EXHIBIT 4.2
WAIVER
THIS WAIVER ("Waiver") is made and entered into as of this 25th day of
November, 2005, by and among ARTISTdirect, Inc., a Delaware corporation (the
"Company"), and the undersigned Buyers. Capitalized terms used herein and
undefined shall have the meanings set forth in that certain Sub-debt
Registration Rights Agreement (defined in the Recitals below).
RECITALS:
WHEREAS, reference is made to that certain Registration Rights Agreement
dated as of July 28, 2005 (the "Sub-debt Registration Rights Agreement"), by and
among the Company and the Buyers;
WHEREAS, Section 2.b. of the Sub-debt Registration Rights Agreement limits
the ability of the Company to include any Securities, other than the Securities
issued pursuant to the Note Purchase Agreement or the Securities Purchase
Agreement, both dated as of July 28, 2005, or Securities issued to Libra
Securities, LLC, in a resale registration statement filed by the Company with
the Securities and Exchange Commission ("Registration Restrictions");
WHEREAS, the Company previously issued a warrant to 5670 Wilshire L.P.
("Landlord") to purchase up to Two Hundred Thousand (200,000) shares of Common
Stock (the "Landlord Warrant");
WHEREAS, the Landlord Warrant contains certain piggyback registration
rights ("Piggyback Rights");
WHEREAS, the Company wishes to offer to Landlord the right to include the
shares of Common Stock underlying the Landlord Warrant in the resale
registration statement originally filed by the Company with the Securities and
Exchange Commission on November 10, 2005 (the "Registration Statement");
WHEREAS, the Landlord has twenty (20) days to elect to exercise its
Piggyback Rights;
WHEREAS, Section 3.a. of the Sub-debt Registration Rights Agreements
provides that the Company shall file a request for acceleration within two (2)
Business Days after receipt of a "no review" letter issued by the staff of the
Securities and Exchange Commission (the "Acceleration Deadline");
WHEREAS, the Company received a "no review" letter from the staff of the
Securities and Exchange Commission dated as of November 17, 2005 (the "November
No Review Letter") pertaining to the Registration Statement;
WHEREAS, pursuant to rules set forth under the Securities Act of 1933, as
amended (the "Act"), the Company must file an amendment to the resale
Registration Statement to include
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September 30, 2005 financial statements prior to effectiveness of the
Registration Statement ("Amendment");
WHEREAS, Section 10 of the Sub-debt Registration Rights Agreement permits
any provision of the Sub-debt Registration Rights Agreement to be waived upon
the written consent of the holder or holders representing at least a majority of
the principal amount of the Notes outstanding;
WHEREAS, pursuant to the terms of the Sub-debt Registration Rights
Agreement, any waiver of a provision of the Sub-debt Registration Rights
Agreement by the holder or holders representing at least a majority of the
principal amount of the Notes outstanding shall be binding on all of the other
Buyers; and
WHEREAS, the undersigned Buyers holds at least a majority of the principal
amount of the Notes outstanding;
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual
agreements herein contained and for other good and valuable consideration, the
parties hereto agree as follows:
1. WAIVER.
(a) The Buyers agree to waive the Registration Restrictions contained in
Section 2.b. of the Sub-debt Registration Rights Agreement; provided, however,
that such waiver shall only apply to shares of Common Stock underlying the
Landlord Warrant.
(b) The Buyers agree to waive the Acceleration Deadline contained in
Section 3.a. of the Sub-debt Registration Rights Agreement with respect to the
November No Review Letter; provided, however, that the Company shall file an
amendment to the Registration Statement with the Securities and Exchange
Commission by no later than 5:30 p.m. Eastern Time on December 9, 2005.
(c) Except as expressly set forth herein, this Waiver shall not be deemed
to be a waiver, amendment or modification of any provisions of the Sub-debt
Registration Rights Agreement or of any right, power or remedy of the Buyers, or
constitute a waiver of any provision of the Sub-debt Registration Rights
Agreement (except to the extent herein set forth), or any other document,
instrument and/or agreement executed or delivered in connection therewith, in
each case whether arising before or after the date hereof or as a result of
performance hereunder or thereunder. Except as set forth herein, the Buyers
reserve all rights, remedies, powers, or privileges.
2. CONFLICTS. Except as expressly set forth in this Waiver, the terms and
provisions of the Sub-debt Registration Rights Agreement shall continue
unmodified and in full force and effect. In the event of any conflict between
this Waiver and the Sub-debt Registration Rights Agreement, this Waiver shall
control.
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3. GOVERNING LAW. This Waiver shall be governed and construed under the
laws of the State of New York, and shall be binding on and shall inure to the
benefit of the parties and their respective successors and permitted assigns.
4. COUNTERPARTS. This Waiver may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this Waiver as of the
date first set forth above.
COMPANY:
ARTISTdirect, Inc.
By: /s/ Robert Weingarten
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Name: Robert Weingarten
Title: Chief Financial Officer
BUYERS:
DKR SoundShore Oasis Holding Fund Ltd.
By: /s/ Brad Caswell
-----------------------------
Name: Brad Caswell
Title: Director
CCM Master Qualified Fund Ltd.
By: /s/ Clint D. Coghill
-----------------------------
Name: Clint D. Coghill
Title: Director
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