REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement"), dated as of
April 9, 1999, is among Platinum Entertainment, Inc., a Delaware corporation
(the "COMPANY"), Xxxxxx Xxxxxx, Xxxxxx Xxxxxxxxxx, and Xxxxx Xxxxxxxxxx
(collectively, the "Series D Purchasers").
WHEREAS, the Company and the Series D Purchasers deem it desirable to
enter into this Agreement in order to induce the Series D Purchasers to purchase
an aggregate of up to 4,200 shares of Series D Preferred Stock, par value $.001
per share (the "SERIES D PREFERRED STOCK") and warrants (the "WARRANTS",
together with the Series D Preferred Stock, the "SECURITIES") for up to an
aggregate of 847,000 shares of common stock of the Company, par value $.001 per
share ("COMMON STOCK"), such securities to be issued and sold to the Series D
Purchasers on Wednesday, April 14, 1999.
In consideration of the mutual promises and covenants herein contained
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto hereby agree as follows:
1. DEFINITIONS.
The terms defined in this Section 1 shall have the following meanings
for all purposes of this Agreement:
"Act" means the Securities Act of 1933, as amended, or any superseding
Federal statute, and the rules and regulations promulgated thereunder, all as
the same shall be in effect from time to time. References to a particular
section of the Securities Act of 1933, as amended, shall include a reference to
the comparable section, if any, of any such superseding Federal statute.
"Business Day" means any day other than a Saturday, Sunday or federal
holiday, and consists of the time period from 12:00 a.m. through 12:00 midnight,
New York City time.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
or any superseding Federal statute, and the rules and regulations promulgated
thereunder, all as the same shall be in effect at the time. Reference to a
particular section of the Securities Exchange Act of 1934, as amended, shall
include a reference to the comparable section, if any, of such superseding
Federal statute.
"Investment Agreement" means The Investment Agreement, dated October
12, 1997, as amended, among the Company, MAC Music LLC and SK-Palladin Partners,
LP.
"Investors" means MAC Music LLC together with SK-Palladin Partners,
LP.
"Investor Warrants" means the warrants initially issued to the
Investors pursuant to the Investment Agreement.
"Person" means any individual, firm, corporation, partnership,
limited liability company or partnership, trust, incorporated or
unincorporated association, joint venture, joint stock company, government
(or an agency or political subdivision thereof) or other entity of any kind,
and shall include any successor (by merger or otherwise) of such entity.
"Registrable Securities" shall mean the shares of Common Stock issued
or issuable upon conversion or exercise of the Securities.
"SEC" means the Securities and Exchange Commission.
"Series B Preferred Stock" means the Series B Convertible Preferred
Stock, par value $.001 per share, initially issued to the Investors pursuant
to the Investment Agreement.
"Series D Preferred Stock" means the Series D Convertible Preferred
Stock, par value $.001 per share, issued to the Series D Purchasers.
"Transfer" means, with respect to any Securities, any sale,
assignment, transfer or disposition by gift or otherwise, including without
limitation, any distribution in liquidation or otherwise by a corporation or
partnership or other Person.
2. SECURITIES SUBJECT TO THIS AGREEMENT.
2.1. REGISTRABLE SECURITIES. Registrable Securities will cease to be
Registrable Securities when such Registrable Securities are sold pursuant to
Rule 144 under the Act or a registration statement covering such Registrable
Securities has been declared effective under the Securities Act by the SEC and
such Registrable Securities have been disposed of pursuant to such effective
registration statement.
2.2. HOLDERS OF REGISTRABLE SECURITIES. A Person is deemed to be a
holder of Registrable Securities whenever such Person owns of record
Registrable Securities, or holds a warrant to purchase, or a security
convertible into or exercisable or exchangeable for, Registrable Securities
whether or not such acquisition or conversion has actually been effected and
disregarding any legal restrictions upon the exercise of such rights. If the
Company receives conflicting instructions, notices or elections from two or
more persons with respect to the same Registrable Securities, the Company may
act upon the basis of the instructions, notice or election received from the
registered owner of such Registrable Securities. Registrable Securities
issuable upon exercise of an option or upon conversion of another security
shall be deemed outstanding.
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3. PIGGY-BACK REGISTRATION.
3.1. PIGGY-BACK RIGHTS. If the Company proposes to file a
registration statement under the Act with respect to an offering by the
Company for its own account or for the account of any other holder of
registration rights exercising demand registration rights (such other holder
or registration rights being "DEMAND HOLDER") of any class of equity
securities (other than a registration statement on Form S-4 or S-8 or any
successor or other forms not available for registering equity securities for
sale to the public), then the Company shall give written notice of such
proposed filing to each holder of Registrable Securities at least thirty (30)
days before the anticipated filing date, and such notice shall describe in
detail the proposed registration and distribution (including those
jurisdictions where registration under the securities or blue sky laws is
intended) and offer such holders the opportunity to register such number of
Registrable Securities as each such holder may request. The Company shall
use its best efforts (within ten (10) days of the notice provided for in the
preceding sentence) to cause the managing underwriter or underwriters of a
proposed underwritten offering (the "UNDERWRITER") to permit the holders of
Registrable Securities that have requested to participate in the
registration for such offering to include such Registrable Securities in such
offering on the same terms and conditions as the securities of the Company or
the Demand Holder, as the case may be, included therein. Notwithstanding the
foregoing, (x) if in the opinion of the Underwriter the total amount or kind
of securities which the holders of Registrable Securities, the Company and
any other persons or entities intend to include in such offering (the "TOTAL
SECURITIES") is sufficiently large so as to have a material adverse effect on
the distribution of the Total Securities, then the amount or kind of
securities to be offered for the account of such holders of Registrable
Securities and such other persons or entities other than (i) the Company, if
such registration is being filed for the Company's own account, or (ii) the
Demand Holders, if such registration is being made at the demand of a Demand
Holder, shall be reduced pro rata (to zero, if necessary) to the extent
necessary to reduce the Total Securities to the amount recommended by the
Underwriter and (y) holders of Registrable Securities shall have no piggyback
rights in connection with a registration statement filed as a result of the
exercise of a demand registration right by the holders of Series B Preferred
Stock or Investor Warrants (or, in each case, shares of Common Stock issued
or issuable upon exercise thereof) pursuant to the Investment Agreement
unless holders of (x) 66 2/3% of the outstanding shares of Series B Preferred
Stock, if any, and (y) 66 2/3% in interest of the shares of Common Stock
underlying the Investor Warrants consent in writing to the grant of such
piggyback rights.
3.2. EXPENSES. The Company shall bear all Registration Expenses in
connection with any registration pursuant to this Section 3.
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4. HOLDBACK AGREEMENTS.
4.1. RESTRICTIONS ON PUBLIC SALE BY HOLDERS OF REGISTRABLE SECURITIES.
To the extent not inconsistent with applicable law, each holder of Registrable
Securities participating in such registration agrees not to effect any public
sale or distribution of any Registrable Securities being registered or of any
securities convertible into or exchangeable or exercisable for such Registrable
Securities, including a sale pursuant to Rule 144 under the Securities Act,
during the ten (10) Business Days prior to, and during the ninety (90) days
beginning on, the effective date of such registration statement (except as part
of such registration), if and to the extent requested by the Company in the case
of a non-underwritten public offering or if and to the extent requested by the
Underwriter in the case of an underwritten public offering.
4.2. RESTRICTIONS ON PUBLIC SALE BY THE COMPANY. The Company
agrees not to effect any public sale or distribution of any of its equity
securities, or any securities convertible into or exchangeable or exercisable
for such equity securities (except pursuant to registrations on Form S-4 or
S-8 or any successor or other forms not available for registering equity
securities for sale to the public) during the ten (10) Business Days prior
to, and during the ninety (90) day period beginning on, the later of (i) the
effective date of any registration statement in which the holders of
Registrable Securities are participating and (ii) the commencement of a
public distribution of the Registrable Securities pursuant to such
registration statement.
5. REGISTRATION PROCEDURES.
5.1. OBLIGATIONS OF THE COMPANY. Whenever registration of
Registrable Securities has been requested pursuant to Section 3 of this
Agreement, the Company shall use reasonable efforts to effect the
registration and sale of such Registrable Securities in accordance with the
intended method of distribution thereof, and in connection with any such
request, the Company shall, as soon as reasonably practicable:
(a) prepare and file with the SEC (in any event not later than
thirty (30) business days after receipt of a request to file a registration
statement with respect to Registrable Securities) a registration statement
on any form for which the Company then qualifies which counsel for the
Company shall deem appropriate and which form shall be available for the
sale of such Registrable Securities in accordance with the intended method
of distribution thereof, and use its best efforts to cause such
registration statement to become effective under the Act; provided,
however, that before filing a registration statement or prospectus or any
amendments or supplements thereto, the Company shall (A) provide counsel
selected by the holders of a majority of the Registrable Securities being
registered
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in such registration ("HOLDERS' COUNSEL") with an opportunity to
participate in the preparation of such registration statement and each
prospectus included therein (and each amendment or supplement thereto) to
be filed with the SEC, which documents shall be subject to the review of
Holders' Counsel, and (B) notify the Holders' Counsel and each seller of
Registrable Securities of any stop order issued or threatened by the SEC
and take all reasonable action required to prevent the entry of such stop
order or to remove it if entered;
(b) prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to keep such registration
statement effective for a period which will terminate when all Registrable
Securities covered by such registration statement have been sold (but not
before the expiration of the ninety (90) day period referred to in
Section 4(3) of the Act and Rule 174 thereunder, if applicable), and comply
with the provisions of the Act with respect to the disposition of all
securities covered by such registration statement during such period in
accordance with the intended methods of disposition by the sellers thereof
set forth in such registration statement;
(c) furnish to each seller of Registrable Securities, prior to
filing a registration statement, copies of such registration statement as
is proposed to be filed, and thereafter such number of copies of such
registration statement, each amendment and supplement thereto (in each case
including all exhibits thereto), the prospectus included in such
registration statement (including each preliminary prospectus) and such
other documents as each such seller may reasonably request in order to
facilitate the disposition of the Registrable Securities owned by such
seller;
(d) use reasonable efforts to register or qualify such
Registrable Securities under such other securities or blue sky laws of such
jurisdictions as any seller of Registrable Securities requests, and to
continue such qualification in effect in such jurisdiction for as long as
is permissible pursuant to the laws of such jurisdiction, or for as long as
any such seller requests or until all of such Registrable Securities are
sold, whichever is shortest, and do any and all other acts and things which
may be reasonably necessary or advisable to enable any such seller to
consummate the disposition in such jurisdictions of the Registrable
Securities owned by such seller; provided, however, that the Company shall
not be required to (A) qualify generally to do business in any jurisdiction
where it would not otherwise be required to qualify but for this Section
5.1(d), (B) subject itself to taxation in any such jurisdiction or (C)
consent to general service of process in any such jurisdiction;
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(e) use reasonable efforts to cause the Registrable Securities
covered by such registration statement to be registered with or approved by
such other governmental agencies or authorities as may be necessary by
virtue of the business and operations of the Company to enable the seller
or sellers of Registrable Securities to consummate the disposition of such
Registrable Securities;
(f) notify each seller of Registrable Securities at any time
when a prospectus relating thereto is required to be delivered under the
Act, upon discovery that, or upon the happening of any event as a result of
which, the prospectus included in such registration statement contains an
untrue statement of a material fact or omits to state any material fact
required to be stated therein or necessary to make the statements therein
not misleading in light of the circumstances under which they were made,
and the Company shall promptly prepare a supplement or amendment to such
prospectus and furnish to each seller a reasonable number of copies of a
supplement to or an amendment of such prospectus as may be necessary so
that, after delivery to the purchasers of such Registrable Securities, such
prospectus shall 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 in light of the circumstances
under which they were made;
(g) enter into and perform customary agreements (including an
underwriting agreement in customary form with the Underwriter, if any,
selected as provided in Section 3) and take such other actions as are
reasonably required in order to facilitate the disposition of such
Registrable Securities;
(h) make available for inspection by any seller of Registrable
Securities, any managing underwriter participating in any disposition
pursuant to such registration statement, Holders' Counsel and any attorney,
accountant or other agent retained by any such seller or any managing
underwriter (each, an "INSPECTOR" and collectively, the "INSPECTORS"), all
financial and other records, pertinent corporate documents and properties
of the Company and its subsidiaries (collectively, the "RECORDS") as shall
be reasonably necessary to enable them to exercise their due diligence
responsibility, and cause the Company's and its subsidiaries' officers,
directors and employees, and the independent public accountants of the
Company, to supply all information reasonably requested by any such
Inspector in connection with such registration statement;
(i) if such sale is pursuant to an underwritten offering, obtain
a "cold comfort" letter from the Company's independent public accountants
in customary form and covering such matters of the type customarily covered
by
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"cold comfort" letters as Holders' Counsel or the managing underwriter
reasonably requests;
(j) furnish, at the request of any seller of Registrable
Securities on the date such securities are delivered to the underwriters
for sale pursuant to such registration or, if such securities are not being
sold through underwriters, on the date the registration statement with
respect to such securities becomes effective, an opinion, dated such date,
of counsel representing the Company for the purposes of such registration,
addressed to the underwriters, if any, and to the seller making such
request, covering such legal matters with respect to the registration in
respect of which such opinion is being given as such seller may reasonably
request and are customarily included in such opinions;
(k) otherwise use reasonable efforts to comply with all
applicable rules and regulations of the SEC, and make available to its
security holders, as soon as reasonably practicable but no later than
fifteen (15) months after the effective date of the registration statement,
an earnings statement covering a period of twelve (12) months beginning
after the effective date of the registration statement, in a manner which
satisfies the provisions of Section 11(a) of the Act;
(l) cause all such Registrable Securities to be listed on each
securities exchange on which similar securities issued by the Company are
then listed (including NASDAQ), provided, that the applicable listing
requirements are satisfied;
(m) provide officers' certificates and other customary closing
documents;
(n) cooperate with each seller of Registrable Securities and
each underwriter participating in the disposition of such Registrable
Securities and their respective counsel in connection with any filings
required to be made with the National Association of Securities Dealers,
Inc. (the "NASD"); and
(o) use reasonable efforts to take all other steps necessary to
effect the registration of the Registrable Securities contemplated hereby.
5.2. NOTICE TO DISCONTINUE. Each holder of Registrable Securities
agrees that, upon receipt of any notice from the Company of the happening of
any event of the kind described in Section 5.1(f), such holder shall
forthwith discontinue disposition of Registrable Securities pursuant to the
registration statement covering such Registrable Securities until such
holder's receipt of the copies of the supplemented or amended prospectus
contemplated by Section 5.1(f) and, if so directed by the Company, such
holder shall deliver to the Company (at the Company's expense) all copies,
other than
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permanent file copies then in such holder's possession, of the prospectus
covering such Registrable Securities which is current at the time of receipt
of such notice. If the Company shall give any such notice, the Company shall
extend the period during which such registration statement shall be
maintained effective pursuant to this Agreement (including without limitation
the period referred to in Section 5.1(b)) by the number of days during the
period from and including the date of the giving of such notice pursuant to
Section 5.1(f) to and including the date when the holder shall have received
the copies of the supplemented or amended prospectus contemplated by and
meeting the requirements of Section 5.1(f).
6. REGISTRATION EXPENSES. The Company shall pay all expenses (other
than underwriting discounts and commissions) arising from or incident to the
performance of, or compliance with, this Agreement, including without
limitation, (i) SEC, stock exchange, NASDAQ and NASD registration and filing
fees, (ii) all fees and expenses incurred in complying with securities or
blue sky laws (including reasonable fees, charges and disbursements of
counsel in connection with blue sky qualifications of the Registrable
Securities), (iii) all printing, messenger and delivery expenses, (iv) the
fees, charges and disbursements of counsel to the Company and of its
independent public accountants and any other accounting and legal fees,
charges and expenses incurred by the Company (including without limitation
any expenses arising from any special audits incident to or required by any
registration or qualification), and (v) any liability insurance or other
premiums for insurance obtained by the Company and the reasonable fees,
charges and expenses of any special experts retained by the Company in
connection with any piggy-back registration pursuant to the terms of this
Agreement, regardless of whether such registration statement is declared
effective. In connection with each registration hereunder, the Company shall
reimburse the holders of Registrable Securities being registered in such
registration for the reasonable fees, charges and disbursements of not more
than one counsel chosen by the holders of a majority of Registrable
Securities being registered in such registration. All of the expenses
described in this Section 6 are referred to herein as "REGISTRATION EXPENSES."
7. INDEMNIFICATION; CONTRIBUTION.
7.1. INDEMNIFICATION BY THE COMPANY. The Company agrees to
indemnify, to the fullest extent permitted by law, each holder of Registrable
Securities, its officers, directors, partners, employees, advisors and agents
and each Person who controls (within the meaning of the Act or the Exchange
Act) such holder from and against any and all losses, claims, damages,
liabilities and expenses (including reasonable costs of investigation)
arising out of or based upon any untrue, or alleged untrue, statement of a
material fact contained in any registration statement, prospectus or
preliminary prospectus or notification or offering circular (as amended or
supplemented if the Company shall have furnished any amendments or
supplements thereto) or arising out of or based upon any omission or alleged
omission to state therein a material fact required to
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be stated therein or necessary to make the statements therein not misleading,
except insofar as the same are caused by or contained in any information
furnished in writing to the Company by such holder expressly for use therein
and provided further that the Company will not be liable to any holder of
Registrable Securities or any person controlling such holder with respect to
any loss, claim, liability, expense, charge or damage arising out of or based
on any untrue statement or alleged untrue statement or omission or alleged
omission to state a material fact in any preliminary prospectus which is
corrected in the prospectus. The Company shall also indemnify any
underwriters of the Registrable Securities, their officers, directors and
employees and each Person who controls such underwriters (within the meaning
of the Act and the Exchange Act) to the same extent as provided above with
respect to the indemnification of the holders of Registrable Securities.
7.2. INDEMNIFICATION BY HOLDERS. In connection with any
registration statement in which a holder of Registrable Securities is
participating pursuant to Section 3 hereof, each such holder shall furnish to
the Company in writing such information with respect to such holder as the
Company may reasonably request or as may be required by law for use in
connection with any such registration statement or prospectus and each
holder, by its participation in such registration, agrees to indemnify, to
the extent permitted by law, the Company, any underwriter retained by the
Company and their respective directors, officers, employees and each Person
who controls the Company or such underwriter (within the meaning of the Act
and the Exchange Act) to the same extent as the foregoing indemnity from the
Company to the holders of Registrable Securities, but only with respect to
any such information furnished in writing by or on behalf of such holder.
7.3. CONDUCT OF INDEMNIFICATION PROCEEDINGS. Any Person entitled
to indemnification hereunder (the "REGISTRATION RIGHTS INDEMNIFIED PARTY")
agrees to give prompt written notice to the indemnifying party (the
"REGISTRATION RIGHTS INDEMNIFYING PARTY") after the receipt by the
Registration Rights Indemnified Party of any written notice of the
commencement of any action, suit, proceeding or investigation or threat
thereof made in writing for which the Registration Rights Indemnified Party
intends to claim indemnification or contribution pursuant to this Agreement;
provided, that the failure so to notify the Registration Rights Indemnifying
Party shall not relieve the Registration Rights Indemnifying Party of any
liability that it may have to the Registration Rights Indemnified Party
hereunder unless, and only to the extent that, such failure results in the
Registration Rights Indemnifying Party's forfeiture of substantial rights or
defenses. If notice of commencement of any such action is given to the
Registration Rights Indemnifying Party as above provided, the Registration
Rights Indemnifying Party shall be entitled to participate in and, to the
extent it may wish, jointly with any other Registration Rights Indemnifying
Party similarly notified, to assume the defense of such action at its own
expense, with counsel chosen by it and satisfactory to such Registration
Rights Indemnified Party. The Registration Rights
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Indemnified Party shall have the right to employ separate counsel in any such
action and participate in the defense thereof, but the fees and expenses of
such counsel (other than reasonable costs of investigation) shall be paid by
the Registration Rights Indemnified Party unless (i) the Registration Rights
Indemnifying Party agrees to pay the same, (ii) the Registration Rights
Indemnifying Party fails to assume the defense of such action with counsel
satisfactory to the Registration Rights Indemnified Party in its reasonable
judgment, (iii) the named parties to any such action (including any impleaded
parties) have been advised by such counsel that either (A) representation of
such Registration Rights Indemnified Party and the Registration Rights
Indemnifying Party by the same counsel would be inappropriate under
applicable standards of professional conduct or (B) there may be one or more
legal defenses available to the Registration Rights Indemnified Party which
are different from or additional to those available to the Registration
Rights Indemnifying Party. No Registration Rights Indemnifying Party shall,
without the prior written consent of each Registration Rights Indemnified
Party, settle, compromise or consent to the entry of any judgment unless such
settlement, compromise or consent includes an unconditional release of the
Registration Rights Indemnified Party from all liability relating thereto.
In either of such cases the Registration Rights Indemnifying Party shall not
have the right to assume the defense of such action on behalf of such
Registration Rights Indemnified Party. No Registration Rights Indemnifying
Party shall be liable for any settlement entered into without its written
consent, which consent shall not be unreasonably withheld, conditioned or
delayed.
7.4. CONTRIBUTION. If the indemnification provided for in this
Section 7 from the Indemnifying Party is unavailable to a Registration Rights
Indemnified Party hereunder in respect of any losses, claims, damages,
liabilities or expenses referred to therein, then the Indemnifying Party, in
lieu of indemnifying such Registration Rights Indemnified Party, shall
contribute to the amount paid or payable by such Registration Rights
Indemnified Party as a result of such losses, claims, damages, liabilities or
expenses in such proportion as is appropriate to reflect the relative fault
of the Registration Rights Indemnifying Party and Registration Rights
Indemnified Party in connection with the actions which resulted in such
losses, claims, damages, liabilities or expenses, as well as any other
relevant equitable considerations. The relative faults of such Registration
Rights Indemnifying Party and Registration Rights Indemnified Party shall be
determined by reference to, among other things, whether any action in
question, including any untrue or alleged untrue statement of a material fact
or omission or alleged omission to state a material fact, has been made by,
or relates to information supplied by, such Registration Rights Indemnifying
Party or Registration Rights Indemnified Party, and the parties' relative
intent, knowledge, access to information and opportunity to correct or
prevent such action. The amount paid or payable by a party as a result of
the losses, claims, damages, liabilities and expenses referred to above shall
be deemed to include, subject to the limitations set forth in Sections 7.1,
7.2 and 7.3, any legal or other
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fees, charges or expenses reasonably incurred by such party in connection
with any investigation or proceeding.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 7.4 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
paragraph. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person.
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8. RULE 144. The Company covenants that it shall file any reports
required to be filed by it under the Exchange Act and the rules and
regulations adopted by the Commission thereunder; and that it shall take such
further action as each holder of Registrable Securities may reasonably
request (including providing any information necessary to comply with Rules
144 and 144A under the Securities Act), all to the extent required from time
to time to enable such holder to sell Registrable Securities without
registration under the Act within the limitation of the exemptions provided
by (a) Rule 144 or Rule 144A under the Act, as such rules may be amended from
time to time, or (b) any similar rules or regulations hereafter adopted by
the SEC. The Company shall, upon the request of any holder of Registrable
Securities, deliver to such holder a written statement as to whether it has
complied with such requirements.
9. MISCELLANEOUS.
9.1. PERFORMANCE; WAIVER. The provisions of this Agreement may be
modified or amended, and waivers and consents to the performance and
observance of the terms hereof may be given by written instrument executed
and delivered by the Company and the Purchasers. The failure at any time to
require performance of any provision hereof shall in no way affect the full
right to require such performance at any time thereafter (unless performance
thereof has been waived in accordance with the terms hereof for all purposes
and at all times by the parties to whom the benefit of such performance is to
be rendered). The waiver by any party to this Agreement of a breach of any
provision hereof shall not be taken or held to be a waiver of any succeeding
breach of such provision of any other provision or as a waiver of the
provision itself.
9.2. SUCCESSORS AND ASSIGNS. This Agreement shall inure to the
benefit of and be binding upon the successors and permitted assigns of the
parties hereto. The Company may not assign any of its rights under this
Agreement, except to a successor-in-interest to the Company, without the
written consent of the Affiliates. No Person other than the parties hereto
and their successors and permitted assigns is intended to be a beneficiary of
this Agreement.
9.3. NOTICES. All notices or other communications given or made
hereunder shall be validly given or made if in writing and delivered by
facsimile transmission or in Person at, mailed by registered or certified
mail, return receipt requested, postage prepaid, or sent by a reputable
overnight courier to, the following addresses (and shall be deemed effective
at the time of receipt thereof).
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If to the Company:
Platinum Entertainment, Inc.
00000 Xxxxxxxxxxx Xxxx, Xxxxx 0000
Xxxxxxx Xxxxx, Xxxxxxxx 00000
Telecopy: (000) 000-0000
Attention: Chief Executive Officer
with a copies to:
Katten, Muchin & Zavis
000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx
Telecopy: (000) 000-0000
Attention: Xxxxxxx X. Xxxxx, Esq.
If to the holders of Registrable Securities, to the addresses set
forth on on the stock record books of the Company.
or to such other address as the party to whom notice is to be given may have
previously furnished notice in writing to the other in the manner set forth
above.
9.4. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF ILLINOIS APPLICABLE TO
AGREEMENTS MADE AND PERFORMED ENTIRELY WITHIN SUCH STATE. EACH OF THE
PARTIES HERETO AGREES TO SUBMIT TO THE JURISDICTION OF THE STATE AND FEDERAL
COURTS IN THE STATE OF NEW YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THIS AGREEMENT.
9.5. SEVERABILITY. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction to
be invalid, void or unenforceable, each of the Company and the Affiliates
directs that such court interpret and apply the remainder of this Agreement
in the manner that it determines most closely effectuates their intent in
entering into this Agreement, and in doing so particularly take into account
the relative importance of the term, provision, covenant or restriction being
held invalid, void or unenforceable.
9.6. HEADINGS; INTERPRETATION. The index and section headings
herein are for convenience only and shall not affect the construction hereof.
References to sections means sections of this Agreement unless the context
otherwise requires. References to herein or hereof mean this Agreement.
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9.7. ENTIRE AGREEMENT. This Agreement embodies the entire
agreement between the parties relating to the subject matter hereof and
supersedes any and all prior oral or written agreements, representations or
warranties, contracts, understandings, correspondence, conversations, and
memoranda, whether written or oral, between the Company and the Affiliates,
or between or among any agents, representatives, parents, predecessors in
interest or successors in interest, with respect to the subject matter hereof.
9.8. NO THIRD PARTY RIGHTS. Except for the indemnified parties,
this Agreement is intended solely for the benefit of the parties hereto and
is not intended to confer any benefits upon, or create any rights in favor
of, any Person (including, without limitation, any stockholder or debtholder
of the Company) other than the parties hereto.
9.9. REMEDIES FOR BREACH. The parties agree that in addition to
any other rights or remedies which may be available at law or equity, the
parties shall be entitled to seek specific performance of any obligation of
any party hereto.
9.10. COUNTERPARTS. This Agreement may be executed in counterparts,
each of which shall be deemed to be an original and both of which together shall
be deemed to be one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement.
PLATINUM ENTERTAINMENT, INC.
By: /s/ Xxxxxxx X. Xxxx
----------------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Chief Operating Officer and
Chief Financial Officer
/s/ Xxxxxx X. Xxxxxx
--------------------------------------------
Xxxxxx X. Xxxxxx
/s/ Xxxxxx X. Xxxxxxxxxx
--------------------------------------------
Xxxxxx X. Xxxxxxxxxx
/s/ Xxxxx X. Xxxxxxxxxx
--------------------------------------------
Xxxxx X. Xxxxxxxxxx
14
