or S-8 or any
successor or other forms not available for registering equity securities for
sale to the public) during the ten (10) Business Days prior to, and during the
ninety (90) day period beginning on, the later of (i) the effective date of any
registration statement in which the holders of Registrable Securities are
participating and (ii) the commencement of a public distribution of the
Registrable Securities pursuant to such registration statement.
5. REGISTRATION PROCEDURES.
5.1. OBLIGATIONS OF THE COMPANY. Whenever registration of
Registrable Securities has been requested pursuant to Section 3 of this
Agreement, the Company shall use reasonable efforts to effect the registration
and sale of such Registrable Securities in accordance with the intended method
of distribution thereof, and in connection with any such request, the Company
shall, as soon as reasonably practicable:
(a) prepare and file with the SEC (in any event not later than
thirty (30) business days after receipt of a request to file a registration
statement with respect to Registrable Securities) a registration statement
on any form for which the Company then qualifies which counsel for the
Company shall deem appropriate and which form shall be available for the
sale of such Registrable Securities in accordance with the intended method
of distribution thereof, and use its best efforts to cause such
registration statement to become effective under the Act; provided,
however, that before filing a registration statement or prospectus or any
amendments or supplements thereto, the Company shall (A) provide counsel
selected by the holders of a majority of the Registrable Securities being
registered in such registration ("HOLDERS' COUNSEL") with an
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opportunity to participate in the preparation of such registration
statement and each prospectus included therein (and each amendment or
supplement thereto) to be filed with the SEC, which documents shall be
subject to the review of Holders' Counsel, and (B) notify the Holders'
Counsel and each seller of Registrable Securities of any stop order issued
or threatened by the SEC and take all reasonable action required to prevent
the entry of such stop order or to remove it if entered;
(b) prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to keep such registration
statement effective for a period which will terminate when all Registrable
Securities covered by such registration statement have been sold (but not
before the expiration of the ninety (90) day period referred to in
Section 4(3) of the Act and Rule 174 thereunder, if applicable), and comply
with the provisions of the Act with respect to the disposition of all
securities covered by such registration statement during such period in
accordance with the intended methods of disposition by the sellers thereof
set forth in such registration statement;
(c) furnish to each seller of Registrable Securities, prior to
filing a registration statement, copies of such registration statement as
is proposed to be filed, and thereafter such number of copies of such
registration statement, each amendment and supplement thereto (in each case
including all exhibits thereto), the prospectus included in such
registration statement (including each preliminary prospectus) and such
other documents as each such seller may reasonably request in order to
facilitate the disposition of the Registrable Securities owned by such
seller;
(d) use reasonable efforts to register or qualify such
Registrable Securities under such other securities or blue sky laws of such
jurisdictions as any seller of Registrable Securities requests, and to
continue such qualification in effect in such jurisdiction for as long as
is permissible pursuant to the laws of such jurisdiction, or for as long as
any such seller requests or until all of such Registrable Securities are
sold, whichever is shortest, and do any and all other acts and things which
may be reasonably necessary or advisable to enable any such seller to
consummate the disposition in such jurisdictions of the Registrable
Securities owned by such seller; provided, however, that the Company shall
not be required to (A) qualify generally to do business in any jurisdiction
where it would not otherwise be required to qualify but for this Section
5.1(d), (B) subject itself to taxation in any such jurisdiction or (C)
consent to general service of process in any such jurisdiction;
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(e) use reasonable efforts to cause the Registrable Securities
covered by such registration statement to be registered with or approved by
such other governmental agencies or authorities as may be necessary by
virtue of the business and operations of the Company to enable the seller
or sellers of Registrable Securities to consummate the disposition of such
Registrable Securities;
(f) notify each seller of Registrable Securities at any time
when a prospectus relating thereto is required to be delivered under the
Act, upon discovery that, or upon the happening of any event as a result of
which, the prospectus included in such registration statement contains an
untrue statement of a material fact or omits 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 the Company shall promptly prepare a supplement or amendment to such
prospectus and furnish to each seller a reasonable number of copies of a
supplement to or an amendment of such prospectus as may be necessary so
that, after delivery to the purchasers of such Registrable Securities, such
prospectus shall not contain an 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;
(g) enter into and perform customary agreements (including an
underwriting agreement in customary form with the Underwriter, if any,
selected as provided in Section 3) and take such other actions as are
reasonably required in order to facilitate the disposition of such
Registrable Securities;
(h) make available for inspection by any seller of Registrable
Securities, any managing underwriter participating in any disposition
pursuant to such registration statement, Holders' Counsel and any attorney,
accountant or other agent retained by any such seller or any managing
underwriter (each, an "INSPECTOR" and collectively, the "INSPECTORS"), all
financial and other records, pertinent corporate documents and properties
of the Company and its subsidiaries (collectively, the "RECORDS") as shall
be reasonably necessary to enable them to exercise their due diligence
responsibility, and cause the Company's and its subsidiaries' officers,
directors and employees, and the independent public accountants of the
Company, to supply all information reasonably requested by any such
Inspector in connection with such registration statement;
(i) if such sale is pursuant to an underwritten offering,
obtain a "cold comfort" letter from the Company's independent public
accountants in customary form and covering such matters of the type
customarily covered by
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"cold comfort" letters as Holders' Counsel or the managing underwriter
reasonably requests;
(j) furnish, at the request of any seller of Registrable
Securities on the date such securities are delivered to the underwriters
for sale pursuant to such registration or, if such securities are not being
sold through underwriters, on the date the registration statement with
respect to such securities becomes effective, an opinion, dated such date,
of counsel representing the Company for the purposes of such registration,
addressed to the underwriters, if any, and to the seller making such
request, covering such legal matters with respect to the registration in
respect of which such opinion is being given as such seller may reasonably
request and are customarily included in such opinions;
(k) otherwise use reasonable efforts to comply with all
applicable rules and regulations of the SEC, and make available to its
security holders, as soon as reasonably practicable but no later than
fifteen (15) months after the effective date of the registration statement,
an earnings statement covering a period of twelve (12) months beginning
after the effective date of the registration statement, in a manner which
satisfies the provisions of Section 11(a) of the Act;
(l) cause all such Registrable Securities to be listed on each
securities exchange on which similar securities issued by the Company are
then listed (including NASDAQ), provided, that the applicable listing
requirements are satisfied;
(m) provide officers' certificates and other customary closing
documents;
(n) cooperate with each seller of Registrable Securities and
each underwriter participating in the disposition of such Registrable
Securities and their respective counsel in connection with any filings
required to be made with the National Association of Securities Dealers,
Inc. (the "NASD"); and
(o) use reasonable efforts to take all other steps necessary
to effect the registration of the Registrable Securities contemplated
hereby.
5.2. NOTICE TO DISCONTINUE. Each holder of Registrable Securities
agrees that, upon receipt of any notice from the Company of the happening of any
event of the kind described in Section 5.1(f), such holder shall forthwith
discontinue disposition of Registrable Securities pursuant to the registration
statement covering such Registrable Securities until such holder's receipt of
the copies of the supplemented or amended prospectus contemplated by
Section 5.1(f) and, if so directed by the
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Company, such holder shall deliver to the Company (at the Company's expense) all
copies, other than permanent file copies then in such holder's possession, of
the prospectus covering such Registrable Securities which is current at the time
of receipt of such notice. If the Company shall give any such notice, the
Company shall extend the period during which such registration statement shall
be maintained effective pursuant to this Agreement (including without limitation
the period referred to in Section 5.1(b)) by the number of days during the
period from and including the date of the giving of such notice pursuant to
Section 5.1(f) to and including the date when the holder shall have received the
copies of the supplemented or amended prospectus contemplated by and meeting the
requirements of Section 5.1(f).
6. REGISTRATION EXPENSES. The Company shall pay all expenses (other than
underwriting discounts and commissions) arising from or incident to the
performance of, or compliance with, this Agreement, including without
limitation, (i) SEC, stock exchange, NASDAQ and NASD registration and filing
fees, (ii) all fees and expenses incurred in complying with securities or blue
sky laws (including reasonable fees, charges and disbursements of counsel in
connection with blue sky qualifications of the Registrable Securities),
(iii) all printing, messenger and delivery expenses, (iv) the fees, charges and
disbursements of counsel to the Company and of its independent public
accountants and any other accounting and legal fees, charges and expenses
incurred by the Company (including without limitation any expenses arising from
any special audits incident to or required by any registration or
qualification), and (v) any liability insurance or other premiums for insurance
obtained by the Company and the reasonable fees, charges and expenses of any
special experts retained by the Company in connection with any piggy-back
registration pursuant to the terms of this Agreement, regardless of whether such
registration statement is declared effective. In connection with each
registration hereunder, the Company shall reimburse the holders of Registrable
Securities being registered in such registration for the reasonable fees,
charges and disbursements of not more than one counsel chosen by the holders of
a majority of Registrable Securities being registered in such registration. All
of the expenses described in this Section 6 are referred to herein as
"REGISTRATION EXPENSES."
7. INDEMNIFICATION; CONTRIBUTION.
7.1. INDEMNIFICATION BY THE COMPANY. The Company agrees to
indemnify, to the fullest extent permitted by law, each holder of Registrable
Securities, its officers, directors, partners, employees, advisors and agents
and each Person who controls (within the meaning of the Act or the Exchange Act)
such holder from and against any and all losses, claims, damages, liabilities
and expenses (including reasonable costs of investigation) arising out of or
based upon any untrue, or alleged untrue, statement of a material fact contained
in any registration statement, prospectus or preliminary prospectus or
notification or offering circular (as amended or supplemented if the Company
shall have furnished any amendments or supplements thereto) or arising
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out of or based upon any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, except insofar as the same are caused by or contained in
any information furnished in writing to the Company by such holder expressly for
use therein and provided further that the Company will not be liable to any
holder of Registrable Securities or any person controlling such holder with
respect to any loss, claim, liability, expense, charge or damage arising out of
or based on any untrue statement or alleged untrue statement or omission or
alleged omission to state a material fact in any preliminary prospectus which is
corrected in the prospectus. The Company shall also indemnify any underwriters
of the Registrable Securities, their officers, directors and employees and each
Person who controls such underwriters (within the meaning of the Act and the
Exchange Act) to the same extent as provided above with respect to the
indemnification of the holders of Registrable Securities.
7.2. INDEMNIFICATION BY HOLDERS. In connection with any
registration statement in which a holder of Registrable Securities is
participating pursuant to Section 3 hereof, each such holder shall furnish to
the Company in writing such information with respect to such holder as the
Company may reasonably request or as may be required by law for use in
connection with any such registration statement or prospectus and each holder,
by its participation in such registration, agrees to indemnify, to the extent
permitted by law, the Company, any underwriter retained by the Company and their
respective directors, officers, employees and each Person who controls the
Company or such underwriter (within the meaning of the Act and the Exchange Act)
to the same extent as the foregoing indemnity from the Company to the holders of
Registrable Securities, but only with respect to any such information furnished
in writing by or on behalf of such holder.
7.3. CONDUCT OF INDEMNIFICATION PROCEEDINGS. Any Person entitled to
indemnification hereunder (the "REGISTRATION RIGHTS INDEMNIFIED PARTY") agrees
to give prompt written notice to the indemnifying party (the "REGISTRATION
RIGHTS INDEMNIFYING PARTY") after the receipt by the Registration Rights
Indemnified Party of any written notice of the commencement of any action, suit,
proceeding or investigation or threat thereof made in writing for which the
Registration Rights Indemnified Party intends to claim indemnification or
contribution pursuant to this Agreement; provided, that the failure so to notify
the Registration Rights Indemnifying Party shall not relieve the Registration
Rights Indemnifying Party of any liability that it may have to the Registration
Rights Indemnified Party hereunder unless, and only to the extent that, such
failure results in the Registration Rights Indemnifying Party's forfeiture of
substantial rights or defenses. If notice of commencement of any such action is
given to the Registration Rights Indemnifying Party as above provided, the
Registration Rights Indemnifying Party shall be entitled to participate in and,
to the extent it may wish, jointly with any other Registration Rights
Indemnifying Party similarly notified, to assume the defense of such action at
its own expense, with counsel chosen by it and
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satisfactory to such Registration Rights Indemnified Party. The Registration
Rights Indemnified Party shall have the right to employ separate counsel in any
such action and participate in the defense thereof, but the fees and expenses of
such counsel (other than reasonable costs of investigation) shall be paid by the
Registration Rights Indemnified Party unless (i) the Registration Rights
Indemnifying Party agrees to pay the same, (ii) the Registration Rights
Indemnifying Party fails to assume the defense of such action with counsel
satisfactory to the Registration Rights Indemnified Party in its reasonable
judgment, (iii) the named parties to any such action (including any impleaded
parties) have been advised by such counsel that either (A) representation of
such Registration Rights Indemnified Party and the Registration Rights
Indemnifying Party by the same counsel would be inappropriate under applicable
standards of professional conduct or (B) there may be one or more legal defenses
available to the Registration Rights Indemnified Party which are different from
or additional to those available to the Registration Rights Indemnifying Party.
No Registration Rights Indemnifying Party shall, without the prior written
consent of each Registration Rights Indemnified Party, settle, compromise or
consent to the entry of any judgment unless such settlement, compromise or
consent includes an unconditional release of the Registration Rights Indemnified
Party from all liability relating thereto. In either of such cases the
Registration Rights Indemnifying Party shall not have the right to assume the
defense of such action on behalf of such Registration Rights Indemnified Party.
No Registration Rights Indemnifying Party shall be liable for any settlement
entered into without its written consent, which consent shall not be
unreasonably withheld, conditioned or delayed.
7.4. CONTRIBUTION. If the indemnification provided for in this
Section 7 from the Indemnifying Party is unavailable to a Registration Rights
Indemnified Party hereunder in respect of any losses, claims, damages,
liabilities or expenses referred to therein, then the Indemnifying Party, in
lieu of indemnifying such Registration Rights Indemnified Party, shall
contribute to the amount paid or payable by such Registration Rights Indemnified
Party as a result of such losses, claims, damages, liabilities or expenses in
such proportion as is appropriate to reflect the relative fault of the
Registration Rights Indemnifying Party and Registration Rights Indemnified Party
in connection with the actions which resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable considerations.
The relative faults of such Registration Rights Indemnifying Party and
Registration Rights Indemnified Party shall be determined by reference to, among
other things, whether any action in question, including any untrue or alleged
untrue statement of a material fact or omission or alleged omission to state a
material fact, has been made by, or relates to information supplied by, such
Registration Rights Indemnifying Party or Registration Rights Indemnified Party,
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such action. The amount paid or payable by a
party as a result of the losses, claims, damages, liabilities and expenses
referred to above shall be deemed to include, subject to the limitations set
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forth in Sections 7.1, 7.2 and 7.3, any legal or other fees, charges or expenses
reasonably incurred by such party in connection with any investigation or
proceeding.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 7.4 were determined by pro rata allocation
or by any other method of allocation which does not take account of the
equitable considerations referred to in the immediately preceding paragraph. No
person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Act) shall be entitled to contribution from any person.
8. RULE 144. The Company covenants that it shall file any reports
required to be filed by it under the Exchange Act and the rules and regulations
adopted by the Commission thereunder; and that it shall take such further action
as each holder of Registrable Securities may reasonably request (including
providing any information necessary to comply with Rules 144 and 144A under the
Securities Act), all to the extent required from time to time to enable such
holder to sell Registrable Securities without registration under the Act within
the limitation of the exemptions provided by (a) Rule 144 or Rule 144A under the
Act, as such rules may be amended from time to time, or (b) any similar rules or
regulations hereafter adopted by the SEC. The Company shall, upon the request
of any holder of Registrable Securities, deliver to such holder a written
statement as to whether it has complied with such requirements.
9. MISCELLANEOUS.
9.1. PERFORMANCE; WAIVER. The provisions of this Agreement may be
modified or amended, and waivers and consents to the performance and observance
of the terms hereof may be given by written instrument executed and delivered by
the Company and the Purchasers. The failure at any time to require performance
of any provision hereof shall in no way affect the full right to require such
performance at any time thereafter (unless performance thereof has been waived
in accordance with the terms hereof for all purposes and at all times by the
parties to whom the benefit of such performance is to be rendered). The waiver
by any party to this Agreement of a breach of any provision hereof shall not be
taken or held to be a waiver of any succeeding breach of such provision of any
other provision or as a waiver of the provision itself.
9.2. SUCCESSORS AND ASSIGNS. This Agreement shall inure to the
benefit of and be binding upon the successors and permitted assigns of the
parties hereto. The Company may not assign any of its rights under this
Agreement, except to a successor-in-interest to the Company, without the written
consent of the Affiliates. No Person other than the parties hereto and their
successors and permitted assigns is intended to be a beneficiary of this
Agreement.
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9.3. NOTICES. All notices or other communications given or made
hereunder shall be validly given or made if in writing and delivered by
facsimile transmission or in Person at, mailed by registered or certified mail,
return receipt requested, postage prepaid, or sent by a reputable overnight
courier to, the following addresses (and shall be deemed effective at the time
of receipt thereof).
If to the Company:
Platinum Entertainment, Inc.
00000 Xxxxxxxxxxx Xxxx, Xxxxx 0000
Xxxxxxx Xxxxx, Xxxxxxxx 00000
Telecopy: (000) 000-0000
Attention: Chief Executive Officer
with a copies to:
Katten, Muchin & Zavis
000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx
Telecopy: (000) 000-0000
Attention: Xxxxxxx X. Xxxxx, Esq.
If to the holders of Registrable Securities, to the addresses set
forth on on the stock record books of the Company.
or to such other address as the party to whom notice is to be given may have
previously furnished notice in writing to the other in the manner set forth
above.
9.4. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS
MADE AND PERFORMED ENTIRELY WITHIN SUCH STATE. EACH OF THE PARTIES HERETO
AGREES TO SUBMIT TO THE JURISDICTION OF THE STATE AND FEDERAL COURTS IN THE
STATE OF NEW YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT.
9.5. SEVERABILITY. If any term, provision, covenant or restriction of
this Agreement is held by a court of competent jurisdiction to be invalid, void
or unenforceable, each of the Company and the Affiliates directs that such court
interpret and apply the remainder of this Agreement in the manner that it
determines most closely effectuates their intent in entering into this
Agreement, and in doing so particularly take
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into account the relative importance of the term, provision, covenant or
restriction being held invalid, void or unenforceable.
9.6. HEADINGS; INTERPRETATION. The index and section headings herein
are for convenience only and shall not affect the construction hereof.
References to sections means sections of this Agreement unless the context
otherwise requires. References to herein or hereof mean this Agreement.
9.7. ENTIRE AGREEMENT. This Agreement embodies the entire agreement
between the parties relating to the subject matter hereof and supersedes any and
all prior oral or written agreements, representations or warranties, contracts,
understandings, correspondence, conversations, and memoranda, whether written or
oral, between the Company and the Affiliates, or between or among any agents,
representatives, parents, predecessors in interest or successors in interest,
with respect to the subject matter hereof.
9.8. NO THIRD PARTY RIGHTS. Except for the indemnified parties, this
Agreement is intended solely for the benefit of the parties hereto and is not
intended to confer any benefits upon, or create any rights in favor of, any
Person (including, without limitation, any stockholder or debtholder of the
Company) other than the parties hereto.
9.9. REMEDIES FOR BREACH. The parties agree that in addition to any
other rights or remedies which may be available at law or equity, the parties
shall be entitled to seek specific performance of any obligation of any party
hereto.
14
9.10. COUNTERPARTS. This Agreement may be executed in counterparts,
each of which shall be deemed to be an original and both of which together shall
be deemed to be one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement.
PLATINUM ENTERTAINMENT, INC.
By: /s/ Xxxxxx Xxxxxx
----------------------------------
Name: Xxxxxx Xxxxxx
Title: Chief Executive Officer
PLATINUM VENTURE PARTNERS I, .L.P.
By: /s/ Xxxxxx Xxxxxx
----------------------------------
General Partner
By:
-----------------------------
Name:
Title:
PLATINUM VENTURE PARTNERS II, .L.P.
By: /s/ Xxxxxx Xxxxxx
----------------------------------
General Partner
By:
-----------------------------
Name:
Title:
