NOTE AND COMMON STOCK PURCHASE AGREEMENT
This Note and Common Stock Purchase Agreement (the "Agreement") is made
this 30th day of March, 2001 (the "Effective Date") by and between JMG
Convertible Investments, L.P. (the "Seller"), and Acclaim Entertainment, Inc., a
Delaware corporation (the "Company").
RECITALS
WHEREAS, the Seller is the current bona fide owner and holder of a
certain note of the Company in the aggregate principal amount of $1,750,000 (the
"Note"), originally issued as part of the Company's private placement of
$50,000,000 aggregate principal amount of 10% Convertible Subordinated Notes due
in 2002 (the "Issuance");
WHEREAS, both the Issuance and the Note are governed by an Indenture
between the Company and IBJ Xxxxxxxxx Bank & Trust Company (the "Trustee"),
dated as of February 26, 1997 (the "Indenture");
WHEREAS, the Company wishes to purchase the Note from Seller upon the
terms and subject to the conditions of this Agreement, and
WHEREAS, in connection with the Company's purchase of the Note, the
Seller is concurrently purchasing from the Company 389,848 shares (the
"Purchased Stock") of the Company's common stock, par value $0.02 per share (the
"Common Stock").
AGREEMENT
The parties hereto hereby agree as follows:
1. PURCHASE AND SALE.
(a) PURCHASE AND SALE OF NOTE. The Seller hereby transfers, assigns and
sells to the Company, and the Company hereby purchases from the Seller, the
Note for an aggregate purchase price of $713,633 (the "Note Price"), as
reflected in paragraph 1.(e) below.
(b) DELIVERY OF NOTE. The parties acknowledge that the Seller has
instructed Bear Xxxxxxx to transfer the Note to the Trustee, and the Company
has in turn instructed the Trustee to cancel the Note as a result of the
transactions contemplated hereby.
(c) PURCHASE AND SALE OF PURCHASED STOCK The Company hereby sells and
delivers to the Seller, and the Seller hereby purchases from the Company, the
Purchased Stock, at a purchase price of $1.25 per share (which the parties
agree is the fair market value of the Common Stock), or an aggregate purchase
price for all the Purchased Stock of $487,310 (the "Stock Price") as reflected
in paragraph 1.(e) below.
(d) DELIVERY OF PURCHASED STOCK. The Company has delivered to the Seller
share certificate no. 19659 representing the shares of Purchased Stock, and the
Seller hereby acknowledges receipt thereof.
(e) ADDITIONAL DELIVERY. In consideration of the purchase by the Company
of the Note for the Note Price, and the purchase by the Seller of the Purchased
Stock for the Stock Price, the Company hereby pays to Seller by wire transfer
of immediately available funds to an account of the Seller, the receipt of
which is hereby acknowledged, the difference between the Note Price and the
Stock Price (i.e. $226,323, referred to herein as the "Purchase Price").
2. REPRESENTATIONS AND WARRANTIES OF THE SELLER. The Seller hereby represents
and warrants to the Company that:
(a) RIGHT, TITLE AND INTEREST TO NOTE. The Seller is the bona fide holder
of the Note and is in valid possession of all right, title and interest to the
Note, and when the Note is delivered to the Company pursuant hereto, the
Company will acquire good and marketable title thereto, free and clear of all
liens, restrictions, claims, charges and encumbrances and is not subject to any
adverse claim.
(b) AUTHORIZATION AND VALIDITY OF AGREEMENT. The Seller has the power and
authority and has taken all necessary actions to execute and deliver this
Agreement, to consummate the transactions contemplated hereby and to take all
other actions required to be taken by it pursuant to the provisions hereof.
This Agreement has been duly executed and delivered by the Seller. This
Agreement is legal, valid and binding upon and enforceable against the Seller
in accordance with its terms, except as such enforceability may be limited by
bankruptcy, moratorium, insolvency, fraudulent conveyance, reorganization, or
other similar laws affecting the enforcement of creditors' rights generally.
(c) NO CONFLICT WITH OTHER INSTRUMENTS. The Seller is not subject to any
agreement, instrument, judgment, order, document or other restriction of any
kind that would prevent the consummation of the transactions contemplated by
this Agreement.
(d) INVESTMENT REPRESENTATIONS. The Seller understands that the shares of
Purchased Stock (and any other shares of Common Stock acquired hereunder) have
not been registered under the Securities Act of 1933 (the "Securities Act").
Seller also understands that the shares of Purchased Stock (and such other
shares of Common Stock) are being offered and sold pursuant to an exemption
from registration contained in the Securities Act based in part upon Seller's
representations contained in this Section 2(d). In that regard, the Seller
hereby represents and warrants as follows:
(i) SELLER BEARS ECONOMIC RISK. The Seller has substantial experience
in evaluating and investing in private placement transactions of securities in
companies similar to the Company so that it is capable of evaluating the merits
and risks of its investment in the Company and has the capacity to protect its
own interests. The Seller understands and accepts that it must bear the
economic risk of this investment indefinitely unless the shares of Purchased
Stock (and any other shares of Common Stock acquired hereunder) are registered
pursuant to the Securities Act, or an exemption from registration is available.
(ii) ACQUISITION FOR OWN ACCOUNT. The Seller is acquiring the shares
of Purchased Stock, (and any other shares of Common Stock acquired hereunder),
for the Seller's own account for investment only, and not with a view towards,
or for resale in connection with, their distribution in any transaction that
would be in violation of the securities laws of the United States of America or
any State thereof. Seller understands that the Purchased Stock (and any other
shares of Common Stock acquired hereunder) have not been approved or
disapproved by the Securities and Exchange Commission (the "Commission"), or
any other federal or state agency, nor has the Commission or any such agency
passed upon the accuracy or adequacy of any of the information provided to the
Seller.
(iii) ACCREDITED INVESTOR. The Seller is an "accredited investor"
within the meaning of Regulation D under the Securities Act. The address of
Seller set forth on the signature page hereto is Seller's current address.
(iv) COMPANY INFORMATION. The Seller has had an opportunity to
discuss the Company's business, management and financial affairs with
directors, officers and management of the Company and has had the opportunity
to review the Company's operations and facilities and is satisfied with the
results thereof. The Seller has also had the opportunity to ask questions of
and receive answers from, the Company and its management regarding the terms
and conditions of its investment in the shares of Purchased Stock.
(v) NO ORAL REPRESENTATIONS. In making the Seller's investment in
the Company, no oral representations or warranties have been made to the
Seller. The Seller acknowledges that it has been advised that no person is
authorized to give any information or to make any statement not contained in
any of the written information provided to the Seller by the Company and that
any information or statement not made by such person must not be relied upon as
having been authorized by the Company or any professional advisors or counsel
thereto. The Seller and the Seller's representatives must rely on their own due
diligence of the Company and any other investigations deemed necessary for the
purpose of determining whether to proceed with the investment in the Company.
(vi) PURCHASED STOCK LEGEND. The Seller agrees that the certificates
evidencing the shares of Purchased Stock (and any other shares of Common Stock
acquired hereunder) bear the following legend restricting their transferability
under the Securities Act:
THE SHARES REPRESENTED BY THIS CERTIFICATE WERE ACQUIRED FOR
INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED ("ACT"). NO SALE, OFFER TO SELL OR
TRANSFER OF THE SHARES REPRESENTED BY THIS CERTIFICATE SHALL
BE MADE IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT
FOR THE SHARES UNDER THE ACT, OR AN OPINION OF COUNSEL TO THE
COMPANY THAT REGISTRATION IS NOT REQUIRED UNDER THE ACT.
(e) PUBLIC REPORTS. Seller has received, read and understands the
Company's Annual Report on Form 10-K (for the year ended August 31, 2000) and
Quarterly Report on Form 10-Q (for to the quarterly period ended December 2,
2000).
(f) INDEMNIFICATION. The Seller shall indemnify and hold harmless each of
the Company, its directors, officers, persons controlling the Company, any
affiliate of the foregoing or any professional advisors thereto, from and
against any and all loss, damage, liability or expense, including costs and
reasonable attorneys' fees, to which any of them may be put or which they may
incur by reason of or in connection with any misrepresentation made by Seller,
or any breach of any of Seller's warranties.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company hereby represents
and warrants to the Seller that:
(a) AUTHORIZATION AND VALIDITY OF AGREEMENT. The Company has the corporate
power and authority and has taken all necessary corporate actions to execute
and deliver this Agreement, to consummate the transactions contemplated hereby
and to take all other actions required to be taken by it pursuant to the
provisions hereof. This Agreement has been duly executed and delivered by the
Company. This Agreement is legal, valid and binding upon and enforceable
against the Company in accordance with its terms, except as such enforceability
may be limited by bankruptcy, moratorium, insolvency, fraudulent conveyance,
reorganization, or other similar laws affecting the enforcement of creditors'
rights generally.
(b) NO CONFLICT WITH OTHER INSTRUMENTS. The Company is not subject to any
agreement, instrument, judgment, order, document or other restriction of any
kind that would prevent the consummation of the transactions contemplated by
this Agreement.
(c) FULL DISCLOSURE. Neither the Company's Annual Report on Form 10-K (for
the year ended August 31, 2000) and Quarterly Report on Form 10-Q (for the
quarterly period ended December 2, 2000) contain any untrue statement of a
material fact or omit to state a material fact required to be stated or therein
necessary to make the statements contained therein not misleading in light of
the circumstances under which they were made.
(d) VALIDITY OF PURCHASED STOCK. Upon issuance of the Purchased Stock (and
any shares of Common Stock acquired hereunder) and payment therefore pursuant
hereto, the shares of Purchased Stock (and any shares of Common Stock acquired
hereunder) will be fully paid and nonassessable. The shares of Purchased Stock
(and any shares of Common Stock acquired hereunder) are not subject to
preemptive rights.
4. RELEASE. By the surrender of the Note and acceptance of the Purchase Price,
the Seller hereby releases the Company from any and all obligations under the
Note and the Indenture, financial and otherwise, and relinquishes the right to
any legal claim against the Company in connection with either the Note or the
Indenture.
5. CONFIDENTIALITY OF INFORMATION. The Seller agrees to hold and to cause its
representatives and affiliates to hold all information received from or
concerning the Company in connection with the transactions contemplated by this
Agreement in confidence, and not to use
or disclose any of such information to any such third party, except to the
extent such information may be made publicly available by the Company.
6. REGISTRATION RIGHTS.
(a) The Company hereby agrees to prepare and file with the Securities and
Exchange Commission (the "SEC") a registration statement on Form S-3, or other
appropriate form in the Company's discretion (the "Registration Statement")
with respect to the resale of the shares of Purchased Stock and to use its best
efforts to cause the Registration Statement to be declared effective by the
SEC. The parties hereto agree that if the Registration Statement has not been
filed with the SEC by no later than April 16th , 2001 (the "Registration
Period"), the Company shall deliver an additional 75,000 shares of Common Stock
to the Seller without additional consideration therefor and, for each 14-day
period thereafter until the Registration Statement has been filed with the SEC,
the Company shall deliver an additional 75,000 shares of Common Stock to the
Seller without additional consideration therefor. Notwithstanding the
foregoing, if the Registration Statement has not been declared effective by the
SEC on or before the 90th day following the filing of the Registration
Statement, the Company shall deliver 250,000 additional shares of Common Stock
to the Seller without additional consideration therefor.
(b) In connection with the registration of the shares of Purchased Stock
described in section 6(a), the Company agrees that it will:
(i) Prepare and file with the SEC such amendments and supplements
to the Registration Statement and the prospectus used in connection with the
Registration Statement as may be necessary to comply with the provisions of the
Securities Act with respect to the disposition of all securities covered by the
Registration Statement;
(ii) Furnish to the Seller such number of copies of the Registration
Statement and each such amendment and supplement thereto (in each case
including all exhibits), such number of copies of the prospectus (including
each preliminary prospectus and summary prospectus) in conformity with the
requirements of the Securities Act, and such documents, if any, incorporated by
reference in such Registration Statement or prospectus, and such other
documents as the Seller may reasonably request in order to facilitate the
disposition of the shares of Purchased Stock owned by it that are included in
such registration;
(iii) Use its best efforts to register and qualify the securities
covered by the Registration Statement under such other securities or "blue sky"
laws of such jurisdictions as shall be reasonably requested by the Seller, keep
such registration or qualification in effect for so long as the Registration
Statement remains in effect, and do any or all acts and things which may be
reasonably necessary to enable the Seller to consummate the disposition in such
jurisdiction of the shares of Purchased Stock covered by the Registration
Statement; provided that the Company shall not be required in connection
therewith or as a condition thereto to qualify to do business, to subject
itself to taxation, or to file a general consent to service of process in any
such states or jurisdictions;
(iv) Notify the Seller and (if requested by the Seller) confirm such
advice in writing, (I) when or if the prospectus or any prospectus supplement
or post-effective amendment has been filed, and, with respect to the
Registration Statement or any post-effective amendment, when the same has
become effective, (II) of any request by the SEC for amendments or supplements
to the Registration Statement or the prospectus or for additional information,
(III) of the issuance by the SEC of any stop order suspending the effectiveness
of the Registration Statement or the initiation of any proceedings for that
purpose, (IV) of the receipt by the Company of any notification with respect to
the suspension of the qualification of the shares of Purchased Stock for sale
in any jurisdiction or the initiation or threatening of any proceeding for such
purpose, and (V) of the happening of any event as a result of which the
prospectus included in the Registration Statement, as then in effect, includes
an untrue statement of a material fact or omits to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading in the light of the circumstances then existing;
(v) If any fact contemplated by clause (V) of paragraph (iv), above,
shall exist, prepare a supplement or post-effective amendment to the
Registration Statement or the related prospectus or any document incorporated
therein by reference or file any other required document so that, as thereafter
delivered to the purchaser of the shares of the Purchased Stock the prospectus
will not contain an untrue statement of material fact or omit to state any
material fact necessary to make the statements therein not misleading;
(vi) Use best efforts to obtain the withdrawal of any order
suspending the effectiveness of the Registration Statement at the earliest
possible moment; and
(vii) Otherwise use its best efforts to comply with all applicable
rules and regulations of the SEC, and make available to its shareholders, as
soon as reasonably practicable, an earnings statement covering the period of at
least 12 months, but not more than 18 months, beginning with the first month of
the first fiscal quarter after the effective date of such Registration
Statement, which earnings statement shall satisfy the provisions of Section
11(a) of the Securities Act and Rule 158 under the Securities Act.
(c) OBLIGATION OF SELLER TO FURNISH INFORMATION. It shall be a condition
precedent to the obligations of the Company to take any action pursuant to this
Agreement that the Seller shall furnish to the Company in writing such
information regarding itself, the shares of Purchased Stock and Common Stock it
then holds, and the intended method of disposition of such shares as shall
reasonably be required to timely effect the registration of the shares of
Purchased Stock.
(d) DEFERRAL. If the Company shall furnish to the Seller a certificate
signed by the President or Chief Executive Officer of the Company (a "Demand
Deferral Notice") stating that, in the good faith judgment of the Board of
Directors of the Company, it would be seriously detrimental to the Company and
its shareholders for such Registration Statement to be filed and it is
therefore essential to defer the filing of such Registration Statement, then
the Company shall have the right to defer such filing for a period of not more
than 90 days after the date such Demand Deferral Notice is furnished to the
Seller; provided, however, that the Company may not utilize this right more
than once. Notwithstanding the foregoing, if such a Demand Deferral
Notice is delivered during the Registration Period, the Company shall continue
to be obligated to deliver such additional shares as described in, and in
accordance with, Section 6(a) above.
(e) DISCONTINUANCE OF A DISPOSITION OF REGISTRABLE SHARES. If any shares
of Purchased Stock are registered for sale under the Securities Act, the Seller
shall cease any distribution of such shares under the Registration Statement
not more than once in any twelve-month period, for up to 90 days each, upon the
request of the Company if: (x) such distribution would require the public
disclosure of material non-public information concerning any transaction or
negotiations involving the Company or any of its affiliates that, in the good
faith judgment of the Company's Board of Directors, would materially interfere
with such transaction or negotiations, (y) such distribution would otherwise
require premature disclosure of information that, in the good faith judgment of
the Company's Board of Directors, would adversely affect or otherwise be
detrimental to the Company or (z) the Company proposes to file a registration
statement under the Securities Act for the offering and sale of securities for
its own account in an underwritten offering and the managing underwriter
therefor shall advise the Company in writing that in its opinion the continued
distribution of the Purchased Stock would adversely affect the success of the
offering of the securities proposed to be registered for the account of the
Company. The Company shall promptly notify the Seller at such time as (i) such
transactions or negotiations have been otherwise publicly disclosed or
terminated, (ii) such non-public information has been publicly disclosed or
counsel to the Company has determined that such disclosure is not required due
to subsequent events or (iii) the completion of such underwritten offering.
(f) "MARKET STAND-OFF" AGREEMENT. If requested by the Company, the Seller
agrees that it will refrain from selling or otherwise transferring or disposing
of any shares of Purchased Stock or other shares of stock of the Company that
it then owns (other than to donees or partners of the Seller who agree to be
similarly bound) for a period of up to 90 days following the effective date of
the first Registration Statement of the Company filed under the Securities Act
in connection with a public offering of the Common Stock after the date of this
Agreement (other than a registration on Form S-4 or Form S-8). In order to
enforce the foregoing covenant, the Company shall have the right to place
restrictive legends on the certificates representing the shares of Purchased
Stock and to impose stop transfer instructions with respect to the shares of
Purchased Stock until the end of such period.
7. INDEMNIFICATION. In connection with the Registration Statement described in
section 6 above, or any Registration Statement prepared in connection with this
Agreement:
(a) BY THE COMPANY. To the extent permitted by law, the Company will
indemnify and hold harmless the Seller, any underwriter (as defined in the
Securities Act), and all of their respective officers, directors, shareholders,
agents, employees or other control persons ("Related Persons") against any
actions, costs, losses, claims, damages or liabilities ("Claims or Damages"),
insofar as such Claims or Damages (or actions in respect thereto) arise out of
or are based upon the following actions by the Company or its Related Persons:
(i) any untrue statement or alleged untrue statement of a material fact
contained in a Registration Statement, including any preliminary prospectus or
final prospectus contained therein or any amendments or supplements thereto;
(ii) the omission or alleged omission to state therein a material fact required
to be stated therein, or necessary to make the statements therein not
misleading; or (iii) any violation or alleged violation by any party or its
agents of the Securities Act, the Securities Exchange Act of 1934 (the "Exchange
Act"), any federal or state securities law, or any rule or regulation
promulgated under any of the foregoing in connection with the offering covered
by such Registration Statement (collectively, "Violations"). The Company will
reimburse the Seller and each of its Related Persons for any legal or other
expenses they or any of them may incur in connection with investigating or
defending any such Claims or Damages; provided, however, that the indemnity
agreement contained in this Section 7(a) shall not apply to amounts paid in
settlement of any such Claims or Damages if such settlement is effected without
the consent of the Company (which consent shall not be unreasonably withheld or
delayed), nor shall the Company be liable in any such case for any such Claims
or Damages to the extent that they arise out of or are based upon a Violation
that occurs in reliance upon and in conformity with written information
furnished expressly for use in connection with such registration by the Seller
or any of its Related Persons.
(b) BY SELLER. To the extent permitted by law, the Seller will indemnify
and hold harmless the Company, any underwriter (as defined in the Securities
Act), and all of their respective Related Persons, against any Claims or
Damages they or any of them may incur insofar as such Claims or Damages (or
actions in respect thereto) arise out of or are based upon any Violation of or
by the Seller or its Related Persons, in each case to the extent (and only to
the extent) that such Violation occurs in connection with written information
furnished by the Seller expressly for use in connection with a registration;
and the Seller will reimburse any legal or other expenses reasonably incurred
by the Company, any underwriter and any of their respective Related Persons, in
connection with investigating or defending any Claim or Damage; provided,
however, that the indemnity agreement contained in this subsection 7(b) shall
not apply to amounts paid in settlement of any such loss, claim, damage,
liability or action if such settlement is effected without the consent of the
Seller, which consent shall not be unreasonably withheld or delayed; and
provided further, that the total amounts payable in indemnity by the Seller
under this Section 7(b) in respect of any Violation shall not exceed the net
proceeds received by the Seller in the registered offering out of which such
Violation arises.
(c) CONTRIBUTION. If the indemnification provided for in this Section 7 is
unavailable to an indemnified party under Section 7(a) or Section 7(b) hereof
(other than by reason of exceptions provided in those Sections) in respect of
any Claims or Damages referred to therein, then each applicable indemnifying
party, in lieu of indemnifying such indemnified party, shall contribute to the
amount paid or payable by such indemnified party as a result of such Claims or
Damages in such proportion as is appropriate to reflect the relative fault of
the Company on the one hand and of the Seller on the other in connection with
the statements or omissions which resulted in such Claims or Damages, as well
as any other relevant equitable considerations. The relative fault of the
Company on the one hand and of the Seller on the other shall be determined by
reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company or by the Seller
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The amount paid
or payable by a party as a result of the Claims or Damages referred to above
shall be deemed to include any legal or other fees or expenses reasonably
incurred by such party in connection with investigating or defending any action
or claim.
The Company and the Seller agree that it would not be just and equitable
if contribution pursuant to this Section 7(c) were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to in the immediately preceding
paragraph. Notwithstanding the provisions of this Section 7(c), the Seller
shall not be required to contribute any amount in excess of the amount by which
the total price at which the Purchased Stock sold by the Seller and distributed
to the public exceeds the amount of any damages which the Seller has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No Person (as defined in Section 2 of the
Securities Act) 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.
(d) NOTICE. Promptly after receipt by an indemnified party under this
Section 7 of notice of the commencement of any action (including any
governmental action), such indemnified party will, if a claim in respect
thereof is to be made against any indemnifying party under this Section 7,
deliver to the indemnifying party a written notice of the commencement thereof,
and the indemnifying party shall have the right to participate in, and, to the
extent the indemnifying party so desires, jointly with any other indemnifying
party similarly noticed, to assume the defense thereof with counsel mutually
satisfactory to the parties; provided, however, that an indemnified party shall
have the right to retain its own counsel, with the fees and expenses to be paid
by the indemnifying party, if representation of such indemnified party by the
counsel retained by the indemnifying party would be inappropriate due to actual
or potential conflict of interests between such indemnified party and any other
party represented by such counsel in such proceeding. The failure to deliver
written notice to the indemnifying party within a reasonable time of the
commencement of any such action, to the extent that it is materially
prejudicial to its ability to defend such action, shall relieve such
indemnifying party of any liability to the indemnified party under this Section
7, but such a failure will not relieve it of any liability that it might have
to any indemnified party otherwise than under this Section 7.
(e) DEFECT ELIMINATED IN FINAL PROSPECTUS OR SUPPLEMENT OR POST-EFFECTIVE
AMENDMENT. The foregoing indemnity agreements of the Company and the Seller are
subject to the condition that, insofar as they relate to any Violation made (x)
in a preliminary prospectus but eliminated or remedied in the amended
prospectus on file with the SEC at the time the Registration Statement in
question becomes effective or in the amended prospectus filed with the SEC
pursuant to SEC Rule 424(b) (the "Final Prospectus") or (y) in the Final
Prospectus but eliminated or remedied in a supplement or post-effective
amendment contemplated by Section 4(i) hereof, as applicable, such indemnity
agreement shall not inure to the benefit of any person if a copy of the Final
Prospectus or such supplement or post-effective amendment, as applicable, was
furnished to the indemnified party and was not furnished to the person
asserting the loss, liability, claim or damage at or prior to the time such
action is required by the Securities Act.
8. SURVIVAL. The obligations of the Company and the Seller under Section 7 shall
survive the completion of any resale of Purchased Stock by the Seller in a
Registration Statement. The representations and warranties of the parties under
Sections 2 and 3 hereof, respectively, shall survive for a period of one year
from the date hereof.
9. MISCELLANEOUS.
(a) This Agreement shall bind the parties, their respective heirs,
administrators, executors, successors and assigns.
(b) Each party hereto will, upon request, execute and deliver any
additional documents deemed by the other party to be necessary or desirable to
complete the transactions contemplated hereby.
(c) All prior or contemporaneous agreements, contracts, promises,
representations and statements, if any, between the parties hereto pertaining
to the transactions contemplated hereby, are merged into this Agreement. This
Agreement sets forth the entire understanding between the parties, and there
are no terms, conditions, representations, warranties or covenants other than
those contained herein.
(d) Any notice required or permitted by this Agreement shall be in writing
and shall be deemed sufficient upon receipt, when delivered personally or by
courier, overnight delivery service or confirmed facsimile, or 48 hours after
being deposited in the U.S. mail as certified or registered mail with postage
prepaid, if such notice is addressed to the party to be notified at such
party's address or facsimile number as set forth on the signature page hereto
or as subsequently modified by written notice.
(e) This Agreement, and any provision hereof, may not be amended,
modified, released or discharged, in whole or in part, except by a writing
signed by the parties hereto.
(f) This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original and all of which together shall constitute
one instrument.
(g) The titles and subtitles used in this Agreement are used for
convenience only and are not to be considered in construing or interpreting
this Agreement.
(h) This Agreement shall be governed by the laws of the State of New York,
without regard to its principles of conflict of laws.
(i) The Seller will bear all costs, fees and expenses incurred by it in
connection with the negotiation, documentation, and/or enforcement of its
rights under this Agreement and any related matters or documents.
Notwithstanding the foregoing, all expenses incurred in connection with a
registration pursuant to this Agreement (excluding underwriters' and brokers'
discounts and commissions), including, without limitation all federal or state
"blue sky" registration and qualification fees, printers' and accounting fees,
and fees and disbursements of counsel for the Company, shall be borne by the
Company.
[Signature Page Follows]
The parties have executed this Note and Common Stock Purchase Agreement
as of the date first written above.
COMPANY:
ACCLAIM ENTERTAINMENT, INC.
By:
-------------------------------
Name:
Title:
Address:
Facsimile No.:
SELLER:
JMG Convertible Investments, L.P.
By:
-------------------------------
Name: Xxxxxxxxx Xxxxxx
Title:
Address: 0000 Xxxxxx xx xxx Xxxxx
Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Facsimile No.:
