REGISTRATION RIGHTS AGREEMENT
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REGISTRATION RIGHTS AGREEMENT ("Agreement"), dated as of July 29th
1997, by and between FAMILY GOLF CENTERS, INC., a Delaware corporation (the
"Company"), and ACTIVE SPORTS MARKETING, LLC, a Colorado limited liability
company (the "Seller").
WHEREAS, Golden Spikes, Inc., a wholly-owned subsidiary of the Company
(the "Purchaser"), and the Seller are parties to an Asset Purchase Agreement,
dated as of the date hereof (the "Transaction Agreement"), providing for the
purchase by the Purchaser of certain assets of the Seller;
WHEREAS, in connection with the transactions contemplated by the
Transaction Agreement, the Seller received an aggregate of 16,500 shares of
Common Stock, $.01 par value per share, of the Company (the "Common Stock"),
which are "restricted securities" (as defined in Rule 144 under the Securities
Act of 1933, as amended) and the Company has agreed to provide the Seller with
the registration rights set forth herein with respect to certain of such
shares.
NOW THEREFORE, in consideration of the premises and of the mutual
agreements and covenants hereinafter set forth, the parties hereto agree as
follows:
1. Certain Definitions.
Business Day: Any day other than a Saturday, Sunday or holiday on
which banking institutions in New York, New York are closed.
Commission: The Securities and Exchange Commission, or any other
Federal agency at the time administering the Securities Act or the Exchange
Act.
Common Stock: As defined in the second "WHEREAS" clause above.
Company: As defined in the first paragraph of this Agreement.
Company Indemnified Parties: As defined in Section 6(b).
Escrow Agreement: The Escrow Agreement referred to in the Transaction
Agreement, as the same may be amended in accordance with its terms.
Exchange Act: The Securities and Exchange Act of 1934, as amended, or
any
successor Federal statute, and the rules and regulations of the Commission
promulgated thereunder, as they each may, from time to time, be in effect.
Losses: As defined in Section 6(a).
Prospectus: The prospectus included in the Registration Statement as
of the date it becomes effective under the Securities Act and, in the case of
references to the Prospectus as of a date subsequent to the effective date of
the Registration Statement, as amended or supplemented as of such date,
including all documents incorporated by reference therein, as amended, and each
prospectus supplement relating to the offering and sale of any of the
Registrable Shares.
Purchaser: As defined in the first "WHEREAS" clause above.
Registrable Shares: Shares of Common Stock issued to the Seller
pursuant to the Transaction Agreement, other than the shares held in escrow
pursuant to the Escrow Agreement, and any other shares of capital stock of the
Company issued in respect of such shares as a result of stock splits, stock
dividends, reclassification, recapitalizations, mergers, consolidations or
similar events. References in this Agreement to amounts or percentages of
Registrable Shares as of or on any particular date shall be deemed to refer to
amounts or percentages after giving effect to any applicable events
contemplated by the preceding sentence.
Registration Statement: A registration statement of the Company on any
form (to be selected by the Company) for which the Company then qualifies and
which permits the secondary resale thereunder of Registrable Shares. The term
Registration Statement shall also include all exhibits and financial statements
and schedules and documents incorporated by reference in such Registration
Statement when it becomes effective under the Securities Act, and in the case
of the references to the Registration Statement as of a date subsequent to the
effective date, as amended or supplemented as of such date.
Securities Act: The Securities Act of 1933, as amended, or any
successor Federal statute, and the rules and regulations of the Commission
promulgated thereunder, as they each may, from time to time, be in effect.
Seller: As defined in the first paragraph of this Agreement.
Stockholder Indemnified Parties: As defined in Section 6(a).
Selling Stockholder: Any Stockholder whose Registrable Shares are
included at the request of such Stockholder in any Registration Statement filed
pursuant to Section 2.
Stockholder: The Seller or any transferee of Registrable Shares held
by Seller permitted hereunder if such transferee (i) is designated a
Stockholder by Seller and (ii) has executed a counterpart hereof at the time of
the transfer to such transferee, unless the Registrable Shares held by such
person are acquired in (a) a public distribution pursuant to a registration
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statement under the Securities Act or (b) one or more transactions exempt from
registration under the Securities Act where shares sold in such transaction may
be publicly resold without subsequent registration under the Securities Act
(and without limitations as to volume or manner of sale or both).
Transaction Agreement: As defined in the first "WHEREAS" clause above.
2. Incidental Registration.
(a) At any time until the time at which Stockholders may sell publicly
all Registrable Shares owned by such Stockholders without registration under
the Securities Act, each time that the Company proposes to register shares of
its Common Stock under the Securities Act for cash pursuant to either an
underwritten public offering, broker-dealer transactions, or a combination of
the foregoing (other than in connection with a dividend reinvestment, employee
benefit, stock option or similar plan, an offering of rights, warrants or
securities directly or indirectly convertible into or exchangeable or
exercisable for Common Stock or as registration solely for the account of the
Company pursuant to Rule 415 under the Securities Act or a registration of
shares on Form S-8 or S-4 or any other form not generally available for the
registration of securities for sale to the public), the Company shall give
written notice to Xxxxxx Xxxx, as the representative of the Stockholders (the
"Representative"), of its intention to do so. Upon receipt of such notice, the
Representative may give the Company a written request to register all or some
of such Stockholders' Registrable Shares in the registration described in the
written notice from the Company as set forth in the foregoing sentence,
provided that such written request is given within seven (7) days after any
such notice has been given by the Company (with such request stating (i) the
amount of Registrable Shares to be included and (ii) any other information
reasonably requested by the Company to properly effect the registration of such
Registrable Shares). Subject to Sections 2(b) and 4(c), upon receipt of such
request, if the registration form proposed to be used by the Company may also
be used to register Registrable Shares for distribution by such Selling
Stockholders, the Company will use its reasonable best efforts to promptly
cause all such Registrable Shares requested to be included in such registration
to be so included (in accordance with the methods of distribution set forth in
the Company's notice of intended registration).
(b) If the proposed method of distribution is a firm commitment
underwritten public offering and the managing underwriter thereof determines in
good faith that the inclusion of such Registrable Shares would materially
adversely affect the offering, the number of Registrable Shares to be offered
for the accounts of the Selling Stockholders shall be reduced or limited in
proportion to the number of Registrable Shares owned by all such Selling
Stockholders to the extent necessary to reduce the total number of shares to be
included in such offering to the amount recommended by such managing
underwriter; provided, that if securities are being offered for the account of
other persons or entities (other than, or in addition to, the Company), such
reduction shall be made pro rata from the securities intended to be offered by
such other persons (regardless of whether such other persons acquire or have
acquired their shares of Common Stock before, on or after the date hereof) and
the Selling Stockholders and
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subject to the registration rights of those persons set forth on Schedule I
hereto, but no such reduction shall be made from the securities to be offered
for the account of the Company.
(c) The Company's obligations under this Section 2 shall apply to a
registration to be effected for Common Stock to be sold for the account of the
Company as well as a registration statement which includes Common Stock to be
offered for the account of other holders of Common Stock.
(d) The Company may at any time and from time to time, without the
consent of any Stockholder, delay, suspend, abandon or withdraw any
Registration Statement described in Section 2(a) and any related proposed or
actual offering or other distribution in which any Stockholder has requested
inclusion of such Stockholder's Registrable Shares pursuant to this Section 2.
3. Limitations on Registration Rights. Notwithstanding the provisions
of Section 2 hereof, the Company shall not be required to effect or maintain
any registration if (i) the Company has previously filed with the Commission a
Registration Statement which included any of the Stockholders Registrable
Shares pursuant to Section 2 of this Agreement; provided, however, that (A) if
pursuant to Section 2(b) the number of Registrable Shares requested to be
registered by the Selling Stockholders was reduced, then such Selling
Stockholders shall be given another opportunity to register their excluded
Registrable Shares in accordance with this Section 2 or (B) if the Company
shall not, for any reason other than the failure of any stockholder to comply
with this Agreement, cause the Registration Statement to remain effective, and
prepare and file with the Commission any amendments and supplements to the
Registration Statement and to the Prospectus used in connection therewith as
may be necessary to keep the Prospectus current and in compliance in all
material respects with the provisions of the Securities Act, until the sooner
to occur of the sale of all of the Registrable Shares covered by such
Registration Statement or the 90th day following the effective date of such
Registration Statement (as such 90th day may be extended for the period of any
suspension of the offering or distribution of Registrable Shares covered
thereby pursuant to subsection (d) of Section 2), then the Selling Stockholders
shall be given another opportunity to register their Registrable Shares in
accordance with this Section 2; or (ii) there shall have been a material breach
of a representation, warranty, covenant or agreement contained in the
Transaction Agreement or an unsatisfied claim under any indemnity arrangement
relating thereto by a party other than the Company or the Purchaser, which
breach continues after the expiration of any applicable notice or cure periods.
4. Obligations with Respect to Registration.
(a) Subject to Section 2(d) hereof, if and whenever the Company is
obligated by the provisions of this Agreement to effect the registration of any
Registrable Shares under the Securities Act, the Company shall use its
commercially reasonable efforts:
(1) to notify the Selling Stockholders, (A) when a Registration
Statement becomes effective, (B) when the filing of a post-effective amendment
to a Registration
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Statement or supplement to the Prospectus is required, when the same is filed,
and in the case of a post-effective amendment, when the same becomes effective,
(C) of any request by the Commission for any amendment of or supplement to a
Registration Statement or any Prospectus relating thereto or for additional
information and (D) of the entry of any stop order suspending the effectiveness
of such Registration Statement or of the initiation of any proceedings for that
purpose;
(2) to furnish to each Selling Stockholder a conformed copy of the
Registration Statement as declared effective by the Commission and of each
post-effective amendment thereto, and such number of copies of the final
Prospectus and of each supplement thereto as may reasonably be required to
facilitate the distribution of the Registrable Shares;
(3) to register or qualify the Registrable Shares covered by a
Registration Statement under the securities or blue sky laws of such
jurisdictions in the United States as the Selling Stockholders shall reasonably
request, and do any and all other acts and things which may be necessary to
enable each Selling Stockholder whose Registrable Shares are covered by such
Registration Statement to consummate the disposition in such jurisdictions of
such Registrable Shares; provided, however, that the Company shall in no event
be required to qualify to do business as a foreign corporation or a dealer in
any jurisdiction where it is not so qualified, to conform its capitalization or
the composition of its assets at the time to the securities or blue sky laws of
such jurisdiction, to execute or file any general consent to service of process
under the laws of any jurisdiction, to take any action that would subject it to
service of process in suits other than those arising out of the offer and sale
of the Registrable Shares covered by such Registration Statement, or to subject
itself to taxation in any jurisdiction where it has not theretofore done so;
and
(4) to cause such Registrable Shares covered by a Registration
Statement to be listed on the principal exchange or exchanges or qualified for
trading on the principal over the counter market on which the Common Stock is
then listed or traded upon the sale of such Registrable Shares pursuant to such
Registration Statement.
(b) The Company's obligations under this Agreement with respect to a
Selling Stockholder shall be conditioned upon such Selling Stockholder's
compliance with the following:
(1) such Selling Stockholder shall cooperate with the Company in
connection with the preparation of the Registration Statement, and such Selling
Stockholder will provide to the Company, in writing, for use in the
Registration Statement, all information regarding such Selling Stockholder and
such other information as may be necessary to enable the Company to prepare the
Registration Statement and Prospectus covering the Registrable Shares and to
maintain the currency and effectiveness thereof;
(2) such Selling Stockholder shall permit the Company, the proposed
underwriters, agents or broker-dealers of the offering or other distribution
and their respective
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representatives and agents to examine such documents and records and shall
supply any information as they may reasonably request in connection with the
offering or other distribution in which such Selling Stockholder proposes to
participate;
(3) such Selling Stockholder shall enter into such agreements with the
Company and any underwriter, broker-dealer or similar securities industry
professional containing representations, warranties, indemnities and agreements
as are in each case customarily entered into and made by selling stockholders,
and will cause its counsel to give any legal opinions customarily given, in
secondary distributions under similar circumstances;
(4) during such time as such Selling Stockholder may be engaged in a
distribution of the Registrable Shares, such Selling Stockholder will comply
with all applicable laws, including, but not limited to Regulation M
promulgated under the Exchange Act, and pursuant thereto will, among other
things: (A) not engage in any stabilization activity in connection with the
securities of the Company in contravention of such rules; (B) distribute the
Registrable Shares owned by such Selling Stockholder solely in the manner
described in the Registration Statement; (C) cause to be furnished to each
underwriter, agent or broker-dealer to or through whom the Registrable Shares
owned by such Selling Stockholder may be offered, or to the offeree if an offer
is made directly by the Selling Stockholder, such copies of the Prospectus (as
amended and supplemented to such date) and documents incorporated by reference
therein as may be required by such underwriter, agent, broker-dealer or
offeree; and (D) not bid for or purchase any securities of the Company or
attempt to induce any person to purchase any securities of the Company other
than as permitted under the Exchange Act;
(5) at least five (5) days prior to any distribution of Registrable
Shares, such Selling Stockholder will advise the Company in writing of the
dates on which the distribution will commence and terminate, the number of the
Registrable Shares to be sold, the terms and the manner of sale (including, to
the extent applicable, the purchase price, the name of any underwriter, agent
or broker-dealer to or through whom such distribution is being made, and the
amount of any selling commissions or other items constituting compensation to
such underwriter, agent or broker-dealer) and the number of shares of Common
Stock that will be owned beneficially by such Selling Stockholder after giving
effect to such sale; and
(6) on notice from the Company of the happening of any of the events
specified in clauses (B), (C) or (D) of Section 4(a)(1), or that, as set forth
in Section 2(d), it has delayed, suspended, abandoned or withdrawn any
Registration Statement or any related offering or other distribution or it
otherwise requires the suspension by such Selling Stockholder of the
distribution of any of the Registrable Shares, then such Selling Stockholder
shall cease offering or distributing the Registrable Shares until such time, if
any, as the Company notifies such Selling Stockholder that offering and
distribution of the Registrable Shares may recommence.
5. Expenses of Registration.
All expenses in connection with any Registration Statement, any
qualification or compliance with federal or state laws required in connection
therewith, and the distribution of the
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Registrable Shares shall, as between the Selling Stockholders and the Company,
be borne as follows:
(i) The Company shall pay and be responsible for the registration fee
payable under the Securities Act, blue sky fees and expenses, if applicable
(subject to the limitations set forth in Section 4(a)(3)), printing fees and
all fees and disbursements of the Company's counsel and accountants. Solely at
its discretion, the Company may, in lieu of engaging the services of a
financial printing company with respect to the Registration Statement or the
Prospectus, arrange for the photocopying thereof, in which event the Company
will bear the applicable photocopying costs.
(ii) The Selling Stockholders shall pay all fees and disbursements of
their own counsel and advisers, all stock transfer fees (including the cost of
all transfer tax stamps) or expenses, if any, and all other expenses (including
underwriting or brokerage discounts, commissions and fees) related to the
distribution of the Registrable Shares that have not expressly been assumed by
the Company as set forth above.
6. Indemnification.
(a) The Company agrees to indemnify and hold harmless each Selling
Stockholder and each person (if any) who controls such Selling Stockholder
within the meaning of either the Securities Act or the Exchange Act
(collectively, the "Stockholder Indemnified Parties") from and against any
losses, claims, damages or liabilities (collectively "Losses"), joint or
several, to which such Stockholder Indemnified Parties may become subject,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) are based upon any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or the 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, in light of the
circumstances under which they were made, not misleading; and, subject to
Section 6(c), the Company will reimburse such Stockholder Indemnified Parties
for any legal or other expenses reasonably incurred by them in connection with
investigating or defending any such Losses; provided, however, that the Company
will not indemnify or hold harmless any Stockholder Indemnified Party from or
against any such Losses (i) that arise out of or are based upon any violation
of any federal or state securities laws, rules or regulations committed by any
of the Stockholder Indemnified Parties (or any person who controls any of them
or any agent, broker-dealer or underwriter engaged by them) or in the case of a
non-underwritten offering, any failure by such Selling Stockholder to give any
purchaser of Registrable Shares at or prior to the written confirmation of such
sale, a copy of the most recent Prospectus or (ii) if the untrue statement,
omission or allegation thereof upon which Losses or expenses are based (x) was
made in reliance upon and in conformity with the information provided by or on
behalf of any Stockholder Indemnified Party for use or inclusion in the
Registration Statement or any Prospectus, or (y) was made in any Prospectus
used after such time as the Company advised such Selling Stockholder that the
filing of a post-effective amendment or supplement thereto was required, except
the Prospectus as so amended
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or supplemented, or (z) was made in any Prospectus used after such time as the
Registration Statement ceases to be effective or current or has been withdrawn
or abandoned or the use of any such Registration Statement or Prospectus or any
offering or distribution pursuant thereto shall have been suspended or delayed
hereunder.
(b) Each Selling Stockholder, individually and not jointly, agrees to
indemnify and hold harmless the Company, its directors and officers and each
person, if any, who controls the Company within the meaning of either the
Securities Act or the Exchange Act (the "Company Indemnified Parties"), from
and against any Losses, joint or several, to which the Company Indemnified
Parties may become subject, insofar as such Losses (or actions 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
the 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,
in light of the circumstances under which they were made, not misleading, if
the statement or omission was made in reliance upon and in conformity with the
information provided by or on behalf of such Selling Stockholder or any person
who controls such Selling Stockholder for use or inclusion in the Registration
Statement or any Prospectus, or (ii) the use of any Prospectus after such time
as the Company has advised such Selling Stockholder that the filing of a
post-effective amendment or supplement thereto is required, except the
Prospectus as so amended or supplemented, or (iii) the use of any Prospectus
after such time as the Registration Statement ceases to be effective or current
or has been withdrawn or abandoned or the use of any such Registration
Statement or Prospectus or any offering or distribution pursuant thereto shall
have been suspended or delayed hereunder, or (iv) any violation by such Selling
Stockholder or any person who controls such Selling Stockholder within the
meaning of either the Securities Act or the Exchange Act (or any agent,
broker-dealer or underwriter engaged by such Selling Stockholder or any such
controlling person) of any federal or state securities law or rule or
regulation thereunder or in the case of a non-underwritten offering, any
failure by such Selling Stockholder to give any purchaser of Registrable Shares
at or prior to the written confirmation of such sale, a copy of the most recent
Prospectus; and, subject to Section 6(c), such Selling Stockholder will
reimburse such Company Indemnified Parties for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such Losses. For purposes of clause (i) of the preceding sentence and clause
(ii) of the last sentence of Section 6(a), but without limiting the generality
thereof, any information concerning any Shareholder Indemnified Party or plan
of distribution included in any Registration Statement or Prospectus which is
provided to the Selling Stockholder for his review within a reasonable period
before filing or use thereof and to which the information such Selling
Stockholder has not promptly provided written notice of objection to the
Company shall be deemed to have been provided by such Selling Stockholder
specifically for use in such Registration Statement or Prospectus.
(c) Each party entitled to indemnification under this Section 6 (the
"Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified
Party has actual knowledge of any claim as to which indemnity may be sought,
and the Indemnifying Party may participate at its own expense in the defense,
or if it so elects, to assume the defense of any such claim and any action
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or proceeding resulting therefrom, including the employment of counsel and the
payment of all expenses. The failure of any Indemnified Party to give notice as
provided herein shall not relieve the Indemnifying Party from its obligations
to indemnify such Indemnified Party, except to the extent the Indemnified
Party's failure to so notify actually prejudices the Indemnifying Party's
ability to defend against such claim, action or proceeding. In the event that
the Indemnifying Party elects to assume the defense in any action or
proceeding, the Indemnified Party shall have the right to employ separate
counsel in any such action or proceeding and to participate in the defense
thereof, but the fees and expenses of such separate counsel shall be such
Indemnified Party's expense unless (i) the Indemnifying Party has agreed to pay
such fees and expenses or (ii) the named parties to any such action or
proceeding (including any impleaded parties) include an Indemnified Party and
the Indemnifying Party, and such Indemnified Party shall have been advised by
counsel that there may be a conflict of interest between such Indemnified Party
and the Indemnifying Party in the conduct of the defense of such action (in
which case, if such Indemnified Party notifies the Indemnifying Party in
writing that it elects to employ separate counsel at the expense of the
Indemnifying Party, the Indemnifying Party shall not assume the defense of such
action or proceeding on such Indemnified Party's behalf, it being understood,
however, that the Indemnifying Party shall not, in connection with any one such
action or proceeding or separate but substantially similar or related actions
or proceedings arising out of the same general allegations or circumstances, be
liable for the reasonable fees and expenses of more than one separate firm of
attorneys at any time for all Indemnified Parties, which firm shall be
designated in writing by the Selling Stockholder(s) or the Company as the case
may be). No Indemnifying Party, in the defense of any such claim or litigation,
shall, except with the consent of the 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 Party of a release from all liability in respect to such claim or
litigation. The Indemnifying Party shall not be liable for any settlement of
any such action or proceeding effected without its written consent, but if
settled with its written consent, or if there be a final judgment for the
plaintiff in any such action or proceeding, the Indemnifying Party shall
indemnify and hold harmless the Indemnified Party from and against any loss or
liability by reason of such settlement or judgment.
(d) If the indemnification provided for under this Section 6 is
unavailable to or insufficient to hold the Indemnified Party harmless under
subparagraphs (a) or (b) above in respect of any Losses referred to therein for
any reason other than as specified therein, then the Indemnifying Party shall
contribute to the amount paid or payable by such Indemnified Party as a result
of such losses, claims, damages or liabilities (i) in such proportion as is
appropriate to reflect the relative benefits received by the Indemnifying Party
on the one hand and such Indemnified Party on the other from the subject
offering or distribution or (ii) if the allocation provided by clause (i) above
is not permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above but also
the relative fault of the Indemnifying Party on the one hand and such
Indemnified Party on the other in connection with the statements or omissions
which resulted in such Losses as well as any other relevant equitable
considerations. The relative benefits received by the Indemnifying Party on the
one hand and the Indemnified Party on the other hand shall be deemed to be in
the same
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proportion as the net proceeds of the offering or other distribution (after
deducting expenses) received by the Indemnifying Party bears to the net
proceeds of the offering or other distribution (after deducting expenses)
received by the Indemnified Party. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by (or omitted to be supplied by)
the Company or the Selling Stockholders, the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission, the relative benefits received by each party from the
sale of the Registrable Shares and any other equitable considerations
appropriate under the circumstances. The amount paid or payable by an
Indemnified Party as a result of the Losses referred to above in this
subsection (d) shall be deemed to include any legal or other expenses
reasonably incurred by such Indemnified Party in connection with investigating
or defending any such action or claim. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
7. Notices. All notices, requests, demands, waivers and other
communications hereunder shall be in writing and shall be deemed to have been
duly given if delivered personally or mailed, certified or registered mail with
postage prepaid, or sent by telex, telegram or telecopier, as follows:
(i) if to the Company:
Family Golf Centers, Inc.
000 Xxxxxxxxxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000
Attention: General Counsel
Facsimile: (000) 000-0000
(ii) if to Seller or the Representative:
Xxxxxx X. Xxxx
0000 X. Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
with a copy to:
Ireland, Xxxxxxxxx, Xxxxx & Xxxxxx, P.C.
0000 Xxxxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxx, Esq.
Facsimile: (000) 000-0000
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or to such other person or address as any party shall specify by notice in
writing to the other party. All notices and other communications given to a
party in accordance with the provisions of this Agreement shall be deemed to
have been given (i) three Business Days after the same are sent by certified or
registered mail, postage prepaid, return receipt requested, (ii) when delivered
by hand or transmitted by telecopy (answer back received) or (iii) one Business
Day after the same are sent by a reliable overnight courier service, with
acknowledgment of receipt requested. Notwithstanding the preceding sentence,
notice of change of address shall be effective only upon actual receipt
thereof.
8. Amendment. Any provision of this Agreement may be amended or
modified in whole or in part at any time by an agreement in writing among the
Company and the Stockholders who hold a majority of the Registrable Shares then
outstanding, executed in the same manner as this Agreement. No consent, waiver
or similar act shall be effective unless in writing.
9. Entire Agreement. This Agreement constitutes the entire agreement
among the parties hereto and supersedes all prior agreements and
understandings, oral and written, among the parties hereto with respect to the
subject matter hereof.
10. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
11. Governing Law. This Agreement shall be governed by and interpreted
in accordance with the internal laws of the State of Delaware, without giving
effect to principles of conflicts of laws.
12. Assignment. Subject to the definition of "Stockholder" contained
in Section 1 hereof, the Seller may not assign its rights under this Agreement
without the prior written consent of the Company. Subject to the foregoing,
this Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
FAMILY GOLF CENTERS, INC.
By:
--------------------------------
Name:
Title:
ACTIVE SPORTS MARKETING, LLC
By:
--------------------------------
Name:
Title:
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