REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT, dated as of July ___, 2001 (this
"Agreement"), is made by and between ACCLAIM ENTERTAINMENT, INC., a Delaware
corporation (the "Company"), and those persons named in Schedule 1 (together,
the "Purchasers").
W I T N E S S E T H:
WHEREAS, pursuant to a Share Purchase Agreement, dated as of the date
hereof, between the Company and the Purchasers (the "Share Purchase Agreement"),
the Company has agreed to issue and sell to the Purchasers, a total of
___________ shares (the "Shares" or the "Registrable Securities") of the
Company's common stock, par value $.02 per share (the "Common Stock");
WHEREAS, to induce the Purchasers to execute and deliver the Share
Purchase Agreement, the Company has agreed to provide to the Purchasers and
their permitted assigns certain registration rights under the Securities Act of
1933, as amended (the "Securities Act"), and applicable state securities laws.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Company and the
Purchasers hereby agree as follows:
1. DEFINITIONS.
As used in this Agreement, the following terms shall have the
following meanings:
(a) "Holder" or "Holders" mean a holder or holders of
Registrable Securities or securities convertible into or exercisable for
Registrable Securities.
(b) "Registration Statement" means a registration statement
or registration statements of the Company filed under the Securities Act
covering Registrable Securities.
(c) "Register," "Registered" and "Registration" refer to a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act and pursuant to Rule 415 under the Securities
Act or any successor rule providing for offering securities on a continuous
basis ("Rule 415"), and the declaration or ordering of effectiveness of such
registration statement by the United States Securities and Exchange Commission
(the "Commission").
Capitalized terms used herein and not otherwise defined herein shall
have the meanings set forth in the Share Purchase Agreement.
2. MANDATORY REGISTRATION.
(i) The Company shall, as soon as practicable, prepare and file
with the Commission a Registration Statement or Registration Statements (as
necessary) on Form S-3 covering the resale of all of the Registrable Securities.
In the event that Form S-3 is unavailable and/or inappropriate for such a
registration, the Company shall use such other form as is available and
appropriate for such a registration. Any Registration Statement prepared
pursuant hereto shall register for resale at least that number of shares of
Common Stock equal to the Shares. The Company shall use its best efforts to
cause the Registration Statement to be declared effective not later than 60 days
following the Closing Date (the "Effectiveness Deadline"). If the Registration
Statement is not declared effective by the Effectiveness Deadline, the Company
shall pay to each Purchaser an amount equal to one percent (1%) of the purchase
price paid for the Shares purchased by each Purchaser. Thereafter, for every 30
days that pass without the Registration Statement being declared effective after
the Effectiveness Deadline, the Company shall pay to each Purchaser an
additional amount equal to one percent (1%) of the purchase price paid for the
Shares purchased by each Purchaser.
(ii) The Company shall use its best efforts to keep each
Registration Statement effective pursuant to Rule 415 at all times until such
date as is the earlier of (i) the date on which all of the Registrable
Securities have been sold and (ii) the date on which the Registrable Securities
(in the opinion of counsel to the Purchasers) may be immediately sold without
restriction (including without limitation as to volume by each holder thereof)
without registration under the Securities Act (the "Registration Period").
(iii) If any offering pursuant to a Registration Statement
pursuant to Section 2 hereof involves an underwritten offering (which may only
be with the consent of the Company), the Purchasers shall have the right to
select legal counsel and an investment banker or bankers and manager or managers
to administer the offering, which investment banker or bankers or manager or
managers shall be reasonably satisfactory to the Company.
(iv) Notwithstanding the foregoing, if the Company shall furnish
to the Purchasers 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 120 days after receipt of the request of
the Purchasers; provided, however, that the Company may not utilize this right
more than once in any twelve-month period.
(v) If Registrable Securities are registered for sale under the
Securities Act, the Purchasers shall cease any distribution of such shares under
the Registration Statement not more than twice in any 12-month period, for up to
90 days each, upon the request of the
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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 Registrable Securities 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 Purchasers 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.
3. OBLIGATIONS OF THE COMPANY. In connection with the registration of
the Registrable Securities, the Company shall do each of the following:
(a) Prepare and file with the Commission the Registration
Statements required by Section 2 of this Agreement and such amendments
(including post-effective amendments) and supplements to the Registration
Statements and the prospectuses used in connection with the Registration
Statements, each in such form as to which the Purchasers and their counsel shall
not have objected, as may be necessary to keep the Registration current at all
times during the Registration Period, and, during the Registration Period,
comply with the provisions of the Securities Act with respect to the disposition
of all of the Registrable Securities until such time as all of such Registrable
Securities have been disposed of in accordance with the intended methods of
disposition by the seller or sellers thereof as set forth in the Registration
Statements;
(b) Furnish to the Purchasers, if the Registrable Securities of
the Purchasers are included in the Registration Statement, and their legal
counsel identified to the Company, promptly after the same is prepared and
publicly distributed, filed with the Commission, or received by the Company, a
copy of the Registration Statement, each preliminary prospectus, each final
prospectus, and all amendments and supplements thereto and such other documents,
as the Purchasers may reasonably request in order to facilitate the disposition
of their Registrable Securities;
(c) As soon as practicable, furnish to the Purchasers and their
counsel copies of any correspondence between the Company and the Commission with
respect to any registration statement or amendment or supplement thereto filed
pursuant to this Agreement;
(d) Use all best efforts to (i) register and qualify the
Registrable Securities covered by the Registration Statement under such other
securities or blue sky laws of such jurisdictions as the Purchasers may request,
(ii) prepare and file in those jurisdictions such amendments (including
post-effective amendments) and supplements to such registrations and
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qualifications as may be necessary to maintain the effectiveness thereof at all
times during the Registration Period, (iii) take such other actions as may be
necessary to maintain such registrations and qualifications in effect at all
times during the Registration Period and (iv) take all other actions necessary
or advisable to qualify the Registrable Securities for sale in such
jurisdictions, except that the Company shall not for any such purpose be
required to qualify generally to do business as a foreign corporation in any
jurisdiction wherein it would not but for the requirements of this subsection
(d) be obligated to be so qualified, or to subject itself to taxation in any
such jurisdiction, or to consent to general service of process in any such
jurisdiction;
(e) List such securities on The Nasdaq SmallCap Market and all the
other national securities exchanges on which any securities of the Company are
then listed, and file any filings required by The Nasdaq SmallCap Market and/or
such other exchanges;
(f) Notify each Purchaser and (if requested by the Purchaser)
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 Commission for amendments or supplements
to the Registration Statement or the prospectus or for additional information,
(iii) of the issuance by the Commission 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 Registrable Shares 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 such 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;
(g) If any fact contemplated by clause (v) of paragraph (f),
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 Registrable Securities 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;
(h) If the Company has consented to an underwritten offering and
such offering is underwritten, at the request of a Purchaser, to furnish on the
date that Registrable Securities are delivered to the underwriters for sale
pursuant to such registration: (i) an opinion dated such date of counsel
representing the Company for the purposes of such registration, addressed to the
underwriters and to any Purchaser selling Registrable Securities in connection
with such underwriting, stating that such registration statement has become
effective under the Securities Act and that (A) to the best knowledge of such
counsel, no stop order suspending the effectiveness thereof has been issued and
no proceedings for that purpose have been instituted or are pending or
contemplated under the Securities Act and (B) the registration statement, the
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related prospectus and each amendment or supplement thereof comply as to form in
all material respects with the requirements of the Securities Act (except that
such counsel need not express any opinion as to financial statements or other
financial data contained therein) and (ii) a letter dated such date from the
Company's independent public accountants addressed to the underwriters and to
such Purchasers, stating that they are independent public accountants within the
meaning of the Securities Act and that, in the opinion of such accountants, the
financial statements of the Company included in the registration statement or
the prospectus, or any amendment or supplement thereof, comply as to form in all
material respects with the applicable accounting requirements of the Securities
Act, and such letter shall additionally cover such other financial matters
(including information as to the period ending no more than five business days
prior to the date of such letter) with respect to such registration as such
underwriters may reasonably request;
(i) Cooperate with the Purchasers to facilitate the timely
preparation and delivery of certificates for the Registrable Securities to be
offered pursuant to the Registration Statement and to enable such certificates
for the Registrable Securities to be in such denominations or amounts, as the
case may be, as the Purchasers may reasonably request, and registered in such
names as the Purchasers may request; and, within three business days after a
Registration Statement which includes Registrable Securities is ordered
effective by the Commission, the Company shall deliver, and shall cause legal
counsel selected by the Company to deliver, to the transfer agent for the
Registrable Securities (with copies to the Purchasers) an appropriate
instruction and opinion of such counsel;
(j) Enter into customary agreements (including, in the case of an
underwritten offering, underwriting agreements in customary form, and including
provisions with respect to indemnification and contribution in customary form
and consistent with the provisions relating to indemnification and contribution
contained herein) and take all other customary and appropriate actions in order
to expedite or facilitate the disposition of such Registrable Securities and in
connection therewith:
(i) make such representations and warranties to the
Purchasers and the underwriters, if any, in form, substance and scope as are
customarily made by issuers to underwriters in similar underwritten offerings;
(ii) to the extent requested and customary for the relevant
transaction, enter into a securities sales agreement with the Purchasers and
such representative of the Purchasers as the Purchasers covered by any
Registration Statement shall select relating to the Registration and providing
for, among other things, the appointment of such representative as agent for the
selling Purchasers for the purpose of soliciting purchases of Registrable
Securities, which agreement shall be customary in form, substance and scope and
shall contain customary representations, warranties and covenants; and
(iii) deliver such customary documents and certificates as
may be reasonably requested by the Purchasers whose Registrable Securities are
being sold or by the managing underwriters, if any.
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The above shall be done (i) at the effectiveness of such Registration Statement
(and each post-effective amendment thereto) in connection with any registration,
and (ii) at each closing under any underwriting or similar agreement as and to
the extent required thereunder;
(k) The Company shall, at the request of the Purchasers, make
generally available to its security holders as soon as practicable, but not
later than ninety (90) days after the close of the period covered thereby, an
earnings statement (in form complying with the provisions of Rule 158 under the
Securities Act) covering a 12 month period beginning not later than the first
day of the Company's fiscal quarter next following the effective date of a
Registration Statement;
(l) The Company shall make available for inspection by (i) any
Purchaser, (ii) any underwriter participating in any disposition pursuant to a
Registration Statement, (iii) one firm of attorneys and one firm of accountants
or other agents retained by the Purchasers, and (iv) one firm of attorneys
retained by all such underwriters (collectively, the "Inspectors") all pertinent
financial and other records, and pertinent corporate documents and properties of
the Company (collective, the "Records"), as shall be reasonably deemed necessary
by each Inspector to enable each Inspector to exercise its due diligence
responsibility, and cause the Company's officers, directors and employees to
supply all information which any Inspector may reasonably request for purposes
of such due diligence; provided, however, that each Inspector shall hold in
confidence and shall not make any disclosure (except to the Inspectors) of any
Record or other information which the Company determines in good faith to be
confidential, and of which determination the Inspectors are so notified, unless
(a) the disclosure of such Records is necessary to avoid or correct a material
misstatement or omission in any Registration Statement, (b) the release of such
Records is ordered pursuant to a subpoena or other order from a court or
government body of competent jurisdiction, or (c) the information in such
Records has been made generally available to the public other than by disclosure
in violation of this or any other agreement. The Company shall not be required
to disclose any confidential information in such Records to any Inspector until
and unless such Inspector shall have entered into confidentiality agreements (in
form and substance satisfactory to the Company) with the Company with respect
thereto, substantially in the form of this Section 3(l). Each Purchaser agrees
that upon learning that the release of such Records is ordered pursuant to a
subpoena or other order from a court or government body of competent
jurisdiction, it shall give prompt notice to the Company and allow the Company,
at its expense, to undertake appropriate action to prevent disclosure of, or to
obtain a protective order for, the Records deemed confidential. Nothing herein
shall be deemed to limit the Purchasers' ability to sell Registrable Securities
in a manner which is otherwise consistent with applicable laws and regulations;
and
(m) The Company shall hold in confidence and not make any
disclosure of information concerning a Purchaser provided to the Company unless
(i) disclosure of such information is necessary to comply with federal or state
securities laws, (ii) the disclosure of such information is necessary to avoid
or correct a misstatement or omission in any Registration Statement, (iii) the
release of such information is ordered pursuant to a subpoena or other order
from a court or governmental body of competent jurisdiction, or (iv) such
information has been made generally available to the public other than by
disclosure in violation of this or any other
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agreement. The Company agrees that it shall, upon learning that disclosure of
such information concerning a Purchaser is sought in or by a court or
governmental body of competent jurisdiction or though other means, give prompt
notice to such Purchaser prior to making such disclosure, and allow the
Purchaser, at its expense, to undertake appropriate action to prevent disclosure
of, or to obtain a protective order for, such information.
4. OBLIGATIONS OF THE PURCHASERS TO PROVIDE INFORMATION. In connection
with the registration of the Registrable Securities, each Purchaser shall
furnish to the Company such information regarding itself, the Registrable
Securities held by it and the intended method of disposition of the Registrable
Securities held by it as shall be reasonably required to effect the registration
of such Registrable Securities, and each Purchaser shall execute such documents
in connection with such registration as the Company may reasonably request. At
least ten days prior to the first anticipated filing date of the Registration
Statement, the Company shall notify the Purchasers of the information the
Company included in the Registration Statement.
5. EXPENSES OF REGISTRATION. All expenses, other than underwriting
discounts and commissions and other fees and expenses of investment bankers and
other than brokerage commissions, incurred in connection with registrations,
filings or qualifications pursuant to Section 3, but including, without
limitation, all registration, listing, and qualification fees, printing and
accounting fees, and the fees and disbursements of counsel for the Company, and
the fees of one counsel to the Purchasers with respect to each Registration
Statement filed pursuant hereto, shall be borne by the Company provided, that
the expenses of such Purchasers' counsel shall not exceed $[15,000].
6. INDEMNIFICATION. In the event any Registrable Securities are
included in a Registration Statement under this Agreement:
(a) The Company will indemnify and hold harmless each Purchaser,
each of its officers, directors, partners and shareholders, and each person, if
any, who controls each Purchaser within the meaning of the Securities Act or the
Exchange Act (each, an "Indemnified Person"), against any losses, claims,
damages, liabilities or expenses (joint or several) incurred (collectively,
"Claims") to which any of them may become subject under the Securities Act, the
Exchange Act or otherwise, insofar as such Claims (or actions or proceedings,
whether commenced or threatened, in respect thereof) arise out of or are based
upon: (i) any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement or any post-effective amendment thereof
or the omission or alleged omission to state therein a material fact required to
be stated therein or necessary in order to make the statements therein, in light
of the circumstances in which they were made, not misleading, (ii) any untrue
statement or alleged untrue statement of a material fact contained in any
preliminary prospectus if used prior to the effective date of such Registration
Statement, or contained in the final prospectus (as amended or supplemented, if
the Company files any amendment thereof or supplement thereto with the
Commission) or the omission to state therein any material fact necessary in
order to make the statements made therein, in light of the circumstances under
which they were made, not misleading, or (iii) any violation or alleged
violation by the Company of the Securities Act, the Exchange Act, any state or
foreign securities law or any rule or regulation under the Securities
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Act, the Exchange Act or any state or foreign securities law (the matters in
foregoing clauses (i) through (iii) being, collectively, "Violations"). The
Company shall, subject to the provisions of Section 6(b) below, reimburse each
Purchaser, promptly as such expenses are incurred and are due and payable, for
any legal and other costs, expenses and disbursements in giving testimony or
furnishing documents in response to a subpoena or otherwise, including without
limitation, the costs, expenses and disbursements, as and when incurred, of
investigating, preparing or defending any such action, suit, proceeding or
investigation (whether or not in connection with litigation in which the
Purchaser is a party), incurred by it in connection with the investigation or
defense of any such Claim. Notwithstanding anything to the contrary contained
herein, the indemnification agreement contained in this Section 6(a) shall not
(i) apply to any Claim arising out of or based upon a modification which occurs
in reliance upon and in conformity with information furnished in writing to the
Company by or on behalf of any Indemnified Person expressly for use in
connection with the preparation of the Registration Statement or any such
amendment thereof or supplement thereto; (ii) with respect to any preliminary
prospectus, inure to the benefit of any such person from whom the person
asserting any such Claim purchased the Registrable Securities that are the
subject thereof (or to the benefit of any person controlling such person) if the
untrue statement or omission of material fact contained in the preliminary
prospectus was corrected in the final prospectus, as then amended or
supplemented, if such final prospectus was timely made available by the Company
pursuant to Section 3(b) hereof; (iii) be available to the extent that such
Claim is based upon a failure of the Purchaser to deliver or to cause to be
delivered the prospectus made available by the Company, if such prospectus was
timely made available by the Company pursuant to Section 3(b) hereof; or (iv)
apply to amounts paid in settlement of any Claim if such settlement is effected
without the prior written consent of the Company, which consent shall not be
unreasonably withheld. Such indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf of the Indemnified Person
and shall survive the transfer of the Registrable Securities by the Purchaser
pursuant to Section 9. Each Purchaser will indemnify the Company and its
officers and directors against any Claims arising out of or based upon a
Violation which occurs in reliance upon and in conformity with information
furnished in writing to the Company, by or on behalf of the Purchaser, expressly
for use in connection with the preparation of the Registration Statement
(including any modifications, amendments or supplements thereto), subject to
such limitations and conditions as are applicable to the Indemnification
provided by the Company in this Section 6; provided, however, that in no event
shall any indemnity by any Purchaser under this Section 6 exceed the amount of
the net proceeds received by such Purchaser in connection with the offering
effected through such Registration Statement.
(b) Promptly after receipt by an Indemnified Person under this
Section 6 of notice of the commencement of any action (including any
governmental action), such Indemnified Person shall, if a Claim in respect
thereof is to be made against any indemnifying party under this Section 6,
deliver to the indemnifying party a written notice of the commencement thereof,
and the indemnifying party shall have the right to participate in, and to the
extent that the indemnifying party so desires, jointly with any other
indemnifying party similarly notified, to assume control of the defense thereof
with counsel mutually satisfactory to the indemnifying party and the Indemnified
Person, provided, however, that an Indemnified
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Person shall have the right to retain its own counsel with the reasonable fees
and expenses to be paid by the indemnifying party, if, in the reasonable opinion
of counsel retained by the indemnifying party, the representation by such
counsel of the Indemnified Person and the indemnifying party would be
inappropriate due to actual or potential differing interests between such
Indemnified Person and any other party represented by such counsel in such
proceeding. In such event, the Company shall pay for only one separate legal
counsel for the Purchasers, and such legal counsel shall be selected by the
Purchasers. The failure to deliver written notice to an indemnifying party
within a reasonable time after the commencement of any such action shall not
relieve such indemnifying party of any liability to the Indemnified Person under
this Section 6, except to the extent that the indemnifying party is materially
prejudiced in its ability to such action. The indemnification required by this
Section 6 shall be made by periodic payments of the amount thereof during the
course of the investigation or defense, as such expense, loss, damage or
liability is incurred and is due and payable.
(c) No indemnifying party, in the defense of any such claim or
litigation, shall, except with the consent of each Indemnified Party, consent to
entry of any judgment or enter into any settlement which does not include as an
unconditional term thereof the giving by the claimant or plaintiff to such
Indemnified Person of an unconditional and irrevocable release from all
liability in respect of such claim or litigation.
(d) Notwithstanding the foregoing, to the extent that any
provisions relating to indemnification or contribution contained in the
underwriting agreements entered into among the Company, the underwriters and the
Purchasers in connection with the underwritten public offering are in conflict
with the foregoing provisions, the provisions in such underwriting agreements
shall be controlling as to the Registrable Securities included in the public
offering; provided, however, that if, as a result of this Section 6(d), a
Purchaser, its officers, directors, partners, shareholders or any person
controlling the Purchaser is or are held liable with respect to any Claim for
which they would be entitled to indemnification hereunder but for this Section
6(d) in an amount which exceeds the aggregate proceeds received by the Purchaser
from the sale of Registrable Securities included in a registration pursuant to
such underwriting agreement (the "Excess Liability"), the Company shall
reimburse the Purchasers for such Excess Liability.
7. CONTRIBUTION. To the extent any indemnification by an indemnifying
party is prohibited or limited under applicable law, the indemnifying party
agrees to contribute to the amount paid or payable by such indemnified party as
a result of such loss, claim, damage, liability or expense in such proportion as
is appropriate to reflect the relative fault of the indemnifying party on the
one hand and the Indemnified Person on the other hand in connection with the
statements or omissions which resulted in such Claim, as well as any other
relevant equitable considerations. The relative fault of the indemnifying party
and the Indemnified Person shall be determined by reference to, among other
things, whether the untrue statement of a material fact or the omission to state
a material fact on which such Claim is based relates to information supplied by
the indemnifying party or by the Indemnified Person, and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. Notwithstanding the forgoing, (a) no contribution
shall be made under circumstances where the payor would not have been liable for
indemnification under the fault
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standards set forth in Section 6, (b) no seller of Registrable Securities guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any seller of Registrable
Securities who was not guilty of such fraudulent misrepresentation and (c)
contribution by any seller of Registrable Securities shall be limited in amount
to the net proceeds received by such seller from the sale of such Registrable
Securities. The Company and the Purchasers agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro rata
allocation (even if the Purchasers and any other party were treated as one
entity for such purpose) or by any other method of allocation that does not take
account of the equitable considerations referred to in this Section.
8. REPORTS UNDER EXCHANGE ACT. With a view to making available to the
Purchasers the benefits of Rule 144 promulgated under the Securities Act or any
other similar rule or regulation of the Commission that may at any time permit
the Purchasers to sell securities of the Company to the public without
registration ("Rule 144"), the Company agrees to:
(i) make and keep public information available, as those terms are
understood and defined in Rule 144;
(ii) file with the Commission in a timely manner all reports and
other documents required of the Company under the Securities Act and the
Exchange Act; and
(iii) furnish to each Purchaser so long as such Purchaser owns
Shares promptly upon request, (i) a written statement by the Company that it has
complied with the reporting requirements of the Securities Act and the Exchange
Act, (ii) a copy of the most recent annual or periodic report of the Company and
such other reports and documents so filed by the Company and (iii) such other
information as may be reasonably requested to permit the Purchaser to sell such
securities pursuant to Rule 144 without registration.
9. ASSIGNMENT OF THE REGISTRATION RIGHTS. The rights to have the
Company register Registrable Securities pursuant to this Agreement shall be
automatically assigned by a Purchaser to any transferee of the Shares held by
such Purchaser if: (a) such Purchaser agrees in writing with the transferee or
assignee to assign such rights, and a copy of such agreement is furnished to the
Company within a reasonable time after such assignment; (b) the Company is,
within a reasonable time after such transfer or assignment, furnished with
written notice of the name and address of such transferee or assignee; (c) at or
before the time the Company receives the written notice contemplated by clause
(b) of this sentence, the transferee or assignee agrees in writing with the
Company to be bound by all of the provisions contained herein; and (d) the
transfer of the relevant Shares complies with the restrictions set forth in
Section 4 of the Share Purchase Agreement.
10. AMENDMENT OF REGISTRATION RIGHTS. Any provision of this Agreement
may be amended and the observance thereof may be waived (either generally or in
a particular instance and either retroactively or prospectively), only with the
written consent of the Company and the Purchasers holding two thirds (2/3) of
the outstanding Registrable Securities. Any amendment or
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waiver effected in accordance with this Section 10 shall be binding upon the
Purchasers and the Company.
11. MISCELLANEOUS.
(a) A person or entity is deemed to be a holder of Registrable
Securities whenever such person or entity owns of record such Registrable
Securities. If the Company receives conflicting instructions, notices or
elections from two or more persons or entities with respect to the same
Registrable Securities, the Company shall act upon the basis of the
instructions, notice or election received from the registered owner of such
Registrable Securities.
(b) Any notice required or permitted hereunder shall be given in
writing (unless otherwise specified herein) and shall be effective upon personal
delivery, via facsimile (upon receipt of confirmation of error-free
transmission) or two business days following deposit of such notice with an
internationally recognized courier service, with postage prepaid and addressed
to each of the other parties thereunto entitled at the following addresses, or
at such other addresses as a party may designate by ten (10) days advance
written notice to each of the other parties hereto.
COMPANY: Acclaim Entertainment, Inc.
Xxx Xxxxxxx Xxxxx
Xxxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxxxxx Xxxxxxx
Chief Financial Officer
Tel.: (000) 000-0000
Fax: (000) 000-0000
WITH COPIES TO:
Rosenman & Colin LLP
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxx, Esq.
Tel.: (000) 000-0000
Fax: (000) 000-0000
PURCHASERS: to the addresses set forth on the signatures pages hereto.
(c) Failure of any party to exercise any right or remedy under
this Agreement or otherwise, or delay by a party in exercising such right or
remedy, shall not operate as a waiver thereof.
(d) This Agreement shall be governed by and interpreted in
accordance with the laws of the State of New York. Each of the parties agrees to
the jurisdiction of the federal courts whose districts encompass any part of the
City of New York or the state courts of the State of New York sitting in the
City of New York in connection with any dispute arising under this
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Agreement and hereby waives, to the maximum extent permitted by law, any
objection, including any objection based on forum non conveniens, to the
bringing of any such proceeding in such jurisdictions. This Agreement may be
signed in two or more counterparts, each of which shall be deemed an original.
The headings of this Agreement are for convenience of reference and shall not
form part of, or affect the interpretation of, this Agreement. If any provision
of this Agreement shall be invalid or unenforceable in any jurisdiction, such
validity or unenforceability shall not affect the validity or enforceability of
the remainder of this Agreement or the validity or enforceability of this
Agreement in any other jurisdiction. Subject to the provisions of Section 10
hereof, this Agreement may be amended only by an instrument in writing signed by
the party to be charged with enforcement.
(e) This Agreement, together with the Share Purchase Agreement,
constitutes the entire agreement among the parties hereto with respect to the
subject matter hereof. This Agreement supersedes all prior agreements and
understandings among the parties hereto with respect to the subject matter
hereof.
(f) Subject to the requirements of Section 9 hereof, this
Agreement shall inure for the benefit of and be binding upon the successors and
assigns of each of the parties hereto.
(g) All pronouns and any variations thereof refer to the
masculine, feminine or neuter, singular or plural, as the context may require.
(h) The Company acknowledges that any failure by the Company to
perform its obligations under Section 2, or any delay in such performance could
result in direct and indirect damages to the Purchasers, and the Company agrees
that, in addition to any other liability the Company may have by reason of any
such failure or delay, the Company shall be liable for all direct and
consequential damages caused by any such failure or delay. Nothing herein shall
limit the Purchasers' right to pursue any claim seeking such direct or
consequential damages.
[Signature page follows]
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IN WITNESS WHEREOF, this Agreement has been duly executed by the undersigned.
Dated: July ___, 2001
"COMPANY"
ACCLAIM ENTERTAINMENT, INC.
By:
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Name:
Title:
"PURCHASERS"
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By:
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Name:
Title:
Address:
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By:
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Name:
Title:
Address:
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By:
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Name:
Title:
Address:
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By:
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Name:
Title:
Address
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SCHEDULE 1
Purchasers
