EXHIBIT 4(c)
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REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT (this "Agreement"), dated as of December 17,
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1997, by and among Interactive Entertainment Limited, a Bermuda exempted company
(the "Company"), and each of the entities whose names appear on the signature
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pages hereof. Such entities are each referred to herein as a "Purchaser" and,
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collectively, as the "Purchasers".
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The Company has agreed, on the terms and subject to the conditions set
forth in the Securities Purchase Agreement of even date herewith (the
"Securities Purchase Agreement"), to issue and sell to each Purchaser (i) shares
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(the "Preferred Shares") of the Company's Series A Convertible Preference Shares
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(the "Preferred Stock") and (ii) a Warrant (each, a "Warrant" and, when taken
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together with all of the warrants issued pursuant to the terms of the Securities
Purchase Agreement, the "Warrants") entitling the holder thereof to purchase
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shares (the "Warrant Shares") of Common Stock (as defined below). The Preferred
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Shares are convertible into shares (the "Conversion Shares") of the Company's
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Common Stock (the "Common Stock"), pursuant to the terms approved by the
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Company's Board of Directors (the "Authorized Terms"). In order to induce the
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Purchasers to enter into the Securities Purchase Agreement, the Company has
agreed to provide the certain registration rights provided herein under the
Securities Act of 1933, as amended (the "Securities Act"), and under applicable
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state securities laws. Capitalized terms used herein and not otherwise defined
shall have the respective meanings set forth in the Securities Purchase
Agreement.
In consideration of each Purchaser entering into and consummating its
obligations under the Securities Purchase Agreement, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties agree as follows:
4. DEFINITIONS.
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For purposes of this Agreement, the following terms shall have the meanings
specified:
(a) "Tranche A Closing Date" and "Tranche B Closing Date" shall have
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the respective meanings specified in the Securities Purchase Agreement;
(b) "Registration Deadline" means the one hundred and thirty fifth
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(135th) day following the Tranche A Closing Date;
(c) "Holder" means any person owning or having the right to acquire,
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through conversion of Preferred Shares or exercise of the Warrants, Registrable
Securities, including initially each Purchaser and thereafter any permitted
assignee thereof;
(d) "Register", "registered" and "registration" refer to a
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registration effected by preparing and filing a registration statement or
statements in compliance with the Securities Act and pursuant to Rule 415 under
the Securities Act ("Rule 415") or any successor rule providing for the offering
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of securities on a continuous basis ("Registration Statement"), and the
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declaration or ordering of effectiveness of the Registration Statement by the
Securities and Exchange Commission (the "Commission"); and
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(e) "Registrable Securities" means the Conversion Shares, the Warrant
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Shares and the Dividend Payment Shares, and any other shares of Common Stock
issued or issuable pursuant to the terms of the Preferred Stock, whether as a
dividend, payment of a redemption price or otherwise, and any shares of capital
stock issued or issuable from time to time (with any adjustments) in replacement
of, in exchange for or otherwise in respect of the Conversion Shares, the
Warrant Shares or such Dividend Payment Shares.
5. MANDATORY REGISTRATION.
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(a) The Company shall prepare and file with the Commission a
Registration Statement on Form S-3 (or, if Form S-3 is not available, on such
form of Registration Statement as is then available to effect a registration of
the Registrable Securities, subject to the consent of each Purchaser, which
consent will not be unreasonably withheld) as a "shelf" registration statement
under Rule 415 covering the resale of at least 200% of the number of shares of
Registrable Securities then issuable on (i) conversion of the Preferred Shares
then issued or issuable (assuming conversion at the Fixed Conversion Price) and
(ii) exercise in full of the Warrants then issued or issuable. The Registration
Statement shall state, to the extent permitted by Rule 416 under the Securities
Act, that it also covers such indeterminate number of shares of Common Stock as
may be required to effect (i) conversion of the Preferred Shares to prevent
dilution resulting from stock splits, stock dividends or similar events, or by
reason of changes in the Conversion Price in accordance with the terms of the
Authorized Terms; and (ii) exercise of the Warrants in full to prevent dilution
resulting from stock splits, stock dividends or similar events.
(b) The Company shall use its best efforts to cause the Registration
Statement to become effective as soon as practicable following the filing
thereof, but in no event later than the Registration Deadline, and shall submit
to the Commission, within five (5) business days after the Company learns that
no review of the Registration Statement will be made by the staff of the
Commission or that the staff of the Commission has no further comments on the
Registration Statement, as the case may be, a request for acceleration of the
effectiveness of the Registration Statement to a time and date not later than
forty-eight (48) hours after the submission of such request (the "Effective
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Date"), and maintain the effectiveness of the Registration Statement until the
earlier to occur of (i) the date on which all of the Registrable Securities have
been sold pursuant to the Registration Statement, (ii) the date on which all of
the remaining Registrable Securities (in the opinion of counsel to the Purchaser
reasonably acceptable to the Company) may be immediately sold to the public
without registration and without regard to the amount of Registrable Securities
which may be sold by a Holder thereof at a given time and (iii) the twenty-four
(24) month anniversary of the Tranche B Closing Date (the "Registration
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Period").
(c) If (A) the Registration Statement is not declared effective by
the Commission on or before the Registration Deadline, (B) after the
Registration Statement has been declared effective by the Commission, sales of
Registrable Securities cannot be made by a Holder under the Registration
Statement for any reason not within the control of such Holder or not permitted
by the terms hereof (other than such Registrable Securities as are then freely
saleable pursuant to Rule 144(k) under the Securities Act) or (C) the Common
Stock is not included for quotation on the Nasdaq SmallCap Market or the Nasdaq
National Market ("Nasdaq") or listed on the New York Stock Exchange or other
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national securities exchange at any time after the Registration Deadline, the
Company shall pay to such Holder an amount equal to the lesser of (x) two
percent (2%) per month and (y) the highest rate permitted by applicable law,
times the aggregate purchase price of the Preferred Shares held by such Holder,
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accruing daily and compounded monthly, from the Registration Deadline or, where
the Registration Statement has become effective, from the date on which the
Registration Statement lapses or is otherwise unavailable, until the Effective
Date or the date on which the Registration Statement becomes available for sales
of Registrable Securities, as the case may be. The amounts paid or payable by
the Company hereunder shall be in lieu of any other remedies available to the
Purchaser at law or in equity or pursuant to the terms of any other Transaction
Document. Payments of cash pursuant hereto shall be made within five (5)
business days after the end of each period that gives rise to such obligation,
provided that, if any such period extends for more than thirty (30) days,
payments shall be made within five (5) business days after the end of each
thirty-day period.
(d) Restrictions on Sales Pursuant to Mandatory Registrations.
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Following the Effective Date, the Company may, by delivery of written notice to
the Holders of Registrable Securities identified in the Registration Statement
(the "Blackout Notice"), require that such Holders not sell any of the
Registrable Securities for the period set forth in the Blackout Notice (the
"Blackout Period"); provided, however, that in no event shall the duration of
any one Blackout Period exceed five (5 ) days and in no event shall the Company
require more than (i) two (2) Blackout Periods in the first (1st) twelve (12)
month period after the date hereof and (ii) four (4) Blackout Periods in the
second (2nd) twelve (12) month period after the date hereof.
6. PIGGYBACK REGISTRATION.
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If at any time prior to the expiration of the Registration Period, (i) the
Company proposes to register shares of Common Stock under the Securities Act in
connection with the public offering of such shares for cash (other than a
registration relating solely to the sale of securities to participants in a
Company stock plan or employee stock award or a registration on Form S-4 or Form
S-8 under the Securities Act or any successor or similar form registering stock
issuable upon a reclassification, a business combination involving an exchange
of securities or an exchange offer for securities of the issuer or another
entity) (a "Proposed Registration") and (ii) a registration statement covering
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the sale of all of the Registrable Securities is not then effective and
available for sales thereof by the Holders (other than as provided herein), the
Company shall, at such time, promptly give each Holder written notice of such
Proposed Registration. Each Holder shall have ten (10) days from its receipt of
such notice to deliver to the Company a written request specifying the amount of
Registrable Securities that such Holder intends to sell and such Holder's
intended method of distribution. Upon receipt of such request, the Company
shall use its best efforts to cause all Registrable Securities which the Company
has been requested to register to be registered under the Securities Act to the
extent necessary to permit their sale or other disposition in accordance with
the intended methods of distribution specified in the request of such Holder;
provided, however, that the Company shall have the right to postpone or withdraw
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any registration effected pursuant to this Section 3 without obligation to the
Holder. If, in connection with any underwritten public offering for the account
of the Company, the managing
underwriter(s) thereof shall impose a limitation on the number of shares of
Common Stock which may be included in the Registration Statement because, in
such underwriter(s)' judgment, marketing or other factors dictate such
limitation is necessary to facilitate public distributions, then the Company
shall be obligated to include in such Registration Statement only such limited
portion of the Registrable Securities with respect to which each Holder has
requested inclusion hereunder as such underwriter(s) shall permit. Any exclusion
of Registrable Securities shall be made pro rata among the Holders seeking to
include Registrable Securities in the Registration Statement, in proportion to
the number of Registrable Securities sought to be included by such Holders;
provided, however, that the Company shall not exclude any Registrable Securities
unless the Company has first excluded all outstanding securities, the holders of
which are not entitled to inclusion of such securities in such Registration
Statement or are not entitled to pro rata inclusion with the Registrable
Securities; and provided, further, however, that, after giving effect to the
immediately preceding proviso, any exclusion of Registrable Securities shall be
made pro rata with holders of other securities having the right to include such
securities in the Registration Statement subject to any rights of priority by
Holders of other securities. If an offering in connection with which a Holder is
entitled to registration under this Section 3 is an underwritten offering, then
as a condition of participating in the registration each Holder whose
Registrable Securities are included in such Registration Statement shall, unless
otherwise agreed by the Company, offer and sell such Registrable Securities in
an underwritten offering using the same underwriter or underwriters, subject to
the provisions of this Agreement (including, without limitation, Section 5(c)),
on the same terms and conditions as other shares of Common Stock included in the
same underwritten offering and shall join in the same underwriting agreement as
the other participants in the offering.
7. OBLIGATIONS OF THE COMPANY.
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In addition to performing its obligations hereunder, including those
pursuant to paragraphs 2(a) and 2(b) above, the Company shall:
(a) prepare and file with the Commission such amendments and
supplements to the Registration Statement and the prospectus used in connection
with the Registration Statement as may be necessary to comply with the
provisions of the Securities Act or to maintain the effectiveness of the
Registration Statement during the Registration Period, or as may be reasonably
requested by a Holder in order to incorporate information concerning such Holder
or such Holder's intended method of distribution;
(b) in the event that the number of shares available under the
Registration Statement filed by the Company hereunder is insufficient during any
period of three (3) consecutive trading days to cover 150% of the Registrable
Securities then issued or issuable, the Company shall promptly amend the
Registration Statement, or file a new Registration Statement, or both, so as to
cover 200% of such Registrable Securities, in any event as soon as practicable,
but not later than the tenth (10th) business day in the case of an amendment and
the twentieth (20th) business day in the case of a Registration Statement,
following the last day of such three (3) day period; any Registration Statement
filed pursuant to this Section 4 shall state that, to the extent permitted by
Rule 416 under the Securities Act, such Registration Statement also covers such
indeterminate number of additional shares of Common Stock as may become issuable
upon conversion of the Preferred Shares or exercise of the Warrants in full.
Unless and until such amendment or new Registration Statement becomes effective,
each Holder shall have the rights described in Section 2(c) above;
(c) use its reasonable best efforts to maintain the designation and
quotation of the Registrable Securities on the Nasdaq SmallCap Market or the
listing thereof on the New York Stock Exchange or other national securities
exchange;
(d) furnish to each Holder such number of copies of the prospectus
included in such Registration Statement, including a preliminary prospectus, in
conformity with the requirements of the Securities Act, and such other documents
as such Holder may reasonably request in order to facilitate the disposition of
such Holder's Registrable Securities;
(e) use all commercially reasonable efforts to register or qualify
the Registrable Securities under the securities or "blue sky" laws of such
jurisdictions within the United States as shall be reasonably requested from
time to time by a Holder, and do any and all other acts or things which may be
necessary or advisable to enable such Holder to consummate the public sale or
other disposition of the Registrable Securities in such jurisdictions; 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;
(f) in the event of an underwritten public offering of the
Registrable Securities, enter into and perform its obligations under an
underwriting agreement, in usual and customary form reasonably acceptable to the
Company, with the managing underwriter of such offering;
(g) notify each Holder immediately upon the occurrence of any event
as a result of which the prospectus included in such Registration Statement, as
then in effect, contains an untrue statement of material fact or omits to state
a material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances then existing,
and as promptly as practicable, prepare, file and furnish to each Holder a
reasonable number of copies of a supplement or an amendment to such prospectus,
as may be necessary so that such prospectus does not contain an untrue statement
of material fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein not misleading in light of the
circumstances then existing;
(h) use all commercially reasonable efforts to prevent the issuance
of any stop order or other order suspending the effectiveness of such
Registration Statement and, if such an order is issued, to obtain the withdrawal
thereof at the earliest possible time and to notify each Holder of the issuance
of such order and the resolution thereof;
(i) furnish to each Holder, on the date that such Registration
Statement becomes effective, (x) an opinion, dated such date, of outside counsel
representing the Company (and reasonably acceptable to such Holder) addressed to
such Holder, regarding the effectiveness of the Registration Statement and the
absence of any stop order, and (y) in the case of an underwriting, (A) an
opinion, dated such date, of such outside counsel, in form and substance as is
customarily given to underwriters in an underwritten public offering, and (B) a
letter, dated such date, from the Company's independent certified public
accountants, in form and substance as is at the time customarily given by
independent certified public accountants to underwriters in an underwritten
public offering, addressed to the underwriters, if any, and to each Holder;
(j) pursuant to the preparation of a Registration Statement, provide
each Holder and its representatives the opportunity to conduct a reasonable
inquiry of the Company's financial and other records during normal business
hours and make available its officers, directors and employees for questions
regarding information which such Holder may reasonably request in order to
fulfill any due diligence obligation on its part; provided as a condition to the
conduct of any such due diligence inquiry that each Holder conducting such
inquiry shall execute and deliver a confidentiality agreement reasonably
required
by the Company and that such inquiry be conducted in a manner which does not
interfere with the operations of the Company; and
(k) permit counsel for each Holder (at such Holder's expense) to
review such Registration Statement and all amendments and supplements thereto a
reasonable period of time prior to the filing thereof with the Commission.
8. OBLIGATIONS OF EACH HOLDER.
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In connection with the registration of the Registrable Securities pursuant
to the Registration Statement, each Holder shall:
(a) furnish to the Company such information regarding itself, the
Registrable Securities held by it, and the intended method of disposition of
Registrable Securities as the Company shall reasonably request in order to
effect the registration thereof and shall execute such documents in connection
with such registration as the Company may reasonably request;
(b) upon receipt of any notice from the Company of the happening of
any event of the kind described in paragraph 4(h), immediately discontinue
disposition of Registrable Securities pursuant to the Registration Statement
until withdrawal of the stop order referred to in paragraph 4(h) and, if so
directed by the Company, such Holder shall deliver to the Company (at the
expense of the Company) or destroy (and deliver to the Company a certificate of
destruction) all copies in such Holder's possession, of the prospectus covering
such Registrable Securities at the time of receipt of such notice, provided that
each Holder may retain a limited number of file copies of such prospectuses;
(c) in the event of an underwritten offering of the Registrable
Securities no Holder may participate in any underwritten distribution hereunder
unless such Holder: (i) enters into a customary and reasonable underwriting
agreement; (ii) completes and executes such questionnaires, powers of attorney,
indemnities, underwriting agreements, and other documents as the managing
underwriter for such offering may reasonably request; and (iii) agrees to pay
its pro rata share of all underwriting discounts and commissions and any
expenses in excess of those payable by the Company;
(d) each Holder, by such Holder's acceptance of the Registrable
Securities, agrees to cooperate with the Company as reasonably requested by the
Company in connection with the preparation and filing of the Registration
Statement hereunder, unless such Holder has notified the Company in writing of
such Holder's election to exclude all of such Holder's Registrable Securities
from the Registration Statement; and
(e) each Holder whose Registrable Securities are included in a
Registration Statement understands that the Securities Act may require delivery
of a prospectus relating to such Registration Statement, and each such Holder
shall comply with the applicable delivery requirements of the Securities Act in
connection with any such sale.
9. INDEMNIFICATION.
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In the event that any Registrable Securities are included in a Registration
Statement under this Agreement:
(a) To the extent permitted by law, the Company shall indemnify and
hold harmless each Holder, the officers, directors, employees, agents and
representatives of such Holder, and each person, if any, who controls such
Holder within the meaning of the Securities Act or the Securities Exchange Act
of 1934, as amended (the "1934 Act"), against any losses, claims, damages,
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liabilities or reasonable out-of-pocket expenses (whether joint or several)
(collectively, including legal or other expenses reasonably incurred in
connection with investigating or defending same, "Losses"), insofar as any such
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Losses arise out of (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, or (ii) the omission or alleged omission to state
therein 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. The Company will reimburse such Holder, and each such officer,
director, employee, agent, representative or controlling person for any legal or
other expenses as reasonably incurred by any such entity or person in connection
with investigating or defending any Loss; provided, however, that the foregoing
indemnity shall not apply to amounts paid in settlement of any Loss if such
settlement is effected without the consent of the Company (which consent shall
not be unreasonably withheld), nor shall the Company be obligated to indemnify
any person for any Loss to the extent that such Loss arises out of or is based
upon and in conformity with written information furnished by such person
expressly for use in such Registration Statement; and provided, further, that
the Company shall not be required to indemnify any person to the extent that any
Loss results from such person selling Registrable Securities (i) to a person to
whom there was not sent or given, at or prior to the written confirmation of the
sale of such shares, a copy of the prospectus, as most recently amended or
supplemented, if the Company has previously furnished or made available copies
thereof or (ii) during any period following written notice by the Company to
such Holder of an event described in Section 4(g) or 4(h); and provided,
further, however, that, in no event shall the indemnity under this subsection
6(a) exceed, in the aggregate, $3,000,000.
(b) To the extent permitted by law, each Holder, acting severally and
not jointly, shall indemnify and hold harmless the Company, the officers,
directors, employees, agents and representatives of the Company, and each
person, if any, who controls the Company within the meaning of the Securities
Act or the 1934 Act, against any Losses to the extent (and only to the extent)
that any such Losses arise out of or are based upon and in conformity with
written information furnished by such Holder expressly for use in such
Registration Statement; and such Holder will reimburse any legal or other
expenses as reasonably incurred by the Company and any such officer, director,
employee, agent, representative, or controlling person, in connection with
investigating or defending any such Loss; provided, however, that the foregoing
indemnity shall not apply to amounts paid in settlement of any such Loss if such
settlement is effected without the consent of such Holder; provided, that, in no
event shall any indemnity under this subsection 6(b) exceed the net purchase
price of securities sold by such Holder under the Registration Statement.
(c) Promptly after receipt by an indemnified party under this Section
6 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 6, deliver to the
indemnifying party a written notice of the commencement thereof and the
indemnifying party shall have the right to participate in and to assume the
defense thereof with counsel mutually satisfactory to the parties; provided,
however, that an indemnified party shall have the right to retain its own
counsel, with the reasonably incurred fees and expenses of one such counsel to
be paid by the indemnifying party, if representation of such indemnified party
by the counsel retained by the indemnifying party would be inappropriate under
applicable standards of professional conduct due to actual conflicting interests
between such indemnified party and any other party represented by such counsel
in such proceeding. The failure to
deliver written notice to the indemnifying 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 6 with respect to such action, but the
omission so to deliver written notice to the indemnifying party will not relieve
it of any liability that it may have to any indemnified party otherwise than
under this Section 6 or with respect to any other action.
(d) In the event that the indemnity provided in paragraph (a) or (b)
of this Section 6 is unavailable or insufficient to hold harmless an indemnified
party for any reason, the Company and each Holder agree, severally and not
jointly, to contribute to the aggregate Losses to which the Company or such
Holder may be subject in such proportion as is appropriate to reflect the
relative fault of the Company and such Holder in connection with the statements
or omissions which resulted in such Losses; provided, however, that in no case
shall such Holder be responsible for any amount in excess of the net purchase
price of securities sold by it under the Registration Statement and the Company
shall not be responsible for any amount in excess of $3,000,000. Relative fault
shall be determined by reference to whether any alleged untrue statement or
omission relates to information provided by the Company or by such Holder. The
Company and each Holder agree that it would not be just and equitable if
contribution were determined by pro rata allocation or any other method of
allocation which does not take account of the equitable considerations referred
to above. Notwithstanding the provisions of this paragraph (d), no person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who is not
guilty of such fraudulent misrepresentation. For purposes of this Section 6,
each person who controls a Holder within the meaning of either the Securities
Act or the Exchange Act and each officer, director, employee, agent or
representative of such Holder shall have the same rights to contribution as such
Holder, and each person who controls the Company within the meaning of either
the Securities Act or the Exchange Act and each officer, director, employee,
agent or representative of the Company shall have the same rights to
contribution as the Company, subject in each case to the applicable terms and
conditions of this paragraph (d).
(e) The obligations of the Company and each Holder under this Section
6 shall survive the conversion or redemption, if any, of the Preferred Shares,
the exercise of the Warrant, the completion of any offering of Registrable
Securities pursuant to a Registration Statement under this Agreement, or
otherwise.
10. REPORTS.
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With a view to making available to each Holder the benefits of Rule 144
under the Securities Act ("Rule 144") and any other similar rule or regulation
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of the Commission that may at any time permit such Holder to sell securities of
the Company to the public without registration, the Company agrees to:
(a) make and keep public information available, as those terms are
understood and defined in Rule 144;
(b) file with the Commission in a timely manner all reports and other
documents required of the Company under the Securities Act and the 1934 Act; and
(c) furnish to such Holder, so long as such Holder owns any
Registrable Securities, forthwith upon request (i) a written statement by the
Company, if true, that it has complied with the reporting requirements of Rule
144, the Securities Act and the 1934 Act, (ii) a copy of the most recent annual
or quarterly report of the Company and such other reports and documents so filed
by the Company, and (iii)
such other information as may be reasonably requested in availing such Holder of
any rule or regulation of the Commission which permits the selling of any such
securities without registration.
11. MISCELLANEOUS.
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(a) Expenses of Registration. All expenses, other than underwriting
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discounts and commissions and fees and expenses of counsel to each Holder,
incurred in connection with the registrations, filings or qualifications
described herein, including (without limitation) all registration, filing and
qualification fees, printers' and accounting fees, the fees and disbursements of
counsel for the Company, and the fees and disbursements incurred in connection
with the opinion and letter described in paragraph 4(i) hereof, shall be borne
by the Company.
(b) Amendment; Waiver. Any provision of this Agreement may be
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amended only pursuant to a written instrument executed by the Company and
Holders of two-thirds (2/3) of the outstanding Registrable Securities. Any
waiver of the provisions of this Agreement may be made only pursuant to a
written instrument executed by the party against whom enforcement is sought. Any
amendment or waiver effected in accordance with this paragraph shall be binding
upon each Holder, each future Holder, and the Company.
(c) Notices. Any notice, demand or request required or permitted to
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be given by any party to any other party pursuant to the terms of this Agreement
shall be in writing and shall be deemed given (i) when delivered personally or
by verifiable facsimile transmission (with an original to follow) on or before
5:00 p.m., eastern time, on a business day or, if such day is not a business
day, on the next succeeding business day, (ii) on the next business day after
timely delivery to a nationally-recognized overnight courier and (iii) on the
third business day after deposit in the U.S. mail (certified or registered mail,
return receipt requested, postage prepaid), addressed to the parties as follows:
If to the Company:
Interactive Entertainment Limited
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▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn.: ▇▇▇▇▇ ▇. ▇▇▇▇
Fax.: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
Altheimer & ▇▇▇▇
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` ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
and if to any Holder, to such address as shall be designated by such Holder in
writing to the Company.
(d) Termination. This Agreement shall terminate on the earlier to
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occur of (a) the end of the Registration Period and (b) the date on which all of
the Registrable Securities have been publicly distributed; but any such
termination shall be without prejudice to (i) the parties' rights and
obligations arising from breaches of this Agreement occurring prior to such
termination and (ii) the indemnification and contribution obligations under this
Agreement.
(e) Assignment. The rights of a Holder hereunder shall be assigned
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automatically to any transferee of the Preferred Shares, the Warrant or
Registrable Securities from such Holder as long as: (i) the Company is, within a
reasonable period of time following such transfer, furnished with written notice
of (x) the name and address of such transferee and (y) the Securities with
respect to which the Registration Rights are being transferred, (ii) the
transferee agrees in writing with the Company to be bound by all of the
provisions hereof and (iii) such transfer is made in accordance with the
applicable requirements of the Securities Purchase Agreement, the Authorized
Terms or the Warrant, as the case may be.
(f) Governing Law. This Agreement shall be governed by and construed
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in accordance with the laws of the State of New York without regard to the
conflict of laws provisions thereof.
(g) Registered Holder. A person or entity is deemed to be a Holder
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of Registrable Securities whenever such person or entity owns of record such
Registrable Securities. If the Company receives conflicting instructions,
notices or elections from two or more persons or entities with respect to the
same Registrable Securities, the Company shall act upon the basis of
instructions, notice or election received from the registered owner of such
Registrable Securities.
(h) No Waiver. Failure of any party to exercise any right or remedy
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under this Agreement or otherwise, or delay by a party in exercising such right
or remedy, shall not operate as a waiver thereof.
(i) Entire Agreement. This Agreement, the Preferred Stock, the
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Warrants and the Securities Purchase Agreement 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 Preferred
Stock, the Warrants and the Securities Purchase Agreement supersede all prior
agreements and understandings among the parties hereto with respect to the
subject matter hereof and thereof.
(j) Successors and Assigns. This Agreement shall inure to the
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benefit of and be binding upon the successors and assigns of each of the parties
hereto.
(k) Headings. The headings in this Agreement are for convenience of
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reference only and shall not limit or otherwise affect the meaning hereof.
(l) Counterparts. This Agreement may be executed in two or more
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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 party hereto by facsimile transmission of a copy
of this Agreement bearing the signature of the party so delivering this
Agreement.
(m) Further Assurances. Each party shall do and perform, or cause to
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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.
(n) Severability. If any provisions of this Agreement shall be
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invalid or unenforceable in any jurisdiction, such invalidity or
unenforceability shall not affect the validity or enforceability of the
remainder of this Agreement or the validity or enforceability of this Agreement
in any other jurisdiction.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date
first-above written.
INTERACTIVE ENTERTAINMENT LIMITED
By:/s/ ▇▇▇▇▇ ▇. ▇▇▇▇
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Name:
Title:
PURCHASER NAME: CC Investments, LDC
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By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Director
PURCHASER NAME: Convertible Proprietary Investment Group, Inc.
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By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President