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EXHIBIT 99.20
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made and
entered into as of July 20, 1999, by and between MALIBU ENTERTAINMENT
WORLDWIDE, INC., a Georgia corporation (the "Company"), and SZ CAPITAL, L.P. a
Delaware limited partnership (the "Purchaser").
RECITALS
The parties hereto have entered into, or are equity owners in
entities that have entered into, other agreements which contemplate, among
other things, the execution and delivery of this Agreement by the parties
hereto.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements herein contained, the parties hereto hereby agree as
follows:
1. Definitions. For purposes of this Agreement, the following terms
have the following meanings when used herein with initial capital letters:
(a) "Advice" has the meaning set forth in Section 6 hereof.
(b) "Business Day" means any day other than a Saturday, Sunday or any
other day on which national banks in Dallas, Texas are not open for business.
(c) "Common Stock" means the Common Stock, no par value, of the
Company.
(d) "Demand Notice" has the meaning set forth in Section 3 hereof.
(e) "Demand Registration" has the meaning set forth in Section 3
hereof.
(f) "Losses" has the meaning set forth in Section 8 hereof.
(g) "Other Equity Securities" means any shares of capital stock of the
Company and any other securities issued by the Company that are exercisable to
purchase, convertible into, or exchangeable for shares of capital stock of the
Company that are owned by any party hereto (other than the Company) or any
affiliate of any party hereto (other than the Company), whether acquired prior
to, on or after the date hereof.
(h) "Piggyback Registration" has the meaning set forth in Section 4
hereof.
(i) "Prospectus" means the prospectus included in any Registration
Statement (including without limitation a prospectus that discloses information
previously omitted from a prospectus filed as part of an effective registration
statement in reliance upon Rule 430A promulgated under the Securities Act), as
amended or supplemented
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by any prospectus supplement, with respect to the terms of the offering of any
portion of the Registrable Securities covered by such Registration Statement
and all other amendments and supplements to the Prospectus, including
post-effective amendments, and all material incorporated by reference or deemed
to be incorporated by reference in such Prospectus.
(j) "Registrable Securities" means the Securities and all Other Equity
Securities, upon the respective original issuance thereof, and at all times
subsequent thereto, until, in the case of any such security, (i) it is
effectively registered under the Securities Act and disposed of in accordance
with the Registration Statement covering it, (ii) it is saleable by the holder
thereof pursuant to Rule 144(k), or (iii) it is actually distributed to the
public pursuant to Rule 144; provided, however, "Registrable Securities" shall
not include any equity or debt securities of the Company held by any other
holders of Company Securities that are not party to this Agreement.
(k) "Registration Expenses" has the meaning set forth in Section 7
hereof.
(l) "Registration Statement" means any registration statement of the
Company under the Securities Act that covers any of the Registrable Securities
pursuant to the provisions of this Agreement, including the related Prospectus,
all amendments and supplements to such registration statement (including
post-effective amendments), all exhibits and all material incorporated by
reference or deemed to be incorporated by reference in such registration
statement.
(m) "Rule 144" means Rule 144 under the Securities Act, as such rule
may be amended from time to time, or any similar rule or regulation hereafter
adopted by the SEC.
(n) "SEC" means the Securities and Exchange Commission.
(o) "Securities" means all Series AA Preferred Shares held by the
Purchaser or its designee and all shares of Common Stock acquired by the
Purchaser or its designee upon conversion of any Series AA Preferred Shares.
(p) "Securities Act" means the Securities Act of 1933, as amended.
(q) "Series AA Preferred Shares" means shares of Series AA Preferred
Stock, no par value, of the Company having the terms set forth in the Articles
of Amendment to the Articles of Incorporation of Malibu Entertainment
Worldwide, Inc. filed with the Secretary of State of the State of Georgia on
July ____, 1999.
(r) "Special Counsel" has the meaning set forth in Section 7(b)
hereof.
(s) "Underwritten registration" or "underwritten offering" means a
distribution, registered pursuant to the Securities Act, in which securities of
the Company are sold to an underwriter for reoffering to the public.
2. Holders of Registrable Securities. Whenever a number or percentage
of Registrable Securities is to be determined hereunder, each then-outstanding
Other Equity Security that is exercisable to purchase, convertible into, or
exchangeable for shares of capital stock of the Company will be deemed to be
equal to the number of
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shares of Common Stock that would be issued upon the conversion, exercise or
exchange of such Other Equity Security (or any security into which such Other
Equity Security is then convertible) at such time (regardless of whether such
Other Equity Security is actually then convertible, exercisable or
exchangeable).
3. Demand Registration.
(a) Requests for Registration. At any time and from time to time after
the date hereof, the holders of Registrable Securities constituting at least
25% of the total number of a class or series of Registrable Securities then
outstanding will have the right by written notice delivered to the Company (a
"Demand Notice"), to require the Company to register (a "Demand Registration")
under and in accordance with the provisions of the Securities Act the number of
Registrable Securities requested to be so registered (but not less than 15% of
the total number of such class or series of Registrable Securities then
outstanding); provided, however, that no Demand Notice may be given prior to 4
months after the effective date of the immediately preceding Demand
Registration, if any.
The number of Demand Registrations pursuant to this Section 3(a)
shall not exceed three for each class or series of Registrable Securities;
provided, however, that in determining the number of Demand Registrations to
which the holders of Registrable Securities are entitled there shall be
excluded (1) any Demand Registration that is an underwritten registration if
the managing underwriter or underwriters advise the holders of Registrable
Securities that the total number of Registrable Securities requested to be
included therein exceeds the number of Registrable Securities that can be sold
in such offering in accordance with the provisions of this Agreement without
materially and adversely affecting the success of such offering and, as a
result thereof, less than the total number of Registrable Securities requested
for inclusion are included in such Demand Registration or such holders, upon
receiving such advice from the managing underwriter or underwriters, elect not
to proceed with such Demand Registration, and (2) any Demand Registration that
does not become effective or is not maintained effective for the period
required pursuant to Section 3(b) hereof, unless in the case of this clause (2)
such Demand Registration does not become effective after being filed by the
Company solely by reason of the refusal to proceed by the holders of
Registrable Securities unless (i) the refusal to proceed is based upon the
advice of counsel relating to a matter with respect to the Company, or (ii) the
holders of the Registrable Securities elect to pay all Registration Expenses in
connection with such Demand Registration.
(b) Filing and Effectiveness. The Company will file a Registration
Statement relating to any Demand Registration within 60 calendar days, and will
use its best efforts to cause the same to be declared effective by the SEC
within 120 calendar days, of the date on which the holders of Registrable
Securities first give the Demand Notice required by Section 3(a) hereof with
respect to such Demand Registration.
All requests made pursuant to this Section 3 will specify the
number of Registrable Securities to be registered and will also specify the
intended methods of disposition thereof; provided, that if the holder demanding
such registration specifies one particular type of underwritten offering, such
method of disposition shall be such type of underwritten offering or a series
of such underwritten offerings (as such
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demanding holders of Registrable Securities may elect) during the period during
which the Registration Statement is effective.
If any Demand Registration is requested to be effected as a "shelf"
registration by the holders of Registrable Securities demanding such Demand
Registration, the Company will keep the Registration Statement filed in respect
thereof effective for a period of up to 12 months from the date on which the
SEC declares such Registration Statement effective (subject to extension
pursuant to Sections 5 and 6 hereof) or such shorter period that will terminate
when all Registrable Securities covered by such Registration Statement have
been sold pursuant to such Registration Statement or have otherwise ceased to
be Registrable Securities.
Within ten calendar days after receipt of such Demand Notice, the
Company will serve written notice thereof (the "Notice") to all other holders
of Registrable Securities and will, subject to the provisions of Section 3(c)
hereof, include in such registration all Registrable Securities with respect to
which the Company receives written requests for inclusion therein within 20
calendar days after the receipt of the Notice by the applicable holder.
The holders of Registrable Securities will be permitted to withdraw
Registrable Securities from a Registration at any time prior to the effective
date of such Registration provided the remaining number of Registrable
Securities subject to a Demand Notice is at least 15% of the total number of
Registrable Securities then outstanding.
(c) Priority on Demand Registration. If any of the Registrable
Securities registered pursuant to a Demand Registration are to be sold in one
or more firm commitment underwritten offerings, the Company may also provide
written notice to other holders of its equity securities (other than
Registrable Securities), if any, who have piggyback registration rights with
respect thereto and will permit all such other holders who request to be
included in the Demand Registration to include any or all equity securities
held by such other holders in such Demand Registration on the same terms and
conditions as the Registrable Securities. Notwithstanding the foregoing, if the
managing underwriter or underwriters of the offering to which such Demand
Registration relates advises the holders of Registrable Securities that the
total amount of Registrable Securities and securities that such other equity
security holders intend to include in such Demand Registration is in the
aggregate such as to materially and adversely affect the success of such
offering, then (i) first, the amount of securities to be offered for the
account of the holders of such other equity securities will be reduced, to zero
if necessary (pro rata among such other holders on the basis of the amount of
such other securities to be included therein by each such holder), and (ii)
second, the number of Registrable Securities included in such Demand
Registration will, if necessary, be reduced and there will be included in such
firm commitment underwritten offering only the number of Registrable Securities
that, in the opinion of such managing underwriter or underwriters, can be sold
without materially and adversely affecting the success of such offering,
allocated pro rata among the holders of Registrable Securities on the basis of
the amount of Registrable Securities to be included therein by each such
holder.
(d) Postponement of Demand Registration. The Company will be entitled
to postpone the filing period (or suspend the effectiveness) of any Demand
Registration for
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a reasonable period of time not in excess of 90 calendar days, if the Company
determines, in the good faith exercise of its reasonable business judgment,
that such registration and offering could materially interfere with bona fide
financing plans of the Company or would require disclosure of information, the
premature disclosure of which could materially and adversely affect the
Company. If the Company postpones the filing of a Registration Statement, it
will promptly notify the holders of Registrable Securities in writing when the
events or circumstances permitting such postponement have ended.
4. Piggyback Registration.
(a) Right to Piggyback. If at any time the Company proposes to file a
registration statement under the Securities Act with respect to an offering of
any class of equity securities (other than a registration statement (i) on Form
X-0, X-0 or any successor form thereto or (ii) filed solely in connection with
an offering made solely to employees of the Company), whether or not for its
own account, then the Company will give written notice of such proposed filing
to the holders of Registrable Securities at least 10 calendar days before the
anticipated filing date. Such notice will offer such holders the opportunity to
register such amount of Registrable Securities as each such holder may request
(a "Piggyback Registration"). Subject to Section 4(b) hereof, the Company will
include in each such Piggyback Registration all Registrable Securities with
respect to which the Company has received written requests for inclusion
therein. The holders of Registrable Securities will be permitted to withdraw
all or part of the Registrable Securities from a Piggyback Registration at any
time prior to the effective date of such Piggyback Registration.
(b) Priority on Piggyback Registrations. The Company will cause the
managing underwriter or underwriters of a proposed underwritten offering to
permit holders of Registrable Securities requested to be included in the
registration for such offering to include therein all such Registrable
Securities requested to be so included on the same terms and conditions as any
similar securities, if any, of the Company included therein. Notwithstanding
the foregoing, if the managing underwriter or underwriters of such offering
deliver an opinion to the holders of Registrable Securities to the effect that
the total amount of securities which such holders, the Company and any other
persons having rights to participate in such registration propose to include in
such offering is such as to materially and adversely affect the success of such
offering, then:
(i) if such registration is a primary registration on behalf of the
Company, the amount of securities to be included therein (x) for the account of
holders of Registrable Securities on the one hand (allocated pro rata among
such holders on the basis of the Registrable Securities requested to be
included therein by each such holder), and (y) for the account of all such
other persons (exclusive of the Company), on the other hand, will be reduced
(to zero if necessary) pro rata in proportion to the respective amounts of
securities requested to be included therein to the extent necessary to reduce
the total amount of securities to be included in such offering to the amount
recommended by such managing underwriter or underwriters; and
(ii) if such registration is an underwritten secondary registration
on behalf of holders of securities of the Company other than Registrable
Securities, the Company will include therein: (x) first, up to the full number
of securities of such persons exercising "demand" registration rights that in
the opinion of such managing underwriter or underwriters can be sold or
allocated among such holders as they may otherwise so
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determine, and (y) second, the amount of Registrable Securities and securities
proposed to be sold by any other person in excess of the amount of securities
such persons exercising "demand" registration rights propose to sell that, in
the opinion of such managing underwriter or underwriters, can be sold
(allocated pro rata among the holders of such Registrable Securities and such
other persons on the basis of the dollar amount of securities requested to be
included therein).
5. Restrictions on Sale by Holders of Registrable Securities. Each
holder of Registrable Securities whose Registrable Securities are covered by a
Registration Statement filed pursuant to Section 3 or Section 4 hereof and
declared effective by the SEC, agrees and will confirm such agreement in
writing, if such holder is so requested (pursuant to a timely written notice)
by the managing underwriter or underwriters in an underwritten offering, not to
effect any public sale or distribution of any of the Company's equity
securities (except as part of such underwritten offering), including a sale
pursuant to Rule 144, during the 10-calendar day period prior to, and during
the 90-calendar day period (or such longer period as any managing underwriter
or underwriters may reasonably request in connection with any underwritten
public offering) beginning on, the closing date of each underwritten offering
made pursuant to such Registration Statement. If a request is made pursuant to
this Section 5, the time period during which a Demand Registration (if a shelf
registration) is required to remain continuously effective pursuant to Section
3(b) will be extended by 100 calendar days or such shorter period that will
terminate when all such Registrable Securities not so included have been sold
pursuant to such Registration Statement.
6. Registration Procedures. In connection with the Company's
registration obligations pursuant to Sections 3 and 4 hereof, the Company will
effect such registrations to permit the sale of such Registrable Securities in
accordance with the intended method or methods of disposition thereof, and
pursuant thereto the Company will as expeditiously as possible:
(a) Prepare and file with the SEC a Registration Statement or
Registration Statements on any appropriate form under the Securities Act
available for the sale of the Registrable Securities by the holders thereof in
accordance with the intended method or methods of distribution thereof, and
cause each such Registration Statement to become effective and remain effective
as provided herein; provided, however, that before filing a Registration
Statement or Prospectus or any amendments or supplements thereto (including
documents that would be incorporated or deemed to be incorporated therein by
reference) the Company will furnish to the holders of the Registrable
Securities covered by such Registration Statement, the Special Counsel and the
managing underwriters, if any, copies of all such documents proposed to be
filed, which documents will be subject to the review of such holders, the
Special Counsel and such underwriters, and the Company will not file any such
Registration Statement or amendment thereto or any Prospectus or any supplement
thereto (including such documents which, upon filing, would or would be
incorporated or deemed to be incorporated by reference therein) to which the
holders of a majority of the Registrable Securities covered by such
Registration Statement, the Special Counsel or the managing underwriter, if
any, shall reasonably object on a timely basis.
(b) Prepare and file with the SEC such amendments and post-effective
amendments to each Registration Statement as may be necessary to keep such
Registration Statement continuously effective for the applicable period
specified in
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Section 3; cause the related Prospectus to be supplemented by any required
Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424
(or any similar provisions then in force) under the Securities Act; and comply
with the provisions of the Securities Act with respect to the disposition of
all securities covered by such Registration Statement during the applicable
period in accordance with the intended methods of disposition by the sellers
thereof set forth in such Registration Statement as so amended or to such
Prospectus as so supplemented.
(c) Notify the selling holders of Registrable Securities, the Special
Counsel and the managing underwriters, if any, promptly, and (if requested by
any such person) confirm such notice in writing, (i) when a Prospectus or any
Prospectus supplement or post-effective amendment has been filed, and, with
respect to a Registration Statement or any post-effective amendment, when the
same has become effective, (ii) of any request by the SEC or any other federal
or state governmental authority for amendments or supplements to a Registration
Statement or related Prospectus or for additional information, (iii) of the
issuance by the SEC or any other federal or state governmental authority of any
stop order suspending the effectiveness of a Registration Statement or the
initiation of any proceedings for that purpose, (iv) if at any time the
representations and warranties of the Company contained in any agreement
contemplated by Section 6(n) hereof (including any underwriting agreement)
cease to be true and correct, (v) of the receipt by the Company of any
notification with respect to the suspension of the qualification or exemption
from qualification of any of the Registrable Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose, (vi) of the occurrence of any event which makes any statement made in
such Registration Statement or related Prospectus or any document incorporated
or deemed to be incorporated therein by reference untrue in any material
respect or which requires the making of any changes in a Registration
Statement, Prospectus or documents so that, in the case of the Registration
Statement, it will not contain any untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary to make
the statements therein not misleading and, in the case of the Prospectus, it
will not contain any untrue statement of a material fact or omit to state any
material fact required to be stated or is necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading, and (vii) of the Company's reasonable determination that a
post-effective amendment to a Registration Statement would be appropriate.
(d) Use every reasonable effort to obtain the withdrawal of any order
suspending the effectiveness of a Registration Statement, or the lifting of any
suspension of the qualification (or exemption from qualification) of any of the
Registrable securities for sale in any jurisdiction, at the earliest possible
moment.
(e) If requested by the managing underwriters, if any, or the holders
of a majority of the Registrable Securities being registered, (i) promptly
incorporate in a Prospectus supplement or post-effective amendment such
information as the managing underwriters, if any, and such holder agree should
be included therein as may be required by applicable law and (ii) make all
required filings of such Prospectus supplement or such post-effective amendment
as soon as practicable after the Company has received notification of the
matters to be incorporated in such Prospectus supplement or post-effective
amendment; provided, however, that the Company will not be required to take any
actions under this Section 6(e) that are not, in the opinion of counsel for the
Company, in compliance with applicable law.
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(f) Furnish to each selling holder of Registrable Securities, the
Special Counsel and each managing underwriter, if any, without charge, at least
one conformed copy of the Registration Statement and any post-effective
amendment thereto, including financial statements (but excluding schedules, all
documents incorporated or deemed incorporated therein by reference and all
exhibits, unless requested in writing by such holder, counsel or underwriter).
(g) Deliver to each selling holder of Registrable Securities, the
Special Counsel and the underwriters, if any, without charge, as many copies of
the Prospectus or Prospectuses relating to such Registrable Securities
(including each preliminary prospectus) and any amendment or supplement thereto
as such persons may reasonably request; and the Company hereby consents to the
use of such Prospectus or each amendment or supplement thereto by each of the
selling holders of Registrable Securities and the underwriters, if any, in
connection with the offering and sale of the Registrable Securities covered by
such Prospectus or any amendment or supplement thereto.
(h) Prior to any public offering of Registrable Securities, to
register or qualify or cooperate with the selling holders of Registrable
Securities, the underwriters, if any, and their respective counsel in
connection with the registration or qualification (or exemption from such
registration or qualification) of such Registrable Securities for offer and
sale under the securities or blue sky laws of such jurisdictions within the
United States as any seller or underwriter reasonably requests in writing; keep
each such registration or qualification (or exemption therefrom) effective
during the period such Registration Statement is required to be kept effective
and do any and all other acts or things necessary or advisable to enable the
disposition in such jurisdiction of the Registrable Securities covered by the
applicable Registration Statement; provided, however that the Company will not
be required to (i) qualify generally to do business in any jurisdiction in
which it is not then so qualified or (ii) take any action that would subject it
to general service of process in any such jurisdiction in which it is not then
so subject.
(i) Cooperate with the selling holders of Registrable Securities and
the managing underwriters, if any, to facilitate the timely preparation and
delivery of certificates representing Registrable Securities to be sold, which
certificates will not bear any restrictive legends; and enable such Registrable
Securities to be in such denominations and registered in such names as the
managing underwriters, if any, shall request at least two Business Days prior
to any sale of Registrable securities to the underwriters.
(j) Cause the Registrable Securities covered by the applicable
Registration Statement to be registered with or approved by such other
governmental agencies or authorities within the United States except as may be
required solely as a consequence of the nature of such selling holder's
business, in which case the Company will cooperate in all reasonable respects
with the filing of such Registration Statement and the granting of such
approvals as may be necessary to enable the seller or sellers thereof or the
underwriters, if any, to consummate the disposition of such Registrable
Securities.
(k) Upon the occurrence of any event contemplated by Section 6(c)(vi)
or 6(c)(vii) hereof, prepare a supplement or post-effective amendment to each
Registration
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Statement or a supplement to the related Prospectus or any document
incorporated therein by reference or file any other required document so that,
as thereafter delivered to the purchasers of the Registrable Securities being
sold thereunder, such Prospectus will not contain 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, in light of the circumstances under
which they were made, not misleading.
(l) Use its best efforts to cause all Registrable Securities covered
by such Registration Statement to be, at the Company's option (i) listed on
each securities exchange, if any, on which similar securities issued by the
Company are then listed or, if no similar securities issued by the Company are
then so listed, on the New York Stock Exchange or another national securities
exchange if the securities qualify to be so listed or (ii) authorized to be
quoted on the National Association of Securities Dealers Automated Quotation
System ("NASDAQ") or the National Market System of NASDAQ if the securities
qualify to be so quoted; in each case, if requested by the holders of a
majority of the Registrable Securities covered by such Registration statement
or the managing underwriters, if any.
(m) Prior to the effective date of the first Demand Registration or
the first Piggyback Registration, whichever shall occur first, (i) engage an
appropriate transfer agent and provide the transfer agent with printed
certificates for the Registrable Securities in a form eligible for deposit with
The Depository Trust Company and (ii) provide a CUSIP number for the
Registrable Securities.
(n) Enter into such agreements (including, in the event of an
underwritten offering, an underwriting agreement in form, scope and substance
as is customary in underwritten offerings) and take all such other actions in
connection therewith (including those requested by the holders of a majority of
the Registrable Securities being sold or, in the event of an underwritten
offering, those requested by the managing underwriters) in order to expedite or
facilitate the disposition of such Registrable Securities and in such
connection, whether or not an underwriting agreement is entered into and
whether or not the registration is an underwritten registration, (i) make such
representations and warranties to the holders of such Registrable Securities
and the underwriters, if any, with respect to the business of the Company and
its subsidiaries, the Registration Statement, Prospectus and documents
incorporated by reference or deemed incorporated by reference, if any, in each
case, in form, substance and scope as are customarily made by issuers to
underwriters in underwritten offerings and confirm the same if and when
requested; (ii) obtain opinions of counsel to the Company and updates thereof
(which counsel and opinions (in form, scope and substance) shall be reasonably
satisfactory to the managing underwriters, if any) addressed to each of the
underwriters, if any, covering the matters customarily covered in opinions
requested in underwritten offerings and such other matters as may be reasonably
requested by such underwriters, including without limitation the matters
referred to in Section 6(n)(i) hereof; (iii) use its best efforts to obtain
"comfort" letters and updates thereof from the independent certified public
accountants of the Company (and, if necessary, any other certified public
accountants of any subsidiary of the Company or of any business acquired by the
Company for which financial statements and financial data is, or is required to
be, included in the Registration Statement), addressed to each of the
underwriters, if any, such letters to be in customary form and covering matters
of the type customarily covered in "comfort" letters in connection with
underwritten offerings; and (iv) deliver such documents and certificates as may
be reasonably requested by the
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holders of a majority of the Registrable Securities being sold, the Special
Counsel and the managing underwriters, if any, to evidence the continued
validity of the representations and warranties of the Company and its
subsidiaries made pursuant to clause (i) above and to evidence compliance with
any customary conditions contained in the underwriting agreement or similar
agreement entered into by the Company. The foregoing actions will be taken in
connection with each closing under such underwriting or similar agreement as
and to the extent required thereunder.
(o) Make available for inspection by a representative of the holders
of Registrable Securities being sold, any underwriter participating in any
disposition of Registrable Securities, and any attorney or accountant retained
by such selling holders or underwriter, all financial and other records,
pertinent corporate documents and properties of the Company and its
subsidiaries, and cause the officers, directors and employees of the Company
and its subsidiaries to supply all information reasonably requested by any such
representative, underwriter, attorney or accountant in connection with such
Registration Statement; provided however, that any records, information or
documents that are designated by the Company in writing as confidential at the
time of delivery of such records, information or documents will be kept
confidential by such persons unless (i) such records, information or documents
are in the public domain or otherwise publicly available, (ii) disclosure of
such records, information or documents is required by court or administrative
order or is necessary to respond to inquiries of regulatory authorities, or
(iii) disclosure of such records, information or documents, in the opinion of
counsel to such person, is otherwise required by law (including, without
limitation, pursuant to the requirements of the Securities Act).
(p) Comply with all applicable rules and regulations of the SEC and
make generally available to its security holders earning statements satisfying
the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder
(or any similar rule promulgated under the Securities Act) no later than 45
calendar days after the end of any 12-month period (or 90 calendar days after
the end of any 12-month period if such period is a fiscal year) (i) commencing
at the end of any fiscal quarter in which Registrable Securities are sold to
underwriters in a firm commitment or best efforts underwritten offering, and
(ii) if not sold to underwriters in such an offering, commencing on the first
day of the first fiscal quarter of the Company, after the effective date of a
Registration Statement, which statements shall cover said 12-month period.
(q) Cooperate with any reasonable request by holders of a majority of
the Registrable Securities offered for sale, including by ensuring
participation by the executive management of the Company in road shows, so long
as such participation does not materially interfere with the operation of the
Company's business.
The Company may require each seller of Registrable Securities as to
which any registration is being effected to furnish to the Company such
information regarding the distribution of such Registrable Securities as the
Company may, from time to time, reasonably request in writing and the Company
may exclude from such registration the Registrable Securities of any seller who
unreasonably fails to furnish such information within a reasonable time after
receiving such request.
Each holder of Registrable Securities will be deemed to have agreed
by virtue of its acquisition of such Registrable Securities that, upon receipt
of any notice from the Company of the occurrence of any event of the kind
described in Xxxxxxx
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0(x)(xx), 0(x)(xxx), 6(c)(v), 6(c)(vi) or 6(c)(vii) hereof, such holder will
forthwith discontinue disposition of such Registrable Securities covered by
such Registration Statement or Prospectus until such holder's receipt of the
copies of the supplemented or amended Prospectus contemplated by Section 6(k)
hereof, or until it is advised in writing (the "Advice") by the Company that
the use of the applicable Prospectus may be resumed, and has received copies of
any additional or supplemental filings that are incorporated or deemed to be
incorporated by reference in such Prospectus. In the event the Company shall
give any such notice, the time period prescribed in Section 3(a) hereof will be
extended by the number of days during the time period from and including the
date of the giving of such notice to and including the date when each seller of
Registrable Securities covered by such Registration Statement shall have
received (x) the copies of the supplemented or amended Prospectus contemplated
by Section 6(k) hereof or (y) the Advice.
7. Registration Expenses.
(a) All Registration Expenses will be borne by the Company whether or
not any of the Registration Statements become effective. "Registration
Expenses" will mean all fees and expenses incident to the performance of or
compliance with this Agreement by the Company, including, without limitation,
(i) all registration and filing fees (including without limitation fees and
expenses (x) with respect to filings required to be made with the National
Association of Securities Dealers, Inc. and (y) of compliance with securities
or "blue sky" laws), (ii) printing expenses (including without limitation
expenses of printing certificates for Registrable Securities in a form eligible
for deposit with The Depository Trust Company and of printing prospectuses if
the printing of prospectuses is requested by the holders of a majority of the
Registrable Securities included in any Registration Statement), (iii)
messenger, telephone and delivery expenses, (iv) fees and disbursements of
counsel for the Company and the Special Counsel for the sellers of the
Registrable Securities, (v) fees and disbursements of all independent certified
public accountants referred to in Section 6(n)(iii) hereof (including the
expenses of any special audit and "comfort" letters required by or incident to
such performance), (vi) fees and expenses of any "qualified independent
underwriter" or other independent appraiser participating in an offering
pursuant to Section 3 of Schedule E to the By-laws of the National Association
of Securities Dealers, Inc., (vii) Securities Act liability insurance if the
Company so desires such insurance, and (viii) fees and expenses of all other
persons retained by the Company, provided, however, that Registration Expenses
will not include fees and expenses of counsel for the holders of Registrable
Securities other than as provided below in Section 7(b) nor shall it include
underwriting discounts and commissions relating to the offer and sale of
Registrable Securities, all of which shall be borne by such holders. In
addition, the Company will pay its internal expenses (including without
limitation all salaries and expenses of its officers and employees performing
legal or accounting duties), the expense of any annual audit, the fees and
expenses incurred in connection with the listing of the securities to be
registered on any securities exchange on which similar securities issued by the
Company are then listed and the fees and expenses of any person, including
special experts, retained by the Company.
(b) In connection with any Demand Registration or Piggyback
Registration hereunder, the Company will reimburse the holders of the
Registrable Securities being registered in such registration for the reasonable
fees and disbursements of not more
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than one counsel (the "Special Counsel"), chosen by the holders of a majority
of the Registrable Securities being registered.
8. Indemnification.
(a) Indemnification by the Company. The Company will, without
limitation as to time, indemnify and hold harmless, to the fullest extent
permitted by law, each holder of Registrable Securities registered pursuant to
this Agreement, the officers, directors and agents and employees of each of
them, each person who controls such holder (within the meaning of Section 15 of
the Securities Act or Section 20 of the Exchange Act) and the officers,
directors, agents and employees of any such controlling person, from and
against all losses, claims, damages, liabilities, costs (including without
limitation the costs of investigation and attorneys' fees) and expenses
(collectively, "Losses"), as incurred, arising out of or based upon any untrue
or alleged untrue statement of a material fact contained in any Registration
Statement, Prospectus or form of Prospectus or in any amendment or supplement
thereto or in any preliminary prospectus, or arising out of or based upon 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,
except insofar as the same are based solely upon information furnished in
writing to the Company by such holder expressly for use therein; provided,
however, that the Company will not be liable to any holder of Registrable
Securities to the extent that any such Losses arise out of or are based upon an
untrue statement or alleged untrue statement or omission or alleged omission
made in any preliminary prospectus if either (A) (i) such holder failed to send
or deliver a copy of the Prospectus with or prior to the delivery of written
confirmation of the sale by such holder of a Registrable Security to the person
asserting the claim from which such Losses arise and (ii) the Prospectus would
have completely corrected such untrue statement or alleged untrue statement or
such omission or alleged omission; or (B) such untrue statement or alleged
untrue statement, omission or alleged omission is completely corrected in an
amendment or supplement to the Prospectus previously furnished by or on behalf
of the Company with copies of the Prospectus as so amended or supplemented, and
such holder thereafter fails to deliver such Prospectus as so amended or
supplemented prior to or concurrently with the sale of a Registrable Security
to the person asserting the claim from which such Losses arise.
The rights of any holder of Registrable Securities hereunder will
not be exclusive of the rights of any holder of Registrable Securities under
any other agreement or instrument of any holder of Registrable Securities to
which the Company is a party. Nothing in such other agreement or instrument
will be interpreted as limiting or otherwise adversely affecting a holder of
Registrable Securities hereunder and nothing in this Agreement will be
interpreted as limiting or otherwise adversely affecting the holder of
Registrable Securities' rights under any such other agreement or instrument,
provided, however, that no Indemnified Party will be entitled hereunder to
recover more than its indemnified Losses.
(b) Indemnification by Holders of Registrable Securities. In
connection with any Registration Statement in which a holder of Registrable
Securities is participating, such holder of Registrable Securities will furnish
to the Company in writing such information as the Company reasonably requests
for use in connection with any Registration Statement or Prospectus and will
severally indemnify, to the fullest extent permitted by law, the Company, its
directors and officers, agents and employees, each
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person who controls the Company (within the meaning of Section 15 of the
Securities Act and Section 20 of the Exchange Act), and the directors,
officers, agents or employees of such controlling persons, from and against all
Losses arising out of or based upon (i) any untrue statement of a material fact
contained in any Registration Statement, Prospectus or preliminary prospectus
or arising out of or based upon any omission of a material fact required to be
stated therein or necessary to make the statements therein not misleading, to
the extent, but only to the extent, that such untrue statement or omission is
contained in any information so furnished in writing by such holder to the
Company expressly for use in such Registration Statement or Prospectus and was
relied upon by the Company in the preparation of such Registration Statement,
Prospectus or preliminary prospectus and (ii) the failure of such holder of
Registrable Securities to deliver such Prospectus as so amended or supplemented
prior to or concurrently with the sale of a Registrable Security to the person
asserting the claim from which such Losses arise. In no event will the
liability of any selling holder of Registrable Securities hereunder be greater
in amount than the dollar amount of the proceeds (net of payment of all
expenses and underwriter's discounts and commissions) received by such holder
upon the sale of the Registrable Securities giving rise to such indemnification
obligation.
(c) Conduct of Indemnification Proceedings. If any person shall become
entitled to indemnity hereunder (an "indemnified party"), such indemnified
party shall give prompt notice to the party from which such indemnity is sought
(the "indemnifying party") of any claim or of the commencement of any action or
proceeding with respect to which such indemnified party seeks indemnification
or contribution pursuant hereto; provided, however, that the failure to so
notify the indemnifying party will not relieve the indemnifying party from any
obligation or liability except to the extent that the indemnifying party has
been prejudiced materially by such failure. All fees and expenses (including
any fees and expenses incurred in connection with investigating or preparing to
defend such action or proceeding) will be paid to the indemnified party, as
incurred, within five calendar days of written notice thereof to the
indemnifying party (regardless of whether it is ultimately determined that an
indemnified party is not entitled to indemnification hereunder). The
indemnifying party will not consent to entry of any judgment or enter into any
settlement or otherwise seek to terminate any action or proceeding in which any
indemnified party is or could be a party and as to which indemnification or
contribution could be sought by such indemnified party under this Section 8,
unless such judgment, settlement or other termination includes as an
unconditional term thereof the giving by the claimant or plaintiff to such
indemnified party of a release, in form and substance satisfactory to the
indemnified party, from all liability in respect of such claim or litigation
for which such indemnified party would be entitled to indemnification
hereunder.
(d) Contribution. If the indemnification provided for in this Section
8 is unavailable to an indemnified party under Section 8(a) or 8(b) hereof in
respect of any Losses or is insufficient to hold such indemnified party
harmless, then each applicable indemnifying party, in lieu of indemnifying such
indemnified party, will, jointly and severally, contribute to the amount paid
or payable by such indemnified party as a result of such Losses, in such
proportion as is appropriate to reflect the relative fault of the indemnifying
party or indemnifying parties, on the one hand, and such
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indemnified party, on the other hand, in connection with the actions,
statements or omissions that resulted in such Losses as well as any other
relevant equitable considerations. The relative fault of such indemnifying
party or indemnifying parties, on the one hand, and such indemnified party, on
the other hand, will be determined by reference to, among other things, whether
any action in question, including any untrue or alleged untrue statement of a
material fact or omission or alleged omission of a material fact, has been
taken or made by, or related to information supplied by, such indemnifying
party or indemnified party, and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such action, statement or
omission. The amount paid or payable by a party as a result of any Losses will
be deemed to include any legal or other fees or expenses incurred by such party
in connection with any action or proceeding.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 8(d) were determined by pro rata
allocation or by any other method of allocation that does not take into account
the equitable considerations referred to in the immediately preceding
paragraph. Notwithstanding the provision of this Section 8(d), an indemnifying
party that is a selling holder of Registrable Securities will not be required
to contribute any amount in excess of the amount by which the proceeds actually
received by such indemnifying party from the sale of Registrable Securities
exceeds the amount of any damages which such indemnifying party has otherwise
been required to pay 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 Securities Act) will be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
The indemnity, contribution and expense reimbursement obligations
of the Company hereunder will be in addition to any liability the Company may
otherwise have hereunder or otherwise. The provisions of this Section 8 will
survive so long as Registrable Securities remain outstanding, notwithstanding
any transfer of the Registrable Securities by any holder thereof or any
termination of this Agreement.
9. Rules 144 and 144A. The Company will file the reports required to
be filed by it under the Securities Act and the Exchange Act in a timely
manner, and will cooperate with any holder of Registrable Securities (including
without limitation by making such representations as any such holder may
reasonably request), all to the extent required from time to time to enable
such holder to sell Registrable Securities without registration under the
Securities Act within the limitations of the exemptions provided by Rules 144
and 144A (including, without limitation, the requirements of Rule 144A(d)(4)).
Upon the request of any holder of Registrable Securities, the Company will
deliver to such holder a written statement as to whether it has complied with
such filing requirements. Notwithstanding the foregoing, nothing in this
Section 9 will be deemed to require the Company to register any of its
securities under any section of the Exchange Act.
10. Underwritten Registrations. If any of the Registrable Securities
covered by any Demand Registration are to be sold in an underwritten offering,
the investment banker or investment bankers and manager or managers that will
manage the offering will be selected by the holders of Registrable Securities
that gave the Demand Notice with respect to such offering; provided, that such
investment banker or manager shall be reasonably satisfactory to the Company.
If any Piggyback Registration is an underwritten offering, the Company will
have the right to select the investment banker or investment bankers and
managers to administer the offering.
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11. Miscellaneous.
(a) Remedies. In the event of a breach by the Company of its
obligations under this Agreement, each holder of Registrable Securities, in
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 any
of the provisions of this Agreement and hereby further agrees that, in the
event of any action for specific performance in respect of such breach, it will
waive the defense that a remedy at law would be adequate.
(b) No Inconsistent Agreements. Except for (i) the Registration Rights
Agreement, dated August 28, 1996, between the Company and MEI Holdings, L.P.
(the "First MEI Agreement"), (ii) the Registration Rights Agreement, dated July
20, 1999, between the Company and MEI Holdings, L.P. (the "Second MEI
Agreement") and (iii) the Registration Rights Agreement, dated July 20, 1999,
between the Company and Partnership Acquisition Trust V (the "XXX Agreement"),
the Company has not entered, as of the date hereof, and will not enter, on or
after the date hereof, into any agreement with respect to its securities which
is inconsistent with the rights granted to the holders of Registrable
Securities in this Agreement or otherwise conflicts with the provisions hereof
and, in addition thereto, without the written consent of the holders of a
majority of the then-outstanding Registrable Securities, the Company will not
grant to any person the right to request the Company to register any securities
of the Company under the Securities Act unless the rights so granted are
subject to the prior rights of the holders of Registrable Securities set forth
herein, and, if exercised, would not otherwise conflict or be inconsistent with
the provisions of, this Agreement. This Agreement, the MEI Agreement and the
XXX Agreement will be deemed to be independent agreements and no limitation or
restriction contained in this Agreement will be deemed to conflict with, limit
or restrict the rights of MEI Holdings, L.P. under the MEI Agreement or the
rights of Partnership Acquisition Trust V under the XXX Agreement and no
limitation or restriction contained in this Agreement will be deemed to
conflict with, limit or restrict the rights of the Purchaser under this
Agreement.
(c) 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 a majority of the then-outstanding Registrable Securities.
Notwithstanding the foregoing, a waiver or consent to depart from the
provisions hereof with respect to a matter that relates exclusively to the
rights of holders of Registrable Securities whose securities are being sold
pursuant to a Registration Statement and that does not directly or indirectly
affect the rights of other holders of Registrable Securities may be given by
holders of at least 51% of the Registrable Securities being sold by such
holders; 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.
(d) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing and will be deemed given (i) when
made, if made by hand delivery, (ii) upon confirmation, if made by fax, or
(iii) one Business Day after being deposited with a reputable next-day courier,
postage prepaid, to the parties as follows:
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(x) if to the Company, initially at 000 Xxxxx Xxxxxxx, Xxxxx 0000,
Xxxxxx, Xxxxx 00000, Fax Number (000) 000-0000, Attention: Chief
Executive Officer, and thereafter at such other address, notice of
which is given to the holders of Registrable Securities in accordance
with the provisions of this Section 11(d), with a copy to Xxxxxx Xxxxx
Xxxx & Xxxx, P.C., 0000 Xxxxxxxx Xxxxx, 0000 Xxxx Xxxxxx, Xxxxxx,
Xxxxx 00000, Fax Number (000) 000-0000, Attention: Xxxxxxx X.
Xxxxxxxxx, Xx., Esq.;
(y) if to Purchaser, initially at 4200 Chase Tower West, 0000 Xxxx
Xxxxxx, Xxxxxx, Xxxxx 00000, Fax Number (000) 000-0000, Attention:
Secretary/Treasurer, and thereafter at such other address, notice of
which is given in accordance with the provisions of Section 11(d),
with a copy to Xxxxxx Xxxxx Xxxx & Xxxx, P.C., 0000 Xxxxxxxx Xxxxx,
0000 Xxxx Xxxxxx, Xxxxxx, Xxxxx 00000, Fax Number (000) 000-0000,
Attention: Xxxxxxx X. Xxxxxxxxx, Xx., Esq.; and
(z) if to any other holder of Registrable Securities, at the most
current address given by such holder to the Company in accordance with
the provisions of this Section 11(d).
(e) Owner of Registrable Securities. The Company will maintain, or
will cause its registrar and transfer agent to maintain, a stock book with
respect to the Common Stock, in which all transfers of Registrable Securities
of which the Company has received notice will be recorded. The Company may deem
and treat the person in whose name Registrable Securities are registered in the
stock book of the Company as the owner thereof for all purposes, including
without limitation the giving of notices under this Agreement.
(f) Successors and Assigns. This Agreement will inure to the benefit
of and be binding upon the successors and permitted assigns of each of the
parties and will inure to the benefit of each holder of any Registrable
Securities. The Company may not assign its rights or obligations hereunder
without the prior written consent of each holder of any Registrable Securities.
The holders of the shares may assign the rights and obligations under this
Agreement to any subsequent holder of such shares. Notwithstanding the
foregoing, no transferee will have any of the rights granted under this
Agreement (i) until such transferee shall have acknowledged its rights and
obligations hereunder by a signed written statement of such transferee's
acceptance of such rights and obligations or (ii) if the transferor notifies
the Company in writing on or prior to such transfer that the transferee shall
not have such rights.
(g) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed will be deemed to be an original and all of which taken
together will constitute one and the same instrument.
(h) Headings. The headings in this Agreement are for convenience of
reference only and will not limit or otherwise affect the meaning hereof.
(i) Governing Law. THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF GEORGIA,
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AS APPLIED TO CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF GEORGIA, WITHOUT
REGARD TO PRINCIPLES OF CONFLICT OF LAWS.
(j) Severability. If any term, provision, covenant or restriction of
this Agreement is held by a court of competent jurisdiction to be invalid, void
or unenforceable, the remainder of the terms, provisions, covenants and
restrictions set forth herein will remain in full force and effect and will in
no way be affected, impaired or invalidated, and the parties hereto will use
their best efforts to find and employ an alternative means to achieve the same
or substantially the same result as that contemplated by such term, provision,
covenant or restriction. It is hereby stipulated and declared to be the
intention of the parties that they would have executed the remaining terms,
provisions, covenants and restrictions without including any of such which may
be hereafter declared invalid, void or unenforceable.
(k) Entire Agreement. This Agreement is intended by the parties as a
final expression of their agreement and is intended to be a complete and
exclusive statement of the agreement and understanding of the parties hereto in
respect of the registration rights granted by the Company with respect to the
Registrable Securities. This Agreement supersedes all prior agreements and
understandings among the parties with respect to such registration rights.
(l) 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 prevailing party, as determined by the court, will
be entitled to recover reasonable attorneys' fees in addition to any other
available remedy.
[REMAINDER OF PAGE INTENTIONALLY BLANK]
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IN WITNESS WHEREOF, the parties have executed this Registration
Rights Agreement as of the date first written above.
COMPANY:
MALIBU ENTERTAINMENT WORLDWIDE, INC.,
a Georgia corporation
By: /s/ XXXXXXX X. XXXXXXX
-------------------------------------
Name: Xxxxxxx X. Xxxxxxx
-----------------------------------
Title: Chief Executive Officer
----------------------------------
PURCHASER:
SZ CAPITAL, L.P.,
a Delaware limited partnership
By: SZ GENPAR, L.P.,
a Delaware limited partnership,
its general partner
By: HH GenPar Partners,
a Texas general partnership,
its general partner
By: Hampstead Associates, Inc.,
a Texas corporation,
a managing general partner
By: /s/ XXXX X. READ
---------------------------------
Name: Xxxx X. Read
-------------------------------
Title: Vice President
------------------------------
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