EXHIBIT 8
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
Amended and Restated Registration Rights Agreement dated as of July 27,
1996, by and among ValueVision International, Inc., a Minnesota corporation (the
"Company"), Xxxxxxxxxx Xxxx Direct, L.P., a Delaware limited partnership
("MWD"), and Xxxxxxxxxx Xxxx & Co., Incorporated, an Illinois corporation
("MW").
R E C I T A L S
A. Pursuant to a Securities Purchase Agreement, dated as of March 13,
1995, by and between the Company and MW (the "Securities Purchase Agreement"),
the Company agreed to issue and sell, and MW agreed to purchase, 1,280,000
shares (the "Shares") of Common Stock of the Company, under the terms and
subject to the conditions set forth therein.
B. Pursuant to the Securities Purchase Agreement, the Company also
agreed to issue and sell, and MW agreed to purchase, Existing Warrants (as
herein defined) to purchase an aggregate of 25,000,000 shares of the Common
Stock of the Company, subject to adjustment, under the terms and subject to the
conditions set forth therein. Existing Warrants of Series A and Series B, both
inclusive (the "Series A-B Warrants"), have vested, and Existing Warrants of
Series C through Series O, all inclusive (the "Series C-O Warrants") have not
vested.
C. Pursuant to the Securities Purchase Agreement, the Company agreed to
xxxxx XX certain registration rights with respect to the Shares and the shares
issued upon exercise of the Existing Warrants and executed that certain
Registration Rights Agreement, dated as of August 8, 1995 (the "Original
Registration Rights Agreement").
D. Pursuant to a certain Restructuring Agreement, dated as of even date
herewith, between the Company and MW (the "Restructuring Agreement"), the
Company and MW have agreed to exchange the Series C-O Warrants, to amend and
restate that certain Operating Agreement and that certain Servicemark License
Agreement, and to amend that certain Credit Card Receivables Sale and Purchase
Agreement, all dated as of March 13, 1995, and to amend and restate that certain
Warrant Agreement, dated August 8, 1995 and this Agreement, all in consideration
of the issuance by VVI of new Series P Warrants ("New Warrants") to purchase an
aggregate of 1,484,462 shares of Common Stock.
E. MWD is a wholly owned subsidiary of MW. Pursuant to an Asset
Purchase Agreement, dated as of August 1, 1996, between the Company's
subsidiary, ValueVision Direct Marketing Company, Inc., and MWD (the "Asset
Purchase Agreement"), ValueVision Direct Marketing Company, Inc. has agreed to
deliver to MWD, as consideration for the sale of all of MWD's assets, New
Warrants to purchase an aggregate of 1,484,993 shares of Common Stock.
F. In connection with the cancellation of the Series C-O Warrants and
the issuance of the New Warrants, the parties desire to amend and restate the
Original Registration Rights Agreement as set forth herein.
A G R E E M E N T S
NOW, THEREFORE, in consideration of the premises set forth herein and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Company, MWD and MW agree that the Original
Registration Rights Agreement is amended and restated in its entirety to read as
follows:
30. Definition of Terms. As used in this Registration Rights
Agreement, the following capitalized terms shall have the
following respective meanings:
(a) Asset Purchase Agreement: See Recital E.
(b) Business Day: A day other than a Saturday, Sunday or other
day on which banks in the State of Minnesota are authorized by law to
remain closed.
(c) Closing Date: August 8, 1995.
(d) Common Stock: Common Stock, $.01 par value per share, of
the Company.
(e) Company: See the Preamble.
(f) Demand Notice: See Section 3(a).
(g) Demand Registration: See Section 3(a).
(h) Demand Registration Rights: See Section 3(a).
(i) Exchange Act: The Securities Exchange Act of 1934, as
amended.
(j) Exercise Price: The exercise price of a New Warrant or a
Series A-B Warrant as indicated in, and as may be adjusted by, the
Warrant Agreement.
(k) Expiration Date: 5:00 P.M., Minneapolis, Minnesota time,
on August 7, 2003, or if such day is not a Business Day, the next
succeeding day which is a Business Day.
(l) Existing Warrants: Warrants issued pursuant to the
Securities Purchase Agreement.
(m) Inspectors: See Section 5(g).
(n) MW: See the Preamble.
(o) MWD: See the Preamble.
(p) NASD: National Association of Securities Dealers, Inc. and
NASDAQ: NASD Automated Quotation System.
(q) New Warrants: Series P warrants issued pursuant to the
Restructuring Agreement and the Asset Purchase Agreement.
(r) Outstanding Registration Rights Agreement: The
Representative's Warrant Agreement dated as of November 15, 1993 by and
between the Company and Xxxxxx Xxxxxx Xxxxxxxx & Co., Inc.
(s) Person: An individual, partnership, joint venture,
corporation, trust, unincorporated organization or government or any
department or agency thereof.
(t) Piggyback Notice: See Section 2(a).
(u) Piggyback Registration: See Section 2(a).
(v) Piggyback Registration Rights: See Section 2(a).
(w) Prospectus: Any prospectus included in any Registration
Statement, as amended or supplemented by any prospectus supplement,
with respect to the terms of the offering of any portion of the
Registrable Securities covered by such Registration Statement and all
other amendments and supplements to the Prospectus, including
post-effective amendments and all material incorporated by reference in
such Prospectus.
(x) Public Offering: A public offering of any of the Company's
equity or debt securities pursuant to a registration statement under
the Securities Act.
(y) Records: See Section 5(g).
(z) Registration Expenses: Any and all expenses incurred in
connection with any registration or action incident to performance of
or compliance by the Company with this Agreement, including, without
limitation, (i) all SEC, national securities exchange and NASD
registration and filing fees; all listing fees and all transfer agent
fees; (ii) all fees and expenses of complying with state securities or
blue sky laws; (iii) all printing, mailing, messenger and delivery
expenses and (iv) all fees and disbursements of counsel for the Company
and of its accountants, including the expenses of any special audits
and/or "cold comfort" letters required by or incident to such
performance and compliance, but excluding underwriting discounts and
commissions, brokerage fees and transfer taxes, if any, and fees of
counsel or accountants retained by MW.
(aa) Registration Notice: See Section 2(a).
(bb) Registration Period: The period of time from the second
anniversary of the Closing Date to the Expiration Date except as
provided in Sections 3(a), 3(b) and 5.
(cc) Registrable Securities: Any Shares or Warrant Shares
issued to MW or MWD, including those which may thereafter be issued by
the Company in respect of any such securities by means of any stock
splits, stock dividends, recapitalizations, reclassifications or the
like, and as adjusted pursuant to the Warrant Agreement.
(dd) Registration Statement: Any registration statement of the
Company filed or to be filed with the SEC which covers any of the
Registrable Securities pursuant to the provisions of this Agreement,
including all amendments (including post-effective amendments) and
supplements thereto, all exhibits thereto and all material incorporated
therein by reference.
(ee) SEC: The Securities and Exchange Commission or any other
federal agency at the time administering the Securities Act or the
Exchange Act.
(ff) Securities Act: The Securities Act of 1933, as amended.
(gg) Securities Purchase Agreement: See Recital A.
(hh) Series A-B Warrants: See Recital B.
(ii) Series C-O Warrants: See Recital B.
(jj) Shares: See Recital A.
(kk) Warrant Agreement: That certain Amended and Restated
Warrant Agreement, dated as of July 27, 1996, among the Company, MW and
MWD.
(ll) Warrant Shares: All shares of Common Stock issued or
issuable upon exercise of any or all Series A-B Warrants and New
Warrants.
1. Piggyback Registration.
(a) Right to Include Registrable Securities. If at any time
during the Registration Period, the Company proposes to register any of
its securities under the Securities Act on any form for the
registration of securities under such Act, whether or not for its own
account (other than by a registration statement on Form X-0, X-0 or
other successor form), it shall as expeditiously as possible give
written notice (a "Registration Notice") to the holders of Registrable
Securities of its intention to do so. Upon the written request of any
such holder (a "Piggyback Notice", which notice shall specify the
Registrable Securities intended to be registered) made within 20 days
after receipt of a Registration Notice, the Company shall include in
the Registration Statement the Registrable Securities (a "Piggyback
Registration") which the Company has been so requested by such holder
to register, subject to the limitations provided in the Existing
Registration Rights Agreements. Such holder's rights to register shares
hereunder are referred to hereinafter as "Piggyback Registration
Rights."
(b) Withdrawal of Piggyback Registration by Company. If, at
any time after giving a Registration Notice but prior to the effective
date of the related Registration Statement, the Company shall determine
for any reason not to register such securities, the Company shall give
written notice of such determination to the holders of the Registrable
Securities sought to be registered and, thereupon, shall be relieved of
its obligation to register any Registrable Securities in connection
with such Piggyback Registration. All best efforts obligations of the
Company shall cease if the Company determines to terminate prior to
such effective date any registration where Registrable Securities are
being registered pursuant to this Section 2.
(c) Piggyback Registration of Underwritten Public Offerings.
If a Piggyback Registration involves an offering by or through
underwriters, then, (i) the holders of the Registrable Securities
sought to be registered must agree to sell their Registrable Securities
included in the Company's Registration Statement to the underwriters
selected by the Company on the same terms and conditions as apply to
other selling shareholders and (ii) such holders may elect in writing,
not later than five Business Days prior to the effectiveness of the
Registration Statement filed in connection with such registration, not
to have their Registrable Securities so included in connection with
such registration.
(d) Payment of Registration Expenses for Piggyback
Registration. The Company shall pay all Registration Expenses in
connection with each registration of Registrable Securities requested
pursuant to a Piggyback Registration Right contained in this Section 2.
2. Demand Registration.
(a) Request for Registration. Upon the written request (a
"Demand Notice") of a holder of Registrable Securities at any time
during the Registration Period, and subject to the limitations provided
in the Existing Registration Rights Agreements, the Company shall, as
soon as practicable, use its best efforts to file a Registration
Statement (a "Demand Registration") with respect to all Registrable
Securities that such holder requested be registered in the Demand
Notice. Prior to the filing of such Demand Registration, the Company
shall give written notice to all other holders of Registrable
Securities of the Demand Registration. Upon the written request of any
such holder made within 20 days after receipt of such notice, the
Company shall include in the Demand Registration the Registrable
Securities that such holder requested be registered, subject to the
limitations provided in the Existing Registration Rights Agreements.
The rights of holders of Registrable Securities to register shares
hereunder are referred to hereinafter as "Demand Registration Rights."
The holders of Registrable Securities may in the aggregate exercise up
to two Demand Registration Rights during the Registration Period. The
Company shall use its best efforts to obtain the effectiveness of the
Registration Statement and to take all other action necessary under any
Federal or state law or regulation to permit such Registered Securities
to be sold or otherwise disposed of, and the Company shall maintain
such compliance with each such Federal and state law and regulation for
the period necessary for the holder of Registrable Securities to effect
the proposed sale or other disposition (but in no event for more than
120 days). The Company shall be entitled to have the Demand
Registration prepared, filed and caused to become effective pursuant to
Form S-3 or any successor form promulgated by the SEC ("Form S-3")
pursuant to this Section 3(a), so long as it is eligible to register
its securities pursuant to Form S-3 and Form S-3 is available for the
distribution contemplated by the holder of Registrable Securities.
(b) Deferment of Demand Registration by Company. The Company
shall be entitled to defer a Demand Registration for a period of up to
120 days if and to the extent that its Board of Directors shall
determine in good faith that such registration would interfere with a
pending material corporate transaction which has been approved by the
Board of Directors of the Company. In such event, the Registration
Period shall be extended by the amount of such delay and the related
Demand Registration Right would be deemed not to be exercised.
(c) Payment of Registration Expenses for Demand Registration.
Except as provided below, holders of Registrable Securities sought to
be registered shall pay the first $75,000 or Registration Expenses,
plus 50% of all remaining Registration Expenses of a Demand
Registration and the Company shall pay the balance of such Registration
Expenses; and holders of such Registrable Securities and the Company
shall pay the fees and expenses of each of their respective legal
counsel. A registration will not count as a Demand Registration until
it has become effective, unless the holders demanding such registration
withdraw the Registrable Securities, in which case such demand will
count as a Demand Registration unless the holders of such Registrable
Securities agree to pay all Registration Expenses.
(d) Registration of Additional Securities. Except to the
extent required by the Outstanding Registration Rights Agreements,
neither the Company nor any other party may include in any Registration
Statement filed pursuant to a Demand Registration any additional shares
of Common Stock for registration for sale by the Company or any other
holder of securities. The Company shall not grant any rights
inconsistent with this Section 3(d).
(e) Priority in Demand Registration. If a Demand Registration
involves an offering by or through an underwriter or underwriters, and
the managing underwriter or underwriters of such offering advise the
Company and the holders of Registrable Securities sought to be
registered pursuant to such Demand Registration in writing that in
their opinion the size of the offering which such holders and all other
persons including the Company intend to make is such that the success
of the offering would be materially and adversely affected by the
inclusion of the Registrable Securities requested to be included, then
the amount of securities to be offered for the account of holders of
Registrable Securities shall be reduced pro rata (according to the
Registrable Securities proposed for registration) to the extent
necessary to reduce the total amount of securities to be included in
such offering to the amount recommended by such managing underwriter or
underwriters; provided that if securities are being offered for the
account of other persons or entities as well as the Company, then with
respect to the Registrable Securities intended to be offered by holders
of Registrable Securities, the proportion by which the amount of such
securities is reduced shall not exceed the proportion by which the
amount of such class of securities intended to be offered by such other
persons or entities is reduced, except to the extent such other persons
are entitled to a lesser reduction under the Existing Registration
Rights Agreements.
3. Company Buy-out of Piggyback Registration or Demand Registration. In
lieu of carrying out its obligations to effect a Piggyback Registration or
Demand Registration of any Registrable Securities pursuant to this Agreement,
the Company may carry out such obligation by offering to purchase and purchasing
such Registrable Securities requested to be registered (a) in the case of
outstanding shares of Common Stock, at the last sale price of the Common Stock
on the day immediately prior to the day the request for registration is made and
(b) in the case of shares not yet purchased under the New Warrants or Series A-B
Warrants at an amount in cash equal to the difference between (i) the last sale
price of the Common Stock on the day immediately prior to the day the request
for registration is made and (b) the Exercise Price in effect on such day.
4. Registration Procedures. Whenever a holder of Registrable Securities
has requested that any Registrable Securities be registered pursuant to either
Section 2 or 3 hereof, the Company will use its best efforts to effect the
registration and the sale of such Registrable Securities in accordance with the
intended method of disposition thereof as quickly as practicable, and in
connection with any such request, the Company will as expeditiously as possible:
(a) prepare and file with the Commission a Registration
Statement on any form for which the Company then qualifies or which
counsel for the Company shall deem appropriate and which form shall be
available for the sale of the Registrable Securities to be registered
thereunder in accordance with the intended method of distribution
thereof, and use its best efforts to cause such filed registration
statement to become effective; provided that before filing a
Registration Statement or Prospectus or any amendments or supplements
thereto, the Company shall furnish to one counsel selected by such
holder copies of all such documents proposed to be filed, which
documents will be subject to the review of such counsel, and that after
the filing of the registration statement, the Company will promptly
notify all holders of Registrable Securities of any stop order issued
or threatened by the SEC and take all reasonable actions 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 of not less than 120 days or such
shorter period which will terminate when all Registrable Securities
covered by such Registration Statement have been sold (but not before
the expiration of the requirement of underwriters and dealers to
deliver Prospectuses in connection with such distribution) and comply
with the provisions of the Securities 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 selling holders thereof set forth in such
Registration Statement;
(c) furnish to each selling holder of Registrable Securities
and to each underwriter, prior to filing the Registration Statement or
Prospectus or any amendment or supplement thereto, if requested, copies
of such Registration Statement as proposed to be filed, and thereafter
furnish to each selling holder of Registrable Securities and such
underwriter 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 selling holder of Registrable Securities or underwriter may
reasonably request in order to facilitate the disposition of the
Registrable Securities owned by each selling holder of Registrable
Securities;
(d) use its best efforts to register or qualify such
Registrable Securities under such other securities or blue sky laws of
such jurisdictions as any selling holder of Registrable Securities or
any managing underwriter reasonably requests and do any and all other
acts and things which may be reasonably necessary or advisable to
enable any selling holder of Registrable Securities or such managing
underwriter to consummate the disposition in such jurisdictions of the
Registrable Securities owned by any selling holder of Registrable
Securities; provided that the Company will not be required to (i)
qualify generally to do business in any jurisdiction where it would not
otherwise be required to qualify but for this clause, (ii) subject
itself to taxation in any such jurisdiction, or (iii) consent to
general service of process in any such jurisdiction;
(e) use its best 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 or
its subsidiaries to enable any selling holder of Registrable Securities
and any managing underwriters to consummate the disposition of such
Registrable Securities;
(f) immediately notify each selling holder of Registrable
Securities, at any time when a Prospectus relating thereto is required
to be delivered under the Securities Act, of 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 made therein, in light of the circumstances under
which they were made, not misleading, and the Company will promptly
prepare a supplement or amendment to such Prospectus so that, as
thereafter delivered to the purchasers of such Registrable Securities,
such Prospectus will 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;
(g) make available for inspection by each selling holder of
Registrable Securities, any underwriter participating in any
disposition pursuant to such Registration Statement, and any attorney,
accountant or other agent retained by any selling holder of Registrable
Securities or underwriter (collectively, the "Inspectors"), all
financial and other records, pertinent corporate documents and
properties of the Company (collectively, the "Records") as shall be
reasonably necessary to enable them to exercise their due diligence
responsibilities, and cause the Company's officers, directors and
employees to supply all information reasonably requested by any such
Inspector in connection with such Registration Statement. Records which
the Company determines, in good faith, to be confidential and which it
notifies the Inspectors are confidential shall not be disclosed by the
Inspectors unless (i) the disclosure of such Records is necessary in
the opinion of the underwriter's counsel, if any, or counsel to selling
holders of Registrable Securities to avoid or correct a material
misstatement or omission in the Registration Statement, or (ii) the
release of such Records is ordered pursuant to a subpoena or other
order from a court of competent jurisdiction or governmental agency, or
(iii) the information in such Records has been made generally available
to the public. Each selling holder of Registrable Securities agrees
that it will, upon learning that disclosure of such Records is sought
in a court of competent jurisdiction or by a governmental agency, give
notice to the Company and allow the Company, at the Company's expense,
to undertake appropriate action to prevent disclosure of the Records
deemed confidential;
(h) for purposes of a Demand Registration only, furnish to
each selling holder of Registrable Securities and to each underwriter,
if any, (x) an opinion or opinions of counsel to the Company and (y) a
comfort letter or comfort letters from the Company's independent public
accountants, each in customary form and covering such matters of the
type customarily covered by opinions or by comfort letters, as the case
may be, as any selling holder of Registrable Securities or the managing
underwriter reasonably requests;
(i) otherwise use its best efforts to comply with all
applicable rules and regulations of the SEC, and make generally
available to its security holders, as soon as reasonably practicable,
an earnings statement covering a period of twelve months, beginning
within three months after the effective date of the registration
statement, which earnings statement shall satisfy the provisions of
Section 11(a) of the Act and Rule 158 thereunder;
(j) use its best efforts to cause all such Registrable
Securities to be listed on each securities exchange on which similar
securities issued by the Company are then listed; and
(k) cooperate with the selling holders of Registrable
Securities, the underwriter or underwriters (or broker/dealer involved
in the distribution), if any, and their respective counsel in
connection with any filings required to be made with the National
Association of Securities Dealers, Inc. (the "NASD").
If any Demand Registration is requested to be in the form of an
underwritten offering, the selection of the managing underwriter shall be
subject to the Company's consent, which consent shall not be unreasonably
withheld. If requested by the underwriters for any underwritten offering, the
Company shall enter into an underwriting agreement in customary form with such
underwriters for such offering, but subject to the Company's reasonable
approval. The selling holders of the Registrable Securities shall be a party to
such underwriting agreement. All fees and expenses (other than Registration
Expenses otherwise required to be paid) of any managing underwriter, any
co-manager or any independent underwriter shall be paid for by such underwriters
or by such selling holders.
The Company may require the selling holders of Registrable Securities
to furnish to the Company such information regarding the distribution of such
Registrable Securities as the Company may from time to time reasonably request
and such other information as may be legally required or reasonably requested in
connection with such registration.
Each selling 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(f) hereof, such selling holder will forthwith discontinue
disposition of such 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(f) hereof, and, if so directed by the Company, such holder will 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 current at the time of receipt of such notice. In the event 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 the period referred to in Section 5(b) hereof) by the
number of days during the period from and including the date of the giving of
such notice pursuant to Section 5(f) hereof to and including the date when each
seller of Registrable Securities covered by such Registration Statement shall
have received the copies of the supplemented or amended Prospectus contemplated
by Section 5(f) hereof.
Except as otherwise provided in this Agreement, the Company shall have
sole control in connection with the preparation, filing, withdrawal, amendment
or supplementing of each Registration Statement, the selection of underwriters,
and the distribution of any preliminary prospectus included in the Registration
Statement, and may include within the coverage thereof additional shares of
Common Stock or other securities for its own account or for the account of one
or more of its other security holders.
5. Indemnification.
(a) Indemnification by Company. In connection with each
Registration Statement relating to disposition of Registrable
Securities, the Company shall indemnify and hold harmless each selling
holder of Registrable Securities and each underwriter of Registrable
Securities and each Person, if any, who controls any selling holder of
Registrable Securities or underwriter (within the meaning of Section 15
of the Securities Act or Section 20 of the Exchange Act) against any
and all losses, claims, damages and liabilities, joint or several
(including any reasonable investigation, legal and other expenses
incurred in connection with, and any amount paid in settlement of any
action, suit or proceeding or any claim asserted), to which they, or
any of them, may become subject under the Securities Act, the Exchange
Act or other Federal or state law or regulation, at common law or
otherwise, insofar as such losses, claims, damages or liabilities arise
out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in any Registration Statement,
Prospectus or preliminary prospectus or any amendment thereof or
supplement thereto, or arise out of or are 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;
provided, however, that such indemnity shall not inure to the benefit
of any selling holder of Registrable Securities or underwriter (or any
Person controlling any selling holder of Registrable Securities or
underwriter within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act) on account of any losses, claims,
damages or liabilities arising from the sale of the Registrable
Securities if such untrue statement or omission or alleged untrue
statement or omission was made in such Registration Statement,
Prospectus or preliminary prospectus, or such amendment or supplement,
in reliance upon and in conformity with information furnished in
writing to the Company by such selling holder of Registrable Securities
or underwriter specifically for use therein. The Company shall also
indemnify selling brokers, dealer managers and similar securities
industry professionals participating in the distribution, their
officers and directors and each Person who controls such Persons
(within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act) to the same extent as provided above with respect
to the indemnification of the Holders of Registrable Securities, if
requested. The indemnification obligation imposed on the Company under
this Section 6(a) shall be in addition to any liability which the
Company may otherwise have.
(b) Indemnification by Holder of Registrable Securities. In
connection with each Registration Statement, each selling holder of
Registrable Securities shall indemnify, to the same extent as the
indemnification provided by the Company in Section 6(a), the Company,
its directors and each officer who signs the Registration Statement and
each Person who controls the Company (within the meaning of Section 15
of the Securities Act and Section 20 of the Exchange Act) but only
insofar as such losses, claims, damages and liabilities arise out of or
are based upon any untrue statement or omission or alleged untrue
statement or omission which was made in the Registration Statement, the
Prospectus or preliminary prospectus or any amendment thereof or
supplement thereto, in reliance upon and in conformity with information
furnished in writing by such selling holder of Registrable Securities
to the Company specifically for use therein. In no event shall the
liability of any selling holder of Registrable Securities hereunder be
greater in amount than the dollar amount of the net proceeds received
by any selling holder of Registrable Securities from the sale of the
Registrable Securities giving rise to such indemnification obligation.
The Company shall be entitled to receive indemnities from underwriters
participating in the distribution, in the underwriting agreement
pursuant to which such sales are made, with respect to information so
furnished in writing by such Persons specifically for inclusion in any
Prospectus, Registration Statement or preliminary prospectus or any
amendment thereof or supplement thereto.
(c) Conduct of Indemnification Procedure. Any party that
proposes to assert the right to be indemnified hereunder will, promptly
after receipt of notice of commencement of any action, suit or
proceeding against such party in respect of which a claim is to be made
against an indemnifying party or parties under this Section, notify
each such indemnifying party of the commencement of such action, suit
or proceeding, enclosing a copy of all papers served. No
indemnification provided for in this Section shall be available to any
party who shall fail to give notice as provided in this Section 6 if
the party to whom notice was not given was unaware of the proceeding to
which such notice would have related and was prejudiced by the failure
to give such notice but the omission so to notify such indemnifying
party of any such action, suit or proceeding shall not relieve it from
any liability that it may have to any indemnified party for
contribution or otherwise than under this Section. In case any such
action, suit or proceeding shall be brought against any indemnified
party and it shall notify the indemnifying party of the commencement
thereof, the indemnifying party shall be entitled to participate in,
and, to the extent that it shall wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof,
with counsel satisfactory to such indemnified party, and after notice
from the indemnifying party to such indemnified party of its election
so to assume the defense thereof and the approval by the indemnifying
party to such indemnified party of its election so to assume the
defense thereof and the approval by the indemnified party of such
counsel, the indemnifying party shall not be liable to such indemnified
party for any legal or other expenses, except as provided below and
except for the reasonable costs of investigation subsequently incurred
by such indemnified party in connection with the defense thereof. The
indemnified party shall have the right to employ its own counsel, but
the fees and expenses of such counsel shall be at the expense of such
indemnified party unless (i) the employment of counsel by such
indemnified party has been authorized in writing by the indemnifying
parties, (ii) the indemnified party shall have reasonably concluded
that there may be a conflict of interest between the indemnifying
parties and the indemnified party in the conduct of the defense of such
action (in which case the indemnifying parties shall not have the right
to direct the defense of such action on behalf of the indemnified
party) or (iii) the indemnifying parties shall not have employed
counsel to assume the defense of such action within a reasonable time
after notice of the commencement thereof, in each of which cases the
fees and expenses of counsel shall be at the expense of the
indemnifying parties. An indemnifying party shall not be liable for any
settlement of any action, suit, proceeding or claim effected without
its written consent, but if settled with its written consent, or if
there is a final judgment for the plaintiff in any such action or
proceeding, the indemnifying party shall indemnify and hold harmless
such indemnified parties from and against any loss or liability (to the
extent stated above) by reason of such settlement or judgment. No
indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened
proceeding in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional
release of such indemnified party from all liability on claims that are
the subject matter of such proceeding.
(d) Contribution. If the indemnification provided for in this
Section 6 from the indemnifying party is unavailable to an indemnified
party hereunder in respect of any losses, claims, damages, liabilities
or expenses referred to herein, then the indemnifying party, in lieu of
indemnifying such indemnified party shall contribute to the amount paid
or payable by such 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 indemnifying party and
indemnified parties 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 fault of such
indemnifying party and indemnified parties 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 indemnifying party or
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 forth in Section 6(c), any
legal or other fees 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 6(d) 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 this Section 6(d). No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any Person
who was not guilty of such fraudulent misrepresentation.
(e) Priority of Indemnification. If indemnification is
available under this Section 6, the indemnifying parties shall
indemnify each indemnified party to the full extent provided in
subparagraphs (a) and (b) of this paragraph without regard to the
relative fault of said indemnifying party or indemnified party or any
other equitable consideration provided for in this Section 6.
6. Assignment. The Piggyback Rights, Demand Registration Rights and any
other rights of MW and MWD pursuant to this Agreement shall run in favor of any
subsequent holder of Registrable Securities.
7. Notices. All notices, requests, consents and other communications
required or permitted hereunder shall be in writing and shall be delivered, or
mailed first-class postage prepaid, registered or certified mail,
(i) if to MW, addressed to:
XXXXXXXXXX XXXX & CO, INCORPORATED
Xxxxxxxxxx Xxxx Plaza
000 Xxxx Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: General Counsel
(ii) if to MWD, addressed to:
XXXXXXXXXX XXXX DIRECT, L.P.
Xxxxxxxxxxx Xxxxx, Xxxxx 000
000 Xxxxx Xxxxxxx 000
Xx. Xxxxx Xxxx, Xxxxxxxxx 00000
Attention: Chief Executive Officer
in case of either (i) or (ii), with a copy to:
Altheimer & Xxxx
00 Xxxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxxxx
Telecopier: (000) 000-0000
(iii) if to the Company, addressed to:
VALUEVISION INTERNATIONAL, INC.
0000 Xxxxx Xxx Xxxx
Xxxxxxxxxxx, XX 00000-0000
Attention: Chief Executive Officer
with a copy to:
Maslon, Edelman, Xxxxxx & Brand, a
professional limited liability
partnership
0000 Xxxxxxx Xxxxxx
00 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: Xxxxxxx X. Xxxxx
and such notices and other communications shall for all purposes of this
Agreement be treated as being effective or having been given if delivered
personally, or, if sent by mail, when received.
8. Headings. The headings of the Sections and paragraphs of this
Agreement have been inserted for convenience of reference only and do not
constitute part of this Agreement.
9. Choice of Law. It is the intention of the parties that the laws of
Minnesota shall govern the validity of this Agreement, the construction of its
terms and the interpretation of the rights and duties of the parties.
10. Counterparts. This Agreement may be executed concurrently in two or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
11. Invalid Provisions. If any provision of this Agreement is held to
be illegal, invalid or unenforceable under present or future law, such provision
shall be fully severable, and this Agreement shall be construed and enforced as
if such illegal, invalid or unenforceable provision had never comprised a part
of this Agreement, and the remaining provisions of this Agreement shall remain
in full force and effect and shall not be affected by the illegal, invalid or
unenforceable provision or its severance from this Agreement.
12. IN WITNESS WHEREOF, the parties hereto have executed this agreement
as of the date first above written.
VALUEVISION INTERNATIONAL, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
-------------------------------------
Xxxxxx X. Xxxxxxxx
Its Chief Executive Officer
XXXXXXXXXX XXXX & CO., INCORPORATED
By: /s/ Xxxx Xxxxxxx
-------------------------------------
Executive Vice President
XXXXXXXXXX XXXX DIRECT, L.P.
By: MW Direct General, Inc., the
general partner
By: /s/ Xxxx Xxxxxxx
---------------------------------
Its Treasurer
