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EXHIBIT 10.3
REGISTRATION RIGHTS AGREEMENTS
This Registration Rights Agreement ("Agreement") is made and entered
into as of July 1, 1996 by and between Midway Games Inc., a Delaware corporation
(the "Company"), and WMS Industries Inc., a Delaware corporation ("WMS").
WHEREAS, WMS, directly and indirectly, owns 100% of the issued and
outstanding shares of common stock of the Company, par value $.01 per share (the
"Common Stock");
WHEREAS, pursuant to an initial public offering (the "Public
Offering"), approximately 13.2% (14.9% if the underwriters' over-allotment
option is exercised in full) of the Common Stock will be sold to the public;
WHEREAS, after the Public Offering, WMS and the Company will be
separate publicly held companies and WMS will continue to own approximately
86.8% (85.1% if the underwriters' over-allotment option is exercised in full) of
the Common Stock; and
WHEREAS, WMS and the Company desire to enter into this Agreement to set
forth the terms pursuant to which the Company will file registration statements
under the Securities Act of 1933, as amended (the "Securities Act"), in order to
permit WMS to offer and sell shares of Common Stock that WMS or its affiliates
may beneficially own.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. SECURITIES SUBJECT TO THIS AGREEMENT
For purposes of this Agreement, "Registrable Securities" shall
mean the shares of Common Stock held by WMS, or any of WMS' affiliates until
such time as (i) a registration statement covering such Registrable Securities
has been declared effective and such Registrable Securities have been disposed
of pursuant to such effective registration statement or (ii) such Registrable
Securities are transferred pursuant to Rule 144 (or any similar provision then
in force) under the Securities Act, whichever is earlier.
2. DEMAND REGISTRATION
2.1 REQUEST FOR REGISTRATION. At any time after 180 days from
the date of the Public Offering, WMS may make a written request for registration
under the Securities Act of not less than five percent (5%) of the total number
of shares of Common Stock then outstanding (a "Demand Registration"); provided
that the Company need effect only two (2) Demand Registrations pursuant to this
Section 2.1. Such request for a Demand Registration will
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specify the aggregate number of shares of Registrable Securities proposed to be
sold and will also specify the intended method of disposition thereof.
2.2 EFFECTIVE REGISTRATION AND EXPENSES. A registration will
not count as a Demand Registration until it has become effective. In any
registration initiated as a Demand Registration, the Company will pay or cause
to be paid all Registration Expenses (as defined in Section 6 below) in
connection therewith, whether or not the registration statement becomes
effective.
2.3 UNDERWRITING. If WMS so elects, the offering of such
Registrable Securities pursuant to such Demand Registration shall be in the form
of an underwritten offering through the underwriter(s) WMS designates; provided,
however, that such underwriter must be reasonably satisfactory to the Company.
If the underwriter does not limit the number of Registrable Securities to be
underwritten in a Demand Registration, the Company may include securities for
its own account or the account of others in such registration if the
underwriters so agree and if the number of Registrable Securities which would
otherwise have been included in such registration and underwriting will not
thereby be limited.
2.4 DELAY OF DEMAND REGISTRATION. Notwithstanding any other
provision of this Agreement, if the underwriters for the Company determine that
an offering by the Company then being conducted or about to be conducted would
be adversely affected by a Demand Registration, the Company may delay such a
Demand Registration for a period of up to 60 days.
3. PIGGY-BACK REGISTRATION
If the Company proposes to file a registration statement
(other than a Demand Registration) under the Securities Act with respect to an
offering by the Company for its own account or for the account of others (other
than a registration statement on Forms S-4 or S-8 or filed in connection with an
exchange offer or an offering of securities solely to the Company's existing
stockholders) of any class of security of the Company, then the Company shall in
each case give written notice of such proposed filing to WMS at least 10 days
before the anticipated filing date, and such notice shall offer WMS the
opportunity to register such Registrable Securities as each such holder may
request (a "Piggy-back Registration"). On request of WMS received by the Company
within 10 days after the receipt by WMS of the Company's notice of intention to
file the proposed registration statement, the Company shall include in such
registration and qualification for sale under the blue sky or securities laws of
the various states, and in any underwriting in connection therewith, the number
of shares of Registrable Securities held and requested to be registered by WMS,
which may be all or a part of the Registrable Securities.
The Company shall use its best efforts to cause the managing
underwriter or underwriters of a proposed underwritten offering to permit WMS to
include such Registrable Securities in such offering on the same terms and
conditions as any similar securities of the Company included therein.
Notwithstanding the foregoing, if the managing underwriter or
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underwriters of such offering delivers an opinion to WMS that the number of
shares which they or the Company intend to include in such offering is so large
as to materially and adversely affect the success of such offering (including
the price at which such securities can be sold), then the amount of securities
to be offered for the account of WMS shall be reduced to the extent necessary to
reduce the number of shares to be included in such offering to the number
recommended by such managing underwriter or underwriters.
4. HOLDBACK AGREEMENTS
4.1 RESTRICTIONS ON PUBLIC SALE BY WMS. To the extent not
inconsistent with applicable law, WMS agrees not to effect any public sale or
distribution of Common Stock during the 14 days prior to, and during the 90-day
period beginning on, the effective date of a registration statement that
includes Registrable Securities (except as part of such registration), but only
if and to the extent requested in writing (with reasonable prior notice) by the
managing underwriter or underwriters in the case of an underwritten public
offering by the Company of securities similar to the Registrable Securities or
by the Company in the case of such an offering that is not underwritten.
4.2 RESTRICTIONS ON PUBLIC SALE BY THE COMPANY. The Company
agrees not to effect any public sale or distribution of Common Stock during the
14 days prior to, and during the 90-day period beginning on, the effective date
of any registration statement which includes Registrable Securities (except as
part of such registration).
5. REGISTRATION PROCEDURES
Whenever any Registrable Securities are to be registered
pursuant to Section 2 or Section 3 of 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
promptly, and in connection with any Demand Registration or with any Piggy-back
Registration, the Company will promptly;
5.1 prepare and file with the Securities and Exchange
Commission (the "Commission") a registration statement which includes the
Registrable Securities and use its best efforts to cause such registration
statement to become effective; provided that before filing a registration
statement or prospectus or any amendments or supplements thereto, including
documents incorporated by reference after the initial filing of the registration
statement, the Company will furnish to WMS and to the underwriters, if any,
draft copies of all such documents proposed to be filed at least five (5)
business days prior thereto, which documents will be subject to the reasonable
review of WMS and such underwriters, and the Company will not, unless required
by law, file any registration statement or amendment thereto or any prospectus
or any supplement thereto (including such documents incorporated by reference)
to which WMS shall reasonably object. The Company will notify WMS of any stop
order issued or threatened by the Commission in connection therewith and take
all reasonable actions required to prevent the entry of such stop order or to
remove it if entered;
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5.2 prepare and file with the Commission such amendments and
post-effective amendments to the registration statement as may be necessary to
keep the registration statement effective for a period of not less than 180 days
(or such shorter period which will terminate when all Registrable Securities
covered by such registration statement have been sold or withdrawn, but not
prior to the expiration of the applicable period referred to in Section 4(3) of
the Securities Act and Rule 174 thereunder; if applicable); cause the prospectus
to be supplemented by any required prospectus supplement, and as so supplemented
to be filed pursuant to Rule 424 under the Securities Act; and comply with the
provisions of the Securities Act applicable to it with respect to the
disposition of all securities covered by such registration statement during the
applicable period in accordance with the intended methods of disposition thereof
set forth in such registration statement or supplement to the prospectus;
5.3 furnish to WMS and the underwriter or underwriters, if
any, without charge, such number of conformed copies of the registration
statement, or any amendment thereto, and any post-effective amendment thereto
and such number of copies of the prospectus (including each preliminary
prospectus) and any amendments or supplements thereto, and any documents
incorporated by reference therein, as WMS or such underwriter may request in
order to facilitate the disposition of the Registrable Securities being sold by
such holder (it being understood that the Company consents to the use of the
prospectus and any amendment or supplement thereto by WMS and the underwriter or
underwriters, if any, in connection with the offering and sale of the
Registrable Securities covered by the prospectus or any amendment or supplement
thereto);
5.4 use its best efforts to list the Registrable Securities
covered by such registration statement with [the Nasdaq National Market] and any
other securities exchange on which the Common Stock of the Company is then
listed;
5.5 notify WMS at any time when a prospectus relating to the
Registrable Securities is required to be delivered under the Securities Act,
when the Company becomes aware of the happening of any event as a result of
which the prospectus included in such registration statement (as then in effect)
contains any untrue statement of a material fact or omits to state a material
fact necessary to make the statements therein in light of the circumstances
under which they were made, not misleading and, as promptly as practicable
thereafter, prepare and file with the Commission and furnish a supplement or
amendment to such prospectus so that, as thereafter delivered to the purchasers
of such Registrable Securities, such prospectus will not contain any untrue
statement of a material fact or omit to state a material fact necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading;
5.6 make generally available to its security holders an
earnings statement satisfying the provisions of Section 11(a) of the Securities
Act no later than 60 days after the end of the 12-month period beginning with
the first day of the Company's first fiscal quarter commencing after the
effective date of the registration statement, which earnings statement shall
cover said 12-month period, and which requirement will be deemed to be satisfied
if the
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Company timely files complete and accurate information on forms 10-Q, 10-K
and 8-K under the Securities Exchange Act of 1934, as amended (the "Exchange
Act") and otherwise complies with Rule 158 under the Securities Act as soon as
possible;
5.7 make reasonable efforts to obtain the withdrawal of any
order suspending the effectiveness of the registration statement at the earliest
possible moment;
5.8 if requested by the managing underwriter or underwriters
or WMS, promptly incorporate in a prospectus supplement or post-effective
amendment such information as the managing underwriter or underwriters requests,
or WMS reasonably requests, to be included therein, including, without
limitation, with respect to the principal amount of Registrable Securities being
sold by WMS to such underwriter or underwriters, the purchase price being paid
therefor by such underwriter or underwriters and with respect to any other terms
of the underwritten offering of the Registrable Securities to be sold in such
offering, and promptly make all required filings of such prospectus supplement
or post-effective amendment;
5.9 as promptly as practicable after filing with the
Commission of any document which is incorporated by reference into a
registration statement, deliver a copy of such document to WMS;
5.10 on or prior to the date on which the registration
statement is declared effective, use its best efforts to register or qualify,
and cooperate with WMS, the underwriter or underwriters, if any, and their
counsel, in connection with the registration or qualification of the Registrable
Securities covered by the registration statement for offer and sale under the
securities or blue sky laws of each state and other jurisdiction of the United
States as WMS or any such underwriter requests in writing, to use its best
efforts to keep each such registration or qualification effective, including
through new filings, or amendments or renewals, during the period such
registration statement is required to be kept effective and to do any and all
other acts or things necessary or advisable to enable the disposition in all
such jurisdictions of the Registrable Securities covered by the applicable
registration statement; provided that the Company will not be required to
qualify generally to do business in any jurisdiction where it is not then so
qualified or to take any action which would subject it to general service of
process in any such jurisdiction where it is not then so subject;
5.11 cooperate with WMS and the managing underwriter or
underwriters, if any, to facilitate the timely preparation and delivery of
certificates (not bearing any restrictive legends) representing securities sold
under the registration statement, and enable such securities to be in such
denominations and registered in such names as the managing underwriter or
underwriters, if any, or WMS may request;
5.12 use its best efforts to cause the Registrable Securities
covered by the registration statement to be registered with or approved by such
other governmental agencies or authorities within the United States including
the blue sky or securities administrators of such
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jurisdictions as may be requested by WMS, as may be necessary to enable WMS or
the underwriter or underwriters, if any, to consummate the disposition of such
securities;
5.13 if applicable, enter into such customary agreements
(including an underwriting agreement in customary form) and take such other
actions as WMS or the underwriters, if any, request in order to expedite or
facilitate the disposition of such registrable Securities;
5.14 make available for inspection by WMS, any underwriter
participating in any disposition pursuant to such registration statement, and
any attorney, accountant or other agent retained by WMS or any such underwriter
(collectively, the "Inspectors"), all financial and other records, pertinent
corporate documents and properties of the Company (collectively, the "Records"),
as shall be reasonably necessary to enable them to exercise their due diligence
responsibility, and cause the Company's officers, directors and employees to
supply all information requested by any such Inspector in connection with such
registration statement; provided that the Company shall not be required to
provide any information under this Section 5.14 if to do so would cause the
Company to forfeit an attorney-client privilege that was applicable to such
information; and provided, further, that Records which the Company determines,
in good faith, to be confidential and which it notifies the Inspectors are
confidential shall not be disclosed to the Inspectors unless (i) the disclosure
of such Records is necessary to avoid or correct a misstatement or omission in
the registration statement or (ii) the release of such Records is ordered
pursuant to a subpoena or other order from a court of competent jurisdiction;
provided that prior to furnishing such information, the Company shall be
entitled to require WMS to enter into a confidentiality agreement in customary
form and subject to customary exceptions and provided, further, that any
decision not to disclose information pursuant to clause (i) shall be made after
consultation with counsel for the Company and counsel for WMS; and WMS agrees
that it will, upon learning that disclosure of such Records is sought in a court
of competent jurisdiction give notice to the Company and allow the Company at
its expense, to undertake appropriate action and to prevent disclosure of the
Records deemed confidential; and
5.15 use reasonable efforts to obtain a cold comfort letter
from the Company's independent certified public accountants in customary form
and covering such matters of the type customarily covered by cold comfort
letters as WMS or the underwriters, if any, shall reasonably request.
Upon receipt of any notice from the Company of the happening of any
event of the kind described in Section 5.5 hereof, WMS will forthwith
discontinue disposition of the Registrable Securities until receipt of the
copies of the supplemented or amended prospectus contemplated by Section 5.5
hereof or until it is advised in writing (the "Advice") by the Company that the
use of the prospectus may be resumed, and has received copies of any additional
or supplemental filings which are incorporated by reference in the prospectus
and, if so directed by the Company, WMS will, or will request the managing
underwriter or underwriters, if any, to deliver to the Company (at the Company's
expense) all copies, other than permanent file copies
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then in such holder's possession, of the prospectus covering such Registrable
Securities current at the time of receipt of such notice. In the event the
Company shall give any such notice, the time periods mentioned in Section 5.2
hereof shall be extended by the number of days during the period from and
including the date of the giving of such notice to and including the date when
WMS shall have received the copies of the supplemented or amended prospectus
contemplated by Section 5.5 hereof or the Advice.
6. REGISTRATION EXPENSES
All expenses incident to the Company's performance of or
compliance with this Agreement, including, without limitation, all Commission
and securities exchange or NASD registration and filing fees, fees and expenses
of compliance with securities or blue sky laws (including reasonable fees and
disbursements of counsel in connection with blue sky qualifications of the
Registrable Securities), rating agency fees, printing expenses, messenger and
delivery expenses, internal expenses (including without limitation, all salaries
and expenses of the Company's officers and employees performing legal or
accounting duties), the fees incurred in connection with the listing of the
securities to be registered, if any, on each securities exchange on which
similar securities issued by the Company are then listed and reasonable fees and
disbursement of counsel for the Company and its independent certified public
accountants (including the expenses of any special audit or "cold comfort"
letters required by or incident to such performance), securities act liability
insurance (if the Company elects to obtain such insurance), the reasonable fees
and expenses of any special experts retained by the Company in connection with
each registration hereunder (but not including any underwriting fees, discounts
or commissions attributable to the sale of Registrable Securities which shall be
paid by WMS) and any reasonable out-of-pocket expenses of WMS excluding any
travel costs and counsel fees except as set forth above (all such expenses being
herein called "Registration Expenses") will be borne by the Company.
7. INDEMNIFICATION; CONTRIBUTION
7.1 INDEMNIFICATION BY THE COMPANY. The Company agrees to
indemnify and hold harmless WMS, its officers, directors and each person who
controls such holder (within the meaning of the Securities Act), and any agent
or investment advisor thereof against all losses, claims, damages, liabilities
and expenses (including reasonable costs of investigation) arising out of or
based upon any untrue or alleged untrue statement of material fact contained in
any registration statement, any amendment or supplement thereto, any prospectus
or preliminary prospectus or any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, except insofar as the same arise out of or are based
upon any such untrue statement or omission based upon information with respect
to WMS furnished in writing to the Company by or on behalf of WMS expressly for
use therein; provided that, in the event that the prospectus shall have been
amended or supplemented and copies thereof, as so amended or supplemented shall
have been furnished to WMS prior to the confirmation of any sale of Registrable
Securities, such indemnity with respect to the prospectus shall not inure to the
benefit of WMS if the person asserting such
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loss, claim, damage or liability did not, at or prior to the confirmation of the
sale of the Registrable Securities to such person, receive a copy of the
prospectus as so amended or supplemented and the untrue statement or omission of
a material fact contained in the prospectus was corrected in the prospectus as
so amended or supplemented. In connection with an underwritten offering, the
Company will indemnify the underwriters thereof, their officers and directors
and each person who controls such underwriters (within the meaning of the
Securities Act) to the same extent as provided above with respect to the
indemnification of WMS except with respect to information provided by the
underwriter specifically for inclusion therein.
7.2 INDEMNIFICATION BY WMS. In connection with any
registration statement in which WMS participates, WMS will furnish to the
Company in writing such information with respect to WMS as the Company
reasonably requests for use in connection with any such registration statement
or prospectus and agrees to indemnify, to the extent permitted by law, the
Company, its directors and officers and each person who controls the Company
(within the meaning of the Securities Act) against any losses, claims, damages,
liabilities and expenses resulting from any untrue statement of a material fact
or any omission of a material fact required to be stated in the registration
statement or prospectus or any amendment thereof or supplement thereto or
necessary to make the statements therein not misleading, to the extent, but only
to the extent, that such untrue statement is contained in or such omission
relates to any information with respect to WMS so furnished in writing by such
holder specifically for inclusion in any prospectus or registration statement.
In no event shall the liability of any selling holder of Registrable Securities
hereunder be greater in amount than the dollar amount of the proceeds received
by such holder upon the sale of the Registrable Securities giving rise to such
indemnification obligation.
7.3 CONDUCT OF INDEMNIFICATION PROCEEDINGS. Any person
entitled to indemnification hereunder agrees to give prompt written notice to
the indemnifying party after the receipt by such person of any written notice of
the commencement of any action, suit, proceeding or investigation or threat
thereof made in writing for which such person will claim indemnification or
contribution pursuant to this Agreement and, unless in the reasonable judgment
of counsel of such indemnified party a conflict of interest may exist between
such indemnified party and the indemnifying party with respect to such claim,
permit the indemnifying party to assume defense of such claim. Whether or
not such defense is assumed by the indemnifying party, the indemnifying party
will not be subject to any liability for any settlement made without its consent
(but such consent will not be unreasonably withheld). No indemnifying party will
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 party of a release from all liability in respect to such
claim or litigation. If the indemnifying party is not entitled to, or elects not
to, assume the defense of a claim, it will not be obliged to pay the fees and
expenses of more than one counsel 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.
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7.4 CONTRIBUTION. If the indemnification provided for in this
Section 7 from the indemnifying party is unavailable to an indemnified party
hereunder in respect of any losses, claims, damages, liabilities or expenses
referred to therein, then the 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 losses, claims, damages, liabilities or
expenses in such proportion as is appropriate to reflect the relative fault of
the indemnifying party and indemnified parties in connection with the actions
which resulted in such losses, claims, damages, liabilities or expenses, as well
as any other relevant equitable considerations. The relative fault of such
indemnifying party and indemnified parties shall be determined by reference to,
among other things, whether any action in question, including any untrue or
alleged untrue statement of a material fact, has been made by, or relates to
information supplied by the indemnifying party or indemnifying parties, and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such action. The amount paid or payable by a party as a
result of the losses, claims, damages, liabilities and expenses referred to
above shall be deemed to include, subject to the limitations set forth in
Section 7.3, any reasonable legal or other fees or expenses reasonably incurred
by such party in connection with any investigation or proceeding.
The parties hereto agree that it would not be just and
equitable if contribution pursuant to this Section 7.4 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 7.4, no underwriter
shall be required to contribute any amount in excess of the amount by which the
total price at which the Registrable Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission, and WMS
shall not be required to contribute any amount in excess of the amount by which
the total price at which the Registrable Securities of WMS were offered to the
public exceeds the amount of any damages which WMS has otherwise been required
to pay by reason of such untrue statement or omission. 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.
If indemnification is available under this Section 7, the
indemnifying parties shall indemnify each indemnified party to the full extent
provided in Sections 7.1 and 7.2 without regard to the relative fault of said
indemnifying party or indemnified party or any other equitable consideration
provided for in this Section 7.4.
8. TRANSFER OR ASSIGNMENT OF REGISTRATION RIGHTS
The rights to cause the Company to register Registrable Securities
granted pursuant to this Agreement may be transferred or assigned by WMS to a
transferee or assignee of the Registrable Securities; provided, however, that
the transferee or assignee of such rights assumes the obligations of such
transferor or assignor, as the case may be, under this Agreement.
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9. MISCELLANEOUS
9.1 REMEDIES. In addition to being entitled to exercise all
rights granted by law, including recovery of damages, WMS will be entitled to
specific performance of its rights under this Agreement. The Company agrees that
monetary damages would not be adequate compensation for any loss incurred by
reason of a breach by it of the provisions of this Agreement and hereby agrees
to waive the defense in any action for specific performance that a remedy at law
would be adequate.
9.2 NOTICES. All notices and other communications provided for
or permitted hereunder shall be in writing and shall be deemed to have been duly
given if delivered personally or sent by telex or telecopies, registered or
certified mail (return receipt requested), postage prepaid or courier to the
parties at the following addresses (or at such other address for any party as
shall be specified by like notice, provided that notices of a change of address
shall be effective only upon receipt thereof). Notices sent by mail shall be
effective two days after mailing; notices sent by telex shall be effective when
answered back, notices sent by telecopier shall be effective when receipt is
acknowledged, and notices sent by courier guaranteeing next day delivery shall
be effective on the next business day after timely delivery to the courier:
(i) if to WMS, at the following address:
WMS Industries Inc.
0000 Xxxxx Xxxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: President
Telephone: (000) 000-0000
Telecopy No. (000) 000-0000
(ii) if to the Company, at the following address:
Midway Games Inc.
0000 Xxxxx Xxxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: President
Telephone: (000) 000-0000
Telecopy No. (000) 000-0000
9.3 SUCCESSORS AND ASSIGNS. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the
parties.
9.4 COUNTERPARTS. This Agreement may be executed in any number
of counterparts and by the parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
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9.5 HEADINGS. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
9.6 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware applicable to
contracts made and to be performed wholly within that State.
9.7 SEVERABILITY. In the event that any one or more of the
provisions contained herein, or the application in any respect for any reason,
the validity, legality and enforceability of any such provision in every other
respect and of the remaining provisions contained herein shall not be in any way
impaired thereby.
9.8 ENTIRE AGREEMENT. This Agreement is intended by the
parties as a final expression of their agreement and is intended to be the
complete and exclusive statement of the agreement and understanding of the
parties hereto in respect of the subject matter contained herein. There are no
restrictions, promises, warranties or undertakings, other than those set forth
or referred to herein. This Agreement supersedes all prior agreements and
understandings between the parties with respect to such subject matter.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
MIDWAY GAMES INC.
By: /s/ Xxxxxx X. Xxxx, Xx.
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Name: Xxxxxx X. Xxxx, Xx.
Title: Executive Vice President--Finance
WMS INDUSTRIES INC.
By: /s/ Xxxx X. Xxxxxxxx
-----------------------
Name: Xxxx X. Xxxxxxxx
Title: President
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