REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT (this "AGREEMENT"), dated as of April 23,
1998, by and between Clearview Cinema Group, Inc., a Delaware corporation (the
"COMPANY"), and Proprietary Convertible Investment Group, Inc. (the
"PURCHASER").
The Company has agreed, on the terms and subject to the conditions set
forth in the Securities Purchase Agreement of even date herewith (the
"SECURITIES PURCHASE AGREEMENT"), to issue and sell to the Purchaser shares (the
"PREFERRED SHARES") of the Company's Class C Convertible Preferred Stock, par
value $0.01 per share (the "PREFERRED STOCK"). The Preferred Shares are
convertible pursuant to the Company's Certificate of Designation (the
"CERTIFICATE OF DESIGNATION") into shares (the "CONVERSION SHARES") of the
Company's Common Stock, par value $0.01 per share (the "COMMON STOCK"). In order
to induce the Purchaser to enter into the Securities Purchase Agreement, the
Company has agreed to provide certain registration rights under the Securities
Act of 1933, as amended (the "SECURITIES ACT"), and under applicable state
securities laws. Capitalized terms used herein and not otherwise defined shall
have the respective meanings set forth in the Securities Purchase Agreement.
In consideration of the Purchaser entering into the Securities Purchase
Agreement, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. DEFINITIONS.
For purposes of this Agreement, the following terms shall have the
meanings specified:
(a) "FILING DEADLINE" means the earlier to occur of (i) the
twentieth (20th) day following the date on which the Company
completes the distribution of the securities to be sold
pursuant to the High Yield Offering (as defined below) and
(ii) July 15, 1998;
(b) "HIGH YIELD OFFERING" means a distribution of debt
securities conducted by the Company as a registered public
offering or as an offering pursuant to Rule 144A and/or
Regulation S under the Securities Act;
(c) "HOLDER" means any person owning or having the right to
acquire Registrable Securities, including initially the
Purchaser and thereafter any permitted assignee thereof;
(d) "REGISTER", "REGISTERED" and "REGISTRATION" refer to a
registration effected by preparing and filing a registration
statement or statements in compliance with the Securities Act
and pursuant to Rule 415 under the Securities Act ("RULE 415")
or any successor rule providing for the offering of securities
on a continuous or delayed basis ("REGISTRATION STATEMENT"),
and the declaration or ordering of effectiveness of
the Registration Statement by the Securities and Exchange
Commission (the "COMMISSION");
(e) "REGISTRABLE SECURITIES" means the Conversion Shares and
the Dividend Payment Shares (as defined in the Certificate of
Designation), and any other shares of Common Stock issuable
pursuant to the terms of the Certificate of Designation or the
Preferred Stock, whether as a dividend, payment of a
redemption price or otherwise, and any shares of capital stock
issued or issuable by the Company from time to time (with any
adjustments) in replacement of, in exchange for or otherwise
in respect of the Conversion Shares or the Dividend Payment
Shares, including without limitation any securities received
by a Holder in connection with an Exchange Transaction (as
defined in the Certificate of Designation); PROVIDED, HOWEVER,
that any such securities shall be deemed to be Registrable
Securities only if and as long as such securities have not
been (A) sold in a public offering or public securities
transaction pursuant to an effective registration statement
under the Securities Act or (B) sold in a transaction exempt
from the registration and prospectus delivery requirements of
the Securities Act under Section 4(1) thereof so that all
transfer restrictions and restrictive legends with respect
thereto no longer apply or are removed upon the consummation
of such sale;
(f) "REGISTRATION DEADLINE" means the earlier to occur of (i)
sixtieth (60th) day following the date on which the
Registration Statement is filed by the Company and (ii)
September 15, 1998;
(g) "STANDSTILL PERIOD" means a period during which the
Holder, upon written notice from the Company while the
Registration Statement is effective, will not sell shares of
Common Stock; PROVIDED, HOWEVER, that (i) the Company may
declare a Standstill Period to occur no more than four (4)
times during any period of twelve consecutive months and (ii)
the aggregate number of days included in all Standstill
Periods occurring during any period of twelve consecutive
months may not exceed twenty four (24) days; and
(h) "TRADING DAY" shall have the meaning set forth in the
Certificate of Designation.
2. MANDATORY REGISTRATION.
(a) On or before the Filing Deadline, the Company shall
prepare and file with the Commission a Registration Statement on Form SB-2 as a
"shelf" registration statement under Rule 415 covering the resale of at least
150% of the number of shares of Registrable Securities then issuable on
conversion of the Preferred Shares (such number to be determined using the
Conversion Price in effect on such date). In addition, the Company may elect to
register for resale shares of Common Stock held by other holders. The
Registration Statement shall state, to the extent permitted by Rule 416 under
the Securities Act, that it also covers such indeterminate number of shares of
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Common Stock as may be required to effect conversion of the Preferred Shares to
prevent dilution resulting from stock splits, stock dividends or similar events,
or by reason of changes in the Conversion Price in accordance with the terms of
the Certificate of Designation. The plan of distribution included in the
Registration Statement or any amendment or supplement thereto shall include an
underwritten public offering only upon the mutual agreement of the Holder and
the Company. The Company will, as soon as may be practicable following the date
on which the Company becomes eligible to file a registration statement on Form
S-3 (regardless of whether the Registration Statement has theretofore been
declared effective by the Commission), convert the Registration Statement
(whether by post-effective amendment, the filing of a new registration statement
or otherwise) so that documents filed by the Company under the 1934 Act (as
defined below) may be incorporated by reference therein.
(b) The Company shall use its best efforts to cause the
Registration Statement to become effective as soon as practicable following the
filing thereof, but in no event later than the Registration Deadline, and shall
submit to the Commission, within five (5) business days after the Company learns
that no review of the Registration Statement will be made by the staff of the
Commission or that the staff of the Commission has no further comments on the
Registration Statement, as the case may be, a request for acceleration of the
effectiveness of the Registration Statement to a time and date not later than
forty-eight (48) hours after the submission of such request, and maintain the
effectiveness of the Registration Statement until the earlier to occur of (i)
the date on which all of the Registrable Securities have been sold pursuant to
the Registration Statement and (ii) the date on which all of the remaining
Registrable Securities (in the reasonable opinion of counsel to the Purchaser)
may be immediately sold to the public without registration and without regard to
the amount of Registrable Securities which may be sold by a Holder thereof at a
given time (the "REGISTRATION PERIOD").
(c) If (A) the Registration Statement is not filed on or
before the Filing Deadline or declared effective by the Commission on or before
the Registration Deadline, (B) after the Registration Statement has been
declared effective by the Commission, sales of Registrable Securities cannot be
made by a Holder under the Registration Statement for any reason not within the
exclusive control of such Holder (other than such Registrable Securities as are
then freely saleable pursuant to Rule 144(k) under the Securities Act) for any
period of three (3) consecutive Trading Days (other than Trading Days occurring
during a Standstill Period), or (C) the Common Stock is not listed on the
American Stock Exchange, the New York Stock Exchange or the Nasdaq National
Market System or is suspended from trading thereon for a period exceeding one
(1) Business Day (each, a "REGISTRATION EVENT"), the Company shall pay to each
Holder an amount at a rate equal to the lesser of (x) one percent (1%) per month
and (y) the highest rate permitted by applicable law, TIMES the aggregate
Liquidation Preference (as defined in the Certificate of Designation) of the
Preferred Shares held by such Holder, accruing daily and compounded monthly,
from the date on which a Registration Event first occurs until the date on which
the Registration Event is not longer continuing. The amounts paid or payable by
the Company hereunder shall be in addition to any other remedies available to
the Purchaser at law or in equity hereunder or pursuant to the terms of any
other Transaction Document. Payments of cash pursuant hereto shall be made
within five (5) days after the end of each period that gives rise to such
obligation, provided
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that, if any such period extends for more than thirty (30) days, payments shall
be made at the end of each thirty-day period.
(d) In the event that (A) the Registration Statement is not
declared effective by the twentieth (20th) Business Day following the
Registration Deadline, (B) after the Registration Statement has been declared
effective by the Commission, sales of Registrable Securities cannot be made by a
Holder under the Registration Statement for any reason not within the exclusive
control of such Holder (other than such Registrable Securities as are then
freely saleable pursuant to Rule 144(k) under the Securities Act) for any period
of three (3) consecutive Trading Days (other than Trading Days occurring during
a Standstill Period) or (C) the Common Stock is not listed on the American Stock
Exchange, the New York Stock Exchange or the Nasdaq National Market System or is
suspended from trading thereon for a period exceeding one (1) Business Day
(each, a "REPRICING EVENT"), in addition to any amounts which may be payable
pursuant to paragraph 2(c) above, the Fixed Conversion Price (as defined in the
Certificate of Designation) for any conversion of Preferred Shares occurring
after the date on which a Repricing Event first occurs shall be equal to the
lesser of (i) the lowest reported sale price occurring during the period between
the date on which a Repricing Event first occurs and the date on which such
Repricing Event is no longer continuing and (ii) the Fixed Conversion Price that
would otherwise be in effect on the relevant Conversion Date (as defined in the
Certificate of Designation).
3. PIGGYBACK REGISTRATION.
If at any time prior to the expiration of the Registration
Period, (i) the Company proposes to register shares of Common Stock under the
Securities Act in connection with the public offering of such shares for cash
(other than a registration relating solely to the sale of securities to
participants in a Company stock plan or employee stock award or a registration
on Form S-4 under the Securities Act or any successor or similar form
registering stock issuable upon a reclassification, a business combination
involving an exchange of securities or an exchange offer for securities of the
issuer or another entity) (a "PROPOSED REGISTRATION") and (ii) a registration
statement covering the sale of all of the Registrable Securities is not then
effective and available for sales thereof by the Holders, the Company shall, at
such time, promptly give each Holder written notice of such Proposed
Registration. Each Holder shall have fifteen (15) days from its receipt of such
notice to deliver to the Company a written request specifying the amount of
Registrable Securities that such Holder intends to sell. Upon receipt of such
request, the Company shall use its best efforts to cause all Registrable
Securities which the Company has been requested to register to be included in
the proposed registration; PROVIDED, HOWEVER, that the Company shall have the
right to postpone or withdraw any registration effected pursuant to this Section
3 without obligation to the Holder. If, in connection with any underwritten
public offering for the account of the Company, the managing underwriter(s)
thereof shall impose a limitation on the number of shares of Common Stock which
may be included in the registration statement because, in such underwriter(s)'
judgment, marketing or other factors dictate such limitation is necessary to
facilitate public distributions, then the Company shall be obligated to include
in such registration statement only such limited portion of the Registrable
Securities with respect to which each Holder has requested inclusion hereunder
as such underwriter(s) shall permit. Any exclusion of Registrable Securities
shall be made pro rata
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among the Holders seeking to include Registrable Securities in the registration
statement, in proportion to the number of Registrable Securities sought to be
included by such Holders; provided, however, that the Company shall not exclude
any Registrable Securities unless the Company has first excluded all outstanding
securities, the holders of which are not entitled to inclusion of such
securities in such registration statement or are not entitled to pro rata
inclusion with the Registrable Securities; and provided, further, however, that,
after giving effect to the immediately preceding proviso, any exclusion of
Registrable Securities shall be made pro rata (on the basis of the number of
shares of Common Stock held by or issuable to the Holders) with holders of other
securities having the right to include such securities in the registration
statement relating to an underwritten public offering with respect to which, in
the good faith opinion of the managing underwriter, the inclusion in the
offering of all shares requested to be registered by all persons holding
registration rights would materially jeopardize the successful marketing of the
securities to be sold.
4. OBLIGATIONS OF THE COMPANY.
In addition to performing its obligations hereunder, including those
pursuant to paragraphs 2(a) and 2(b) above, the Company shall:
(a) prepare and file with the Commission such amendments and
supplements to the Registration Statement and the prospectus used in connection
with the Registration Statement as may be necessary to comply with the
provisions of the Securities Act or to maintain the effectiveness of the
Registration Statement during the Registration Period, or as may be reasonably
requested by a Holder in order to incorporate information concerning such Holder
or such Holder's intended method of distribution;
(b) in the event that the number of shares available under the
Registration Statement filed by the Company hereunder is insufficient during any
period of three consecutive Trading Days (as defined in the Certificate of
Designation) to cover 150% of the Registrable Securities then issued or
issuable, the Company shall promptly amend the Registration Statement, or file a
new Registration Statement, or both, so as to cover 150% of such Registrable
Securities, in any event as soon as practicable, but not later than the tenth
business day following the last day of such three day period. Any Registration
Statement filed pursuant to this Section 4 shall state that, to the extent
permitted by Rule 416 under the Securities Act, such Registration Statement also
covers such indeterminate number of additional shares of Common Stock as may
become issuable upon conversion of all outstanding Preferred Shares. Unless and
until such amendment or new Registration Statement becomes effective, each
Holder shall have the rights described in Section 2 above;
(c) secure and maintain the listing of the Registrable
Securities on the American Stock Exchange, the New York Stock Exchange or the
Nasdaq National Market System;
(d) furnish to each Holder such number of copies of the
prospectus included in such Registration Statement, including a preliminary
prospectus, in conformity with the
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requirements of the Securities Act, and such other documents as such Holder may
reasonably request in order to facilitate the disposition of such Holder's
Registrable Securities;
(e) use all commercially reasonable efforts to register or
qualify the Registrable Securities under the securities or "blue sky" laws of
such jurisdictions within the United States as shall be reasonably requested
from time to time by a Holder, and do any and all other acts or things which may
be necessary or advisable to enable such Holder to consummate the public sale or
other disposition of the Registrable Securities in such jurisdictions; 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 jurisdiction;
(f) in the event of an underwritten public offering of the
Registrable Securities, enter into and perform its obligations under an
underwriting agreement, in usual and customary form reasonably acceptable to the
Company, with the managing underwriter of such offering;
(g) notify each Holder immediately upon the occurrence of any
event as a result of which the prospectus included in such Registration
Statement, as then in effect, contains an untrue statement of material fact or
omits to state a material fact required to be stated therein or necessary to
make the statements therein not misleading in light of the circumstances then
existing, and as promptly as practicable, prepare, file and furnish to each
Holder a reasonable number of copies of a supplement or an amendment to such
prospectus as may be necessary so that such prospectus does not contain an
untrue statement of material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading in
light of the circumstances then existing;
(h) use all commercially reasonable efforts to prevent the
issuance of any stop order or other order suspending the effectiveness of such
Registration Statement and, if such an order is issued, to obtain the withdrawal
thereof at the earliest possible time and to notify each Holder of the issuance
of such order and the resolution thereof;
(i) furnish to each Holder, on the date that such Registration
Statement becomes effective, (x) a letter, dated such date, of outside counsel
representing the Company (and reasonably acceptable to such Holder) addressed to
such Holder, confirming that such counsel has been informed by telephone of the
effectiveness of the Registration Statement and, to the knowledge of such
counsel, the absence of any stop order, and (y) in the case of an underwriting,
(A) an opinion, dated such date, of such outside counsel, in form and substance
as is customarily given to underwriters in an underwritten public offering, and
(B) a letter, dated such date, from the Company's independent certified public
accountants, in form and substance as is customarily given by independent
certified public accountants to underwriters in an underwritten public offering,
addressed to the underwriters and to each Holder;
(j) provide each Holder and/or its representatives the
opportunity to conduct a reasonable inquiry of the Company's financial and other
records during normal business hours and
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make available its officers, directors and employees for questions regarding
information which such Holder may reasonably request in order to fulfill any due
diligence obligation on its part;
(k) permit counsel for each Holder (at such Holder's expense)
to review such Registration Statement and all amendments and supplements thereto
a reasonable period of time prior to the filing thereof with the Commission; and
(l) declare a Standstill Period to exist only if the Company's
management has determined in good faith that a proposed transaction would render
the prospectus contained in the Registration Statement to be materially
misleading absent the filing of an appropriate supplement thereto (or an
appropriate amendment to the Registration Statement) and deliver written notice
to the Purchaser immediately upon the termination of any Standstill Period.
5. OBLIGATIONS OF EACH HOLDER.
In connection with the registration of the Registrable Securities
pursuant to the Registration Statement, each Holder shall:
(a) furnish to the Company such information regarding itself
and the intended method of disposition of Registrable Securities as the Company
shall reasonably request in order to effect the registration thereof;
(b) upon receipt of any notice from the Company of the
happening of any event of the kind described in paragraphs 4(g) or 4(h),
immediately discontinue disposition of Registrable Securities pursuant to the
Registration Statement until the filing of an amendment or supplement as
described in paragraph 4(g) or withdrawal of the stop order referred to in
paragraph 4(h);
(c) in the event of an underwritten offering of the
Registrable Securities, enter into a customary and reasonable underwriting
agreement and execute such other documents as the managing underwriter for such
offering may reasonably request;
(d) to the extent required by applicable law, deliver a
prospectus to each purchaser of Registrable Securities; and
(e) notify the Company when it has sold all of the Registrable
Securities theretofore held by it.
6. INDEMNIFICATION.
In the event that any Registrable Securities are included in a
Registration Statement under this Agreement:
(a) To the extent permitted by law, the Company shall
indemnify and hold harmless each Holder, the officers, directors, employees,
agents and representatives of such Holder,
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and each person, if any, who controls such Holder within the meaning of the
Securities Act or the Securities Exchange Act of 1934, as amended (the "1934
ACT"), against any losses, claims, damages, liabilities or reasonable
out-of-pocket expenses (whether joint or several) (collectively, including legal
or other expenses reasonably incurred in connection with investigating or
defending same, "LOSSES"), insofar as any such Losses arise out of or are based
upon (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,
or (ii) the omission or alleged omission to state therein a material fact
required to be stated therein, or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading. The
Company will reimburse such Holder, and each such officer, director, employee,
agent, representative or controlling person for any legal or other expenses as
reasonably incurred by any such entity or person in connection with
investigating or defending any Loss; provided, however, that the foregoing
indemnity shall not apply to amounts paid in settlement of any Loss if such
settlement is effected without the consent of the Company (which consent shall
not be unreasonably withheld), nor shall the Company be obligated to indemnify
any person for any Loss to the extent that such Loss arises out of or is based
upon and in conformity with written information furnished by such person
expressly for use in such Registration Statement; and provided, further, that
the Company shall not be required to indemnify any person to the extent that any
Loss results from such person selling Registrable Securities (i) to a person to
whom there was not sent or given, at or prior to the written confirmation of the
sale of such shares, a copy of the prospectus, as most recently amended or
supplemented, if the Company has previously furnished or made available copies
thereof or (ii) during any period following written notice by the Company to
such Holder of an event described in Section 4(g) or 4(h).
(b) To the extent permitted by law, each Holder, acting
severally and not jointly, shall indemnify and hold harmless the Company, the
officers, directors, employees, agents and representatives of the Company, and
each person, if any, who controls the Company within the meaning of the
Securities Act or the 1934 Act, against any Losses to the extent (and only to
the extent) that any such Losses arise out of or are based upon and in
conformity with written information furnished by such Holder expressly for use
in such Registration Statement; and such Holder will reimburse any legal or
other expenses as reasonably incurred by the Company and any such officer,
director, employee, agent, representative, or controlling person, in connection
with investigating or defending any such Loss; provided, however, that the
foregoing indemnity shall not apply to amounts paid in settlement of any such
Loss if such settlement is effected without the consent of such Holder, which
consent shall not be unreasonably withheld; provided, that, in no event shall
any indemnity under this subsection 6(b) exceed the net sale price of securities
sold by such Holder under the Registration Statement.
(c) Promptly after receipt by an indemnified party under this
Section 6 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 6, 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 assume the
defense thereof with counsel mutually satisfactory to the parties; provided,
however, that an indemnified party shall have
8
the right to retain its own counsel, with the reasonably incurred fees and
expenses of one such counsel to be paid by the indemnifying party, if
representation of such indemnified party by the counsel retained by the
indemnifying party would be inappropriate under applicable standards of
professional conduct due to actual or potential conflicting 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, to the extent
prejudicial to its ability to defend such action, shall relieve such
indemnifying party of any liability to the indemnified party under this Section
6 with respect to such action, 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 6 or with respect to any
other action.
(d) In the event that the indemnity provided in paragraph (a)
or (b) of this Section 6 is unavailable or insufficient to hold harmless an
indemnified party for any reason, the Company and each Holder agree, severally
and not jointly, to contribute to the aggregate Losses to which the Company or
such Holder may be subject in such proportion as is appropriate to reflect the
relative fault of the Company and such Holder in connection with the statements
or omissions which resulted in such Losses; provided, however, that in no case
shall such Holder be responsible for any amount in excess of the net purchase
price of securities sold by it under the Registration Statement. Relative fault
shall be determined by reference to whether any alleged untrue statement or
omission relates to information provided by the Company or by such Holder. The
Company and each Holder agree that it would not be just and equitable if
contribution were determined by pro rata allocation or any other method of
allocation which does not take account of the equitable considerations referred
to above. Notwithstanding the provisions of this paragraph (d), no person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who is not
guilty of such fraudulent misrepresentation. For purposes of this Section 6,
each person who controls a Holder within the meaning of either the Securities
Act or the Exchange Act and each officer, director, employee, agent or
representative of such Holder shall have the same rights to contribution as such
Holder, and each person who controls the Company within the meaning of either
the Securities Act or the Exchange Act and each officer, director, employee,
agent or representative of the Company shall have the same rights to
contribution as the Company, subject in each case to the applicable terms and
conditions of this paragraph (d).
(e) The obligations of the Company and each Holder under this
Section 6 shall survive the conversion or redemption, if any, of the Preferred
Shares, the completion of any offering of Registrable Securities pursuant to a
Registration Statement under this Agreement, or otherwise.
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7. REPORTS.
With a view to making available to each Holder the benefits of
Rule 144 under the Securities Act ("Rule 144") and any other similar rule or
regulation of the Commission that may at any time permit such Holder to sell
securities of the Company to the public without registration, the Company agrees
to:
(a) make and keep public information available, as those terms
are understood and defined in Rule 144;
(b) file with the Commission in a timely manner all reports
and other documents required of the Company under the Securities Act and the
1934 Act; and
(c) furnish to such Holder, so long as such Holder owns any
Registrable Securities, forthwith upon request (i) a written statement by the
Company, if true, that it has complied with the reporting requirements of Rule
144, the Securities Act and the 1934 Act, (ii) a copy of the most recent annual
or quarterly report of the Company and such other reports and documents filed by
the Company with the Commission, and (iii) such other information as may be
reasonably requested in availing such Holder of any rule or regulation of the
Commission which permits the selling of any such securities without
registration.
8. MISCELLANEOUS.
(a) EXPENSES OF REGISTRATION. All expenses, other than
underwriting discounts and commissions and fees and expenses of counsel to each
Holder, incurred in connection with the registrations, filings or qualifications
described herein, including (without limitation) all registration, filing and
qualification fees, printers' and accounting fees, the fees and disbursements of
counsel for the Company, and the fees and disbursements incurred in connection
with the opinion and letter described in paragraph 4(i) hereof, shall be borne
by the Company.
(b) AMENDMENT; WAIVER. Any provision of this Agreement may be
amended only pursuant to a written instrument executed by the Company and the
Holder. of at least two thirds (2/3) of the outstanding Registrable Securities
or, if no Registrable Securities are outstanding, the Holder of the outstanding
Preferred Shares. Any waiver of the provisions of this Agreement may be made
only pursuant to a written instrument executed by the party against whom
enforcement is sought. Any amendment or waiver effected in accordance with this
paragraph shall be binding upon each Holder, each future Holder, and the
Company. The failure of any party to exercise any right or remedy under this
Agreement or otherwise, or the delay by any party in exercising such right or
remedy, shall not operate as a waiver thereof.
(c) NOTICES. Any notice, demand or request required or
permitted to be given by any party to any other party pursuant to the terms of
this Agreement shall be in writing and shall be deemed given (i) when delivered
personally or by verifiable facsimile transmission (with an original to follow)
on or before 5:00 p.m., eastern time, on a business day or, if such day is not
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a business day, on the next succeeding business day, (ii) on the next business
day after timely delivery to a nationally-recognized overnight courier and (iii)
on the third business day after deposit in the U.S. mail (certified or
registered mail, return receipt requested, postage prepaid), addressed to the
parties as follows:
IF TO THE COMPANY:
Clearview Cinema Group, Inc.
00 Xxxx Xxxxxx
Xxxxxxx, Xxx Xxxxxx 00000
Attn: A. Xxxx Xxxx
Tel: 000-000-0000
Fax: 000-000-0000
WITH A COPY TO:
Xxxxxxxxxxx & Xxxxxxxx LLP
0000 Xxxxxx Xxxxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000-0000
Attn: Xxxxxx X. Xxxxxxx, Esq.
Tel: 000-000-0000
Fax: 000-000-0000
IF TO THE PURCHASER:
Proprietary Convertible Investment Group, Inc.
c/o Credit Suisse First Boston Corporation
Eleven Madison Avenue, 3rd Floor
New York, New York 10010
Attn: Xxxxx Xxxxx, Xxxx XxXxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
and if to any Holder other than the Purchaser, to such address as shall be
designated by such Holder in writing to the Company.
(d) TERMINATION. This Agreement shall terminate on the earlier
to occur of (a) the end of the Registration Period and (b) the date on which all
of the Registrable Securities have been publicly distributed; but any such
termination shall be without prejudice to (i) the parties' rights and
obligations arising from breaches of this Agreement occurring prior to such
termination and (ii) the indemnification and contribution obligations under this
Agreement.
(e) ASSIGNMENT. The rights of a Holder hereunder shall be
assigned automatically to any transferee of the Preferred Shares or Registrable
Securities from such Holder as long as: (i)
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the Company is, within a reasonable period of time following such transfer,
furnished with written notice of the name and address of such transferee, (ii)
the transferee agrees in writing with the Company to be bound by all of the
provisions hereof and (iii) such transfer is made in accordance with the
applicable requirements of the Securities Purchase Agreement.
(f) COUNTERPARTS. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, and all of which
together shall be deemed one and the same instrument. This Agreement, once
executed by a party, may be delivered to any other party hereto by facsimile
transmission.
(g) GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York without regard to
the conflict of laws provisions thereof.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date
first-above written.
CLEARVIEW CINEMA GROUP, INC.
By: __________________________
Name:
Title:
PROPRIETARY CONVERTIBLE INVESTMENT
GROUP, INC.
By: ______________________________
Name:
Title:
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