EXHIBIT 10.4
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REGISTRATION RIGHTS AGREEMENT
Dated February 19, 1998
between
DIVA SYSTEMS CORPORATION
and
MERRILL LYNCH & CO.,
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED,
CHASE SECURITIES INC. and
MORGAN STANLEY & CO. INCORPORATED
________________________________________________________________________________
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made and entered
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into February 19, 1998, among DIVA SYSTEMS CORPORATION, a Delaware corporation
(the "Company") on the one hand, and MERRILL LYNCH & CO., MERRILL LYNCH, PIERCE,
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FENNER & SMITH INCORPORATED, CHASE SECURITIES INC. and MORGAN STANLEY & CO.
INCORPORATED, on the other hand (the "Initial Purchasers").
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This Agreement is made pursuant to the Units Purchase Agreement, dated
February 11, 1998, between the Company and the Initial Purchasers (the "Purchase
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Agreement"), which provides for the sale by the Company to the Initial
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Purchasers of 404,998 Units (the "Initial Purchaser Units"), each consisting of
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one 12% Senior Discount Note due 2008 with a principal amount at maturity of
$1,000 (a "Note") and three warrants (each a "Warrant"), each entitling the
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holder thereof to purchase one share of Common Stock, par value $0.001 per
share, of the Company (the "Common Stock"). In order to induce the Initial
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Purchasers to enter into the Purchase Agreement, the Company has agreed to
provide to the Initial Purchasers and their direct and indirect transferees the
registration rights set forth in this Agreement. The execution of this Agreement
is a condition to the closing under the Units Purchase Agreement.
Pursuant to the terms of an exchange offer memorandum and accompanying
Transmittal Form from the Company to the holders (the "Exchange Noteholders") of
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its 13% Subordinated Discount Note due 2006, the Company has agreed to issue to
the Exchange Noteholders an aggregate of 58,002 Units (the "Exchange Noteholder
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Units"), each consisting of one Note and three Warrants. In order to induce the
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Exchange Noteholders to exchange their 13% Subordinated Discount Notes due 2006
for Units, the Company has agreed to provide to the Exchange Noteholders and
their direct and indirect transferees the registration rights set forth in this
Agreement. The Notes included in the Initial Purchaser Units and the Notes
included in the Exchange Noteholder Units are collectively referred to herein as
the "Notes".
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In consideration of the foregoing, the parties hereto agree as follows:
1. Definitions.
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As used in this Agreement, the following capitalized defined terms shall
have the following meanings:
"Business Day" shall have the meaning specified in the Indenture.
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"Closing Date" shall mean the Closing Date as defined in the Purchase
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Agreement.
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"Company" shall have the meaning set forth in the preamble and shall also
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include the Company's successors.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended
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from time to time.
"Exchange Noteholders" shall have the meaning set forth in the preamble.
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"Exchange Offer" shall mean the exchange offer by the Company of Exchange
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Securities for Registrable Securities pursuant to Section 2(a) hereof.
"Exchange Offer Registration" shall mean a registration under the
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Securities Act effected pursuant to Section 2(a) hereof.
"Exchange Offer Registration Statement" shall mean an exchange offer
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registration statement on Form S-4 (or, if applicable, on another appropriate
form) and all amendments and supplements to such registration statement, in each
case including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
"Exchange Securities" shall mean securities issued by the Company under the
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Indenture containing terms identical to the Notes (except that (i) interest
thereon shall accrue from the last date on which interest was paid on the Notes
or, if no such interest has been paid, from March 1, 2003 and (ii) the interest
rate per annum on the Exchange Securities shall be 12%; provided that if by
February 19, 1999 the Company has not consummated the Exchange Offer or caused
the Shelf Registration Statement to be declared effective, interest (in addition
to interest otherwise due on the Exchange Securities after such date) will
accrue at a rate of 0.5% per annum on the Exchange Securities) and to be offered
to Holders of Notes in exchange for Notes pursuant to the Exchange Offer.
"Holder" shall mean each of the Initial Purchasers and each of the Exchange
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Noteholders, for so long as it owns any Registrable Securities, and each of its
successors, assigns and direct and indirect transferees who become registered
owners of Registrable Securities under the Indenture; provided that for purposes
of Sections 4 and 5 of this Agreement, the term "Holder" shall include
Participating Broker-Dealers (as defined in Section 4(a)).
"Indenture" shall mean the Indenture relating to the Notes dated as of
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February 19, 1998, between the Company and The Bank of New York, as trustee, and
as the same may be amended from time to time in accordance with the terms
thereof.
"Initial Purchasers" shall have the meaning set forth in the preamble.
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"Majority Holders" shall mean, at any time, the Holders of a majority of
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the aggregate principal amount at maturity of Registrable Securities outstanding
at such time; provided that whenever the consent or approval of Holders of a
specified percentage of Registrable Securities is required hereunder,
Registrable Securities held by the Company or any of its affiliates (as such
term is defined in Rule 405 under the Securities Act) (other than the Initial
Purchasers or subsequent holders of Registrable Securities if such subsequent
holders are deemed to be such affiliates solely by reason of their holding of
such Registrable Securities) shall not be counted in determining whether such
consent or approval was given by the Holders of such required percentage or
amount.
"Person" shall mean an individual, partnership, corporation, trust or
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unincorporated organization, or a government or agency or political subdivision
thereof.
"Prospectus" shall mean the prospectus included in a Registration
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Statement, including any preliminary prospectus, and any such prospectus as
amended or supplemented by any prospectus supplement, including a prospectus
supplement with respect to the terms of the offering of any portion of the
Registrable Securities covered by a Shelf Registration Statement, and by all
other amendments and supplements to such prospectus, and in each case including
all material incorporated by reference therein.
"Purchase Agreement" shall have the meaning set forth in the preamble.
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"Registrable Securities" shall mean the Notes; provided, however, that the
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Notes shall cease to be Registrable Securities (i) when a Registration Statement
with respect to such Notes shall have been declared effective under the
Securities Act and such Notes shall have been disposed of or exchanged pursuant
to such Registration Statement, (ii) when such Notes have been sold to the
public pursuant to Rule 144(k) (or any similar provision then in force, but not
Rule 144A) under the Securities Act or (iii) when such Notes shall have ceased
to be outstanding.
"Registration Expenses" shall mean any and all expenses incident to
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performance of or compliance by the Company with this Agreement, including
without limitation: (i) all SEC, stock exchange or National Association of
Securities Dealers, Inc. registration and filing fees, (ii) all fees and
expenses incurred in connection with compliance with state securities or blue
sky laws (including reasonable fees and disbursements of one counsel for any
underwriters or Holders in connection with blue sky qualification of any of the
Exchange Securities or Registrable Securities), (iii) all expenses incurred in
the preparation, printing and distribution of any Registration Statement, any
Prospectus, any amendments or supplements thereto, any underwriting agreements,
securities sales agreements and other documents relating to the performance of
and compliance with this Agreement, in each case to the extent not paid or
payable by any other Person, (iv) all rating agency fees, (v) all fees and
disbursements relating to the qualification of the Indenture under applicable
securities laws, (vi) the fees and disbursements of the Trustee and its counsel,
(vii) the fees and disbursements of counsel for the Company and, in the case of
a Shelf Registration Statement, the reasonable fees and disbursements of one
counsel for the Holders (which counsel shall be selected by
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the Majority Holders and which counsel may also be counsel for the Initial
Purchasers) and (viii) the fees and disbursements of the independent public
accountants of the Company, including the expenses of any special audits or
"cold comfort" letters required by or incident to such performance and
compliance, but excluding fees and expenses of counsel to the underwriters
(other than fees and expenses set forth in clause (ii) above) or the Holders
(other than fees and expenses set forth in clause (vii) above) or accountants to
the Holders and underwriting discounts and commissions and transfer taxes, if
any, relating to the sale, disposition or exchange of Registrable Securities by
a Holder.
"Registration Statement" shall mean any registration statement of the
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Company that covers any of the Exchange Securities or Registrable Securities
pursuant to the provisions of this Agreement and all amendments and supplements
to any such Registration Statement, including post-effective amendments, in each
case including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
"SEC" shall mean the Securities and Exchange Commission.
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"Securities Act" shall mean the Securities Act of 1933, as amended from
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time to time.
"Shelf Registration" shall mean a registration effected pursuant to Section
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2(b) hereof.
"Shelf Registration Statement" shall mean a "shelf" registration statement
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of the Company pursuant to the provisions of Section 2(b) of this Agreement
which covers all of the Registrable Securities (but no other securities unless
approved by the Majority Holders whose Registrable Securities are covered by
such Shelf Registration Statement) on an appropriate form under Rule 415 under
the Securities Act, or any similar rule that may be adopted by the SEC, and all
amendments and supplements to such registration statement, including post-
effective amendments, in each case including the Prospectus contained therein,
all exhibits thereto and all material incorporated by reference therein.
"Trustee" shall mean the trustee with respect to the Notes under the
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Indenture.
"Underwritten Registration" or "Underwritten Offering" shall mean a
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registration in which Registrable Securities are sold to an Underwriter (as
hereinafter defined) for reoffering to the public.
2. Registration Under the Securities Act. (a) To the extent not
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prohibited by any applicable law or applicable interpretations of the Staff of
the SEC, the Company shall use its best efforts to cause to be filed an Exchange
Offer Registration Statement covering the offer by the Company to the Holders to
exchange all of the Registrable Securities for Exchange Securities and to have
such Registration Statement remain effective until the closing of the Exchange
Offer. The Company shall commence the Exchange Offer promptly after the Exchange
Offer Registration Statement has been declared effective by the SEC and use its
best efforts to have the Exchange Offer consummated not
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later than 60 days after such effective date. The Company shall commence the
Exchange Offer by mailing the related exchange offer Prospectus and accompanying
documents to each Holder stating, in addition to such other disclosures as are
required by applicable law:
(i) that the Exchange Offer is being made pursuant to this
Registration Rights Agreement and that all Registrable Securities validly
tendered will be accepted for exchange;
(ii) the dates of acceptance for exchange (which shall be a period of
at least 20 Business Days from the date such notice is mailed) (the
"Exchange Dates");
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(iii) that any Registrable Security not tendered will remain
outstanding and continue to accrete in value as provided in the Indenture
until March 1, 2003, and thereafter will accrue interest, but will not
retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Registrable Security exchanged
pursuant to the Exchange Offer will be required to surrender such
Registrable Security, together with the enclosed letters of transmittal, to
the institution and at the address (located in the Borough of Manhattan,
The City of New York) specified in the notice prior to the close of
business on the last Exchange Date; and
(v) that Holders will be entitled to withdraw their election, not
later than the close of business on the last Exchange Date, by sending to
the institution and at the address (located in the Borough of Manhattan,
The City of New York) specified in the notice a telegram, telex, facsimile
transmission or letter setting forth the name of such Holder, the principal
amount of Registrable Securities delivered for exchange and a statement
that such Holder is withdrawing his election to have such Notes exchanged.
As soon as practicable after the last Exchange Date, the Company shall:
(i) accept for exchange Registrable Securities or portions thereof
tendered and not validly withdrawn pursuant to the Exchange Offer; and
(ii) deliver, or cause to be delivered, to the Trustee for
cancellation all Registrable Securities or portions thereof so accepted for
exchange by the Company and issue, and cause the Trustee to promptly
authenticate and mail to each Holder, an Exchange Security equal in
principal amount at maturity to the principal amount at maturity of the
Registrable Securities surrendered by such Holder.
The Company shall use its best efforts to complete the Exchange Offer as
provided above and shall comply with the applicable requirements of the
Securities Act, the Exchange Act and other applicable laws and regulations in
connection with the Exchange Offer. The Exchange Offer shall not be subject to
any conditions, other than that the Exchange Offer does not violate applicable
law
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or any applicable interpretation of the Staff of the SEC. The Company shall
inform the Initial Purchasers of the names and addresses of the Holders to whom
the Exchange Offer is made, and the Initial Purchasers shall have the right,
subject to applicable law, to contact such Holders and otherwise facilitate the
tender of Registrable Securities in the Exchange Offer.
(b) In the event that (i) the Company determines that the Exchange Offer
Registration provided for in Section 2(a) above is not available or may not be
consummated as soon as practicable after the last Exchange Date because it would
violate applicable law or applicable interpretations of the Staff of the SEC,
(ii) the Exchange Offer is not for any other reason consummated by February 19,
1999 or (iii) the Exchange Offer has been completed and, upon request of the
Initial Purchasers based on the written opinion of counsel for the Initial
Purchasers a Registration Statement must be filed and a Prospectus must be
delivered by the Initial Purchasers in connection with any offering or sale of
Registrable Securities (other than in situations covered by Section 2(f) below),
the Company shall use its best efforts to cause to be filed as soon as
practicable after such determination, date or notice of such opinion of counsel
is given to the Company, as the case may be, a Shelf Registration Statement
providing for the sale by the Holders of all of the Registrable Securities, in
the case of clause (i) or (ii) above, or by the Initial Purchasers, in the case
of clause (iii) above, and to have such Shelf Registration Statement declared
effective by the SEC. Subject to the penultimate paragraph of Section 3 hereof,
the Company agrees to use its best efforts to keep the Shelf Registration
Statement continuously effective until the second anniversary of the Closing
Date or any shorter period that terminates when all of the Registrable
Securities covered by the Shelf Registration Statement have been sold pursuant
to the Shelf Registration Statement or all of the Notes cease for any reason to
be Registrable Securities. The Company further agrees to supplement or amend
the Shelf Registration Statement if required by the rules, regulations or
instructions applicable to the registration form used by the Company for such
Shelf Registration Statement or by the Securities Act or by any other rules and
regulations thereunder for shelf registration or if reasonably requested by a
Holder with respect to information relating to such Holder, and, subject to the
penultimate paragraph of Section 3 hereof, to use its best efforts to cause any
such amendment to become effective and such Shelf Registration Statement to
become usable as soon as thereafter practicable. The Company agrees to furnish
to the Holders of Registrable Securities copies of any such supplement or
amendment promptly after its being used or filed with the SEC.
(c) The Company shall pay all Registration Expenses in connection with the
registration pursuant to Section 2(a) or Section 2(b). Each Holder shall pay all
underwriting discounts and commissions and transfer taxes, if any, relating to
the sale or disposition of such Holder's Registrable Securities pursuant to the
Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a)
hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will
not be deemed to have become effective unless it has been declared effective by
the SEC; provided, however, that, if, after it has been declared effective, the
offering of Registrable Securities pursuant to a Shelf Registration Statement is
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interfered with by any stop order, injunction or other order or requirement of
the SEC or any other governmental agency or court, such Registration Statement
will be deemed not to have become effective during the period of such
interference until the offering of Registrable Securities pursuant to such
Registration Statement may legally resume. As provided for in the Indenture,
the Notes will accrete in value through March 1, 2003 and thereafter will accrue
interest at the rate of 12% per annum payable semiannually in arrears on March
1 and September 1 of each year commencing September 1, 2003; provided that if by
February 19, 1999 the Company has not consummated the Exchange Offer or caused
the Shelf Registration Statement to be declared effective, interest (in addition
to interest otherwise due on the Exchange Securities after March 1, 2003) will
accrue at a rate of 0.5% per annum of the Accreted Value (as defined in the
Indenture) on the preceding Semi-Annual Accrual Date (as defined in the
Indenture) and be payable in cash semiannually on March 1 and September 1 of
each year, commencing September 1, 1999, until the Exchange Offer is consummated
or the Shelf Registration Statement is declared effective.
(e) Without limiting the remedies available to the Initial Purchasers and
the Holders, the Company acknowledges that any failure by the Company to comply
with its obligations under Section 2(a) and Section 2(b) hereof may result in
material irreparable injury to the Initial Purchasers or the Holders for which
there is no adequate remedy at law, that it will not be possible to measure
damages for such injuries precisely and that, in the event of any such failure,
any Initial Purchaser or any Holder may obtain such relief as may be required to
specifically enforce the Company's obligations under Section 2(a) and Section
2(b) hereof.
(f) In the event that, at any time after consummation of the Exchange Offer
or the effectiveness of the Shelf Registration Statement, any Initial Purchaser,
or any successor thereto, in its opinion, becomes an Affiliate (as such term is
defined in Rule 144 under the Securities Act) of the Company, or any successor
thereto, the Company (or its successor) shall use its best efforts to cause to
be filed as soon as practicable after receiving notice thereof from any such
Initial Purchaser (or any successor thereto) a shelf registration statement (the
"Resale Registration Statement") under the Securities Act providing for the sale
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by such Initial Purchaser (or any successor thereto) of all Notes or Exchange
Securities it acquires from time to time in connection with market-making
activities and to have such shelf registration statement declared effective by
the SEC. The provisions of this Agreement concerning the Shelf Registration
Statement shall apply to any Resale Registration Statement as if such
Registration Statement were the Shelf Registration Statement filed pursuant to
Section 2(b) hereof (except that the Company (or its successor) will use its
best efforts to keep the Resale Registration Statement effective until the
earlier of (i) the date on which no Notes or Exchange Securities remain
outstanding and (ii) such time as such Initial Purchaser shall, in its opinion,
have ceased to be an Affiliate of the Company, as evidenced by written notice,
which shall be sent promptly upon such event). Notwithstanding the foregoing,
the Company shall not be required to maintain the effectiveness of any Resale
Registration Statement if such Initial Purchaser shall have ceased to make a
market in the Notes or the Exchange Securities.
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3. Registration Procedures. In connection with the obligations of the
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Company with respect to the Registration Statements pursuant to Section 2(a) and
Section 2(b) hereof, the Company shall as expeditiously as is practicable:
(a) prepare and file with the SEC a Registration Statement on the
appropriate form under the Securities Act, which form (x) shall be selected by
the Company and (y) shall, in the case of a Shelf Registration, be available for
the sale of the Registrable Securities by the selling Holders thereof and (z)
shall comply as to form in all material respects with the requirements of the
applicable form and include all financial statements required by the SEC to be
filed therewith, and use its best efforts to cause such Registration Statement
to become effective and remain effective in accordance with Section 2 hereof;
(b) prepare and file with the SEC such amendments and post-effective
amendments to each Registration Statement as may be necessary to keep such
Registration Statement effective for the applicable period and cause each
Prospectus to be supplemented by any required prospectus supplement and, as so
supplemented, to be filed pursuant to Rule 424 under the Securities Act; to keep
each Prospectus current during the period described under Section 4(3) and Rule
174 under the Securities Act that is applicable to transactions by brokers or
dealers with respect to the Registrable Notes or Exchange Notes;
(c) in the case of a Shelf Registration, furnish to each Holder of
Registrable Securities, to counsel for the Initial Purchasers, to counsel for
the Holders and to each Underwriter of an Underwritten Offering of Registrable
Securities, if any, without charge, as many copies of each Prospectus, including
each preliminary Prospectus, and any amendment or supplement thereto and such
other documents as such Holder or Underwriter may reasonably request, in order
to facilitate the public sale or other disposition of the Registrable
Securities; and the Company consents to the use of such Prospectus and any
amendment or supplement thereto in accordance with applicable law by each of the
selling holders of Registrable Securities and any such Underwriters in
connection with the offering and sale of the Registrable Securities covered by
and in the manner described in such Prospectus or any amendment or supplement
thereto in accordance with applicable law;
(d) use its best efforts to register or qualify the Registrable Securities
under all applicable state securities or "blue sky" laws of such jurisdictions
as any Holder of Registrable Securities covered by a Registration Statement
shall reasonably request in writing by the time the applicable Registration
Statement is declared effective by the SEC, to cooperate with such Holders in
connection with any filings required to be made with the National Association of
Securities Dealers, Inc. and do any and all other acts and things which may be
reasonably necessary or advisable to enable such Holder to consummate the
disposition in each such jurisdiction of such Registrable Securities owned by
such Holder; provided, however, that the Company shall not be required to (i)
qualify as a foreign corporation or as a dealer in securities in any
jurisdiction where it would not otherwise be required to qualify but for this
Section 3(d), (ii) file any general consent to service of process or (iii)
subject itself to taxation in any such jurisdiction if it is not so subject;
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(e) in the case of a Shelf Registration, notify each Holder of Registrable
Securities, counsel for the Holders and counsel for the Initial Purchasers
promptly and, if requested by any such Holder or counsel, confirm such advice in
writing (i) when a Shelf Registration Statement has become effective and when
any post-effective amendment thereto has been filed and becomes effective, (ii)
of any request by the SEC or any state securities authority for amendments and
supplements to a Shelf Registration Statement and Prospectus or for additional
information after the Shelf Registration Statement has become effective, (iii)
of the issuance by the SEC or any state securities authority of any stop order
suspending the effectiveness of a Shelf Registration Statement or the initiation
of any proceedings for that purpose, (iv) if, between the effective date of a
Shelf Registration Statement and the closing of any sale of Registrable
Securities covered thereby, the representations and warranties of the Company
contained in any underwriting agreement, securities sales agreement or other
similar agreement, if any, relating to the offering cease to be true and correct
in all material respects or if the Company receives any notification with
respect to the suspension of the qualification of the Registrable Securities for
sale in any jurisdiction or the initiation of any proceeding for such purpose,
(v) of the happening of any event during the period a Shelf Registration
Statement is effective which makes any statement made in such Registration
Statement or the related Prospectus untrue in any material respect or which
requires the making of any changes in such Registration Statement or Prospectus
in order to make the statements therein not misleading and (vi) of any
determination by the Company that a post-effective amendment to a Registration
Statement would be appropriate;
(f) make every reasonable effort to obtain the withdrawal of any order
suspending the effectiveness of a Registration Statement at the earliest
possible moment and provide notice as promptly as practicable to each Holder of
the withdrawal of any such order;
(g) in the case of a Shelf Registration, furnish to each Holder of
Registrable Securities, without charge, at least one conformed copy of each
Registration Statement and any post-effective amendment thereto (without
documents incorporated therein by reference or exhibits thereto, unless
requested);
(h) in the case of a Shelf Registration, cooperate with the selling Holders
of Registrable Securities to facilitate the timely preparation and delivery of
certificates representing Registrable Securities to be sold and not bearing any
restrictive legends and enable such Registrable Securities to be in such
denominations (consistent with the provisions of the Indenture) and registered
in such names as the selling Holders may reasonably request at least two
business days prior to the closing of any sale of Registrable Securities;
(i) in the case of a Shelf Registration, upon the occurrence of any event
contemplated by Section 3(e)(v) or (vi) hereof, use its best efforts to prepare
and file with the SEC a supplement or post-effective amendment to a Registration
Statement or the related Prospectus or any document incorporated therein by
reference or file any other required document so that, as thereafter delivered
to the purchasers of the Registrable Securities, such Prospectus will not
contain any untrue statement
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of a material fact or omit to state a material fact necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading. The Company agrees to notify the Holders to suspend use of the
Prospectus as promptly as practicable after the occurrence of such an event, and
the Holders hereby agree to suspend use of the Prospectus until the Company has
amended or supplemented the Prospectus to correct such misstatement or omission;
(j) a reasonable time prior to the filing of any Registration Statement,
any Prospectus, any amendment to a Registration Statement or amendment or
supplement to a Prospectus or any document which is to be incorporated by
reference into a Registration Statement or a Prospectus after initial filing of
a Registration Statement, provide copies of such document to the Initial
Purchasers and their counsel (and, in the case of a Shelf Registration
Statement, the Holders and their joint counsel) and make such of the
representatives of the Company as shall be reasonably requested by the Initial
Purchasers or their counsel (and, in the case of a Shelf Registration Statement,
the Holders or their joint counsel) available for discussion of such document,
and shall not at any time file or make any amendment to the Registration
Statement, any Prospectus or any amendment of or supplement to a Registration
Statement or a Prospectus or file any document which is to be incorporated by
reference into a Registration Statement or a Prospectus, of which the Initial
Purchasers and their counsel (and, in the case of a Shelf Registration
Statement, the Holders and their counsel) shall not have previously been advised
and furnished a copy or to which the Initial Purchasers or their counsel (and,
in the case of a Shelf Registration Statement, the Holders or their counsel)
shall reasonably object without unreasonable delay;
(k) obtain a CUSIP number for all Exchange Securities or Registrable
Securities, as the case may be, not later than the effective date of a
Registration Statement;
(l) cause the Indenture to be qualified under the Trust Indenture Act of
1939, as amended (the "TIA"), in connection with the registration of the
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Exchange Securities or Registrable Securities, as the case may be, cooperate
with the Trustee and the Holders to effect such changes to the Indenture as may
be required for the Indenture to be so qualified in accordance with the terms of
the TIA and execute, and use its best efforts to cause the Trustee to execute,
all documents as may be required to effect such changes and all other forms and
documents required to be filed with the SEC to enable the Indenture to be so
qualified in a timely manner;
(m) in the case of a Shelf Registration, make available for inspection by a
representative of the Holders of the Registrable Securities, any Underwriter
participating in any disposition pursuant to such Shelf Registration Statement,
and one firm of attorneys and accountants designated by the Holders, at
reasonable times and in a reasonable manner, all financial and other records,
pertinent documents and properties of the Company as shall reasonably be
requested, and cause the respective officers, directors and employees of the
Company to supply all information reasonably requested by any such
representative, Underwriter, attorney or accountant in connection with a Shelf
Registration Statement; provided, however, that any such representative,
Underwriter, attorney or accountant agrees in writing to keep confidential any
records, documents or other information (collectively,
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"Information") received from the Company and designated by the Company as
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confidential and to use such Information obtained pursuant to this provision
only in connection with the transaction for which such Information was obtained,
and not for any other purpose; provided further, however, that the foregoing
confidentiality obligation shall not apply to the extent that (i) such
Information (x) is available to the public, (y) subject to clause (z) below, is
already in such representative's, Underwriters', attorney's or accountant's
possession prior to receipt from the Company and such person does not otherwise
have any obligation to keep such Information confidential or (z) is obtained by
such representative, Underwriter, attorney or accountant from a third person
who, insofar as is known to such representative, Underwriter, attorney or
accountant after due inquiry, is not required to keep such Information
confidential or (ii) disclosure of such Information is required by court or
administrative order after the exhaustion of all appeals therefrom;
(n) in the case of a Shelf Registration, use its best efforts to cause all
Registrable Securities to be listed on any securities exchange or any automated
quotation system on which similar securities issued by the Company are then
listed if requested by the Majority Holders, to the extent such Registrable
Securities satisfy applicable listing requirements;
(o) if reasonably requested by any Holder of Registrable Securities covered
by a Registration Statement, (i) promptly incorporate in a Prospectus supplement
or post-effective amendment such information with respect to such Holder as such
Holder reasonably requests to be included therein and (ii) make all required
filings of such Prospectus supplement or such post-effective amendment as soon
as practicable after the Company has received notification of the matters to be
incorporated in such filing; and
(p) in the case of a Shelf Registration, enter into such customary
agreements and take all such other customary actions in connection therewith
(including those requested by the Holders of a majority of the Registrable
Securities being sold) in order to expedite or facilitate the disposition of
such Registrable Securities including, but not limited to, an Underwritten
Offering and in such connection, (i) to the extent possible, make such
representations and warranties to the Holders and any Underwriters of such
Registrable Securities with respect to the business of the Company and its
subsidiaries, the Registration Statement, Prospectus and documents incorporated
by reference or deemed incorporated by reference, if any, in each case, in form,
substance and scope as are customarily made by issuers to underwriters in
underwritten offerings and confirm the same if and when requested, (ii) obtain
opinions of counsel to the Company (which counsel and opinions, in form, scope
and substance, shall be reasonably satisfactory to the Holders of a majority in
principal amount at maturity of the Registrable Securities to be sold in such
Underwritten Offering and any Underwriters and their respective counsel)
addressed to each selling Holder and Underwriter of Registrable Securities,
covering the matters customarily covered in opinions requested in underwritten
offerings, (iii) obtain "cold comfort" letters from the independent certified
public accountants of the Company (and, if necessary, any other certified public
accountant of any subsidiary of the Company, or of any business acquired by the
Company for which financial statements and financial data are or are required to
be included in the Registration Statement)
12
addressed to each selling Holder and Underwriter of Registrable Securities, such
letters to be in customary form and covering matters of the type customarily
covered in "cold comfort" letters in connection with underwritten offerings, and
(iv) deliver such documents and certificates as may be reasonably requested by
the Holders of a majority in principal amount at maturity of the Registrable
Securities being sold or the Underwriters, and which are customarily delivered
in underwritten offerings, to evidence the continued validity of the
representations and warranties of the Company made pursuant to clause (i) above
and to evidence compliance with any customary conditions contained in an
underwriting agreement; provided that the Company shall be required to use its
best efforts to make an Underwritten Offering only upon the request of Holders
of at least (1) 25% of the aggregate principal amount at maturity of the
Registrable Securities outstanding at the time such request is delivered to the
Company and (2) 10% of the aggregate principal amount at maturity of the Notes
outstanding on the date hereof. In the case of any Underwritten Offering, the
Company shall provide written notice to the Holders of all Registrable
Securities of such Underwritten Offering at least 30 days prior to the filing of
a prospectus supplement for such Underwritten Offering, (y) specifying a date,
which shall be no earlier than 10 days following the date of such notice, by
which each such Holder must inform the Company of its intent to participate in
such Underwritten Offering and (z) including the instructions such Holder must
follow in order to participate in such Underwritten Offering.
In the case of a Shelf Registration Statement, the Company may require each
Holder of Registrable Securities to furnish to the Company such information
regarding the Holder and the proposed distribution by such Holder of such
Registrable Securities as the Company may from time to time reasonably request
in writing.
In the case of a Shelf Registration Statement, each Holder agrees that,
upon receipt of any notice from the Company of the happening of any event of the
kind described in Section 3(e)(v) hereof, such Holder will forthwith discontinue
disposition of Registrable Securities pursuant to a Shelf Registration Statement
until such Holder's receipt of the copies of the supplemented or amended
Prospectus contemplated by Section 3(i) hereof, and, if so directed by the
Company, such Holder will deliver to the Company (at the Company's expense) all
copies in its possession, other than permanent file copies then in such Holder's
possession, of the Prospectus covering such Registrable Securities current at
the time of receipt of such notice. If the Company shall give any such notice to
suspend the disposition of Registrable Securities pursuant to a Shelf
Registration Statement, the Company shall extend the period during which the
Shelf Registration Statement shall be maintained effective pursuant to this
Agreement by the number of days during the period from and including the date of
the giving of such notice to and including the date when the Holders shall have
received copies of the supplemented or amended Prospectus necessary to resume
such dispositions. In addition, the Company may, for a good-faith business
purpose, provide the Holders with notice of the suspension of the disposition of
Registrable Securities pursuant to a Shelf Registration Statement. The Company
may give any such notice pursuant to the preceding sentence only twice during
any 365 day period and any such suspensions may not exceed 30 days for each
13
suspension and there may not be more than two suspensions in effect during any
365 day period (which may be consecutive).
The Holders of Registrable Securities covered by a Shelf Registration
Statement who desire to do so may sell such Registrable Securities in an
Underwritten Offering, subject to such terms and conditions as shall be
established by the Underwriters thereof. In any such Underwritten Offering, the
investment banker or investment bankers and manager or managers (the
"Underwriters") that will administer the offering will be selected by the
- -------------
Majority Holders of the Registrable Securities included in such offering,
subject to the approval of the Company, which approval shall not be unreasonably
withheld.
4. Participation of Broker-Dealers in Exchange Offer. (a) The Staff of the
-------------------------------------------------
SEC has taken the position that any broker-dealer that receives Exchange
Securities for its own account in the Exchange Offer in exchange for Notes that
were acquired by such broker-dealer as a result of market-making or other
trading activities (a "Participating Broker-Dealer"), may be deemed to be an
---------------------------
"underwriter" within the meaning of the Securities Act and must deliver a
prospectus meeting the requirements of the Securities Act in connection with any
resale of such Exchange Securities.
The Company understands that it is the position of the Staff of the SEC
that if the Prospectus contained in the Exchange Offer Registration Statement
includes a plan of distribution containing a statement to the above effect and
the means by which Participating Broker-Dealers may resell the Exchange
Securities, without naming the Participating Broker-Dealers or specifying the
amount of Exchange Securities owned by them, such Prospectus may be delivered by
Participating Broker-Dealers to satisfy their prospectus delivery obligation
under the Securities Act in connection with resales of Exchange Securities for
their own accounts, so long as the Prospectus otherwise meets the requirements
of the Securities Act.
(b) In light of the above, notwithstanding the other provisions of this
Agreement, the Company agrees that the provisions of this Agreement as they
relate to a Shelf Registration shall also apply to an Exchange Offer
Registration to the extent, and with such reasonable modifications thereto as
may be, reasonably requested by the Initial Purchasers or by one or more
Participating Broker-Dealers, in each case as provided in clause (ii) below, in
order to expedite or facilitate the disposition of any Exchange Securities by
Participating Broker-Dealers consistent with the positions of the Staff recited
in Section 4(a) above; provided that:
(i) the Company shall not be required to amend or supplement the
Prospectus contained in the Exchange Offer Registration Statement, as would
otherwise be contemplated by Section 3(i), for a period exceeding 180 days
after the last Exchange Date (as such period may be extended pursuant to
the penultimate paragraph of Section 3 of this Agreement) and Participating
Broker-Dealers shall not be authorized by the Company to deliver and shall
not deliver such Prospectus after such period in connection with the
resales contemplated by this Section 4; and
14
(ii) the application of the Shelf Registration procedures set forth in
Section 3 of this Agreement to an Exchange Offer Registration, to the
extent not required by the positions of the Staff of the SEC or the
Securities Act and the rules and regulations thereunder, will be in
conformity with the reasonable request to the Company by the Initial
Purchasers or with the reasonable request in writing to the Company by one
or more broker-dealers who certify to the Initial Purchasers and the
Company in writing that they anticipate that they will be Participating
Broker-Dealers; and provided further that, in connection with such
application of the Shelf Registration procedures set forth in Section 3 to
an Exchange Offer Registration, the Company shall be obligated (x) to deal
only with one entity representing the Participating Broker-Dealers as a
whole, which shall be Merrill Lynch, Pierce, Fenner & Smith Incorporated
("Merrill Lynch") unless it elects not to act as such representative, (y)
---------------
to pay the fees and expenses of only one counsel representing the
Participating Broker-Dealers, which shall be counsel to the Initial
Purchasers unless such counsel elects not to so act and (z) to cause to be
delivered only one, if any, "cold comfort" letter with respect to the
Prospectus in the form existing on the last Exchange Date and with respect
to each subsequent amendment or supplement, if any, effected during the
period specified in clause (i) above.
(c) No Initial Purchaser shall have any liability to the Company or any
Holder with respect any request that it may make pursuant to Section 4(b) above.
5. Indemnification and Contribution. (a) The Company shall indemnify and
--------------------------------
hold harmless each Initial Purchaser, each Holder (in its capacity as a Holder),
including Participating Broker-Dealers, their respective affiliates, and their
respective directors, officers, employees, agents and each Person, if any, who
controls any of such parties within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever (which, in the case of legal fees, will be reasonable), as
incurred, arising out of any untrue statement or alleged untrue statement
of a material fact contained in any Registration Statement (or any
amendment thereto) pursuant to which Exchange Securities or Registrable
Securities were registered under the Securities Act, including all
documents incorporated therein by reference, or the omission or alleged
omission therefrom of a material fact required to be stated therein or
necessary to make the statements therein not misleading or arising out of
any untrue statement or alleged untrue statement of a material fact
contained in any Prospectus (or any amendment or supplement thereto) or the
omission or alleged omission therefrom of a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever (which, in the case of legal fees, will be reasonable), as
incurred, to the extent of the aggregate amount paid in settlement of any
litigation, or any investigation or proceeding by any governmental agency
or body, commenced or threatened, or of any claim whatsoever based
15
upon any such untrue statement or omission, or any such alleged untrue
statement or omission; provided that (subject to Section 5(d) below) any
such settlement is effected with the written consent of the Company; and
(iii) against any and all expenses whatsoever, as incurred (including
reasonable fees and disbursements of counsel chosen by any indemnified
party), reasonably incurred in investigating, preparing or defending
against any litigation, or any investigation or proceeding by any court or
governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, to the extent that any such expense
is not paid under subparagraph (i) or (ii) of this Section 5(a);
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of an untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by the
Initial Purchasers, any Holder (in its capacity as a Holder), including
Participating Broker-Dealers, expressly for use in the Registration Statement
(or any amendment or supplement thereto) or the Prospectus (or any amendment or
supplement thereto). The foregoing indemnity with respect to any untrue
statement contained in or any omission from a Prospectus shall not inure to the
benefit of any Initial Purchaser, any Holder (in its capacity as a Holder),
including Participating Broker-Dealers (or any person who controls such party
within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act) from whom the person asserting any such loss, liability, claim,
damage or expense purchased any of the Notes that are the subject thereof, was
not sent or given a copy of such Prospectus (as amended or supplemented) by such
Initial Purchaser or such selling Holder (in its capacity as a Holder) to the
extent such Initial Purchaser or such selling Holder (in its capacity as a
Holder) was required by law to deliver such Prospectus as amended or
supplemented, at or prior to the written confirmation of the sale of such Notes
and the untrue statement contained in or the omission from such Prospectus was
corrected in such amended or supplemented Prospectus, unless such failure
resulted from noncompliance by the Company with its obligations hereunder to
furnish Initial Purchaser or such Holder (in its capacity as a Holder), as the
case may be, with copies of such Prospectus as amended or supplemented.
(b) In the case of a Shelf Registration, each Holder (in its capacity as a
Holder) agrees, severally and not jointly, to indemnify and hold harmless the
Company, each Initial Purchaser and the other selling Holders (in their capacity
as Holders) and each of their respective directors and officers (including each
officer of the Company who signed the Registration Statement) and each Person,
if any, who controls the Company, any Initial Purchaser or any other selling
Holder (in their capacity as Holders) within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act, against any and all loss,
liability, claim, damage and expense whatsoever described in the indemnity
contained in Section 5(a) hereof, as incurred, but only with respect to untrue
statements or omissions, or alleged untrue statements or omissions, made in the
Registration Statement (or any amendment thereto) or the Prospectus (or any
amendment or supplement thereto)
16
in reliance upon and in conformity with written information furnished to the
Company by such Holder (in its capacity as a Holder), as the case may be,
expressly for use in the Registration Statement (or any amendment thereto), or
the Prospectus (or any amendment or supplement thereto); provided, however, that
no such Holder (in its capacity as a Holder) shall be liable for any claims
hereunder in excess of the amount of net proceeds received by such Holder (in
its capacity as a Holder) from the sale of Registrable Securities pursuant to
such Shelf Registration Statement.
(c) In case any action shall be commenced involving any person in respect
of which indemnity may be sought pursuant to either paragraph (a) or paragraph
(b) above, such person (the "indemnified party") shall give notice in writing as
promptly as reasonably practicable to each person against whom such indemnity
may be sought (the "indemnifying party"), but failure to so notify an
indemnifying party shall not relieve such indemnifying party from any liability
hereunder to the extent it is not materially prejudiced as a result thereof and
in any event shall not relieve it from any liability which it may have otherwise
than on account of this indemnity agreement. An indemnifying party may
participate at its own expense in the defense of such action; provided, however,
that counsel to the indemnifying party shall not (except with the consent of the
indemnified party) also be counsel to the indemnified party. In no event shall
the indemnifying party or parties be liable for the fees and expenses of more
than one counsel (in addition to any local counsel) for all indemnified parties
in connection with any one action or separate but similar or related actions in
the same jurisdiction arising out of the same general allegations or
circumstances. No indemnifying party shall, without the prior written consent
of the indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever in respect of which indemnification or contribution could be sought
under this Section 5 hereof (whether or not the indemnified parties are actual
or potential parties thereof), unless such settlement, compromise or consent (i)
includes an unconditional release of each indemnified party from all liability
arising out of such litigation, investigation, proceeding or claim and (ii) does
not include a statement as to or an admission of fault, culpability or a failure
to act by or on behalf of any indemnified party.
(d) If at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel, such indemnifying party agrees that it shall be liable for any
settlement of the nature contemplated by Section 5(a)(ii) hereof effected
without its written consent if (i) such settlement is entered into more than 45
days after receipt by such indemnifying party of the aforesaid request, (ii)
such indemnifying party shall have received notice of the terms of such
settlement at least 30 days prior to such settlement being entered into and
(iii) such indemnifying party shall not have reimbursed such indemnified party
in accordance with such request prior to the date of such settlement.
(e) If the indemnification provided for in any of the indemnity provisions
set forth in this Section 5 is for any reason unavailable to or insufficient to
hold harmless an indemnified party in respect of any losses, liabilities,
claims, damages or expenses referred to therein, then each
17
indemnifying party shall contribute to the aggregate amount of such losses,
liabilities, claims, damages and expenses incurred by such indemnified party, as
incurred, (i) in such proportion as is appropriate to reflect the relative
benefits received by such indemnifying party or parties on the one hand, and
such indemnified party or parties on the other hand, from the offering of the
Exchange Securities or Registrable Securities included in such offering or (ii)
if the allocation provided by clause (i) is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of such indemnifying
party or parties on the one hand, and such indemnified party or parties on the
other hand, in connection with the statements or omissions which resulted in
such losses, liabilities, claims, damages or expenses, as well as any other
relevant equitable considerations. The relative fault of such indemnifying party
or parties on the one hand, and such indemnified party or parties, on the other
hand shall be determined by reference to, among other things, whether any such
untrue or alleged untrue statement of a material fact or omission or alleged
omission to state a material fact relates to information supplied by such
indemnifying party or parties or such indemnified party or parties and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Company, the Initial
Purchasers and the Holders (in their capacity as Holders) of the Registrable
Securities agree that it would not be just and equitable if contribution
pursuant to this Section 5 were determined by pro rata allocation (even if the
Initial Purchasers were treated as one entity, and the Holders (in their
capacity as Holders) were treated as one entity, for such purpose) or by another
method of allocation which does not take account of the equitable considerations
referred to above in Section 5. The aggregate amount of losses, liabilities,
claims, damages and expenses incurred by an indemnified party and referred to
above in this Section 5 shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in investigating, preparing or
defending against any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever
based upon any such untrue or alleged untrue statement or omission or alleged
omission. 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. For purposes
of this Section 5, each person, if any, who controls an Initial Purchaser or
Holder within the meaning of Section 15 of the Securities Act or Section 20 of
the Exchange Act shall have the same rights to contribution as such Initial
Purchaser or Holder (in its capacity as a Holder), and each director of the
Company, each officer of the Company who signed the Registration Statement, and
each person, if any, who controls the Company within the meaning of Section 15
of the Securities Act or Section 20 of the Exchange Act shall have the same
rights to contribution as the Company. The parties hereto agree that any
underwriting discount or commission or reimbursement of fees paid to any Initial
Purchaser pursuant to the Purchase Agreement shall not be deemed to be a benefit
received by any Initial Purchaser in connection with the offering of the
Exchange Securities or Registrable Securities in such offering.
(f) In connection with any underwriter Offering of Registrable Securities
permitted by this Agreement, the Company will also indemnify the underwriters,
if any, and each Person, if any, who also controls any of them within the
meaning of Section 15 of the Securities Act or Section 20 of the
18
Exchange Act to the same extent as provided in this Section 5 with respect to
the indemnification of the Holders, if requested in connection with any
Registration Statement.
6. Miscellaneous. (a) No Inconsistent Agreements. The Company has not
------------- --------------------------
entered into, and on or after the date of this Agreement will not enter into,
any agreement which is inconsistent with the rights granted to the Holders of
Registrable Securities in this Agreement or otherwise conflicts with the
provisions hereof. The rights granted to the Holders hereunder do not in any way
conflict with and are not inconsistent with the rights granted to the holders of
the Company's other issued and outstanding securities under any such agreements.
(b) Amendments and Waivers. The provisions of this Agreement, including the
----------------------
provisions of this sentence, may not be amended, modified or supplemented, and
waivers or consents to departures from the provisions hereof may not be given
unless the Company has obtained the written consent of Holders of at least a
majority in aggregate principal amount of the outstanding Registrable Securities
affected by such amendment, modification, supplement, waiver or consent;
provided, however, that no amendment, modification, supplement, waiver or
consents to any departure from the provisions of Section 5 hereof shall be
effective as against any Holder of Registrable Securities unless consented to in
writing by such Holder.
(c) Notices. All notices and other communications provided for or permitted
-------
hereunder shall be made in writing by hand-delivery, registered first-class
mail, telex, telecopier, or any courier guaranteeing overnight delivery (i) if
to a Holder, at the most current address given by such Holder to the Company by
means of a notice given in accordance with the provisions of this Section 6(c),
which address initially is, with respect to the Initial Purchasers, the address
set forth in the Purchase Agreement; and (ii) if to the Company, initially at
the Company's address set forth in the Purchase Agreement and thereafter at such
other address, notice of which is given in accordance with the provisions of
this Section 6(c).
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five business
days after being deposited in the mail, postage prepaid, if mailed; when
answered back, if telexed; when receipt is acknowledged, if telecopied; and on
the next business day if timely delivered to an air courier guaranteeing
overnight delivery.
Copies of all such notices, demands, or other communications shall be
concurrently delivered by the person giving the same to the Trustee, at the
address specified in the Indenture.
(d) Successors and Assigns. This Agreement shall inure to the benefit of
----------------------
and be binding upon the successors, assigns and transferees of each of the
parties, including, without limitation and without the need for an express
assignment, subsequent Holders; provided that nothing herein shall be deemed to
permit any assignment, transfer or other disposition of Registrable Securities
in violation of the terms of the Purchase Agreement. If any transferee of any
Holder shall acquire
Registrable Securities, in any manner, whether by operation of law or otherwise,
such Registrable Securities shall be held subject to all of the terms of this
Agreement, and by taking and holding such Registrable Securities such person
shall be conclusively deemed to have agreed to be bound by and to perform all of
the terms and provisions of this Agreement and such person shall be entitled to
receive the benefits hereof. The Initial Purchasers (in their capacities as
Initial Purchasers) shall have no liability or obligation to the Company with
respect to any failure by any other Holder to comply with, or any breach by any
other Holder of, any of the obligations of such Holder under this Agreement.
(e) Purchases and Sales of Notes. The Company shall not, and shall use its
----------------------------
best efforts to cause its affiliates (as defined in Rule 405 under the
Securities Act) not to, purchase and then resell or otherwise transfer any
Notes.
(f) Third Party Beneficiary. The Holders shall be third party beneficiaries
------------------------
to the agreements made hereunder between the Company, on the one hand, and the
Initial Purchasers, on the other hand, and shall have the right to enforce such
agreements directly to the extent it deems such enforcement necessary or
advisable to protect its rights or the rights of Holders hereunder.
(g) Counterparts. This Agreement may be executed in any number of
------------
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for convenience of
--------
reference only and shall not limit or otherwise affect the meaning hereof.
(i) Governing Law. This Agreement shall be governed by and construed in
-------------
accordance with the internal laws of the State of New York.
(j) Severability. In the event that any one or more of the provisions
-------------
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
DIVA SYSTEMS CORPORATION
By: /s/ Alan H. Bushell
--------------------
Name: Alan H. Bushell
Title: President, Chief Operating Officer, Chief
Financial Officer and Secretary
Confirmed and accepted as of
the date first above written:
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
CHASE SECURITIES INC.
MORGAN STANLEY & CO. INCORPORATED
By: Merrill Lynch, Pierce, Fenner & Smith
Incorporated
For itself and on behalf of the other Initial Purchasers
By: /s/ Lisa Craig
-------------------------------
Name: Lisa Craig
Title: Authorized Signatory