[Execution Copy]
===============================================================================
AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
by and among
SKYLINE MULTIMEDIA ENTERTAINMENT, INC.,
PROSPECT STREET NYC DISCOVERY FUND, L.P.,
and
BANK OF NEW YORK, AS TRUSTEE
FOR THE EMPLOYEES RETIREMENT PLAN
OF THE BROOKLYN UNION GAS COMPANY
===============================================================================
This Table of Contents is not part of the Agreement to which it is
attached but is inserted for convenience only.
TABLE OF CONTENTS
Page
RECITALS.................................................................. 2
ARTICLE I
DEMAND REGISTRATIONS............................................ 2
1.1 Requests for Registration.............................. 2
1.2 Number of Demand Registrations; Expenses............... 3
1.3 Effected Registration Statement........................ 3
1.4 Priority on Demand Registrations....................... 3
1.5 Form of Offering; Selection of Underwriters............ 4
1.6 Other Registration Rights.............................. 4
ARTICLE II
PIGGY-BACK REGISTRATIONS........................................ 4
2.1 Right to Piggy-back.................................... 4
2.2 Piggy-back Expenses.................................... 5
2.3 Priority on Company Registrations...................... 5
2.4 Priority on Stockholder Registrations.................. 5
ARTICLE III
OTHER REGISTRATIONS............................................. 6
3.1 Other Registrations.................................... 6
ARTICLE IV
REGISTRATION PROCEDURES......................................... 6
ARTICLE V
REGISTRATION EXPENSES........................................... 10
5.1 Registration Expenses.................................. 10
5.2 Sellers' Expenses...................................... 11
ARTICLE VI
UNDERWRITTEN OFFERINGS.......................................... 11
6.1 Demand Underwritten Offerings.......................... 11
6.2 Incidental Underwritten Offerings...................... 11
i
ARTICLE VII
INDEMNIFICATION................................................. 12
7.1 Indemnification by the Company......................... 12
7.2 Indemnification by Holders............................. 13
7.3 Conduct of Indemnification Proceedings................. 13
7.4 Indemnity in Underwriting Agreement.................... 14
7.5 Contribution........................................... 14
7.6 Payment................................................ 15
ARTICLE VIII
RULE 144........................................................ 15
ARTICLE IX
PARTICIPATION IN UNDERWRITTEN REGISTRATIONS..................... 16
ARTICLE X
DEFINITIONS..................................................... 16
ARTICLE XI
MISCELLANEOUS................................................... 19
11.1 No Inconsistent Agreements............................. 19
11.2 Certain Actions Affecting Registrable Securities....... 19
11.3 Deferral............................................... 19
11.4 Remedies............................................... 20
11.5 Amendments and Waivers................................. 20
11.6 Successors and Assigns................................. 20
11.7 Notices................................................ 20
11.8 Headings............................................... 22
11.9 Gender................................................. 22
11.10 Invalid Provisions..................................... 22
11.11 Governing Law.......................................... 22
11.12 Counterparts........................................... 22
ii
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT, dated as
of December 20, 1996, by and among SKYLINE MULTIMEDIA ENTERTAINMENT, INC., a
New York corporation (the "Company"), PROSPECT STREET NYC DISCOVERY FUND, L.P.,
a Delaware limited partnership ("NYCDF") and BANK OF NEW YORK, AS TRUSTEE FOR
THE EMPLOYEES RETIREMENT PLAN OF THE BROOKLYN UNION GAS COMPANY ("Bug").
RECITALS
WHEREAS, in order to induce NYCDF to enter into that certain
Stock Purchase Agreement between NYCDF and the Company dated June 30, 1995, the
Company agreed to provide NYCDF with the registration rights set forth in the
Registration Rights Agreement dated as of June 30, 1995 (the "Existing
Registration Rights Agreement");
WHEREAS, in order to induce NYCDF and Bug to enter into that
certain Senior Credit Agreement by and among the parties hereto, dated as of
the date hereof (the "Credit Agreement"), the Company has agreed to amend and
restate the Existing Registration Rights Agreement in order to provide NYCDF
and Bug with the registration rights set forth in this Agreement; and
WHEREAS, capitalized terms used and not otherwise defined
herein have the respective meanings ascribed thereto in Article X;
NOW, THEREFORE, the parties hereto hereby agree as follows:
ARTICLE I
DEMAND REGISTRATIONS
1.1 Requests for Registration. At any time and from time to time each of the
Required NYCDF Investors and the Required Bug Investors, acting alone or
jointly, may request in writing registration under the Securities Act of all or
part of their Registrable Securities (i) on Form S-1 or any similar long-form
Registration Statement ("Long-Form Registrations"), or (ii) on Form S-2 or S-3
or any similar short-form Registration Statement ("Short-Form Registrations")
if the Company qualifies to use such short form. All registrations requested
pursuant to this Section 1.1 are referred to herein as "Demand Registrations."
Demand Registrations will be Short-Form Registrations whenever the Company is
qualified to use any applicable short form. The Company will use its best
efforts to make Short-Form Registrations available for the sale of Registrable
Securities. Within ten days after receipt of any such request, the Company will
give written notice of such request to all other holders of Registrable
Securities. Thereafter, the Company will use its best efforts to effect the
registration under the
2
Securities Act on the form requested by the Required NYCDF Investors or the
Required Bug Investors, as the case may be, and will include in such
registration all Registrable Securities with respect to which the Company has
received written requests for inclusion therein within 30 days after the
receipt of the Company's notice, subject to the provisions of Section 1.4. The
Required NYCDF Investors or the Required Bug Investors, as the case may be,
after requesting a Demand Registration under this Article I may, at any time
prior to the effective date of the Registration Statement relating to such
registration, revoke such request by providing written notice to the Company.
1.2 Number of Demand Registrations; Expenses. Subject to
Section 1.3, the Company shall have no obligation to effect more than four
Demand Registration Statements at the request of the Required NYCDF Investors,
nor more than one Demand Registration Statement at the request of the Required
Bug Investors . The Company will pay all Registration Expenses in connection
with any Demand Registration, including any Demand Registration Statement that
is not deemed to be effected pursuant to the provisions of Section 1.3 hereof.
1.3 Effected Registration Statement. A registration demanded
pursuant to Section 1.1 of this Agreement shall not be deemed to have been
effected (i) unless a Registration Statement with respect thereto has been
declared effective by the Commission and the Company has complied in all
material respects with its obligations under this Agreement with respect
thereto, (ii) if after it has become effective, such registration is interfered
with by any stop order, injunction or other order or requirement of the
Commission or other governmental agency or court for any reason, and, as a
result thereof, the Registrable Securities covered thereby have not been sold,
(iii) if the conditions to closing specified in the purchase agreement or
underwriting agreement entered into in connection with such registration are
not satisfied by reason of a failure by or inability of the Company to satisfy
any thereof, or the occurrence of an event outside the control of the holders
of Registrable Securities, (iv) if holders of Registrable Securities are not
able to register and sell at least 90% of the amount of Registrable Securities
requested to be included in such registration, or (v) the Registration
Statement does not remain effective for a period of at least 180 days beyond
the effective date thereof or, with respect to an underwritten offering of
Registrable Securities, until 45 days after the commencement of the
distribution by the holders of the Registrable Securities included in such
Registration Statement. If a registration requested pursuant to this Article I
is deemed not to have been effected as provided in this Section 1.3, then the
Company shall continue to be obligated to effect the number of Demand
Registrations set forth in Section 1.2 without giving effect to such requested
registration.
1.4 Priority on Demand Registrations. The Company will not
include in any Demand Registration any securities which are not Registrable
Securities without the written consent of the holders of a majority (by number
of shares) of Registrable Securities on a Diluted Basis requested to be
included in such Demand Registration. If other securities are permitted to be
included in a Demand Registration which is an underwritten offering and the
managing underwriters advise the Company in writing that in their opinion the
number of Registrable
3
Securities and other securities requested to be included exceeds the number of
Registrable Securities and other securities which can be sold in such offering
within a price range acceptable to the holders of a majority (by a number of
shares) of Registrable Securities on a Diluted Basis requested to be included
in such Demand Registration, the Company will include in such registration, to
the exclusion of any securities which are not Registrable Securities, the
number of Registrable Securities requested to be included which in the opinion
of such underwriters can be sold, pro rata among the holders of Registrable
Securities on the basis of the amount of Registrable Securities on a Diluted
Basis requested to be offered thereby.
1.5 Form of Offering; Selection of Underwriters. If the
holders of a majority (by number of shares) of Registrable Securities requested
to be included in such Demand Registration so elect, the offering of such
Registrable Securities pursuant to such Demand Registration shall be (x)
underwritten and/or (y) in the form of a "shelf" registration. The holders of a
majority (by number of shares) of Registrable Securities requested to be
included in such Demand Registration will have the right to select the
underwriters and the managing underwriter to administer any underwritten Demand
Registration.
1.6 Other Registration Rights. Except as provided in this
Agreement, without the written consent of the Required Holders, the Company
will not grant to any Person the right to request the Company to register any
equity securities of the Company, or any securities convertible, exchangeable
or exercisable for or into such securities, other than piggyback registration
rights entitling the holder thereof to participate in Company-initiated
registrations, subject to the prior rights of holders of Registrable
Securities.
ARTICLE II
PIGGY-BACK REGISTRATIONS
2.1 Right to Piggy-back. Whenever the Company proposes to
register any of its securities under the Securities Act (other than pursuant to
a Demand Registration), and the registration form to be used may be used for
the registration of Registrable Securities (a "Piggy-back Registration"), the
Company will give prompt written notice (in any event within three Business
Days after its receipt of notice of any exercise of other demand registration
rights) to all holders of Registrable Securities of its intention to effect
such a registration and will include in such registration all Registrable
Securities with respect to which the Company has received written requests for
inclusion therein within 30 days after the receipt of the Company's notice.
Such requests for inclusion shall specify the number of Registrable Securities
intended to be disposed of and the intended method of distribution thereof.
4
2.2 Piggy-back Expenses. The Registration Expenses of the
holders of Registrable Securities will be paid by the Company in all Piggy-back
Registrations.
2.3 Priority on Company Registrations. If a Piggy-back
Registration is an underwritten registration on behalf of the Company, and the
managing underwriters advise the Company in writing that in their good faith
opinion the number of securities requested to be included in such registration
exceeds the number which can be sold in such offering, the Company will include
in such registration (i) first, the securities the Company proposes to sell,
(ii) second, the Registrable Securities requested to be included in such
registration, provided, that if the managing underwriters in good faith
determine that a lower number of Registrable Securities should be included,
then the Company shall be required to include in the underwriting only that
lower number of Registrable Securities, and the holders of Registrable
Securities who have requested registration shall participate in the
underwriting pro rata based upon their total ownership of Registrable
Securities on a Diluted Basis, and (iii) third, if all Registrable Securities
requested to be included in such registration are included in the registration,
other securities requested to be included in such registration.
2.4 Priority on Stockholder Registrations. If a Piggy-back
Registration is not a Demand Registration pursuant to Article I but is an
underwritten secondary registration on behalf of holders of the Company's
securities, and the managing underwriters advise the Company in writing that in
their good faith opinion the number of securities requested to be included in
such registration exceeds the number which can be sold in such offering, the
Company will include in such registration (i) first, the securities requested
to be included therein by the holders requesting such registration, (ii)
second, the Registrable Securities requested to be included in such
registration, provided, that if the managing underwriters in good faith
determine that a lower number of Registrable Securities should be included,
then the Company shall be required to include in the underwriting only that
lower number of Registrable Securities, and the holders of Registrable
Securities who have requested registration shall participate in the
underwriting pro rata based upon their total ownership of Registrable
Securities on a Diluted Basis, and (iii) if all Registrable Securities
requested to be included in such registration are included in the registration,
third, other securities requested to be included in such registration.
Notwithstanding the foregoing, if Xxxxxx Xxxxxx is among the holders requesting
registration, his securities shall be included for the priority purposes of
this Section 2.4 as covered by the reference to "other securities" in clause
(iii) of the preceding sentence.
5
ARTICLE III
OTHER REGISTRATIONS
3.1 Other Registrations. If the Company has previously filed
a Registration Statement with respect to Registrable Securities pursuant to
Article I or II of this Agreement, and if such previous registration has not
been withdrawn or abandoned, the Company will not file or cause to be effected
any other registration of any of its equity securities or securities
convertible, exchangeable or exercisable for or into its equity securities
under the Securities Act (except on Form S-4 or Form S-8 or any successor
form), whether on its own behalf or at the request of any holder or holders of
such securities, until the earlier of (i) the date on which the Registrable
Securities included therein have been sold, or (ii) 6 months from such
effective date.
ARTICLE IV
REGISTRATION PROCEDURES
Whenever the holders of Registrable Securities have requested
that any Registrable Securities be registered pursuant to this Agreement, the
Company will use its best efforts to effect the registration and the sale of
such Registrable Securities in accordance with the intended method of
disposition thereof as quickly as practicable, and pursuant thereto the Company
will as expeditiously as possible (or, in the case of clause (q) below, will
not):
(a) promptly prepare and file with the Commission a
Registration Statement with respect to such Registrable Securities (such
Registration Statement to include all information which the holders of the
Registrable Securities to be registered thereby shall reasonably request) and
use its best efforts to cause such Registration Statement to become and remain
effective until the completion of the distribution contemplated thereby;
provided that at least ten days before filing a Registration Statement or
Prospectus or any amendments or supplements thereto, the Company will (i)
furnish to counsel selected by the Required Holders or if no holders of
Registrable Securities are participating in such registration, holders of a
majority (by number of shares) of the securities covered by such Registration
Statement, copies of all such documents proposed to be filed, and the Company
shall not file any thereof to which such counsel shall have reasonably objected
on the grounds that such document does not comply in all material respects with
the requirements of the Securities Act or of the rules or regulations
thereunder, and (ii) notify each holder of Registrable Securities covered by
such Registration Statement of (x) any request by the Commission to amend such
Registration Statement or amend or supplement any Prospectus, or (y) any stop
order issued or threatened by the Commission, and take all reasonable actions
required to prevent the entry of such stop order or to remove it if entered;
6
(b) (i) prepare and file with the Commission such amendments
and supplements to such Registration Statement and the Prospectus used in
connection therewith as may be necessary to keep such Registration Statement
effective for a period of not less than 180 days (except that such 180 day
period shall be extended (x) by the length of any period that a stop order or
similar proceeding is in effect which prohibits the distribution of the
Registrable Securities, and (y) by the number of days during the period from
and including the date on which each seller of Registrable Securities shall
have received a notice delivered pursuant to clause (f) below until the date
when such seller shall have received a copy of the supplemented or amended
Prospectus contemplated by clause (f) below), and (ii) comply with the
provisions of the Securities Act with respect to the disposition of all
securities covered by such Registration Statement during such period in
accordance with the intended methods of disposition by the sellers thereof set
forth in such Registration Statement;
(c) furnish to each seller of Registrable Securities, without
charge, such number of conformed copies of such Registration Statement, each
amendment and supplement thereto, the Prospectus included in such Registration
Statement (including each preliminary Prospectus and, in each case including
all exhibits) and such other documents as such seller may reasonably request in
order to facilitate the disposition of the Registrable Securities owned by such
seller;
(d) use its best efforts to register or qualify such
Registrable Securities under such other securities or "blue sky" laws of such
jurisdictions as any seller thereof shall reasonably request, to keep such
registration or qualification in effect for so long as such Registration
Statement remains in effect and do any and all other acts and things which may
be reasonably necessary or advisable to enable such seller to consummate the
disposition in such jurisdictions of the Registrable Securities owned by such
seller, provided, however, that the Company will not be required to (i) qualify
generally to do business in any jurisdiction where it would not otherwise be
required to qualify but for this clause (d), (ii) subject itself to taxation in
any such jurisdiction or (iii) consent to general service of process in any
such jurisdiction;
(e) furnish to each seller of Registrable Securities a signed
copy, addressed to such seller (and the underwriters, if any), of an opinion of
counsel for the Company dated the effective date of such Registration Statement
(and, if such Registration Statement includes an underwritten public offering,
dated the date of the closing under the underwriting agreement), reasonably
satisfactory in form and substance to such seller, covering substantially the
same matters with respect to such Registration Statement (and the Prospectus
included therein) as are customarily covered in opinions of issuer's counsel
delivered to the underwriters in underwritten public offerings, and such other
legal matters as the seller (or the underwriters, if any) may reasonably
request;
7
(f) notify each seller of Registrable Securities, at a time
when a Prospectus relating thereto is required to be delivered under the
Securities Act, of the happening of any event known to the Company as a result
of which the Prospectus included in such Registration Statement, as then in
effect, contains an untrue statement of a material fact or omits to state any
fact required to be stated therein or necessary to make the statements therein
not misleading in light of the circumstances under which they were made, and,
at the request of any such seller, the Company will prepare and furnish 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, 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 under which they were made;
(g) cause all such Registrable Securities to be listed on
each securities exchange on which similar securities issued by the Company are
then listed and on any Securities Exchange or National Automated Quotation
System requested by the holders of a majority (by number of shares) of such
Registrable Securities on a Diluted Basis, provided that the Company then meets
or is reasonably capable of meeting the eligibility requirements for such
exchange or system and such exchange or system is reasonably satisfactory to
the managing underwriters, and to enter into such customary agreements as may
be required in furtherance thereof, including, without limitation, listing
applications and indemnification agreements in customary form;
(h) provide a transfer agent and registrar for all such
Registrable Securities not later than the effective date of such Registration
Statement;
(i) enter into such customary arrangements and agreements and
take all such other actions as the holders of a majority (by number of shares)
on a Diluted Basis of the Registrable Securities being sold or the
underwriters, if any, reasonably request in order to expedite or facilitate the
disposition of such Registrable Securities.
(j) in connection with an underwritten offering, participate,
to the extent reasonably requested by the managing underwriters for the
offering or the holders of the Registrable Securities being sold, in customary
efforts to sell the securities in the offering, including, without limitation,
participating in "road shows";
(k) make available for inspection by any seller of
Registrable Securities, any underwriter participating in any disposition
pursuant to such Registration Statement and any attorney, accountant or other
agent retained by any such seller or underwriter, all financial and other
records, pertinent corporate documents and properties of the Company, and cause
the Company's officers, directors, employees and independent accountants to
supply all information reasonably requested by any such seller, underwriter,
attorney, accountant or agent in connection
8
with such Registration Statement to enable them to conduct a reasonable
investigation within the meaning of the Securities Act;
(l) subject to other provisions hereof, use its best efforts
to cause such Registrable Securities covered by such Registration Statement to
be registered with or approved by such other governmental agencies or
authorities or self-regulatory organizations as may be necessary to enable the
sellers thereof to consummate the disposition of such Registrable Securities;
(m) use its best efforts to obtain a "comfort" letter, dated
the effective date of such Registration Statement (and, if such registration
includes an underwritten offering, dated the date of the closing under the
underwriting agreement), signed by the independent public accountants who have
certified the Company's financial statements, addressed to each seller, and to
the underwriters, if any, covering substantially the same matters with respect
to such Registration Statement (and the Prospectus included therein) and with
respect to events subsequent to the date of such financial statements, as are
customarily covered in accountants' letters delivered to the underwriters in
underwritten public offerings of securities and such other financial matters as
such seller (or the underwriters, if any) may reasonably request;
(n) otherwise use its best efforts to comply with all
applicable rules and regulations of the Commission and make available to its
securityholders, in each case as soon as practicable, an earnings statement
covering a period of at least twelve months, beginning with the first month
after the effective date of the Registration Statement, which earnings
statement shall satisfy the provisions of Section 11(a) of the Securities Act;
(o) permit any holder of Registrable Securities, which
holder, in the sole judgment, exercised in good faith, of such holder might be
deemed to be a controlling person of the Company (within the meaning of the
Securities Act or the Exchange Act) to participate in the preparation of any
Registration Statement covering such holder's Registrable Securities and to
include therein material, furnished to the Company in writing, which in the
reasonable judgment of such holder should be included and which is reasonably
acceptable to the Company;
(p) promptly notify the holders of the Registrable Securities
of the issuance of any stop order by the Commission or the issuance by any
state securities commission or other regulatory authority of any order
suspending the qualification or exemption from qualification of any of the
Registrable Securities under state securities or "blue sky" laws, and use every
reasonable effort to obtain the lifting at the earliest possible time of any
stop order suspending the effectiveness of any Registration Statement or of any
such other order;
(q) at any time file or make any amendment to a Registration
Statement, or any amendment of or supplement to a Prospectus (including
amendments of the documents incorporated by reference into the Prospectus), of
which each seller of Registrable Securities or the managing underwriters shall
not have previously been advised and furnished a copy or to
9
which the sellers of Registrable Securities, the managing underwriters, or
counsel for such sellers or for the underwriters shall reasonably object;
(r) make such representations and warranties (subject to
appropriate disclosure schedule exceptions) to sellers of Registrable
Securities and the underwriters, if any, in form, substance and scope as are
customarily made by issuers to underwriters and selling holders, as the case
may be, in underwritten public offerings of substantially the same type;
(s) during the period when the Prospectus is required to be
delivered under the Securities Act, promptly file all documents required to be
filed with the Commission pursuant to Sections 13(a), 13(c), 14 or 15(d) of the
Exchange Act;
(t) if any proposed registration statement refers to any
seller by name or otherwise as the holder of any securities of the Company then
(whether or not, in the sole judgment, exercised in good faith, of such seller,
such seller is or might be deemed to be a controlling person of the Company),
(i) the Company shall be required at the request of such seller to insert
therein language, in form and substance reasonably satisfactory to such seller,
the Company and the managing underwriters, to the effect that the holding by
such seller of such securities is not to be construed as a recommendation by
such seller of the investment quality of the Company's securities covered
thereby and that such holding does not imply that such seller will assist in
meeting any future financial requirements of the Company, or (ii) in the event
that such reference to such seller by name or otherwise is not required by the
Securities Act, any similar Federal or state statute, or any rule or regulation
of any other regulatory body having jurisdiction over the offering, then in
force, the Company shall be required at the request of such seller to delete
the reference to such seller.
ARTICLE V
REGISTRATION EXPENSES
5.1 Registration Expenses. All expenses incident to the
Company's performance of or compliance with this Agreement, including without
limitation, all registration and filing fees; fees and expenses of compliance
with securities or blue sky laws (including the fees and expenses of counsel in
connection with blue sky qualifications of the Registrable Securities);
printing expenses; messenger and delivery expenses; fees and disbursements of
counsel for the Company, one firm of counsel for the selling holders, and all
independent public accountants, underwriters (excluding discounts and
commissions) and other Persons retained by the Company; the Company's 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 or quarterly review; the expense of any liability insurance;
and the expenses and fees for listing the securities to be registered on each
securities exchange or national market
10
system on which similar securities issued by the Company are then listed (all
of such expenses being herein called the "Registration Expenses") will be paid
for by the Company.
5.2 Sellers' Expenses. The Company shall have no obligation
to pay any underwriting discounts or commissions attributable to the sale of
Registered Securities, which expenses will be borne by all sellers of
securities included in such registration in proportion to the aggregate selling
price of the securities to be so registered by each seller.
ARTICLE VI
UNDERWRITTEN OFFERINGS
6.1 Demand Underwritten Offerings. If requested by the
underwriters for any underwritten offerings of Registrable Securities pursuant
to a Demand Registration, the Company will enter into an underwriting agreement
with such underwriters for such offering, such agreement to be satisfactory in
substance and form to a majority (by number of shares) of holders of
Registrable Securities on a Diluted Basis being offered and the underwriters,
and to contain such representations and warranties by the Company and such
other terms as are generally included in agreements of this type, including,
without limitation, indemnities customarily included in such agreements. The
holders of the Registrable Securities will cooperate with the Company in the
negotiation of the underwriting agreement. The holders of Registrable
Securities to be distributed by such underwriters may be parties to such
underwriting agreement and such holders may, at their option, require that any
or all of the representations and warranties by, and the other agreements on
the part of, the Company to and for the benefit of such underwriters shall also
be made to and for the benefit of such holders of Registrable Securities and
that any or all of the conditions precedent to the obligations of such
underwriters under such underwriting agreement be conditions precedent to the
obligations of such holders of Registrable Securities. The Company shall
cooperate with any such holder of Registrable Securities in order to limit any
representations or warranties to, or agreements with, the Company or the
underwriters to be made by such holder only to those representations,
warranties or agreements regarding such holder, such holder's Registrable
Securities and such holder's intended method of distribution and any other
representation required by law.
6.2 Incidental Underwritten Offerings. If the Company at any
time proposes to register any of its securities under the Securities Act as
contemplated by Article II of this Agreement and such securities are to be
distributed by or through one or more underwriters, the Company will, if
requested by any holder of Registrable Securities as provided in Article II of
this Agreement, arrange for such underwriters to include all the Registrable
Securities to be offered and sold by such holder, subject to the limitations
set forth in Article II hereof, among the securities to be distributed by such
underwriters. The holders of Registrable Securities to be distributed by such
underwriters shall be parties to the underwriting agreement between the Company
and such underwriters, and may, at their option, require that any or all of the
11
representations and warranties by, and the other agreements on the part of, the
Company to and for the benefit of such underwriters shall also be made to and
for the benefit of such holders of Registrable Securities and that any or all
of the conditions precedent to the obligations of such underwriters under such
underwriting agreement be conditions precedent to the obligations of such
holders of Registrable Securities. The Company shall cooperate with any such
holder of Registrable Securities in order to limit any representations or
warranties to, or agreements with, the Company or the underwriters to be made
by such holder only to those representations, warranties or agreements
regarding such holder, such holder's Registrable Securities and such holder's
intended method of distribution and any other representation required by law.
ARTICLE VII
INDEMNIFICATION
7.1 Indemnification by the Company. The Company agrees to
indemnify and hold harmless, to the fullest extent permitted by law, each
holder of any Registrable Securities covered by any Registration Statement
referred to herein, its general partners, limited partners, officers,
directors, employees and agents, and each Person, if any, who controls such
holder within the meaning of Section 15 of the Securities Act or Section 20 of
the Exchange Act, together with the general partners, limited partners,
officers, directors, employees and agents of such controlling Person
(collectively, the "Controlling Person"), from and against any loss, claim,
damage, liability, reasonable attorneys' fees, cost or expense and reasonable
costs and expenses of investigating and defending any such claim and any action
in respect thereof (collectively, the "Damages") to which such holder, its
general partners, limited partners, officers, directors, employees and agents,
and any such Controlling Person may become subject under the Securities Act or
otherwise, insofar as such Damages (or proceedings in respect thereof) arise
out of, or are based upon, any untrue statement or alleged untrue statement of
a material fact contained in any Registration Statement or Prospectus or any
preliminary Prospectus, or arises out of, or are 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 in light of the
circumstances in which they were made, except insofar as the same are based
upon information furnished in writing to the Company by a holder expressly for
use therein, and shall reimburse each holder, its general partners, limited
partners, officers, directors, employees and agents, and each such Controlling
Person for any legal and other expenses reasonably incurred by that holder, its
general partners, limited partners, officers, directors, employees and agents,
or any such Controlling Person in investigating or defending or preparing to
defend against any such Damages or proceedings; provided, however, that the
Company shall not be liable to any holder or other indemnitee to the extent
that any such Damages arise out of or are based upon an untrue statement or
omission made in any preliminary Prospectus if (i) such holder or other
indemnitee failed to send or deliver a copy of the final Prospectus with or
prior to the delivery of written confirmation of the sale by such holder to the
Person asserting the claim from which such Damages arise, and (ii) the final
Prospectus would have corrected such untrue
12
statement or such omission. Such indemnity shall remain in full force and
effect regardless of any investigation made by or on behalf of such holder or
any such general partners, limited partners, officers, directors, agents, or
any Controlling Person and shall survive the transfer of such securities by
such holder.
7.2 Indemnification by Holders. In connection with any
Registration Statement in which a holder of Registrable Securities is
participating, each such selling holder agrees, as to itself, to indemnify and
hold harmless (in the same manner and to the same extent as set forth in
Section 7.1), to the extent permitted by law, the Company, its officers,
directors, employees and agents and each person, if any, who controls the
Company within the meaning of Section 15 of the Securities Act or Section 20 of
the Exchange Act, together with the general partners, limited partners,
officers, directors, employees and agents of such controlling Person, with
respect to any statement or alleged statement in or omission or alleged
omission from such Registration Statement or Prospectus, or any amendment or
supplement thereto, or any preliminary Prospectus, if such statement or alleged
statement or omission or alleged omission was made about such holder in
reliance upon and in conformity with written information furnished to the
Company by or on behalf of such holder, specifically stating that it is for use
in the preparation of such Registration Statement or Prospectus. Such indemnity
shall remain in full force and effect regardless of any investigation made by
or on behalf of the Company or any of its directors, officers or controlling
Persons and shall survive the transfer of such securities by such holder. With
respect to each claim pursuant to this Section 7.2, each such holder's maximum
liability under this Section shall be limited to an amount equal to the net
proceeds actually received by such holder (after deducting any underwriting
discount and expenses) from the sale of Registrable Securities being sold
pursuant to such Registration Statement or Prospectus by such holder.
7.3 Conduct of Indemnification Proceedings. Promptly after
receipt by an indemnified party hereunder of written notice of the commencement
of any action or proceeding involving a claim referred to in Section 7.1 or
Section 7.2 of this Agreement, 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, that the
failure of any indemnified party to give notice as provided herein shall not
relieve the indemnifying party of its obligations under Section 7.1 or Section
7.2 of this Agreement 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, 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, 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 (i) more
than one counsel for
13
all holders of Registrable Securities, selected by the Required Holders, or
(ii) more than one counsel for the Company, in each case in connection with any
one action or separate but similar or related actions. An indemnifying party
who is not entitled to, or elects not to, assume the defense of a claim will
not be obligated to pay the fees and expenses of more than one counsel for all
parties indemnified by such indemnifying party with respect to such claim,
unless in the reasonable judgment of any indemnified party a conflict of
interest may exist between such indemnified party and any other of such
indemnified parties with respect to such claim, in which event the indemnifying
party shall be obligated to pay the fees and expenses of such additional
counsel or counsels. Notwithstanding anything to the contrary set forth herein,
and without limiting any of the rights set forth above, in any event any party
shall have the right to retain, at its own expense, counsel with respect to the
defense of a claim. The indemnifying party will not, without the prior written
consent of each indemnified party, settle or compromise or consent to the entry
of any judgment in any pending or threatened claim, action, suit or proceeding
in respect of which indemnification may be sought hereunder (whether or not
such indemnified party or any Person who controls such indemnified party is a
party to such claim, action, suit or proceeding), unless such settlement,
compromise or consent includes an unconditional release of such indemnified
party from all liability arising out of such claim, action, suit or proceeding
and such settlement, compromise or consent involves only the payment of money
and such money is actually paid by the indemnifying party. Whether or not the
defense of any claim or action is assumed by the indemnifying party, such
indemnifying party will not be subject to any liability for any settlement made
without its consent, which consent will not be unreasonably withheld.
7.4 Indemnity in Underwriting Agreement. The Company and each
holder of Registrable Securities requesting registration shall provide for the
foregoing indemnity (with appropriate modifications) in any underwriting
agreement with respect to any required registration or other qualification of
securities under any Federal or state law or regulation of any governmental
authority other than the Securities Act.
7.5 Contribution. If the indemnification provided for in
Sections 7.1 and 7.2 of this Agreement are unavailable or insufficient to hold
harmless an indemnified party under such Sections, then each indemnifying party
shall contribute to the amount paid or payable by such indemnified party as a
result of the losses, claims, damages or liabilities referred to in Section 7.1
or Section 7.2 of this Agreement in such proportion as is appropriate to
reflect the relative fault of the indemnifying party on the one hand, and the
indemnified party on the other, in connection with statements or omissions
which resulted in such losses, liabilities, claims, damages or expenses, as
well as any other relevant equitable considerations, including, without
limitation, the relative benefits received by each party from the offering of
the securities covered by such Registration Statement, the parties' relative
knowledge and access to
14
information concerning the matter with respect to which the claim was asserted
and the opportunity to correct and prevent any statement or omission. The
relative fault 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 indemnifying party or the indemnified party and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such untrue statements or omission. The parties hereto agree that it would not
be just and equitable if contributions pursuant to this Section 7.5 were to be
determined by pro rata or per capita allocation (even if the underwriters were
treated as one entity for such purpose) or by any other method of allocation
which does not take account of the equitable considerations referred to in the
first sentence of this Section 7.5. The amount paid by an indemnified party as
a result of the losses, claims, damages or liabilities referred to in the first
sentence of this Section 7.5 shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any action or claim (which shall be limited as
provided in Section 7.3 of this Agreement if the indemnifying party has assumed
the defense of any such action in accordance with the provisions thereof) which
is the subject of this Section 7.5. Promptly after receipt by an indemnified
party under this Section 7.5 of notice of the commencement of any action
against such party in respect of which a claim for contribution may be made
against an indemnifying party under this Section 7.5, such indemnified party
shall notify the indemnifying party in writing of the commencement thereof if
the notice specified in Section 7.3 of this Agreement has not been given with
respect to such action; provided, that the omission to so notify the
indemnifying party shall not relieve the indemnifying party from any liability
which it may otherwise have to any indemnified party under this Section 7.5,
except to the extent that the indemnifying party is actually prejudiced by such
failure to give notice. The Company and each holder of Registrable Securities
agrees with each other and the underwriters of the Registrable Securities, if
requested by such underwriters, that (i) the underwriters' portion of such
contribution shall not exceed the underwriting discount and (ii) that the
amount of such contribution shall not exceed an amount equal to the net
proceeds actually received by such indemnifying party from the sale of
Registrable Securities in the offering to which the losses, liabilities,
claims, damages or expenses of the indemnified parties relate. No Person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any Person who was not
guilty of such fraudulent misrepresentation.
7.6 Payment. The indemnification required by this Article VII
shall be made by periodic payments of the amount thereof during the course of
the investigation or defense, as and when bills are received or expense, loss,
damage or liability is incurred.
ARTICLE VIII
RULE 144
The Company covenants that it will file the reports required
to be filed by it under the Securities Act and the Exchange Act and the rules
and regulations adopted by the Commission thereunder (or, if the Company is not
required to file such reports, it will, upon the request of any holder of
Registrable Securities, make publicly available other information), and it will
take such further action as any holder of Registrable Securities may reasonably
request, all to the extent required from time to time to enable such holder to
sell shares of Registrable
15
Securities without registration under the Securities Act within the limitation
of the exemption provided by (i) Rule 144 under the Securities Act, as such
Rule may be amended from time to time, or (ii) any similar rule or regulation
hereafter adopted by the Commission. 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 requirements.
ARTICLE IX
PARTICIPATION IN UNDERWRITTEN REGISTRATIONS
No Person may participate in any underwritten registration
hereunder unless such Person (i) agrees to sell such Person's securities on the
basis provided in any underwriting arrangements approved by the Person or
Persons entitled hereunder to approve such arrangements and (ii) completes and
executes all questionnaires, powers of attorney, indemnities, underwriting
agreements and other documents required under the terms of such underwriting
arrangements and consistent with the provisions of this Agreement.
ARTICLE X
DEFINITIONS
10.1 As used in this Agreement, the following defined terms shall have the
meanings set forth below:
"Bug Investors" means Bug, and each of its direct and
indirect transferees, so long as such Person shall be a holder of Registrable
Securities.
"Business Day" means a day other than Saturday, Sunday or any
day on which banks located in the State of New York are authorized or obligated
to close.
"Commission" means the U.S. Securities and Exchange
Commission.
"Common Stock" means the Common Stock, par value $.001 per
share of the Company, any securities into which such Common Stock shall have
been changed or any securities resulting from any reclassification or
recapitalization of such Common Stock, and all other securities of any class or
classes (however designated) of the Company the holders of which have the
right, without limitation as to amount, after payment on any securities
entitled to a preference on dividends or other distributions upon any
dissolution, liquidation or winding up, either to all or to a share of the
balance of payments upon such dissolution, liquidation or winding up.
16
"Diluted Basis" means with respect to the calculation of the
number of shares of Common Stock (i) all shares of Common Stock outstanding at
the time of determination, (ii) all shares of Common Stock issuable upon
conversion of the Preferred Stock, (iii) all shares of Common Stock issuable
upon conversion of the Warrants and (iv) any securities issued or issuable with
respect to the Common Stock referred to in clause (i), (ii) or (iii) in
connection with a combination of shares, recapitalization, merger,
consolidation or other reorganization.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, or any similar Federal statute then in effect, and any reference to a
particular section thereof shall include a reference to the equivalent section,
if any, of any such similar Federal statute, and the rules and regulations
thereunder.
"Governmental or Regulatory Authority" has the meaning
ascribed to it in the Credit Agreement.
"NYCDF Investors" means NYCDF, and each of its direct and
indirect transferees, so long as such Person shall be a holder of Registrable
Securities.
"Permitted Transferees" shall have the meaning specified in
the Stockholders Agreement.
"Person" means any natural person, corporation, general
partnership, limited partnership, limited liability company, limited liability
partnership, proprietorship, other business organization, trust, union,
association or Governmental or Regulatory Authority.
"Preferred Stock" means the Series A Convertible
Participating Preferred Stock, par value $.001 per share, of the Company.
"Prospectus" means the prospectus included in any
Registration Statement (including without limitation, a prospectus that
disclosed 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 by any prospectus supplement,
with respect to the terms of the offering of any portion of the 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.
"Registrable Securities" means (i) any Common Stock issued or
issuable upon conversion of the Preferred Stock, (ii) any Common Stock issued
or issuable upon exercise of any Warrant, and (iii) any securities issued or
issuable with respect to the Common Stock referred to in clause (i) or clause
(ii) above in connection with a combination of shares, recapitalization,
merger, consolidation or other reorganization. As to any particular Registrable
Securities, such securities will cease to be Registrable Securities unless such
securities are held at
17
such time by a holder of Registrable Securities when they have (x) been
effectively registered under the Securities Act and disposed of in accordance
with the Registration Statement covering them, (y) been transferred pursuant to
Rule 144 (or any similar rule then in force) under the Securities Act or (z)
been otherwise transferred and new certificates for them not bearing a
restrictive Securities Act legend have been delivered by the Company and can be
sold without complying with the registration requirements of the Securities
Act.
"Registration Statement" means any registration statement of
the Company which covers any of the Registrable Securities pursuant to the
provisions of this Agreement, including the Prospectus, amendments and
supplements to such Registration Statement, including post-effective
amendments, all exhibits and all material incorporated by reference in such
Registration Statement.
"Required Bug Investors" means, as of the date of any
determination thereof, (i) Bug, so long as it holds any Registrable Securities
representing at such time at least twenty percent (20%) (by number of shares)
of the Registrable Securities held by all CFD Investors on a Diluted Basis or
(ii) Bug Investors which hold Registrable Securities representing at such time
at least a majority (by number of shares) of the Registrable Securities held by
all Bug Investors on a Diluted Basis.
"Required Holders" means, as of the date of any determination
thereof, holders of Registrable Securities representing at such time at least a
majority (by number of shares) of all Registrable Securities on a Diluted
Basis.
"Required NYCDF Investors" means, as of the date of any
determination thereof, (i) CFD, so long as it holds any Registrable Securities
representing at such time at least twenty percent (20%) (by number of shares)
of the Registrable Securities held by all NYCDF Investors on a Diluted Basis or
(ii) NYCDF Investors which hold Registrable Securities representing at such
time at least a majority (by number of shares) of the Registrable Securities
held by all NYCDF Investors on a Diluted Basis.
"Securities Act" means the Securities Act of 1933, as
amended, or any similar Federal statute then in effect, and any reference to a
particular section thereof shall include a reference to a comparable section,
if any, of any such similar Federal statute, and the rules and regulations
thereunder.
"Warrant" means any Stock Purchase Warrant issued by the
Company pursuant to the Credit Agreement.
10.2 Unless otherwise stated, other defined terms used in
this Agreement shall have the meanings set forth in the Stockholders Agreement.
18
10.3 The following defined terms, when used in this
Agreement, shall have the meaning ascribed to them in the corresponding
Sections of this Agreement listed below:
"Agreement" -- Preamble
"Bug" -- Preamble
"Company" -- Preamble
"Controlling Persons" -- Section 7.1
"Credit Agreement" -- Preamble
"Damages" -- Section 7.1
"Demand Registrations" -- Section 1.1
"Existing Registration Rights Agreement" -- Preamble
"Long-Form Registrations" -- Section 1.1
"NYCDF" -- Preamble
"Piggy-back Registration" -- Section 2.1
"Registration Expenses" -- Section 5.1
"Short-Form Registrations" -- Section 1.1
ARTICLE XI
MISCELLANEOUS
11.1 No Inconsistent Agreements. The Company will not
hereafter enter into any agreement with respect to its securities which is
inconsistent with the rights granted to the holders of Registrable Securities
in this Agreement.
11.2 Certain Actions Affecting Registrable Securities. The
Company will not take any action, or fail to take any action which it may
properly take, with respect to its securities which would adversely affect the
ability of the holders of Registrable Securities to include Registrable
Securities in a registration undertaken pursuant to this Agreement or which, to
the extent within its control, would adversely affect the marketability of such
Registrable Securities in any such registration (including, without limitation,
effecting a stock split or a combination of shares).
11.3 Deferral. Notwithstanding the provisions of Articles I
and II, the Company's obligations to file a Registration Statement, or cause
such Registration Statement to become and remain effective, shall be suspended
for a period not to exceed 90 consecutive days if there exists at the time
material non-public information relating to the Company that, in the reasonable
opinion of the Company's counsel, should not be disclosed.
19
11.4 Remedies. In the event of a breach by any party to this
Agreement of its obligations under this Agreement, any party injured by such
breach, 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 parties agree that the provisions of this
Agreement shall be specifically enforceable, it being agreed by the parties
that the remedy at law, including monetary damages, for breach of any such
provision will be inadequate compensation for any loss and that any defense in
any action for specific performance that a remedy at law would be adequate is
waived.
11.5 Amendments and Waivers. Except as otherwise provided
herein, no modification amendment or waiver of any provision of this Agreement
will be effective against the Company or any holder of Registrable Securities,
unless such modification, amendment or waiver is approved in writing by the
Company and the Required holders. The failure of any party to enforce any of
the provisions of this Agreement will in no way be construed as a waiver of
such provisions and will not affect the right of such party thereafter to
enforce each and every provision of this Agreement in accordance with its
terms.
11.6 Successors and Assigns. All covenants and agreements in
this Agreement by or on behalf of any of the parties hereto will bind and inure
to the benefit of the respective successors and assigns of the parties hereto
whether so expressed or not. In addition, whether or not any express assignment
has been made, the provisions of this Agreement which are for the benefit of
holders of Registrable Securities are also for the benefit of, and enforceable
by, any subsequent holder of Registrable Securities, except to the extent
reserved to or by the transferor in connection with any such transfer.
11.7 Notices. All notices, requests and other communications
hereunder must be in writing and will be deemed to have been duly given only if
delivered personally against written receipt or by facsimile transmission or
mailed by pre-paid first class mail, return receipt requested or mailed by
overnight courier to the parties at the following addresses or facsimile
numbers:
(i) If to NYCDF:
Prospect Street NYC Discovery Fund, L.P.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Facsimile No.: (000) 000-0000
Attn: Xxxxxx X. Xxxxxx
20
with a copy to:
Xxxxxx, Xxxxx & Bockius
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile No.: (000) 000-0000
Attn: Xxx Xxxxx, Esq.
(ii) If to Bug, Inc.
Bank of New York, as Trustee for the
Employees Retirement Plan of the
Brooklyn Union Gas Company
c/o The Brooklyn Union Gas Company
Xxx XxxxxXxxx Xxxxxx
Xxxxxxxx, XX 00000-0000
Attn: Xxxxxx Xxxxxxx
(ii) If to the Company, to:
Skyline Multimedia Entertainment, Inc.
Empire State Building
000 Xxxxx Xxxxxx
Xxxxx 000
Xxx Xxxx, XX 00000
Facsimile No.: (212)
Attn: Xxxxxx X. Xxxxxx
with a copy to:
Rosenman & Colin
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
Attn: Xxxx Xxxxxxx, Esq.
(iii) If to a holder of Registrable Securities, to the
last address for such Person set forth in the
records of the Company.
All such notices, requests and other communications will (w) if delivered
personally to the address as provided in this Section, be deemed given upon
delivery, (x) if delivered by facsimile transmission to the facsimile number as
provided in this Section, be deemed given upon receipt, (y) if delivered by
mail in the manner described above to the address as provided in this Section,
21
upon the earlier of the third Business Day following mailing or upon receipt
and (z) if delivered by overnight courier to the address as provided in this
Section, be deemed given on the earlier of the first Business Day following the
date sent by such overnight courier or upon receipt (in each case regardless of
whether such notice, request or other communication is received by any other
Person to whom a copy of such notice is to be delivered pursuant to this
Section). Any party from time to time may change its address, facsimile number
or other information for the purpose of notices to that party by giving notice
specifying such change to the other parties hereto.
11.8 Headings. The headings used in this Agreement have been
inserted for convenience of reference only and do not define or limit the
provisions hereof.
11.9 Gender. Whenever the pronouns "he" or "his" are used
herein they shall also be deemed to mean "she" or "hers" or "it" or "its"
whenever applicable. Words in the singular shall be read and construed as
though in the plural and words in the plural shall be construed as though in
the singular in all cases where they would so apply.
11.10 Invalid Provisions. If any provision of this Agreement
is held to be illegal, invalid or unenforceable under any present or future
Law, and if the rights or obligations of any party hereto under this Agreement
will not be materially and adversely affected thereby, (i) such provision will
be fully severable, (ii) this Agreement will be construed and enforced as if
such illegal, invalid or unenforceable provision had never comprised a part
hereof, (iii) the remaining provisions of this Agreement will remain in full
force and effect and will not be affected by the illegal, invalid or
unenforceable provision or by its severance herefrom and (iv) in lieu of such
illegal, invalid or unenforceable provision, there will be added automatically
as a part of this Agreement a legal, valid and enforceable provision as similar
in terms to such illegal, invalid or unenforceable provision as may be
possible.
11.11 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE DOMESTIC LAWS OF THE STATE OF NEW YORK WITHOUT
GIVING EFFECT TO ANY CHOICE OF LAW OR CONFLICT OF LAW PROVISION OR RULE
(WHETHER OF THE STATE OF NEW YORK OR ANY OTHER JURISDICTION) THAT WOULD CAUSE
THE APPLICATION OF THE LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF NEW
YORK.
11.12 Counterparts. This Agreement may be executed in any
number of counterparts, each of which will be deemed an original, but all of
which together will constitute one and the same instrument.
22
IN WITNESS WHEREOF, the parties hereby have executed this
Agreement as of the date first written above.
SKYLINE MULTIMEDIA ENTERTAINMENT, INC.
By: __________________________
Name:
Title:
PROSPECT STREET NYC DISCOVERY FUND, L.P.
By: Prospect Street Discovery Fund, Inc.,
General Partner
By: __________________________
Name:
Title:
Bank of New York, as Trustee for the Employees
Retirement Plan of the Brooklyn Union Gas Company
By: __________________________
Name:
Title:
23
