Exhibit 4.5
REGISTRATION RIGHTS AGREEMENT
dated as of OCTOBER 7, 2005
between
CIRILIUM HOLDINGS, INC.
and
MEDIA MAGIC, INC.
1. Definitions and Usage....................................................1
1.1 Definitions........................................................1
1.2 Usage..............................................................2
2. Demand Registration......................................................3
3. Registration Procedures..................................................4
4. Expenses of Registration.................................................6
5. Indemnification; Contribution............................................6
6. Covenants of the Company.................................................9
7. Amendment, Modification and Waivers; Further Assurances.................10
8. Assignment; Benefit.....................................................10
9. Miscellaneous...........................................................11
9.1 Governing Law.....................................................11
9.2 Notices...........................................................11
9.3 Entire Agreement; Integration.....................................11
9.4 Injunctive Relief.................................................12
9.5 Section Headings..................................................12
9.6 Counterparts......................................................12
9.7 Severability......................................................12
9.8 Filing............................................................12
9.9 Termination.......................................................12
9.10 Attorneys' Fees...................................................12
9.11 No Third Party Beneficiaries......................................12
REGISTRATION RIGHTS AGREEMENT
Registration Rights Agreement (this "Agreement") dated as of October 7,
2005 between Cirilium Holdings, Inc., a Delaware corporation (the "Company") and
Media Magic, Inc., a Florida corporation ("Media Magic").
RECITALS
WHEREAS, pursuant to that certain Share Acquisition and Exchange Agreement
of even date herewith, by and among the Company, Media Magic and Orangebox
Entertainment, Inc. ("Share Exchange Agreement"), Media Magic acquired
158,191,589 shares of Common Stock (the "Media Magic Shares") from the Company
and agreed to provide certain rights to Media Magic to cause the Media Magic
Shares to be registered pursuant to the Securities Act; and
WHEREAS, the parties hereto hereby desire to set forth Media Magic's
rights and the Company's obligations to cause the registration of the Media
Magic Shares pursuant to the Securities Act;
NOW, THEREFORE, in consideration of the consummation of the transactions
contemplated in and by the Share Exchange Agreement, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Definitions and Usage.
As used in this Agreement:
1.1 Definitions.
"Board" shall mean the Board of Directors of the Company.
"Commission" shall mean the Securities and Exchange Commission.
"Common Stock" shall mean (i) the common stock, $.0001 par value per
share, of the Company, and (ii) shares of capital stock of the Company issued by
the Company in respect of or in exchange for shares of such common stock in
connection with any stock dividend or distribution, stock split-up,
recapitalization, recombination or exchange by the Company generally of shares
of such common stock.
"Continuously Effective", with respect to a specified registration
statement, shall mean that it shall not cease to be effective and available for
Transfers of Media Magic Shares thereunder for longer than either (i) any ten
(10) consecutive business days, or (ii) an aggregate of fifteen (15) business
days during the period specified in the relevant provision of this Agreement.
"Demand Registration" shall have the meaning set forth in Section 2.1(i).
"Exchange Act" shall mean the Securities Exchange Act of 1934.
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"Media Magic Shareholders" shall mean the shareholders of Media Magic to
whom the Media Magic Shares shall be distributed pursuant to a Demand
Registration.
"Media Magic Shares" shall have the meaning set forth in the Preamble.
"Person" shall mean any individual, corporation, partnership, joint
venture, association, joint-stock company, limited liability company, trust,
unincorporated organization or government or other agency or political
subdivision thereof.
"Register", "registered", and "registration" shall 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 by the
Commission of effectiveness of such registration statement or document.
"Registration Expenses" shall have the meaning set forth in Section 6.1.
"Securities Act" shall mean the Securities Act of 1933.
"Share Exchange Agreement" shall have the meaning set forth in the
Recitals.
"Transfer" shall mean and include the act of selling, giving,
transferring, creating a trust (voting or otherwise), assigning or otherwise
disposing of (other than pledging, hypothecating or otherwise transferring as
security) (and correlative words shall have correlative meanings); provided
however, that any transfer or other disposition upon foreclosure or other
exercise of remedies of a secured creditor after an event of default under or
with respect to a pledge, hypothecation or other transfer as security shall not
constitute a "Transfer".
"Violation" shall have the meaning set forth in Section 7.1.
1.2 Usage.
(i) References to a Person are also references to its assigns and
successors in interest (by means of merger, consolidation or sale of all or
substantially all the assets of such Person or otherwise, as the case may be).
(ii) References to a document are to it as amended, waived and
otherwise modified from time to time and references to a statute or other
governmental rule are to it as amended and otherwise modified from time to time
(and references to any provision thereof shall include references to any
successor provision).
(iii) References to Sections or to Schedules or Exhibits are to
sections hereof or schedules or exhibits hereto, unless the context otherwise
requires.
(iv) The definitions set forth herein are equally applicable both to
the singular and plural forms and the feminine, masculine and neuter forms of
the terms defined.
(v) The term "including" and correlative terms shall be deemed to be
followed by "without limitation" whether or not followed by such words or words
of like import.
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(vi) The term "hereof" and similar terms refer to this Agreement as
a whole.
(vii) The "date of" any notice or request given pursuant to this
Agreement shall be determined in accordance with Section 13.
2. Demand Registration.
2.1 At any time during the one year period commencing on the date of
this Agreement, if Media Magic shall advise the Company in writing that Media
Magic intends to distribute all of the Media Magic Shares to its shareholders,
and in such writing Media Magic requests the Company to register all of the
Media Magic Shares for distribution to Media Magic's shareholders and for resale
by those shareholders to the public, the Company shall cause to be filed with
the Commission a registration statement meeting the requirements of the
Securities Act (a "Demand Registration"). Any request made pursuant to this
Section 2.1 shall be addressed to the attention of the Secretary of the Company
and shall specify the intended methods of disposition of the Media Magic Shares,
and that the request is for a Demand Registration pursuant to this Section 2.1.
2.2 The Company shall be entitled to postpone for up to 60 days the
filing of any Demand Registration statement otherwise required to be prepared
and filed pursuant to this Section 2.1, if the Board determines, in its good
faith reasonable judgment (with the concurrence of the managing underwriter, if
any), that such registration and the Transfer of Media Magic Shares contemplated
thereby would materially interfere with, or require premature disclosure of, any
financing, acquisition or reorganization involving the Company or any of its
wholly owned subsidiaries and the Company promptly gives Media Magic notice of
such determination.
2.3 Following receipt of a request for a Demand Registration, the
Company shall:
(a) File a registration statement on the appropriate form with the
Commission as promptly as practicable, and shall use the Company's best efforts
to have the registration declared effective under the Securities Act as soon as
reasonably practicable, in each instance giving due regard to the need to
prepare current financial statements, conduct due diligence and complete other
actions that are reasonably necessary to effect a registered public offering.
(b) Use the Company's best efforts to keep the relevant registration
statement Continuously Effective for up to two years or until such earlier date
as of which all the Media Magic Shares under the Demand Registration statement
shall have been disposed of in the manner described in the Registration
Statement. Notwithstanding the foregoing, if for any reason the effectiveness of
a registration pursuant to this Section 2 is suspended or, in the case of a
Demand Registration, postponed as permitted by Section 2.2, the foregoing period
shall be extended by the aggregate number of days of such suspension or
postponement.
2.4 The Company shall be obligated to effect not more than one Demand
Registration. For purposes of the preceding sentence, registration shall not be
deemed to have been effected (a) unless a registration statement with respect
thereto has become effective, or (b) if after such registration statement has
become effective, such registration or the related offer, sale or distribution
of Media Magic Shares thereunder is interfered with by any stop order,
injunction or other order or requirement of the Commission or other governmental
agency or court for any reason not attributable to Media Magic and/or the Media
Magic Shareholders and such interference is not thereafter eliminated. If the
Company shall have complied with its obligations under this Agreement, a right
to demand a registration pursuant to this Section 2 shall be deemed to have been
satisfied upon the earlier of (x) the date as of which all of the Media Magic
Shares included therein shall have been Transferred by the Media Magic
Shareholders pursuant to the Registration Statement, and (y) the date as of
which such Demand Registration shall have been Continuously Effective for a
period of two years.
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2.5 A registration pursuant to this Section 2 shall be on such
appropriate registration form of the Commission as shall (a) be selected by the
Company and be reasonably acceptable to the Media Magic, and (b) permit the
disposition of the Media Magic Shares in accordance with the intended method or
methods of disposition specified in the request pursuant to Section 2.1.
3. Registration Procedures. Whenever required under Section 2 to effect the
registration of any Media Magic Shares, the Company shall, as expeditiously as
practicable:
3.1 Prepare and file with the Commission a registration statement with
respect to such Media Magic Shares and use the Company's best efforts to cause
such registration statement to become effective; provided, however, that before
filing a registration statement or prospectus or any amendments or supplements
thereto, including documents incorporated by reference after the initial filing
of the registration statement and prior to effectiveness thereof, the Company
shall furnish to Media Magic's designated counsel copies of all such documents
in the form substantially as proposed to be filed with the Commission at least
four (4) business days prior to filing for review and comment by such counsel.
3.2 Prepare and file with the Commission 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 and rules thereunder with respect to the disposition of all
securities covered by such registration statement. Subject to the Securities Act
and the rules thereunder, the Company shall amend the registration statement or
supplement the prospectus so that it will remain current and in compliance with
the requirements of the Securities Act for two years after its effective date,
and if during such period any event or development occurs as a result of which
the registration statement or prospectus contains a misstatement 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, the Company shall
promptly notify Media Magic, amend the registration statement or supplement the
prospectus so that each will thereafter comply with the Securities Act and
furnish to Media Magic and the Media Magic Shareholders such amended or
supplemented prospectus, which Media Magic and the Media Magic Shareholders
shall thereafter use in the Transfer of Media Magic Shares covered by such
registration statement. Pending such amendment or supplement Media Magic shall
cause each Media Magic Shareholder to cease making offers or Transfers of Media
Magic Shares pursuant to the prior prospectus. In the event that any Media Magic
Shares included in a registration statement subject to, or required by, this
Agreement remain unsold at the end of the period during which the Company is
obligated to use its best efforts to maintain the effectiveness of such
registration statement, the Company may file a post-effective amendment to the
registration statement for the purpose of removing such Securities from
registered status.
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3.3 Furnish to each Media Magic Shareholder, without charge, such
numbers of copies of the registration statement, any pre-effective or
post-effective amendment thereto, the prospectus, including each preliminary
prospectus and any amendments or supplements thereto, in each case in conformity
with the requirements of the Securities Act and the rules thereunder.
3.4 Use the Company's best efforts (a) to register and qualify the
securities covered by such registration statement under such other securities or
Blue Sky laws of such states or jurisdictions as shall be reasonably requested
by Media Magic, and (b) to obtain the withdrawal of any order suspending the
effectiveness of a registration statement, or the lifting of any suspension of
the qualification (or exemption from qualification) of the offer and transfer of
any of the Media Magic Shares in any jurisdiction, at the earliest possible
moment; provided, however, 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.
3.5 Promptly notify Media Magic and each Media Magic Shareholder (to the
extent reasonably possible) of any stop order issued or threatened to be issued
by the Commission in connection therewith (and take all reasonable actions
required to prevent the entry of such stop order or to remove it if entered).
3.6 Make available for inspection by Media Magic, all financial and
other information as shall be reasonably requested by them, and provide Media
Magic and its designated counsel the opportunity to discuss the business affairs
of the Company with its principal executives and independent registered public
accountants who have audited the financial statements included in such
registration statement, in each case all as necessary to enable them to exercise
their due diligence responsibility under the Securities Act; provided, however,
that information that the Company determines, in good faith, to be confidential
and which the Company advises such Person in writing is confidential shall not
be disclosed unless such Person signs a confidentiality agreement reasonably
satisfactory to the Company.
3.7 Use the Company's best efforts to obtain a so-called "comfort
letter" from its independent registered public accountants, and legal opinions
of counsel to the Company addressed to Media magic and the Media Magic
Shareholders, in customary form and covering such matters of the type
customarily covered by such letters, and in a form that shall be reasonably
satisfactory to Media Magic. The Company shall furnish to Media Magic or any
Media Magic Shareholder a signed counterpart of any such comfort letter or legal
opinion. Delivery of any such opinion or comfort letter shall be subject to the
recipient furnishing such written representations or acknowledgements as are
customarily provided by selling shareholders who receive such comfort letters or
opinions.
3.8 Provide and cause to be maintained a transfer agent and registrar
for all Media Magic Shares covered by such registration statement from and after
a date not later than the effective date of such registration statement.
3.9 Use all reasonable efforts to cause the Media Magic Shares covered
by such registration statement (a) if the Common Stock is then listed on a
securities exchange or included for quotation in a recognized trading market, to
continue to be so listed or included for a reasonable period of time after the
offering, and (b) to be registered with or approved by such other United States
or state governmental agencies or authorities as may be necessary by virtue of
the business and operations of the Company to enable the Media Magic
Shareholders to consummate the disposition of such Media Magic Shares.
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3.10 If necessary, to use the Company's reasonable efforts to provide a
CUSIP number for the Media Magic Shares prior to the effective date of the first
registration statement including Media Magic Shares.
3.11 Take such other actions as are reasonably required in order to
expedite or facilitate the disposition of Media Magic Shares included in each
such registration.
3.12 Media Magic's Obligations. It shall be a condition precedent to the
obligations of the Company to take any action pursuant to this Agreement with
respect to the Media Magic Shares of any Media Magic Shareholder that Media
Magic shall furnish to the Company such information regarding the Media Magic
Shareholders, and the intended method of disposition of the Media Magic Shares
as shall be required to effect the registration of such Media Magic
Shareholders' Media Magic Shares, and to cooperate with the Company in preparing
such registration.
4. Expenses of Registration. Expenses in connection with registrations
pursuant to this Agreement shall be allocated and paid as follows:
4.1 The Company shall bear and pay all expenses incurred in connection
with the Demand Registration of Media Magic Shares, including all registration,
filing and National Association of Securities Dealers, Inc. fees, all fees and
expenses of complying with securities or blue sky laws, all word processing,
duplicating and printing expenses, messenger and delivery expenses, the
reasonable fees and disbursements of counsel for the Company, and of the
Company's independent registered public accountants, including the expenses of
"cold comfort" letters required by or incident to such performance and
compliance (the "Registration Expenses"), but excluding underwriting discounts
and commissions relating to Media Magic Shares (which shall be paid by the Media
Magic Shareholders); provided, however, that the Company shall not be required
to pay for any expenses of any registration proceeding begun pursuant to Section
2 if the registration is subsequently withdrawn at the request of Media Magic
(in which case Media Magic shall bear such expense).
4.2 Any failure of the Company to pay any Registration Expenses as
required by this Section 4 shall not relieve the Company of its obligations
under this Agreement.
5. Indemnification; Contribution. If any Media Magic Shares are included in a
registration statement under this Agreement:
5.1 To the extent permitted by applicable law, the Company shall
indemnify and hold harmless Media Magic and each Media Magic Shareholder,
against any and all losses, claims, damages, liabilities and expenses (joint or
several), including attorneys' fees and disbursements and expenses of
investigation, incurred by such party pursuant to any actual or threatened
action, suit, proceeding or investigation, or to which any of the foregoing
Persons may become subject under the Securities Act, the Exchange Act or other
federal or state laws, insofar as such losses, claims, damages, liabilities and
expenses arise out of or are based upon any of the following statements,
omissions or violations (collectively a "Violation"):
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(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 Exchange Act, any applicable state securities law or any
rule or regulation promulgated under the Securities Act, the Exchange Act or any
applicable state securities law;
provided, however, that the indemnification required by this Section 5.1 shall
not apply to amounts paid in settlement of any such loss, claim, damage,
liability or expense 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 expense 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 to the Company by the indemnified party expressly for use in
connection with such registration. The Company shall also indemnify
underwriters, selling brokers, dealer managers and similar securities industry
professionals participating in the distribution, their officers, directors,
agents and employees 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
Media Magic Shareholders.
5.2 To the extent permitted by applicable law, Media Magic and each
Media Magic Shareholder shall indemnify and hold harmless the Company, each of
its directors, each of its officers who shall have signed the registration
statement, each Person, if any, who controls the Company within the meaning of
the Securities Act, against any and all losses, claims, damages, liabilities and
expenses (joint and several), including attorneys' fees and disbursements and
expenses of investigation, incurred by such party pursuant to any actual or
threatened action, suit, proceeding or investigation, or to which any of the
foregoing Persons may otherwise become subject under the Securities Act, the
Exchange Act or other federal or state laws, insofar as such losses, claims,
damages, liabilities and expenses 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
Selling Holder expressly for use in the registration statement; provided,
however, that (x) the indemnification required by this Section 5.2 shall not
apply to amounts paid in settlement of any such loss, claim, damage, liability
or expense if settlement is effected without the consent of Media Magic or the
relevant Media Magic Shareholder, which consent shall not be unreasonably
withheld, and (y) in no event shall the amount of any indemnity under this
Section 5.2 exceed the gross proceeds from the applicable offering received by
such Selling Holder.
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5.3 Promptly after receipt by an indemnified party under this Section 5
of notice of the commencement of any action, suit, proceeding, investigation or
threat thereof made in writing for which such indemnified party may make a claim
under this Section 5, such indemnified party shall deliver to the indemnifying
party a written notice of the commencement thereof and the indemnifying party
shall have the right to participate in, and, to the extent the indemnifying
party so desires, jointly with any other indemnifying party similarly noticed,
to assume the defense thereof with counsel mutually satisfactory to the parties;
provided, however, that an indemnified party shall have the right to retain its
own counsel, with the fees and disbursements 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. Any fees and expenses incurred
by the indemnified party (including any fees and expenses incurred in connection
with investigating or preparing to defend such action or proceeding) shall be
paid to the indemnified party, as incurred, within thirty (30) days of written
notice thereof to the indemnifying party. Any such indemnified party shall have
the right to employ separate counsel in any such action, claim or proceeding and
to participate in the defense thereof, but the fees and expenses of such counsel
shall be the expenses of such indemnified party unless (i) the indemnifying
party has agreed to pay such fees and expenses, (ii) the indemnifying party
shall have failed to promptly assume the defense of such action, claim or
proceeding or (iii) the named parties to any such action, claim or proceeding
(including any impleaded parties) include both such indemnified party and the
indemnifying party, and such indemnified party shall have been advised by
counsel that there may be one or more legal defenses available to it which are
different from or in addition to those available to the indemnifying party and
that the assertion of such defenses would create a conflict of interest such
that counsel employed by the indemnifying party could not faithfully represent
the indemnified party (in which case, if such indemnified party notifies the
indemnifying party in writing that it elects to employ separate counsel at the
expense of the indemnifying party, the indemnifying party shall not have the
right to assume the defense of such action, claim or proceeding on behalf of
such indemnified party, it being understood, however, that the indemnifying
party shall not, in connection with any one such action, claim or proceeding or
separate but substantially similar or related actions, claims or proceedings in
the same jurisdiction arising out of the same general allegations or
circumstances, be liable for the reasonable fees and expenses of more than one
separate firm of attorneys (together with appropriate local counsel) at any time
for all such indemnified parties, unless in the reasonable judgment of such
indemnified party a conflict of interest may exist between such indemnified
party and any other of such indemnified parties with respect to such action,
claim or proceeding, in which event the indemnifying party shall be obligated to
pay the fees and expenses of such additional counsel or counsels). No
indemnifying party shall be liable to an indemnified party for any settlement of
any action, proceeding or claim without the written consent of the indemnifying
party, which consent shall not be unreasonably withheld.
5.4 If the indemnification required by this Section 5 from the
indemnifying party is unavailable to an indemnified party hereunder in respect
of any losses, claims, damages, liabilities or expenses referred to in this
Section 5:
(a) 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 Violation has been committed by, or relates to information supplied
by, such indemnifying party or indemnified parties, and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such Violation. 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 5.1 and Section 5.2,
any legal or other fees or expenses reasonably incurred by such party in
connection with any investigation or proceeding.
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(b) The parties hereto agree that it would not be just and equitable
if contribution pursuant to this Section 5.4 were determined by pro rata
allocation or by any other method of allocation which does not take into account
the equitable considerations referred to in Section 5.4(a). 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.
5.5 If indemnification is available under this Section 5, the
indemnifying parties shall indemnify each indemnified party to the full extent
provided in this Section 5 without regard to the relative fault of such
indemnifying party or indemnified party or any other equitable consideration
referred to in Section 5.4.
5.6 The obligations of the Company, Media Magic and the Media Magic
Shareholders under this Section 5 shall survive the completion of any offering
of Media Magic Shares pursuant to a registration statement under this Agreement
or otherwise.
6. Covenants of the Company. The Company hereby agrees and covenants as
follows:
6.1 The Company shall file as and when applicable, on a timely basis,
all reports required to be filed by it under the Exchange Act, including the
annual report on Form 10-KSB for the fiscal year ended April 30, 2005 and the
quarterly report on Form 10-QSB for the quarter ended July 31, 2005, which shall
be filed within 60 days of the date hereof. If the Company is not required to
file reports pursuant to the Exchange Act, upon the request of any Media Magic
Shareholder, the Company shall make publicly available the information specified
in subparagraph (c)(2) of Rule 144 of the Securities Act, and take such further
action as may be reasonably required from time to time and as may be within the
reasonable control of the Company, to enable Media Magic and any Media Magic
Shareholder to Transfer Media Magic Shares without registration under the
Securities Act within the limitation of the exemptions provided by Rule 144 or,
if applicable, Regulation S, under the Securities Act or any similar rule or
regulation hereafter adopted by the Commission.
(a) The Company shall not, and shall not permit its majority owned
subsidiaries to, effect any public sale or distribution of any shares of Common
Stock or any securities convertible into or exchangeable or exercisable for
shares of Common Stock, during the five business days prior to, and during the
90-day period beginning on, the commencement of a public distribution of the
Media Magic Shares pursuant to any registration statement prepared pursuant to
this Agreement.
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(b) Any agreement entered into after the date of this Agreement
pursuant to which the Company or any of its majority owned subsidiaries issues
or agrees to issue any privately placed securities similar to any issue of the
Media Magic Shares (other than shares of Common Stock pursuant to a stock
incentive, stock option, stock bonus, stock purchase or other employee benefit
plan of the Company approved by its Board of Directors shall contain a provision
whereby holders of such securities agree not to effect any public sale or
distribution of any such securities during the periods described in Section
6.1(a), in each case including a sale pursuant to Rule 144 under the Securities
Act.
6.2 The Company shall not, directly or indirectly, (a) enter into any
merger, consolidation or reorganization in which the Company shall not be the
surviving corporation or (b) Transfer or agree to Transfer all or substantially
all the Company's assets, unless prior to such merger, consolidation,
reorganization or asset Transfer, the surviving corporation or the Transferee,
respectively, shall have agreed in writing to assume the obligations of the
Company under this Agreement, and for that purpose references hereunder to
"Media Magic Shares" shall be deemed to include the securities which the Media
Magic Shareholders would be entitled to receive in exchange for Media Magic
Shares pursuant to any such merger, consolidation or reorganization.
6.3 The Company shall not grant to any Person (other than a Media Magic
Shareholder) any registration rights with respect to securities of the Company,
or enter into any agreement, that would entitle the holder thereof to have
securities owned by it included in a Demand Registration.
7. Amendment, Modification and Waivers; Further Assurances.
(a) This Agreement may be amended with the consent of the Company
and the Company may take any action herein prohibited, or omit to perform any
act herein required to be performed by it, only if the Company shall have
obtained the written consent of Media Magic to such amendment, action or
omission to act.
(b) No waiver of any terms or conditions of this Agreement shall
operate as a waiver of any other breach of such terms and conditions or any
other term or condition, nor shall any failure to enforce any provision hereof
operate as a waiver of such provision or of any other provision hereof. No
written waiver hereunder, unless it by its own terms explicitly provides to the
contrary, shall be construed to effect a continuing waiver of the provisions
being waived and no such waiver in any instance shall constitute a waiver in any
other instance or for any other purpose or impair the right of the party against
whom such waiver is claimed in all other instances or for all other purposes to
require full compliance with such provision.
(c) Each of the parties hereto shall execute all such further
instruments and documents and take all such further action as any other party
hereto may reasonably require in order to effectuate the terms and purposes of
this Agreement.
8. Assignment; Benefit. This Agreement and all of the provisions hereof shall
be binding upon and shall inure to the benefit of the parties hereto and their
respective heirs, assigns, executors, administrators or successors; provided,
however, that neither this Agreement nor any of the rights, interests or
obligations hereunder shall be assigned or delegated by the Company without the
prior written consent of Media Magic.
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9. Miscellaneous.
9.1 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT GIVING REGARD TO THE
CONFLICT OF LAWS PRINCIPLES THEREOF.
9.2 Notices. All notices and requests given pursuant to this Agreement
shall be in writing and shall be made by hand-delivery, first-class mail
(registered or certified, return receipt requested) or overnight air courier
guaranteeing next business day delivery, to the respective addresses of the
Company and Media Magic set forth below, or to such other address as such party
may designate by notice given in accordance with this Section 9.2. Except as
otherwise provided in this Agreement, the date of each such notice and request
shall be deemed to be, and the date on which each such notice and request shall
be deemed given shall be: at the time delivered, if personally delivered or
mailed; or the next business day after timely delivery to the courier, if sent
by overnight air courier guaranteeing next business day delivery. All notices to
be delivered hereunder shall be addressed, as follows:
(a) It to the Company:
Cirilium Holdings, Inc.
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Attention: President
(b) If to Media Magic or a Media Magic Shareholder:
Media Magic, Inc.
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Attention: CEO
with a copy to
▇▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
Arent Fox PLLC
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9.3 Entire Agreement; Integration. This Agreement supersedes all prior
agreements between or among any of the parties hereto with respect to the
subject matter contained herein and therein, and such agreements embody the
entire understanding among the parties relating to such subject matter.
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9.4 Injunctive Relief. Each of the parties hereto acknowledges that in
the event of a breach by any of them of any material provision of this
Agreement, the aggrieved party may be without an adequate remedy at law. Each of
the parties therefore agrees that in the event of such a breach hereof the
aggrieved party may elect to institute and prosecute proceedings in any court of
competent jurisdiction to enforce specific performance or to enjoin the
continuing breach hereof. By seeking or obtaining any such relief, the aggrieved
party shall not be precluded from seeking or obtaining any other relief to which
it may be entitled.
9.5 Section Headings. Section headings are for convenience of reference
only and shall not affect the meaning of any provision of this Agreement.
9.6 Counterparts. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument. This Agreement
shall become effective when each party hereto shall have received a counterpart,
or facsimile of a counterpart, of the Agreement signed by the other party or
parties hereto. Delivery of an executed copy of this Agreement by facsimile
transmission shall have the same effect as delivery of an originally executed
copy of this Agreement, whether an originally executed copy shall be delivered
subsequent thereto.
9.7 Severability. If any provision of this Agreement shall be invalid or
unenforceable, such invalidity or unenforceability shall not affect the validity
and enforceability of the remaining provisions of this Agreement, unless the
result thereof would be unreasonable, in which case the parties hereto shall
negotiate in good faith as to appropriate amendments hereto.
9.8 Filing. A copy of this Agreement and of all amendments thereto shall
be filed at the principal executive office of the Company with the corporate
recorder of the Company.
9.9 Termination. This Agreement may be terminated at any time by a
written instrument signed by the parties hereto. Unless sooner terminated in
accordance with the preceding sentence, this Agreement (other than Section 5
hereof) shall terminate on the second anniversary of the date first above
written.
9.10 Attorneys' Fees. In any action or proceeding brought to enforce any
provision of this Agreement, or where any provision hereof is validly asserted
as a defense, the successful party shall be entitled to recover reasonable
attorneys' fees (including any fees incurred in any appeal) in addition to its
costs and expenses and any other available remedy.
9.11 No Third Party Beneficiaries. Nothing herein expressed or implied is
intended to confer upon any person, other than the parties hereto or their
respective permitted assigns, successors, heirs and legal representatives, any
rights, remedies, obligations or liabilities under or by reason of this
Agreement.
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IN WITNESS WHEREOF, this Agreement has been duly executed by the parties
hereto as of the date first written above.
CIRILIUM HOLDINGS, INC.
By:
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Chief Executive Officer
MEDIA MAGIC, INC.
By:
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Chief Executive Officer
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