REGISTRATION RIGHTS AGREEMENT MADE AND ENTERED INTO AS OF THE 18TH
DAY OF MAY 2000
AMONG: TOUCHTUNES MUSIC CORPORATION, a
body politic and corporate, duly
incorporated according to the laws
of the State of Nevada, having its
head office and principal place of
business in the City of Las Vegas,
Nevada,
(hereinafter referred to as the
"Company")
PARTY OF THE FIRST PART
AND: CAPITAL COMMUNICATIONS CDPQ INC., a
body politic duly incorporated
according to the Companies Act
(Quebec), having its head office
and principal place of business in
the City of Montreal, Province of
Quebec,
(hereinafter referred to as "CDPQ")
PARTY OF THE SECOND PART
AND: SOFINOV SOCIETE FINANCIERE
D'INNOVATION INC., a body politic
and corporate, duly incorporated
according to the Companies Act
(Quebec), having its head office
and principal place of business in
the City of Montreal, Province of
Quebec,
(hereinafter referred to as
"Sofinov")
PARTY OF THE THIRD PART
AND: SOCIETE INNOVATECH DU GRAND
MONTREAL, a body politic duly
constituted according to An Act
respecting Societe Innovatech du
Grand Montreal, R.S.Q., ch. S-1,
having its head office and
principal place of business in the
City of Montreal, Province of
Quebec,
(hereinafter referred to as
"Innovatech")
PARTY OF THE FOURTH PART
1. PREAMBLE
1.1 WHEREAS Sofinov and Innovatech hold shares of Series A Preferred Stock of
the Company and, concurrently with the execution of this Agreement, CDPQ and
Sofinov have subscribed for and hold shares of Series B Preferred Stock of the
Company (the shares of Series A Preferred Stock and the shares of Series B
Preferred Stock are hereinafter collectively referred to as the "Preferred
Shares");
1.2 WHEREAS the Preferred Shares may be converted to shares of the Company's
Class A voting common stock (the "Common Shares"), the whole as provided in the
Second Amended and Restated Articles of Incorporation of the Company;
1.3 WHEREAS the Company has agreed to provide for the registration of the
Registrable Securities (as defined hereinafter) on the terms and conditions
hereinafter set forth.
NOW, THEREFORE, THIS AGREEMENT WITNESSETH:
2. DEFINITIONS
2.1 Definitions. In this Agreement:
2.1.1 "Form F-1" shall mean such form under the Securities Act as in effect on
the date hereof or any similar registration form under the Securities Act
subsequently adopted by the SEC;
2.1.2 "Form F-3" shall mean such form under the Securities Act as in effect on
the date hereof or any registration form under the Securities Act
subsequently adopted by the SEC that permits inclusion or incorporation
of substantial information by reference to other documents filed by the
Company with the SEC;
2.1.3 "Form S-1" shall mean such form under the Securities Act as in effect on
the date hereof or any similar registration form under the Securities Act
subsequently adopted by the SEC;
2.1.4 "Form S-3" shall mean such form under the Securities Act as in effect on
the date hereof or any registration form under the Securities Act
subsequently adopted by the SEC that permits inclusion or incorporation
of substantial information by reference to other documents filed by the
Company with the SEC;
2.1.5 "Investors" shall mean, collectively, CDPQ, Sofinov and Innovatech;
2.1.6 "Registrable Securities'' shall mean (i) the Common Shares issuable or
issued upon conversion of the Preferred Shares, and (ii) any securities
of the Company distributed with respect to such shares;
2.1.7 "Registration Expenses" shall mean all expenses incident to the Company's
performance of or compliance with the registration and other requirements
set forth in this Agreement including, without limitation, the following:
(i) the fees, disbursements and expenses of all counsels to the Company
and all accountants in connection with the registration statement, any
preliminary prospectus or final prospectus, any other offering documents
and amendments and supplements thereto and the mailing and delivery of
copies thereof to underwriters and dealers, (ii) all expenses of the
Company in connection with the preparation, printing and filing of the
registration statement, any preliminary prospectus or final prospectus,
any other offering document and amendments and supplements thereto and
the mailing and delivery of copies thereof to underwriters and dealers,
(iii) the cost of printing or producing any agreements among
underwriters, underwriting agreements, and blue sky or legal investment
memoranda, any selling agreements and any other documents in connection
with the offering, sale or delivery of the Registrable Securities to be
disposed of, (iv) all expenses of the Company in connection with the
qualification of the Registrable Securities to be disposed of for
offering and sale under state securities laws, including the fees and
disbursements of counsel for the underwriters in connection with such
qualification and in connection with any blue sky and legal investment
surveys, (v) fees of the Company, including, without limitation, any
filing fees, incident to securing any required review by the National
Association of Securities Dealers, Inc. of the terms of the sale of the
Registrable Securities to be disposed of (or any similar review required
by any other market or exchange on which the Registrable Securities then
trade), (vi) the cost and charges of any transfer agent or registrar in
connection with the registration of exchange or transfer of the
Registrable Securities to be disposed of, and (vii) all stock exchange
listing fees, excluding underwriting discounts selling commissions and
any expenses required by law to be borne by the Registering Investors;
All other capitalized terms used herein, unless defined above or unless the
context otherwise requires, shall have the respective meanings ascribed thereto
in the relevant Section or subsection of this Agreement and all other
capitalized terms not otherwise defined herein shall have the meanings ascribed
thereto in the Voting Trust and Limited Shareholders Agreement entered into
among the Company, CDPQ, Sofinov, Innovatech and Techno Espres S.A. on the date
hereof (the "Shareholders Agreement").
3. EFFECTIVENESS
3.1 Registration required. The Company shall not be obligated to effect any
registration pursuant to Section 4 hereof if the intended method or methods of
disposition of the Registrable Securities by the Investors may be effected
without registration under the Securities Act of 1933, as amended (the
"Securities Act"), and any certificate evidencing the Registrable Securities so
to be disposed need not bear a restrictive legend with respect thereto and the
Company agrees to promptly take all customary actions necessary to permit such
disposition, including, without limitation, providing the Company's transfer
agent with all necessary instructions, and, to the extent necessary, causing
counsel to the Company to deliver an opinion that the Registrable Securities
may be reissued without such legend.
4. REGISTRATION
4.1 Demand Registration. Upon written notice (the "Request Notification") at
any time after nine (9) months from the date hereof by any of the Investor(s)
(the "Registering Investors") requesting that the Company effect the
registration under the Securities Act of all or part of the Registrable
Securities owned beneficially and of record by the Registering Investors,
provided that any such request shall cover in the aggregate not less than
twenty percent (20 %) of the Registrable Securities, which notice shall specify
the intended method or methods of disposition of such Registrable Securities
and be simultaneously sent to any Investor not included in said Registering
Investors, the Company shall be obliged to file with the U.S. Securities and
Exchange Commission (the "SEC") a registration statement within ninety (90)
days of the Request Notification and use its best efforts, subject to receipt
of necessary information from the Registering Investors, to cause such
registration statement to become effective, as that term is used in the
Securities Act, within one hundred and eighty (180) days of the Company's
receipt of the Request Notification, for disposition of such Registrable
Securities and the Registrable Securities of any other Investor(s) requesting
to include all or part of the Registrable Securities owned beneficially and of
record by it in such registration within thirty (30) days of receipt of the
Request Notification (such Investor(s) upon such request, shall also be
"Registering Investors"), in accordance with the intended method or methods of
disposition stated in the Request Notification. Any Investor which is not
included among the Registering Investors in a given demand and who has not
notified the Company within thirty (30) days of receipt of a copy of the
Request Notification that it wishes to include all or part of the Registrable
Securities owned beneficially and of record by it shall be deemed for all
purposes to have waived, and be precluded from exercising, any registration
rights in the applicable registration pursuant to this Section 4.
4.2 Regulation S. The registration statement shall be on Form S-3 or Form F-
3 whenever the Company is permitted to use that form, unless the Registering
Investors or the underwriter reasonably request registration on Form S-1 or
Form F-1. The Company will use its reasonable best efforts to qualify for
registration on Form S-3 or Form F-3.
4.3 Registration not required. The Company shall not be required to effect a
registration pursuant to this Section 4:
4.3.1 after June 30, 2004; or
4.3.2 if the Company has effected two (2) registrations pursuant to subsection
4.1 and such registrations have been declared or ordered effective, the
Company shall not be required to effect a registration pursuant to
subsection 4.1 until a period of twelve (12) months shall have elapsed
from the effective date of the most recent such previous registration; or
4.3.3 during the period starting with the date sixty (60) days prior to the
Company's good faith estimate of the date of the filing of, and ending on
a date one hundred eighty (180) days following the effective date of, a
Company-initiated registration subject to Section 6 below, provided that
(i) the Company is actively employing in good faith all reasonable
efforts to cause such registration statement to become effective and (ii)
if such registration statement is not filed at the expiration of such
sixty (60)-day period, then the Company may not invoke this subsection
4.3.3 again for twelve (12) months; or
4.3.4 if the Company shall furnish to the Registering Investors, a confirmation
from the Company's Chief Executive Officer or Chairman of the Board
stating that, in the good faith judgment of the Board of Directors of the
Company, the disclosure of information required to be disclosed in such
registration statement would be seriously detrimental to the Company and
its shareholders for such registration statement to be effected at such
time, in which event the Company shall have the right to defer such
filing for a period of not more than ninety (90) days after receipt of
the Request Notification; or
4.3.5 after the date on which more than eighty percent (80%) of the Registrable
Securities shall have been registered under the Securities Act.
4.4 Third Person Shares. The Company shall have the right to cause the
registration of securities for sale for the account of any Person within the
meaning of the Securities Act in any registration of Registrable Securities
requested pursuant to this Section 4.
5. REGISTRATION EXPENSES
5.1 The Company shall pay any and all Registration Expenses with respect to
any registration pursuant to Section 4 and 6, provided the Registering
Investors shall bear (i) any and all transfer taxes applicable to their
respective Registrable Securities registered thereunder, and (ii) their
respective shares (pro rata in accordance with their respective numbers of
Registrable Securities relative to all securities included in such
registration) of any and all commissions, discounts or other compensation
payable to any underwriters (including fees and expenses of underwriters'
counsel) in respect of such Registrable Securities and the fees and expenses of
their own counsel, provided, however, that in no event shall the Investors be
required to pay any internal costs of the Company or shall the Company be
required to pay any internal costs of the Investors.
6. PIGGYBACK REGISTRATION
6.1 Piggyback Registration. If the Company proposes to register any of its
voting securities ("Other Securities") for public sale under the Securities
Act, on a form and in a manner which would permit registration of Registrable
Securities for sale to the public under the Securities Act, it will give prompt
written notice to each of the Investors of its intention to do so, and upon the
written request (which request shall specify the Registrable Securities
intended to be disposed of by such Investor and the intended method of
disposition thereof) of any Investor delivered to the Company within ten (10)
days after the giving of any such notice (the "Piggyback Request") the Company
will use its reasonable efforts to effect, in connection with the registration
of the Other Securities, the registration under the Securities Act of all
Registrable Securities which the Company has been so requested to register by
the Investors, to the extent required to permit the disposition (in accordance
with the intended method or methods thereof as aforesaid) of the Registrable
Securities so to be registered, provided that:
6.1.1 if, at any time after giving such written notice of its intention to
register any Other Securities and prior to the effective date of the
registration statement filed in connection with such registration, the
Company shall determine for any reason not to register the Other
Securities, the Company may, at its election, give written notice of such
determination to the Investors and thereupon the Company shall be
relieved of its obligations to register such Registrable Securities in
connection with the registration of such Other Securities (but not from
its obligation to pay Registration Expenses to the extent incurred in
connection therewith as provided in Section 5), without prejudice,
however, to the rights of the Investors, to request that such
registration be effected as a registration under subsection 4.1;
6.1.2 the Company will not be required to effect any registration of
Registrable Securities under this subsection 6.1 if, and to the extent
that, the underwriters (or any managing underwriter) shall advise the
Company in writing that, in their reasonable opinion, inclusion of such
number of shares of Registrable Securities will adversely affect the
price or distribution of the securities to be offered solely for the
account of the Company. Such advice shall include a statement as to the
underwriters' (or any managing underwriter's) opinion as to the number of
shares which may be included without adversely affecting the price or
distribution of the securities solely for the account of the Company
(such total number of shares which such advice states may be so included
being the "Total Number of Includible Securities"). The Company shall
promptly furnish the Investors with a copy of such written advice. In
the event that the number of shares requested to be included by Investors
together with the number of other shares requested to be included by any
selling securityholders requesting inclusion of such securityholders'
securities pursuant to registration rights granted by the Company exceeds
the Total Number of Includible Securities, the aggregate number of shares
of Registrable Securities held by any Investors entitled to be included
in the public sale shall be the product of (i) a fraction, the numerator
of which is the total number of such shares of Registrable Securities
held by such Investors requested to be included in such public sale and
the denominator of which is the total number of such Investor's shares of
Registrable Securities requested to be included in such public sale plus
the number of other shares requested to be included by other
securityholders (including, but not limited to other Investors, if
applicable) pursuant to registration rights granted by the Company and
(ii) the Total Number of Includible Securities;
6.1.3 the Company shall not be required to effect any registration of
Registrable Securities under this subsection 6.1 incidental to the
registration of any of its securities in connection with mergers,
acquisitions, exchange offers, take-over bids, issuer bids, subscription
offers, dividend reinvestment plans or stock option or other employee
benefit plans;
6.1.4 no registration of Registrable Securities effected under this subsection
6.1 shall relieve the Company of its obligation to effect registrations
of Registrable Securities pursuant to subsection 4.1.
7. OBLIGATIONS OF THE COMPANY
7.1 Obligations of the Company. Whenever required under this Agreement to
effect the registration of any Registrable Securities, the Company shall, as
expeditiously as reasonably possible:
7.1.1 prepare, file and use its reasonable best efforts to cause to become
effective a registration statement under the Securities Act with respect
to such Registrable Securities in accordance with the applicable time
periods and other conditions set forth in the relevant provision hereof
and, upon the request of the Registering Investors and subject to
applicable law, keep such registration statement effective for a period
of the earlier of (i) one hundred eighty (180) days or (ii) until the
distribution contemplated in the Registration Statement has been
completed;
7.1.2 prepare and file with the SEC such amendments and supplements to such
registration statement and the prospectus used in connection with such
registration statement as may be necessary to comply with the provisions
of the Securities Act with respect to the disposition of all securities
covered by such registration statement or to keep such registration
statement effective until such time as all the Registrable Securities
have been sold pursuant thereto or the expiration of nine (9) months
after such registration statement becomes effective;
7.1.3 furnish to the Investors such numbers of conformed copies of such
registration statement and of each such amendment and supplement thereto
(in the case of the Registering Investors or any managing underwriter,
including all exhibits), such number of copies of the prospectus,
including a preliminary prospectus, in conformity with the requirements
of the Securities Act, and such other documents as the Registering
Investors or such underwriter may reasonably request in order to
facilitate the disposition of all or any of the Registrable Securities;
7.1.4 use its best efforts to register and qualify the securities covered by
such registration statement under such other securities or Blue Sky laws
of such jurisdictions as shall be reasonably requested by the Registering
Investors;
7.1.5 notify each Registering Investor covered by such registration statement
at any time when a prospectus relating thereto is required to be
delivered under the Securities Act of the happening of any event as a
result of which the prospectus, as then in effect, includes an untrue
statement of a material fact or omits to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading in the light of the circumstances then existing, and promptly
prepare and furnish to the Registering Investors a reasonable number of
copies of a supplement to or an amendment of such prospectus as may be
necessary so that, as thereafter delivered to the purchasers of such
Registrable Securities, such prospectus shall not include an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary, in light of the circumstances then
existing, to make the statements therein not misleading;
7.1.6 furnish an opinion, dated the date that the registration statement with
respect to the Registrable Securities becomes effective, of the counsel
representing the Company for purposes of such registration, in form and
substance as is customarily given to underwriters in an underwritten
public offering, addressed to the underwriters;
7.1.7 file such documents as may be required of the Company for normal
securities law clearance for the sale or the resale of Registrable
Securities in such states of the United States as may be reasonably
requested by the Registering Investors, provided, however, that the
Company shall not be required in connection with this subsection 7.1.7 to
qualify as a foreign corporation or execute a general consent to service
of process in any jurisdiction; and
7.1.8 provide a transfer agent and registrar for all Registrable Securities
registered pursuant hereunder and a CUSIP number for all such Registrable
Securities, in each case not later than the effective date of such
registration.
7.2 Information from Registering Investors. It shall be a condition
precedent to the obligations of the Company to take any action pursuant to this
Agreement with respect to the Registrable Securities of any Registering
Investor that the Registering Investors shall furnish to the Company such
information regarding themselves, the Registrable Securities held by them, and
the intended method of disposition of such securities as shall be reasonably
required to effect the registration of the Registering Investors' Registrable
Securities.
7.3 Discontinuance of disposition. Each of the Registering Investors agrees
that, upon receipt of any notice from the Company of the happening of any event
of the kind described in subsection 7.1.5 hereof, such Registering Investor
shall use its best efforts to discontinue forthwith dispositions of Registrable
Securities pursuant to the registration statement covering such Registrable
Securities until the Registering Investor's receipt of the copies of the
supplemented or amended prospectus contemplated by subsection 7.1.5 hereof.
7.4 Underwriting.
7.4.1 If requested by the managing underwriter for any underwritten offering of
Registrable Securities pursuant to a registration requested hereunder,
the Company will enter into an underwriting agreement with the
underwriters for such offering, such agreement to contain such
representations and warranties by the Company and such other terms and
provisions as are customarily contained in underwriting agreements with
respect to secondary distributions;
7.4.2 in the event that any registration pursuant to subsection 6.1 shall
involve, in whole or in part, an underwritten offering, the Company may
require the Registrable Securities to be included in such underwriting on
the same terns and conditions as shall be applicable to the Other
Securities being sold through underwriters under such registration. In
any such case, the Registering Investors shall be party to any such
underwriting agreement, such agreement shall contain such
representations, warranties and covenants by the Registering Investors
and such other terms and provisions as are customarily contained in
underwriting agreements with respect to secondary distributions.
8. PREPARATION: REASONABLE INVESTIGATION
8.1 In connection with the preparation and filing of each registration
statement hereunder registering Registrable Securities under the Securities
Act, the Company will give the underwriters, if any, and their counsel and
accountants (collectively, the "Inspectors"), such reasonable and customary
access to its books and records (collectively, the "Records") and such
opportunities to discuss the business of the Company with its officers and the
independent accountants who have its financial statements as shall be
necessary, in the opinion of such underwriters, to conduct a reasonable
investigation within the meaning of the Securities Act. Records which the
Company reasonably determines to be confidential and which it notifies the
Inspectors in writing are confidential shall not be disclosed by the
Inspectors.
9. INDEMNIFICATION AND CONTRIBUTION
9.1 Indemnification by the Company. The Company agrees to indemnify and hold
harmless each of the Registering Investors and each of their respective
officers and directors as follows:
9.1.1 against any and all loss, claim, damage and expense whatsoever, as
incurred, arising out of or caused by any untrue statement or alleged
untrue statement of a material fact contained in any registration
statement (or any amendment thereto) pursuant to which 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 or 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;
9.1.2 against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid by
the Registering Investors in settlement of any litigation, or
investigation or proceeding by any governmental agency or body commenced,
or of any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission, if such
settlement is effected with the written consent of the Company; and
9.1.3 against any and all expense whatsoever, as incurred (including fees and
disbursements of one (1) counsel only chosen collectively by the
Registering Investors), reasonably incurred in investigating, preparing
or defending against any litigation, or investigation or proceeding by
any 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 subsection 9.1.1 or 9.1.2 above;
provided, however, that this indemnity agreement under subsection 9.1 hereof,
does not apply to any loss, liability, claim, damage or expense to the extent
arising out of or caused by any 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 Registering Investors or any
underwriter expressly for use in a registration statement (or any amendment
thereto) or any prospectus (or any amendment or supplement thereto), and
provided further that this indemnity agreement does not apply to any loss,
liability, claim, damage or expense arising out of or caused by the Registering
Investor's continued circulation, subsequent to the Registering Investor's
receipt of the notice described in subsection 7.1.5 hereof, of a prospectus
including the untrue statement of a material fact or omission of a material
fact as to which such notice was provided.
9.2 Indemnification by the Investors. Each of the Registering Investors
agrees to indemnify and hold harmless the Company, and each of its directors
and officers (including each officer of the Company who signed the registration
statement), against any and all loss, liability, claim, damage and expense
described in the indemnity contained in subsection 9.1 hereof, as incurred,
with respect to untrue statements or omissions, or alleged untrue statements or
omissions, made in the registration statement (or any amendment thereto) or any
prospectus (or any amendment or supplement thereto) in reliance upon and in
conformity with written information furnished to the Company by such
Registering Investor expressly for use in the registration statement (or any
amendment thereto) or such prospectus (or any amendment or supplement thereto).
9.3 Conduct of Indemnification Proceedings. Each indemnified party shall give
prompt notice to each indemnifying party of any action commenced against it in
respect of which indemnity may be sought hereunder, but failure so to notify an
indemnifying party shall not relieve it from any liability which it may have
otherwise than on account of this indemnity agreement. An indemnifying party
may, at its own expense, participate in and direct the defense of such action.
In no event shall the indemnifying parties be liable for the fees and expenses
of more than one 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.
9.4 Contribution. In order to provide for just and equitable contribution in
circumstances in which the indemnity agreement provided for in this Section 9
is for any reason held to be unenforceable although applicable in accordance
with its terms, the Company and the Registering Investors shall contribute to
the aggregate losses, liabilities, claims, damages and expenses of the nature
contemplated by such indemnity agreement incurred by the Company and the
Registering Investors in such proportions as are appropriate to reflect the
relative fault of the indemnifying party on the one hand and the indemnified
parties on the other hand in connection with matters that resulted in such
loss, liability, claim, damage or expenses, as well as any relevant equitable
considerations. The relative fault of the indemnifying party and of the
indemnified parties shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission to state a material fact relates to information supplied by the
indemnifying party or by the indemnified parties and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
10. PERMITTED ASSIGNMENT
10.1 An Investor may assign rights hereunder in connection with any sale of
Preferred Shares or Common Shares issuable upon conversion of the Preferred
Shares which is consistent with the restrictions and representations contained
in the Shareholders Agreement, provided that such assignee shall have agreed in
writing, satisfactory in form and substance to the Company and its counsel, to
be bound hereby. From and after any such assignment pursuant to this Section
10, reference herein to the Investors shall include such permitted assignee.
11. MISCELLANEOUS
11.1 Successors and Assigns. Except as otherwise provided herein, the terms
and conditions of this Agreement shall inure to the benefit of and be binding
upon the respective successors and assigns of the parties (including permitted
transferees of any shares of Registrable Securities). Nothing in this
Agreement, express or implied, is intended to confer upon any party other than
the parties hereto or their respective successors and assigns any rights,
remedies, obligations, or liabilities under or by reason of this Agreement,
except as expressly provided in this Agreement.
11.2 Governing Law. This Agreement shall be governed in all respects by the
laws of the State of New York as they are applied to agreements entered into in
New York between New York residents and performed entirely within New York.
11.3 Counterparts; Facsimile Delivery. This Agreement may be executed in two
or more counterparts and delivered by facsimile, each of which shall be deemed
an original, but all of which together shall constitute one and the same
instrument.
11.4 Severability. If one or more provisions of this Agreement are held to be
unenforceable under applicable law, such provision shall be excluded from this
Agreement and the balance of the Agreement shall be interpreted as if such
provision were so excluded and shall be enforceable in accordance with its
terms.
11.5 Further Assurances. Each party upon the request of the others, shall do,
execute, acknowledge and deliver or cause to be done, executed, acknowledged or
delivered all such further acts, deeds, documents, assignments, transfers,
conveyances, powers of attorney and assurances as may be reasonably necessary
or desirable to effect complete consummation of the transactions contemplated
by this Agreement.
11.6 Notices. All offers, acceptances, rejections, notices, requests,
authorizations, permissions, directions. demands and other communications
hereunder shall be given in writing and shall be given by telecopier, or
delivered by hand, to the other parties at the following addresses:
If to CDPQ: CAPITAL COMMUNICATIONS CDPQ INC.
1981 McGill College Avenue, 7th
Floor
Montreal, Quebec
H3A 3C7
Attention: The President
Telecopier: (514) 847-5980
if to Sofinov: SOFINOV SOCIETE FINANCIERE
D'INNOVATION INC.
1981 McGill College Avenue, 7th
Floor
Montreal, Quebec
H3A 3C7
Attention: The President
Telecopier: (514) 847-2628
if to Innovatech: SOCIETE INNOVATECH DU GRAND
MONTREAL
2020 University Avenue
Suite 1527
Montreal, Quebec
H3A 2A5
Attention: Hubert Manseau
Telecopier: (514) 864-4220
if to the Company: TOUCHTUNES MUSIC CORPORATION
1800 East Sahara
Suite 107
Las Vegas, Nevada
89104, U.S.A.
Attention: The President
Telecopier: (702) 734-7500
with a copy in all cases to: KARP & SOMMERS
950 Third Avenue
New York, NY
10022, U.S.A.
Attention: Aaron Karp
Telecopier: (212) 421-1650
with a copy in all cases to: LAPOINTE ROSENSTEIN
1250 Rene-Levesque Blvd. West
Suite 1400
Montreal, Quebec
H3B 5E9
Attention: Claude Bergeron
Telecopier: (514) 925-9001
with a copy in all cases to: DE GRANDPRE CHAIT
1000 de la Gauchetiere West
29th Floor
Montreal Quebec
Attention: Jacques Bourque
Telecopier: (514) 878-4333
Or at such other address as the parties may have previously indicated to the
others parties in writing in conformity with the foregoing. Any such notice,
request, demand or other communication shall be deemed to have been received on
the date of delivery if delivered by hand, or the next Business Day immediately
following the date of transmission if sent by telecopier. The original copy of
any notice sent my telecopier shall be forwarded to the other parties by
registered mail, receipt return requested.
11.7 Delays. When calculating the period of time within which or following
which any act is to be done or step taken pursuant to this Agreement, the day
which is the reference day in calculating such period shall be excluded. If the
day on which such delay expires is not a Business Day, then the delay shall be
extended to the next succeeding Business Day.
11.8 Entire Agreement: Amendment. This Agreement and the other documents
delivered pursuant hereto constitutes the full and entire understanding and
agreement between the parties with regard to the subjects hereof, and no party
shall be liable or bound to any other party in any manner by any warranties,
representations or covenants except as specifically set forth herein or as
otherwise provided for herein. Except as expressly provided herein, neither
this Agreement nor any term hereof may be amended, other than by a written
instrument signed by all the parties hereto.
11.9 Gender. Any reference in this Agreement to any gender shall include both
genders and the neutral, and words used herein importing the singular number
only shall include the plural and vice versa.
11.10 Headings. The division of this Agreement into sections, subsections and
other subdivisions, and the insertion of headings are for convenience of
reference only and shall not affect or be utilized in the construction or
interpretation of this Agreement.
11.11 Waiver. Any waiver, permit, consent or approval of any kind or character
on the part of any party of any breach or default under this Agreement, or any
waiver on the part of any party of any provisions or conditions of this
Agreement, must be in writing and shall be effective only to the extent
specifically set forth in such writing. All remedies, either under this
Agreement or by law or otherwise afforded to any party, shall be cumulative and
not alternative.
11.12 Preamble. The preamble hereof shall form an integral part of this
Agreement.
IN WITNESS WHEREOF, the parties have signed at the place and on the date
first hereinabove mentioned.
CAPITAL COMMUNICATIONS CDPQ INC.
Per:
/s/Helene Belanger
--------------------------
Helene Belanger
Per:
/s/Roland Ribotti
--------------------------
Roland Ribotti
SOFINOV SOCIETE FINANCIERE
D'INNOVATION INC.
Per: /s/Denis Dionne
---------------------------
Denis Dionne
Per: /s/Pierre Pharand
---------------------------
Pierre Pharand
SOCIETE INNOVATECH DU GRAND
MONTREAL
Per: /s/Hubert Manseau
---------------------------
Hubert Manseau
TOUCHTUNES MUSIC CORPORATION
Per: /s/Tony Mastronardi
---------------------------
Tony Mastronardi
