EXHIBIT 4(a)
EXECUTION COPY
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REGISTRATION AND PREEMPTIVE RIGHTS AGREEMENT
THIS REGISTRATION AND PREEMPTIVE RIGHTS AGREEMENT (this "Agreement"), dated
as of June 17, 1997, is entered into among Sky Games International Ltd., a
Bermuda exempted company (the "Company"), and ▇▇▇▇▇▇'▇ Interactive Investment
Company, a Nevada corporation ("HIIC").
R E C I T A L S:
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WHEREAS, pursuant to a Plan and Agreement of Merger and Amalgamation dated
as of May 13, 1997 (the "Amalgamation Agreement") and the conversion of amounts
owed under a Funding Agreement dated as of May 13, 1997 (the "Funding
Agreement"), HIIC has acquired from the Company shares of Company Common Stock
(as defined in Section 1(e)) and may acquire certain additional shares of
Company Common Stock; and
WHEREAS, the Company and HIIC desire to provide a mechanism for the
registration of the Company Common Stock on the terms and conditions set forth
herein;
A G R E E M E N T:
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NOW, THEREFORE, in consideration of the premises and the representations,
warranties and agreements contained herein and intending to be legally bound
hereby, the parties hereto agree as follows:
SECTION 1. Definitions. For purposes of this Agreement, the following
terms shall have the following meanings:
(a) the term "Additional Piggyback Sellers" shall have the meaning
assigned thereto in Section 3(b) of the Agreement;
(b) the term "Affiliate" means any Person which Controls a party to
this Agreement, which that party Controls or which is under common Control with
that party;
(c) the term "Amalgamation Shares" means the shares of Company Common
Stock issuable to HIIC and/or its Affiliates under the Amalgamation Agreement;
(d) the term "B/EA" shall have the meaning assigned thereto in
Section 8(d) of this Agreement;
(e) the term "Commission" shall have the meaning assigned thereto in
Section 2(c) of this Agreement;
(f) the term "Company Common Stock" means the common stock, par value
US$.01 per share, of the Company;
(g) the term "Control" means the power, direct or indirect, to direct
or cause the direction of the management and policies of a Person through voting
securities, contract or otherwise;
(h) the term "Conversion Shares" means the shares of Company Common
Stock issuable upon conversion of indebtedness under the Funding Agreement;
(i) the term "Demand" shall have the meaning assigned thereto in
Section 2(a) of this Agreement;
(j) the term "Demand Registration" shall have the meaning assigned
thereto in Section 2(a) of this Agreement;
(k) the term "Demanding Sellers" shall have the meaning assigned
thereto in Section 2(e) of this Agreement;
(l) the term "Disqualifying Action" means (1) any change in or
conduct of the Company's or any of its Subsidiaries' business or proposed
business (including, but not limited to, the terms of repurchase or redemption
of any debt from any holder thereof if such holder would be a Disqualified
Holder (if such Person held shares of the Company)) that would constitute or
result in, or (2) any action or inaction of or by the Company or any of its
Subsidiaries' which HIIC or the Affiliates of HIIC determine in their reasonable
business judgment would result in, in the case of either (1) or (2), any actual
or threatened disciplinary action or any actual or threatened regulatory
sanctions with respect to or affecting the loss of, or the inability to obtain
or failure to secure the reinstatement of, any registration, certification,
license or other regulatory approval held by HIIC or the Affiliates of HIIC in
any jurisdiction in which HIIC or any of the Affiliates of HIIC are actively
conducting business or as to which any of them has received final approval or
authorization to proceed, even on a preliminary basis, from its respective board
of directors (or any appropriate committee established by such board of
directors) of plans to conduct business; provided, the reasonable business
judgment to be exercised by HIIC and its Affiliates in determining whether a
Disqualifying Action has occurred or would result need not involve any
consideration of the effect of the Disqualifying Action on the Company, alone or
together with any of its Subsidiaries, because the purpose of the protections
afforded by the determination of a Disqualifying Action is for the benefit of
the separate businesses and investments of HIIC and its Affiliates;
(m) the term "Disqualified Holder" means any holder of shares of the
Company of any class (or classes) or series (1) who, either individually or when
taken together with any other holders of shares of the Company of any class (or
classes) or series is or would reasonably be expected to be determined by any
gaming regulatory agency to be unsuitable, or has or would reasonably be
expected to have an application for a gaming license, permit or other necessary
regulatory approval rejected, or has or would reasonably be expected to have a
previously issued gaming license, permit or other necessary regulatory approval
rescinded, suspended, revoked, not renewed or not reinstated, as the case may
be, whether or not any of the foregoing is or would reasonably be expected to be
final and nonappealable or (2) whose holding of such shares, either individually
or when taken together with the holding of shares of the Company of any class
(or classes) or series by any other holder could reasonably be expected to cause
the Company (or any other company engaged in the gaming business in any
jurisdiction if such holder of shares were a shareholder of that company) to be
denied a licence, permit or other necessary regulatory approval to engage in any
aspect of the gaming business or the serving or sale of alcoholic beverages in
connection with the operation of a gaming business;
(n) the term "fully diluted basis" means, at any time, that number of
(A) shares of Company Common Stock equal to the sum, without duplication, of (i)
the total number of shares of Company Common Stock then outstanding (other than
3,525,000 shares of shares of Company Common Stock held in escrow pursuant to
that Escrow Agreement dated May 27, 1992, as amended, among Montreal Trust
Company of Canada, the Company and certain shareholders), plus (ii) the total
number of shares of Company Common Stock into which all then outstanding
Preference Shares (as defined in the Bye-Laws) of the Company or any other
shares of the Company are then convertible directly or indirectly, provided that
shares of Company Common Stock issuable upon conversion of Class A Preference
Shares of the Company shall not be included
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until such conversion occurs, plus (iii) the total number of shares of Company
Common Stock then issuable directly or indirectly upon exercise of all then
outstanding options, warrants (including the commitment for 650,000 shares of
Company Common Stock exercisable at $1 per share of Company Common Stock issued
to HIIC and exercisable at the option of the Company), unexercised stock
subscriptions, convertible debentures and other convertible securities, plus (B)
Other Voting Shares equal to the sum, without duplication (including without
duplication of any shares of Company Common Stock) of (i) the total number of
Other Voting Shares then outstanding, plus (ii) the total number of Other Voting
Shares into which all then outstanding preference shares of the Company or any
other shares of the Company are then convertible directly or indirectly, plus
(iii) the total number of Other Voting Shares then issuable directly or
indirectly upon exercise of all then outstanding options, warrants, unexercised
stock subscriptions, convertible debentures and other convertible securities;
(o) the term "HIIC Piggyback Seller" shall have the meaning assigned
thereto in Section 3(b) of this Agreement;
(p) the term "Internal Expenses" shall have the meaning assigned
thereto in Section 7 of this Agreement;
(q) the term "Maximum Demand Number" shall have the meaning assigned
thereto in Section 2(e) of this Agreement;
(r) the term "Maximum Piggyback Number" shall have the meaning
assigned thereto in Section 3(b) of this Agreement;
(s) the term "Other Demand Rights" shall have the meaning assigned
thereto in Section 3(b) of this Agreement;
(t) the term "Other Demanding Sellers" shall have the meaning
assigned thereto in Section 3(b) of this Agreement;
(u) the term "Other Voting Shares" means shares of the Company having
the right to vote for election of directors other than Company Common Stock or
securities convertible into Company Common Stock;
(v) the term "Person" means any individual, partnership, limited
partnership, corporation, limited liability company, association, joint stock
company, trust, joint venture or unincorporated organization, or the United
States of America, Bermuda or any other nation, any state or other political
subdivision thereof, or any entity exercising executive, legislative, judicial,
regulatory or administrative functions of government or other entity, and shall
include any successor (by merger or otherwise) of such entity;
(w) the term "Piggyback Notice" shall have the meaning assigned
thereto in Section 3(a) of this Agreement;
(x) the term "Piggyback Registration" shall have the meaning assigned
thereto in Section 3(a) of this Agreement;
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(y) the term "Primary Offering" shall have the meaning assigned
thereto in Section 3(b) of this Agreement;
(z) the term "Registrable Securities" means (i) the Amalgamation
Shares, the Conversion Shares, the Warrant Shares and shares received pursuant
to Section 8 of this Agreement and (ii) securities issued or issuable with
respect to the Amalgamation Shares, the Conversion Shares and the Warrant Shares
(or other Registrable Securities by virtue of this clause (ii)) by way of a
dividend, other distribution, stock split, combination of shares,
recapitalization, reorganization, reclassification, merger, consolidation,
compulsory share exchange or any transaction or series of related transactions
in which shares of Company Common Stock or Registrable Securities are changed
into, converted into or exchanged for other securities; provided, as to any
particular Registrable Securities, such securities shall cease to be Registrable
Securities when (i) a registration statement registering such securities under
the Securities Act has been declared effective and such securities have been
sold or otherwise transferred by the holder thereof pursuant to such
registration statement, (ii) such securities are sold in compliance with Rule
144 or (iii) such securities are transferred to any Person which is not an
Affiliate of HIIC;
(aa) the term "Registration Expenses" shall have the meaning assigned
thereto in Section 7 of this Agreement;
(bb) the term "Rule 144" means Rule 144 (or any successor provisions)
promulgated under the Securities Act;
(cc) the term "Securities Act" shall have the meaning assigned thereto
in Section 2(a) of this Agreement;
(dd) the term "Subsidiary" means any corporation, partnership, joint
venture or other legal entity of which the Company or HIIC, as the case may be
(either alone or through or together with any other of its Subsidiaries), owns,
directly or indirectly, fifty percent (50%) or more of the capital stock or
other equity interests the holders of which are generally entitled to vote with
respect to the election of directors or other managing authority and/or other
matters to be voted on in such corporation, partnership, joint venture or other
legal entity;
(ee) the term "Trading Price" means the average of the mean of the bid
and ask prices of the Company Common Stock on a single trading day as reported
on the NASDAQ SmallCap Market or any other securities exchange or over-the-
counter market on which or through which Company Common Stock may then be listed
or quoted;
(ff) the term "Voting Shares" means Company Common Stock having the
right to vote for election of or to appoint Directors and any shares
convertible, directly or indirectly, into such Company Common Stock and Other
Voting Shares and any shares convertible directly or indirectly into Other
Voting Shares; and
(gg) the term "Warrant Shares"means the shares of Company Common Stock
issuable to HIIC and/or its Affiliates under the Warrant Agreement dated May 13,
1997 and the exercise by the Company of the equity purchase commitment by HIIC
in the Funding Agreement.
SECTION 2. Demand Registrations.
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(a) Requests for Registration. Subject to the limitations set forth
in paragraph (d) below, at any time and from time to time after the date hereof
HIIC and its Affiliates shall be entitled to make written requests of the
Company (each such request being a "Demand") for registration under the
Securities Act of 1933, as amended (the "Securities Act"), of all or part of the
Registrable Securities (a "Demand Registration"). Such Demand shall specify the
aggregate number and kind of Registrable Securities requested to be registered.
(b) Number of Demand Registrations. HIIC and its Affiliates shall be
entitled to two (2) Demand Registrations.
(c) Satisfaction of Obligations. Subject to Section 4, a
registration shall not be treated as a Demand Registration until (i) the
applicable registration statement under the Securities Act has been filed with
the Securities and Exchange Commission (the "Commission") with respect to such
Demand Registration, (ii) such registration statement shall have been maintained
continuously effective for a period of at least thirty (30) days (ninety (90)
days in the event of a best efforts underwriting pursuant to Section 2(d)(ii))
or such shorter period as when all Registrable Securities included therein have
been sold thereunder in accordance with the manner of distribution set forth in
such registration statement and (iii) the number or amount of Registrable
Securities sold pursuant to such registration shall equal or exceed eighty
percent (80%) of the Registrable Securities as to which HIIC and/or its
Affiliates requested registration.
(d) Restrictions on Demand Registrations. The Company shall not be
obligated to file any Demand Registration:
(i) prior to June 30, 1998 for an aggregate number of
Registrable Securities in excess of one million (1,000,000) shares (as
adjusted for stock splits, dividends, reclassifications, etc.), unless
the Company receives the written opinion of its investment bank at the
time that the Trading Price of the Company Common Stock would not fall
by more than twenty-five percent (25%) for more than fifteen (15)
consecutive trading days as a result of such sale, in which case, a
Demand could be brought for such aggregate number of Registrable
Shares as would not, in such investment bank's opinion, cause the
Trading Price to fall below such level;
(ii) unless the method of distribution is pursuant to a so-
called "firm commitment" underwritten registration to be managed and
administered by an underwriter selected by the Board of Directors of
the Company; provided, however, in the event the Company cannot reach
an agreement with an underwriter to underwrite a registration on a
firm commitment basis, in such circumstance only, the method of
distribution may be a "best efforts" underwritten registration to be
managed and administered by an underwriter selected by the Board of
Directors of the Company; or
(iii) within one hundred eighty (180) days after the effective
date of a so-called "firm commitment" underwritten registration in
which all holders of Registrable Securities were given so-called
"piggyback" rights pursuant to Section 3 hereof, unless the number or
amount of Registrable Securities sold pursuant to such registration is
less than eighty percent (80%) of the Registrable Securities as to
which HIIC and/or its Affiliates requested registration.
In addition, the Company shall be entitled to postpone (upon written notice to
HIIC) the filing or the effectiveness of a registration statement in respect of
a Demand for up to one hundred twenty (120) days (but
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no more than once in any consecutive eight (8) months) after the date of receipt
of a Demand Notice if the Company's Board of Directors determines that effecting
the Demand Registration in respect of such Demand would (i) have a material
adverse effect on any proposal or plan by the Company to engage in any public
debt or equity financing, acquisition or disposition of assets or any merger,
consolidation, tender offer or other similar transaction or (ii) require
disclosure of a previously undisclosed material development involving the
Company which disclosure would have a material adverse effect on the Company or
its prospects. In the event the Company receives a request prior to June 30,
1998 to file a Demand Registration for an aggregate number of Registrable
Securities in excess of one million (1,000,000) shares (as adjusted for stock
splits, dividends, reclassifications, etc.), the Company shall request its
investment bank to conduct the analysis set forth in paragraph (d)(i) above, and
in the event such investment bank does not issue within fifteen (15) business
days after the date of receipt of a Demand Notice by the Company its written
opinion that the sale would cause the Trading Price of the Company Common Stock
to fall by more than twenty-five percent (25%) for more than fifteen (15)
consecutive trading days, then it shall be presumed for purposes of this
paragraph (d) that such investment bank was of the opinion that the sale would
not cause the Trading Price of the Company Common Stock to fall by more than
twenty-five percent (25%) for more than fifteen (15) consecutive trading days
(e) Participation in Demand Registrations. If, in connection with a
Demand Registration, the managing underwriter advises the Company and the
holders of the Registrable Securities sought to be included in such Demand
Registration in writing that, in its opinion, the marketability of the
Registrable Securities sought to be sold pursuant thereto would be adversely
affected by the inclusion of both the Registrable Securities and, if authorized
pursuant to this paragraph, other securities of the Company, in each case,
sought to be registered in connection with such Demand Registration, then the
Company shall include in the registration statement applicable to such Demand
Registration only such securities as the Company and the holders of Registrable
Securities sought to be registered therein ("Demanding Sellers") are advised in
writing by such underwriter can be sold without such an effect (the "Maximum
Demand Number"), as follows and in the following order of priority:
(i) first, the number of Registrable Securities sought to be
registered by each Demanding Seller, pro rata in proportion to the
number of Registrable Securities sought to be registered by all
Demanding Sellers; and
(ii) second, if the number of Registrable Securities to be
included under clause (i) next above is less than the Maximum Demand
Number, the number of securities sought to be included by each other
seller, pro rata in proportion to the number of securities sought to
be sold by all such other sellers, which in the aggregate, when added
to the number of securities to be included pursuant to clause (i) next
above, equals the Maximum Demand Number.
SECTION 3. Piggyback Registrations.
(a) Right to Piggyback. At any time from and after the date hereof
for so long as HIIC and its Affiliates collectively own five percent (5%) or
more of the outstanding Voting Shares of the Company, on a fully diluted basis,
whenever the Company proposes to register any of its equity securities under the
Securities Act (other than pursuant to a Demand Registration or on a Form S-4 or
S-8 (or any successor form)) (a "Piggyback Registration"), the Company shall
give all holders of Registrable Securities prompt written notice thereof (but
not less than thirty (30) days prior to the filing by the Company with the
Commission of any registration statement with respect thereto). Such notice (a
"Piggyback Notice") shall specify, at a minimum, to the extent known, the number
and kind of securities proposed to be registered, the proposed date
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of filing of such registration statement with the Commission, the proposed means
of distribution, the proposed managing underwriter or underwriters (if any and
if known), and a good faith estimate by the Company of the proposed minimum
offering price of such securities, as such price is proposed to appear on the
facing page of such registration statement. Upon the written request of a holder
of Registrable Securities given within ten (10) business days of such holder's
receipt of the Piggyback Notice (which written request shall specify the number
and kind of Registrable Securities intended to be disposed of by such holder and
the intended method of distribution thereof), the Company shall include in such
registration all Registrable Securities with respect to which the Company has
received such written requests for inclusion; provided that such holder sells
such Registrable Securities only in accordance with the method of distribution
selected by the Company or in accordance with any other method of distribution
which may be approved by the managing underwriter of such offering.
(b) Priority on Piggyback Registrations. If, in connection with a
Piggyback Registration, any managing underwriter (or, if such Piggyback
Registration is not an underwritten offering, a nationally recognized
independent underwriter approved by the Board of Directors of the Company)
advises the Company and the holders of the Registrable Securities to be included
in such Piggyback Registration, that, in its opinion, the inclusion of all the
securities sought to be included in such Piggyback Registration by the Company,
any Persons who have sought to have shares registered thereunder pursuant to
rights to demand (other than pursuant to so-called "piggyback" or other
incidental or participation registration rights) such registration (such demand
rights being "Other Demand Rights" and such Persons being "Other Demanding
Sellers"), any holders of Registrable Securities seeking to sell such securities
in such Piggyback Registration ("HIIC Piggyback Sellers") and any other proposed
sellers ("Additional Piggyback Sellers"), in each case, if any, would adversely
affect the marketability of the securities sought to be sold pursuant thereto,
then the Company shall include in the registration statement applicable to such
Piggyback Registration only such securities as the Company and the HIIC
Piggyback Sellers are so advised by such underwriter can be sold without such an
effect, which may exclude any class of Registrable Securities if, in the
judgment of such underwriter, the inclusion of such Registrable Securities would
adversely affect the marketability of the securities sought to be sold pursuant
thereto (the "Maximum Piggyback Number"), as follows and in the following order
of priority:
(i) if the Piggyback Registration is an offering on behalf of
the Company and not any Person exercising Other Demand Rights (whether
or not other Persons seek to include securities therein pursuant to
so-called "piggyback" or other incidental or participatory
registration rights) (a "Primary Offering"), then (A) first, such
number of securities to be sold by the Company as the Company shall
have determined, (B) second, if the number of securities to be
included under clause (A) next above is less than the Maximum
Piggyback Number, the number of Registrable Securities of each HIIC
Piggyback Seller, pro rata in proportion to the number of securities
sought to be registered by all HIIC Piggyback Sellers, which in the
aggregate, when added to the number of securities to be registered
under clause (A) next above, equals the Maximum Piggyback Number and
(C) third, if the number of securities to be included under clauses
(A) and (B) next above is less than the Maximum Piggyback Number, the
number of securities of each Additional Piggyback Seller, pro rata in
proportion to the number of securities sought to be registered by all
such Additional Piggyback Sellers, which in the aggregate, when added
to the number of securities to be registered under clauses (A) and (B)
next above, equals the Maximum Piggyback Number;
(ii) if the Piggyback Registration is an offering other than
pursuant to a Primary Offering, then (A) first, such number of
securities sought to be registered by each Other
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Demanding Seller, pro rata in proportion to the number of securities
sought to be registered by all such Other Demanding Sellers, (B)
second, if the number of securities included under clause (A) next
above is less than the Maximum Piggyback Number, the number of
securities sought to be registered by each HIIC Piggyback Seller, pro
rata in proportion to the number of securities sought to be registered
by all HIIC Piggyback Sellers, which in the aggregate, when added to
the number of securities to be registered pursuant to clause (A) next
above, equals the Maximum Piggyback Number and (C) third, if the
number of securities to be included under clauses (A) and (B) next
above is less than the Maximum Piggyback Number, the number of
securities of each Additional Piggyback Seller, pro rata in proportion
to the number of securities sought to be included by all such
Additional Piggyback Sellers, which in the aggregate, when added to
the number of securities to be registered under clauses (A) and (B)
next above, equals the Maximum Piggyback Number.
(c) Withdrawal by the Company. If, at any time after giving written
notice of its intention to register any of its securities as set forth in
Section 3(a) and prior to the time the registration statement filed in
connection with such registration is declared effective, 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 and thereupon shall be relieved of its obligation to
register any Registrable Securities in connection with such particular withdrawn
or abandoned registration.
SECTION 4. Withdrawal Rights. Any holder of Registrable Securities having
notified or directed the Company to include any or all of its Registrable
Securities in a registration statement under the Securities Act (whether
pursuant to Section 2 or 3 hereof) shall have the right to withdraw any such
notice or direction with respect to any or all of the Registrable Securities
designated for registration thereby by giving written notice to such effect to
the Company prior to the effective date of such registration statement. In the
event of any such withdrawal, the Company shall not include such Registrable
Securities in the applicable registration and such Registrable Securities shall
continue to be Registrable Securities hereunder. No such withdrawal shall affect
the obligations of the Company with respect to the Registrable Securities not so
withdrawn. Any registration statement not filed or withdrawn in accordance with
an election by the Company or the holders of Registrable Securities shall not be
counted as a Demand for purposes of Section 2 hereof.
SECTION 5. Holdback Agreements. Each holder of Registrable Securities
agrees, at all times the holders of Registrable Securities have piggyback rights
pursuant to Section 3 hereof, not to effect any public sale or distribution
(including sales pursuant to Rule 144) of equity securities of the Company, or
any securities convertible into or exchangeable or exercisable for such
securities, during (a) the seven (7) days immediately prior to the effective
date of any Demand Registration or Piggyback Registration and (b) the one
hundred twenty (120)-day period beginning on the effective date of any (i)
Primary Offering in which holders of Registrable Securities had piggyback rights
pursuant to Section 3 hereof (provided, no holder of Registrable Securities
shall be subject to the restrictions pursuant to this clause (i) for any more
than one hundred twenty (120) days in any one hundred eighty (180) day period
and whether or not, in the case of a Piggyback Registration, any Registrable
Securities are included therein), (ii) Demand Registration or (iii) any
Piggyback Registration (other than a Primary Offering), unless the number or
amount of Registrable Securities sold pursuant to such Piggyback Registration is
less than eighty percent (80%) of the Registrable Securities as to which HIIC
and/or its Affiliates requested registration (in each case, except as part of
such registration and, or, in each case of clauses (i), (ii) and (iii), if
later, the date of any underwriting agreement with respect thereto. The Company
agrees to use it best efforts to cause a provision identical to the foregoing to
be included in all registration rights which it grants in the future.
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SECTION 6. Registration Procedures. Whenever the holders of Registrable
Securities have requested that any Registrable Securities be registered pursuant
to this Agreement (whether pursuant to Section 2 or Section 3 of this
Agreement), the Company shall use its best efforts to effect the registration
and the sale of such Registrable Securities in accordance with the intended
method of disposition thereof and, in connection therewith, the Company shall as
expeditiously as possible:
(a) prepare and file with the Commission a registration statement
with respect to such Registrable Securities, on any form for which the Company
then qualifies and which counsel for the Company shall deem appropriate for the
sale of such Registrable Securities in accordance with the intended method of
distribution thereof, and use its best efforts to cause such registration
statement to become effective;
(b) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in connection
therewith as may be necessary to keep such registration statement effective for
a continuous period of not less than thirty (30) days (ninety (90) days in the
event of a best efforts underwriting pursuant to Section 2(d)(ii)) (or, if
earlier, until all Registrable Securities included in such registration
statement have been sold thereunder in accordance with the manner of
distribution set forth therein) and comply with the provisions of the Securities
Act with respect to the disposition of all securities covered by such
registration statement during such period in accordance with the intended
methods of disposition by the sellers thereof as set forth in such registration
statement (including, without limitation, by incorporating in a prospectus
supplement or post-effective amendment, at the request of a seller of
Registrable Securities, the terms of the sale of such Registrable Securities);
(c) before filing with the Commission any such registration statement
or prospectus or any amendments or supplements thereto, the Company shall
furnish to counsel selected by HIIC and/or its Affiliates drafts of all such
documents proposed to be filed and provide such counsel with a reasonable
opportunity for review thereof, such review to be conducted with reasonable
promptness;
(d) promptly (i) notify the selling holders of Registrable Securities
of each of (x) the filing and effectiveness of the registration statement and
prospectus and any amendments or supplements thereto, (y) the receipt of any
comments from the Commission or any state securities law authorities or any
other governmental authorities with respect to any such registration statement
or prospectus or any amendments or supplements thereto and (z) any oral or
written stop order with respect to such registration, any suspension of the
registration or qualification of the sale of such Registrable Securities in any
jurisdiction or any initiation or threatening of any proceedings with respect to
the foregoing and (ii) use its best efforts to obtain the withdrawal of any
order suspending the registration or qualification (or the effectiveness
thereof) or suspending or preventing the use of any related prospectus in any
jurisdiction with respect thereto;
(e) furnish to each seller of Registrable Securities and counsel for
the foregoing, a conformed copy of such registration statement and each
amendment and supplement thereto (in each case, including all exhibits thereto
and documents incorporated by reference therein) and such additional number of
copies of such registration statement, each amendment and supplement thereto,
the prospectus (including each preliminary prospectus) included in such
registration statement and prospectus supplements and all exhibits thereto and
documents incorporated by reference therein and such other documents as such
seller or counsel may reasonably request in order to facilitate the disposition
of the Registrable Securities owned by such seller, the use of each of which
thereby and therefor to which the Company hereby consents;
(f) use its best efforts to register or qualify such Registrable
Securities under such securities or "blue sky" laws of such jurisdictions as any
seller reasonably requests and do any and all other
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acts and things which may be reasonably necessary or advisable to enable such
seller to consummate the disposition in such jurisdictions of the Registrable
Securities owned by such seller and keep such registration or qualification in
effect for so long as the registration statement remains effective under the
Securities Act (provided that the Company shall not be required to (i) qualify
generally to do business in any jurisdiction where it would not otherwise be
required to qualify but for this paragraph or (ii) subject itself to taxation in
any such jurisdiction where it would not otherwise be subject to taxation but
for this paragraph);
(g) notify each seller of such Registrable Securities, at any time
when a prospectus relating thereto is required to be delivered under the
Securities Act, upon the discovery that, or of the happening of any event as a
result of which, the registration statement covering such Registrable
Securities, as then in effect, contains an untrue statement of a material fact
or omits to state any material fact required to be stated therein or any fact
necessary to make the statements therein not misleading, and promptly prepare
and furnish to each such seller a supplement or amendment to the prospectus
contained in such registration statement so that such Registration Statement
shall not, and such prospectus as thereafter delivered to the purchaser of such
Registrable Securities shall not, contain an untrue statement of a material fact
or omit to state any material fact required to be stated therein or any fact
necessary to make the statements therein not misleading;
(h) cause all such Registrable Securities to be listed on each
securities exchange and included in each established over-the-counter market on
which or through which securities of the same class of the Company are then
listed or traded and, if not so listed or traded, to be listed on the National
Association of Securities Dealers Automated Quotation system ("NASDAQ");
(i) provide a transfer agent, registrar and CUSIP number for all of
such Registrable Securities not later than the effective date of such
registration statement;
(j) make available for inspection by any seller of Registrable
Securities and any attorney, accountant or other agent retained by any such
seller, all financial and other records, pertinent corporate documents and
properties of the Company, and cause the Company's officers, directors,
employees, attorneys and independent accountants to supply all information, in
each case reasonably requested by any such sellers, attorneys, accountants or
agents in connection with such registration statement, subject to the right of
the Company to limit access to any such information to the extent that (i) the
Company is restricted from providing such information pursuant to any bona fide
confidentiality agreement to which the Company or any of its Subsidiaries is a
party and (ii) the Company shall have delivered to each seller of the
Registrable Securities a certificate duly executed by the chief executive or
chief financial officer of the Company stating that such information does not
contain any material information which would be required to be disclosed in, or
which would materially affect any information required to be disclosed in, such
registration statement;
(k) use its best efforts to comply with all applicable laws related
to such registration statement and offering and sale of securities and all
applicable rules and regulations of governmental authorities in connection
therewith (including, without limitation, the Securities Act and the Securities
Exchange Act of 1934, as amended (the "Exchange Act")) and the rules and
regulations promulgated by the Commission) and make generally available to its
security holders as soon as practicable (but in any event not later than fifteen
(15) months after the effectiveness of such registration statement) an earnings
statement of the Company and its subsidiaries complying with Section 11(a) of
the Securities Act;
(l) use its best efforts to furnish to each seller of Registrable
Securities a signed counterpart of (i) an opinion of counsel for the Company
(which counsel shall be reasonably acceptable to
10
HIIC and/or its Affiliates) and (ii) a "comfort" letter signed by the
independent public accountants who have certified the Company's financial
statements included or incorporated by reference in such registration statement,
covering such matters with respect to such registration statement and, in the
case of the accountants' comfort letter, with respect to events subsequent to
the date of such financial statements, as are customarily covered in opinions of
issuer's counsel and in accountants' comfort letters delivered to the
underwriters in underwritten public offerings of securities for the account of,
or on behalf of, an issuer of common stock, such opinion and comfort letters to
be dated the date such opinions and comfort letters are customarily dated in
such transactions and to be addressed to and reasonably acceptable to the
underwriter and each seller of Registrable Securities; and
(m) take all such other actions as HIIC and/or its Affiliates
reasonably request in order to expedite or facilitate the disposition of such
Registrable Securities.
Without limiting any of the foregoing, the Company shall enter into an
underwriting agreement with a managing underwriter or underwriters containing
representations, warranties, indemnities and agreements customarily included
(but not inconsistent with the agreements contained herein) by an issuer of
common stock in underwriting agreements with respect to offerings of common
stock for the account of, or on behalf of, selling shareholders. Each seller of
Registrable Securities pursuant to the terms of this Agreement shall be required
to make such representations and warranties to, and agreements with, the Company
and/or underwriter or underwriters as are customary in similar transactions or
are contemplated by the terms of this Agreement. In connection with any offering
of Registrable Securities registered pursuant to this Agreement, the Company
shall (i) furnish to the underwriter unlegended certificates representing
ownership of the Registrable Securities being sold, in such denominations as
requested for sale pursuant to such registration and (ii) instruct any transfer
agent and registrar of the Registrable Securities to release any stop transfer
order with respect thereto.
Each seller of Registrable Securities hereunder agrees that upon receipt of
any notice from the Company of the happening of any event of the kind described
in paragraph (g) of this Section 6, such seller shall forthwith discontinue such
seller's disposition of Registrable Securities pursuant to the applicable
registration statement and prospectus relating thereto until such seller's
receipt of the copies of the supplemented or amended prospectus contemplated by
paragraph (g) of this Section 6 and, if so directed by the Company, deliver to
the Company (at the Company's sole cost and expense) all copies then in such
seller's possession of the prospectus current at the time of receipt of such
notice relating to such Registrable Securities. In the event the Company shall
give such notice, the thirty (30) day period during which such registration
statement must remain effective pursuant to this Agreement shall be extended by
the number of days during the period from the date of giving of a notice
regarding the happening of an event of the kind described in paragraph (g) of
this Section 6 to the date when all such sellers shall receive such a
supplemented or amended prospectus and such prospectus shall have been filed
with the Commission.
SECTION 7. Registration Expenses. All expenses incident to the Company's
performance of, or compliance with, its obligations under this Agreement
including, without limitation, all registration and filing fees, all fees and
expenses of compliance with securities and "blue sky" laws (including, without
limitation, the fees and expenses of counsel for underwriters or placement or
sales agents in connection therewith to the extent provided for in the
underwriting agreement), all printing and copying expenses, all messenger and
delivery expenses, all fees and expenses of underwriters and sales and placement
agents in connection therewith (excluding discounts, commissions and
allowances), all fees and expenses of the Company's independent certified public
accountants (except as otherwise provided in Section 2(d)) and counsel
(including, without limitation, with respect to "comfort" letters and opinions)
and other Persons retained by the Company in connection therewith (collectively,
the "Registration Expenses") shall be borne by the Company unless
11
otherwise provided in this Agreement except that the Company will, in any event
(and without implication that the contrary would otherwise be true), pay its
internal expenses (including, without limitation, all salaries and expenses of
its officers and employees performing legal or accounting duties, and the
expense of any annual audit) (collectively, "Internal Expenses") and the
expenses and fees for listing the securities to be registered on each securities
exchange and included in each established over-the-counter market on which
securities of the same class issued by the Company are then listed or traded or
for listing on the NASDAQ pursuant to paragraph (i) of Section 6 of this
Agreement. The sellers of Registrable Shares shall be responsible for their own
underwriting discounts, commissions and allowances and legal fees and expenses.
SECTION 8. Preemptive Rights.
(a) Preemptive Rights. Except for the issuance of securities of the
Company (i) to the Company's or its Affiliates' employees, directors or
consultants (or pursuant to options or rights granted to Persons who were
employees, directors or consultants of the Company or its Affiliates as of the
date of grant) pursuant to a stock purchase or option plan adopted by the Board
of Directors of the Company, (ii) in connection with an acquisition by the
Company or its Affiliates of the assets or capital stock of a third party, (iii)
pursuant to a stock split, dividend, etc., (iv) except as provided in paragraph
(d) below, upon the conversion of any preference shares into Common Stock, or
(v) to any lender in connection with the extension, renewal, modification or
renegotiation of any credit or indebtedness to the Company or its Affiliates
(provided, it being the understanding of the parties that the exception set
forth in this clause (v) shall not apply to any issuance of securities of the
Company in settlement or repayment of any credit or indebtedness to the Company
or its Affiliates), if the Company authorizes the issuance or sale of any Voting
Shares, including options, warrants or rights to acquire Voting Shares or
securities convertible into Voting Shares, (other than as a dividend on the
outstanding Voting Shares) to any Person, the Company shall first offer to sell
to HIIC and its Affiliates a portion of such securities equal to the quotient
determined by dividing (A) the number of shares of Voting Shares held by HIIC
and its Affiliates at the time of the proposed issuance of such securities, on a
fully diluted basis, by (B) the total number of outstanding shares of Voting
Shares outstanding at such time, on a fully diluted basis. The exception set
forth in clauses (i) through (v), inclusive, of this Section 8(a) shall not
apply to any issuance of securities of the Company in a transaction of the type
set forth in clauses (i) through (v), inclusive, to the extent, and solely to
the extent, any such individual issuance would result in the aggregate
ownership, on a fully diluted basis, of Voting Shares by HIIC and its Affiliates
being less than twenty percent (20%) of the outstanding Voting Shares of the
Company, on a fully diluted basis; provided, however, in the event a valuation
of the securities of the Company being issued in such transaction is required in
connection with the exercise of the preemptive rights hereunder, HIIC and its
Affiliates shall retain and be solely responsible for the payment of all fees
and expenses of the investment bank or valuation firm hired to conduct such
valuation and any such investment bank or valuation firm shall be reasonably
acceptable to the Company. If such securities are being offered in a manner such
that each offeree purchasing such stock or securities is required to purchase a
"strip" or more than one type of stock and/or securities, HIIC shall likewise be
required to purchase each of the shares of stock and/or securities included in
the strip if any are purchased.
(b) Procedure. In order to exercise its purchase rights under this
Section 8, HIIC and its Affiliates shall, within fifteen (15) days after receipt
of written notice from the Company describing in reasonable detail the
securities being offered, the purchase price thereof, the payment terms and its
percentage allotment, deliver a written notice to the Company describing its
election hereunder. During the ninety (90) days following the expiration of the
fifteen (15) day period described above, the Company shall be entitled to sell
such securities which HIIC and its Affiliates have not elected to purchase on
terms and conditions no more favorable to the purchasers thereof than those
offered to HIIC and its Affiliates; provided, if the Company does not sell
within the ninety (90) day period the securities which were the subject of the
notice pursuant this
12
Section 8, it must send another notice and repeat the procedure pursuant to this
Section 8 before it could sell such securities after such ninety (90) day
period.
(c) Termination. The provisions of this Section 8 shall terminate
when HIIC and its Affiliates collectively own less than twenty percent (20%) of
the outstanding Voting Shares of the Company on a fully diluted basis.
(d) Special Preemptive Right. Notwithstanding paragraph (c) above
and in addition to the rights set forth in paragraph (a) above, upon any
conversion of any shares of convertible redeemable preference shares of the
Company issued to B E Aerospace, Inc., a Delaware corporation ("B/EA"), as part
of the issuance of up to three thousand (3,000) shares of convertible redeemable
preference shares of the Company to B/EA which are convertible into Parent
Common Shares at a percentage of the trading price of the Parent Common Shares
as previously disclosed to HIIC, the Company shall issue to HIIC and/or the
Affiliates of HIIC a number of the Company Common Shares upon payment by HIIC of
the par value thereof such that such number of shares plus the number of the
Amalgamation Shares, Conversion Shares and Warrant Shares collectively
constitutes the same percentage of the outstanding Voting Shares of the Company
on a fully diluted basis as the number of Amalgamation Shares, Conversion Shares
and Warrant Shares constituted of the outstanding Voting Shares of the Company
on a fully diluted basis prior to such issuance.
SECTION 9. Non-Pro Rata Redemptions. HIIC and/or the Affiliates of HIIC
shall have the right for as long as HIIC and the Affiliates of HIIC collectively
own twenty percent (20%) or more of the outstanding Voting Shares on a fully
diluted basis to participate on a proportionate basis in any non-pro rata stock
repurchases or redemptions of Voting Shares conducted by the Company, other than
repurchases or redemptions in connection with the termination of employment of
any employee of the Company or any of its Affiliates or pursuant to a
contractual right or obligation of the Company entered into in connection with
the issuance of such Voting Shares.
SECTION 10. Special Sale Obligations/Rights. At any time that HIIC and the
Affiliates of HIIC collectively own less than ten percent (10%) of the
outstanding Voting Shares of the Company, on a fully diluted basis, (i) the
Company shall have the right to cause HIIC and the Affiliates of HIIC to sell
all of their Voting Shares of the Company pursuant to a sale registered under
the Securities Act and (ii) HIIC shall have the right to cause the Company to
file a registration statement under the Securities Act in accordance with the
terms of Section 2 to sell all of its and its Affiliates' Voting Shares of the
Company, in each case of (i) and (ii), in the event (x) of any change in or
conduct of the business or proposed business of the Company or any of its
Subsidiaries or any other action or inaction of the Company or any of its
Subsidiaries which would constitute or result in a Disqualifying Action or (y)
the Company does not redeem a Disqualified Holder pursuant to Bye-law 4B of its
bye-laws, and in each case of (i) and (ii), at the Company's expense (other than
HIIC's and the Affiliates of HIIC underwriting discounts, commissions or
allowances and legal fees and expenses) without being subject to the limitations
set forth in Sections 2(b) and (d) and Section 5.
SECTION 11. Indemnification.
(a) By the Company. The Company agrees to indemnify, defend and
hold harmless each holder of Registrable Securities, its officers, directors,
employees and agents and each Person who controls (within the meaning of the
Securities Act or the Exchange Act) such holder or such an other indemnified
Person against all losses, claims, damages, liabilities and expenses caused by
(i) any untrue or alleged untrue statement of material fact contained in any
registration statement, prospectus or preliminary prospectus or any amendment
thereof or supplement thereto or any omission or alleged omission of a material
fact required to
13
be stated therein or of a fact necessary to make the statements therein not
misleading, except insofar as the same are caused by and contained in any
information furnished in writing to the Company by such holder for use therein
by the Company or (ii) any violation by the Company of any applicable federal or
state securities laws.
(b) By Holders. In connection with any registration statement in
which a holder of Registrable Securities is participating, each such holder will
furnish to the Company in writing information regarding such holder's ownership
of Registrable Securities and shall indemnify, defend and hold harmless the
Company, its directors, officers, employees and agents and each Person who
controls (within the meaning of the Securities Act or the Exchange Act) the
Company or such an other indemnified Person against any losses, claims, damages,
liabilities and expenses (including with respect to any claim for
indemnification hereunder asserted by any other indemnified Person) resulting
from (i) any untrue or alleged untrue statement of material fact contained in
such information so furnished by such holder which is contained in the
registration statement, prospectus or preliminary prospectus or any amendment
thereof or supplement thereto, or any omission or alleged omission of a material
fact omitted from the information so furnished by holder which is required to be
stated therein or necessary to make the statements therein not misleading and is
omitted from the registration statement, prospectus or preliminary prospectus or
any amendment or supplement thereto, or (ii) any violation by such holder of any
applicable federal or state securities laws; provided that the liability of each
such holder of Registrable Securities will be in proportion to and limited to
the net amount received by such holder from the sale of Registrable Securities
pursuant to such registration statement.
(c) Notice. Any Person entitled to indemnification hereunder shall
give prompt written notice to the indemnifying party of any claim with respect
to which it seeks indemnification; provided, however, the failure to give such
notice shall not release the indemnifying party from its obligation under this
Section 11, except to the extent that the indemnifying party has been materially
prejudiced by such failure to provide such notice.
(d) Defense of Actions. In any case in which any such action is
brought against any indemnified party, and it notifies an indemnifying party of
the commencement thereof, the indemnifying party will be entitled to participate
therein, and, to the extent that it may wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel reasonably satisfactory to such indemnified party, and after notice from
the indemnifying party to such indemnified party of its election so to assume
the defense thereof, the indemnifying party will not (so long as it shall
continue to have the right to defend, contest, litigate and settle the matter in
question in accordance with this paragraph) be liable to such indemnified party
hereunder for any legal or other expense subsequently incurred by such
indemnified party in connection with the defense thereof (unless such
indemnified party presents a written legal opinion of counsel to the effect that
there are defenses available to the indemnified party which are different from
or in addition to the defenses available to such indemnifying party, in which
event the indemnified party shall be reimbursed by the indemnifying party for
the expenses incurred in connection with retaining separate legal counsel;
provided that the indemnifying party shall not be obligated to reimburse the
indemnified parties for the fees and expenses of more than one counsel for all
indemnified parties who do not have different or additional defenses among
themselves). An indemnifying party shall not be liable for any settlement of an
action or claim effected without its consent. The indemnifying party shall lose
its right to defend, contest, litigate and settle a matter if it shall fail to
diligently contest such matter (except to the extent settled in accordance with
the next following sentence). No matter shall be settled by an indemnifying
party without the consent of the indemnified party (which consent shall not be
unreasonably withheld).
14
(e) Survival. The indemnification provided for under this Agreement
shall remain in full force and effect regardless of any investigation made by or
on behalf of the indemnified Person and will survive the transfer of the
Registrable Securities.
(f) Contribution. If recovery is not available under the foregoing
indemnification provisions for any reason or reasons other than as specified
therein, any Person who would otherwise be entitled to indemnification by the
terms thereof shall nevertheless be entitled to contribution with respect to any
losses, claims, damages, liabilities or expenses with respect to which such
Person would be entitled to such indemnification but for such reason or reasons.
In determining the amount of contribution to which the respective Persons are
entitled, there shall be considered the Persons' relative knowledge and access
to information concerning the matter with respect to which the claim was
asserted, the opportunity to correct and prevent any statement or omission, and
other equitable considerations appropriate under the circumstances. It is hereby
agreed that it would not necessarily be equitable if the amount of such
contribution were determined by pro rata or per capita allocation. The liability
of each holder of Registrable Securities will be in proportion to and limited to
the net amount received by such holder from the sale of Registrable Securities
pursuant to such registration statement. No party shall be entitled to
contribution hereunder if such party is found guilty of having committed
fraudulent misrepresentation except insofar as the same is caused by a
fraudulent misrepresentation by any holder of Registrable Securities for use
therein by the Company.
SECTION 12. Participation in Underwritten Registrations. No Person may
participate in any underwritten registration hereunder unless such Person (a)
agrees to sell such Person's securities on the basis provided in any
underwriting arrangements and (b) completes and executes all questionnaires,
powers of attorney, indemnities, underwriting agreements and other documents
required under the terms of such underwriting arrangements.
SECTION 13. Miscellaneous.
(a) Rule 144. The Company shall timely file the reports, if any,
required to be filed by it under the Securities Act or the Exchange Act
(including, if required, the reports under Sections 13 and 15(d) of the Exchange
Act referred to in subparagraph (c)(1) of Rule 144). Upon the request of any
holder of Registrable Securities, the Company shall: (i) deliver to such holder
a written statement as to its compliance with the reporting requirements of Rule
144, as such rule may be amended from time to time, and (ii) take such further
action, including, without limitation, supply and make publicly available any
other information in the possession of or reasonably obtainable by the Company,
with the purpose of allowing such holder to avail itself of Rule 144 or any
other rule or regulation of the Commission allowing it to sell securities
without registration under the Securities Act.
(b) Amendments and Waivers. Except as otherwise provided herein,
the provisions of this Agreement may be amended or waived and the Company may
take any action herein prohibited, or omit to perform any act herein required to
be performed by it, only if the Company has obtained the written consent of
HIIC. The waiver by any party hereto of a breach of any provision of this
Agreement shall not operate or be construed as a waiver of any other provision
of this Agreement or of any further breach of the provision so waived or of any
other provision of this Agreement. No extension of time for the performance of
any obligation or act hereunder shall be deemed an extension of time for the
performance of any other obligation or act. The waiver by any party of any of
the conditions precedent to its obligations under this Agreement shall not
preclude it from seeking redress for breach of this Agreement.
15
(c) Successors and Assigns. All covenants and agreements in this
Agreement by or on behalf of any of the parties hereto will bind and inure to
the benefit of the respective successors and assigns of the parties hereto
whether so expressed or not. In addition, whether or not any express assignment
has been made, the provisions of this Agreement which are for the benefit of
purchasers or holders of Registrable Securities are also for the benefit of, and
enforceable by, any subsequent holder of Registrable Securities; provided that
securities shall cease to be Registrable Securities under the circumstances
provided in Section 1(z).
(d) Remedies. If any party to this Agreement obtains a judgment
against any other party hereto by reason of any breach of this Agreement or the
failure of such other party to comply with the provisions hereof, reasonable
attorneys' fees and court costs shall be included in such judgment.
(e) Severability. Whenever possible, each provision of this
Agreement will be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be prohibited
by or invalid under applicable law, such provision will be ineffective only to
the extent of such prohibition or invalidity, and the remaining provisions of
this Agreement shall continue to be binding and in full force and effect.
(f) Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be effective only upon delivery and thereafter
shall be deemed to be an original, and all of which shall be taken to be one and
the same instrument with the same effect as if each of the parties hereto had
signed the same signature page. Any signature page of this Agreement may be
detached from any counterpart of this Agreement without impairing the legal
effect of any signature thereon and may be attached to another counterpart of
this Agreement identical in form hereto and having attached to it one or more
additional signature pages.
(g) Descriptive Headings. The descriptive headings of this Agreement
are inserted for convenience only and shall not be deemed to limit, characterize
or interpret any provision of this Agreement.
(h) Governing Law. All questions concerning the construction,
validity and interpretation of this Agreement and the exhibits and schedules
hereto will be governed by the internal law, and not the law of conflicts, of
Bermuda.
(i) Notices. All notices and other communications which are required
or permitted to be given or delivered under or by reason of the provisions of
this Agreement shall be in writing and shall be delivered personally, mailed by
certified or registered mail, return receipt requested, sent by reputable
overnight courier or sent by confirmed telecopier, addressed as follows:
(i) if to the Company, at:
Sky Games International, Ltd.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇-▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: President
with a copy to:
16
Altheimer & ▇▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
(ii) if to HIIC, at:
▇▇▇▇▇▇'▇ Interactive Investment Company
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇
with a copy to:
▇▇▇▇▇▇'▇ Entertainment, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
or to such other address and/or such other addressee as any of the above shall
have specified by notice hereunder. Each notice or other communication which
shall be delivered personally, mailed or telecopied in the manner described
above shall be deemed sufficiently given, served, sent, received or delivered
for all purposes at such time as it is delivered to the addressee (with the
return receipt, the delivery receipt or the affidavit of messenger being deemed
conclusive, but not exclusive, evidence of such delivery) or at such time as
delivery is refused by the addressee upon presentation. The parties hereto
agree that any notice or other communication required or permitted to be given
or delivered hereunder to HIIC and/or its Affiliates shall be deemed properly
given to HIIC and/or any or all of HIIC's Affiliates if given or delivered to
HIIC in accordance with the provisions of this Section 13(i).
(j) Entire Agreement. This Agreement constitutes the sole and entire
agreement of the parties with respect to the subject matter hereof.
* * * * *
17
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
THE COMPANY:
SKY GAMES INTERNATIONAL LTD.
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------
Its: Chief Executive Officer
-----------------------
HIIC:
▇▇▇▇▇▇'▇ INTERACTIVE INVESTMENT
COMPANY
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------
Title: Senior Vice President
---------------------
18