EXHIBIT 4.3
================================================================================
XXXX & BUSTERS, INC.,
as the Company
U.S. BANCORP XXXXX XXXXXXX INC.,
as XXXXX XXXXXXX
and
BUYERS,
as defined herein
REGISTRATION RIGHTS AGREEMENT
Dated as of August 6, 2003
Common Stock
================================================================================
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement"), is
entered into as of August 6, 2003, by and among Xxxx & Busters, Inc., a Missouri
corporation (the "Company"), U.S. Bancorp Xxxxx Xxxxxxx Inc. ("Xxxxx Xxxxxxx")
and the buyers listed on the Schedule of Buyers attached hereto as Exhibit A
(each, a "Buyer" and, collectively, the "Buyers").
THE PARTIES TO THIS AGREEMENT enter into this agreement on the
basis of the following facts, intentions and understanding:
A. The Company and the Buyers entered into that certain
Securities Purchase Agreement of even date herewith (the "Securities Purchase
Agreement"), and, upon the terms and subject to the conditions of the Securities
Purchase Agreement, the Company has agreed (i) to issue and sell to the Buyers
an aggregate of up to (A) Thirty Million United States Dollars ($30,000,000) of
the Company's 5.0% Convertible Subordinated Notes due 2008 (such Convertible
Subordinated Notes, as the same may be amended, modified or supplemented from
time to time in accordance with the terms thereof (the "Notes")), which shall be
convertible into shares of common stock, $0.01 par value per share (the "Common
Stock") of the Company (as converted, the "Conversion Shares"), and (B) Warrants
(such Warrants, as the same may be amended, modified or supplemented from time
to time in accordance with the terms thereof, the "Buyer Warrants") to purchase
up to Five Hundred Twenty-Two Thousand Four Hundred Forty-Six (522,446) shares
of Common Stock (as exercised collectively, the "Buyer Warrant Shares"), and
(ii) to issue to Xxxxx Xxxxxxx Warrants (such Warrants, as the same may be
amended, modified or supplemented from time to time in accordance with the terms
thereof, the "Xxxxx Xxxxxxx Warrants" and, together with the Buyer Warrants, the
"Warrants") to purchase the number of shares of Common Stock set forth on the
Schedule of Fees attached as Exhibit D to the Securities Purchase Agreement (as
exercised collectively, the "Xxxxx Xxxxxxx Warrant Shares" and, together with
the Buyer Warrant Shares, the "Warrant Shares").
B. To induce the Buyers to execute and deliver the Securities
Purchase Agreement and to induce Xxxxx Xxxxxxx to act as the Company's exclusive
placement agent, the Company has agreed to provide certain registration rights
to the Buyers and Xxxxx Xxxxxxx under the Securities Act of 1933, as amended,
and the rules and regulations thereunder, or any similar successor statute
(collectively, the "Securities Act"), and applicable state securities laws.
NOW, THEREFORE, in consideration of the promises and the
mutual covenants contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Company, Xxxxx
Xxxxxxx and each of the Buyers hereby agree as follows:
SECTION 1. DEFINITIONS. As used in this Agreement, the
following terms shall have the following meanings:
(a) "Business Day" means any day other than Saturday, Sunday
or any other day on which commercial banks in The City of New York are required
by law to remain closed
1
(b) "Commission" means the Securities and Exchange Commission.
(c) "Investor" means Xxxxx Xxxxxxx and each Buyer and any
transferee or assignee thereof to whom Xxxxx Xxxxxxx or a Buyer assigns its
rights under this Agreement and who agrees to become bound by the provisions of
this Agreement in accordance with Section 9 of this Agreement, and any
subsequent transferee or assignee thereof to whom a transferee or assignee
assigns its rights under this Agreement and who agrees to become bound by the
provisions of this Agreement in accordance with Section 9 of this Agreement.
(d) "Person" means an individual, a limited liability company,
a partnership, a joint venture, a corporation, a trust, an unincorporated
organization or association and governmental or any department or agency
thereof.
(e) "register," "registered," and "registration" means a
registration effected by preparing and filing one or more Registration
Statements (as defined below) in compliance with the Securities Act and pursuant
to Rule 415 under the Securities Act or any successor rule providing for
offering securities on a continuous or delayed basis ("Rule 415"), and the
declaration or ordering of effectiveness of such Registration Statements by the
Commission.
(f) "Registrable Securities" means (i) the Notes, (ii) the
Warrants, (iii) the Conversion Shares issued or issuable upon conversion of the
Notes, (iv the Warrant Shares issued or issuable upon exercise of the Warrants,
(v) any shares of capital stock issued or issuable with respect to the
Conversion Shares or the Warrant Shares as a result of any stock split, stock
dividend, recapitalization, exchange or similar event or otherwise, without
regard to any limitations on conversions of the Notes or the exercise of the
Warrants, and (vi) any shares of capital stock of any entity issued in respect
of the capital stock referenced in the immediately preceding clauses (i), (ii),
(iii), (iv) and (v) as a result of a merger, consolidation, sale of assets, sale
or exchange of capital stock or other similar transaction; provided, that any
Registrable Securities that have been sold pursuant to a Registration Statement
or Rule 144 promulgated under the Securities Act shall no longer be Registrable
Securities.
(g) "Registration Statement" means a registration statement or
registration statements of the Company filed under the Securities Act and
covering all of the Registrable Securities.
(h) Capitalized terms used herein and not otherwise defined
herein shall have the respective meanings set forth in the Securities Purchase
Agreement.
SECTION 2. REGISTRATION.
(a) Mandatory Registration. The Company shall use its best
efforts to prepare and, as soon as practicable but in no event later than 30
calendar days after the Closing Date (as that term is defined in the Securities
Purchase Agreement) (the "Filing Deadline"), file with the Commission a
Registration Statement on Form S-3 covering the resale of all of the Registrable
Securities. In the event that Form S-3 is unavailable for such a registration,
the Company shall use such other form as is available for such a registration,
subject to the provisions of Section 2(d) of this Agreement. The Registration
Statement prepared pursuant hereto shall register the Registrable Securities for
resale, including at least 105% of the number of shares of Common
2
Stock issuable upon conversion of the Notes and exercise of the Warrants by the
Investors from time to time in accordance with the methods of distribution
elected by such Investors or such other amount as required by Section 4(e) of
the Securities Purchase Agreement. The Company shall use reasonable efforts to
have the Registration Statement declared effective by the Commission as soon as
practicable, but not later than 90 calendar days after the Closing Date (the
"Effectiveness Deadline"); provided, however, that if the Commission reviews the
Registration Statement and requires the Company to make modifications thereto,
then the Effectiveness Deadline shall be extended to 120 calendar days after the
Closing Date. In the event that, after the Closing Date and before the
Registration Statement is declared effective, the offices of the Commission are
closed due to acts of God, war or terror, the Effectiveness Deadline will be
extended by a number of days equal to the days of any such closure.
(b) Allocation of Conversion Shares and Warrant Shares. The
initial number of Conversion Shares and Warrant Shares included in any
Registration Statement and each increase in the number thereof included therein
shall be allocated pro rata among the Investors based on the number of
Registrable Securities held by each Investor at the time the Registration
Statement covering such initial number of Registrable Securities or increase
thereof is declared effective by the Commission. In the event that an Investor
sells or otherwise transfers any of such Investor's Registrable Securities, each
transferee shall be allocated the portion of the then remaining number of
Conversion Shares and Warrant Shares included in such Registration Statement
allocable to the transferor. In no event shall the Company include any
securities other than Registrable Securities on any Registration Statement
without the prior written consent of the Investors holding at least a majority
of the Conversion Shares and Warrant Shares, determined as if all of the Notes
held by Investors then outstanding have been converted into Conversion Shares
and all Warrants then outstanding have been exercised for Warrant Shares without
regard to any limitations on conversion of the Notes or exercise of the
Warrants.
(c) Legal Counsel. Subject to Section 5 of this Agreement, the
Investors holding at least a majority of the Conversion Shares and Warrant
Shares, determined as if all of the Notes held by Investors then outstanding
have been converted into Conversion Shares and all Warrants then outstanding
have been exercised for Warrant Shares without regard to any limitations on
conversion of the Notes or on the exercise of the Warrants, shall have the right
to select one legal counsel to review and comment upon any registration pursuant
to this Agreement (the "Legal Counsel"), which the Investors agree shall be
Xxxxxx, Xxxx & Xxxxxxxx LLP or such other counsel as thereafter designated in
writing by the holders of at least a majority of the Conversion Shares and
Warrant Shares, determined as set forth above. Xxxxxx, Xxxx & Xxxxxxxx LLP, or
any other counsel designated in writing by the holders of at least a majority of
the Conversion Shares and Warrant Shares, shall not represent any Investor that
sends such counsel written notice that such Investor does not wish such counsel
to represent it in connection with the matters discussed in this Section 2(c).
The Investors, other than any Investor that delivers the notice discussed in the
preceding sentence, hereby waive any conflict of interest or potential conflict
of interest that may arise as a result of the representation of such Investors
by Xxxxxx, Xxxx & Xxxxxxxx LLP in connection with the subject matter of this
Agreement. The provision will not prohibit any other counsel to an Investor from
reviewing and commenting on any registration filed pursuant to this Agreement at
no cost to the Company.
3
(d) Ineligibility for Form S-3. If Form S-3 is not available
for the registration of the resale of the Registrable Securities hereunder or
the Company is not permitted by the Securities Act or the Commission to use Form
S-3, then the Company shall (i) register the resale of the Registrable
Securities on another appropriate form reasonably acceptable to the holders of
at least a majority of the Conversion Shares and Warrant Shares, determined as
if all of the Notes held by Investors then outstanding have been converted into
Conversion Shares and all Warrants then outstanding have been exercised for
Warrant Shares without regard to any limitations on conversion of the Notes or
on the exercise of the Warrants and (ii) undertake to register the Registrable
Securities on Form S-3 as soon as such form is available; provided, however,
that the Company shall maintain the effectiveness of the Registration Statement
then in effect until such time as a Registration Statement on Form S-3 covering
all of the Registrable Securities has been declared effective by the Commission
or, if earlier, until the end of the Registration Period (as defined in Section
3(a) .
(e) Sufficient Number of Shares Registered. In the event the
number of shares registered under a Registration Statement filed pursuant to
Section 2(a) of this Agreement is insufficient to cover all of the Conversion
Shares and Warrant Shares or all of an Investor's allocated portion of the
Conversion Shares and Warrant Shares pursuant to Section 2(b) of this Agreement,
the Company shall amend the Registration Statement, or file a new Registration
Statement (on the short form available therefor, if applicable), or both, so as
to cover at least one hundred five percent (105%) of the number of such
Conversion Shares and Warrant Shares as of the trading day immediately preceding
the date of the filing of such amendment and/or new Registration Statement, in
each case, as soon as practicable, but in no event later than fifteen (15) days
after the necessity therefor arises. The Company shall use its reasonable
efforts to cause such amendment and/or new Registration Statement to become
effective as soon as practicable following the filing thereof. The calculation
of the number of shares sufficient to cover all of the Conversion Shares and
Warrant Shares shall be made without regard to any limitations on the conversion
of the Notes or the exercise of the Warrants, and such calculation shall assume
that all of the Notes are then convertible into, and all of the Warrants are
then exercisable for, shares of Common Stock at the then prevailing Conversion
Rate (as defined in the Notes) or Warrant Exercise Price (as defined in the
Warrants), as applicable.
(f) Effect of Failure to File and Obtain and Maintain
Effectiveness of Registration Statement. Subject to any elections made pursuant
to Section 4(b), if (i) a Registration Statement covering all the Registrable
Securities is not filed with the Commission on or before the Filing Deadline or
is not declared effective by the Commission on or before the Effectiveness
Deadline, (ii) a Registration Statement covering all of the Registrable
Securities required to be covered thereby, as described in Section 2(e) of this
Agreement, is not filed with the Commission on or before the deadline described
in Section 2(e) of this Agreement or is not declared effective by the Commission
on or before the deadline described in Section 2(e) of this Agreement, (iii) on
any day after such Registration Statement has been declared effective by the
Commission, sales of all of the Registrable Securities required to be included
on such Registration Statement cannot be made as a matter of law (other than
during an Allowable Grace Period (as defined in Section 3(n) of this Agreement)
pursuant to such Registration Statement (including, without limitation, because
of a failure to keep such Registration Statement effective, to disclose such
information as is necessary for sales to be made pursuant to such Registration
Statement or to register a sufficient number of shares of Common Stock), or (iv)
a Grace Period
4
(as defined in Section 3(n) of this Agreement) exceeds the length of an
Allowable Grace Period (each of the items described in clauses (i), (ii), (iii)
and (iv) above shall be referred to as a "Registration Delay"), then the Company
shall pay (1) to each holder of the Notes or Conversion Shares an amount in cash
equal to the product of (i) the initial principal amount paid for the Note, held
by such holder or the related Conversion Shares multiplied by (ii) the product
of (I) the percentage determined by dividing (A) the Applicable Percentage by
(B) 30, multiplied by (II) the sum of (x) the number of days (including any
partial days) after the Filing Deadline or the deadline described in Section
2(e) of this Agreement, as applicable, that the Registration Statement is not
filed with the Commission, plus (y) the number of days (including any partial
days) after the Effectiveness Deadline or the deadline described in Section 2(e)
of this Agreement that the Registration Statement is not declared effective by
the Commission, plus (z) after the Registration Statement has been declared
effective by the Commission, the number of days (including any partial days)
that such Registration Statement is not available (other than during an
Allowable Grace Period) for the sale of all the Registrable Securities and (2)
to each holder of the Warrants or Warrant Shares an amount in cash equal to the
product of (i) the Exercise Price for such Warrant or the related Warrant Shares
multiplied by (ii) the product of (I) the percentage determined by dividing (A)
the Applicable Percentage by (B) 30, multiplied by (II) the sum of (x) the
number of days (including any partial days) after the Filing Deadline or the
deadline described in Section 2(e) of this Agreement, as applicable, that the
Registration Statement is not filed with the Commission, plus (y) the number of
days (including any partial days) after the Effectiveness Deadline or the
deadline described in Section 2(e) of this Agreement, as applicable, that the
Registration Statement is not declared effective by the Commission, plus (z)
after the Registration Statement has been declared effective by the Commission,
the number of days (including any partial days) that such Registration Statement
is not available (other than during an Allowable Grace Period) for the sale of
all Registrable Securities. The "Applicable Percentage" shall mean (A) for the
period that only include days on or before the day that is 60 days after the
commencement of a Registration Delay, eight-tenths percent (0.8%), (B) for
periods that only include days after the date that is 60 days after the
commencement of a Registration Delay, one percent (1.0%) and (C) for periods
that include days both before and after the date that is 60 days after the
commencement of a Registration Delay, a percentage equal to a fraction, the
numerator of which shall be the sum of (i) the number of days in such period
that are on or before the date that is 60 days after the commencement of such
Registration Delay multiplied by eight-tenths percent (0.8%) and (ii) the number
of days in such period that are after the date that is 60 days after the
commencement of such Registration Delay multiplied by one percent (1.0%) and the
denominator of which shall be the total number of days comprising such period.
The payments to which a holder shall be entitled pursuant to this Section 2(f)
are referred to herein as "Registration Delay Payments." The Registration Delay
Payments shall be paid in cash on the earlier of (A) the last day of the
calendar month during which such Registration Delay Payments are incurred and
(B) the third Business Day after the event or failure giving rise to the
Registration Delay Payments is cured. In the event the Company fails to make
Registration Delay Payments in a timely manner, such Registration Delay Payments
shall bear interest at the rate of one and two-tenths percent (1.2%) per month
(prorated for partial months) until paid in full.
SECTION 3. RELATED OBLIGATIONS. At such time as the Company is
obligated to file a Registration Statement with the Commission pursuant to
Section 2(a), 2(d) or 2(e) of this Agreement, the Company will use reasonable
efforts to effect the registration of all of the
5
Registrable Securities in accordance with the intended method of disposition
thereof and, pursuant thereto, the Company shall have the following obligations:
(a) The Company shall promptly prepare and file with the
Commission a Registration Statement with respect to all of the Registrable
Securities (but in no event later than the applicable Filing Deadline) and use
reasonable efforts to cause such Registration Statement relating to all of the
Registrable Securities required to be covered thereby to become effective as
soon as practicable after such filing (but in no event later than the applicable
Effectiveness Deadline). The Company shall, subject to the terms of this
Agreement, keep each Registration Statement effective pursuant to Rule 415 at
all times during the period from the date it is initially declared effective
until the earliest of (i) the second anniversary of the date such Registration
Statement is filed, (ii) the date as of which all of the Investors (other than
any Investors who are "affiliates" of the Company as such term is used in Rule
144(k) promulgated under the Securities Act) may sell all of the Registrable
Securities without restriction pursuant to Rule 144(k) (or the successor rule
thereto) promulgated under the Securities Act or (iii) the date on which all of
the Investors shall have sold all of the Registrable Securities (the
"Registration Period"), which Registration Statement, as of its filing and
effective dates and each day thereafter (including all amendments or supplements
thereto, as of their respective filing and effective dates and each day
thereafter), shall not contain any 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, and the prospectus contained in such
Registration Statement, as of its filing date and each day thereafter (including
all amendments and supplements thereto, as of their respective filing dates and
each day thereafter), shall not contain any untrue statement of a material fact
or omit to state a material fact required to be stated thereon, or necessary to
make the statements therein, in light of the circumstances in which they were
made, not misleading.
(b) Subject to Section 3(n) of this Agreement, the Company
shall prepare and file with the Commission such amendments (including
post-effective amendments) and supplements to the Registration Statement and the
prospectus used in connection with such Registration Statement, which prospectus
is to be filed pursuant to Rule 424 (or any successor rule thereto) promulgated
under the Securities Act, as may be necessary to keep such Registration
Statement effective at all times during the Registration Period, and, during
such period, comply with the provisions of the Securities Act. In the case of
amendments and supplements to a Registration Statement and the prospectus used
in connection with such Registration Statement which are required to be filed
pursuant to this Agreement (including pursuant to this Section 3(b)) by reason
of the Company filing a report on Form 10-K, Form 10-Q or Form 8-K or any
analogous report under the Securities Exchange Act of 1934, as amended, and the
rules and regulations thereunder, or any similar successor statute (the
"Exchange Act"), the Company shall have incorporated such report by reference
into such Registration Statement, if applicable, or shall file such amendments
or supplements with the Commission on the same day on which the Exchange Act
report is filed which created the requirement for the Company to amend or
supplement such Registration Statement and prospectus.
(c) The Company shall permit Legal Counsel, or if no Legal
Counsel shall have been chosen by the Investors, the Investors, to review and
provide written comment upon each Registration Statement, prospectus and all
amendments and supplements thereto at least three (3) Business Days prior to
their filing with the Commission. The Company shall furnish to the
6
Investors and Legal Counsel, without charge, (i) promptly after receipt of such
correspondence, copies of all correspondence from the Commission or the staff of
the Commission to the Company or its representatives relating to each
Registration Statement, prospectus and all amendments and supplements thereto,
(ii) promptly after the same is prepared and filed with the Commission, one (1)
copy of each Registration Statement, prospectus and all amendments and
supplements thereto, including all exhibits and financial statements related
thereto, and (iii) promptly upon the effectiveness of each Registration
Statement and each amendment and supplement thereto, one (1) copy of the
prospectus included in each such Registration Statement and all amendments and
supplements thereto. The Company agrees that it will, and it will cause its
counsel to, consider in good faith any comments or objections from Legal
Counsel, or if no Legal Counsel shall have been selected, the Investors, as to
the form or content of each Registration Statement, prospectus and all
amendments or supplements thereto or any request for acceleration of the
effectiveness of each Registration Statement, prospectus and all amendments or
supplements thereto.
(d) The Company shall furnish to each Investor whose
Registrable Securities are included in any Registration Statement, without
charge to such Investor, (i) promptly after the same is prepared and filed with
the Commission, at least one copy of such Registration Statement and all
amendments and supplements thereto, including all exhibits and financial
statements and each preliminary prospectus, (ii) upon the effectiveness of each
Registration Statement, such number of copies of the prospectus included in such
Registration Statement and all amendments and supplements thereto as such
Investor may reasonably request, and (iii) such other documents, including
copies of any preliminary or final prospectus, as such Investor may reasonably
request from time to time in order to facilitate the disposition of the
Registrable Securities.
(e) Subject to Section 3(n) of this Agreement, and excluding
any Registrable Shares held by Investors electing to exclude their Registrable
Shares from the Registration Statement under Section 4(b), the Company shall use
reasonable efforts to (i) promptly register and qualify, unless an exemption
from registration and qualification applies, the resale of the Registrable
Securities under such other securities or "blue sky" laws of all applicable
jurisdictions in the United States as any holder of Registrable Shares
reasonably requests in writing, (ii) promptly prepare and file in those
jurisdictions, such amendments (including post-effective amendments) and
supplements to such registrations and qualifications as may be necessary to
maintain the effectiveness thereof during the Registration Period, (iii)
promptly take such other actions as may be reasonably necessary to maintain such
registrations and qualifications in effect at all times during the Registration
Period, and (iv) promptly take all other actions reasonably necessary or
advisable to qualify the Registrable Securities for sale in such jurisdictions;
provided, however, that the Company shall not be required in connection
therewith or as a condition thereto to file a general consent to service of
process in any such jurisdiction, except in such jurisdictions where the Company
is subject to service of process. The Company shall promptly notify each
Investor who holds Registrable Securities and Legal Counsel of the receipt by
the Company of any notification with respect to the suspension of the
registration or qualification of any of the Registrable Securities for sale
under the securities or "blue sky" laws of any jurisdiction in the United States
or its receipt of notice of the initiation or threatening of any proceeding for
such purpose.
7
(f) Notwithstanding anything to the contrary set forth herein,
as promptly as practicable after becoming aware of such event, the Company shall
notify each Investor and Legal Counsel in writing of the happening of any event
as a result of which (i) the Registration Statement or any amendment or
supplement thereto, as then in effect, includes an untrue statement of a
material fact or omission to state a material fact required to be stated therein
or necessary to make the statements therein not misleading or (ii) the
prospectus related to such Registration Statement or any amendment or supplement
thereto includes an untrue statement of a material fact or omission to state a
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading, and, subject to Section 3(n) of this Agreement, promptly prepare a
supplement or amendment to such Registration Statement and prospectus to correct
such untrue statement or omission, and deliver such number of copies of such
supplement or amendment to each Investor and Legal Counsel as such Investor or
Legal Counsel may reasonably request. The Company shall also promptly notify
each Investor and Legal Counsel in writing (i) when a prospectus and each
prospectus supplement or amendment thereto has been filed, and when a
Registration Statement and each amendment (including post-effective amendments)
and supplement thereto has been declared effective by the Commission
(notification of such effectiveness shall be delivered to each Investor and
Legal Counsel by facsimile on the same day of such effectiveness and by
overnight mail), (ii) of any request by the Commission for amendments or
supplements to a Registration Statement or related prospectus or related
information, and (iii) of the Company's reasonable determination that an
amendment (including any post-effective amendment) or supplement to a
Registration Statement or prospectus would be appropriate (subject to Section
3(n) hereof).
(g) Subject to Section 3(n) of this Agreement, the Company
shall use reasonable efforts to (i) prevent the issuance of any stop order or
other suspension of effectiveness of a Registration Statement, or the suspension
of the qualification of any of the Registrable Securities for sale in any
jurisdiction, (ii) if such an order or suspension is issued, obtain the
withdrawal of such order or suspension at the earliest practicable moment and
notify each holder of Registrable Securities and Legal Counsel of the issuance
of such order and the resolution thereof or its receipt of notice of the
initiation or threat of any proceeding for such purpose.
(h) The Company shall hold in confidence and not make any
disclosure of information concerning an Investor provided to the Company unless
(i) disclosure of such information is necessary to comply with United States
federal or state securities laws, (ii) the disclosure of such information is
necessary to avoid or correct a misstatement or omission in any Registration
Statement, prospectus or any amendment or supplement thereto, (iii) the release
of such information is ordered pursuant to a subpoena or other final,
non-appealable order from a court or governmental body of competent
jurisdiction, or (iv) such information has been made generally available to the
public other than by disclosure in violation of this Agreement or any other
agreement. The Company agrees that it shall, upon learning that disclosure of
such information concerning an Investor is sought in or by a court or
governmental body of competent jurisdiction or through other means, unless
ordered or requested by the Commission or other governmental authority not to do
so, give prompt written notice to such Investor and allow such Investor, at the
Investor's expense, to undertake appropriate action to prevent disclosure of, or
to obtain a protective order for, such information.
8
(i) The Company shall use reasonable efforts to cause all the
Conversion Shares and Warrant Shares to be listed on each securities exchange on
which securities of the same class or series issued by the Company are then
listed, if any, if the listing of such Conversion Shares and Warrant Shares is
then permitted under the rules of such exchange. The Company shall pay all fees
and expenses in connection with satisfying its obligation under this Section
3(i).
(j) In connection with any sale or transfer of Registrable
Securities pursuant to a Registration Statement, the Company shall cooperate
with the Investors who hold Registrable Securities being offered and, to the
extent applicable, facilitate the timely preparation and delivery of
certificates (not bearing any restrictive legend) representing the Registrable
Securities to be offered pursuant to a Registration Statement and enable such
certificates to be in such denominations or amounts, as the case may be, as the
Investors may reasonably request and, registered in such names as the Investors
may request.
(k) If requested by an Investor, the Company shall (i) as soon
as practicable, incorporate in each prospectus supplement or post-effective
amendment to the Registration Statement such information as an Investor provides
in writing and reasonably requests to be included therein relating to the sale
and distribution of the Registrable Securities, and (ii) as soon as practicable,
make all required filings of such prospectus supplement or post-effective
amendment after being notified of the matters to be incorporated in such
prospectus supplement or post-effective amendment.
(l) The Company shall comply with all applicable rules and
regulations of the Commission in connection with any registration hereunder.
(m) Within two (2) Business Days after a Registration
Statement is ordered effective by the Commission the Company will so notify the
transfer agent for the Registrable Securities and the Investors whose
Registrable Securities are included in the Registration Statement.
(n) Notwithstanding anything to the contrary herein, at any
time after a Registration Statement has been declared effective by the
Commission, the Company may delay the disclosure of material non-public
information concerning the Company if the disclosure of such information at the
time is not, in the good faith judgment of the Board of Directors of the Company
relying upon the opinion of counsel, in the best interests of the Company (a
"Grace Period"); provided, however, that the Company shall promptly (i) notify
the Investors in writing of the existence of material non-public information
giving rise to a Grace Period (provided that the Company shall not disclose the
content of such material non-public information to the Investors) and the date
on which the Grace Period will begin, and (ii) notify the Investors in writing
of the date on which the Grace Period ends; provided further, that no single
Grace Period shall exceed thirty (30) consecutive days, and during any three
hundred sixty-five (365) day period, the aggregate of all of the Grace Periods
shall not exceed an aggregate of sixty (60) days and the first day of any Grace
Period must be at least ten (10) trading days after the last day of any prior
Grace Period (each Grace Period complying with this provision being an
"Allowable Grace Period"). For purposes of determining the length of a Grace
Period, the Grace Period shall be deemed to begin on and include the date the
Investors receive the notice referred to in clause (i) above and shall end on
and include the later of the date the Investors receive the notice
9
referred to in clause (ii) above and the date referred to in such notice;
provided, however, that no Grace Period shall be longer than an Allowable Grace
Period. The provisions of Section 3(g) of this Agreement shall not be applicable
during the period of any Allowable Grace Period. Upon expiration of the Grace
Period, the Company shall again be bound by the first sentence of Section 3(f)
of this Agreement.
SECTION 4. OBLIGATIONS OF THE INVESTORS.
(a) At least three (3) Business Days prior to the first
anticipated filing date of a Registration Statement, the Company shall notify
each Investor in writing of the information the Company requires from each such
Investor if such Investor elects to have any of such Investor's Registrable
Securities included in such Registration Statement. It shall be a condition
precedent to the obligations of the Company to complete the registration
pursuant to this Agreement with respect to the Registrable Securities of a
particular Investor that such Investor shall furnish to the Company such
information regarding itself, the Registrable Securities held by it and the
intended method of disposition of the Registrable Securities held by it as shall
be reasonably required to effect the effectiveness of the registration of such
Registrable Securities and shall execute such documents in connection with such
registration as the Company may reasonably request. Each Investor shall promptly
notify the Company of any material change with respect to such information
previously provided to the Company by such Investor.
(b) Each Investor agrees to cooperate with the Company as
reasonably requested by the Company in connection with the preparation and
filing of any Registration Statement hereunder, unless such Investor has
notified the Company in writing of such Investor's election to exclude all of
such Investor's Registrable Securities from such Registration Statement, in
which case, such Investor does not need to cooperate with the Company until it
notifies the Company of its desire to include one or more shares of the
Registrable Securities in such Registration Statement.
(c) Each Investor agrees that, upon receipt of any notice from
the Company of the happening of any event of the kind described in Section 3(g)
or 3(n) of this Agreement or the first sentence of Section 3(f) of this
Agreement, such Investor will immediately discontinue disposition of Registrable
Securities pursuant to any Registration Statements covering such Registrable
Securities until such Investor's receipt of the copies of the amended or
supplemented prospectus contemplated by Section 3(g) of this Agreement or the
first sentence of Section 3(f) of this Agreement or receipt of notice that no
amendment or supplement is required and, if so directed by the Company, such
Investor shall deliver to the Company (at the expense of the Company) or destroy
(and deliver to the Company a certificate of destruction) all copies of the
prospectus covering such Registrable Securities current at the time of receipt
of such notice (other than a single file copy, which such Investor may keep) in
such Investor's possession.
SECTION 5. EXPENSES OF REGISTRATION. All expenses, other than
underwriting discounts and commissions, incurred in connection with
registrations, filings or qualifications pursuant to Sections 2 and 3 of this
Agreement, including, without limitation, all registration, listing and
qualifications fees, printers and accounting fees, transfer agent fees and fees
and disbursements of counsel for the Company, shall be paid by the Company. The
Company shall pay all of the Investors' reasonable costs (including reasonable
fees and disbursements of Legal
10
Counsel) incurred in connection with the successful enforcement of the
Investors' rights under this Agreement.
SECTION 6. INDEMNIFICATION. In the event any Registrable
Securities are included in a Registration Statement under this Agreement:
(a) To the fullest extent permitted by law, the Company will,
and hereby does, indemnify, hold harmless and defend each Investor, the
directors, officers, members, partners, employees, agents, representatives of,
and each Person, if any, who controls any Investor within the meaning of the
Securities Act or the Exchange Act (each, an "Indemnified Person"), against any
losses, claims, damages, liabilities, judgments, fines, penalties, charges,
costs, reasonable attorneys' fees, amounts paid in settlement or expenses, joint
or several, (collectively, "Claims") incurred in investigating, preparing or
defending any action, claim, suit, inquiry, proceeding, investigation or appeal
taken from the foregoing by or before any court or governmental, administrative
or other regulatory agency, body or the Commission, whether pending or
threatened, whether or not an indemnified party is or may be a party thereto
("Indemnified Damages"), to which any of them may become subject insofar as such
Claims (or actions or proceedings, whether commenced or threatened, in respect
thereof) arise out of or are based upon (i) any untrue statement or alleged
untrue statement of a material fact in a Registration Statement or any amendment
(including post-effective amendments) or supplement thereto or in any filing
made in connection with the qualification of the offering under the securities
or other "blue sky" laws of any jurisdiction in which the Registrable Securities
are offered ("Blue Sky Filing"), or the omission or alleged omission to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading, (ii) any untrue statement or alleged untrue statement of
a material fact contained in any preliminary prospectus if authorized for use by
the Company prior to the effective date of such Registration Statement, or
contained in the final prospectus (as amended or supplemented, if any) or the
omission or alleged omission to state therein any material fact necessary to
make the statements made therein, in light of the circumstances under which the
statements therein were made, not misleading, (iii) any violation or alleged
violation by the Company of the Securities Act, the Exchange Act, any other law,
including, without limitation, any state securities law, or any rule or
regulation thereunder relating to the offer or sale of the Registrable
Securities pursuant to a Registration Statement, or (iv) any material violation
of this Agreement by the Company (the matters in the foregoing clauses (i)
through (iv) being, collectively, "Violations"). Subject to Section 6(c) of this
Agreement, the Company shall reimburse the Indemnified Persons, promptly as such
expenses are incurred and are due and payable, for any legal fees or other
reasonable expenses incurred by them in connection with investigating or
defending any such Claim. Notwithstanding anything to the contrary contained
herein, the indemnification agreement contained in this Section 6(a): (i) shall
not apply to a Claim by an Indemnified Person arising out of or based upon a
Violation which occurs in reliance upon and in conformity with information
furnished in writing to the Company by such Indemnified Person or its Legal
Counsel expressly for use in connection with the preparation of the Registration
Statement or any such amendment thereof or supplement thereto; (ii) shall not be
available to the extent such Claim is based on a failure of the Investor to
deliver or to cause to be delivered the prospectus made available by the
Company, including a corrected prospectus, if such prospectus or corrected
prospectus was timely made available by the Company pursuant to Section 3(d) of
this Agreement; and (iii) shall not apply to amounts paid in settlement of any
Claim if such settlement is effected without the prior written consent of
11
the Company, which consent shall not be unreasonably withheld, conditioned or
delayed. Such indemnity shall remain in full force and effect regardless of any
investigation made by or on behalf of the Indemnified Person and shall survive
the transfer of the Registrable Securities by the Investors pursuant to Section
9 of this Agreement.
(b) In connection with any Registration Statement in which an
Investor is participating, each such Investor agrees to severally and not
jointly indemnify, hold harmless and defend, to the same extent and in the same
manner as is set forth in Section 6(a) of this Agreement, the Company, each of
its directors, each of its officers who signs the Registration Statement, its
agents and each Person, if any, who controls the Company within the meaning of
the Securities Act or the Exchange Act (each, an "Indemnified Party"), against
any Claims or Indemnified Damages to which any of them may become subject, under
the Securities Act, the Exchange Act or otherwise, insofar as such Claims or
Indemnified Damages arise out of or are based upon any Violation (including for
purposes of this paragraph, a material violation of this Agreement by the
Investor), in each case to the extent, and only to the extent, that such
Violation occurs in reliance upon and in conformity with written information
furnished to the Company by such Investor or its Legal Counsel expressly for use
in connection with such Registration Statement and, subject to Section 6(c) of
this Agreement, such Investor will reimburse any legal or other expenses
reasonably incurred by an Indemnified Party in connection with investigating or
defending any such Claim; provided, however, that the indemnification agreement
contained in this Section 6(b) and the agreement with respect to contribution
contained in Section 7 of this Agreement shall not apply to amounts paid in
settlement of any Claim if such settlement is effected without the prior written
consent of such Investor, which consent shall not be unreasonably withheld or
delayed; provided, further, that the Investor shall be liable under this Section
6(b) for only that amount of the Claims and Indemnified Damages as does not
exceed the net proceeds to such Investors as a result of the sale of Registrable
Securities pursuant to such Registration Statement. Such indemnification
agreement shall remain in full force and effect regardless of any investigation
made by or on behalf of such Indemnified Party and shall survive the transfer of
the Registrable Securities by the Investors pursuant to Section 9 of this
Agreement. Notwithstanding anything to the contrary contained herein, the
indemnification agreement contained in this Section 6(b) shall not inure to the
benefit of any Indemnified Party if the untrue statement or omission of material
fact contained in the preliminary prospectus was corrected on a timely basis in
the prospectus, as then amended or supplemented.
(c) Promptly after an Indemnified Person or Indemnified Party
under this Section 6 has knowledge of any Claim as to which such Indemnified
Person or Indemnified Party reasonably believes indemnity may be sought or
promptly after such Indemnified Person or Indemnified Party receives notice of
the commencement of any action or proceeding (including any governmental action
or proceeding) involving a Claim, such Indemnified Person or Indemnified Party
shall, if a Claim in respect thereof is to be made against any indemnifying
party under this Section 6, deliver to the indemnifying party a written notice
of such Claim, and the indemnifying party shall have the right to participate
in, and, to the extent the indemnifying party so desires, jointly with any other
indemnifying party similarly noticed, to assume control of the defense thereof
with counsel mutually satisfactory to the indemnifying party and the Indemnified
Person or the Indemnified Party, as the case may be; provided, however, that an
Indemnified Person or Indemnified Party shall have the right to retain its own
counsel if, in the reasonable opinion of counsel retained by the indemnifying
party, the representation by such
12
counsel of the Indemnified Person or Indemnified Party and the indemnifying
party would be inappropriate due to actual or potential differing interests
between such Indemnified Person or Indemnified Party and any other party
represented by such counsel in such proceeding; provided, further, that the
indemnifying party shall not be responsible for the reasonable fees and expense
of more than one (1) separate legal counsel for such Indemnified Person or
Indemnified Party. In the case of an Indemnified Person, the legal counsel
referred to in the immediately preceding sentence shall be selected by the
Investors holding at least a majority in interest of the Conversion Shares and
Warrant Shares included in the Registration Statement to which the Claim
relates. The Indemnified Party or Indemnified Person shall cooperate fully with
the indemnifying party in connection with any negotiation or defense of any such
action or Claim by the indemnifying party and shall furnish to the indemnifying
party all information reasonably available to the Indemnified Party or
Indemnified Person which relates to such action or Claim. The indemnifying party
shall keep the Indemnified Party or Indemnified Person fully apprised at all
times as to the status of the defense or any settlement negotiations with
respect thereto. No indemnifying party shall be liable for any settlement of any
action, claim or proceeding effected without its prior written consent;
provided, however, that the indemnifying party shall not unreasonably withhold,
delay or condition its consent. No indemnifying party shall, without the prior
written consent of the Indemnified Party or Indemnified Person, consent to entry
of any judgment or enter into any settlement or other compromise which does not
include as an unconditional term thereof the giving by the claimant or plaintiff
to such Indemnified Party or Indemnified Person of a full release from all
liability in respect to such Claim and action and proceeding. After
indemnification as provided for under this Agreement, the rights of the
indemnifying party shall be subrogated to all rights of the Indemnified Party or
Indemnified Person with respect to all third parties, firms or corporations
relating to the matter for which indemnification has been made. The failure to
deliver written notice to the indemnifying party as provided in this Agreement
shall not relieve such indemnifying party of any liability to the Indemnified
Person or Indemnified Party under this Section 6, except to the extent that the
indemnifying party is prejudiced in its ability to defend such action.
(d) No Person involved in the sale of Registrable Securities
who is guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) in connection with such sale shall be entitled to
indemnification from any Person involved in such sale of Registrable Securities
who is not guilty of fraudulent misrepresentation.
(e) The indemnification required by this Section 6 shall be
made by periodic payments of the amount thereof during the course of the
investigation or defense, as and when bills are received or Indemnified Damages
are incurred.
(f) The indemnification agreements contained herein shall be
in addition to (i) any cause of action or similar right of the Indemnified Party
or Indemnified Person against the indemnifying party or others, and (ii) any
liabilities the indemnifying party may be subject to pursuant to the law.
SECTION 7. CONTRIBUTION. To the extent any indemnification by
an indemnifying party is prohibited or limited by law, the indemnifying party
agrees to make the maximum contribution with respect to any amounts for which it
would otherwise be liable under Section 6 of this Agreement to the fullest
extent permitted by law; provided, however, that:
13
(i) no contribution shall be made under circumstances where the maker would not
have been liable for indemnification under the fault standards set forth in
Section 6 of this Agreement, (ii) no Person involved in the sale of Registrable
Securities who is guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) in connection with such sale shall be
entitled to contribution from any Person involved in such sale of Registrable
Securities who is not guilty of fraudulent misrepresentation, and (iii)
contribution by any seller of Registrable Securities shall be limited in amount
to the net amount of proceeds received by such seller from the sale of such
Registrable Securities pursuant to such Registration Statement. The provisions
of this Section 7 shall remain in full force and effect, regardless of the
investigation made by or on behalf of the beneficiaries of this Section 7 and
shall survive the transfer of Registrable Securities by the Investors pursuant
to Section 9 of this Agreement.
SECTION 8. REPORTING.
(a) Reports Under The Exchange Act. With a view to making
available to the Investors the benefits of Rule 144 promulgated under the
Securities Act or any other similar rule or regulation of the Commission that
may at any time permit the Investors to sell securities of the Company to the
public without registration ("Rule 144"), the Company shall use reasonable
efforts to:
(1) make and keep public information available, as
those terms are understood and defined in Rule 144;
(2) file with the Commission in a timely manner all
reports and other documents required of the Company under the
Securities Act and the Exchange Act; and
(3) furnish to each Investor, so long as such
Investor owns Registrable Securities, promptly upon request,
(A) a written statement by the Company, if true, that it has
complied with the applicable reporting requirements of Rule
144, the Securities Act and the Exchange Act, (B) a copy of
the most recent annual or quarterly report of the Company and
copies of such other reports and documents so filed by the
Company, and (C) such other information as may be reasonably
requested to permit the Investors to sell such securities
pursuant to Rule 144 without registration.
(b) Rule 144A Information. The Company shall, upon request of
any Investor, make available to such Investor the information required by Rule
144A(d)(4) (or any successor rule) under the Securities Act.
SECTION 9. ASSIGNMENT OF REGISTRATION RIGHTS. The rights under
this Agreement shall be automatically assignable by the Investors to any
transferee of all or any portion of such Investor's Registrable Securities if:
(i) the Investor agrees in writing with the transferee or assignee to assign
such rights, and a copy of such agreement is furnished to the Company within a
reasonable time after such assignment; (ii) the Company is, within a reasonable
time after such transfer or assignment, furnished with written notice of (a) the
name and address of such transferee or assignee, and (b) the securities with
respect to which such
14
rights are being transferred or assigned; (iii) immediately following such
transfer or assignment, the further disposition of such securities by the
transferee or assignee is restricted under the Securities Act and applicable
state securities laws; (iv) at or before the time the Company receives the
written notice contemplated by clause (ii) of this sentence, the transferee or
assignee agrees in writing with the Company to be bound by all of the
obligations of an Investor under this Agreement; (v) such transfer shall have
been made in accordance with the applicable requirements of the Securities
Purchase Agreement, the Indenture, the Notes, the Warrant Agent Agreement and
the Warrants; and (vi) such transfer shall have been conducted in accordance
with all applicable federal and state securities laws.
SECTION 10. AMENDMENT OF REGISTRATION RIGHTS. Any provision of
this Agreement may be amended and the observance of any provision of this
Agreement may be waived (either generally or in a particular instance and either
retroactively or prospectively), only with the written consent of the Company
and Investors who then hold at least a majority of the Conversion Shares and
Warrant Shares, determined as if all of the Notes held by Investors then
outstanding have been converted into Conversion Shares and all Warrants then
outstanding have been exercised for Warrant Shares without regard to any
limitations on conversion of the Notes or on the exercise of the Warrants. Any
amendment or waiver affected in accordance with this Section 10 shall be binding
upon each Investor and the Company. No such amendment shall be effective to the
extent that it applies to less than all of the holders of the Registrable
Securities. No consideration shall be offered or paid to any Person to amend or
consent to a waiver or modification of any provision of any of this Agreement
unless the same consideration also is offered to all of the parties to this
Agreement.
SECTION 11. MISCELLANEOUS.
(a) A Person is deemed to be a holder of Registrable
Securities whenever such Person owns or is deemed to own of record such
Registrable Securities. If the Company receives conflicting instructions,
notices or elections from two or more Persons with respect to the same
Registrable Securities, the Company shall act upon the basis of instructions,
notice or election received from such record owner of such Registrable
Securities.
(b) Any notices, consents, waivers or other communications
required or permitted to be given under the terms of this Agreement must be in
writing and will be deemed to have been delivered: (i) upon receipt, when
delivered personally; (ii) upon receipt, when sent by facsimile (evidenced by
mechanically or electronically generated receipt by the sender's facsimile
machine); or (iii) one (1) Business Day after deposit with a nationally
recognized overnight delivery service, in each case properly addressed to the
party to receive the same. The addresses and facsimile numbers for such
communications shall be:
15
If to the Company:
Xxxx & Buster's, Inc.
0000 Xxxxxx Xxxxx
Xxxxxx, Xxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxx Xxxxx, Esq.,
Senior Vice President and General Counsel
with a copy to:
Xxxxxxx & Xxxxxx, P.C.
0000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxx X. Xxxxxxx, Esq.
If to U.S. Bancorp Xxxxx Xxxxxxx Inc.:
U.S. Bancorp Xxxxx Xxxxxxx Inc.
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xx. Xxxxx Xxxxxxxxx
with a copy to:
Xxxxxx, Xxxx & Xxxxxxxx LLP
0000 Xxxxxxxxxxx Xxxxxx XX
Xxxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxx Xxxx, Esq.
If to Legal Counsel:
Xxxxxx, Xxxx & Xxxxxxxx LLP
0000 Xxxxxxxxxxx Xxxxxx XX
Xxxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxx Xxxx, Esq.
16
If to a Buyer, to its address and facsimile number set forth on the Schedule of
Buyers attached hereto as Exhibit A, with copies to such Buyer's representatives
as set forth on the Schedule of Buyers, or to such other address and/or
facsimile number and/or to the attention of such other Person as the recipient
party has specified by written notice given to each other party
(c) Failure of any party to exercise any right or remedy under
this Agreement or otherwise, or delay by a party in exercising such right or
remedy, shall not operate as a waiver thereof.
(d) All questions concerning the construction, validity,
enforcement and interpretation of this Agreement shall be governed by the
internal laws of the State of New York, without giving effect to any choice of
law or conflict of law provision or rule (whether of the State of New York or
any other jurisdictions) that would cause the application of the laws of any
jurisdictions other than the State of New York. Each party hereby irrevocably
submits to the non-exclusive jurisdiction of the state and federal courts
sitting the City of New York, borough of Manhattan, for the adjudication of any
dispute hereunder or in connection herewith or with any transaction contemplated
hereby or discussed herein, and hereby irrevocably waives, and agrees not to
assert in any suit, action or proceeding, any claim that it is not personally
subject to the jurisdiction of any such court, that such suit, action or
proceeding is brought in an inconvenient forum or that the venue of such suit,
action or proceeding is improper. Each party hereby irrevocably waives personal
service of process and consents to process being served in any such suit, action
or proceeding by mailing a copy thereof to such party at the address for such
notices to it under this Agreement and agrees that such service shall constitute
good and sufficient service of process and notice thereof. Nothing contained
herein shall be deemed to limit in any way any right to serve process in any
manner permitted by law. If any provision of this Agreement shall be invalid or
unenforceable in any jurisdiction, such invalidity or unenforceability shall not
affect the validity or enforceability of the remainder of this Agreement in that
jurisdiction or the validity or enforceability of any provision of this
Agreement in any other jurisdiction. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY
RIGHT IT MAY HAVE, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION
OF ANY DISPUTE HEREUNDER OR IN CONNECTION HEREWITH OR ARISING OUT OF THIS
AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY.
(e) This Agreement, the Securities Purchase Agreement, the
Indenture, the Notes, the Warrants, the Warrant Agent Agreement and the
documents referenced herein and therein constitute the entire agreement among
the parties hereto with respect to the subject matter hereof and thereof. There
are no restrictions, promises, warranties or undertakings, other than those set
forth or referred to herein and therein. This Agreement, the Indenture, the
Securities Purchase Agreement, the Notes, the Warrants and the Warrant Agent
Agreement supersede all prior agreements and understandings among the parties
hereto with respect to the subject matter hereof and thereof.
(f) Subject to the requirements of Section 9 of this
Agreement, this Agreement shall inure to the benefit of and be binding upon the
permitted successors and assigns of each of the parties hereto.
17
(g) The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(h) This Agreement may be executed in identical counterparts,
each of which shall be deemed an original but all of which shall constitute one
and the same agreement. This Agreement, once executed by a party, may be
delivered to the other parties hereto by facsimile transmission of a copy of
this Agreement bearing the signature of the party so delivering this Agreement.
(i) Each party shall do and perform, or cause to be done and
performed, all such further acts and things, and shall execute and deliver all
such other agreements, certificates, instruments and documents, as the other
party may reasonably request in order to carry out the intent and accomplish the
purposes of this Agreement and the consummation of the transactions contemplated
hereby.
(j) All consents and other determinations required to be made
by the Investors pursuant to this Agreement shall be made, unless otherwise
specified in this Agreement, by Investors holding at least a majority of the
majority of the Conversion Shares and Warrant Shares, determined as if all of
the Notes held by Investors then outstanding have been converted into Conversion
Shares and all Warrants then outstanding have been exercised for Warrant Shares
without regard to any limitations on conversion of the Notes or on the exercise
of the Warrants.
(k) This Agreement is intended for the benefit of the parties
hereto and their respective permitted successors and assigns, and is not for the
benefit of, nor may any provision hereof be enforced by, any other Person.
18
IN WITNESS WHEREOF, the parties have caused this Registration
Rights Agreement to be duly executed as of day and year first above written.
"COMPANY"
XXXX & BUSTERS, INC.
By:
-----------------------------------------
Its:
------------------------------------
"XXXXX XXXXXXX"
U.S. BANCORP XXXXX XXXXXXX INC.
By:
-----------------------------------------
Its:
------------------------------------
[Signatures of Buyers on Following Page]
[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]
"BUYER"
----------------------------------------------
(print full legal name of Buyer)
By:
------------------------------------------
(signature of authorized representative)
Name:
----------------------------------------
Its:
-----------------------------------------
EXHIBIT A TO REGISTRATION RIGHTS AGREEMENT
SCHEDULE OF BUYERS
NAME OF BUYERS PRINCIPAL AMOUNT OF NOTES NUMBER OF WARRANTS
------------------------------------- ------------------------- ------------------
1. [Name of Buyer] $
[Contact Information for Buyer]
Exhibit A-1
SECTION 1. Definitions................................................................................1
SECTION 2. Registration...............................................................................2
SECTION 3. Related Obligations........................................................................5
SECTION 4. Obligations Of The Investors..............................................................10
SECTION 5. Expenses Of Registration..................................................................10
SECTION 6. Indemnification...........................................................................11
SECTION 7. Contribution..............................................................................13
SECTION 8. Reporting.................................................................................14
SECTION 9. Assignment of Registration Rights.........................................................14
SECTION 10. Amendment of Registration Rights..........................................................15
SECTION 11. Miscellaneous.............................................................................15
EXHIBIT A Schedule of Buyers.......................................................................A-1
