Exhibit 10.4
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made
as of this ____ day of _____ 2000, by and between Xxxxxxx.xxx, Inc., a Delaware
corporation (the "Company"), and Playboy Enterprises, Inc., a Delaware
corporation ("PEI").
RECITALS
WHEREAS, the Company desires to undertake an initial public
offering of its Common Stock; and
WHEREAS, in order to induce PEI to approve such offering, the
Company has agreed to provide for certain arrangements with respect to the
registration of shares of Common Stock of the Company under the Securities Act
of 1933.
NOW, THEREFORE, in consideration of the mutual promises and
covenants contained in this Agreement, the parties hereto agree as follows:
1. REGISTRATION RIGHTS. The Company covenants and agrees as follows:
1.1. DEFINITIONS. For purposes of this Section 1:
(a) The term "Common Stock" means the common stock, $0.01 par
value per share, of the Company.
(b) The term "Effective Date" means the date on which the
Company's registration statement relating to its Initial Public Offering is
declared effective by the SEC.
(c) The term "Form S-3" means such form under the Securities Act
as in effect on the date hereof or any registration form under the Securities
Act subsequently adopted by the SEC which permits inclusion or incorporation
of substantial information by reference to other documents filed by the
Company with the SEC.
(d) The term "Initial Public Offering" means the closing of the
first sale of securities pursuant to an effective registration statement
filed by the Company under the Securities Act (as hereinafter defined) in
connection with a firm commitment underwritten offering of its securities to
the general public.
(e) The term "1934 Act" means the Securities Exchange Act of
1934, as amended.
(f) The term "register," "registered," and "registration" refer
to a registration effected by preparing and filing a registration statement
or similar document in compliance with the Securities Act, and the
declaration or ordering of effectiveness of such registration statement or
document.
(g) The term "Registrable Securities" means the Common Stock of
the Company held as of the Effective Date by PEI and all other securities of
the Company which may be issued in exchange for or in respect of such shares.
(h) The term "SEC" means the Securities and Exchange Commission.
(i) The term "Securities Act" means the Securities Act of 1933,
as amended.
(j) The term "Stockholders" means PEI and any person or entity
owning Registrable Securities in accordance with Section 1.12 hereof.
1.2. DEMAND REGISTRATION RIGHTS.
(a) If the Company shall receive at any time after 180 days
following the Effective Date of the Initial Public Offering (other than a
registration statement relating either to the sale of securities to employees
of the Company pursuant to a stock option, stock purchase or similar plan or
a SEC Rule 145 transaction), a written request from Stockholders holding a
majority of the Registrable Securities then outstanding, that the Company
file a registration statement under the Securities Act covering the
registration of Registrable Securities owned by such Stockholders having an
aggregate value of at least $10,000,000 (based on the then current public
market price) pursuant to this Section 1.2, then the Company shall:
(i) within ten (10) days of the receipt thereof, give
written notice of such request to all Stockholders; and
(ii) file as soon as practicable, at the Company's expense,
and in any event within sixty (60) days of the receipt of such request,
a registration statement under the Securities Act of all Registrable
Securities which the Stockholders request to be registered, subject to
the limitations of Section 1.2(b).
(b) If the Stockholders initiating the registration request
hereunder (the "Initiating Stockholders") intend to distribute the
Registrable Securities covered by their request by means of an underwriting,
they shall so advise the Company as a part of their request made pursuant to
Section 1.2(a) and the Company shall include such information in the written
notice referred to in Section 1.2(a). The underwriter will be selected with
the mutual consent of the Company and a majority in interest of the
Initiating Stockholders. In such event, the right of any Stockholder to
include his Registrable Securities in such registration shall be conditioned
upon such Stockholder's participation in such underwriting and the inclusion
of such Stockholder's Registrable Securities in the underwriting (unless
otherwise mutually agreed by a majority in interest of the Initiating
Stockholders) to the extent provided herein. All Stockholders proposing to
distribute their securities through such underwriting shall enter (together
with the Company as provided in Section 1.4(e)) into an underwriting
agreement in customary form with the underwriter or underwriters selected for
such underwriting. Notwithstanding any other provision of this Section 1.2,
if the underwriter advises the Initiating Stockholders in writing that
marketing factors require a limitation of the number of shares to be
underwritten, then the Initiating Stockholders shall so advise all
Stockholders of Registrable Securities, and the number of shares of
Registrable Securities that may be included in the underwriting shall be
allocated among all Stockholders thereof, including the Initiating
Stockholders, in proportion (as nearly as
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practicable) to the amount of Registrable Securities of the Company owned by
each Stockholder; provided, however, that the number of shares of Registrable
Securities to be included in such underwriting shall not be reduced unless all
other securities are first entirely excluded from the underwriting.
(c) The Company is obligated to effect only one (1) such
registration pursuant to this Section 1.2 in any 12-month period. The Company
shall not be deemed to have effected a registration pursuant to this Section
1.2 unless a registration statement in respect thereof shall have been
declared effective by the SEC and remains effective for 120 days or such
earlier time at which all Registrable Securities registered under such
registration statement have been sold (or withdrawn from such registration at
the request of the Stockholders).
(d) Notwithstanding the foregoing, if the Company shall furnish
to Stockholders requesting a registration statement pursuant to this Section
1.2 a certificate signed by the Chief Executive Officer of the Company
stating that in the good faith judgment of the Board of Directors of the
Company it would be seriously detrimental to the Company and its stockholders
for such registration statement to be filed and it is therefore essential to
defer the filing of such registration statement, the Company shall have the
right to defer taking action with respect to such filing for a period of not
more than ninety (90) days after receipt of the request of the Initiating
Holders; provided, however, that the Company may not utilize this right more
than once in any one year period.
(e) In addition, the Company shall not be obligated to effect, or
to take any action to effect, any registration pursuant to this Section 1.2:
(i) During the period starting with the date sixty (60) days
prior to the Company's good faith estimate of the date of filing of, and
ending on a date one hundred eighty (180) days after the effective date
of, a registration subject to Section 1.3 hereof; provided that the
Company is actively employing in good faith all reasonable efforts to
cause such registration statement to become effective; or
(ii) If the Initiating Stockholders proposed to dispose of
shares of Registrable Securities that may be immediately registered on
Form S-3 pursuant to a request made pursuant to Section 1.11 below.
1.3. COMPANY REGISTRATION. If (but without any obligation to do so) the
Company proposes to register (including for this purpose a registration effected
by the Company for stockholders other than the Stockholders) any of its stock or
other securities under the Securities Act in connection with the public offering
of such securities solely for cash (other than an Initial Public Offering or a
registration statement relating either to the sale of securities to employees of
the Company pursuant to a stock option, stock purchase or similar plan or a SEC
Rule 145 transaction), the Company shall, at such time, promptly give each
Stockholder at least thirty (30) days written notice of such registration. Upon
the written request of each Stockholder given within twenty (20) days after
mailing of such notice by the Company, the Company shall, subject to the
provisions of Section 1.7, cause to be registered under the Securities Act all
of the Registrable Securities that each such Stockholder has requested to be
registered.
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1.4. OBLIGATIONS OF THE COMPANY. Whenever required under this Section 1
to effect the registration of any Registrable Securities, the Company shall,
as expeditiously as reasonably possible:
(a) Prepare and file with the SEC a registration statement with
respect to such Registrable Securities and use its best efforts to cause such
registration statement to become effective, and, upon the request of the
Stockholders of a majority of the Registrable Securities registered thereunder,
keep such registration statement effective for a period of up to one hundred
twenty (120) days or until the distribution contemplated in the Registration
Statement has been completed; provided, however, that (i) such one hundred
twenty (120) day period shall be extended for a period of time equal to the
period a Stockholder refrains from selling any securities included in such
registration at the request of an underwriter of Common Stock (or other
securities) of the Company; and (ii) in the case of any registration of
Registrable Securities on Form S-3 which are intended to be offered on a
continuous or delayed basis, such one hundred twenty (120) day period shall be
extended, if necessary, to keep the registration statement effective until all
such Registrable Securities are sold, provided that Rule 415, or any successor
rule under the Securities Act, permits an offering on a continuous or delayed
basis, and provided further that applicable rules under the Securities Act
governing the obligation to file a post-effective amendment permit, in lieu of
filing a post-effective amendment which (I) includes any prospectus required by
Section 10(a)(3) of the Securities Act or (II) reflects facts or events
representing a material or fundamental change in the information set forth in
the registration statement, the incorporation by reference of information
required to be included in (I) and (II) above to be contained in periodic
reports filed pursuant to Section 13 or Section 15(d) of the 1934 Act in the
registration statement.
(b) Prepare and file with the SEC such amendments and supplements
to such registration statement and the prospectus used in connection with such
registration statement as may be necessary to comply with the provisions of the
Securities Act with respect to the disposition of all securities covered by such
registration statement.
(c) Furnish to the Stockholders such numbers of copies of a
prospectus, including a preliminary prospectus, in conformity with the
requirements of the Securities Act, and such other documents as they may
reasonably request in order to facilitate the disposition of Registrable
Securities owned by them.
(d) Use its best efforts to register and qualify the securities
covered by such registration statement under such other securities or Blue
Sky laws of such jurisdictions as shall be reasonably requested by the
Stockholders; provided that the Company shall not be required in connection
therewith or as a condition thereto to qualify to do business or to file a
general consent to service of process in any such states or jurisdictions,
unless the Company is already subject to service in such jurisdiction and
except as may be required by the Securities Act.
(e) In the event of any underwritten public offering, enter into
and perform its obligations under an underwriting agreement, in usual and
customary form, with the managing underwriter of such offering. Each Stockholder
participating in such underwriting shall also enter into and perform its
obligations under such an agreement.
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(f) Notify each Stockholder of Registrable Securities covered by
such registration statement 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, as
then in effect, includes an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances then
existing.
(g) Cause all such Registrable Securities registered pursuant
hereunder to be listed on each securities exchange on which similar
securities issued by the Company are then listed.
(h) Provide a transfer agent and registrar for all Registrable
Securities registered pursuant hereunder and a CUSIP number for all such
Registrable Securities, in each case not later than the effective date of such
registration.
1.5. FURNISH INFORMATION.
(a) It shall be a condition precedent to the obligations of the
Company to take any action pursuant to this Section 1 with respect to the
Registrable Securities of any selling Stockholder that such Stockholder shall
furnish to the Company in writing such information regarding itself, the
Registrable Securities held by it, and the intended method of disposition of
such securities as shall be required to effect the registration of such
Stockholder's Registrable Securities.
(b) The Company shall have no obligation with respect to any
registration requested pursuant to Section 1.2 or Section 1.11 if, due to the
operation of subsection 1.5(a), the number of shares or the anticipated
aggregate offering price of the Registrable Securities to be included in the
registration does not equal or exceed the number of shares or the anticipated
aggregate offering price required to originally trigger the Company's obligation
to initiate such registration as specified in subsection 1.2(a) or subsection
1.11(b)(2), whichever is applicable.
1.6. EXPENSES OF REGISTRATION. All expenses other than underwriting
discounts and commissions incurred in connection with registrations, filings
or qualifications pursuant to Section 1.2 or Section 1.3, including (without
limitation) all registration, filing and qualification fees, printers' and
accounting fees, fees and disbursements of counsel for the Company and the
reasonable fees and disbursements of one counsel for the selling Stockholders
shall be borne by the Company; provided, however, that the Company shall not
be required to pay for any expenses of any registration proceeding begun
pursuant to Section 1.2 or Section 1.3 if the registration request is
subsequently withdrawn at the request of the Stockholders of a majority of
the Registrable Securities to be registered (in which case all participating
stockholders shall bear such expenses), unless the Stockholders of a majority
of the Registrable Securities agree to forfeit their right to one demand
registration pursuant to Section 1.2.
1.7. UNDERWRITING REQUIREMENTS. In connection with any offering
involving an underwriting of shares of the Company's capital stock, the
Company shall not be required under Section 1.3 to include any of the
Stockholder's securities in such underwriting unless such Stockholders accept
the terms of the underwriting as agreed upon between the Company and the
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underwriters selected by the Company (or by other persons entitled to select the
underwriters), and then only in such quantity as the underwriters determine in
their sole discretion will not, jeopardize the success of the offering by the
Company. If the total amount of securities, including Registrable Securities,
requested by stockholders to be included in such offering exceeds the amount of
securities sold other than by the Company that the underwriters determine in
their sole discretion is compatible with the success of the offering, then the
Company shall be required to include in the offering only that number of such
securities, including Registrable Securities, which the underwriters determine
in their sole discretion will not jeopardize the success of the offering (the
securities so included to be apportioned pro rata among the selling Stockholders
according to the total amount of securities entitled to be included therein
owned by each selling stockholder or in such other proportions as shall mutually
be agreed to by such selling Stockholders) but in no event shall the amount of
securities of the selling Stockholders included in the offering be reduced below
twenty percent (20%) of the total amount of securities included in such
offering. For purposes of the preceding parenthetical concerning apportionment,
for any selling Stockholder which is a holder of Registrable Securities and
which is a partnership or corporation, the partners, retired partners and
stockholders of such holder, or the estates and family members of any such
partners and retired partners and any trusts for the benefit of any of the
foregoing persons shall be deemed to be a single "selling Stockholder", and any
pro-rata reduction with respect to such "selling Stockholder" shall be based
upon the aggregate amount of shares carrying registration rights owned by all
entities and individuals included in such "selling Stockholder", as defined in
this sentence.
1.8. DELAY OF REGISTRATION. No Stockholder shall have any right to
obtain or seek an injunction restraining or otherwise delaying any such
registration as the result of any controversy that might arise with respect
to the interpretation or implementation of this Section 1.
1.9. INDEMNIFICATION. In the event any Registrable Securities are
included in a registration statement under this Section 1:
(a) To the extent permitted by law, the Company will indemnify
and hold harmless each Stockholder, any underwriter (as defined in the
Securities Act) for such Stockholder and each person, if any, who controls
such Stockholder or underwriter within the meaning of the Securities Act or
the 1934 Act, against any losses, claims, damages, or liabilities (joint or
several) to which they may become subject under the Act, the 1934 Act or
other federal or state law, insofar as such losses, claims, damages, or
liabilities (or actions in respect thereof) arise out of or are based upon
any of the following statements, omissions or violations (collectively, a
"Violation"): (i) any untrue statement or alleged untrue statement of a
material fact contained in such registration statement, including any
preliminary prospectus or final prospectus contained therein or any
amendments or supplements thereto, (ii) the omission or alleged omission to
state therein a material fact required to be stated therein, or necessary to
make the statements therein not misleading, or (iii) any violation or alleged
violation by the Company of the Securities Act, the 1934 Act, any state
securities law or any rule or regulation promulgated under the Securities
Act, the 1934 Act or any state securities law, and the Company will pay to
each such Stockholder, underwriter or controlling person, as incurred, any
legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability, or
action; provided, however, that the indemnity agreement contained in this
Section 1.9(a) shall not apply to amounts paid in settlement of any such loss,
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claim, damage, liability, or action if such settlement is effected without
the consent of the Company (which consent shall not be unreasonably
withheld), nor shall the Company be liable in any such case for any such
loss, claim, damage, liability, or action to the extent that it arises out of
or is based upon a Violation which occurs in reliance upon and in conformity
with written information furnished expressly for use in connection with such
registration by any such Stockholder, underwriter or controlling person.
(b) To the extent permitted by law, each selling Stockholder will
indemnify and hold harmless the Company, each of its directors, each of its
officers who has signed the registration statement, each person, if any, who
controls the Company within the meaning of the Securities Act, any underwriter,
any other Stockholder selling securities in such registration statement and any
controlling person of any such underwriter or other Stockholder, against any
losses, claims, damages, or liabilities (joint or several) to which any of the
foregoing persons may become subject, under the Securities Act, the 1934 Act or
other federal or state law, insofar as such losses, claims, damages, or
liabilities (or actions in respect thereto) arise out of or are based upon any
Violation, in each case to the extent (and only to the extent) that such
Violation occurs in reliance upon and in conformity with written information
furnished by such Stockholder expressly for use in connection with such
registration; and each such Stockholder will pay, as incurred, any legal or
other expenses reasonably incurred by any person intended to be indemnified
pursuant to this Section 1.9(b), in connection with investigating or defending
any such loss, claim, damage, liability, or action; provided, however, that the
indemnity agreement contained in this Section 1.9(b) shall not apply to amounts
paid in settlement of any such loss, claim, damage, liability or action if such
settlement is effected without the consent of the Stockholder, which consent
shall not be unreasonably withheld; provided, that, in no event shall any
indemnity under this Section 1.9(b) exceed the gross proceeds from the offering
received by such Stockholder.
(c) Promptly after receipt by an indemnified party under this
Section 1.9 of notice of the commencement of any action (including any
governmental action), such indemnified party will, if a claim in respect thereof
is to be made against any indemnifying party under this Section 1.9, deliver to
the indemnifying party a written notice of the commencement thereof and the
indemnifying party shall assume and, to the extent the indemnifying party so
desires, jointly assume with any other indemnifying party similarly noticed, the
defense thereof; provided, however, that an indemnified party (together with all
other indemnified parties which may be represented without conflict by one
counsel) shall have the right to retain one separate counsel, with the fees and
expenses to be paid by the indemnifying party, if representation of such
indemnified party by the counsel retained by the indemnifying party would be
inappropriate due to actual or potential differing interests between such
indemnified party and any other party represented by such counsel in such
proceeding. The failure to deliver written notice to the indemnifying party
within a reasonable time of the commencement of any such action, if materially
prejudicial to its ability to defend such action, shall relieve such
indemnifying party of any liability to the indemnified party under this Section
1.9, but the omission so to deliver written notice to the indemnifying party
will not relieve it of any liability that it may have to any indemnified party
otherwise than under this Section 1.9.
(d) If the indemnification provided for in this Section 1.9 is
held by a court of competent jurisdiction to be unavailable to an indemnified
party with respect to any loss,
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liability, claim, damage, or expense referred to therein, then the indemnifying
party, in lieu of indemnifying such indemnified party hereunder, shall
contribute to the amount paid or payable by such indemnified party as a result
of such loss, liability, claim, damage, or expense in such proportion as is
appropriate to reflect the relative fault of the indemnifying party on the one
hand and of the indemnified party on the other in connection with the statements
or omissions that resulted in such loss, liability, claim, damage, or expense as
well as any other relevant equitable considerations. The relative fault of the
indemnifying party and of the indemnified party shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission to state a material fact relates to information
supplied by the indemnifying party or by the indemnified party and the parties'
relative intent, knowledge, access to information, and opportunity to correct or
prevent such statement or omission.
(e) Notwithstanding the foregoing, to the extent that the
provisions on indemnification and contribution contained in the underwriting
agreement entered into in connection with the underwritten public offering
are in conflict with the foregoing provisions, the provisions in the
underwriting agreement shall control.
(f) The obligations of the Company and Stockholders under this
Section 1.9 shall survive the completion of any offering of Registrable
Securities in a registration statement under this Section 1, and otherwise.
1.10. REPORTS UNDER SECURITIES EXCHANGE ACT OF 1934. With a view to making
available to the Stockholders the benefits of Rule 144 promulgated under the
Securities Act and any other rule or regulation of the SEC that may at any time
permit a Stockholder to sell securities of the Company to the public without
registration or pursuant to a registration on Form S-3, the Company agrees to:
(a) make and keep public information available, as those terms are
understood and defined in SEC Rule 144, at all times after ninety (90) days
after the effective date of the first registration statement filed by the
Company for the offering of its securities to the general public;
(b) take such action, including the voluntary registration of its
Common Stock under Section 12 of the 1934 Act, as is necessary to enable the
Stockholders to utilize Form S-3 for the sale of their Registrable Securities,
such action to be taken as soon as practicable after the end of the fiscal year
in which the first registration statement filed by the Company for the offering
of its securities to the general public is declared effective;
(c) file with the SEC in a timely manner all reports and other
documents required of the Company under the Securities Act and the 1934 Act; and
(d) furnish to any Stockholder, so long as the Stockholder owns
any Registrable Securities, forthwith upon request (i) a written statement by
the Company that it has complied with the reporting requirements of SEC Rule 144
(at any time after ninety (90) days after the effective date of the first
registration statement filed by the Company), the Securities Act and the 1934
Act (at any time after it has become subject to such reporting requirements), or
that it qualifies as a registrant whose securities may be resold pursuant to
Form S-3 (at any time after it
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so qualifies), (ii) a copy of the most recent annual or quarterly report of the
Company and such other reports and documents so filed by the Company, and (iii)
such other information as may be reasonably requested in availing any
Stockholder of any rule or regulation of the SEC which permits the selling of
any such securities without registration or pursuant to such form.
1.11. FORM S-3 REGISTRATION. In case the Company shall receive from any
Stockholder or Stockholders a written request or requests that the Company
effect a registration on Form S-3 and any related qualification or compliance
with respect to all or a part of the Registrable Securities owned by such
Stockholder or Stockholders, the Company will:
(a) promptly give at least twenty (20) days written notice of the
proposed registration, and any related qualification or compliance, to all other
Stockholders; and
(b) as soon as practicable, effect such registration and all such
qualifications and compliances as may be so requested and as would permit or
facilitate the sale and distribution of all or such portion of such
Stockholder's or Stockholders' Registrable Securities as are specified in such
request, together with all or such portion of the Registrable Securities of any
other Stockholder or Stockholders joining in such request as are specified in a
written request given within fifteen (15) days after receipt of such written
notice from the Company; provided, however, that the Company shall not be
obligated to effect any such registration, qualification or compliance, pursuant
to this Section 1.11: (1) if Form S-3 is not available for such offering by the
Stockholders; (2) if the Stockholders, together with the holders of any other
securities of the Company entitled to inclusion in such registration, propose to
sell Registrable Securities and such other securities (if any) at an aggregate
price to the public (net of any underwriters' discounts or commissions) of less
than $2,500,000; or (3) if the Company shall furnish to the Stockholders a
certificate signed by the Chief Executive Officer of the Company stating that in
the good faith judgment of the Board of Directors of the Company, it would be
seriously detrimental to the Company and its stockholders for such Form S-3
Registration to be effected at such time, in which event the Company shall have
the right to defer the filing of the Form S-3 registration statement for a
period of not more than sixty (60) days after receipt of the request of the
Stockholder or Stockholders under this Section 1.11; provided, however, that the
Company shall not utilize this right more than once in any twelve (12) month
period.
(c) Subject to the foregoing, the Company shall file a
registration statement covering the Registrable Securities and other
securities so requested to be registered as soon as practicable after receipt
of the request or requests of the Stockholders. All expenses incurred in
connection with a registration requested pursuant to Section 1.11, including
(without limitation) all registration, filing, qualification, printer's and
accounting fees and the reasonable fees and disbursements of counsel for the
selling Stockholder or Stockholders and counsel for the Company, but
excluding any underwriters' discounts or commissions associated with
Registrable Securities, shall be borne by the Company. Registrations effected
pursuant to this Section 1.11 shall not be counted as demands for
registration or registrations effected pursuant to Sections 1.2 or 1.3,
respectively.
1.12. ASSIGNMENT OF REGISTRATION RIGHTS. The rights to cause the Company to
register Registrable Securities pursuant to this Section 1 may be assigned (but
only with all related obligations) by a Stockholder to a transferee or assignee
of such securities, provided: (a) the
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Company is, within a reasonable time after such transfer, furnished with written
notice of the name and address of such transferee or assignee and the securities
with respect to which such registration rights are being assigned; (b) such
transferee or assignee acquires at least ten percent (10%) of the shares of
Registrable Securities (as adjusted for stock splits or combinations); (c) such
transferee or assignee agrees in writing to be bound by and subject to the terms
and conditions of this Agreement, including without limitation the provisions of
Section 1.14 below; and (d) such assignment shall be effective only if
immediately following such transfer the further disposition of such securities
by the transferee or assignee is restricted under the Securities Act.
1.13. LIMITATIONS ON SUBSEQUENT REGISTRATION RIGHTS. From and after the
date of this Agreement, the Company shall not, without the prior written
consent of the Stockholders of a majority of the outstanding Registrable
Securities, enter into any agreement with any holder or prospective holder of
any securities of the Company which would allow such holder or prospective
holder to include such securities in any registration filed under Section 1.2
hereof, unless under the terms of such agreement, such holder or prospective
holder may include such securities in any such registration only to the
extent that the inclusion of his securities will not reduce the amount of the
Registrable Securities of the Stockholders which is included.
1.14. "MARKET STAND-OFF" AGREEMENT. Each Stockholder hereby agrees that,
during the period of duration specified by the Company and an underwriter of
common stock or other securities of the Company, following the date of the first
sale to the public pursuant to a registration statement of the Company filed
under the Securities Act, it shall not, to the extent requested by the Company
and such underwriter, directly or indirectly sell, offer to sell, contract to
sell (including, without limitation, any short sale), grant any option to
purchase or otherwise transfer or dispose of (other than to donees who agree to
be similarly bound) any securities of the Company held by it at any time during
such period except common stock included in such registration; provided,
however, that:
(a) all officers and directors of the Company and all other
persons with registration rights (whether or not pursuant to this Agreement)
enter into similar agreements; and
(b) such market stand-off time period shall not exceed one hundred
eighty (180) days.
In order to enforce the foregoing covenant, the Company may
impose stop-transfer instructions with respect to the Registrable Securities
of a Stockholder (and the shares or securities of every other person subject
to the foregoing restriction) until the end of such period.
Notwithstanding the foregoing, the obligations described in this
Section 1.14 shall not apply to a registration relating solely to employee
benefit plans on Form S-8 or similar forms which may be promulgated in the
future, or a registration relating solely to a SEC Rule 145 transaction on
Form S-4 or similar forms which may be promulgated in the future.
1.15. TERMINATION OF REGISTRATION RIGHTS. The rights relating to the
registration of Registrable Securities set forth herein shall terminate with
respect to any Stockholder on the date which is the earliest of (i) the fifth
anniversary of the closing of the Company's Initial Public
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Offering and (ii) when such Stockholder would be entitled to sell within a
single three-month period all of the Registrable Securities then held by such
Stockholder, under the provisions of Rule 144 (or subsequent similar rule) under
the Securities Act.
2. MISCELLANEOUS.
2.1. SUCCESSORS AND ASSIGNS. Except as otherwise provided herein, the
terms and conditions of this Agreement shall inure to the benefit of and be
binding upon the respective successors and assigns of the parties (including
transferees of any Registrable Securities). Nothing in this Agreement,
express or implied, is intended to confer upon any party other than the
parties hereto or their respective successors and assigns any rights,
remedies, obligations, or liabilities under or by reason of this Agreement,
except as expressly provided in this Agreement.
2.2. GOVERNING LAW. This Agreement shall be governed by and construed
under the laws of the State of Illinois.
2.3. COUNTERPARTS. This Agreement may be executed in two (2) or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
2.4. TITLES AND SUBTITLES. The titles and subtitles used in this
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
2.5. NOTICES. Unless otherwise provided, any notice required or permitted
under this Agreement shall be given in writing and shall be deemed effectively
given upon personal delivery to the party to be notified or upon deposit with
the United States Post Office, by registered or certified mail, postage prepaid
and addressed to the party to be notified at the address indicated for such
party on the signature page hereof, or at such other address as such party may
designate by ten (10) days' advance written notice to the other parties.
2.6. EXPENSES. If any action at law or in equity is necessary to
enforce or interpret the terms of this Agreement, the prevailing party shall
be entitled to reasonable attorneys' fees, costs and necessary disbursements
in addition to any other relief to which such party may be entitled.
2.7. AMENDMENTS AND WAIVERS. Any term of this Agreement may be amended
and the observance of any term of this Agreement may be waived (either
generally or in a particular instance and either retroactively or
prospectively), only with the written consent of the Company and the
Stockholders in possession of a majority of the shares of Registrable
Securities. Any amendment or waiver effected in accordance with this
paragraph shall be binding upon each holder of any Registrable Securities
then outstanding, each future holder of all such Registrable Securities, and
the Company.
2.8. SEVERABILITY. If one or more provisions of this Agreement are held
to be unenforceable under applicable law, such provision shall be excluded
from this Agreement and the balance of the Agreement shall be interpreted as
if such provision were so excluded and shall be enforceable in accordance
with its terms.
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2.9. ENTIRE AGREEMENT. This Agreement (including the Exhibits hereto, if
any) constitutes the full and entire understanding and agreement between the
parties with regard to the subjects hereof and thereof.
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IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first above written.
XXXXXXX.XXX, INC.
By:___________________________
Name:
Title:
PLAYBOY ENTERPRISES, INC.
By:___________________________
Name:
Title:
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