1
EXHIBIT 10.19
MULTIMEDIA GAMES, INC.
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement"), dated as of
August 14, 1996, by and between MULTIMEDIA GAMES, INC., a Texas corporation
(the "Company"), and each Holder (as such term is defined below),
W I T N E S S E T H:
WHEREAS, AGN Venturer L.L.C., a Delaware limited liability company
("AGN"), has entered into a Put/Call Agreement of even date herewith (the
"Put/Call Agreement") with the Company pursuant to which AGN may acquire from
the Company shares of the Company's Common Stock (each a "Share" and
collectively the "Shares") pursuant to the exercise of the "Call Option" or the
"Put Option" as defined therein; and
WHEREAS, the Company is willing to register the Registerable Securities
(as hereinafter defined) under the 1933 Act upon the terms and conditions
contained in this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements herein contained, the parties hereto agree as follows:
ARTICLE I
Certain Definitions
For the purposes of this Agreement, the following terms have the
following meanings:
"Affiliate", with respect to any Person, means any other Person
directly or indirectly controlling, controlled by or under common
control with, such Person. For purposes of this
-1-
2
definition, "control" (including with correlative meanings, the terms
"controlling", "controlled by" or "under common control with"), as used
with respect to any Person, shall mean the possession, directly or
indirectly, of the power to direct or cause the direction of the
management and policies of such Person, whether through the ownership of
voting securities or by contract or otherwise.
"Beneficial owner" or "beneficially own" has the meaning given
such term in Rule 13d-3 under the 1934 Act.
"Business Day" means any day, excluding Saturday, Sunday and any
other day on which commercial banks in New York, New York are authorized
or required by law to close.
"Commission" means the Securities and Exchange Commission, and
any successor commission or agency having similar powers.
"Common Stock" means the shares of Common Stock, $.01 par value,
of the Company.
"Holder" means AGN, any Permitted Transferee of AGN (and any
subsequent Permitted Transferee) that, in each case, holds Registrable
Securities.
"1933 Act" means the Securities Act of 1933, as amended, and the
rules and regulations thereunder.
"1934 Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations thereunder.
"Permitted Transferee" means any Member of AGN and any other
Person that shall be the "Permitted Transferee" of Registerable
Securities in accordance with the terms of the Put/Call Agreement;
provided that, in each case such Person shall have executed and
delivered to the Company an executed counterpart of this Agreement and
shall have agreed to be bound
-2-
3
hereunder in the same manner and to the same extent as the Holder is
bound hereunder.
"Person" means an individual, a partnership, a joint venture, a
corporation, an association, a trust, an individual retirement account
or any other entity or organization, including a government or any
department or agency thereof.
"Registrable Securities" means the Shares. Registrable Securities
shall cease to be Registrable Securities when (i) a registration
statement (other than a registration statement on Form S-8) with respect
to the sale of the Shares shall have become effective under the 1933 Act
and the Shares shall have been disposed of under such registration
statement, (ii) they shall have been distributed to the public pursuant
to Rule 144, (iii) they shall have been otherwise transferred or
disposed of other than to a Permitted Transferee, (iv) any transfer or
disposition of them to the public shall not require their registration
or qualification under the 1933 Act or any similar state law then in
force, or (v) they shall have ceased to be outstanding.
"Registration Expenses" means all out-of-pocket expenses incident
to the Company's performance of or compliance with Article II of this
Agreement, including, without limitation, all registration and filing
fees (including filing fees with respect to the National Association of
Securities Dealers, Inc.), all fees and expenses of complying with state
securities or "blue sky" laws (including reasonable fees and
disbursements of underwriters' counsel in connection with any "blue sky"
memorandum or survey), all printing expenses, all listing fees, all
registrars' and transfer agents' fees, the fees and disbursements of
counsel for the Company and of its independent public accountants,
including the expenses of any special audits and/or "cold comfort"
letters required by or incident to such performance and compliance;
provided that, "Registration Expenses" shall not include underwriting
discounts and
-3-
4
commissions and applicable transfer taxes, if any, with respect to the
Shares and any fees and disbursements of counsel retained by the Holders
of Registrable Securities being registered, which shall be borne by the
sellers of the Registrable Securities being registered in all cases.
"Rule 144" means Rule 144 (or any successor provision) under the
1933 Act.
"Rule 144 Transaction" means any sale of Shares made in reliance
upon Rule 144 (as in effect on the date hereof) that complies with
paragraphs (e), (f) and (g) thereof (as in effect on the date hereof),
regardless of whether at the time of such Sale the seller is entitled to
rely upon paragraph (k) of Rule 144 in connection with the Sale of such
Shares.
"Shares" means the shares of Common Stock acquired or that may
acquired pursuant to the Put/Call Agreement. Shares shall also mean any
equity securities received in exchange for or with respect to such
Common Stock by way of merger, consolidation, exchange, stock dividend
or reorganization or recapitalization involving the Company in which the
Company is the surviving or resulting entity.
ARTICLE II
Registration Rights
SECTION 2.1 Registration Upon Demand.
(a) At any time after the date of acquisition of the Shares pursuant to
the Put/Call Agreement, the Holders of a majority in interest of the
Registrable Securities held by all Holders then outstanding may at any time
make a written demand of the Company for registration with the Commission under
and in accordance with the provisions of the 1933 Act of all or part of their
Registrable Securities (a "Demand Registration"); provided, however, that,
-4-
5
subject to Section 2.1(c) below, the Company need only effect one Demand
Registration. Such request shall specify the aggregate number of the
Registrable Securities proposed to be sold and shall also specify the intended
method of disposition thereof. Within ten (10) days after receipt of such
request, the Company shall give written notice (the "Notice") of such
registration request to all other Holders stating that the Company will include
in such registration all Registrable Securities as to which the Company has
received written requests for inclusion therein within twenty (20) Business
Days after the giving of the Notice. Each Notice shall also specify the number
of Registrable Securities requested to be registered and the intended method of
disposition thereof. Within five (5) Business Days after the expiration of
such twenty (20) Business Days, the Company will notify all the Holders to be
included in such registration of the other Holders and the number of
Registrable Securities requested to be included therein.
(b) Participation by Other Parties. No Person other than a Holder shall
be permitted to offer any securities under any Demand Registration unless (x)
such Person is entitled to exercise "piggyback" or incidental registration
rights pursuant to an existing contractual commitment with the Company and (y)
if such contractual commitments permit, the Holders participating in such
Demand Registration and their underwriters, if any, in their sole discretion,
determine that such Demand Registration can accommodate such additional
participation.
(c) Effective Registration and Expenses. (i) The Company shall file a
registration statement within 120 days of expiration of the 20 Business Days
referenced in Section 2.1(a) and shall use its best efforts to cause any
registration made pursuant to this Section 2.1 to be declared effective as soon
as possible; provided that, the Holders of a majority in interest of the
Registrable Securities may, by written notice to the Company prior to such
registration being declared effective, withdraw such demand and shall continue
to have the right to make one future demand pursuant to this Section 2.1. A
registration will not count as a Demand Registration until it has
-5-
6
become effective and until the earlier of (i) one (1) year from the effective
date of such registration, or (i) such time as all of the Registrable
Securities requested to be included by the Holders in such registration have
actually been sold thereunder. The Company shall pay all Registration Expenses
in connection with a registration made pursuant to this Section 2.1, whether or
not such registration becomes effective or Registrable Securities are sold
thereunder.
(ii) Subject to Section 2.1(c)(iii) below, in the event the Company
fails to file a registration statement within the 120 day period referred to in
Section 2.1(c)(i) above (the "Filing Deadline"), the Company shall issue to
each holder of Registerable Securities one-tenth (1/10th) of a share of Common
Stock for each Share held by such holder for no additional consideration. In
the event the Company fails to file a registration statement after the Filing
Deadline, the Company shall issue to each holder of Registerable Securities for
no additional consideration, one-tenth (1/10th) of a share of Common Stock for
each Share held by such holder for each additional 120 day period (without
proration) that the Company fails to file a registration statement. In the
event of the delay of the filing of a registration statement due to a
Disadvantageous Condition (as defined below), the Filing Deadline and the
subsequent 120 day periods referred to in this Section 2.1(c)(ii) shall be
automatically extended and reimposed until such Disadvantageous Condition no
longer exists.
(iii) Anything to the contrary in this Section 2.1(c) notwithstanding,
if the Board of Directors of the Company determines that, in its judgment, it
would (because of the existence of, or in anticipation of, any acquisition
involving the Company or any financing activity, or the unavailability for
reasons substantially beyond the Company's control of any required financial
statements, or any other event or condition of similar significance to the
Company) be significantly disadvantageous (a "Disadvantageous Condition") to
the Company for such a registration statement to be filed or to become
effective, the Company shall, notwithstanding any other provision of this
Section 2.1, be entitled, upon the giving of a
-6-
7
written notice (a "Delay Notice") to such effect to each holder of Registrable
Securities included or to be included in such registration statement, to cause
such registration statement to be withdrawn or, in the event no registration
statement has yet been filed, to delay the filing of any such registration
statement, until, in the judgment of the Board of Directors, such
Disadvantageous Condition no longer exists (notice of which the Company shall
promptly deliver to the holders of Registrable Securities with respect to which
any such registration statement has been filed, or was to have been filed). No
registration statement filed and subsequently withdrawn by reason of any
existing or anticipated Disadvantageous Condition as hereinabove provided shall
count as a Demand Registration.
(d) Selection of Underwriters. If any Demand Registration is an
underwritten offering, the Holders holding a majority of the Registrable
Securities to be registered by the Holders may, at their option, select and
obtain the investment banker or bankers and managing underwriter or
underwriters that will administer the offering, such investment banker or
bankers and managing underwriter or underwriters to be reasonably satisfactory
to the Company.
SECTION 2.2. Incidental Registration.
(a) If the Company at any time proposes to register for its own account
or for the account of a selling shareholder, securities under the 1933 Act on a
form and in a manner that would permit registration of Registrable Securities
for sale to the public under the 1933 Act, it will, at each such time, give
prompt written notice to all Holders of Registrable Securities of its intention
to do so, describing such securities and specifying the form and manner and the
other relevant facts involved in such proposed registration (including, without
limitation, whether or not such registration will be in connection with an
underwritten offering of its Common Stock and, if so, the identity of the
managing underwriter and whether such offering will be pursuant to a "best
efforts" or "firm commitment" underwriting). Each Holder of Registerable
Securities hereby agrees to include all
-7-
8
the Registerable Securities held by such Holder in such registration statement
and the Company will use its best efforts to effect the registration under the
1933 Act, as expeditiously as is reasonable, of all such Registrable Securities
to the extent requisite to permit the disposition (in accordance with the
intended methods thereof as aforesaid) of the Registrable Securities so to be
registered; provided, however, that:
(i) if, at any time after giving such written notice of its
intention to register any of such securities and prior to the effective date of
the registration statement filed in connection with such registration, the
Company shall determine for any reason not to register such securities, the
Company may, at its election, give written notice of such determination to
each Holder of Registrable Securities and thereupon the Company shall be
relieved of its obligation to register any Registrable Securities in connection
with such registration (but not from its obligation to pay the Registration
Expenses in connection therewith to the extent provided in Section 2.1(c));
(ii) if the registration so proposed by the Company involves an
underwritten offering of the securities to be registered and the managing
underwriter thereof advises the Company that, in its opinion, the number of
securities proposed to be included in such offering by the Company and the
number of shares of Registrable Securities proposed to be included in such
offering by the Holder or Holders thereof should be limited due to market
conditions, the Company may require, by written notice to each such Holder,
that, to the extent necessary to meet such limitation on the number of shares
of Registrable Securities that the Holders are permitted to sell, all Holders
of Registrable Securities proposing to sell shares of Registrable Securities in
such offering shall share pro rata in the number of shares of Registrable
Securities to be excluded from such offering, such sharing to be based on the
respective numbers of shares of Registrable Securities held by such Holders.
To the extent any Registerable Securities are required to be excluded from such
underwritten offering (the "Excluded Securities"), such Excluded
-8-
9
Securities shall nevertheless be included in such registration for sale to the
public (but shall not be a part of the securities sold to the underwriter of
such offering) and the Holders shall agree not to offer or sell the Excluded
Securities for a period of 90 days following the effective date of any such
registration;
(iii) the Company shall not be obligated to effect any
registration of Registrable Securities under this Section 2.2 that is
incidental to the registration of any of its securities in connection with any
merger, acquisition, exchange offer, dividend reinvestment plan or stock option
or other employee benefit plan.
(b) The Company will pay all Registration Expenses in connection with
each registration of Registrable Securities effected by it pursuant to this
Section 2.2, whether or not such registration becomes effective or Registerable
Securities are sold thereunder.
SECTION 2.3 Registration Procedures.
(a) If and whenever the Company is required to use its best efforts to
effect the registration of any Registrable Securities under the 1933 Act as
provided in Section 2.1 and 2.2, the Company will as expeditiously as is
reasonable:
(i) subject to the terms and conditions of this Agreement, use
its best efforts to cause such registration statement to become effective;
(ii) prepare and file with the Commission such amendments
(including post-effective amendments) and supplements to such registration
statement and the prospectus used in connection therewith as may be necessary
to keep such registration statement effective and to comply with the
provisions of the 1933 Act with respect to the disposition of all Registrable
Securities and other securities covered by such registration statement until
the earlier of (A) such time as all such Registrable Securities and other
securities have been disposed of in accordance with the intended
-9-
10
methods of disposition by the seller or sellers thereof set forth in such
registration statement and (B) the expiration of one year from the date such
registration statement first becomes effective;
(iii) furnish to each seller of such Registrable Securities such
number of conformed copies of such registration statement and of each such
amendment and supplement thereto (in each case including all exhibits), such
number of copies of the prospectus included in such registration statement
(including each preliminary prospectus and any summary prospectus), in
conformity with the requirements of the 1933 Act, such documents incorporated
by reference in such registration statement or prospectus, and such other
documents, as such seller may reasonably request in order to facilitate the
sale or disposition of such Registrable Securities;
(iv) use its best efforts to register or qualify all Registrable
Securities and other securities covered by such registration statement under
such other securities or "blue sky" laws of such jurisdictions as each seller
shall reasonably request, and do any and all other acts and things that may be
necessary to enable such seller to consummate the disposition in such
jurisdictions of its Registrable Securities covered by such registration
statement, except that the Company shall not for any such purpose be required
to qualify generally to do business as a foreign corporation in any
jurisdiction wherein it is not so qualified, or to subject itself to taxation
in respect of doing business in any such jurisdiction, or to consent to general
service of process in any such jurisdiction;
(v) immediately notify each seller of Registrable Securities
covered by such registration statement at any time when a prospectus relating
thereto is required to be delivered under the 1933 Act, of the happening of any
event as a result of which the prospectus included in such registration
statement, as then in effect, includes an untrue statement of a material fact
or omits to state any material fact required to be stated therein or necessary
to make the statements therein not misleading in the light of the circumstances
then existing or if it is necessary to amend or
-10-
11
supplement such prospectus to comply with law, and at the request of any such
seller prepare and furnish to such seller a reasonable number of copies of a
supplement to or an amendment of such prospectus as may be necessary so that,
as thereafter delivered to the purchasers of such Registrable Securities or
securities, such prospectus shall not include an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in the light of the
circumstances then existing and shall otherwise comply in all material respects
with law and so that such prospectus, as amended or supplemented, will comply
with law;
(vi) otherwise use its best efforts to comply with all
applicable rules and regulations of the Commission, and make available to its
security holders, as soon as reasonably practicable, an earnings or financial
statement which shall satisfy the provisions of Section 11(a) of the 1933 Act;
(vii) use its best efforts to list such securities on NASDAQ and
each securities exchange on which shares of Common Stock are then listed, if
such securities are not already so listed and if such listing is then permitted
under the rules of such exchange, and provide a transfer agent and registrar
for such Registrable Securities not later than the effective date of such
registration statement; and
(viii) issue to any underwriter to which any Holder of
Registrable Securities may sell such Registrable Securities in connection with
any such registration (and to any direct or indirect transferee of any such
underwriter) certificates evidencing shares of Common Stock without any
restrictive legends. The Company may require each seller of Registrable
Securities as to which any registration is being effected to furnish the
Company with such information regarding such seller and the distribution of
such securities as the Company may from time to time reasonably request in
writing and as shall be required by law or by the Commission in connection
therewith.
-11-
12
(b) If requested by the underwriters for any underwritten offering of
Registrable Securities on behalf of a Holder or Holders of Registrable
Securities, the Company will enter into an underwriting agreement with such
underwriters for such offering, such agreement to contain such representations
and warranties by the Company and such other terms and conditions as are
customarily contained in underwriting agreements with respect to secondary
distributions, including, without limitation, indemnities to the effect and to
the extent provided in Section 2.5.
(c) If any registration shall be in connection with an underwritten
public offering, each Holder of Registrable Securities agrees (whether or not
such Holder has registered Shares in such offering), if so required by the
managing underwriters, not to effect any public sale or distribution (including
any sale pursuant to Rule 144) of Registrable Securities (other than as part of
such underwritten public offering) within 7 days prior to the effective date of
the registration statement with respect to such underwritten public offering or
90 days after the effective date of such registration statement.
(d) The Company agrees, if so required by the managing underwriters in
connection with an underwritten offering of Registrable Securities, not to
effect any public sale or distribution of any of its equity securities or
securities convertible into or exchangeable or exercisable for any of such
equity securities during the 7 days prior to and the 120 days after the
effective date of any registration statement with respect to such underwritten
public offering, except as part of such underwritten offering or except in
connection with a stock option plan, stock purchase plan, savings or similar
plan, or an acquisition, merger or exchange offer.
(e) It is understood that in any underwritten offering of Registrable
Securities in addition to the shares (the "initial shares") the underwriters
have committed to purchase, the underwriting agreement may grant the
underwriters an option to purchase a number of additional shares (the "option
shares") equal to
-12-
13
up to 15% of the initial shares (or such other maximum amount as the National
Association of Securities Dealers, Inc. may then permit), solely to cover
over-allotments. Shares proposed to be sold by the Company and the Holders
shall be allocated between initial shares and option shares as agreed or, in
the absence of agreement, pro rata in relation to the number of initial shares
sold by each.
SECTION 2.4. Preparation; Reasonable Investigation.
In connection with the preparation and filing of each registration
statement registering Registrable Securities under the 1933 Act, the Company
will give the Holders of Registrable Securities on whose behalf such
Registrable Securities are to be so registered and their underwriters, if any,
and their respective counsel and accountants, the opportunity to participate in
the preparation of such registration statement, each prospectus included
therein or filed with the Commission, and each amendment thereof or supplement
thereto, and will give each of them such access to its books and records and
such opportunities to discuss the business of the Company with its officers and
the independent public accountants who have issued a report on its financial
statements as shall be necessary, in the opinion of such Holders and such
underwriters or their respective counsel, to conduct a reasonable investigation
within the meaning of the 1933 Act. Without limiting the foregoing, each
registration statement, prospectus, amendment, supplement or any other document
filed with respect to a registration under this Agreement shall be subject to
review and reasonable approval by the holders registering Registrable
Securities in such registration and by their counsel.
SECTION 2.5. Indemnification.
(a) In the event of any registration of any Registerable Securities
under the 1933 Act, the Company will, and hereby does, indemnify and hold
harmless, the seller of any Registrable Securities covered by such registration
statement, its directors and officers, each other Person who participates as
an underwriter in the offering or sale of such securities, each officer and
director of each such
-13-
14
underwriter, and each other Person, if any, who controls such seller or any
such underwriter within the meaning of Section 15 of the 1933 Act or Section 20
of the 1934 Act, against any losses, claims, damages, liabilities and expenses,
including legal and other expenses incurred in investigating and defending any
such claim, joint or several, to which such seller or any such director or
officer or participating or controlling Person may become subject under the
1933 Act or otherwise, insofar as such losses, claims, damages, liabilities or
expenses (or actions or proceedings in respect thereof) arise out of or are
based upon (i) any untrue statement or alleged untrue statement of any material
fact contained in any registration statement under which such securities were
registered under the 1933 Act, any preliminary prospectus, final prospectus or
summary prospectus included therein, or any amendment or supplement thereto, or
any document incorporated by reference therein, (ii) any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and the Company will
reimburse such seller, and each such director, officer, underwriter and
controlling Person for any legal or any other expenses reasonably incurred by
them in connection with investigating or defending any such loss, claim,
liability, action or proceeding or (iii) any violation of any rule or
regulation promulgated under the 1933 Act or any other applicable federal or
state securities law and relating to any action or inaction of the Company in
connection with such registration; provided, however, that the Company shall
not be liable in any such case to the extent that any such loss, claim, damage,
liability (or action or proceeding in respect thereof) or expense arises out of
or is based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in such registration statement, any such preliminary
prospectus, final prospectus, summary prospectus, amendment or supplement in
reliance upon and in conformity with written information furnished to the
Company expressly for use in the preparation thereof by such seller or
underwriter, as the case may be. Such indemnity shall remain in full force and
effect regardless of any investigation made by or on behalf of such seller or
any such
-14-
15
director, officer, underwriter or controlling Person and shall survive the
transfer of such securities by such seller.
(b) The Company may require, as a condition to including any
Registrable Securities in any registration statement filed pursuant to this
Agreement, that the Company shall have received an undertaking satisfactory to
it from (i) the prospective seller of such securities, to indemnify and hold
harmless the Company in the same manner and to the same extent as set forth in
Section 2.5(a) to the extent that the Company incurs any loss, claim, damage,
liability (or action or proceeding in respect thereof) or expense arising out
of or based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in such registration statement, any such preliminary
prospectus, final prospectus, summary prospectus, amendment or supplement in
reliance upon and in conformity with written information furnished to the
Company expressly for use in the preparation thereof by such prospective
seller, except that any such prospective seller shall not in any event be
liable to the Company pursuant thereto for an amount in excess of the net
proceeds of sale of such prospective seller's Registrable Securities so to be
sold) the Company, each such underwriter of such securities, each officer and
director of each such underwriter and each other Person, if any, who controls
the Company or any such underwriter within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act, and (ii) each such underwriter of such
securities, to indemnify and hold harmless (in the same manner and to the same
extent as set forth in Section 2.5(a)) the Company, each officer and director
of the Company, each prospective seller, each officer and director of each
prospective seller (and, if such prospective seller is a portfolio or
investment fund, its investment advisors and the directors and officers
thereof) and each other Person, if any, who controls the Company or any such
prospective seller within the meaning of Section 15 of the 1933 Act or Section
20 of the 1934 Act, with respect to any statement in or omission from such
registration statement, any preliminary prospectus, final prospectus or summary
prospectus included therein, or any amendment or supplement thereto, if such
statement or omission was made in reliance upon and in conformity
-15-
16
with written information furnished by such prospective seller or such
underwriter, as the case may be, to the Company for use in the preparation of
such registration statement, preliminary prospectus, final prospectus, summary
prospectus, amendment or supplement. Such indemnity shall remain in full force
and effect regardless of any investigation made by or on behalf of the Company
or any such director, officer or controlling Person and shall survive the
transfer of such securities by such seller.
(c) Promptly after receipt by an indemnified party of notice of the
commencement of any action or proceeding (including any governmental
investigation) involving a claim referred to in Section 2.5(a) or (b), such
indemnified party will, if a claim in respect thereof is to be made against an
indemnifying party, give written notice to the latter of the commencement of
such action; provided, however, that the failure of any indemnified party to
give notice as provided herein shall not relieve the indemnifying party of its
obligations under the preceding provisions of this Section 2.5, except to the
extent that the indemnifying party is actually prejudiced by such failure to
give notice. In case any such action is brought against an indemnified party,
unless in such indemnified party's reasonable judgment a conflict of interest
between such indemnified and indemnifying parties may exist in respect of such
claim (in which case, the indemnifying party shall not be liable for the fees
and expenses of more than one counsel for all sellers of Registrable
Securities, or more than one counsel for the underwriters in connection with
any one action or separate but similar or related actions), the indemnifying
party will be entitled to participate in and to assume the defense thereof,
jointly with any other indemnifying party similarly notified, to the extent
that it may wish with counsel reasonably satisfactory to such indemnified
party, and after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof, the indemnifying party will
not be liable to such indemnified party for any legal or other expenses
subsequently incurred by the latter in connection with the defense thereof.
The indemnifying party shall not, without the consent of the indemnified party,
settle or compromise any claim or
-16-
17
consent to the entry of any judgment which settlement, compromise or judgment
would materially and adversely affect the indemnified party other than as a
result of money damages or other money payments; provided, that, if the
indemnified party shall fail or refuse to consent to such settlement,
compromise or judgment proposed by the indemnifying party and approved by the
person asserting such claim, and a judgment thereafter shall be entered or a
settlement or compromise thereafter shall be effected on terms less favorable
in the aggregate to the indemnified party than the settlement, compromise or
judgment so proposed, the indemnifying party shall have no liability with
respect to money or other damages in excess of those provided for in the
settlement, compromise or judgment so proposed or any costs or expenses related
to such claim arising after the date such settlement, compromise or judgment
was so proposed.
SECTION 2.6. Contribution.
If the indemnification provided for in Section 2.5 is unavailable to the
indemnified party or parties in respect of any losses, claims, damages or
liabilities referred to therein, then each such indemnified party and the
Company shall contribute to the amount of such losses, claims, damages or
liabilities (a) as between the Company and the Holders of Registrable
Securities covered by a registration statement, on the one hand, and the
underwriters, on the other, in such proportion as is appropriate to reflect the
relative benefits received by the Company and such Holders, on the one hand,
and the underwriters, on the other, from the offering of the Registrable
Securities, or if such allocation is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits but also
the relative fault of the Company and such Holders, on the one hand, and of the
underwriters, on the other, in connection with the statements or omissions that
resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations, and (b) as between the Company, on the one
hand, and each Holder of Registrable Securities covered by a registration
statement, on the other, in such proportion as is appropriate to reflect the
relative fault of the Company and of each
-17-
18
such Holder in connection with such statements or omissions, as well as any
other relevant equitable considerations. The relative benefits received by the
Company and such Holders, on the one hand, and the underwriters, on the other,
shall be deemed to be in the same proportion as the total proceeds from the
offering (net of underwriting discounts and commissions but before deducting
expenses) received by the Company and such Holders bear to the total
underwriting discounts and commissions received by the underwriters. The
relative fault of the Company and such Holders, on the one hand, and of the
underwriters, on the other, shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or
the omission or alleged omission to state a material fact relates to
information supplied by the Company and such Holders or by the underwriters.
The relative fault of the Company, on the one hand, and of each such Holder, on
the other, shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact relates to information
supplied by such party, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and the Holders of Registrable Securities agree that it
would not be just and equitable if contribution pursuant to this Section 2.5
were determined by pro rata allocation (even if the underwriters were treated
as one entity for such purpose) or by any other method of allocation that does
not take account of the equitable considerations referred to in the next
preceding paragraph. The amount paid or payable by an indemnified party as a
result of the losses, claims, damages or liabilities referred to in the next
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this Section 2.5, no underwriter
shall be required to contribute any amount in excess of the amount by which the
total price at which the Registrable Securities underwritten by it and
distributed to the public were offered to the public exceeds the
-18-
19
amount of any damages that such underwriter has otherwise paid by reason of
such untrue or alleged untrue statement or omission or alleged omission, and no
Holder of Registrable Securities shall be required to contribute any amount in
excess of the amount by which the total price at which the Registrable
Securities of such Holder were offered to the public exceeds the amount of any
damages that such Holder has otherwise paid by reason of such untrue or alleged
untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the 0000
Xxx) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. Each Holder's obligation to contribute
pursuant to this Section 2.5 is several in the proportion that the proceeds of
the offering received by such Holder bears to the total proceeds of the
offering received by all sellers (including the Company) of securities in such
offering, and not joint.
SECTION 2.7 Nominees of Beneficial Owners.
In the event that any Registrable Securities are held by a nominee for
the beneficial owner thereof, the beneficial owner thereof may, at its
election, be treated as the Holder of such Registrable Securities for purposes
of any request or other action by any Holder or Holders of Registrable
Securities pursuant to this Agreement or any determination of any number or
percentage of shares of Registrable Securities held by any Holder or Holders of
Registrable Securities contemplated by this Agreement. If the beneficial owner
of any Registrable Securities so elects, the Company may require assurances
reasonably satisfactory to it of such owner's beneficial ownership of such
Registrable Securities.
-19-
20
ARTICLE III
Miscellaneous
SECTION 3.1. Termination. This Agreement shall terminate on the tenth
anniversary of the execution and delivery hereof.
SECTION 3.2. Representations. Each of the parties hereto represents
that this Agreement has been duly authorized, executed and delivered by it and
constitutes its legal, valid and binding obligation, enforceable against it in
accordance with its terms.
SECTION 3.3. Certain Remedies. Without intending to limit the remedies
available to any of the parties hereto, each of the parties hereto agrees that
damages at law will be an insufficient remedy in the event such party violates
the terms hereof and each of the parties hereto further agrees that each of the
other parties hereto may apply for and have injunctive or other equitable
relief in any court of competent jurisdiction to restrain the breach or
threatened breach of, or otherwise specifically to enforce, any of such party's
agreements set forth herein.
SECTION 3.4. Amendments and Waivers. Any term of this Agreement may be
amended and the observance of any such term may be waived (either generally or
in a particular instance and either retroactively or prospectively) only with
the written consent of the Company and a majority in interest of the holders of
the Registrable Securities. Each Holder shall be bound by any amendment or
waiver authorized by this Section 3.4, whether or not such Holder shall have
consented thereto.
SECTION 3.5. Notices. All notices and other communications provided
for herein shall be in writing and shall be delivered by telecopy, by hand or
sent by certified or registered mail, return receipt requested, postage
prepaid, addressed, if to any Holder, to such Holder at such address as such
Holder shall have specified in writing to the party giving any such notice or
sending any such
-20-
21
communication), and, if to the Company, to Multimedia Games, Inc., 0000 Xxxxx
Xxxxx Xxxxxx, Xxxxx, Xxxxxxxx 00000, Attention: Vice President-Finance, (or to
such other address as the Company shall have specified in writing to the party
giving any such notice or sending any such communication). All such notices
shall be conclusively deemed to be received and shall be effective, (i) if sent
by hand delivery, upon receipt, (ii) if sent by telecopy, upon dispatch
thereof, or (iii) if sent by registered or certified mail, on the third day
after the day on which such notice is mailed.
SECTION 3.6. Benefit; Successors and Assigns. Except as otherwise
provided herein, this Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective successors and permitted
assigns; provided, however, that this Agreement shall not inure to the benefit
of any Permitted Transferee unless such Permitted Transferee shall have
executed and delivered to the Company an executed counterpart of this Agreement
and shall have agreed to be bound hereunder in the same manner and to the same
extent as Holder is bound hereunder. Holder may not assign any of its rights
hereunder to any Person other than a Permitted Transferee that has complied
with the requirements of the preceding sentence in all respects. Nothing in
this Agreement either express or implied is intended to confer on any person
other than the parties hereto and their respective successors and permitted
assigns, any rights, remedies or obligations under or by reason of this
Agreement.
SECTION 3.7 Attorneys' Fees. In any action or proceeding brought to
enforce any provision of this Agreement or where any provision hereof is
validly asserted as a defense, the successful party shall be entitled to
recover reasonable attorneys' fees and expenses in addition to any other
available remedy.
SECTION 3.8. Miscellaneous. This Agreement sets forth the entire
agreement and understanding among the parties hereto, and supersedes all prior
agreements and understandings, relating to the subject matter hereof. All
representations and warranties contained herein shall survive the execution and
delivery of this Agreement,
-21-
22
regardless of any investigation made by any party hereto or on such party's
behalf. This Agreement shall be construed and enforced in accordance with and
governed by the law of the State of Oklahoma without regard to the conflict of
laws provisions thereof. The headings in this Agreement are for purposes of
reference only and shall not limit or otherwise affect the meaning hereof.
This Agreement may be executed in any number of counterparts, each of which
shall be deemed to be an original, but all of which together shall constitute
one instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized signatories thereunto duly
authorized as of the day and year first above written.
MULTIMEDIA GAMES, INC.
By:
--------------------------------------
AGN VENTURER L.L.C.
By:
---------------------------------------
Address:
-22-
