EXHIBIT 4.2
EXECUTION COPY
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement"), dated as of July 8,
1998, is entered into by and among Silicon Gaming, Inc., a California
corporation (the "Company"), and each Holder (as hereinafter defined) executing
a signature page hereto.
This Agreement is made pursuant to a certain Securities Purchase Agreement,
dated as of September 30, 1997, as amended, by and between the Company and the
Purchaser named therein (the "Purchase Agreement"). In order to induce the
Purchaser to issue certain warrants to purchase common stock of the Company
pursuant to the Purchase Agreement, the Company has agreed to provide the
registration rights set forth in this Agreement. The execution of this
Agreement is a condition to the closing of certain transactions contemplated by
the Purchase Agreement.
In consideration of the foregoing, the parties hereby agree as follows:
SECTION 1. DEFINITIONS.
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As used in this Agreement, the following terms shall have the following
meanings:
"Actual Effective Date" shall have the meaning set forth in Section 2(a).
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"Advice" shall have the meaning set forth in Section 3.
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"Affiliate" means, with respect to any specified Person, any other Person
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(i) directly or indirectly controlling (including, but not limited to, all
directors and executive officers of such Person), controlled by or under direct
or indirect common control with such specified Person, or (ii) that directly or
indirectly owns more than 10% of the voting securities of such Person. A Person
shall be deemed to control a corporation if such Person possesses, directly or
indirectly, the power to direct or cause the direction of the management and
policies of such corporation, whether through the ownership of voting
securities, by contract or otherwise.
"Business Day" means a day that is not a Legal Holiday.
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"Commission" means the United States Securities and Exchange Commission.
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"Common Stock" means the common stock, par value $.001 per share, of the
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Company.
"Company" shall have the meaning set forth in the preamble and shall
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include the Company's successors by merger, acquisition, reorganization or
otherwise.
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"Controlling Persons" shall have the meaning set forth in Section 5(a).
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"Damages" shall have the meaning set forth in Section 5(a).
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"Exchange Act" means the Securities Exchange Act of 1934, as amended from
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time to time, or any successor statute, and the rules and regulations of the
Commission promulgated thereunder.
"Holder" means (i) each Person (other than the Company) executing a
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signature page hereto and (ii) each Person (other than the Company) to whom a
Holder transfers Warrant Shares if such Person acquires such Warrant Shares as
Registrable Securities.
"Holders' Counsel" means ▇▇▇▇▇▇▇, Procter & ▇▇▇▇ LLP, special counsel to
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the Holders, or any successor counsel selected by Holders of a majority in
interest of the Registrable Securities.
"Inspectors" shall have the meaning set forth in Section 3(m).
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"Legal Holiday" means a Saturday, Sunday or a day on which banking
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institutions in New York City, New York, or Boston, Massachusetts, or at such
place of payment, are not required to be opened.
"NASD" shall have the meaning set forth in Section 3(q).
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"Nasdaq" shall have the meaning set forth in Section 3(o).
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"Objection Notice" shall have the meaning set forth in Section 3(a).
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"Objecting Party" shall have the meaning set forth in Section 3(a).
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"Person" means any individual, corporation, partnership, joint venture,
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association, joint-stock company, trust, limited liability company,
unincorporated organization, government or other agency, or any political
subdivision thereof, or any other entity of whatever nature.
"Prospectus" means the prospectus included in any Registration Statement
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(including, without limitation, a prospectus that discloses information
previously omitted from a prospectus filed as part of an effective Registration
Statement in reliance upon Rule 430A promulgated under the Securities Act), as
amended or supplemented by any prospectus supplement, with respect to the terms
of the offering of any portion of the Registrable Securities covered by such
Registration Statement, and all other amendments and supplements to the
prospectus, including post-effective amendments, and all material incorporated
by reference or deemed to be incorporated by reference in such prospectus.
"Purchase Agreement" means the Securities Purchase Agreement, dated as of
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the date of this Agreement, between the Company and the Holder, pursuant to
which the Warrant Agreement
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is being executed and the Warrants are being issued, as amended, modified or
supplemented from time to time, together with any exhibits, schedules or other
attachments thereto.
"Records" shall have the meaning set forth in Section 3(m).
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"Registrable Securities" means the Warrant Shares; provided, however, that
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any Warrant Shares shall cease to be Registrable Securities when (i) a
Registration Statement covering such Registrable Securities has been declared
effective and such Registrable Securities have been disposed of pursuant to such
effective Registration Statement, (ii) such Registrable Securities are
transferred to any Person other than a Holder pursuant to Rule 144 (or any
successor rule or similar provision then in effect, but not Rule 144A) under the
Securities Act, including a sale pursuant to the provisions of Rule 144(k),
(iii) such Warrant Shares shall have ceased to be outstanding, or (iv) such
Warrant Shares may be resold pursuant to Rule 144(k) assuming a Net Cashless
Exercise (as defined in Section 2.3 of the Warrant Agreement) thereof in
accordance with Section 2.3 of the Warrant Agreement.
"Registration Expenses" shall have the meaning set forth in Section 4.
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"Securities Act" means the Securities Act of 1933, as amended from time to
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time, or any successor statute, and the rules and regulations of the Commission
promulgated thereunder.
"Shelf Registration Statement" means a registration statement of the
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Company on the appropriate form for an offering to be made on a continuous basis
pursuant to Rule 415 under the Securities Act that covers any of the 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, all exhibits, and all
material incorporated by reference or deemed to be incorporated by reference in
such registration statement.
"Suspension Notice" shall have the meaning set forth in Section 3.
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"Suspension Period" shall have the meaning set forth in Section 3.
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"Target Effective Date" means the date which is 30 days after the earlier
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of (i) the Target Filing Date or (ii) the date on which the Shelf Registration
Statement is filed with the Commission.
"Target Effective Period" shall have the meaning set forth in Section 2(a).
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"Target Filing Date" shall mean January 1, 1999, or such other date
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subsequent thereto as the Holders shall request.
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"Warrant Agreement" means the Warrant Agreement, dated as of the date of
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this Agreement, by and between the Company and the Purchaser identified therein,
as amended or supplemented from time to time in accordance with the terms
thereof.
"Warrants" means the warrants to purchase shares of Common Stock issued to
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the Holder on the date hereof pursuant to the Warrant Agreement and the Purchase
Agreement.
"Warrant Shares" means the shares of Common Stock issuable upon exercise of
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the Warrants and all shares of Common Stock directly or indirectly issued or
issuable in respect of the Warrant Shares by way of stock dividend or stock
split or in connection with a combination of shares, recapitalization, merger,
consolidation, or other reorganization. For purposes of this Agreement, all
references to Holders of Warrants exercisable into a majority or other specified
percentage of Warrant Shares shall be read as incorporating the assumption that
all Warrants have been exercised into Warrant Shares.
SECTION 2. SHELF REGISTRATION.
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(a) Filing; Effectiveness. Not later than the Target Filing Date, the
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Company shall prepare and file with the Commission a Shelf Registration
Statement covering the resale of all of the Registrable Securities. The Company
shall use its best efforts to cause the Shelf Registration Statement to be
declared effective on or before the Target Effective Date and to keep such Shelf
Registration Statement continuously effective for a period (the "Target
Effective Period") following the date on which such Shelf Registration Statement
is declared effective (the "Actual Effective Date"), which Target Effective
Period shall be equal to, with respect to each Holder, the longer of the period
of time between the Actual Effective Date and (i) the date which is 24 months
following the Actual Effective Date, or (ii) if such holder is an Affiliate of
the Company, the date which is three months after the date on which such Holder
ceases to be an Affiliate of the Company, provided that the Company first
provides such Holder with an opinion of counsel to such effect.
(b) Supplements; Amendments. The Company agrees, if necessary, to
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supplement or amend the Shelf Registration Statement, as 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 as
requested (which request shall result in the filing of a supplement or
amendment) by any Holder of Registrable Securities to which such Shelf
Registration Statement relates, and the Company agrees to furnish to the
Holders, Holders' Counsel and any managing underwriter copies of any such
supplement or amendment prior to its being used and/or filed with the
Commission.
(c) Liquidated Damages. If the Shelf Registration Statement is not
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filed on or before the Target Filing Date, the Company shall pay liquidated
damages to each Holder in an amount equal to $3.25 per 1,000 Warrant Shares per
week beginning on the Target Filing Date. If the Shelf Registration Statement is
filed but has not become effective on or before the Target Effective Date, the
Company shall pay liquidated damages to each Holder in an amount equal to
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$3.25 per 1,000 Warrant Shares per week beginning on the Target Effective Date.
The weekly liquidated damages payable by the Company to each Holder as a result
of a late filing or a late declaration of effectiveness shall increase by an
amount equal to $3.25 per 1,000 Warrant Shares 90 days after the Target Filing
Date or the Target Effective Date, as the case may be. If a stop order is
imposed or if for any other reason the effectiveness of the Shelf Registration
Statement is suspended during the Target Effective Period, then the Company
shall pay liquidated damages to each Holder in an amount equal to $3.25 per
1,000 Warrant Shares per week beginning on the date of such stop order or other
suspension of effectiveness. The weekly liquidated damages payable by the
Company to each Holder as a result of the imposition of a stop order or such
other suspension of the effectiveness of the Shelf Registration Statement during
the Target Effective Period shall increase by an amount equal to $3.25 per 1,000
Warrant Shares 90 days after the stop order was imposed or the effectiveness of
the Shelf Registration Statement was otherwise suspended, and shall thereafter
increase by an amount equal to $3.25 per 1,000 Warrant Shares at the end of each
subsequent 90-day period so long as such stop order or other suspension of the
effectiveness of the Shelf Registration Statement remains in effect. For
purposes of the two preceding sentences, a Holder will not be entitled to
receive liquidated damages under this Agreement during a Suspension Period (as
hereinafter defined) except to the extent permitted by Section 3 of this
Agreement. The Warrant Shares with respect to which liquidated damages shall
accrue and be payable in accordance with this Section 2(c) shall be those
Registrable Securities held by the Holders which are included or proposed to be
included in the Shelf Registration Statement.
The liquidated damages payable by the Company to the Holders pursuant to
this Section 2(c) shall be deemed to commence accruing on the day on which the
event triggering such liquidated damages occurs. Such liquidated damages shall
cease to accrue (i) with respect to the liquidated damages payable as a result
of the Company's failure to file the Shelf Registration Statement on or prior to
the Target Filing Date, on the day after the Shelf Registration Statement is
filed, (ii) with respect to the liquidated damages payable as a result of the
Company's failure to have the Shelf Registration Statement declared effective on
or prior to the Target Effective Date, on the day after the Shelf Registration
Statement is declared effective, or (iii) with respect to the liquidated damages
payable as a result of the imposition of a stop order or the suspension for any
other reason of the effectiveness of the Shelf Registration Statement, on the
day after the stop order is withdrawn or the effectiveness of the Shelf
Registration Statement is otherwise reinstated.
Notwithstanding the foregoing, if the sole reason why (i) the Company has
not filed the Shelf Registration Statement on or before the Target Filing Date
and/or (ii) the Shelf Registration Statement has not become effective on or
before the Target Effective Date is because the Holders did not provide the
Company with information which is required to be disclosed in the Shelf
Registration Statement and which the Company requested the Holders to so provide
in writing at least 15 days prior to the Target Filing Date and/or the Target
Effective Date, as the case may be, the Company's obligation to pay liquidated
damages with respect to such late filing or such late declaration of
effectiveness will not begin to accrue until five days after the Holders have
provided such information to the Company.
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The Company shall pay the liquidated damages due with respect to any
Registrable Securities at the end of each week during which such liquidated
damages accrue. Liquidated damages shall be paid to the Holders of Registrable
Securities entitled to receive such liquidated damages by wire transfer in
immediately available funds to the accounts designated by such Holders.
The parties hereto agree that the liquidated damages provided for in this
Section 2(c) and in Section 3 constitute a reasonable estimate as of the date
hereof of the damages that will be suffered by Holders of Registrable Securities
by reason of the failure of the Shelf Registration Statement to be filed, to be
declared effective and/or to remain effective, as the case may be, in accordance
with this Agreement.
(d) Effective Registration. A registration will not be deemed to have
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been effected as a Shelf Registration Statement unless the Shelf Registration
Statement with respect thereto has been declared effective by the Commission and
the Company has complied in all material respects with its obligations under
this Agreement with respect thereto; provided, however, that if after a Shelf
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Registration Statement has been declared effective, the offering of Registrable
Securities pursuant to such Shelf Registration Statement is interfered with by
any stop order, injunction or other order or requirement of the Commission or
any other governmental agency or court, such Shelf Registration Statement will
be deemed not to have become effective during the period of such interference
(and liquidated damages shall accrue and be payable under Section 2(c)) until
the offering of Registrable Securities pursuant to such Shelf Registration
Statement may legally resume. If a registration requested pursuant to this
Section 2 is deemed not to have been effected, then the Company shall continue
to be obligated to effect a registration pursuant to this Section 2.
SECTION 3. REGISTRATION PROCEDURES.
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In connection with the obligations of the Company to effect or cause the
registration of any Registrable Securities pursuant to the terms and conditions
of this Agreement, the Company shall use its best efforts to effect the
registration and sale of such Registrable Securities in accordance with the
intended method of disposition thereof as quickly as practicable, and in
connection therewith:
(a) The Company shall prepare and file with the Commission a Shelf
Registration Statement on the appropriate form under the Securities Act,
which Shelf Registration Statement shall comply as to form in all material
respects with the requirements of the applicable form and include all
financial statements required by the Commission to be filed therewith, and
use its best efforts to cause such Shelf Registration Statement to become
effective and remain effective in accordance with the provisions of this
Agreement; provided, however, that, at least ten Business Days prior to
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filing a Shelf Registration Statement or Prospectus or any amendments or
supplements thereto, including documents incorporated by reference after
the initial filing of the Shelf Registration
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Statement, the Company shall furnish to the Holders of the Registrable
Securities covered by such Shelf Registration Statement, Holders' Counsel
and the underwriters, if any, draft copies of all such documents proposed
to be filed, which documents will be subject to the review of Holders'
Counsel and the underwriters, if any, and the Company will not, unless
required by law or this Agreement, file any Shelf Registration Statement or
amendment thereto or any Prospectus or any supplement thereto to which
Holders holding a majority in interest of the Registrable Securities
covered by such Shelf Registration Statement or the underwriters with
respect to such Securities, if any, shall object; provided, however, that
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any such objection to the filing of any Shelf Registration Statement or
amendment thereto or any Prospectus or supplement thereto shall be made by
written notice (the "Objection Notice") delivered to the Company no later
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than five Business Days after the party or parties asserting such objection
or their counsel (the "Objecting Party") receives draft copies of the
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documents that the Company proposes to file. The Objection Notice shall set
forth the objections and the specific areas in the draft documents where
such objections arise. The Company shall have five Business Days after
receipt of the Objection Notice to correct such deficiencies to the
satisfaction of the Objecting Party, and will notify each Holder of any
stop order issued or threatened by the Commission in connection therewith
and shall use its best efforts to prevent the entry of such stop order or,
if entered, to have such stop order withdrawn at the earliest possible
moment.
(b) The Company shall promptly prepare and file with the Commission
such amendments and post-effective amendments to such Shelf Registration
Statement as may be necessary to keep such Shelf Registration Statement
effective for as long as the Company is required to keep such Shelf
Registration Statement effective pursuant to the terms hereof; shall cause
the Prospectus to be supplemented by any required Prospectus supplement,
and, as so supplemented, to be filed pursuant to Rule 424 under the
Securities Act; and shall comply with the provisions of the Securities Act
applicable to it with respect to the disposition of all Registrable
Securities covered by such Shelf Registration Statement during the
applicable period in accordance with the intended methods of disposition by
the Holders set forth in such Shelf Registration Statement or amendment
thereto or such Prospectus or supplement thereto;
(c) The Company shall promptly furnish to any Holder of Registrable
Securities included in a Shelf Registration Statement and the underwriters,
if any, without charge, such number of conformed copies of such Shelf
Registration Statement and any post-effective amendment thereto and such
number of copies of the Prospectus (including each preliminary Prospectus)
and any amendments or supplements thereto, any documents incorporated by
reference therein and such other documents as any such Holder or
underwriter may request in order to facilitate the public sale or other
disposition of the Registrable Securities being sold by such Holder (it
being understood that the Company consents to the use of the Prospectus and
any amendment or supplement thereto by each Holder selling Registrable
Securities and each underwriter, if any, in connection with the offering
and sale of the Registrable Securities covered by the Prospectus or any
amendment or supplement thereto).
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(d) The Company shall, on or prior to the date on which a Shelf
Registration Statement is declared effective, (i) use its best efforts to
register or qualify the Registrable Securities covered by such Shelf
Registration Statement under the securities or "blue sky" laws of each of
the 50 states of the United States or obtain appropriate exemptions
therefrom; (ii) do any and all other acts and things which may be necessary
or advisable to enable the Holders of Registrable Securities included in
such Shelf Registration Statement to consummate the disposition of such
Registrable Securities in accordance with their intended method of
disposition thereof; (iii) use its best efforts to keep each such state
securities or "blue sky" registration or qualification (or exemption
therefrom) effective during the period in which the Company is required to
keep such Shelf Registration Statement effective; and (iv) do any and all
other acts or things which may be necessary or advisable to enable the
Holders of Registrable Securities included in such Shelf Registration
Statement to complete the disposition in such jurisdictions of such
Registrable Securities in accordance with their intended method of
disposition thereof; provided, however, that the Company shall not be
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required (x) to qualify to do business in any jurisdiction where it would
not otherwise be required to so qualify but for this Section 3(d) or (y) to
file any general consent to service of process.
(e) The Company shall use its best efforts to cause the Registrable
Securities covered by a Shelf Registration Statement to be registered with
or approved by such other governmental agencies or authorities as may be
necessary by virtue of the business and operations of the Company to enable
the Holders to consummate the disposition of such Registrable Securities in
accordance with their intended method of disposition thereof.
(f) The Company shall promptly notify each Holder of Registrable
Securities included in a Shelf Registration Statement, Holders' Counsel and
any underwriter and (if requested by any such Person) confirm such notice
in writing (i) when such Shelf Registration Statement or a Prospectus or
any post-effective amendment or any Prospectus supplement has been filed
and, with respect to such Shelf Registration Statement or any post-
effective amendment, when the same has become effective, (ii) of any
request by the Commission or any state securities authority for amendments
and supplements to such Shelf Registration Statement and Prospectus or for
additional information after such Shelf Registration Statement has become
effective, (iii) of the issuance by the Commission of any stop order
suspending the effectiveness of such Shelf Registration Statement or the
initiation or threatening of any proceedings for that purpose, (iv) of the
issuance by any state securities commission or other regulatory authority
of any order suspending the registration or qualification or exemption from
registration or qualification of any of the Registrable Securities under
state securities or "blue sky" laws or the initiation of any proceedings
for that purpose, (v) if, between the effective date of such 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 of such
Registrable Securities cease to be true and correct in all material
respects, and (vi) of the happening of any event which makes any statement
of a material fact made in such
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Shelf Registration Statement or related Prospectus untrue or which requires
the making of any changes in such Shelf Registration Statement or
Prospectus so that such Shelf Registration Statement or Prospectus will not
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading; and, as promptly as practicable thereafter, prepare
and file an amendment to such Shelf Registration Statement with the
Commission and furnish to any such Holders and any underwriter a supplement
or amendment to such Prospectus so that, as thereafter deliverable to the
purchasers of such Registrable Securities, such Prospectus will not contain
any untrue statement 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.
(g) The Company shall make generally available to the Holders of
Registrable Securities included in a Shelf Registration Statement an
earnings statement satisfying the provisions of Section 11(a) of the
Securities Act no later than 30 days after the end of the 12-month period
beginning with the first day of the Company's first fiscal quarter
commencing after the effective date of such Shelf Registration Statement,
which earnings statement shall cover said 12-month period, and which
requirement will be deemed to be satisfied if the Company timely files
complete and accurate information on Forms 10-Q, 10-K and 8-K under the
Exchange Act and otherwise complies with Rule 158 under the Securities Act.
(h) The Company shall promptly use its best efforts to prevent the
issuance of any order suspending the effectiveness of a Shelf Registration
Statement, and, if any such order suspending the effectiveness of a Shelf
Registration Statement is issued, shall promptly use its best efforts to
obtain the withdrawal of such order at the earliest possible moment.
(i) The Company shall, if requested by the managing underwriter or
underwriters, if any, Holder's Counsel or any Holder of Registrable
Securities included in a Shelf Registration Statement, promptly incorporate
in a Prospectus supplement or post-effective amendment such information as
such managing underwriter or underwriters, Holder or Holders' Counsel
requests to be included therein, including, without limitation, with
respect to the Registrable Securities being sold by such Holder to such
underwriter or underwriters, the purchase price being paid therefor by such
underwriter or underwriters and any other terms of an underwritten offering
of the Registrable Securities to be sold in such offering, and the Company
shall promptly make all required filings of such Prospectus supplement or
post-effective amendment.
(j) After the filing with the Commission of any document which is
incorporated by reference into a Shelf Registration Statement (in the form
in which it was incorporated), the Company shall, upon request, promptly
deliver a copy of each such document to each
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of the Holders of Registrable Securities included in such Shelf
Registration Statement so requesting and to Holders' Counsel.
(k) The Company shall cooperate with the Holders of Registrable
Securities included in a Shelf Registration Statement and the managing
underwriter or underwriters, if any, to facilitate the timely preparation
and delivery of certificates (which shall not bear any restrictive legends
unless required under applicable law) representing Registrable Securities
sold under such Shelf Registration Statement to the purchasers thereof, and
enable such Registrable Securities to be in such denominations and
registered in such names as the managing underwriter or underwriters, if
any, or such Holders may request and keep available and make available to
the Company's transfer agent prior to the effectiveness of such Shelf
Registration Statement a supply of such certificates.
(l) The Company shall enter into such customary agreements (including,
if applicable, an underwriting agreement in customary form) and take such
other actions as the Holders of Registrable Securities included in a Shelf
Registration Statement or the underwriters, if any, may reasonably request
in order to expedite or facilitate the disposition of Registrable
Securities (any such Holders may, at their option, require that any or all
of the representations, warranties and covenants of the Company to or for
the benefit of any underwriters also be made to and for the benefit of such
Holders).
(m) The Company shall promptly make available to each Holder of
Registrable Securities included in a Shelf Registration Statement, any
underwriter and any attorney, accountant or other agent or representative
retained by any such Holder or underwriter (collectively, the
"Inspectors"), all financial and other records, pertinent corporate
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documents and properties of the Company (collectively, the "Records"), as
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shall be reasonably necessary to enable them to exercise their due
diligence responsibility, and cause the Company's officers, directors and
employees to supply all Records and other information requested by any such
Inspector in connection with such Shelf Registration Statement.
(n) The Company shall furnish to each Holder of Registrable Securities
included in a Shelf Registration Statement and to any underwriter, upon
request, a signed counterpart, addressed to such Holder or underwriter, of
(i) an opinion or opinions of counsel to the Company, and (ii) a comfort
letter or comfort letters from the Company's independent public
accountants, each in customary form and covering matters of the type
customarily covered by opinions or comfort letters, as the case may be.
(o) The Company shall use its best efforts to cause the Registrable
Securities included in a Shelf Registration Statement (if the Company and
the Registrable Securities so qualify) (i) to be listed on each national
securities exchange, if any, on which similar securities issued by the
Company are then listed, or (ii) if similar securities issued by the
Company are not then listed, to be authorized for listing or quotation, as
applicable, on
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the New York Stock Exchange or The Nasdaq Stock Market, Inc.'s ("Nasdaq")
National Market.
(p) The Company shall provide a CUSIP number for all Registrable
Securities covered by a Shelf Registration Statement not later than the
effective date of such Shelf Registration Statement.
(q) The Company shall cooperate with each Holder of Registrable
Securities included in a Shelf Registration Statement and each underwriter
and their respective counsel in connection with any filings required to be
made with the National Association of Securities Dealers, Inc. ("NASD").
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(r) The Company shall, during the period when the Prospectus is
required to be delivered under the Securities Act, promptly file all
documents required to be filed with the Commission pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act.
(s) The Company shall appoint a transfer agent and registrar for all
Registrable Securities covered by a Shelf Registration Statement not later
than the effective date of such Shelf Registration Statement.
(t) In connection with an underwritten offering, the Company shall
participate, to the extent reasonably requested by the managing underwriter
for the offering or the Holders of Registrable Securities included in such
offering, in customary efforts to sell the securities being offered,
including without limitation, participating in "road shows."
(u) If the Registrable Securities are of a class of securities that is
listed on a national securities exchange or Nasdaq, the Company will file
copies of any Prospectus with such exchange or Nasdaq, as applicable, in
compliance with Rule 153 under the Securities Act so that the Holders shall
benefit from the prospectus delivery procedures described therein.
Each Holder of Registrable Securities included in a Shelf Registration
Statement, upon receipt of any notice (a "Suspension Notice") from the Company
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of the happening of any event of the kind described in Section 3(f), shall
forthwith discontinue disposition of the Registrable Securities pursuant to such
Shelf Registration Statement covering such Registrable Securities until such
Holder's receipt of the copies of the supplemented or amended Prospectus
contemplated by Section 3(f) or until such Holder is advised in writing (the
"Advice") by the Company that the use of the Prospectus may be resumed, and such
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Holder has received copies of any additional or supplemental filings which are
incorporated by reference in the Prospectus, and, if so directed by the Company,
such Holder will, or will request the managing underwriter or underwriters, if
any, to, deliver to the Company (at the Company's expense) all copies, 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; provided, however, that the Company shall not give a Suspension Notice
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until after the Shelf Registration Statement has been declared effective and
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shall not give more than three Suspension Notices during any period of twelve
consecutive months and in no event shall the period from the date on which any
such Holder receives a Suspension Notice to the date on which any such Holder
receives either the Advice or copies of the supplemented or amended Prospectus
contemplated by Section 3(f) (the "Suspension Period") exceed 30 days. In the
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event that the Company shall give any Suspension Notice, (i) the Company shall
use its best efforts and take such actions as are reasonably necessary to render
the Advice and end the Suspension Period as promptly as practicable and (ii) the
time periods for which a Shelf Registration Statement is required to be kept
effective pursuant to Section 2 hereof shall be extended by the number of days
during the Suspension Period.
If the Suspension Period exceeds 30 days, the Company shall pay liquidated
damages to each Holder in the amount of $3.25 per 1,000 Warrant Shares included
in the Shelf Registration Statement for each week during which the Suspension
Period is in effect. The weekly liquidated damages payable by the Company to
each Holder as a result of the continuance of a Suspension Period shall increase
by an amount equal to $3.25 per 1,000 Warrant Shares 60 days after receipt of
the Suspension Notice. The Company shall pay the liquidated damages due with
respect to any Registrable Securities at the end of each week during which such
damages accrue. Liquidated damages shall be paid to the Holders of Registrable
Securities entitled to receive such liquidated damages by wire transfer in
immediately available funds to the accounts designated by such Holders.
If any Shelf Registration Statement refers to any Holder by name or
otherwise as the holder of any securities of the Company, then such Holder shall
have the right to require (i) the insertion therein of language, in form and
substance reasonably satisfactory to such Holder, to the effect that the holding
by such Holder of such securities is not to be construed as a recommendation by
such Holder of the investment quality of the Company's securities covered
thereby and that such holding does not imply that such Holder will assist in
meeting any future financial requirements of the Company, or (ii) in the event
that such reference to such Holder by name or otherwise is not required by the
Securities Act or any similar Federal or state securities or "blue sky" statute
and the rules and regulations thereunder then in force, the deletion of the
reference to such Holder.
SECTION 4. REGISTRATION EXPENSES. Any and all expenses incident to the
---------------------
Company's performance of or compliance with this Agreement, including without
limitation, all Commission and securities exchange, Nasdaq or NASD registration
and filing fees, 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 the Holders or underwriters in connection with
"blue sky" qualifications of the Registrable Securities), printing expenses,
messenger and delivery expenses, internal expenses (including, without
limitation, all salaries and expenses of the Company's officers and employees
performing legal or accounting duties), all expenses for word processing,
printing and distributing any Shelf 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, the fees and expenses of the Company incurred in connection
with the listing of the Registrable Securities, the
12
fees and disbursements of counsel for the Company and of the independent
certified public accountants of the Company (including the expenses of any
comfort letters or costs associated with the delivery by independent certified
public accountants of a comfort letter or comfort letters requested pursuant to
Section 3(n)), Securities Act liability insurance (if the Company elects to
obtain such insurance), the reasonable fees and expenses of any special experts
or other Persons retained by the Company in connection with any registration,
and the reasonable fees and disbursements of Holders' Counsel incurred in
connection with each registration hereunder (up to a maximum of $10,000) and any
reasonable out-of-pocket expenses of the Holders and their agents, including any
reasonable travel costs (but excluding underwriting discounts and commissions
and transfer taxes, if any, relating to the sale or disposition of Registrable
Securities) (all such expenses being herein called "Registration Expenses"),
------------ --------
will be borne by the Company whether or not the Shelf Registration Statement to
which such expenses relate becomes effective.
SECTION 5. INDEMNIFICATION AND CONTRIBUTION.
--------------------------------
(a) Indemnification by the Company. The Company agrees to indemnify
------------------------------
and hold harmless, to the full extent permitted by law, each Holder, its
partners, members, officers, directors, trustees, stockholders, employees,
agents and investment advisers, and each Person who controls such Holder within
the meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act, or is under common control with, or is controlled by, such Holder,
together with the partners, members, officers, directors, trustees,
stockholders, employees, agents and investment advisors of such controlling
Person (collectively, the "Controlling Persons"), from and against all losses,
----------- -------
claims, damages, liabilities and expenses (including, without limitation, any
legal or other fees and expenses incurred by any Holder or any such Controlling
Person in connection with defending or investigating any action or claim in
respect thereof) (collectively, the "Damages") to which such Holder, its
-------
partners, officers, directors, trustees, stockholders, employees, agents and
investment advisers, and any such Controlling Person, may become subject under
the Securities Act or otherwise, insofar as such Damages (or proceedings in
respect thereof) arise out of or are based upon any untrue or alleged untrue
statement of material fact contained in any Shelf 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 are caused by any omission or alleged omission to state therein a
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, or arise out of or are
based upon any untrue statement or alleged untrue statement of a material fact
contained in any Prospectus (as amended or supplemented if the Company shall
have furnished any amendments or supplements thereto), or are caused by any
omission or alleged omission to state therein a material fact necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading; provided, however, that the Company shall not be liable
-------- -------
for Damages to any Holder under this Section 5(a) to the extent that any such
Damages (i) arise out of or are based upon any such untrue statement or omission
which is based upon information relating to such Holder furnished in writing to
the Company by such Holder expressly for use in any such Shelf Registration
Statement (or any amendment thereto) or Prospectus (or amendment or supplement
thereto); or (ii) were caused by the fact that such Holder sold Securities to a
Person as to whom it shall be established that there
13
was not sent or given, or deemed sent or given pursuant to Rule 153 under the
Securities Act, at the time of or prior to the written confirmation of such
sale, a copy of the Prospectus as then amended or supplemented if, and only if,
(a) the Company has previously furnished copies of such amended or supplemented
Prospectus to such Holder and (b) such Damages were caused by any untrue
statement or omission or alleged untrue statement or omission contained in the
Prospectus so delivered which was corrected in such amended or supplemented
Prospectus. In connection with an underwritten offering, the Company will
indemnify the underwriters thereof, their officers and directors and each Person
who controls such underwriters (within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act) to the same extent as provided
above with respect to the indemnification of the Holders of Registrable
Securities except with respect to information provided by the underwriter
specifically for inclusion therein.
(b) Indemnification by the Holders. In connection with any Shelf
------------------------------
Registration Statement in which a Holder is participating, each such Holder
agrees, severally and not jointly, to indemnify and hold harmless the Company,
its directors and officers and each Person, if any, who controls the Company
within the meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act from and against all Damages to the same extent as the
foregoing indemnity from the Company to such Holder, but only to the extent such
Damages arise out of or are based upon any untrue statement of a material fact
contained in any Shelf Registration Statement (or any amendment thereto) or
Prospectus (or any amendment or supplement thereto) or are caused by any
omission to state therein a material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading, which untrue statement or omission is based upon information
relating to such Holder furnished in writing to the Company by such Holder
expressly for use in any such Shelf Registration Statement (or any amendment
thereto) or any such Prospectus (or any amendment or supplement thereto);
provided, however, that such Holder shall not be obligated to provide such
-------- -------
indemnity to the extent that such Damages result from the failure of the Company
to promptly amend or take action to correct or supplement any such Shelf
Registration Statement or Prospectus on the basis of corrected or supplemental
information furnished in writing to the Company by such Holder expressly for
such purpose. In no event shall the liability of any Holder of Registrable
Securities hereunder be greater in amount than the dollar amount of the net
proceeds received by such Holder upon the sale of the Registrable Securities
giving rise to such indemnification obligation.
(c) Indemnification Procedures. In case any proceeding (including any
--------------------------
governmental investigation) shall be instituted involving any Person in respect
of which indemnity may be sought pursuant to either paragraph (a) or (b) above,
such Person (the "indemnified party") shall promptly notify the Person against
whom such indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceedings
and shall pay the fees and disbursements of such counsel relating to such
proceeding. The failure of an indemnified party to notify the indemnifying
party with respect to a particular proceeding shall not relieve the indemnifying
party from any obligation or liability (i) which it may have pursuant to this
Agreement if the indemnifying party is not substantially prejudiced by such
failure to so
14
notify it or (ii) which it may have otherwise than pursuant to this Agreement.
In any such proceeding, any indemnified party shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the expense
of such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel, or (ii) the
indemnifying party fails promptly to assume the defense of such proceeding or
fails to employ counsel reasonably satisfactory to such indemnified party, or
(iii) (A) the named parties to any such proceeding (including any impleaded
parties) include both such indemnified party or an Affiliate of such indemnified
party and any indemnifying party or an Affiliate of such indemnifying party, (B)
there may be one or more defenses available to such indemnified party or such
Affiliate of such indemnified party that are different from or additional to
those available to any indemnifying party or such Affiliate of any indemnifying
party and (C) such indemnified party shall have been advised by such counsel
that there may exist a conflict of interest between or among such indemnified
party or such Affiliate of such indemnified party and any indemnifying party or
such Affiliate of any indemnifying party, in which case, if such indemnified
party notifies the indemnifying party in writing that it elects to employ
separate counsel of its choice at the expense of the indemnifying party, the
indemnifying party shall not have the right to assume the defense thereof and
such counsel shall be at the expense of the indemnifying party, it being
understood, however, that unless there exists a conflict among indemnified
parties, the indemnifying parties shall not, in connection with any one such
proceeding or separate but substantially similar or related proceedings in the
same jurisdiction, arising out of the same general allegations or circumstances,
be liable for the fees and expenses of more than one separate firm of attorneys
(together with appropriate local counsel) at any time for such indemnified
parties. The indemnifying party shall not be liable for any settlement of any
proceeding effected without its written consent (which consent shall not be
unreasonably withheld) but, if settled with such consent or if there be a final
judgment for the plaintiff, the indemnifying party agrees to indemnify each
indemnified party from and against any loss or liability by reason of such
settlement or judgment. No indemnifying party shall, without the prior written
consent of any indemnified party (which consent shall not be unreasonably
withheld), effect any settlement of any pending or threatened proceeding in
respect of which such indemnified party is a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on all claims
that are the subject matter of such proceeding with no payment by such
indemnified party of consideration.
(d) Contribution. If the indemnification from the indemnifying party
------------
provided for in this Section 5 is found, pursuant to a final judicial
determination not subject to appeal, to be unavailable to an indemnified party
hereunder in respect of any losses, claims, damages, liabilities, or expenses
referred to therein, then the indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages, liabilities, or
expenses in such proportion as is appropriate to reflect the relative fault of
the indemnifying party and the indemnified parties in connection with the
actions that resulted in such losses, claims, damages, liabilities or expenses,
as well as any other relevant equitable considerations. The relative fault of
such indemnifying party and indemnified parties shall be determined by reference
to, among other things, whether any action in question, including any untrue or
alleged untrue statement of a material fact or the
15
omission or alleged omission to state a material fact, has been made by, or
relates to information supplied by, such indemnifying party or indemnified
parties, and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such action. The amount paid or payable by a
party as a result of the losses, claims, damages, liabilities, and expenses
referred to above shall be deemed to include, subject to the limitations set
forth in Section 5(c), any legal or other expenses reasonably incurred by such
party in connection with any investigation or proceeding.
The parties hereto agree that it would not be just or equitable if
contribution pursuant to this Section 5(d) were determined by pro rata
--- ----
allocation or by any other method of allocation that does not take account of
the equitable considerations referred to in the immediately preceding paragraph.
Notwithstanding the provisions of this Section 5(d), no underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Registrable Securities underwritten by it and distributed to
the public were offered to the public exceeds the amount of any damages which
such underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission, and no selling Holder shall be required to
contribute any amount in excess of the amount by which the total net proceeds
received by such selling Holder with respect to Registrable Securities sold by
such selling Holder exceeds the amount of any damages which such selling Holder
has otherwise been required to pay by reason of such untrue statement or alleged
untrue statement or omission or alleged omission. Each Holder's obligation to
contribute pursuant to this Section 5(d) is several and not joint and shall be
determined by reference to the proportion that the net proceeds of the offering
received by such Holder bears to the total net proceeds of the offering received
by all the Holders. 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. The remedies provided for in this Section 5 are not
exclusive and shall not limit any rights or remedies that may otherwise be
available to any indemnified party at law or in equity.
If indemnification is available under this Section 5, the indemnifying
party shall indemnify each indemnified party to the full extent provided in
Sections 5(a) and (b) without regard to the relative fault of said indemnifying
party or indemnified party or any other equitable consideration provided for in
this Section 5(d).
SECTION 6. RULE 144. The Company covenants that it will file any
--------
reports required to be filed by it under the Securities Act and the Exchange
Act, and the rules and regulations adopted by the Commission thereunder (or, if
the Company is not required to file such reports, it will, upon the request of
any Holder, make publicly available other information so long as necessary to
permit sales of the Registrable Securities pursuant to Rule 144 under the
Securities Act), and it will take such further action as any Holder may request,
all to the extent required from time to time to enable such Holder to sell
Registrable Securities without registration under the Securities Act within the
limitation of the exemptions provided by (a) Rule 144 under the Securities Act,
as such Rule may be amended from time to time, or (b) any successor rule or
similar provision
16
hereafter adopted by the Commission. Upon the request of any Holder, the Company
will deliver to such Holder a written statement as to whether it has complied
with such requirements.
SECTION 7. RULE 144A. The Company covenants that it will file all
---------
reports required to be filed by it under the Securities Act and the Exchange
Act, and the rules and regulations adopted by the Commission thereunder (or if
the Company is not required to file such reports, it will, upon the request of
any Holder, make available other information so long as necessary to permit
sales of the Registrable Securities pursuant to Rule 144A under the Securities
Act), and it will take such further action as any Holder may request, all to the
extent required from time to time to enable such Holder to sell Registrable
Securities without registration under the Securities Act within the limitation
of the exemptions provided by (a) Rule 144A, as such rule may be amended from
time to time, or (b) any successor rule or similar provision hereafter adopted
by the Commission. Upon the request of any Holder, the Company will deliver to
such Holder a written statement as to whether it has complied with such
requirements.
SECTION 8. MISCELLANEOUS.
-------------
(a) No Inconsistent Agreements. The Company has not entered into nor
--------------------------
will the Company on or after the date of this Agreement 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. The Company
may grant registration rights that would permit any Person the right to piggy-
back or may itself exercise its right to piggy-back, on any Shelf Registration
Statement, provided that if the managing underwriter or underwriters, if any, of
--------
such offering delivers an opinion to the Holders that the total amount of
securities which they and the holders of such new piggy-back rights intend to
include in any Shelf Registration Statement is so large as to materially and
adversely affect the success of such offering (including the price at which such
securities can be sold), then only the amount, number or kind of securities to
be offered for the account of holders of such new piggy-back rights (other than
the Company) will be reduced to the extent necessary to reduce the total amount
of securities to be included in such Shelf Registration Statement to the amount,
number or kind recommended by the managing underwriter prior to any reduction in
the amount of Registrable Securities to be included; and provided further that
-------- -------
if such offering is not underwritten, then such piggy-back rights shall only be
exercised with the consent of the Holders of Warrants exercisable into a
majority of the Warrant Shares being offered under such Shelf Registration
Statement.
(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 Warrants exercisable into at least a majority of Warrant Shares which are
affected by such amendment, modification, supplement, waiver or consent.
17
(c) Notices. All notices and other communications provided for or
-------
permitted hereunder shall be in writing and shall be deemed to have been duly
given if delivered personally or sent by telecopier, registered or certified
mail (return receipt requested), postage prepaid or courier to the parties at
their respective addresses set forth on the signature pages hereof (or at such
other address for any party as shall be specified by like notice, provided that
notices of a change of address shall be effective only upon receipt thereof).
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; by confirmed
receipt of transmission, if telecopied; and on the next Business Day, if timely
delivered to a courier guaranteeing overnight delivery.
(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. 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.
(e) 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.
(f) Headings. The headings in this Agreement are for convenience of
--------
reference only and shall not limit or otherwise affect the meaning hereof.
(g) Governing Law. This Agreement shall be governed by and construed
-------------
in accordance with the laws of the State of New York without regard to
principles or rules of conflicts of law.
(h) Severability. In the event that any one or more of the provisions
------------
contained herein, or the application thereof in any circumstances, is held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and of
the remaining provisions contained herein shall not be in any way impaired
thereby, it being intended that all of the rights and privileges of the Holders
shall be enforceable to the fullest extent permitted by law.
(i) Entire Agreement. This Agreement is intended by the parties as a
----------------
final expression of their agreement and is intended to be the complete and
exclusive statement of the agreement and understanding of the parties hereto in
respect of the subject matter contained herein. There are no restrictions,
promises, warranties or undertakings, other than those set forth
18
or referred to herein. This Agreement, the Warrant Agreement and the Securities
Purchase Agreement supersede all prior agreements and understandings between the
parties with respect to such subject matter.
(j) Attorneys' Fees. In any action or proceeding brought to enforce
---------------
any provision of this Agreement or where any provision hereof is validly
asserted as a defense, the successful party shall, to the extent permitted by
applicable law, be entitled to recover reasonable attorneys' fees in addition to
any other available remedy.
(k) Further Assurances. Each party shall cooperate and take such
------------------
action as may be reasonably requested by another party in order to carry out the
provisions and purposes of this Agreement and the transactions contemplated
hereby.
(l) Remedies. In the event of a breach or a threatened breach by any
--------
party to this Agreement of its obligations under this Agreement, any party
injured or to be injured by such breach will be entitled to specific performance
of its rights under this Agreement or to injunctive relief, in addition to being
entitled to exercise all rights provided in this Agreement and granted by law.
The parties agree that the provisions of this Agreement shall be specifically
enforceable, it being agreed by the parties that remedies at law for violations
hereof including monetary damages, are inadequate and that the right to object
in any action for specific performance or injunctive relief hereunder on the
basis that a remedy at law would be adequate is waived.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
19
IN WITNESS WHEREOF, the parties have executed this Registration Rights
Agreement as of the date first written above.
SILICON GAMING, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President and
Chief Financial Officer
Notice Information:
▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Silicon Gaming, Inc.
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
20
REGISTRATION RIGHTS AGREEMENT
PURCHASER SIGNATURE PAGE
B III CAPITAL PARTNERS, L.P.,
a Delaware limited partnership
By: DDJ CAPITAL III, LLC,
its General Partner
By: DDJ CAPITAL MANAGEMENT, LLC,
its Manager
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------
Name:
Title:
Notice Information:
▇▇. ▇▇▇ ▇▇▇▇▇▇▇
DDJ Capital Management, LLC
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇-▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
21