EXHIBIT 10.4
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") which shall be
effective as of January 28, 1997, is made and entered into by and among Acres
Gaming Incorporated, a Nevada corporation (the "Company"), and IGT, a Nevada
Corporation, (the "Investor").
RECITALS
WHEREAS, the Company and the Investor are parties to that certain
Stock Purchase Agreement, dated as of September __, 1997 (the "Purchase
Agreement"), pursuant to which the Investor proposes to purchase Series A
Convertible Preferred Stock (the "Preferred Stock"); and
WHEREAS, in order to induce the Investor to enter into the Purchase
Agreement, the Company has agreed to provide the registration rights set forth
in this Agreement with respect to the "Registrable Securities" (as such term is
defined in Section 1);
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual covenants and agreements herein contained, the parties, intending to be
legally bound, hereby agree as follows:
1. DEFINITIONS. For purposes of this Agreement:
(a) the term "Common Stock" means the Company's authorized
voting common stock, $.01 par value, and any class of securities issued in
exchange for the Common Stock or into which the Common Stock is converted;
(b) the term "Holder" means any person owning of record
Registrable Securities or any permitted assignee thereof in accordance with
Section 11 hereof;
(c) the term "Initiating Holders" means the Holders of 25% or
more of the Registrable Securities then outstanding;
(d) the term "Registrable Securities" means: (i) the Common
Stock issued upon conversion of the Preferred Stock purchased pursuant to
the Purchase Agreement, and (ii) any Common Stock of the Company issued as
a dividend or other distribution with respect to, or in exchange for or in
replacement of, such Preferred Stock or Common Stock;
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(e) the term "Registration Expenses" means all expenses
incurred by the Company in complying with Sections 2, 3 and 14 hereof,
including, without limitation, all registration and filing fees,
underwriters' expense allowances (but not including non-accountable or
other fixed percentage allowances), printing expenses, fees and
disbursements of counsel for the Company, blue sky fees and expenses, and
the expense of any special audits incident to or required by any such
registration (but not including the compensation of regular employees of
the Company which shall be paid in any event by the Company);
(f) the terms "register," "registered" and "registration" refer
to a registration effected by preparing and filing a registration statement
or similar document in compliance with the 1933 Act, and the declaration or
ordering of the effectiveness of such registration statement or document by
the Securities and Exchange Commission;
(g) the term "Selling Expenses" means all fees and disbursements
of counsel to the Holders (as a group) and all underwriting discounts and
selling commissions applicable to the sale of Registrable Securities, and
all non-accountable underwriters' expense allowances that constitute a
fixed percentage of the proceeds of the offering or of the offering price;
and
(h) the number of shares of Registrable Securities "then
outstanding" shall be the number of shares of Common Stock outstanding
which are, and the number of shares of Common Stock which upon issuance of
then exercisable or convertible securities will be, Registrable Securities.
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2. DEMAND REGISTRATION RIGHTS.
(a) If the Company shall receive, at any time commencing on the
earlier of (i) the conversion of the Preferred Stock purchased pursuant to
the Purchase Agreement or (ii) December 31, 1997, a written request from
the Initiating Holders with respect to the Registrable Securities, that the
Company file a registration statement under the 1933 Act covering the
registration of at least 35% of the Registrable Securities (or any
remaining smaller balance or any lesser percentage if the anticipated
aggregate offering price to public would exceed $5,000,000), the Company
shall promptly give written notice of such request (together with a list of
the jurisdictions in which the Initiating Holders intend to attempt to
qualify such securities under applicable state securities laws) to all
Holders and shall as soon as practicable, subject to the limitations of
this Section 2, effect the registration under the 1933 Act of all such
Registrable Securities which the Initiating Holders request to be
registered, together with all of the Registrable Securities of any other
Holder or Holders who so request by notice to the Company which is given
within 30 days after the notice from the Company described above.
Notwithstanding the foregoing, if the Company shall furnish to the
Initiating Holders a certificate signed by the President of the Company
stating that in the good faith judgment of the Board of Directors it would
be seriously detrimental to the Company for a registration statement to be
filed in the near future, then the Company's obligation to use its best
efforts to file a registration statement shall be deferred for a period not
to exceed 120 days; provided, however, that the Company shall not obtain
such a deferral more than once in any 12-month period.
(b) If the Initiating Holders intend to distribute the
Registrable Securities covered by their request by means of an
underwriting, they shall so advise the Company as a part of their request
made pursuant to this Section 2 and the Company shall include such
information in the written notice referred to in Section 2(a). In such
event, the right of any Holder to include its Registrable Securities in
such registration shall be conditioned upon such Holder's participation in
such underwriting and the inclusion of such Holder's Registrable Securities
in the underwriting (unless otherwise mutually agreed by a majority in
interest of the Initiating Holders, by the underwriter, by the Company, and
by such Holder) to the extent provided herein.
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(c) All Holders proposing to distribute their securities through
such underwriting (together with the Company as provided in Section 4(e))
shall enter into an underwriting agreement in customary form with the
representative of the underwriter or underwriters selected for such
underwriting by a majority in interest of the Initiating Holders and
reasonably acceptable to the Company. Notwithstanding any other provisions
of this Section 2, if the underwriter advises the Initiating Holders in
writing that marketing factors require a limitation of the number of shares
to be underwritten, the Initiating Holders shall so advise all Holders of
Registrable Securities, and the number of shares of Registrable Securities
that may be included in the registration and underwriting shall be
allocated among all Holders thereof pro rata based on the number of shares
held by such Holders at the time of filing of the registration statement.
No Registrable Securities excluded from the underwriting by reason of the
underwriter's marketing limitation shall be included in such registration.
If any Holder of Registrable Securities disapproves of the terms of the
underwriting, such person may elect to withdraw therefrom by written notice
to the Company, the underwriter and, unless otherwise provided, the
Initiating Holders. The securities so withdrawn shall also be withdrawn
from registration. If the underwriter has not limited the number of
Registrable Securities to be underwritten, the Company may include its
securities for its own account in such registration if the underwriter so
agrees and if the number of Registrable Securities which would otherwise
have been included in such registration and underwriting will not thereby
be limited.
(d) The Company is obligated to effect only three demand
registrations for the Holders pursuant to this Section 2. The second
demand for registration may not be made until at least 12 months after the
first demand for registration was made and the third demand may not be made
until at least 12 months after the second demand was made.
3. PIGGY-BACK REGISTRATION RIGHTS. If, at any time the Company
proposes to register (including for this purpose a registration effected by the
Company for shareholders other than the Holders) any of its securities under the
1933 Act in connection with the public offering of such securities solely for
cash (other than a registration form relating to: (a) a registration of a stock
option, stock purchase or compensation or incentive plan or of stock issued or
issuable pursuant to any such plan, or a dividend investment plan; (b) a
registration of securities proposed
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to be issued in exchange for securities or assets of or in connection with a
merger or consolidation with, another corporation; or (c) a registration of
securities proposed to be issued in exchange for other securities of the
Company), the Company shall, each such time, promptly give each Holder written
notice of such registration together with a list of the jurisdictions in which
the Company intends to attempt to qualify such securities under applicable state
securities laws. Upon the written request of any Holder given within 30 days
after written notice from the Company in accordance with Section 17, the Company
shall, subject to the provisions of Section 7 (in the case of an underwritten
offering), cause to be registered under the 1933 Act all of the Registrable
Securities that each such Holder has requested to be registered; provided,
however, in the event and to the extent such a Holder may freely sell his
Registrable Securities without registration under the 1933 Act without regard to
any restrictions set forth in Rule 144 under the 1933 Act and the person
acquiring the securities does not acquire "restricted Securities" within the
meaning of Rule 144, the Company may elect not to register such Registrable
Securities.
4. OBLIGATIONS OF THE COMPANY. Whenever required under this
Agreement to effect the registration of any Registrable Securities, the Company
shall, as expeditiously as reasonably possible:
(a) Prepare and file with the Securities and Exchange Commission
("SEC") a registration statement with respect to such Registrable
Securities and use its best efforts to cause such registration statement to
become effective, and, upon the request of the Holders of a majority of the
Registrable Securities registered thereunder, keep such registration
statement effective for up to one year unless all Registrable Securities to
be distributed pursuant to such registration statement have been sold prior
to the expiration of such one-year period;
(b) Prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in
connection with such registration statement as may be necessary to comply
with the provisions of the 1933 Act with respect to the disposition of all
securities covered by such registration statement;
(c) Furnish to the Holders such numbers of copies of a
prospectus, including a preliminary prospectus, in conformity with the
requirements of the 1933 Act, and such other documents as they may
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reasonably request in order to facilitate the disposition of Registrable
Securities owned by them;
(d) Use its best efforts to register and qualify the securities
covered by such registration statement under the securities laws of such
jurisdictions as the Company believes shall be reasonably appropriate for
the distribution of the securities covered by the registration statement
and such jurisdictions as the Holders participating in the offering shall
reasonably request, provided that the Company shall not be required in
connection therewith or as a condition thereto to qualify to do business or
to file a general consent to service of process in any such jurisdiction,
and further provided that (anything in this Agreement to the contrary
notwithstanding with respect to the bearing of expenses) if any
jurisdiction in which the securities shall be qualified shall require that
expenses incurred in connection with the qualification of the securities in
that jurisdiction be borne by selling shareholders and provided there is
no exemption from such requirement by reason of the Company's obligation to
pay such expenses pursuant to the foregoing provisions of this Section 4,
such expenses shall be payable by the selling Holders pro rata, to the
extent required by such jurisdiction; and
(e) In the event of any underwritten public offering, enter into
and perform its obligations under an underwriting agreement with terms
generally satisfactory to the managing underwriter of such offering. Each
Holder participating in such underwriting shall also enter into and perform
its obligations under such an agreement.
5. FURNISH INFORMATION. It shall be a condition precedent to the
obligations of the Company to take any action pursuant to this Agreement that
the selling Holders shall furnish to the Company such information regarding
themselves, the Registrable Securities held by them, and the intended method of
disposition of such securities as shall be required to effect the registration
of their Registrable Securities. In that connection, each selling Holder shall
be required to represent to the Company that all such information which is given
is both complete and accurate in all material respects.
6. EXPENSES OF REGISTRATION. All Registration Expenses incurred in
connection with any registration, qualification or compliance pursuant to this
Agreement shall be borne by the Company except that Registration Expenses
incurred by the Company in complying a request for (i) a
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second and third demand for registration under Section 2 hereof and (ii) any
registration made under Section 14 hereof shall be borne by the Holders of the
securities so registered pro rata on the basis of the number of shares so
registered, and in all cases all Selling Expenses shall be borne by the Holders
of the securities so registered pro rata on the basis of the number of shares so
registered.
7. UNDERWRITING REQUIREMENTS. The right of any Holder to
"piggyback" in an underwritten public offering of the Company's securities
pursuant to Section 3 shall be conditioned upon such Holder's participation in
such underwriting and the inclusion of such Holder's Registrable Securities in
the underwriting to the extent provided herein. All Holders proposing to
distribute their securities through such underwriting shall (together with the
Company and any other holders distributing their securities through such
underwriting) enter into an underwriting agreement in customary form with the
underwriter or underwriters selected for underwriting by the Company.
Notwithstanding any other provision of Section 3 and this Section 7, if the
underwriter determines that marketing factors require a limitation of the number
of shares to be underwritten the underwriter may exclude some or all of the
Registrable Securities from such registration and underwriting, provided that
the Holders are allowed to participate in the offering in the same proportion
(based on the total number of securities held by such Holders at the time of
filing of the registration statement) as any other shareholder of the Company
existing as of the date of this Agreement participating in the offering. Any
reduction in the number of Registrable Securities included in such registration
shall be borne equally by the Holders as a group pro rata based on the number of
shares held by such Holders at the time of filing of the registration statement.
If any Holder disapproves of the terms of any such underwriting, it may elect to
withdraw therefrom by written notice to the Company and the underwriter. Any
Registrable Securities excluded or withdrawn from such underwriting shall be
withdrawn from such registration.
8. DELAY OF REGISTRATION. No Holder shall have any right to obtain
or seek an injunction restraining or otherwise delaying any such registration as
the result of any controversy that might arise with respect to the
interpretation or implementation of this Agreement.
9. INDEMNIFICATION. If any Registrable Securities are included in a
registration statement under this Agreement:
(a) To the extent permitted by law, the Company will indemnify
and hold harmless each Holder, the officers, directors and partners of each
Holder,
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any underwriter (as defined in the 0000 Xxx) for such Holder and each
person, if any, who controls such Holder or underwriter within the meaning
of the 1933 Act or the Securities Exchange Act of 1934, as amended (the
"1934 Act"), against any losses, claims, damages, or liabilities (joint or
several) to which they or any of them may become subject under the 1933
Act, the 1934 Act or any other federal or state law, insofar as such
losses, claims, damages, or liabilities (or actions in respect thereof)
arise from or are based upon any of the following statements, omissions or
violations (collectively a "Violation") (i) any untrue statement or alleged
untrue statement of a material fact contained in such registration
statement, including any preliminary prospectus or final prospectus
contained therein or any amendments or supplements thereto; (ii) the
omission or alleged omission to state therein a material fact required to
be stated therein, or necessary to make the statements therein not
misleading; or (iii) any violation or alleged violation by the Company of
the 1933 Act, the 1934 Act, any state securities law or any rule or
regulation promulgated under the 1933 Act, the 1934 Act or any state
securities law, each as applicable to the subject registration statement;
and the Company will reimburse each such Holder, officer, director or
partner, underwriter or controlling person for any legal or other expenses
reasonably incurred by them in connection with investigating or defending
any such loss, claim, damage, liability, or action; provided, however, that
the indemnity agreement contained in this Section 9 shall not apply to
amounts paid in settlement of any such loss, claim, damage, liability or
action if such settlement is effected without the consent of the Company
(which consent shall not be unreasonably withheld), nor shall the Company
be liable in any such case for any such loss, claim, damage, liability, or
action to the extent that it arises from or is based upon a violation which
occurs in reliance upon and in conformity with written information
furnished expressly for use in connection with such registration by any
such Holder, underwriter or controlling person.
(b) To the extent permitted by law, each selling Holder will
indemnify and hold harmless the Company, each of its directors, each of its
officers who have signed the registration statement, each person, if any,
who controls the Company within the meaning of the 1933 Act, any
underwriter (within the meaning of the 0000 Xxx) for the Company, any
person who controls such underwriter, any other Holder selling securities
in such registration statement or any of its
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directors or officers or any person who controls such Holder against any
losses, claims, damages or liabilities (joint or several) to which the
Company or any such director, officer, controlling person, or underwriter
or other such Holder or director, officer or controlling person may become
subject, under the 1933 Act, the 1934 Act or any other federal or state
law, insofar as such losses, claims, damages, or liabilities (or actions in
respect thereto) arise from or are based upon any Violation, 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 by such
Holder expressly for use in connection with such registration; and each
such Holder will reimburse any legal or other expenses reasonably incurred
by the Company or any such director, officer, controlling person,
underwriter or controlling person, other Holder, officer, director or
controlling person in connection with investigating or defending any such
loss, claim, damage, liability, or action; provided, however, that the
indemnity agreement contained in this Section 9 shall not apply to amounts
paid in settlement of any such loss, claim damage, liability or action if
such settlement is effected without the consent of the Holder which consent
shall not be unreasonably withheld; provided, that in no event shall any
indemnity under this Section 9(b) exceed the gross proceeds from the
offering received by the Holder.
(c) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in this Section 9
is applicable but for any reason is held to be unavailable from the Company
or any Holder, the Company and the Holders participating in the
registration shall contribute to the aggregate losses, claims, damages and
liabilities (including any investigation, legal and other expenses incurred
in connection with, and any amount paid in settlement of, any action, suit
or proceeding or any claims asserted) to which the Company and the
participating Holders may be subject based on (i) the relative fault of the
indemnifying party and indemnified parties in connection with the actions
that resulted in the claims and (ii) the ratio of the proceeds received by
the participating Holders on the one hand and the Company and all selling
shareholders (other than the participating holders) on the other hand and,
with respect to the second factor, the Company shall be responsible for the
portion represented by the ratio of proceeds received by the Company to the
total proceeds received by the Company and all selling shareholders (other
than participating Holders); provided, however, that no person guilty of
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fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. For purposes of this
Section 9(c), each person, if any, who controls the Company or any Holder
within the meaning of the Securities Act, each officer of the Company who
shall have signed the registration statement and each director of the
Company shall have the same rights to contribution as the Company.
(d) No settlement of any action in which the Holders
participating in a registration are defendants shall be effected without
the prior written consent of such Holders unless (i) the obligations of the
Company for indemnification or contribution pursuant to this Agreement
survive and are not extinguished by reason of the settlement and remain in
full force and effect under applicable federal and state laws, rules,
regulations and orders or (ii) all claims and actions against the
participating Holders and each person who controls a participating holder
within the meaning of Section 14 of the Securities Act or Section 20 of the
Exchange Act are extinguished by the settlement and the indemnifying party
obtains a full release of all claims and actions against the participating
Holders and each such control person, which release shall be to the
reasonable satisfaction of the participating Holders.
(e) Promptly after receipt by an indemnified party under this
Section 9 of notice of the commencement of any action (including any
governmental action), such indemnified party will, if a claim in respect
thereof is to be made against any indemnifying party under this Section 9,
notify the indemnifying party in writing of the commencement thereof 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 the defense thereof with
counsel selected by the indemnifying party or parties and reasonably
acceptable to the indemnified party; provided, however, that an indemnified
party shall have the right to retain its own counsel, with the fees and
expenses to be paid by the indemnifying party, if representation of such
indemnified party by the counsel retained by the indemnifying party would
be inappropriate due to actual or potential differing interests between
such indemnified party and any other party represented by such counsel in
such proceeding (and provided further that all indemnified parties
similarly situated shall be represented jointly by a single counsel). The
failure to notify an indemnifying
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party within a reasonable time of the commencement of any such action, to
the extent prejudicial to its ability to defend such action, shall relieve
such indemnifying party of any liability to the indemnified party under
this Section 9, but the omission so to notify the indemnifying party will
not relieve it of any liability that it may have to any indemnified party
otherwise than under this Section 9.
(f) The obligations of the Company and the Holders under this
Section 9 shall survive through the completion of any offering of
Registrable Securities in a registration statement made under the terms of
this Agreement and otherwise.
10. REPORTS UNDER SECURITIES EXCHANGE ACT OF 1934. With a view of
making available to the Holders the benefits of Rule 144 promulgated under the
1933 Act and any other rule or regulation of the SEC that may at any time permit
a Holder to sell securities of the Company to the public without registration or
pursuant to a registration on Form S-3, the Company agrees to:
(a) use its best efforts to make and keep public information
available, as those terms are understood and defined in SEC Rule 144, at
all times;
(b) use its best efforts to file with the SEC in a timely manner
all reports and other documents required of the Company under the 1933 Act
and the 1934 Act;
(c) furnish to any Holder so long as the Holder owns any
Registrable Securities, forthwith upon request: (i) a written statement
by the Company that it has complied with the reporting requirements of
Rule 144, the 1933 Act and the 1934 Act or that it qualifies as a
Registrant where securities may be resold pursuant to Form S-3; (ii) a copy
of the most recent annual or quarterly report of the Company and all other
reports and documents filed by the Company with the SEC; and (iii) such
other information as may be reasonably requested in availing any Holder of
any rule or regulation of the SEC which permits the selling of any such
securities without registration; and
(d) take such action as is necessary to enable the Holders to
use Form S-3 for the sale of their Registrable Securities.
11. ASSIGNMENT OF REGISTRATION RIGHTS. [Reserved].
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12. LIMITATIONS ON SUBSEQUENT REGISTRATION RIGHTS. From and after
the date of this Agreement, the Company shall not, without the prior written
consent of the Holders of at least a majority of the then outstanding
Registrable Securities enter into any agreement with any holder or prospective
holder of any securities of the Company which would: (a) allow such holder or
prospective holder to include such securities in any registration filed under
Section 2 hereof if such inclusion would adversely affect the rights of any
Holder of Registrable Securities hereunder; or (b) not provide for the
conversion of such other holders from demand registration to a piggyback
registration in the event the Holders elect to demand registration under this
Agreement within 30 days after a demand by such other holders; or (c) permit
such holder or prospective holder to "piggyback" in a public offering of the
Company's securities, except where such "piggyback" rights would not cause the
holders to be able to sell in such offering a minimum of the greater of (i)
their pro rata share (based on shares held by all shareholders participating in
the offering) of the shares to be included in the offering and (ii) 20% of the
shares of selling shareholders to be included in the offering.
13. "MARKET STAND-OFF" AGREEMENT. Each Holder hereby agrees that it
shall not, to the extent requested by the Company and an underwriter of Common
Stock (or other securities) of the Company, sell or otherwise transfer or
dispose of any Registrable Securities or any interest therein in a market or
other transaction during the 180-day period following the effective date of a
registration statement of the Company filed under the 1933 Act; provided,
however, that all officers, directors and significant shareholders (I.E., those
shareholders who beneficially own greater than 5% of the Company's outstanding
stock) of the Company and all other persons with registration rights (other than
pursuant to this agreement) enter into similar agreements.
In order to enforce the foregoing covenant, the Company may impose
stop-transfer instructions with respect to the Registrable Securities of each
Holder (and the shares or securities of every other person subject to the
foregoing restriction) until the end of such 180-day period.
14. FORM S-3 REGISTRATION. If the Company shall receive, at any time
commencing on the earlier of (i) the conversion of the Preferred Stock purchased
pursuant to the Purchase Agreement or (ii) December 31, 1997, a request or
requests from the Initiating Holders that the Company effect a registration on
Form S-3 (or any similar successor form) and any related qualification or
compliance with respect to
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all or a part of the Registrable Securities owned by such Holder or Holders, the
Company will:
(a) promptly give written notice of the proposed registration,
and any related qualification or compliance, to all other Holders; and
(b) as soon as practicable, effect such registration and all
such qualifications and compliance as may be so requested and as would
permit or facilitate the sale and distribution of all or such portion of
such Holder's or Holders' Registrable Securities as are specified in such
request, together with all or such portion of the Registrable Securities of
any other Holder or Holders joining in such request as are specified in a
written request given within 15 days after receipt of such written notice
from the Company; provided, however, that the Company shall not be
obligated to effect any such registration, qualification or compliance
pursuant to this Section 14: (i) if the Company is not qualified as a
registrant entitled to use Form S-3 (or the applicable successor form); or
(ii) if the Holders, together with the holders of any other securities of
the Company entitled to inclusion in such registration, propose to sell
Registrable Securities and any other securities at an aggregate price to
the public of less than $2,500,000; or (iii) if the Company has, within the
12-month period preceding the date of such request, already effected two
registrations on Form S-3 (or applicable successor form) for the Holders
pursuant to this Section 14; (iv) the number of securities proposed to be
sold are then eligible to be sold under Rule 144 in a single three month
period; or (v) in any particular jurisdiction in which the Company would be
required to qualify to do business or to execute a general consent to
service of process in effecting such registration, qualification or
compliance.
Subject to the foregoing, the Company shall file a registration
statement covering the Registrable Securities and other securities so requested
to be registered as soon as practicable after receipt of the request or requests
of the Initiating Holders. Registrations effected pursuant to this Section 14
shall not be counted as demands for registration effected pursuant to Section 2.
The Holders agree that the maximum number of shares that they will sell using an
S-3 registration statement filed by the Company pursuant to this Section 14
during any three month period will not exceed the limit imposed by Rule
144(e)(1).
15. REMEDIES. Except as provided in Section 8 of this Agreement,
each Holder of Registrable Securities, in
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addition to being entitled to exercise all rights granted by law, including
recovery of damages, will be entitled to specific performance of its rights
under this Agreement. The Company agrees that monetary damages would not be
adequate compensation for any loss incurred by reason of a breach by it of the
provisions of this Agreement and hereby agrees to waive the defense in any
action for specific performance that a remedy of law would be adequate.
16. AMENDMENTS AND WAIVERS. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given, unless the Company has obtained the written consent of Holders
of at least a majority of the then outstanding Registrable Securities.
Notwithstanding the foregoing, a waiver or consent to departure from the
provisions hereof with respect to a matter which relates exclusively to the
rights of Holders of Registrable Securities whose securities are being sold
pursuant to a registration statement and which does not directly or indirectly
affect the rights of other holders of Registrable Securities may be given by the
holders of a majority of the Registrable Securities being sold; provided,
however, that the provisions of this sentence may not be amended, modified or
supplemented except in accordance with the provisions of the immediately
preceding sentence.
17. NOTICES. All notices, demands and requests required by this
Agreement shall be in writing and shall be deemed to have been given for all
purposes (a) upon personal delivery, (b) one day after being sent, when sent by
professional overnight courier service from and to locations within the
continental United States, (c) five days after posting when sent by registered
or certified mail, or (d) on the date of transmission when sent by telegram,
telegraph, telex or telecopier, addressed to the Company or an Investor at its
address set forth on the signature pages hereof. Any party hereto may from time
to time by notice in writing served upon the others as provided herein,
designate a different mailing address or a different person to which such
notices or demands are thereafter to be addressed or delivered.
18. SUCCESSORS AND ASSIGNS. Except as otherwise provided herein,
this Agreement shall inure to the benefit of and be binding upon the successors
and assigns of each of the parties, including, without limitation and without
the need for an express assignment, subsequent holders of Registrable Securities
to which the registration rights granted by this Agreement have been assigned as
permitted herein.
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19. COUNTERPARTS. This Agreement may be executed in separate
counterparts, each of which shall be deemed to be an original, and when
executed, separately or together, shall constitute a single original instrument,
effective in the same manner as if the parties hereto had executed one and the
same instrument.
20. CAPTIONS. Captions are provided herein for convenience only and
they are not to serve as a basis for interpretation or construction of this
Agreement, nor as evidence of the intention of the parties hereto.
21. CROSS-REFERENCES. All cross-references in this Agreement, unless
specifically directed to another agreement or document, refer to provisions
within this Agreement.
22. GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with, the laws of the State of Nevada, without reference to
conflicts of laws provisions.
23. SEVERABILITY. The provisions of this Agreement are severable.
The invalidity, in whole or in part, of any provision of this Agreement shall
not affect the validity or enforceability of any other of its provisions. If
one or more provisions hereof shall be declared invalid or unenforceable, the
remaining provisions shall remain in full force and effect and shall be
construed in the broadest possible manner to effectuate the purposes hereof.
The parties further agree to replace such void or unenforceable provisions of
this Agreement with valid and enforceable provisions which will achieve, to the
extent possible, the economic, business and other purposes of the void or
unenforceable provisions.
24. ENTIRE AGREEMENT. This Agreement is intended by the parties
hereto to be the final expression of their agreement and constitutes and
embodies the entire agreement and understanding between the parties hereto with
regard to the subject matter hereof and is a complete and exclusive statement of
the terms and conditions thereof, and shall supersede any and all prior oral and
written correspondence, conversations, negotiations, agreements and
understandings relating to the same subject matter.
15
25. ATTORNEYS' FEES. In any action at law or in equity to enforce
any of the provisions or rights under this Agreement, the unsuccessful party to
such litigation, as determined by the court in a final judgement or decree,
shall pay the successful party all costs, expenses and reasonable attorney's
fees, as set by the court and not by a jury, incurred by the successful party
(including, without limitation, costs, expenses and fees on any appeal).
26. CONSIDERATION FOR APPROVALS OR WAIVERS. No consideration shall
be paid to any Holder to obtain such Holder's approval for or waiver of any
amendment of this Agreement or any matter requiring the approval or consent of
the Holders hereunder unless such consideration is also offered to all Holders,
pro rata based upon the number of Registrable Securities held by the Holders.
16
IN WITNESS WHEREOF, the parties hereto have executed this Registration
Rights Agreement with the intent and agreement that the same shall be effective
as of the day and year first above written.
THE COMPANY:
ACRES GAMING INCORPORATED,
a Nevada Corporation
000 X.X. Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxx 00000
By:
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Xxxx X. Acres
THE INVESTOR:
IGT,
a Nevada Corporation
X.X. Xxx 00000
0000 Xxxx Xxxx
Xxxx, Xxxxxx 00000
By:
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