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Exhibit 3.5
REGISTRATION RIGHTS AGREEMENT
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This Registration Rights Agreement (the "Agreement"), dated as of the 22nd
day of June 1997 (the "Effective Date"), among @ Entertainment, Inc., a Delaware
corporation (the "Company"), Polish Investments Holding L.P., a Delaware limited
partnership ("PIHLP"), ECO Holdings III Limited Partnership, a Delaware limited
partnership ("ECO"), Xxxxx X. Xxxxxxxx, an individual resident of the State of
Connecticut ("RMF"), Xxxxxx LLC., a Connecticut limited liability company
("Xxxxxx"), THE AESOP Fund, L.P., a Delaware limited partnership ("AESOP"), and
The Xxxxxx Xxxx Xxxxx Marital Trust, a Connecticut Trust ("CACMT"). PIHLP, ECO,
RMF, Xxxxxx, AESOP and CACMT shall hereinafter be referred to as the
"Shareholders."
W I T N E S S E T H:
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WHEREAS, the Company and the Shareholders are on this date entering into a
Contribution Agreement to which this Agreement is an Exhibit, whereby the
Shareholders will exchange certain of their shares of capital stock of Poland
Communications, Inc. ("PCI") for capital stock of the Company in a tax-free
reorganization pursuant to Section 351 of the Internal Revenue Code of 1986, as
amended (the "Code");
WHEREAS, the Shareholders constitute all of the shareholders of the
Company and on this date are entering into that certain Shareholders Agreement
(the "Shareholders Agreement"), whereby the parties will agree, among other
things, to the terms upon which the Company will conduct its activities and
upon which the relations between the shareholders of the Company will be
regulated; and
WHEREAS, in order to induce the Shareholders to enter into and perform the
Contribution Agreement and the Shareholders Agreement, the Company has agreed
to provide the Shareholders with certain rights in respect of the registration
of its common stock, par value one cent ($0.01) per share ("Common Stock").
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NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Company and the Shareholders agree as follows:
1. Definitions. As used in this Agreement, the following terms shall have
the respective meanings set forth below (such meanings to be equally applicable
to both the singular and plural forms of the terms defined):
"Demand Shareholder" means PIHLP or ECO or, if used in the plural form,
means PIHLP and ECO, and permitted assignees of same under Section 5(g).
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Following Shareholder" means RMF, Xxxxxx, AESOP or CACMT or, if used in
the plural form, means RMF, Xxxxxx, AESOP and CACMT or any two of them.
"National Securities Exchange" means the New York Stock Exchange,
American Stock Exchange, National Association of Securities Dealers Automated
Quotation System, or National Market System of the National Association of
Securities Dealers, as selected by the Company, and reasonably acceptable to the
Demand Shareholder.
"Person" shall mean and include any individual, partnership, joint
venture, corporation, trust, unincorporated organization or association or any
other entity or association of any kind and any authority, federal, state, local
or foreign government, any political subdivision of any thereof and any court,
panel, judge, board, bureau, commission, agency or other entity or body
exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to any government.
"Registrable Shares" means (i) shares of Common Stock held by any of the
Shareholders on the date hereof or acquired thereafter (including any shares of
Common Stock issuable upon conversion of Series B Preferred), and (ii) any
Common Stock issued in respect of such shares including, without limitation,
upon any stock split, stock dividend, recapitalization or as a distribution;
provided however, that Registrable Shares shall not include any shares of Common
Stock which have been sold pursuant to registration under the Securities Act.
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"Requesting Shareholder" means either of the Demand Shareholders or any
of the Following Shareholders when the same shall have requested the Company to
register some or all of its/their Registerable Shares pursuant to this
Agreement, and permitted assignees of same under Section 5(g).
"Requesting Shareholder Registration Expenses" means with respect to any
Requesting Shareholder, (i) underwriting discounts and commissions relating to
the sale of such Requesting Shareholder's Registrable Shares, (ii) any transfer
taxes attributable to the sale of such Registrable Shares and (iii) the fees and
disbursements of counsel incurred by such Requesting Shareholder on its own
behalf.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"Shareholders" means PIHLP, ECO, RMF, Xxxxxx, AESOP and CACMT, and
permitted assignees of same under Section 5(g).
"Company Registration Expenses" means any and all expenses incident to
the Company's performance of its obligations under Section 2, other than
Requesting Shareholder Registration Expenses. Company Registration Expenses
shall include but not be limited to (i) registration and filing fees with the
SEC and a National Securities Exchange, (ii) fees and expenses of compliance
with state securities or "blue sky" laws (including reasonable fees and
disbursements of counsel for the underwriters in connection with blue sky
qualifications of Registrable Shares), (iii) printing expenses, (iv) registrars
and transfer agents fees, (v) the fees and expenses incurred in connection with
the listing or quotation of Registrable Shares on any National Securities
Exchange, and (vi) fees and expenses of counsel for the Company and the
independent certified public accountants for the Company.
2. Registration Rights.
(a) Demand Registration. Each Demand Shareholder shall be entitled to
request that the Company effect a registration under the Securities Act
with respect to some or all of the Registrable Shares held by it upon the
following terms and conditions:
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(i) Request for Registration of Registrable Shares. In the
event that the Company shall receive from a Demand Shareholder a
written request that the Company effect a registration under the
Securities Act with respect to all or any part of the Registrable
Shares held by such Demand Shareholder, the Company shall use its
best efforts to effect, at the earliest practicable date, such
registration, qualification and compliance (including, without
limitation, the execution of an undertaking to file post-effective
amendments, the execution and filing of a listing agreement with a
National Securities Exchange, appropriate qualification under
applicable blue sky or other state securities laws, and appropriate
compliance with applicable regulations issued under the Securities
Act) as may be so requested and as would permit or facilitate the
sale and distribution of such Registrable Shares on such National
Securities Exchange as is specified in such request (or if the
Common Stock is then listed on a National Securities Exchange, such
National Securities Exchange); PROVIDED that the Company shall not
be obligated to take any action to effect any such registration,
qualification or compliance pursuant to this Section 2(a): (A) if
the Company has effected a previous registration for any Demand
Shareholder pursuant to this Section 2(a)(i) during the preceding
six-month period; (B) if such Demand Shareholder has previously
effected three such registrations pursuant to this Section 2(a),
which registrations have been declared or ordered effective by the
SEC; (C) during the period starting with the date sixty (60) days
prior to the Company's estimated date of filing of, and ending on
the date ninety (90) days immediately following the effective date
of, any registration statement pertaining to a public offering of
securities of the Company; or (D) prior to the third anniversary of
this Agreement.
Subject to the foregoing clauses (A) through (D) the Company
shall file a registration statement covering such Registrable
Shares so requested to be registered as soon as practicable after
receipt of the request of the Requesting Shareholder. Provided,
however, that the Company may upon giving notice to the Requesting
Shareholder postpone for a reasonable period, not to exceed 90
days, the filing or the effectiveness of such registration
statement, if there exists at the time material non-public
information which, in the reasonable opinion of the Company, if
disclosed would have a material adverse effect on its business.
During such period the
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Company shall continue to use its best efforts to prepare such
registration statement and update such registration statement with
all information necessary to make such registration statement ready
for filing and effectiveness as soon as practicable after the end
of such period.
ECO shall not be required to convert its Series B Preferred
shares into Common Stock prior to exercising its demand
registration rights hereunder with respect to shares of Common
Stock which would result from such conversion.
At no time shall any Demand Shareholder demand that less than
twenty-five percent (25%) of the number of shares of Common Stock
held by such Demand Shareholder on the date of execution of this
Agreement be registered pursuant to this Section 2(a); provided,
however, that if at any time such Demand Shareholder holds less
than twenty-five percent (25%) of the number of shares of Common
Stock held by such Demand Shareholder on the date of execution of
this Agreement, such Demand Shareholder shall have the right to
demand registration of all its Registrable Shares pursuant to this
Section 2(a).
(ii) Underwriting. The right of the Requesting Shareholder
to registration pursuant to this Section 2(a) shall be conditioned
upon the Requesting Shareholder's participation in the underwriting
arrangements required by this Section 2 and the inclusion in the
underwriting of the Registrable Shares requested to be registered.
The Company and the Requesting Shareholder shall enter into an
underwriting agreement in customary form with the managing
underwriter selected for such underwriting by the Company from the
following list: (A) Xxxxxxx, Xxxxx & Co.; (B) Xxxxxx Xxxxxxx & Co.
Incorporated; (C) Xxxxxxx Xxxxx & Co., Inc.; (D) CS First Boston
Inc.; and (E) Xxxxxxxxx, Lufkin and Xxxxxxxx Inc. The Company may
select a managing underwriter for such underwriting not on the
aforementioned list, so long as such managing underwriter is
acceptable to the Requesting Shareholder. Notwithstanding any
other provision of this Section 2(a), if the managing underwriter
determines, in good faith, that marketing factors require a
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limitation of the number of shares to be underwritten, the
managing underwriter may limit the number of Registrable Shares to
be included in the registration and underwriting to the extent such
managing underwriter deems necessary. The Company shall so advise
the Requesting Shareholder, and the number of Registrable Shares
that may be included in the registration and underwriting shall be
limited accordingly.
(iii) Other Holders of Common Stock. Other holders of Common
Stock (including, without limitation, the other Demand Shareholder
and the Following Shareholders) to whom the Company has granted
registration rights may include their respective securities for
their own accounts in such registration if the managing underwriter
so agrees. If the managing underwriter determines, in good faith,
that marketing factors require a limitation of the number of shares
to be underwritten, the managing underwriter may limit the number
of Registrable Shares to be included by all holders of Common Stock
requesting registration hereunder (including the Demand Shareholder
exercising its demand rights under this Section 2(a)) based on the
ratio of the number of shares requested to be registered by each
such holder to the total number of shares requested to be
registered by all such holders.
(iv) Expenses of Requested Registration. The Company shall
pay all Company Registration Expenses incurred in connection with
each registration, qualification or compliance pursuant to Section
2(a), and the Requesting Shareholder will pay its Requesting
Shareholder Registration Expenses.
(b) Piggy-Back Registration.
(i) Registration Initiated by the Company. If the Company
at any time proposes to register an offering of its securities
under the Securities Act other than registrations in connection
with employee stock ownership plans, offerings of debt securities
and shelf registrations made pursuant to Section 2(c), either for
its own account or for the account of a security holder or holders,
and the registration form to be used may be used for the
registration of Registrable Shares, the Company will:
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(A) give written notice thereof to the Demand
Shareholders and the Following Shareholders (which shall
include a list of the jurisdictions in which the Company
intends to attempt to qualify such securities under the
applicable blue sky or other state securities laws) within 10
days of its receipt of a request from a security holder or
holders to register securities or from its decision to effect
a registration of securities for its own account; and
(B) use its best efforts to include in such registration
(and any related qualification under blue sky laws or other
compliance), and in any underwriting involved therein, all
the Registrable Shares specified in a written request by any
Demand Shareholder or Following Shareholder made within 30
days after receipt of such written notice from the Company,
except as set forth in Sections 2(b)(ii) and 2(b)(iii) below;
PROVIDED, that if at any time after giving written notice to
the Demand Shareholders and the Following Shareholders of its
intention to register the Company securities under the
Securities Act (x) the Company in good faith shall determine
not to register such securities, the Company may, at its
election, give written notice of such determination to the
Demand Shareholders and the Following Shareholders and,
thereupon, shall be relieved of its obligation to register
such Registrable Shares pursuant to this Section 2(b) in
connection with such registration, without prejudice,
however, to any rights of either Demand Shareholder to
request that such registration be effected as a registration
under Section 2(a), or (y) the Company shall determine to
delay the registration of such securities, the Company shall
be permitted to delay the registration of such Registrable
Shares for the same period as the delay in registering the
securities to be registered by the Company for its own
account or for others.
(ii) Amount to be Included. In the event that Registrable
Shares are requested to be included in any registration initiated
pursuant to Section 2(b)(i) that contemplates an underwritten
public offering, and if, in the good faith judgment of the managing
underwriting of such public offering, the inclusion of all of the
Registrable Shares covered by such request for
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registration, together with the number or amount of securities
that were intended to be offered by the Company or other security
holders who hold registration rights, would interfere with the
successful marketing of such securities, then, such managing
underwriter may limit the number or amount of securities to be
included in the registration such that (A) the Company shall
include in such registration the securities it intended to offer
and (B) with respect to any additional securities which may be
included in such registration (after inclusion of the securities
referred to in clause (A)), all holders of securities (including
the holders of Registrable Shares) who hold registration rights and
who have requested registration (collectively, "Security Holders")
shall participate in the underwritten public offering pro rata
based upon the ratio of the number of shares requested to be
registered by each such Security Holder to the total number of
shares requested to be registered by all such Security Holders.
(iii) Underwriting. If the registration of which the Company
gives notice is for a registered public offering involving an
underwriting, the Company shall so advise the Demand Shareholders
and the Following Shareholders as a part of the written notice
given pursuant to Section 2(b)(i)(A). In such event, the right of
each Requesting Shareholder to registration pursuant to this
Section 2(b) shall be conditioned upon its participation in such
underwriting and the inclusion of the Registrable Shares in the
underwriting to the extent provided herein. The Requesting
Shareholder shall (together with the Company and the other holders
(if any) distributing their securities through such underwriting)
enter into an underwriting agreement in customary form with the
underwriter or underwriters selected for such underwriting by the
Company from the following list: (A) Xxxxxxx, Sachs & Co.,; (B)
Xxxxxx Xxxxxxx & Co. Incorporated; (C) Xxxxxxx Xxxxx & Co.; (D) CS
First Boston; and (E) Xxxxxxxxx, Lufkin & Xxxxxxxx Inc. The
Company may select a managing underwriter for such underwriting not
on the aforementioned list, so long as such managing underwriter is
acceptable to the Demand Shareholders participating in such
offering. If the Requesting Shareholder disapproves of the terms
of any such underwriting, it may elect to withdraw therefrom by
written notice to the Company and the underwriter. Any Registrable
Shares
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excluded or withdrawn from such underwriting shall be
withdrawn from such registration.
(iv) Expenses of Registration. The Company shall bear all
Company Registration Expenses incurred in connection with each
registration, qualification or compliance pursuant to Section 2(b),
and each Requesting Shareholder shall pay its own Requesting
Shareholder Registration Expenses.
(c) Shelf Registration.
(i) Registration following March 29, 2001. In the event that
the Company shall receive from a Demand Shareholder a written
request that the Company effect a registration under the Securities
Act with respect to all of the Registrable Shares pursuant to this
Section 2(c). The Company will use its best efforts to effect, at
the earliest practicable date, a shelf registration statement on an
appropriate form pursuant to Rule 415 (or any successor provision
then in force) under the Securities Act with respect to such
Registrable Shares; PROVIDED, HOWEVER, that the Company shall not be
obligated to take any such action to effect any such registration
pursuant to this SECTION 2(c): (A) if the Company has effected a
previous registration for such Demand Shareholder pursuant to this
Section 2(c); (B) if registration pursuant to Rule 415 (or any
successor provision then in force) is not available for such
offering by the Demand Shareholder; or (C) prior to March 29, 2001.
The Company shall use its best efforts to keep such registration
statement continuously effective until all of the Registrable Shares
covered by such registration are sold, and shall seek such
qualification and compliance (including, without limitation, the
execution of an undertaking to file post-effective amendments,
appropriate qualification under blue sky or other state securities
laws and appropriate compliance with applicable regulations issued
under the Securities Act) as may be requested by the Requesting
Shareholder.
(ii) Expenses of Shelf Registration. The Company shall bear
all Company Registration Expenses incurred in connection with each
registration, qualification or compliance pursuant to Section 2(c),
and the
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Requesting Shareholder will pay its Requesting Shareholder
Registration Expenses.
(d) Registration Procedures. In the case of each registration,
qualification or compliance effected by the Company pursuant to this
Section 2 pursuant to which Registrable Shares are included therein, the
Company will keep each Requesting Shareholder advised in writing as to
the initiation of such registration, qualification and compliance and as
to the completion thereof, at its expense, the Company shall:
(i) prepare and file with the SEC any amendments (including
post-effective amendments) and supplements as may be necessary to
keep such registration, qualification or compliance current and
effective and to comply with the provisions of the Securities Act
and the rules and regulations promulgated thereunder, and the rules
and regulations of any applicable securities exchange, with respect
to the distribution of the Registrable Shares covered by such
registration, qualification and compliance for a period of (x) in
the case of a registration, qualification and compliance pursuant
to Sections 2(a) or 2(b) hereof at least 180 days or until the
Requesting Shareholder has completed the distribution described in
the registration statement relating thereto, which ever first
occurs or (y) in the case of a registration, qualification and
compliance pursuant to Section 2(c) until all of the Registrable
Shares have been sold;
(ii) immediately notify each Requesting Shareholder and the
underwriter, if any, and confirm such notification in writing (w)
when such registration statement becomes effective, (x) when the
filing of any post-effective amendment to such registration
statement or supplement to the prospectus is required, when the
same is filed and, in the case of a post-effective amendment, when
the same becomes effective, (y) of any request by the SEC for any
amendment of or supplement to such registration statement or the
prospectus or for additional information, and (z) of the entry of
any stop order suspending the effectiveness of such registration
statement or of the initiation of any proceedings for that purpose,
and, if such stop order shall be entered, the Company shall use its
best efforts promptly to obtain the lifting thereof;
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(iii) furnish to each Requesting Shareholder and any
underwriter acting on behalf of such Requesting Shareholder (x) at
a reasonable time prior to the filing thereof with the SEC a copy
of the registration statement in the form in which the Company
proposes to file the same, and not later than one day prior to the
filing thereof, a copy of any amendment (including any
post-effective amendment) to such registration statement, and
promptly following the effectiveness thereof, a conformed copy of
the registration statement as declared effective by the SEC and of
each post-effective amendment thereto, including financial
statements and all exhibits and reports incorporated therein by
reference, and (y) such number of copies of the preliminary, any
amended preliminary, and final prospectus and of each
post-effective amendment or supplement thereto, as may reasonably
be required in order to facilitate the disposition of the
Registrable Shares covered by such registration statement in
conformity with the requirements of the Securities Act and the
rules and regulations promulgated thereunder, but only while the
Company is required under the provisions hereof to cause the
registration statement to remain effective; and
(iv) list such Registrable Shares on each securities exchange
(if any) or qualify the Registrable Shares for trading on any over
the counter market (if any) on which the Common Stock is then
listed or traded, so long as such Registrable Shares are eligible
for such listing or qualification.
In connection with the registration of the Registrable Shares pursuant to
this Section 2, each Requesting Shareholder, for the purpose of Section 2(b)
only hereby agrees as follows:
(v) the Requesting Shareholder shall cooperate with the
Company in connection with the preparation of the registration
statement, and for so long as the Company is obligated to file and
keep effective the registration statement, shall provide to the
Company, in writing, for use in the registration statement, all
such information regarding the Requesting Shareholder and its plan
of distribution of the Registrable Shares as may be necessary to
enable the Company to prepare the registration statement and
prospectus covering the Registrable Shares, to maintain the
currency and
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effectiveness thereof and otherwise to comply with all
applicable requirements of law in connection therewith;
(vi) during such time as the Requesting Shareholder may be
engaged in a distribution of Registrable Shares, the Requesting
Shareholder shall comply with Rules 10b-2, 10b-6 and 10b-7
promulgated under the Exchange Act, to the extent applicable, and
pursuant thereto it shall, among other things: (w) not engage in
any stabilization activity in connection with the securities in
contravention of such Rules; (x) distribute the Registrable Shares
solely in the manner described in the registration statement; (y)
cause to be furnished to each broker through whom the Registrable
Shares may be offered, if any, or to the offeree if an offer is not
made through a broker, such copies of the prospectus and any
amendment or supplement thereto and documents incorporated by
reference therein as may be required by law; and not bid for or
purchase any securities of the Company or attempt to induce any
person to purchase any securities of the Company other than as
permitted under the Exchange Act;
(vii) upon receipt of a notice pursuant to Section
2(d)(ii)(x), (y) or (z), discontinue any distribution of
Registrable Shares if such discontinuance is required under the
Securities Act; and
(viii) at least five (5) days prior to any distribution of the
Registrable Shares other than in an underwritten offering, the
Requesting Shareholder will advise the Company in writing of the
dates on which the distribution is intended to commence and
terminate, the number of the Registrable Shares to be sold and the
terms and the manner of sale; such person also shall inform the
Company and any broker/dealers through whom sales of the
Registrable Shares may be made when each distribution of such
shares is completed.
(e) Indemnification.
(i) If registrable shares held by a Demand Shareholder or a
Following Shareholder are included in the securities as to which
any registration, qualification or compliance is being effected,
the Company will
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indemnify each such Demand Shareholder and each such Following
Shareholder, each of its general and limited partners, each of the
officers and directors of it or any of its general or limited
partners and any person which controls, within the meaning of
Section 15 of the Securities Act, any of the foregoing, each
underwriter, if any, and each person who controls any underwriter
within the meaning of Section 15 of the Securities Act, against all
claims, losses, damages and liabilities (and actions in respect
thereof) ("Loss") arising out of or based on any untrue statement
(or alleged untrue statement) of a material fact contained in any
prospectus, offering circular or other document (including any
related registration statement, notification or the like) incident
to any such registration, qualification or compliance, or based on
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, or any violation by the Company of any rule
or regulation promulgated under the Securities Act, or of any other
federal, state or common law applicable to the Company and relating
to any action or inaction required of the Company in connection
with any such registration, qualification or compliance, and will
reimburse each such Demand Shareholder and each such Following
Shareholder, general or limited partners, or such officers or
directors of it or any of its general or limited partners, any
person which controls any of the foregoing and each such
underwriter and each person which controls such underwriter, for
any legal and any other expenses reasonably incurred in connection
with investigating or defending any such Loss; PROVIDED, that the
Company will not be liable to so indemnify or reimburse in any such
case to the extent that any such Loss arises out of or is based on
any untrue statement or omission resulting from written information
furnished to the Company by or on behalf of such Demand Shareholder
or such Following Shareholder or such underwriter for use therein.
(ii) The Requesting Shareholder will, if Registrable Shares
held by the Requesting Shareholder are included in the securities
as to which such registration, qualification or compliance is being
effected, indemnify the Company, each of its directors and
officers, each other Security Holder, each other Requesting
Shareholder, the independent accountants and legal counsel of the
Company, each underwriter, if any, of the Company's
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securities covered by such a registration statement, and each
person who controls any of the foregoing within the meaning of
Section 15 of the Securities Act, against all Loss arising out of
or based on any untrue statement (or alleged untrue statement) of a
material fact contained in any such registration statement,
prospectus, offering circular or other document, or 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, or any violation by the Requesting Shareholder of any
rule or regulation promulgated under the Securities Act, or of any
other federal, state or common law applicable to the Requesting
Shareholder and relating to any action or inaction required by the
Requesting Shareholder in connection with any such registration,
qualification or compliance, and will reimburse the Company, such
directors, officers, accountants, counsel, Security Holders, the
other Requesting Shareholders, underwriters, officers, directors
and controlling persons for any legal or any other expenses
reasonably incurred in connection with investigating or defending
any such Loss in each case to the extent, but only to the extent,
that such untrue statement (or alleged untrue statement) or
omission (or alleged omission) is made in such registration
statement, prospectus, offering circular or other document in
reliance upon and in conformity with written information furnished
to the Company by or on behalf of such Requesting Shareholder for
use therein; PROVIDED, HOWEVER, that (i) such obligations of such
Requesting Shareholder hereunder shall be limited to an amount
equal to the aggregate public offering price of the Registrable
Shares of such Requesting Shareholder sold as contemplated herein,
unless such liability arises out of or is based upon willful
misconduct by such Requesting Shareholder and (ii) the indemnity
for untrue statements or omissions described above, and the
reimbursements obligation relating thereto, shall not apply if such
Requesting Shareholder provides the Company with such additional
written information prior to the effectiveness of the registration
statement as is required to make the previously supplied written
information true and complete, together with a description in
reasonable detail of the information previously supplied which was
untrue or incomplete.
(iii) Each person entitled to indemnification under this
Section 2(e) (the "Indemnified Party") shall give notice to the
party required to provide
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indemnification (the "Indemnifying Party") promptly after such
Indemnified Party has actual knowledge of any claim as to which
indemnity may be sought, and shall permit the Indemnifying Party to
assume the defense of any such claim or any litigation resulting
therefrom; PROVIDED, that counsel for the Indemnifying Party, who
shall conduct the defense of such claim or litigation, shall be
approved by the Indemnified Party (whose approval shall not
unreasonably be withheld), and the Indemnified Party may
participate in such defense at such Indemnified Party's expense,
and PROVIDED FURTHER that the failure of any Indemnified Party to
give notice as provided herein shall not relieve the Indemnifying
Party of its obligations under this Section 2(e). After notice
from the Indemnifying Party to the Indemnified Party of its
election to assume the defense of such claim or litigation, the
Indemnifying Party will not be liable to such Indemnified Party for
any legal or other expenses subsequently incurred by such
Indemnified Party in connection with the defense thereof other than
reasonable costs of investigation, unless the Indemnifying Party
abandons the defense of such claim or litigation. 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 which 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) CONTRIBUTION. If the indemnification provided for in
subsections (i) or (ii) of Section 2(e) is unavailable to or insufficient
to hold the Indemnified Party harmless in respect of any Loss referred to
therein for any reason other than as specified therein, then the
Indemnifying Party shall contribute to the amount paid or payable by such
Indemnified Party as a result of such Loss in such proportion as
appropriate to reflect the relative fault of the Indemnifying Party, on
the one hand, and such Indemnified Party, on the other, in connection
with the statements or omissions which resulted in such Loss, as well as
any other relevant equitable considerations. The relative fault shall be
determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by (or
omitted to be supplied by) the Indemnifying Party or the Indemnified
Party and the parties' relative intent, knowledge, access to information
and opportunity
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to correct or prevent such statement or omission. The amount paid
or payable by an Indemnified Party as a result of Loss referred to in
this subsection (f) shall be deemed to include any legal or other
expenses reasonably incurred by such Indemnified Party in connection with
investigating or defending any such action or claim. 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.
(g) Information Furnished by the Requesting Shareholders. Each
Requesting Shareholder shall furnish to the Company such information
regarding itself, each of its general or limited partners, and each of
its directors and officers, and any person controlling any of the
foregoing, and the distribution proposed by such Requesting Shareholder,
as the Company may reasonably request in writing and as shall be required
in connection with any registration, qualification or compliance referred
to in this Section 2.
3. Holdback Agreements. If any registration of Registrable Shares or
other securities of the Company pursuant to Section 2(a) or Section 2(b) herein
shall be in connection with an underwritten public offering, each Requesting
Shareholder agrees not to effect any public sale or distribution, including any
sale under Rule 144 (or any successor provision then in effect) under the
Securities Act, of any Registrable Shares or of any shares of Common Stock or
any security convertible into or exchangeable or exercisable for any shares of
Common Stock (in each case, other than as part of such underwritten public
offering) during the seven (7) days prior to, and during the 180-day period (or
such shorter period as may be provided for in the applicable underwriting
agreement) beginning on, the effective date of the related registration
statement.
4. Termination.
(a) Notwithstanding any other provision of this Agreement, the
respective covenants, agreements and obligations contained in Section 2 of
this Agreement shall continue until the latter of: (i) such date as all of
the Demand Shareholders and all of the Following Shareholders cease to own
any Registrable Shares; or (ii) March 29, 2004; PROVIDED that (x) such
covenants, agreements and obligations shall continue with respect to any
request for registration of Registrable Shares made hereunder March 29,
2004
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of the date of this Agreement, and (y) the indemnification
obligations contained in Section 2(e) and the contribution obligations
contained in Section 2(f) shall survive for the period of the statute of
limitations with respect thereto.
5. Miscellaneous.
(a) Each of the parties acknowledges and agrees that irreparable
damage would occur in the event any of the provisions of this Agreement
were not performed in accordance with their specific terms or were
otherwise breached. It is accordingly agreed that the parties 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 the United States or any state thereof
having jurisdiction, in addition to any other remedy to which they may be
entitled at law or equity.
(b) All notices and other communications hereunder shall be in
writing and shall be deemed given (i) when delivered personally, (ii)
when received if sent by registered or certified mail, return receipt
requested, or by air courier or (iii) when received by facsimile
transmission with electronic verification, in each case to the parties at
the following addresses (or at such other address as a party may specify
by like notice):
(A) If to the Company, addressed to: @ Entertainment, Inc.,
Xxx Xxxxxxxxxx Xxxxx, Xxxxxxxx, Xxxxxxxxxxx 00000; facsimile: (860)
293-4297, Attention: Xxxxxx Xxxx Xxxxx; with a copy thereof
addressed to Xxxxx & XxXxxxxx, 000 Xxxxxxxxxxx Xxxxxx, X.X.,
Xxxxxxxxxx, X.X. 00000-0000; facsimile: (000) 000-0000,
Attention: Xxxx X. Xxxx, Esq.;
(B) If to PIHLP, addressed to: Chase Polish Enterprises, Inc.,
Xxx Xxxxxxxxxx Xxxxx, Xxxxxxxx, Xxxxxxxxxxx 00000; facsimile: (860)
293-4297, Attention: Xxxxxx Xxxxx Xxxxxxxx;
(C) If to ECO, addressed to: ECO Holdings III Limited
Partnership, c/o Advent International Corporation, 000 Xxxxxxx
Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000; facsimile: (000) 000-0000,
Attention: Xx. Xxxxx Xxxxxxxx; with a copy thereof addressed to
Advent International Plc, 123
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Xxxxxxxxxx Xxxxxx Xxxx, Xxxxxx XX0X 0XX; facsimile: 44 (171)
333-0801, Attention: Xx. Xxxxx Xxxxxxxx;
(D) If to RMF, addressed to: Xxxxx X. Xxxxxxxx, 00 Xxxxxxxx
Xxxxxx, Xxxx Xxxxxxxx, Xxxxxxxxxxx 00000; facsimile: (860)
231-0551, with a copy thereof addressed to Xxxxxxxx & Xxxx, Xxx
Xxxxxxxxxx Xxxxx, Xxxxxxxx, Xxxxxxxxxxx 00000; facsimile: (860)
231-0551, Attention: Xxxxxxx X. Xxxxxxxxx;
(E) As to Xxxxxx, addressed to: Xxxxxx LLC, 00 Xxxxxx
Xxxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxxx 00000; facsimile: (413)
567-5160, Attention: Xxxxxxx X. Xxxxxx, Managing Member; with a
copy thereof addressed to Xxxxxxx Xxxxxxxx, Connecticut Financial
Center, New Haven, Connecticut; facsimile: (000) 000-0000,
Attention: Xxx Xxxxxxxx, Esq.;
(F) If to CACMT, addressed to: Chase Polish Enterprises, Inc.,
Xxx Xxxxxxxxxx Xxxxx, Xxxxxxxx, Xxxxxxxxxxx 00000; facsimile: (860)
293-4297, Attention: Xxxxxx Xxxxx Xxxxxxxx; and
(G) As to AESOP, addressed to: The AESOP Fund, L.P. c/o
Capital Investors, Inc., 0000 00xx Xxxxxx, X.X., Xxxxxxxxxx, X.X.
00000; facsimile: (000) 000-0000, Attention: Xxxxx Xxxx; with a
copy thereof addressed to The AESOP Fund, L.P., 0000 Xxxxxxxxx
Xxxxxx Xxxxxxxx, Xxxxxxx, Xxxxxxxxxx 00000; facsimile: (206)
292-8075, Attention: Duff Xxxxxxx.
(c) This Agreement supersedes all prior agreements between the
parties (written or oral) relating to registration of the Registrable
Shares under the Securities Act and is intended as a complete and
exclusive statement of the terms of the agreement between the parties
with respect to such matters.
(d) This Agreement shall be governed by and construed in accordance
with the laws of the State of Delaware and shall be construed and
enforced in accordance with the laws of such state without regard to
principles of conflicts of laws thereof.
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(e) The headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
(f) Any term or provision of this Agreement may be waived at any
time by an instrument in writing signed by the party which is entitled to
the benefits thereof and this Agreement may be amended or supplemented at
any time by an instrument in writing signed by all parties hereto.
(g) Except as otherwise provided herein, the Company shall not
assign this Agreement or any part hereof or any rights or obligations
hereunder without the prior written consent of all other parties hereto.
Each Shareholder shall be entitled, without the consent of any other
party hereto, to assign and transfer any or all of its rights hereunder
to any transferee of its Registrable Shares to which it is permitted to
transfer such Registrable Shares under the provisions of the Shareholders
Agreement; provided, however, that a Demand Shareholder may only assign
and transfer any of its demand registration rights under Section 2(a) to
a permitted transferee holding at least twenty-five (25%) of the Common
Stock held by such Demand Shareholder at the date of execution of this
Agreement, and any exercise of such demand registration rights by such
transferee shall be counted as a demand registration effected on behalf
of such Demand Shareholder for the purposes of Section 2(a)(i)(B). No
assignment shall release any party of any of its obligations under this
Agreement. Except as otherwise provided herein, this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns.
(h) If any term or other provision of this Agreement is invalid,
illegal or incapable of being enforced by any rule of law or public
policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect. Upon such determination
that any term or other provision is invalid, illegal or incapable of
being enforced, the parties hereto shall negotiate in good faith to
modify this Agreement so as to effect the original intent of the parties
as closely as possible in an acceptable manner to the end that the
transactions contemplated hereby are fulfilled to the extent possible.
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(i) This Agreement may be executed in any number of counterparts,
each of which shall be deemed to be an original, but all of which
together shall constitute but one and the same agreement.
(j) The number of Registrable Shares and any references herein as to
specific number of shares shall be appropriately adjusted in the event of
any stock split, reverse split, stock dividend or other reclassification
or reorganization affecting the capital stock of the Company which occurs
after the date hereof.
(k) Any claim, suit, action, or proceeding among any or all of the
parties hereto relating to this Agreement, to any document, instrument, or
agreement delivered pursuant hereto, referred to herein, or contemplated
hereby, or in any other manner arising out of or relating to the
transactions contemplated by or referenced in this Agreement, shall be
commenced and maintained exclusively in the United States District Court
for the District of Delaware, or, if such Court lacks jurisdiction over
the subject matter, in a state court of competent subject-matter
jurisdiction sitting in the State of Delaware. The parties hereby submit
themselves unconditionally and irrevocably to the personal jurisdiction of
such courts. The parties further agree that venue shall be exclusively in
New Castle County in the State of Delaware. The parties irrevocably waive
any objection to such personal jurisdiction or venue including, but not
limited to, the objection that any suit, action, or proceeding brought in
the State of Delaware has been brought in an inconvenient forum. The
parties irrevocably agree that process issuing from such courts may be
served on them, either personally or by certified mail, return receipt
requested, at the addresses given in Section 5(b) hereof; and further
irrevocably waive any objection to service of process made in such manner
and at such addresses, including without limitation any objection that
service in such manner and at such addresses is not authorized by the
local or procedural laws of the State of Delaware.
(l) In any suit or proceeding brought or instituted by any of the
parties to enforce or interpret any of the provisions of this Agreement
or on account of any damages claimed to be sustained by such instituting
party by reason of another party's violation of any of the terms or
provisions of this Agreement, the prevailing party shall be entitled to
recover reasonable attorneys' fees and court costs.
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(m) This Agreement shall be effective as to all parties other than
AESOP as soon as all such other parties have signed it, and with respect
to AESOP's rights and obligations it shall be effective as soon as all
parties including AESOP have signed it.
IN WITNESS WHEREOF, the Company, PIHLP, ECO, RMF, Xxxxxx, AESOP and CACMT
have caused this Agreement to be duly executed by their respective officers,
each of whom is duly authorized, all as of the day and year first above
written.
@ ENTERTAINMENT, INC.,
a Delaware corporation
/s/ XXXXXX X. XXXXXX, III
BY: -------------------------------
Name: ________________________
Title: ________________________
POLISH INVESTMENTS HOLDING L.P.,
a Delaware limited partnership
By: CHASE POLISH ENTERPRISES, INC.,
a Delaware corporation
MANAGING GENERAL PARTNER
/s/ XXXXXX X. XXXXX
By: -------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President
ECO HOLDINGS III LIMITED PARTNERSHIP,
a Delaware limited partnership
By: Advent ECO III L.L.C., General Partner
By: Global Private Equity II Limited
Partnership, Member
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By: Advent International Limited Partnership,
General Partner
By: Advent International Corporation, General
Partner
/s/ XXXXX X. XXXXXXXX
By: -------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
THE AESOP FUND, L.P.,
a Delaware limited partnership
CAPITOL INVESTORS, INC.
By: -------------------------------
a General Partner
MANAGING GENERAL PARTNER
/s/ DUFF XXXXXXX
By: -------------------------------
Name: Duff Xxxxxxx
Title: Chairman
/s/ XXXXX X. XXXXXXXX
-------------------------------
Xxxxx X. Xxxxxxxx
XXXXXX LLC,
a Connecticut limited liability company
/s/ XXXXXXX XXXXXX
By: -------------------------------
Name: Xxxxxxx Xxxxxx
Title: Managing Member
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THE XXXXXX XXXX XXXXX MARITAL TRUST,
a Connecticut Trust
/s/ XXXXXX X. XXXXX
By: -------------------------------
Name: Xxxxxx X. Xxxxx
Title: Trustee, and not individually
or in any other capacity
/s/ XXXXXXX XXXXX
By: -------------------------------
Name: Xxxxxxx Xxxxx
Title: Trustee, and not individually
or in any other capacity
