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EXHIBIT 10.25
MULTIMEDIA GAMES, INC.
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement"), dated as of July
11, 1996, by and between MULTIMEDIA GAMES, INC., a Texas corporation (the
"Company"), and ▇▇▇▇▇ PAY-PER VIEW INC., a Delaware corporation ("▇▇▇▇▇"),
W I T N E S S E T H:
WHEREAS, ▇▇▇▇▇ is the owner of the Registerable Securities which were
acquired by ▇▇▇▇▇ upon the condition that the Company enter into this Agreement
to register the Registerable Securities under the 1933 Act; and
WHEREAS, the Company is willing to register the Registerable Securities
under the 1933 Act upon the terms and conditions contained in this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements herein contained, the parties hereto agree as follows:
ARTICLE I
Certain Definitions
For the purposes of this Agreement, the following terms have the
following meanings:
"Affiliate", with respect to any Person, means any other Person
directly or indirectly controlling, controlled by or under common
control with, such Person. For purposes of this definition, "control"
(including with correlative meanings, the terms "controlling",
"controlled by" or "under common control with"), as used with respect to
any Person, shall mean the
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possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of such Person, whether through
the ownership of voting securities or by contract or otherwise.
"Articles of Incorporation" means the Certificate Articles of
Incorporation of the Company on the date hereof, as amended from time to
time hereafter.
"Beneficial owner" or "beneficially own" has the meaning given
such term in Rule 13d-3 under the 1934 Act.
"Business Day" means any day, excluding Saturday, Sunday and any
other day on which commercial banks in Boston, Massachusetts or New
York, New York are authorized or required by law to close.
"Commission" means the Securities and Exchange Commission, and
any successor commission or agency having similar powers.
"Common Stock" means the shares of Common Stock, $.01 par value,
of the Company.
"▇▇▇▇▇ Holders" means ▇▇▇▇▇, so long as it holds Registrable
Securities, and any Permitted Transferee of ▇▇▇▇▇ so long as such
Permitted Transferee continues to hold such Registrable Securities.
"Holder" means any ▇▇▇▇▇ Holder holding Registrable Securities.
"1933 Act" means the Securities Act of 1933, as amended, and the
rules and regulations thereunder.
"1934 Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations thereunder.
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"Permitted Transferee" means any Affiliate of ▇▇▇▇▇ or any
officer, director or employee of ▇▇▇▇▇ or such Affiliate; provided that,
such Permitted Transferee shall have executed and delivered to the
Company an executed counterpart of this Agreement and shall have agreed
to be bound hereunder in the same manner and to the same extent as ▇▇▇▇▇
is bound hereunder.
"Person" means an individual, a partnership, a joint venture, a
corporation, an association, a trust, an individual retirement account
or any other entity or organization, including a government or any
department or agency thereof.
"Public Company" means if the Company has Shares registered under
Section 12 of the 1934 Act.
"Registrable Securities" means (a) the shares of Common Stock
issued or issuable upon the exercise of the Warrants (the "Warrant
Shares"); and (b) shares of Common Stock issued or issuable by way of a
stock dividend or stock split or in connection with a combination or
subdivision of shares, reclassification, recapitalization, merger,
consolidation or other reorganization of the Company. Registerable
Securities shall not include the Warrants. Registrable Securities shall
cease to be Registrable Securities when (i) a registration statement
(other than a registration statement on Form S-8) with respect to the
sale of such securities shall have become effective under the 1933 Act
and such securities shall have been disposed of under such registration
statement, (ii) they shall have been distributed to the public pursuant
to Rule 144, (iii) they shall have been otherwise transferred or
disposed of other than to a Permitted Transferee, or (iv) any transfer
or disposition of them to the public shall not require their
registration or qualification under the 1933 Act or any similar state
law then in force, or (v) they shall have ceased to be outstanding.
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"Registration Expenses" means all out-of-pocket expenses incident
to the Company's performance of or compliance with Article II of this
Agreement, including, without limitation, all registration and filing
fees (including filing fees with respect to the National Association of
Securities Dealers, Inc.), all fees and expenses of complying with state
securities or "blue sky" laws (including reasonable fees and
disbursements of underwriters' counsel in connection with any "blue sky"
memorandum or survey), all printing expenses, all listing fees, all
registrars' and transfer agents' fees, the fees and disbursements of
counsel for the Company and of its independent public accountants,
including the expenses of any special audits and/or "cold comfort"
letters required by or incident to such performance and compliance;
provided that, "Registration Expenses" shall not include underwriting
discounts and commissions and applicable transfer taxes, if any, and any
fees and disbursements of counsel retained by the Holders of Registrable
Securities being registered, which shall be borne by the sellers of the
Registrable Securities being registered in all cases.
"Rule 144" means Rule 144 (or any successor provision) under the
1933 Act.
"Rule 144 Transaction" means any sale of Shares made in reliance
upon Rule 144 (as in effect on the date hereof) that complies with
paragraphs (e), (f) and (g) thereof (as in effect on the date hereof),
regardless of whether at the time of such Sale the seller is entitled to
rely upon paragraph (k) of Rule 144 in connection with the Sale of such
Shares.
"Share" means any share of Common Stock and, unless the context
otherwise requires, any Warrant Shares. Share shall also mean any
equity securities received in exchange for or with respect to the Common
Stock by way of merger, consolidation, exchange, stock dividend or
reorganization or recapitalization
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involving the Company in which the Company is the surviving or resulting
entity.
"Warrant" means the Warrant Certificate (No. W-43), dated July
31, 1995, issued by the Company to ▇▇▇▇▇ and evidencing the right of
▇▇▇▇▇ to purchase 175,000 shares of Common Stock at a purchase price of
$3.50 per share.
ARTICLE II
Registration Rights
SECTION 2.1. Incidental Registration.
(a) If the Company at any time proposes to register for its own account
or otherwise, equity securities under the 1933 Act on a form and in a manner
that would permit registration of Registrable Securities for sale to the public
under the 1933 Act, it will each such time give prompt written notice to all
Holders of Registrable Securities of its intention to do so, describing such
securities and specifying the form and manner and the other relevant facts
involved in such proposed registration (including, without limitation, whether
or not such registration will be in connection with an underwritten offering of
its Common Stock and, if so, the identity of the managing underwriter and
whether such offering will be pursuant to a "best efforts" or "firm commitment"
underwriting). Upon the written request of any such Holder of Registrable
Securities delivered to the Company within 20 days after such notice shall have
been given to such Holder (which request shall specify the Registrable
Securities intended to be disposed of by such Holder and the intended method of
disposition thereof), the Company will use its best efforts to effect the
registration under the 1933 Act, as expeditiously as is reasonable, of all
Registrable Securities that the Company has been so requested to register by
the Holders of Registrable Securities, to the extent requisite to permit the
disposition (in accordance with the intended methods thereof as aforesaid) of
the Registrable Securities so to be registered; provided, however, that:
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(i) if, at any time after giving such written notice of its
intention to register any of such 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 such securities, the
Company may, at its election, give written notice of such determination to
each Holder of Registrable Securities that has requested to register
Registrable Securities and thereupon the Company shall be relieved of its
obligation to register any Registrable Securities in connection with such
registration (but not from its obligation to pay the Registration Expenses in
connection therewith to the extent provided in Section 2.1(b));
(ii) if (A) the registration so proposed by the Company involves
an underwritten offering of the securities so to be registered, to be
distributed by or through one or more underwriters of recognized standing under
underwriting terms appropriate for such a transaction, and (B) the managing
underwriter of such underwritten offering selected by the Company shall advise
the Company that, in its opinion, the number of securities proposed to be
included in such offering and the number of shares of Registrable Securities
proposed to be included in such offering by the Holder or Holders thereof
should be limited due to market conditions, then the Company will promptly
advise each such Holder of Registrable Securities thereof and may require, by
written notice to each such Holder accompanying such opinion, that, to the
extent necessary to meet such limitation on the number of shares of Registrable
Securities that the Holders are permitted to sell, all Holders of Registrable
Securities proposing to sell shares of Registrable Securities in such offering
shall share pro rata in the number of shares of Registrable Securities to be
excluded from such offering, such sharing to be based on the respective numbers
of shares of Registrable Securities as to which registration has been requested
by such Holders;
(iii) if (A) the registration so proposed by the Company (whether
or not underwritten) involves an offering of securities by a holder thereof
that is exercising demand registration rights that entitle such holder to a
preferential right of sale, and
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(B) such holder shall advise the Company that, in its opinion, the number of
securities proposed to be included in such offering by the Company and the
number of shares of Registrable Securities proposed to be included in such
offering by the Holder or Holders thereof should be limited due to market
conditions, then the Company will promptly advise each such Holder of
Registrable Securities thereof and may require, by written notice to each such
Holder accompanying such opinion, that, to the extent necessary to meet such
limitation on the number of shares of Registrable Securities that the Holders
are permitted to sell, all Holders of Registrable Securities proposing to sell
shares of Registrable Securities in such offering shall share pro rata in the
number of shares of Registrable Securities to be excluded from such offering,
such sharing to be based on the respective numbers of shares of Registrable
Securities as to which registration has been requested by such Holders;
(iv) the Company shall not be obligated to effect any
registration of Registrable Securities under this Section 2.1 that is
incidental to the registration of any of its securities in connection with any
merger, acquisition, exchange offer, dividend reinvestment plan or stock option
or other employee benefit plan.
(b) The Company will pay all Registration Expenses in connection with
each registration of Registrable Securities effected by it pursuant to this
Section 2.1.
SECTION 2.2 Registrations on Form S-3.
(a) In addition to the rights provided the Holders of Registrable
Securities in Section 2.2 above, if the registration of Registrable Securities
under the 1933 Act can be effected on Form S-3 (or any similar form having
similar requirements promulgated by the Commission), then upon the written
request of a Holder or Holders of at least thirty percent (30%) of the
Registrable Shares, the Company will notify each Holder or Holders of
Registrable Securities and then shall, as expeditiously as possible, effect
qualification and
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registration under the 1933 Act on Form S-3 of all or such portion of the
Registrable Securities as the Holder or Holders shall specify.
(b) The Company shall not be required to effect more than three (3)
registrations in the aggregate pursuant to this Section 2.2 and not more than
one during any twelve-month period. The Company's obligations under this
Section 2.2 shall expire five (5) years after the date of this Agreement.
SECTION 2.3 Registration Procedures.
(a) If and whenever the Company is required to use its best efforts to
effect the registration of any Registrable Securities under the 1933 Act as
provided in Sections 2.1 and 2.2, the Company will as expeditiously as is
reasonable:
(i) in connection with a request pursuant to Section 2.2, use
its best efforts to prepare and file with the Commission within sixty (60) days
after receipt of such request and use its best efforts to cause such
registration statement to become effective;
(ii) prepare and file with the Commission such amendments
(including post-effective amendments) and supplements to such registration
statement and the prospectus used in connection therewith as may be necessary
to keep such registration statement effective and to comply with the
provisions of the 1933 Act with respect to the disposition of all Registrable
Securities and other securities covered by such registration statement until
the earlier of (A) such time as all such Registrable Securities and other
securities have been disposed of in accordance with the intended methods of
disposition by the seller or sellers thereof set forth in such registration
statement and (B) the expiration of 120 days from the date such registration
statement first becomes effective;
(iii) furnish to each seller of such Registrable Securities such
number of conformed copies of such registration statement and of each such
amendment and supplement thereto (in each
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case including all exhibits), such number of copies of the prospectus included
in such registration statement (including each preliminary prospectus and any
summary prospectus), in conformity with the requirements of the 1933 Act, such
documents incorporated by reference in such registration statement or
prospectus, and such other documents, as such seller may reasonably request in
order to facilitate the sale or disposition of such Registrable Securities;
(iv) use its best efforts to register or qualify all Registrable
Securities and other securities covered by such registration statement under
such other securities or "blue sky" laws of such jurisdictions as each seller
shall reasonably request, and do any and all other acts and things that may be
necessary to enable such seller to consummate the disposition in such
jurisdictions of its Registrable Securities covered by such registration
statement, except that the Company shall not for any such purpose be required
to qualify generally to do business as a foreign corporation in any
jurisdiction wherein it is not so qualified, or to subject itself to taxation
in respect of doing business in any such jurisdiction, or to consent to general
service of process in any such jurisdiction;
(v) in the case of a registration pursuant to Section 2.1 that
is an underwritten offering, furnish to each seller of Registrable Securities a
signed counterpart, addressed to such seller, of (l) an opinion of counsel for
the Company, dated the date of the closing under the underwriting agreement,
in substantially the form delivered pursuant to such underwriting agreement,
and (2) a "cold comfort" letter signed by the independent public accountants
who have issued a report on the Company's financial statements included in such
registration statement, in substantially the form delivered pursuant to such
underwritting agreement.
(vi) immediately notify each seller of Registrable Securities
covered by such registration statement at any time when a prospectus relating
thereto is required to be delivered under the 1933 Act, of the happening of any
event as a result of which the prospectus included in such registration
statement, as then in
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effect, includes an untrue statement of a material fact or omits to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances then existing or if it
is necessary to amend or supplement such prospectus to comply with law, and at
the request of any such seller prepare and furnish to such seller 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 or 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 to make the statements therein not misleading
in the light of the circumstances then existing and shall otherwise comply in
all material respects with law and so that such prospectus, as amended or
supplemented, will comply with law;
(vii) otherwise use its best efforts to comply with all
applicable rules and regulations of the Commission, and make available to its
security Holders, as soon as reasonably practicable, an earnings statement
covering the period of at least 12 months, beginning with the first month of
the first fiscal quarter after the effective date of such registration
statement, which earnings statement shall satisfy the provisions of Section
11(a) of the 1933 Act;
(viii) use its best efforts to list such securities on each
securities exchange on which shares of Common Stock are then listed, if such
securities are not already so listed and if such listing is then permitted
under the rules of such exchange, and provide a transfer agent and registrar
for such Registrable Securities not later than the effective date of such
registration statement; and
(ix) issue to any underwriter to which any Holder of Registrable
Securities may sell such Registrable Securities in connection with any such
registration (and to any direct or indirect
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transferee of any such underwriter) certificates evidencing shares of Common
Stock without any restrictive legends.
The Company may require each seller of Registrable Securities as to
which any registration is being effected to furnish the Company with such
information regarding such seller and the distribution of such securities as
the Company may from time to time reasonably request in writing and as shall be
required by law or by the Commission in connection therewith.
(b) If requested by the underwriters for any underwritten offering of
Registrable Securities on behalf of a Holder or Holders of Registrable
Securities, the Company will enter into an underwriting agreement with such
underwriters for such offering, such agreement to contain such representations
and warranties by the Company and such other terms and conditions as are
customarily contained in underwriting agreements with respect to secondary
distributions, including, without limitation, indemnities to the effect and to
the extent provided in Section 2.5.
(c) If any registration pursuant to Section 2.1 shall be in connection
with an underwritten public offering, each Holder of Registrable Securities
agrees (whether or not such Holder has registered Shares in such offering), if
so required by the managing underwriters, not to effect any public sale or
distribution (including any sale pursuant to Rule 144) of Registrable
Securities (other than as part of such underwritten public offering) within 7
days prior to the effective date of the registration statement with respect to
such underwritten public offering or 120 days after the effective date of such
registration statement (which 120-day period shall be extended to 180 days at
the request of the managing underwriter selected by the Company).
(d) The Company agrees, if so required by the managing underwriters in
connection with an underwritten offering of Registrable Securities pursuant to
Section 2.1, not to effect any public sale or distribution of any of its equity
securities or securities convertible into or exchangeable or exercisable for
any of
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such equity securities during the 7 days prior to and the 120 days after the
effective date of any registration statement with respect to such underwritten
public offering, except as part of such underwritten offering or except in
connection with a stock option plan, stock purchase plan, savings or similar
plan, or an acquisition, merger or exchange offer.
(e) It is understood that in any underwritten offering of Registrable
Securities in addition to the shares (the "initial shares") the underwriters
have committed to purchase, the underwriting agreement may grant the
underwriters an option to purchase a number of additional shares (the "option
shares") equal to up to 15% of the initial shares (or such other maximum amount
as the National Association of Securities Dealers, Inc. may then permit),
solely to cover over-allotments. Shares proposed to be sold by the Company,
any other holder of Shares included in such offering and the Holders shall
(subject to any preferential rights as provided in Section 2.1(a)(iii) hereof)
be allocated between initial shares and option shares as agreed or, in the
absence of agreement, pro rata in relation to the number of initial shares sold
by each.
SECTION 2.4. Preparation; Reasonable Investigation.
In connection with the preparation and filing of each registration
statement registering Registrable Securities under the 1933 Act, the Company
will give the Holders of Registrable Securities on whose behalf such
Registrable Securities are to be so registered and their underwriters, if any,
and their respective counsel and accountants, the opportunity to participate in
the preparation of such registration statement, each prospectus included
therein or filed with the Commission, and each amendment thereof or supplement
thereto, and will give each of them such access to its books and records and
such opportunities to discuss the business of the Company with its officers and
the independent public accountants who have issued a report on its financial
statements as shall be necessary, in the opinion of such Holders and such
underwriters or their respective counsel, to conduct a reasonable investigation
within the meaning of
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the 1933 Act. Without limiting the foregoing, each registration statement,
prospectus, amendment, supplement or any other document filed with respect to a
registration under this Agreement shall be subject to review and reasonable
approval by the holders registering Registrable Securities in such registration
and by their counsel.
SECTION 2.5. Indemnification.
(a) In the event of any registration of any equity securities of the
Company under the 1933 Act, the Company will, and hereby does, indemnify and
hold harmless, in the case of any registration statement filed pursuant to
Section 2.1 or 2.2, the seller of any Registrable Securities covered by such
registration statement, its directors and officers, each other Person who
participates as an underwriter in the offering or sale of such securities, each
officer and director of each such underwriter, and each other Person, if any,
who controls such seller or any such underwriter within the meaning of Section
15 of the 1933 Act or Section 20 of the 1934 Act, against any losses, claims,
damages, liabilities and expenses, including legal and other expenses incurred
in investigating and defending any such claim, joint or several, to which such
seller or any such director or officer or participating or controlling Person
may become subject under the 1933 Act or otherwise, insofar as such losses,
claims, damages, liabilities or expenses (or actions or proceedings in respect
thereof) arise out of or are based upon (i) any untrue statement or alleged
untrue statement of any material fact contained in any registration statement
under which such securities were registered under the 1933 Act, any preliminary
prospectus, final prospectus or summary prospectus included therein, or any
amendment or supplement thereto, or any document incorporated by reference
therein, (ii) any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and the Company will reimburse such seller, and each such director,
officer, underwriter and controlling Person for any legal or any other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, liability, action or proceeding or (iii) any
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violation of any rule or regulation promulgated under the 1933 Act or any other
applicable federal or state securities law and relating to any action or
inaction of the Company in connection with such registration; provided,
however, that the Company shall not be liable in any such case to the extent
that any such loss, claim, damage, liability (or action or proceeding in
respect thereof) or expense arises out of or is based upon an untrue statement
or alleged untrue statement or omission or alleged omission made in such
registration statement, any such preliminary prospectus, final prospectus,
summary prospectus, amendment or supplement in reliance upon and in conformity
with written information furnished to the Company for use in the preparation
thereof by such seller or underwriter, as the case may be. Such indemnity
shall remain in full force and effect regardless of any investigation made by
or on behalf of such seller or any such director, officer, underwriter or
controlling Person and shall survive the transfer of such securities by such
seller.
(b) The Company may require, as a condition to including any
Registrable Securities in any registration statement filed pursuant to Section
2.1 or 2.2, that the Company shall have received an undertaking satisfactory to
it from (i) the prospective seller of such securities, to indemnify and hold
harmless (in the same manner and to the same extent as set forth in Section
2.5(a), except that any such prospective seller shall not in any event be
liable to the Company pursuant thereto for an amount in excess of the net
proceeds of sale of such prospective seller's Registrable Securities so to be
sold) the Company, each such underwriter of such securities, each officer and
director of each such underwriter and each other Person, if any, who controls
the Company or any such underwriter within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act, and (ii) each such underwriter of such
securities, to indemnify and hold harmless (in the same manner and to the same
extent as set forth in Section 2.6(a)) the Company, each officer and director
of the Company, each prospective seller, each officer and director of each
prospective seller (and, if such prospective seller is a portfolio or
investment fund, its investment advisors and the directors and officers
thereof) and each other Person, if any, who controls the
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Company or any such prospective seller within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act, with respect to any statement in or
omission from such registration statement, any preliminary prospectus, final
prospectus or summary prospectus included therein, or any amendment or
supplement thereto, if such statement or omission was made in reliance upon and
in conformity with written information furnished by such prospective seller or
such underwriter, as the case may be, to the Company for use in the preparation
of such registration statement, preliminary prospectus, final prospectus,
summary prospectus, amendment or supplement. Such indemnity shall remain in
full force and effect regardless of any investigation made by or on behalf of
the Company or any such director, officer or controlling Person and shall
survive the transfer of such securities by such seller.
(c) Promptly after receipt by an indemnified party of notice of the
commencement of any action or proceeding (including any governmental
investigation) involving a claim referred to in Section 2.5(a) or (b), such
indemnified party will, if a claim in respect thereof is to be made against an
indemnifying party, give written notice to the latter of the commencement of
such action; provided, however, that the failure of any indemnified party to
give notice as provided herein shall not relieve the indemnifying party of its
obligations under the preceding provisions of this Section 2.5, except to the
extent that the indemnifying party is actually prejudiced by such failure to
give notice. In case any such action is brought against an indemnified party,
unless in such indemnified party's reasonable judgment a conflict of interest
between such indemnified and indemnifying parties may exist in respect of such
claim (in which case, the indemnifying party shall not be liable for the fees
and expenses of more than one counsel for all sellers of Registrable
Securities, or more than one counsel for the underwriters in connection with
any one action or separate but similar or related actions), the indemnifying
party will be entitled to participate in and to assume the defense thereof,
jointly with any other indemnifying party similarly notified, to the extent
that it may wish with counsel reasonably satisfactory to such indemnified
party, and
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after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party will not be
liable to such indemnified party for any legal or other expenses subsequently
incurred by the latter in connection with the defense thereof. The
indemnifying party shall not, without the consent of the indemnified party,
settle or compromise any claim or consent to the entry of any judgment which
settlement, compromise or judgment would materially and adversely affect the
indemnified party other than as a result of money damages or other money
payments; provided, that, if the indemnified party shall fail or refuse to
consent to such settlement, compromise or judgment proposed by the indemnifying
party and approved by the person asserting such claim, and a judgment
thereafter shall be entered or a settlement or compromise thereafter shall be
effected on terms less favorable in the aggregate to the indemnified party than
the settlement, compromise or judgment so proposed, the indemnifying party
shall have no liability with respect to money or other damages in excess of
those provided for in the settlement, compromise or judgment so proposed or any
costs or expenses related to such claim arising after the date such settlement,
compromise or judgment was so proposed.
SECTION 2.6. Contribution.
If the indemnification provided for in Section 2.5 is unavailable to the
indemnified party or parties in respect of any losses, claims, damages or
liabilities referred to therein, then each such indemnified party and the
Company shall contribute to the amount of such losses, claims, damages or
liabilities (a) as between the Company and the Holders of Registrable
Securities covered by a registration statement, on the one hand, and the
underwriters, on the other, in such proportion as is appropriate to reflect the
relative benefits received by the Company and such Holders, on the one hand,
and the underwriters, on the other, from the offering of the Registrable
Securities, or if such allocation is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits but also
the relative fault of the Company and such Holders, on the one hand, and of the
underwriters, on the
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other, in connection with the statements or omissions that resulted in such
losses, claims, damages or liabilities, as well as any other relevant equitable
considerations, and (b) as between the Company, on the one hand, and each
Holder of Registrable Securities covered by a registration statement, on the
other, in such proportion as is appropriate to reflect the relative fault of
the Company and of each such Holder in connection with such statements or
omissions, as well as any other relevant equitable considerations. The
relative benefits received by the Company and such Holders, on the one hand,
and the underwriters, on the other, shall be deemed to be in the same
proportion as the total proceeds from the offering (net of underwriting
discounts and commissions but before deducting expenses) received by the
Company and such Holders bear to the total underwriting discounts and
commissions received by the underwriters. The relative fault of the Company
and such Holders, on the one hand, and of the underwriters, on the other, shall
be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the Company and
such Holders or by the underwriters. The relative fault of the Company, on the
one hand, and of each such Holder, on the other, shall be determined by
reference to, among other things, whether the untrue or alleged untrue
statement of a material fact relates to information supplied by such party, and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission.
The Company and the Holders of Registrable Securities agree that it
would not be just and equitable if contribution pursuant to this Section 2.6
were determined by pro rata allocation (even if the underwriters were treated
as one entity for such purpose) or by any other method of allocation that does
not take account of the equitable considerations referred to in the next
preceding paragraph. The amount paid or payable by an indemnified party as a
result of the losses, claims, damages or liabilities referred to in the next
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably
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incurred by such indemnified party in connection with investigating or
defending any such action or claim. Notwithstanding the provisions of this
Section 2.6, 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 that such underwriter has otherwise
paid by reason of such untrue or alleged untrue statement or omission or
alleged omission, and no Holder of Registrable Securities shall be required to
contribute any amount in excess of the amount by which the total price at which
the Registrable Securities of such Holder were offered to the public exceeds
the amount of any damages that such Holder has otherwise paid by reason of such
untrue or alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the ▇▇▇▇ ▇▇▇) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. Each Holder's obligation to
contribute pursuant to this Section 2.6 is several in the proportion that the
proceeds of the offering received by such Holder bears to the total proceeds of
the offering received by all Holders and not joint.
SECTION 2.7. Nominees of Beneficial Owners.
In the event that any Registrable Securities are held by a nominee for
the beneficial owner thereof, the beneficial owner thereof may, at its
election, be treated as the Holder of such Registrable Securities for purposes
of any request or other action by any Holder or Holders of Registrable
Securities pursuant to this Agreement or any determination of any number or
percentage of shares of Registrable Securities held by any Holder or Holders of
Registrable Securities contemplated by this Agreement. If the beneficial owner
of any Registrable Securities so elects, the Company may require assurances
reasonably satisfactory to it of such owner's beneficial ownership of such
Registrable Securities.
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ARTICLE III
Miscellaneous
SECTION 3.1. Termination. This Agreement shall terminate on the fifth
anniversary of the execution and delivery hereof.
SECTION 3.2. Representations. Each of the parties hereto represents
that this Agreement has been duly authorized, executed and delivered by it and
constitutes its legal, valid and binding obligation, enforceable against it in
accordance with its terms.
SECTION 3.3. Certain Remedies. Without intending to limit the remedies
available to any of the parties hereto, each of the parties hereto agrees that
damages at law will be an insufficient remedy in the event such party violates
the terms hereof and each of the parties hereto further agrees that each of the
other parties hereto may apply for and have injunctive or other equitable
relief in any court of competent jurisdiction to restrain the breach or
threatened breach of, or otherwise specifically to enforce, any of such party's
agreements set forth herein.
SECTION 3.4. Amendments and Waivers. Any term of this Agreement may be
amended and the observance of any such term may be waived (either generally or
in a particular instance and either retroactively or prospectively) only with
the written consent of the Company and a majority in interest of the holders of
the Registrable Securities. Each Holder shall be bound by any amendment or
waiver authorized by this Section 3.4, whether or not such Holder shall have
consented thereto.
SECTION 3.5. Notices. All notices and other communications provided
for herein shall be in writing and shall be delivered by telecopy, by hand or
sent by certified or registered mail, return receipt requested, postage
prepaid, addressed, if to any Holder, to such Holder at such address as such
Holder shall have specified in writing to the party giving any such notice or
sending any such
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communication), and, if to the Company, to Multimedia Games, Inc., ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Vice President-Finance, (or to
such other address as the Company shall have specified in writing to the party
giving any such notice or sending any such communication). All such notices
shall be conclusively deemed to be received and shall be effective, (i) if sent
by hand delivery, upon receipt, (ii) if sent by telecopy, upon dispatch
thereof, or (iii) if sent by registered or certified mail, on the third day
after the day on which such notice is mailed.
SECTION 3.6. Benefit; Successors and Assigns. Except as otherwise
provided herein, this Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective successors and permitted
assigns; provided, however, that this Agreement shall not inure to the benefit
of any Permitted Transferee unless such Permitted Transferee shall have
executed and delivered to the Company an executed counterpart of this Agreement
and shall have agreed to be bound hereunder in the same manner and to the same
extent as ▇▇▇▇▇ is bound hereunder. ▇▇▇▇▇ may not assign any of its rights
hereunder to any Person other than a Permitted Transferee that has complied
with the requirements of the preceding sentence in all respects. Nothing in
this Agreement either express or implied is intended to confer on any person
other than the parties hereto and their respective successors and permitted
assigns, any rights, remedies or obligations under or by reason of this
Agreement.
SECTION 3.7 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 be entitled to
recover reasonable attorneys' fees and expenses in addition to any other
available remedy.
SECTION 3.8. Miscellaneous. This Agreement sets forth the entire
agreement and understanding among the parties hereto, and supersedes all prior
agreements and understandings, relating to the subject matter hereof. All
representations and warranties contained herein shall survive the execution and
delivery of this Agreement,
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regardless of any investigation made by any party hereto or on such party's
behalf. This Agreement shall be construed and enforced in accordance with and
governed by the law of the State of Oklahoma without regard to the conflict of
laws provisions thereof. The headings in this Agreement are for purposes of
reference only and shall not limit or otherwise affect the meaning hereof.
This Agreement may be executed in any number of counterparts, each of which
shall be deemed to be an original, but all of which together shall constitute
one instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized signatories thereunto duly
authorized as of the day and year first above written.
MULTIMEDIA GAMES, INC.
By:
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▇▇▇▇▇ PAY-PER-VIEW INC.
By:
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