EXHIBIT 10.45
FORM OF
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is entered into as
of the ____ day of ______, 2006, by and among Media & Entertainment Holdings,
Inc., a Delaware corporation (the "Company"), and the undersigned party listed
under Investor on the signature page hereto (the "Investor").
WHEREAS, the Investor currently has purchased Warrants (as defined
below);
WHEREAS, the Investor and the Company desire to enter into this
Agreement to provide the Investor with certain rights relating to the
registration of shares of Common Stock held by it;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. DEFINITIONS. The following capitalized terms used herein have
the following meanings:
"Agreement" means this Agreement, as amended, restated, supplemented, or
otherwise modified from time to time.
"Commission" means the Securities and Exchange Commission, or any other
federal agency then administering the Securities Act or the Exchange Act.
"Common Stock" means the common stock, par value $0.0001 per share, of
the Company.
"Company" is defined in the preamble to this Agreement.
"Demand Registration" is defined in Section 2.1.1.
"Demanding Holder" is defined in Section 2.1.1.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations of the Commission promulgated thereunder, all as
the same shall be in effect at the time.
"Form S-3" is defined in Section 2.3.
"Indemnified Party" is defined in Section 4.3.
"Indemnifying Party" is defined in Section 4.3.
"Investor" is defined in the preamble to this Agreement.
"Investor Indemnified Party" is defined in Section 4.1.
"Maximum Number of Shares" is defined in Section 2.1.4.
"Notices" is defined in Section 6.3.
"Piggy-Back Registration" is defined in Section 2.2.1.
"Register," "Registered" and "Registration" mean a registration effected
by preparing and filing a registration statement or similar document in
compliance with the requirements of the Securities Act, and the applicable rules
and regulations promulgated thereunder, and such registration statement becoming
effective.
"Registrable Securities" means all of the Warrants held by the Investor.
As to any particular Registrable Securities, such securities shall cease to be
Registrable Securities when: (a) a Registration Statement with respect to the
sale of such securities shall have become effective under the Securities Act and
such securities shall have been sold, transferred, disposed of or exchanged in
accordance with such Registration Statement; (b) such securities shall have been
otherwise transferred, new certificates for them not bearing a legend
restricting further transfer shall have been delivered by the Company and
subsequent public distribution of them shall not require registration under the
Securities Act; (c) such securities shall have ceased to be outstanding, or (d)
the Securities and Exchange Commission makes a definitive determination to the
Company that the Registrable Securities are salable under Rule 144(k).
"Registration Statement" means a registration statement filed by the
Company with the Commission in compliance with the Securities Act and the rules
and regulations promulgated thereunder for a public offering and sale of Common
Stock (other than a registration statement on Form S-4 or Form S-8, or their
successors, or any registration statement covering only securities proposed to
be issued in exchange for securities or assets of another entity).
"Release Date" means the date on which separate trading of the Common
Stock and the Warrants (as described in the Registration Statement) commences.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations of the Commission promulgated thereunder, all as the same
shall be in effect at the time.
"Underwriter" means a securities dealer who purchases any Registrable
Securities as principal in an underwritten offering and not as part of such
dealer's market-making activities.
"Warrants" means all of the warrants to purchase Common Stock purchased
by the Investor.
2. REGISTRATION RIGHTS.
2.1. Demand Registration.
2.1.1. REQUEST FOR REGISTRATION. At any time and from
time to time on or after the Release Date, the holders of a majority-in-interest
of the Registrable Securities held by the Investor or the transferees of the
Investor may make a written demand for registration under the Securities Act of
all or part of such Registrable Securities (a "Demand Registration"). Any demand
for a Demand Registration shall specify the number of Registrable Securities
proposed to be sold and the intended method(s) of distribution thereof. The
Company will notify all holders of Registrable Securities of the demand, and
each such holder of Registrable Securities who wishes to include all or a
portion of such holder's Registrable Securities in the Demand Registration (each
such holder including Registrable Securities in such registration, a "Demanding
Holder") shall so notify the Company within fifteen (15) days after the receipt
by the holder of the notice from the Company. Upon any such request, the
Demanding Holders shall be entitled to have their Registrable Securities
included in the Demand Registration, subject to Section 2.1.4 and the provisos
set forth in Section 3.1.1. The Company shall not be obligated to effect more
than one (1) Demand Registration under this Section 2.1.1 in respect of
Registrable Securities.
2.1.2. EFFECTIVE REGISTRATION. A registration will not
count as a Demand Registration until the Registration Statement filed with the
Commission with respect to such Demand Registration has been declared effective
and the Company has complied with all of its obligations under this Agreement
with respect thereto; provided, however, that if, after such Registration
Statement has been declared effective, the offering of Registrable Securities
pursuant to a Demand Registration is interfered with by any stop order or
injunction of the Commission or any other governmental agency or court, the
Registration Statement with respect to such Demand Registration will be deemed
not to have been declared effective, unless and until, (i) such stop order or
injunction is removed, rescinded or otherwise terminated, and (ii) a
majority-in-interest of the Demanding Holders thereafter elect to continue the
offering.
2.1.3. UNDERWRITTEN OFFERING. If a majority-in-interest
of the Demanding Holders so elect and such holders so advise the Company as part
of their written demand for a Demand Registration, the offering of such
Registrable Securities pursuant to such Demand Registration shall be in the form
of an underwritten offering. In such event, the right of any holder to include
its Registrable Securities in such registration shall be conditioned upon such
holder's participation in such underwriting and the inclusion of such holder's
Registrable Securities in the underwriting to the extent provided herein. All
Demanding Holders proposing to distribute their securities through such
underwriting shall enter into an underwriting agreement in customary form with
the Underwriter or Underwriters selected for such underwriting by a
majority-in-interest of the holders initiating the Demand Registration.
2.1.4. REDUCTION OF OFFERING. If the managing
Underwriter or Underwriters for a Demand Registration that is to be an
underwritten offering advises the Company and the Demanding Holders in writing
that the dollar amount or number of shares of Registrable Securities which the
Demanding Holders desire to sell, taken together with all other shares of Common
Stock or other securities which the Company desires to sell and the shares of
Common Stock, if any, as to which registration has been requested pursuant to
written contractual piggy-back registration rights held by other stockholders of
the Company who desire to sell, exceeds the maximum dollar amount or maximum
number of shares that can be sold in such offering without adversely affecting
the proposed offering price, the timing, the distribution method, or the
probability of success of such offering (such maximum dollar amount or maximum
number of shares, as applicable, the "Maximum Number of Shares"), then the
Company shall include in such registration: (i) first, the Registrable
Securities as to which Demand Registration has been requested by the Demanding
Holders (pro rata in accordance with the number of shares that each such Person
has requested be included in such registration, regardless of the number of
shares held by each such Person (such proportion is referred to herein as "Pro
Rata")) that can be sold without exceeding the Maximum Number of Shares; (ii)
second, to the extent that the Maximum Number of Shares has not been reached
under the foregoing clause (i), the shares of Common Stock or other securities
that the Company desires to sell that can be sold without exceeding the Maximum
Number of Shares; (iii) third, to the extent that the Maximum Number of Shares
has not been reached under the foregoing clauses (i) and (ii), the shares of
Common Stock or other securities registrable pursuant to the terms of the Unit
Purchase Option issued to Ladenburg Xxxxxxxx & Co. Inc. or its designees in
connection with the Company's initial public offering (the "Unit Purchase
Option" and such registrable securities, the "Option Securities") as to which
"piggy-back" registration has been requested by the holders thereof, Pro Rata,
that can be sold without exceeding the Maximum Number of Shares; and (iv)
fourth, to the extent that the Maximum Number of Shares have not been reached
under the foregoing clauses (i), (ii), and (iii), the shares of Common Stock or
other securities for the account of other persons that the Company is obligated
to register pursuant to written contractual arrangements with such persons and
that can be sold without exceeding the Maximum Number of Shares.
2.1.5. WITHDRAWAL. If a majority-in-interest of the
Demanding Holders disapprove of the terms of any underwriting or are not
entitled to include all of their Registrable Securities in any offering, such
majority-in-interest of the Demanding Holders may elect to withdraw from such
offering by giving written notice to the Company and the Underwriter or
Underwriters of their request to withdraw prior to the effectiveness of the
Registration Statement filed with the Commission with respect to such Demand
Registration. If the majority-in-interest of the Demanding Holders withdraws
from a proposed offering relating to a Demand Registration, then such
registration shall not count as a Demand Registration provided for in Section
2.1.1.
2.2. Piggy-Back Registration.
2.2.1. PIGGY-BACK RIGHTS. If at any time on or after
the Release Date the Company proposes to file a Registration Statement under the
Securities Act with respect to an offering of equity securities, or securities
or other obligations exercisable or exchangeable for, or convertible into,
equity securities, by the Company for its own account or for stockholders of the
Company for their account (or by the Company and by stockholders of the Company
including, without limitation, pursuant to Section 2.1), other than a
Registration Statement (i) filed in connection with any employee stock option or
other benefit plan, (ii) for an exchange offer or offering of securities solely
to the Company's existing stockholders, (iii) for an offering of debt that is
convertible into equity securities of the Company or (iv) for a dividend
reinvestment plan,
then the Company shall (x) give written notice of such proposed filing to the
holders of Registrable Securities as soon as practicable but in no event less
than ten (10) days before the anticipated filing date, which notice shall
describe the amount and type of securities to be included in such offering, the
intended method(s) of distribution, and the name of the proposed managing
Underwriter or Underwriters, if any, of the offering, and (y) offer to the
holders of Registrable Securities in such notice the opportunity to register the
sale of such number of shares of Registrable Securities as such holders may
request in writing within five (5) days following receipt of such notice (a
"Piggy-Back Registration"). The Company shall cause such Registrable Securities
to be included in such registration and shall use its best efforts to cause the
managing Underwriter or Underwriters of a proposed underwritten offering to
permit the Registrable Securities requested to be included in a Piggy-Back
Registration on the same terms and conditions as any similar securities of the
Company and to permit the sale or other disposition of such Registrable
Securities in accordance with the intended method(s) of distribution thereof.
All holders of Registrable Securities proposing to distribute their securities
through a Piggy-Back Registration that involves an Underwriter or Underwriters
shall enter into an underwriting agreement in customary form with the
Underwriter or Underwriters selected for such Piggy-Back Registration.
2.2.2. REDUCTION OF OFFERING. If the managing
Underwriter or Underwriters for a Piggy-Back Registration that is to be an
underwritten offering advises the Company and the holders of Registrable
Securities in writing that the dollar amount or number of shares of Common Stock
which the Company desires to sell, taken together with shares of Common Stock,
if any, as to which registration has been demanded pursuant to written
contractual arrangements with persons other than the holders of Registrable
Securities hereunder, the Registrable Securities as to which registration has
been requested under this Section 2.2, and the shares of Common Stock, if any,
as to which registration has been requested pursuant to the written contractual
piggy-back registration rights of other stockholders of the Company, exceeds the
Maximum Number of Shares, then the Company shall include in any such
registration:
(i) If the registration is undertaken for
the Company's account: (A) first, the shares of Common Stock or other securities
that the Company desires to sell that can be sold without exceeding the Maximum
Number of Shares; (B) second, to the extent that the Maximum Number of Shares
has not been reached under the foregoing clause (A), the shares of Common Stock
or other securities, if any, comprised of Registrable Securities and Option
Securities, as to which registration has been requested pursuant to the
applicable written contractual piggy-back registration rights of such security
holders, Pro Rata, that can be sold without exceeding the Maximum Number of
Shares; and (C) third, to the extent that the Maximum Number of shares has not
been reached under the foregoing clauses (A) and (B), the shares of Common Stock
or other securities for the account of other persons that the Company is
obligated to register pursuant to written contractual piggy-back registration
rights with such persons and that can be sold without exceeding the Maximum
Number of Shares;
(ii) If the registration is a "demand"
registration undertaken at the demand of holders of Option Securities, (A)
first, the shares of Common Stock or other securities for the account of the
holders of any Option Securities (including any Persons entitled to piggy-back
registration rights under the agreement governing the Option Securities), Pro
Rata, that can be sold without exceeding the Maximum Number of Shares; (B)
second, to the extent
that the Maximum Number of Shares has not been reached under the foregoing
clause (A), the shares of Common Stock or other securities that the Company
desires to sell that can be sold without exceeding the Maximum Number of Shares;
(C) third, to the extent that the Maximum Number of Shares has not been reached
under the foregoing clauses (A) and (B), the shares of Registrable Securities,
Pro Rata, as to which registration has been requested pursuant to the terms
hereof, that can be sold without exceeding the Maximum Number of Shares; and (D)
fourth, to the extent that the Maximum Number of Shares has not been reached
under the foregoing clauses (A), (B) and (C), the shares of Common Stock or
other securities for the account of other persons that the Company is obligated
to register pursuant to written contractual arrangements with such persons, that
can be sold without exceeding the Maximum Number of Shares; and
(iii) If the registration is a "demand"
registration undertaken at the demand of persons other than either the holders
of Registrable Securities or of Option Securities, (A) first, the shares of
Common Stock or other securities for the account of the demanding persons that
can be sold without exceeding the Maximum Number of Shares; (B) second, to the
extent that the Maximum Number of Shares has not been reached under the
foregoing clause (A), the shares of Common Stock or other securities that the
Company desires to sell that can be sold without exceeding the Maximum Number of
Shares; (C) third, to the extent that the Maximum Number of Shares has not been
reached under the foregoing clauses (A) and (B), collectively the shares of
Common Stock or other securities comprised of Registrable Securities and Option
Securities, Pro Rata, as to which registration has been requested pursuant to
the terms hereof and of the Unit Purchase Option, as applicable, that can be
sold without exceeding the Maximum Number of Shares; and (D) fourth, to the
extent that the Maximum Number of Shares has not been reached under the
foregoing clauses (A), (B) and (C), the shares of Common Stock or other
securities for the account of other persons that the Company is obligated to
register pursuant to written contractual arrangements with such persons, that
can be sold without exceeding the Maximum Number of Shares.
2.2.3. WITHDRAWAL. Any holder of Registrable Securities
may elect to withdraw such holder's request for inclusion of Registrable
Securities in any Piggy-Back Registration by giving written notice to the
Company of such request to withdraw prior to the effectiveness of the
Registration Statement. The Company (whether on its own determination or as the
result of a withdrawal by persons making a demand pursuant to written
contractual obligations) may withdraw a registration statement at any time prior
to the effectiveness of the Registration Statement. Notwithstanding any such
withdrawal, the Company shall pay all expenses incurred by the holders of
Registrable Securities in connection with such Piggy-Back Registration as
provided in Section 3.3.
2.3. REGISTRATIONS ON FORM S-3. The holders of Registrable
Securities may at any time and from time to time, request in writing that the
Company register the resale of any or all of such Registrable Securities on Form
S-3 or any similar short-form registration which may be available at such time
("Form S-3"); provided, however, that the Company shall not be obligated to
effect such request through an underwritten offering. Upon receipt of such
written request, the Company will promptly give written notice of the proposed
registration to all other holders of Registrable Securities, and, as soon as
practicable thereafter, effect the registration of all or such portion of such
holder's or holders' Registrable Securities as are specified in such
request, together with all or such portion of the Registrable Securities or
other securities of the Company, if any, of any other holder or holders 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 pursuant
to this Section 2.3: (i) if Form S-3 is not available for such offering; or (ii)
if the holders of the Registrable Securities, 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 any
aggregate price to the public of less than $500,000. Registrations effected
pursuant to this Section 2.3 shall not be counted as Demand Registrations
effected pursuant to Section 2.1.
3. REGISTRATION PROCEDURES.
3.1. FILINGS; INFORMATION. Whenever the Company is required
to effect the registration of any Registrable Securities pursuant to Section 2,
the Company shall use its best efforts to effect the registration and sale of
such Registrable Securities in accordance with the intended method(s) of
distribution thereof as expeditiously as practicable, and in connection with any
such request:
3.1.1. FILING REGISTRATION STATEMENT. The Company
shall, as expeditiously as possible and in any event within sixty (60) days
after receipt of a request for a Demand Registration pursuant to Section 2.1,
prepare and file with the Commission a Registration Statement on any form for
which the Company then qualifies or which counsel for the Company shall deem
appropriate and which form shall be available for the sale of all Registrable
Securities to be registered thereunder in accordance with the intended method(s)
of distribution thereof, and shall use its best efforts to cause such
Registration Statement to become and remain effective for the period required by
Section 3.1.3; provided, however, that the Company shall have the right to defer
any Demand Registration for up to thirty (30) days, and any Piggy-Back
Registration for such period as may be applicable to deferment of any demand
registration to which such Piggy-Back Registration relates, in each case if the
Company shall furnish to the holders 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 materially detrimental to the Company and
its stockholders for such Registration Statement to be effected at such time;
provided further, however, that the Company shall not have the right to exercise
the right set forth in the immediately preceding proviso more than once in any
365-day period in respect of a Demand Registration hereunder.
3.1.2. COPIES. The Company shall, prior to filing a
Registration Statement or prospectus, or any amendment or supplement thereto,
furnish without charge to the holders of Registrable Securities included in such
registration, and such holders' legal counsel, copies of such Registration
Statement as proposed to be filed, each amendment and supplement to such
Registration Statement (in each case including all exhibits thereto and
documents incorporated by reference therein), the prospectus included in such
Registration Statement (including each preliminary prospectus), and such other
documents as the holders of Registrable Securities included in such registration
or legal counsel for any such holders may request in order to facilitate the
disposition of the Registrable Securities owned by such holders.
3.1.3. AMENDMENTS AND SUPPLEMENTS. The Company shall
prepare and file with the Commission such amendments, including post-effective
amendments, and supplements to such Registration Statement and the prospectus
used in connection therewith as may be necessary to keep such Registration
Statement effective and in compliance with the provisions of the Securities Act
until all Registrable Securities and other securities covered by such
Registration Statement have been disposed of in accordance with the intended
method(s) of distribution set forth in such Registration Statement (which period
shall not exceed the sum of one hundred eighty (180) days plus any period during
which any such disposition is interfered with by any stop order or injunction of
the Commission or any governmental agency or court) or such securities have been
withdrawn.
3.1.4. NOTIFICATION. After the filing of a Registration
Statement, the Company shall promptly, and in no event more than two (2)
business days after such filing, notify the holders of Registrable Securities
included in such Registration Statement of such filing, and shall further notify
such holders promptly and confirm such advice in writing in all events within
two (2) business days of the occurrence of any of the following: (i) when such
Registration Statement becomes effective; (ii) when any post-effective amendment
to such Registration Statement becomes effective; (iii) the issuance or
threatened issuance by the Commission of any stop order (and the Company shall
take all actions required to prevent the entry of such stop order or to remove
it if entered); and (iv) any request by the Commission for any amendment or
supplement to such Registration Statement or any prospectus relating thereto or
for additional information or of the occurrence of an event requiring the
preparation of a supplement or amendment to such prospectus so that, as
thereafter delivered to the purchasers of the securities covered by such
Registration Statement, such prospectus will not contain an untrue statement of
a material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading, and promptly make
available to the holders of Registrable Securities included in such Registration
Statement any such supplement or amendment; except that before filing with the
Commission a Registration Statement or prospectus or any amendment or supplement
thereto, including documents incorporated by reference, the Company shall
furnish to the holders of Registrable Securities included in such Registration
Statement and to the legal counsel for any such holders, copies of all such
documents proposed to be filed sufficiently in advance of filing to provide such
holders and legal counsel with a reasonable opportunity to review such documents
and comment thereon, and the Company shall not file any Registration Statement
or prospectus or amendment or supplement thereto, including documents
incorporated by reference, to which such holders or their legal counsel shall
reasonably object.
3.1.5. STATE SECURITIES LAWS COMPLIANCE. The Company
shall use its best efforts to (i) register or qualify the Registrable Securities
covered by the Registration Statement under such securities or "blue sky" laws
of such jurisdictions in the United States as the holders of Registrable
Securities included in such Registration Statement (in light of their intended
plan of distribution) may request and (ii) take such action necessary to cause
such Registrable Securities covered by the Registration Statement to be
registered with or approved by such other Governmental Authorities as may be
necessary by virtue of the business and operations of the Company and do any and
all other acts and things that may be necessary or advisable to enable the
holders of Registrable Securities included in such Registration Statement to
consummate the disposition of such Registrable Securities in such jurisdictions;
provided, however, that the
Company shall not be required to qualify generally to do business in any
jurisdiction where it would not otherwise be required to qualify but for this
paragraph or subject itself to taxation in any such jurisdiction.
3.1.6. AGREEMENTS FOR DISPOSITION. The Company shall
enter into customary agreements (including, if applicable, an underwriting
agreement in customary form) and take such other actions as are reasonably
required in order to expedite or facilitate the disposition of such Registrable
Securities. The representations, warranties and covenants of the Company in any
underwriting agreement which are made to or for the benefit of any Underwriters,
to the extent applicable, shall also be made to and for the benefit of the
holders of Registrable Securities included in such registration statement. No
holder of Registrable Securities included in such registration statement shall
be required to make any representations or warranties in the underwriting
agreement except, if applicable, with respect to such holder's organization,
good standing, authority, title to Registrable Securities, lack of conflict of
such sale with such holder's material agreements and organizational documents,
and with respect to written information relating to such holder that such holder
has furnished in writing expressly for inclusion in such Registration Statement.
3.1.7. COOPERATION. The principal executive officer of
the Company, the principal financial officer of the Company, the principal
accounting officer of the Company and all other officers and members of the
management of the Company shall cooperate fully in any offering of Registrable
Securities hereunder, which cooperation shall include, without limitation, the
preparation of the Registration Statement with respect to such offering and all
other offering materials and related documents, and participation in meetings
with Underwriters, attorneys, accountants and potential investors.
3.1.8. RECORDS. The Company shall make available for
inspection by the holders of Registrable Securities included in such
Registration Statement, any Underwriter participating in any disposition
pursuant to such registration statement and any attorney, accountant or other
professional retained by any holder of Registrable Securities included in such
Registration Statement or any Underwriter, all financial and other records,
pertinent corporate documents and properties of the Company, as shall be
necessary to enable them to exercise their due diligence responsibility, and
cause the Company's officers, directors and employees to supply all information
requested by any of them in connection with such Registration Statement.
3.1.9. OPINIONS AND COMFORT LETTERS. The Company shall
furnish to each holder of Registrable Securities included in any Registration
Statement a signed counterpart, addressed to such holder, of (i) any opinion of
counsel to the Company delivered to any Underwriter and (ii) any comfort letter
from the Company's independent public accountants delivered to any Underwriter.
In the event no legal opinion is delivered to any Underwriter, the Company shall
furnish to each holder of Registrable Securities included in such Registration
Statement, at any time that such holder elects to use a prospectus, an opinion
of counsel to the Company to the effect that the Registration Statement
containing such prospectus has been declared effective and that no stop order is
in effect.
3.1.10. EARNINGS STATEMENT. The Company shall comply
with all applicable rules and regulations of the Commission and the Securities
Act, and make available to
its stockholders, as soon as practicable, an earnings statement covering a
period of twelve (12) months, beginning within three (3) months after the
effective date of the registration statement, which earnings statement shall
satisfy the provisions of Section 11(a) of the Securities Act and Rule 158
thereunder.
3.1.11. LISTING. The Company shall use its best efforts
to cause all Registrable Securities included in any registration to be listed on
such exchanges or otherwise designated for trading in the same manner as similar
securities issued by the Company are then listed or designated or, if no such
similar securities are then listed or designated, in a manner satisfactory to
the holders of a majority of the Registrable Securities included in such
registration.
3.2. OBLIGATION TO SUSPEND DISTRIBUTION. Upon receipt of any
notice from the Company of the happening of any event of the kind described in
Section 3.1.4(iv), or, in the case of a resale registration on Form S-3 pursuant
to Section 2.3 hereof, upon any suspension by the Company, pursuant to a written
xxxxxxx xxxxxxx compliance program adopted by the Company's Board of Directors,
of the ability of all "insiders" covered by such program to transact in the
Company's securities because of the existence of material non-public
information, each holder of Registrable Securities included in any registration
shall immediately discontinue disposition of such Registrable Securities
pursuant to the Registration Statement covering such Registrable Securities
until such holder receives the supplemented or amended prospectus contemplated
by Section 3.1.4(iv) or the restriction on the ability of "insiders" to transact
in the Company's securities is removed, as applicable, and, if so directed by
the Company, each such holder will deliver to the Company all copies, other than
permanent file copies then in such holder's possession, of the most recent
prospectus covering such Registrable Securities at the time of receipt of such
notice.
3.3. REGISTRATION EXPENSES. The Company shall bear all costs
and expenses incurred in connection with any Demand Registration pursuant to
Section 2.1, any Piggy-Back Registration pursuant to Section 2.2, and any
registration on Form S-3 effected pursuant to Section 2.3, and all expenses
incurred in performing or complying with its other obligations under this
Agreement, whether or not the Registration Statement becomes effective,
including, without limitation: (i) all registration and filing fees; (ii) fees
and expenses of compliance with securities or "blue sky" laws (including fees
and disbursements of counsel in connection with blue sky qualifications of the
Registrable Securities); (iii) printing expenses; (iv) the Company's internal
expenses (including, without limitation, all salaries and expenses of its
officers and employees); (v) the fees and expenses incurred in connection with
the listing of the Registrable Securities as required by Section 3.1.11; (vi)
National Association of Securities Dealers, Inc. fees; (vii) fees and
disbursements of counsel for the Company and fees and expenses for independent
certified public accountants retained by the Company (including the expenses or
costs associated with the delivery of any opinions or comfort letters requested
pursuant to Section 3.1.9); (viii) the fees and expenses of any special experts
retained by the Company in connection with such registration and (ix) the fees
and expenses of one legal counsel selected by the holders of a
majority-in-interest of the Registrable Securities included in such
registration. The Company shall have no obligation to pay any underwriting
discounts or selling commissions attributable to the Registrable Securities
being sold by the holders thereof, which underwriting discounts or selling
commissions shall be borne by such holders. Additionally, in an
underwritten offering, all selling stockholders and the Company shall bear the
expenses of the underwriter pro rata in proportion to the respective amount of
shares each is selling in such offering.
3.4. INFORMATION. The holders of Registrable Securities shall
provide such information as may reasonably be requested by the Company, or the
managing Underwriter, if any, in connection with the preparation of any
Registration Statement, including amendments and supplements thereto, in order
to effect the registration of any Registrable Securities under the Securities
Act pursuant to Section 2 and in connection with the Company's obligation to
comply with federal and applicable state securities laws.
4. INDEMNIFICATION AND CONTRIBUTION.
4.1. INDEMNIFICATION BY THE COMPANY. The Company agrees to
indemnify and hold harmless the Investor and each other holder of Registrable
Securities, and each of their respective officers, employees, affiliates,
directors, partners, members, attorneys and agents, and each person, if any, who
controls the Investor and each other holder of Registrable Securities (within
the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act) (each, an "Investor Indemnified Party"), from and against any expenses,
losses, judgments, claims, damages or liabilities, whether joint or several,
arising out of or based upon any untrue statement (or allegedly untrue
statement) of a material fact contained in any Registration Statement under
which the sale of such Registrable Securities was registered under the
Securities Act, any preliminary prospectus, final prospectus or summary
prospectus contained in the Registration Statement, or any amendment or
supplement to such Registration Statement, or arising out of or based upon any
omission (or alleged omission) to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, or any
violation by the Company of the Securities Act or any rule or regulation
promulgated thereunder applicable to the Company and relating to action or
inaction required of the Company in connection with any such registration; and
the Company shall promptly reimburse the Investor Indemnified Party for any
legal and any other expenses reasonably incurred by such Investor Indemnified
Party in connection with investigating and defending any such expense, loss,
judgment, claim, damage, liability or action; provided, however, that the
Company will not be liable in any such case to the extent that any such expense,
loss, claim, damage or liability arises out of or is based upon any untrue
statement or allegedly untrue statement or omission or alleged omission made in
such Registration Statement, preliminary prospectus, final prospectus, or
summary prospectus, or any such amendment or supplement, in reliance upon and in
conformity with information furnished to the Company, in writing, by such
selling holder expressly for use therein. The Company also shall indemnify any
Underwriter of the Registrable Securities, their officers, affiliates,
directors, partners, members and agents and each person who controls such
Underwriter on substantially the same basis as that of the indemnification
provided above in this Section 4.1.
4.2. INDEMNIFICATION BY HOLDERS OF REGISTRABLE SECURITIES.
Each selling holder of Registrable Securities will, in the event that any
registration is being effected under the Securities Act pursuant to this
Agreement of any Registrable Securities held by such selling holder, indemnify
and hold harmless the Company, each of its directors and officers and each
underwriter (if any), and each other selling holder and each other person, if
any, who controls
another selling holder or such underwriter within the meaning of the Securities
Act, against any losses, claims, judgments, damages or liabilities, whether
joint or several, insofar as such losses, claims, judgments, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or allegedly untrue statement of a material fact contained in
any Registration Statement under which the sale of such Registrable Securities
was registered under the Securities Act, any preliminary prospectus, final
prospectus or summary prospectus contained in the Registration Statement, or any
amendment or supplement to the Registration Statement, or arise out of or are
based upon any omission or the alleged omission to state a material fact
required to be stated therein or necessary to make the statement therein not
misleading, if the statement or omission was made in reliance upon and in
conformity with information furnished in writing to the Company by such selling
holder expressly for use therein, and shall reimburse the Company, its directors
and officers, and each other selling holder or controlling person for any legal
or other expenses reasonably incurred by any of them in connection with
investigation or defending any such loss, claim, damage, liability or action.
Each selling holder's indemnification obligations hereunder shall be several and
not joint and shall be limited to the amount of any net proceeds actually
received by such selling holder.
4.3. CONDUCT OF INDEMNIFICATION PROCEEDINGS. Promptly after
receipt by any person of any notice of any loss, claim, damage or liability or
any action in respect of which indemnity may be sought pursuant to Section 4.1
or 4.2, such person (the "Indemnified Party") shall, if a claim in respect
thereof is to be made against any other person for indemnification hereunder,
notify such other person (the "Indemnifying Party") in writing of the loss,
claim, judgment, damage, liability or action; provided, however, that the
failure by the Indemnified Party to notify the Indemnifying Party shall not
relieve the Indemnifying Party from any liability which the Indemnifying Party
may have to such Indemnified Party hereunder, except and solely to the extent
the Indemnifying Party is actually prejudiced by such failure. If the
Indemnified Party is seeking indemnification with respect to any claim or action
brought against the Indemnified Party, then the Indemnifying Party shall be
entitled to participate in such claim or action, and, to the extent that it
wishes, jointly with all other Indemnifying Parties, to assume control of the
defense thereof with counsel satisfactory to the Indemnified Party. After notice
from the Indemnifying Party to the Indemnified Party of its election to assume
control of the defense of such claim or action, the Indemnifying Party shall not
be liable to the Indemnified Party for any legal or other expenses subsequently
incurred by the Indemnified Party in connection with the defense thereof other
than reasonable costs of investigation; provided, however, that in any action in
which both the Indemnified Party and the Indemnifying Party are named as
defendants, the Indemnified Party shall have the right to employ separate
counsel (but no more than one such separate counsel) to represent the
Indemnified Party and its controlling persons who may be subject to liability
arising out of any claim in respect of which indemnity may be sought by the
Indemnified Party against the Indemnifying Party, with the fees and expenses of
such counsel to be paid by such Indemnifying Party if, based upon the written
opinion of counsel of such Indemnified Party, representation of both parties by
the same counsel would be inappropriate due to actual or potential differing
interests between them. No Indemnifying Party shall, without the prior written
consent of the Indemnified Party, consent to entry of judgment or effect any
settlement of any claim or pending or threatened proceeding in respect of which
the Indemnified Party is or could have been a party and indemnity could have
been sought hereunder by such Indemnified Party, unless such judgment or
settlement includes
an unconditional release of such Indemnified Party from all liability arising
out of such claim or proceeding.
4.4. CONTRIBUTION.
4.4.1. If the indemnification provided for in the
foregoing Sections 4.1, 4.2 and 4.3 is unavailable to any Indemnified Party in
respect of any loss, claim, damage, liability or action referred to herein, then
each such 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 loss, claim, damage, liability or action in such proportion as is
appropriate to reflect the relative fault of the Indemnified Parties and the
Indemnifying Parties in connection with the actions or omissions which resulted
in such loss, claim, damage, liability or action, as well as any other relevant
equitable considerations. The relative fault of any Indemnified Party and any
Indemnifying Party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by such Indemnified Party or such Indemnifying Party and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
4.4.2. The parties hereto agree that it would not be
just and equitable if contribution pursuant to this Section 4.4 were determined
by pro rata allocation or by any other method of allocation which does not take
account of the equitable considerations referred to in the immediately preceding
Section 4.4.1. The amount paid or payable by an Indemnified Party as a result of
any loss, claim, damage, liability or action referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses incurred by such Indemnified Party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 4.4, no holder of Registrable
Securities shall be required to contribute any amount in excess of the dollar
amount of the net proceeds (after payment of any underwriting fees, discounts,
commissions or taxes) actually received by such holder from the sale of
Registrable Securities which gave rise to such contribution obligation. 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. UNDERWRITING AND DISTRIBUTION.
5.1. RULE 144. The Company covenants that it shall file any
reports required to be filed by it under the Securities Act and the Exchange Act
and shall take such further action as the holders of Registrable Securities may
reasonably request, all to the extent required from time to time to enable such
holders to sell Registrable Securities without registration under the Securities
Act within the limitation of the exemptions provided by Rule 144 under the
Securities Act, as such Rules may be amended from time to time, or any similar
Rule or regulation hereafter adopted by the Commission.
6. MISCELLANEOUS.
6.1. OTHER REGISTRATION RIGHTS. Except with respect to those
securities issued or issuable upon exercise of that certain Unit Purchase Option
to be issued to Ladenburg Xxxxxxxx & Co. Inc. or its designees in connection
with the Company's initial public offering in 2006, the Company represents and
warrants that no person, other than a holder of the Registrable Securities, has
any right to require the Company to register any shares of the Company's capital
stock for sale or to include shares of the Company's capital stock in any
registration filed by the Company for the sale of shares of capital stock for
its own account or for the account of any other person.
6.2. ASSIGNMENT; NO THIRD PARTY BENEFICIARIES. This Agreement
and the rights, duties and obligations of the Company hereunder may not be
assigned or delegated by the Company in whole or in part. This Agreement and the
rights, duties and obligations of the holders of Registrable Securities
hereunder may be freely assigned or delegated by such holder of Registrable
Securities in conjunction with and to the extent of any transfer of Registrable
Securities by any such holder. This Agreement and the provisions hereof shall be
binding upon and shall inure to the benefit of each of the parties, to Ladenburg
Xxxxxxxx & Co. Inc. and its successors and the permitted assigns of the Investor
or holder of Registrable Securities or of any assignee of the Investor or holder
of Registrable Securities. This Agreement is not intended to confer any rights
or benefits on any persons that are not party hereto other than as expressly set
forth in Article 4 and this Section 6.2.
6.3. NOTICES. All notices, demands, requests, consents,
approvals or other communications (collectively, "Notices") required or
permitted to be given hereunder or which are given with respect to this
Agreement shall be in writing and shall be personally served, delivered by
reputable air courier service with charges prepaid, or transmitted by hand
delivery, telegram, telex or facsimile, addressed as set forth below, or to such
other address as such party shall have specified most recently by written
notice. Notice shall be deemed given on the date of service or transmission if
personally served or transmitted by telegram, telex or facsimile; provided, that
if such service or transmission is not on a business day or is after normal
business hours, then such notice shall be deemed given on the next business day.
Notice otherwise sent as provided herein shall be deemed given on the next
business day following timely delivery of such notice to a reputable air courier
service with an order for next-day delivery.
TO THE COMPANY:
Media & Entertainment Holdings, Inc.
0000 Xxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxx, Chief Executive Officer
with a copy to:
Xxxxxxxxxxx and Xxxxxxxx Xxxxxxxxx Xxxxxx LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxxxx, Esq.
and
Xxxxxxxxx Xxxxxxx LLP
MetLife Building
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx X. Annex, Esq.
TO THE INVESTOR, TO:
[To follow]
6.4. SEVERABILITY. This Agreement shall be deemed severable,
and the invalidity or unenforceability of any term or provision hereof shall not
affect the validity or enforceability of this Agreement or of any other term or
provision hereof. Furthermore, in lieu of any such invalid or unenforceable term
or provision, the parties hereto intend that there shall be added as a part of
this Agreement a provision as similar in terms to such invalid or unenforceable
provision as may be possible that is valid and enforceable.
6.5. COUNTERPARTS. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original, and all of which taken
together shall constitute one and the same instrument.
6.6. ENTIRE AGREEMENT. This Agreement (including all
agreements entered into pursuant hereto and all certificates and instruments
delivered pursuant hereto and thereto) constitute the entire agreement of the
parties with respect to the subject matter hereof and supersede all prior and
contemporaneous agreements, representations, understandings, negotiations and
discussions between the parties, whether oral or written.
6.7. MODIFICATIONS AND AMENDMENTS. No amendment, modification
or termination of this Agreement shall be binding upon any party unless executed
in writing by such party. Notwithstanding the foregoing, any and all parties
must obtain the written consent of Ladenburg Xxxxxxxx & Co. Inc. to amend or
modify this Agreement.
6.8. TITLES AND HEADINGS. Titles and headings of sections of
this Agreement are for convenience only and shall not affect the construction of
any provision of this Agreement.
6.9. WAIVERS AND EXTENSIONS. Any party to this Agreement may
waive any right, breach or default which such party has the right to waive,
provided that such waiver will not be effective against the waiving party unless
it is in writing, is signed by such party, and specifically refers to this
Agreement. Waivers may be made in advance or after the right waived has arisen
or the breach or default waived has occurred. Any waiver may be conditional. No
waiver of any breach of any agreement or provision herein contained shall be
deemed a waiver of any preceding or succeeding breach thereof nor of any other
agreement or provision herein
contained. No waiver or extension of time for performance of any obligations or
acts shall be deemed a waiver or extension of the time for performance of any
other obligations or acts.
6.10. REMEDIES CUMULATIVE. In the event that the Company fails
to observe or perform any covenant or agreement to be observed or performed
under this Agreement, the Investor or any other holder of Registrable Securities
may proceed to protect and enforce its rights by suit in equity or action at
law, whether for specific performance of any term contained in this Agreement or
for an injunction against the breach of any such term or in aid of the exercise
of any power granted in this Agreement or to enforce any other legal or
equitable right, or to take any one or more of such actions, without being
required to post a bond. None of the rights, powers or remedies conferred under
this Agreement shall be mutually exclusive, and each such right, power or remedy
shall be cumulative and in addition to any other right, power or remedy, whether
conferred by this Agreement or now or hereafter available at law, in equity, by
statute or otherwise.
6.11. GOVERNING LAW. This Agreement shall be governed by,
interpreted under, and construed in accordance with the internal laws of the
State of New York applicable to agreements made and to be performed within the
State of New York, without giving effect to any choice-of-law provisions thereof
that would compel the application of the substantive laws of any other
jurisdiction.
6.12. WAIVER OF TRIAL BY JURY. Each party hereby irrevocably
and unconditionally waives the right to a trial by jury in any action, suit,
counterclaim or other proceeding (whether based on contract, tort or otherwise)
arising out of, connected with or relating to this Agreement, the transactions
contemplated hereby, or the actions of the Investor in the negotiation,
administration, performance or enforcement hereof.
IN WITNESS WHEREOF, the parties have caused this Registration Rights
Agreement to be executed and delivered by their duly authorized representatives
as of the date first written above.
MEDIA & ENTERTAINMENT HOLDINGS, INC.
By:
-------------------------------------------
Xxxxxxx X. Xxxxxxx, Chief Executive Officer
INVESTOR:
ASTOR ASSET MANAGEMENT
By:
-------------------------------------------
Name:
Title:
