EXHIBIT 6.47
REGISTRATION RIGHTS AGREEMENT
OF
TOTAL FILM GROUP, INC.
Agreement made as of the 10th day of November, 2000, by and between Total
Film Group, Inc., a Delaware corporation currently having its office and
principal place of business at 0000 Xxxxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxx
Xxxxx, Xxxxxxxxxx 00000 (the "Corporation"), and the party hereto converting
all or part of a Series B Promissory Note into common stock of the
Corporation (hereinafter referred to as a "Holder").
WHEREAS, the undersigned has loaned the Company a sum of Four Hundred
Thousand Dollars, which sum, subject to and in compliance with the provisions
contained in the corresponding Promissory Note, the Holder of this Note is
entitled, at its option, at any time prior to maturity, or in case this Note
or some portion hereof shall have been called for prepayment prior to such
date, then in respect of this Note or such portion hereof, until and
including, but not after, the close of business within 10 days of the date of
notice of prepayment. to convert this Note (or any portion thereof), together
with accrued but unpaid interest, into fully paid and nonassessable
registered shares (calculated as to each conversion to the nearest share) of
common stock (the "Shares") of the Maker by surrender of this Note, duly
endorsed (if so required by the Maker) or assigned to the Maker or in blank,
to "TOTAL FILM GROUP, INC." at its offices, accompanied by written notice to
the Maker, in the form set forth below, that the holder hereof selects to
convert this Note or, if less than the entire amount hereof is to be
converted, the portion hereof to be converted. Such conversion shall be
effected at the rate of one Share for each $2.00 of principal and interest to
be converted;
NOW, THEREFORE, in consideration of the mutual covenants and conditions
herein contained, the undersigned hereby agrees as follows:
1. PIGGYBACK AND DEMAND REGISTRATION RIGHTS.
1.1 (a) If the Corporation shall propose to file a registration
statement under the Securities Act of 1933, as amended (the "Securities
Act"), at any time during the 36-month period after the Effective Date,
either on its own behalf or that of any of its shareholders for an offering
of shares of the capital stock of the Corporation (including shares to be
issued pursuant to the exercise of any warrants, including the Warrants) for
cash or securities, the Corporation shall give written notice as promptly as
possible of such proposed registration to Holder and shall use reasonable
efforts to include such number or amount of shares of the Stock owned by
Holder ("Registering Holder") in such registration statement as such Holder
shall request within 10 days after receipt of such notice from the
Corporation, provided, that (A) Holder furnishes the Company with a written
notice of its irrevocable desire to convert Promissory Note in whole or in
part within 10
days after the receipt of such notice from the Corporation, (B) if shares of
the Stock are being offered by the Corporation in an underwritten offering,
any shares of the Stock proposed to be included in the registration statement
on behalf of such Holder shall be included in the underwriting offering on
the same terms and conditions as the Stock being offered by the Corporation,
and (C) Holder shall be entitled to include such number of shares of the
Stock owned by such Holder in such registration statement, one time only
during the applicable period set forth herein, so that the proportion of
shares of the Stock of Holder to be included in such registration statement
to the total number of shares of the Stock owned by him is equal to the
proportion that the number of shares of the Stock of all Holder to be
included in such registration statement bears to the total number of shares
of the Stock owned by Holder (except that Holder shall have the right not to
exercise such piggyback registration right set forth herein once, in which
case Holder shall have the right set forth in this Section 1.1 with respect
to the next succeeding registration statement described in this Section 1.1
proposed to be filed by the Corporation during such 36-month period); and
provided further, that (i) the Corporation shall not be required to include
such number or amount of shares owned by Holder in any such registration
statement if it relates solely to securities of the Corporation to be issued
pursuant to a stock option or other employee benefit plan, (ii) the
Corporation may, as to an offering of securities of the Corporation by the
Corporation, withdraw such registration statement at its sole discretion and
without the consent of Holder and abandon such proposed offering and (iii)
the Corporation shall not be required to include such number of shares of the
Stock owned by Holder in such registration statement if the Corporation is
advised in writing by its underwriter or investment banking firm that it
reasonably believes that the inclusion of Holder's shares would have an
adverse effect on the offering, provided that if such limitation is imposed,
the effects of such limitation shall be allocated among the Holder's Pro rata
in proportion to the number of shares of the Stock as to which Holder has
requested inclusion therein.
(b) A registration filed pursuant to this Section 1.1(a) shall not
be deemed to have been effected unless the registration statement related
thereto (i) has become effective under the Securities Act and (ii) has
remained effective for a period of at least nine months (or such shorter
period of time in which all of the Stock registered thereunder has actually
been sold thereunder); provided, however, that if, after any registration
statement filed pursuant to Section 1 . 1(a) becomes effective and prior to
the time the registration statement has been effective for a period of at
least nine months, such registration statement is interfered with by any stop
order, injunction or other order or requirement of the Commission or other
governmental agency or court solely due to actions or omissions to act of the
Corporation, such registration statement shall not be considered one of the
registrations applicable pursuant to Section 1.1(a).
1.2 DELAY OR SUSPENSION OF REGISTRATION. Notwithstanding any other
provision of this Section 1 to the contrary, if the Corporation shall furnish
to the Holder or Holders:
(a) a certificate signed by the President of the Corporation stating
that, in the good faith judgment of a majority of the members of the entire
Board of Directors of the Corporation, it would adversely and materially
affect the Corporation's ability to enter into an agreement with respect to,
or to consummate, a bona fide material transaction to which it is or would be
a party, or the Corporation has a plan to register Stock to be sold for its
own account within a 90-day
period after the filing of the registration statement under Section 1.1(a),
for the Corporation to use its reasonable best efforts to effect the
registration of the Stock; or
(b) both (A) a certificate signed by the President of the
Corporation stating that, in the good faith judgment of a majority of the
members of the entire Board of Directors of the Corporation, a material fact
exists which the Corporation has a BONAFIDE business purpose for preserving
as confidential and (B) an opinion of counsel to the Corporation to the
effect that the registration by the Corporation (following the offer or sale
by the Holder or Holders of the Stock pursuant to an effective registration
statement would require disclosure of the material fact which is referenced
in the President's certificate required under Section 1 .2(b)(A) and which,
in such counsel's opinion, is not otherwise required to be disclosed, then
the Corporation's obligations pursuant to Section 1.1 with respect to any
such registration shall be deferred or offers and sales of the Stock by the
Holder or Holders shall be suspended, as the case may be, until the earliest
of: (1) the date on which, as applicable (a) the Corporation's use of
reasonable best efforts to effect the registration of the Stock would no
longer have such a material adverse effect or (b) the material fact is
disclosed to the public or ceases to be material; (2) 135 days from the date
of receipt by the Holder or Holders of the materials referred to in Section
1.2(a) and (b) above; and (3) such time as the Corporation notifies the
Holder or Holders that it has resumed use of its reasonable best efforts to
effect registration of the Stock or that offers and sales of Stock pursuant
to an effective registration statement may be resumed, as the case may be. A
particular material transaction to which the Corporation is or would be a
party or a particular material fact shall not give rise to more than one
deferral or suspension notice by the Corporation pursuant to the provisions
of this Section 1.2.
1.3 In connection with any registration or qualification pursuant to
the provisions of this Article I, Holder and the Corporation shall, except as
prohibited under the blue sky or securities laws of any jurisdiction under
which a registration or qualification is being effected, pay (pro rata based
on the relative number of shares included in such registration) all of the
fees and expenses, which shall not include fees and expenses of legal counsel
for any Holder and any underwriting or selling discounts, fees, commissions
or similar charges with respect to the shares of Stock as to which
registration is requested; provided, however, that in the event the
Corporation shall have incurred out-of-pocket expenses in connection with the
preparation of any registration statement which shall be withdrawn prior to
its effective date at the request of Holder, Holder shall promptly reimburse
the Corporation for all out-of-pocket expenses including, without limitation,
attorneys' fees and expenses, accounting costs and all fees and expenses
relating to blue sky filings incurred by the Corporation in connection with
such preparation (including any filing thereof); and provided further
however, that the Corporation shall not be required in the case of any
registration hereunder to make blue sky filings in more than 10 states.
1.4 (a) In each case of registration of shares of Stock under the
Securities Act pursuant to these registration provisions, the Corporation
shall unconditionally indemnify and hold Holder harmless, each underwriter
(as defined in the Securities Act), and each person who controls any such
underwriter within the meaning of Section 15 of the Securities Act or Section
20(a) of the Securities Exchange Act of 1934 (the Holder and each such
underwriter, and each
such person who controls any such underwriter being referred to for purposes
of this Section 1.4, as an "Indemnified Person") from and against any and all
losses, claims, damages, liabilities and expenses arising out of or based
upon any untrue statement or alleged untrue statement of a material fact
contained in any registration statement under which such shares of the Stock
were registered under the Securities Act, any prospectus or preliminary
prospectus contained therein or any amendment or supplement thereto
(including, in each case, any documents incorporated by reference therein),
or arising out of any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such losses, claims,
damages, liabilities or expenses arise out of any such untrue statement or
omission or alleged untrue statement or omission based upon information
relating to Holder or any underwriter and furnished to the Corporation or the
Registering Holder, as the ease may be, in writing by Holder or such
underwriter expressly for use therein; PROVIDED that the foregoing
indemnification with respect to a preliminary prospectus shall not inure to
the benefit of any underwriter (or to the benefit of any person controlling
such underwriter) from whom the person asserting any such losses, claims,
damages, liabilities or expenses purchased shares of the Stock to the extent
such losses, claims, damages or liabilities result from the fact that a copy
of the final prospectus had not been sent or given to such person at or prior
to written confirmation of the sale of such shares to such person.
(b) In each case of a registration of shares of the Stock under the
Securities Act pursuant to these registration provisions, the Holder
participating in the registration, severally and not jointly, shall
unconditionally indemnify and hold harmless the Corporation (and its
directors and officers) each underwriter and each person, if any, who
controls the Corporation or such underwriter within the meaning of Section 15
of the Securities Act of Section 20(a) of the Securities Exchange Act of
1934, to the same extent as the foregoing indemnity from the Corporation to
the Holder but only with reference to information relating to Holder and
furnished to the Corporation by Holder for use in the registration statement,
any prospectus or preliminary prospectus contained therein or any amendment
or supplement thereto. Holder will use all reasonable efforts to cause any
underwriters of shares of Stock to be sold by Holder to indemnify the
Corporation on the same terms as Holder agrees to indemnify the Corporation
or the Registering Holder, as the case may be, but only with reference to
information furnished in writing by such underwriter for use in the
registration statement.
(c) In case any action or proceeding shall be brought against or
instituted which involves any Indemnified Person, such Indemnified Person
shall promptly notify the person against whom such indemnity may be sought
(the "Indemnifying Person") in writing and the Indemnifying Person shall
retain counsel reasonably satisfactory to the Indemnified Person to represent
the Indemnified Person and any others the Indemnifying Person may designate
in such proceeding and shall pay the fees and disbursements of such counsel
related to such proceeding. In any such action or proceeding, any Indemnified
Person shall have the right to obtain its own counsel, but the fees and
expenses of such counsel shall be at the expense of such Indemnified Person
unless (i) the Indemnifying Person has agreed to the retention of such
counsel at its expense or (ii) the named parties to any such action or
proceeding include both the Indemnifying Person and the Indemnified Person,
and the Indemnified Person has been advised by counsel that there may be one
or more defenses available to such Indemnified Person which are different
from
or additional to those available to the Indemnifying Person (in which case,
if the Indemnified Person notifies the Indemnifying Person that it wishes to
employ separate counsel at the expense of the Indemnifying Person, the
Indemnifying Person shall not have the right to assume the defense of such
action or proceeding on behalf of such Indemnified Person). It is understood
that the Indemnifying Person shall not be liable for the fees and expenses of
more than one separate firm of attorneys at any time for all such similarly
situated Indemnified Persons. The Indemnifying Person shall not be liable for
any settlement of any action or proceeding effected without its written
consent.
(d) In the event the indemnifications provided for in this Article V
are unavailable or insufficient, then the Holder shall contribute to the
amount paid or payable as a result of such losses, claims, damages,
liabilities, actions and expenses in such proportion as is appropriate to
reflect (A) the relative benefits received Holder and (B) the relative fault
of Holder.
(e) Notwithstanding anything in this Article V to the contrary, the
Corporation shall not be liable to Holder for any losses, claims, damages or
liabilities arising out of or caused by (A) any reasonable delay (1) in
filing or processing any registration statement or any preliminary or final
prospectus, amendment or supplement thereto after the inclusion of Holder
Stock in such registration statement, or (2) in requesting such registration
statement be declared effective by the Commission and (B) the failure of the
Commission for any reason to declare effective any registration statement.
2. MISCELLANEOUS.
2.1 NOTICES. All notices or other communications required or
permitted to be given pursuant to this Agreement shall be in writing and
shall be considered as duly given on (a) the date of delivery, if delivered
in person, by nationally recognized overnight delivery service or by
facsimile or (b) three days after mailing if mailed from within the
continental United States by registered or certified mail, return receipt
requested to the party entitled to receive the same, if to the Corporation,
Total Film Group, Inc., 0000 Xxxxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxx Xxxxx,
Xxxxxxxxxx 00000 , and if to Holder, at his or its address as set forth
hereunder. Any party may change his or its address by giving notice to the
other party stating his or its new address. Commencing on the 10th day after
the giving of such notice, such newly designated address shall be such
party's address for the purpose of all notices or other communications
required or permitted to be given pursuant to this Agreement.
2.2 GOVERNING LAW. This Agreement and the rights of the parties
hereunder shall be governed by and construed in accordance with the laws of
the State of New York, without regard to its conflicts of law principles. All
parties hereto (i) agree that any legal suit, action or proceeding arising
out of or relating to this Agreement shall be instituted only in a federal or
state court in New York, NY, (ii) waive any objection which they may now or
hereafter have to the laying of the venue of any such suit, action or
proceeding, and (iii) irrevocably submit to the jurisdiction of any federal
or state court in New York, New York, in any such suit, action or proceeding,
but such consent shall not constitute a general appearance or be available to
any other person who is not a party to this Agreement. All parties hereto
agree that the mailing of any
process in any suit, action or proceeding in accordance with the notice
provisions of this Agreement shall constitute personal service thereof.
2.3 ENTIRE AGREEMENT: WAIVER OF BREACH. This Agreement constitutes
the entire agreement among the parties and supersedes any prior agreement or
understanding among them with respect to the subject matter hereof, and it
may not be modified or amended in any manner other than as provided herein;
and no waiver of any breach or condition of this Agreement shall be deemed to
have occurred unless such waiver is in writing, signed by the party against
whom enforcement is sought, and no waiver shall be claimed to be a waiver of
any subsequent breach or condition of a like or different nature.
2.4 BINDING EFFECT: ASSIGNABILITY. This Agreement and all the terms
and provisions hereof shall be binding upon and shall inure to the benefit of
the parties and their respective heirs, successors and permitted assigns.
This Agreement and the rights of the parties hereunder shall not be assigned
except with the written consent of all parties hereto.
2.5 CAPTIONS. Captions contained in this Agreement are inserted only
as a matter of convenience and in no way define, limit or extend the scope or
intent of this Agreement or any provision hereof.
2.6 NUMBER AND GENDER. Wherever from the context it appears
appropriate, each term stated in either the singular or the plural shall
include the singular and the plural, and pronouns stated in either the
masculine, the feminine or the neuter gender shall include the masculine,
feminine and neuter.
2.7 SEVERABILITY. If any provision of this Agreement shall be held
invalid or unenforceable, such invalidity or unenforceability shall attach
only to such provision and shall not in any manner affect or render invalid
or unenforceable any other severable provision of this Agreement, and this
Agreement shall be carried out as if any such invalid or unenforceable
provision were not contained herein.
2.8 AMENDMENTS. This Agreement may not be amended except in a
writing signed by all of the parties hereto.
2.9 COMPLIANCE WITH SECURITIES LAWS. Commencing with the Effective
Date, the Corporation will use its best efforts to comply thereafter with the
applicable provisions of the Securities Act and the Securities Exchange Act
of 1934.
2.10 COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which shall be deemed an original but all of which
shall constitute one and the same instrument. In addition, this Agreement may
contain more than one counterpart of the signature page and this Agreement
may be executed by the affixing of such signature pages executed by the
parties to one copy of the Agreement; all of such counterpart signature pages
shall be read as though one, and they shall have the same force and effect as
though all of the signers had signed a single signature page.
IN WITNESS WHEREOF, the undersigned has executed this Agreement on the date
first above written.
TOTAL FILM GROUP, INC.
/s/ Xxx Xxxxx
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Xxx Xxxxx, Secy - Treasurer
NOTE HOLDER
Lancer Offshore
/s/ Lancer Partners LP
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Name
-----------------------------------
Address
000 Xxxxxxxxx Xx
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Xxxxxxxxx, XX 00000
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REGISTRATION RIGHTS AGREEMENT
OF
TOTAL FILM GROUP, INC.
Agreement made as of the 10th day of November, 2000, by and between Total
Film Group, Inc., a Delaware corporation currently having its office and
principal place of business at 0000 Xxxxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxx
Xxxxx, Xxxxxxxxxx 00000 (the "Corporation"), and the party hereto converting
all or part of a Series B Promissory Note into common stock of the
Corporation (hereinafter referred to as a "Holder").
WHEREAS, the undersigned has loaned the Company a sum of One Hundred Twenty
Five Thousand Dollars, which sum, subject to and in compliance with the
provisions contained in the corresponding Promissory Note, the Holder of this
Note is entitled, at its option, at any time prior to maturity, or in case
this Note or some portion hereof shall have been called for prepayment prior
to such date, then in respect of this Note or such portion hereof, until and
including, but not after, the close of business within 10 days of the date of
notice of prepayment. to convert this Note (or any portion thereof), together
with accrued but unpaid interest, into fully paid and nonassessable
registered shares (calculated as to each conversion to the nearest share) of
common stock (the "Shares") of the Maker by surrender of this Note, duly
endorsed (if so required by the Maker) or assigned to the Maker or in blank,
to "TOTAL FILM GROUP, INC." at its offices, accompanied by written notice to
the Maker, in the form set forth below, that the holder hereof selects to
convert this Note or, if less than the entire amount hereof is to be
converted, the portion hereof to be converted. Such conversion shall be
effected at the rate of one Share for each $2.00 of principal and interest to
be converted;
NOW, THEREFORE, in consideration of the mutual covenants and conditions
herein contained, the undersigned hereby agrees as follows:
1. PIGGYBACK AND DEMAND REGISTRATION RIGHTS.
1.1 (a) If the Corporation shall propose to file a registration
statement under the Securities Act of 1933, as amended (the "Securities
Act"), at any time during the 36-month period after the Effective Date,
either on its own behalf or that of any of its shareholders for an offering
of shares of the capital stock of the Corporation (including shares to be
issued pursuant to the exercise of any warrants, including the Warrants) for
cash or securities, the Corporation shall give written notice as promptly as
possible of such proposed registration to Holder and shall use reasonable
efforts to include such number or amount of shares of the Stock owned by
Holder ("Registering Holder") in such registration statement as such Holder
shall request within 10 days after receipt of such notice from the
Corporation, provided, that (A) Holder furnishes the Company with a written
notice of its irrevocable desire to convert Promissory Note in whole or in
part within 10 days after the receipt of such notice from the Corporation,
(B) if shares of the Stock are being
offered by the Corporation in an underwritten offering, any shares of the
Stock proposed to be included in the registration statement on behalf of such
Holder shall be included in the underwriting offering on the same terms and
conditions as the Stock being offered by the Corporation, and (C) Holder
shall be entitled to include such number of shares of the Stock owned by such
Holder in such registration statement, one time only during the applicable
period set forth herein, so that the proportion of shares of the Stock of
Holder to be included in such registration statement to the total number of
shares of the Stock owned by him is equal to the proportion that the number
of shares of the Stock of all Holder to be included in such registration
statement bears to the total number of shares of the Stock owned by Holder
(except that Holder shall have the right not to exercise such piggyback
registration right set forth herein once, in which case Holder shall have the
right set forth in this Section 1.1 with respect to the next succeeding
registration statement described in this Section 1.1 proposed to be filed by
the Corporation during such 36-month period); and provided further, that (i)
the Corporation shall not be required to include such number or amount of
shares owned by Holder in any such registration statement if it relates
solely to securities of the Corporation to be issued pursuant to a stock
option or other employee benefit plan, (ii) the Corporation may, as to an
offering of securities of the Corporation by the Corporation, withdraw such
registration statement at its sole discretion and without the consent of
Holder and abandon such proposed offering and (iii) the Corporation shall not
be required to include such number of shares of the Stock owned by Holder in
such registration statement if the Corporation is advised in writing by its
underwriter or investment banking firm that it reasonably believes that the
inclusion of Holder's shares would have an adverse effect on the offering,
provided that if such limitation is imposed, the effects of such limitation
shall be allocated among the Holder's Pro rata in proportion to the number of
shares of the Stock as to which Holder has requested inclusion therein.
(b) A registration filed pursuant to this Section 1.1(a) shall not
be deemed to have been effected unless the registration statement related
thereto (i) has become effective under the Securities Act and (ii) has
remained effective for a period of at least nine months (or such shorter
period of time in which all of the Stock registered thereunder has actually
been sold thereunder); provided, however, that if, after any registration
statement filed pursuant to Section 1 . 1(a) becomes effective and prior to
the time the registration statement has been effective for a period of at
least nine months, such registration statement is interfered with by any stop
order, injunction or other order or requirement of the Commission or other
governmental agency or court solely due to actions or omissions to act of the
Corporation, such registration statement shall not be considered one of the
registrations applicable pursuant to Section 1.1(a).
1.2 DELAY OR SUSPENSION OF REGISTRATION. Notwithstanding any other
provision of this Section 1 to the contrary, if the Corporation shall furnish
to the Holder or Holders:
(a) a certificate signed by the President of the Corporation stating
that, in the good faith judgment of a majority of the members of the entire
Board of Directors of the Corporation, it would adversely and materially
affect the Corporation's ability to enter into an agreement with respect to,
or to consummate, a bona fide material transaction to which it is or would be
a party, or the Corporation has a plan to register Stock to be sold for its
own account within a 90-day period after the filing of the registration
statement under Section 1.1(a), for the Corporation to
use its reasonable best efforts to effect the registration of the Stock; or
(b) both (A) a certificate signed by the President of the
Corporation stating that, in the good faith judgment of a majority of the
members of the entire Board of Directors of the Corporation, a material fact
exists which the Corporation has a BONAFIDE business purpose for preserving
as confidential and (B) an opinion of counsel to the Corporation to the
effect that the registration by the Corporation (following the offer or sale
by the Holder or Holders of the Stock pursuant to an effective registration
statement would require disclosure of the material fact which is referenced
in the President's certificate required under Section 1 .2(b)(A) and which,
in such counsel's opinion, is not otherwise required to be disclosed, then
the Corporation's obligations pursuant to Section 1.1 with respect to any
such registration shall be deferred or offers and sales of the Stock by the
Holder or Holders shall be suspended, as the case may be, until the earliest
of: (1) the date on which, as applicable (a) the Corporation's use of
reasonable best efforts to effect the registration of the Stock would no
longer have such a material adverse effect or (b) the material fact is
disclosed to the public or ceases to be material; (2) 135 days from the date
of receipt by the Holder or Holders of the materials referred to in Section
1.2(a) and (b) above; and (3) such time as the Corporation notifies the
Holder or Holders that it has resumed use of its reasonable best efforts to
effect registration of the Stock or that offers and sales of Stock pursuant
to an effective registration statement may be resumed, as the case may be. A
particular material transaction to which the Corporation is or would be a
party or a particular material fact shall not give rise to more than one
deferral or suspension notice by the Corporation pursuant to the provisions
of this Section 1.2.
1.3 In connection with any registration or qualification pursuant to
the provisions of this Article I, Holder and the Corporation shall, except as
prohibited under the blue sky or securities laws of any jurisdiction under
which a registration or qualification is being effected, pay (pro rata based
on the relative number of shares included in such registration) all of the
fees and expenses, which shall not include fees and expenses of legal counsel
for any Holder and any underwriting or selling discounts, fees, commissions
or similar charges with respect to the shares of Stock as to which
registration is requested; provided, however, that in the event the
Corporation shall have incurred out-of-pocket expenses in connection with the
preparation of any registration statement which shall be withdrawn prior to
its effective date at the request of Holder, Holder shall promptly reimburse
the Corporation for all out-of-pocket expenses including, without limitation,
attorneys' fees and expenses, accounting costs and all fees and expenses
relating to blue sky filings incurred by the Corporation in connection with
such preparation (including any filing thereof); and provided further
however, that the Corporation shall not be required in the case of any
registration hereunder to make blue sky filings in more than 10 states.
1.4 (a) In each case of registration of shares of Stock under the
Securities Act pursuant to these registration provisions, the Corporation
shall unconditionally indemnify and hold Holder harmless, each underwriter
(as defined in the Securities Act), and each person who controls any such
underwriter within the meaning of Section 15 of the Securities Act or Section
20(a) of the Securities Exchange Act of 1934 (the Holder and each such
underwriter, and each such person who controls any such underwriter being
referred to for purposes of this Section 1.4,
as an "Indemnified Person") from and against any and all losses, claims,
damages, liabilities and expenses arising out of or based upon any untrue
statement or alleged untrue statement of a material fact contained in any
registration statement under which such shares of the Stock were registered
under the Securities Act, any prospectus or preliminary prospectus contained
therein or any amendment or supplement thereto (including, in each case, any
documents incorporated by reference therein), or arising out of any omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, except
insofar as such losses, claims, damages, liabilities or expenses arise out of
any such untrue statement or omission or alleged untrue statement or omission
based upon information relating to Holder or any underwriter and furnished to
the Corporation or the Registering Holder, as the ease may be, in writing by
Holder or such underwriter expressly for use therein; PROVIDED that the
foregoing indemnification with respect to a preliminary prospectus shall not
inure to the benefit of any underwriter (or to the benefit of any person
controlling such underwriter) from whom the person asserting any such losses,
claims, damages, liabilities or expenses purchased shares of the Stock to the
extent such losses, claims, damages or liabilities result from the fact that
a copy of the final prospectus had not been sent or given to such person at
or prior to written confirmation of the sale of such shares to such person.
(b) In each case of a registration of shares of the Stock under the
Securities Act pursuant to these registration provisions, the Holder
participating in the registration, severally and not jointly, shall
unconditionally indemnify and hold harmless the Corporation (and its
directors and officers) each underwriter and each person, if any, who
controls the Corporation or such underwriter within the meaning of Section 15
of the Securities Act of Section 20(a) of the Securities Exchange Act of
1934, to the same extent as the foregoing indemnity from the Corporation to
the Holder but only with reference to information relating to Holder and
furnished to the Corporation by Holder for use in the registration statement,
any prospectus or preliminary prospectus contained therein or any amendment
or supplement thereto. Holder will use all reasonable efforts to cause any
underwriters of shares of Stock to be sold by Holder to indemnify the
Corporation on the same terms as Holder agrees to indemnify the Corporation
or the Registering Holder, as the case may be, but only with reference to
information furnished in writing by such underwriter for use in the
registration statement.
(c) In case any action or proceeding shall be brought against or
instituted which involves any Indemnified Person, such Indemnified Person
shall promptly notify the person against whom such indemnity may be sought
(the "Indemnifying Person") in writing and the Indemnifying Person shall
retain counsel reasonably satisfactory to the Indemnified Person to represent
the Indemnified Person and any others the Indemnifying Person may designate
in such proceeding and shall pay the fees and disbursements of such counsel
related to such proceeding. In any such action or proceeding, any Indemnified
Person shall have the right to obtain its own counsel, but the fees and
expenses of such counsel shall be at the expense of such Indemnified Person
unless (i) the Indemnifying Person has agreed to the retention of such
counsel at its expense or (ii) the named parties to any such action or
proceeding include both the Indemnifying Person and the Indemnified Person,
and the Indemnified Person has been advised by counsel that there may be one
or more defenses available to such Indemnified Person which are different
from or additional to those available to the Indemnifying Person (in which
case, if the Indemnified
Person notifies the Indemnifying Person that it wishes to employ separate
counsel at the expense of the Indemnifying Person, the Indemnifying Person
shall not have the right to assume the defense of such action or proceeding
on behalf of such Indemnified Person). It is understood that the Indemnifying
Person shall not be liable for the fees and expenses of more than one
separate firm of attorneys at any time for all such similarly situated
Indemnified Persons. The Indemnifying Person shall not be liable for any
settlement of any action or proceeding effected without its written consent.
(d) In the event the indemnifications provided for in this Article V
are unavailable or insufficient, then the Holder shall contribute to the
amount paid or payable as a result of such losses, claims, damages,
liabilities, actions and expenses in such proportion as is appropriate to
reflect (A) the relative benefits received Holder and (B) the relative fault
of Holder.
(e) Notwithstanding anything in this Article V to the contrary, the
Corporation shall not be liable to Holder for any losses, claims, damages or
liabilities arising out of or caused by (A) any reasonable delay (1) in
filing or processing any registration statement or any preliminary or final
prospectus, amendment or supplement thereto after the inclusion of Holder
Stock in such registration statement, or (2) in requesting such registration
statement be declared effective by the Commission and (B) the failure of the
Commission for any reason to declare effective any registration statement.
2. MISCELLANEOUS.
2.1 NOTICES. All notices or other communications required or
permitted to be given pursuant to this Agreement shall be in writing and
shall be considered as duly given on (a) the date of delivery, if delivered
in person, by nationally recognized overnight delivery service or by
facsimile or (b) three days after mailing if mailed from within the
continental United States by registered or certified mail, return receipt
requested to the party entitled to receive the same, if to the Corporation,
Total Film Group, Inc., 0000 Xxxxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxx Xxxxx,
Xxxxxxxxxx 00000 , and if to Holder, at his or its address as set forth
hereunder. Any party may change his or its address by giving notice to the
other party stating his or its new address. Commencing on the 10th day after
the giving of such notice, such newly designated address shall be such
party's address for the purpose of all notices or other communications
required or permitted to be given pursuant to this Agreement.
2.2 GOVERNING LAW. This Agreement and the rights of the parties
hereunder shall be governed by and construed in accordance with the laws of
the State of New York, without regard to its conflicts of law principles. All
parties hereto (i) agree that any legal suit, action or proceeding arising
out of or relating to this Agreement shall be instituted only in a federal or
state court in New York, NY, (ii) waive any objection which they may now or
hereafter have to the laying of the venue of any such suit, action or
proceeding, and (iii) irrevocably submit to the jurisdiction of any federal
or state court in New York, New York, in any such suit, action or proceeding,
but such consent shall not constitute a general appearance or be available to
any other person who is not a party to this Agreement. All parties hereto
agree that the mailing of any process in any suit, action or proceeding in
accordance with the notice provisions of this
Agreement shall constitute personal service thereof.
2.3 ENTIRE AGREEMENT: WAIVER OF BREACH. This Agreement constitutes
the entire agreement among the parties and supersedes any prior agreement or
understanding among them with respect to the subject matter hereof, and it
may not be modified or amended in any manner other than as provided herein;
and no waiver of any breach or condition of this Agreement shall be deemed to
have occurred unless such waiver is in writing, signed by the party against
whom enforcement is sought, and no waiver shall be claimed to be a waiver of
any subsequent breach or condition of a like or different nature.
2.4 BINDING EFFECT: ASSIGNABILITY. This Agreement and all the terms
and provisions hereof shall be binding upon and shall inure to the benefit of
the parties and their respective heirs, successors and permitted assigns.
This Agreement and the rights of the parties hereunder shall not be assigned
except with the written consent of all parties hereto.
2.5 CAPTIONS. Captions contained in this Agreement are inserted only
as a matter of convenience and in no way define, limit or extend the scope or
intent of this Agreement or any provision hereof.
2.6 NUMBER AND GENDER. Wherever from the context it appears
appropriate, each term stated in either the singular or the plural shall
include the singular and the plural, and pronouns stated in either the
masculine, the feminine or the neuter gender shall include the masculine,
feminine and neuter.
2.7 SEVERABILITY. If any provision of this Agreement shall be held
invalid or unenforceable, such invalidity or unenforceability shall attach
only to such provision and shall not in any manner affect or render invalid
or unenforceable any other severable provision of this Agreement, and this
Agreement shall be carried out as if any such invalid or unenforceable
provision were not contained herein.
2.8 AMENDMENTS. This Agreement may not be amended except in a
writing signed by all of the parties hereto.
2.9 COMPLIANCE WITH SECURITIES LAWS. Commencing with the Effective
Date, the Corporation will use its best efforts to comply thereafter with the
applicable provisions of the Securities Act and the Securities Exchange Act
of 1934.
2.10 COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which shall be deemed an original but all of which
shall constitute one and the same instrument. In addition, this Agreement may
contain more than one counterpart of the signature page and this Agreement
may be executed by the affixing of such signature pages executed by the
parties to one copy of the Agreement; all of such counterpart signature pages
shall be read as though one, and they shall have the same force and effect as
though all of the signers had signed a single signature page.
IN WITNESS WHEREOF, the undersigned has executed this Agreement on the date
first above written.
TOTAL FILM GROUP, INC.
/s/ Xxx Xxxxx
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Xxx Xxxxx, Secy - Treasurer
NOTE HOLDER
The Viator Fund Ltd.
/s/ Xxxxxxx Xxxxx
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Name
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Address
0 Xxxxxx Xxxx
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Xxxxxxxxx, XX 00000
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