B&B DRAFT 7/22/97
REGISTRATION RIGHTS AGREEMENT
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REGISTRATION RIGHTS AGREEMENT, dated as of July 25, 1997 (this
("Agreement"), by and between FAMILY GOLF CENTERS, INC., a Delaware corporation
(the "Company"), Xxxxxx X. Xxxxxx Xx., as stockholders representative (in such
capacity, the "Stockholders Representative"), and the other persons identified
on the signature pages hereto (the "Selling Stockholders").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Company, Lake Grove Family Golf Centers, Inc., a New York
corporation and a wholly-owned subsidiary of the Company ("LGFGC") and Leisure
Complexes, Inc., a New York corporation ("LCI") are parties to an Agreement and
Plan of Merger, dated as of July 25, 1997 (the "Merger Agreement"), pursuant to
which, among other things, the Selling Stockholders will receive, as the
consideration for their shares of LCI common stock in the merger (the "Merger")
contemplated by the Merger Agreement, an aggregate of 509,090 shares of Common
Stock, par value of $1.00 per share, of the Company (the "Common Stock") and
warrants (the "Warrants") to purchase an additional 55,537 shares of Common
Stock.
WHEREAS, the shares of Common Stock are, and the shares of Common
Stock issuable upon exercise of the Warrants will be, "restricted securities"
(as defined in Rule 144 under the Securities Act of 1933, as amended), and the
Company has agreed to provide the Selling Stockholders with the registration
rights set forth herein with respect to the shares of Common Stock issuable in
the Merger and the shares of Common Stock issuable upon exercise of the
Warrants;
WHEREAS, Xxxxxx X. Xxxxxx Xx. has agreed to act as representative of
all of the Selling Stockholders for all purposes of this Agreement, and the
Selling Stockholders desire that he act in such capacity; and
WHEREAS, the execution and delivery of this Agreement is a condition
precedent to the obligation of the Company to consummate the Merger and the
other transactions contemplated by the Merger Agreement.
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 located in New York, New York are authorized or obligated by law,
regulation or executive order to close.
Commission: The Securities and Exchange Commission, or any other
federal agency at the time administering the Securities Act and the Exchange
Act.
Common Stock: As defined in the first recital above.
Company: As defined in the preamble of this Agreement.
Company Indemnified Parties: As defined in Section 5(b).
Escrow Agreement: The Escrow Agreement referred to in the Merger
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 5(a) hereof.
Merger Agreement: As defined in the first recital above.
Stockholders Representative: As defined in the first recital above.
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.
Registrable Shares: Shares of Common Stock issued to the Selling
Stockholders (i) as part of the merger consideration in the Merger and (ii)
upon exercise of the Warrants issued as part of the merger consideration in the
Merger, and any other shares of capital stock of the Company issued in respect
of such Registrable Shares as a result of stock splits, stock dividends,
reclassification, recapitalizations, mergers, consolidations or similar events.
Any Registrable Share will cease to be a Registrable Share when (x) a
registration statement covering such Registrable Share has been declared
effective by the Commission and such Registrable Share has been disposed of
pursuant to such effective registration statement, (y) such Registrable Share
may be publicly resold without registration pursuant to Rule 144 promulgated by
the Commission under the Securities Act or (z) such Registrable Share is no
longer beneficially owned by a Selling Stockholder.
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Registration Statement: A "shelf" registration statement of the
Company on any form for which the Company then qualifies which permits the
secondary resale thereunder of the Registrable Shares on a delayed or
continuous basis under Rule 415 of the Commission under the Securities Act, or
any successor rule that may be promulgated by the Commission under the
Securities Act, as they each may, from time to time, be in effect. 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 references to the Registration Statement as of a date subsequent
to the effective date, as amended 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.
Selling Stockholders: As defined in the preamble above.
Special Counsel: Ruskin, Moscou, Xxxxx & Faltischek, P.C.
Stockholder Indemnified Parties: As defined in Section 5(a).
2. Shelf Registration.
(a) The Company shall:
(i) file, within the period commencing 90 days and ending 120 days,
inclusive, after the date hereof, the Registration Statement covering all
Registrable Shares. The section of the Registration Statement entitled
"Plan of Distribution" shall provide that the Selling Stockholders may
distribute Registrable Shares pursuant to the Registration Statement only
in the manner set forth on Exhibit A hereto.
(ii) use its commercially reasonable efforts to cause the Registration
Statement to be declared effective by the Commission as promptly as
practicable after filing; and
(iii) use its commercially reasonable efforts to keep the Registration
Statement continuously effective under the Securities Act until the sooner
to occur of (x) the sale of all Registrable Shares under the Registration
Statement and (y) the first anniversary of the Merger.
(b) The Company shall amend the Registration Statement or supplement
the related Prospectus from time to time as necessary to comply with applicable
rules and regulations promulgated by the Commission under the Securities Act or
the instructions applicable to the form used for the Registration Statement.
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3. Obligations with Respect to Registration.
(a) In connection with the obligations of the Company pursuant to
Section 2 hereof, the Company shall:
(i) prepare and file with the Commission the Registration Statement;
provided, however, that before filing the Registration Statement and the
related Prospectus or any amendments thereto the Company shall afford the
Stockholders Representative (as representative of the Selling Stockholders)
and Special Counsel an opportunity to review copies thereof. The Company
shall not file the Registration Statement or any amendments thereto if the
Stockholders Representative or Special Counsel shall reasonably object on a
timely basis;
(ii) notify the Stockholders Representative (as representative of the
Selling Stockholders) and Special Counsel (A) of the receipt of any
comments from the Commission on the Registration Statement prior to its
becoming effective, and the Company's responses thereto, (B) when the
Registration Statement becomes effective, (C) when the filing of a
post-effective amendment to the Registration Statement or a 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, (D) of any
request by the Commission or any state securities authority for any
amendment of or supplement to the Registration Statement or the Prospectus
relating thereto or for additional information, (E) of the entry of any
stop order suspending the effectiveness of the Registration Statement or of
the initiation of any proceedings for that purpose, (F) of the happening of
any event or the failure of any event to occur or the discovery of any
facts or otherwise that makes any statement made in the Registration
Statement or the Prospectus relating thereto untrue in any material respect
or that causes such Registration Statement or Prospectus to omit to state a
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading and (G) of the
reasonable determination by the Company that a post-effective amendment to
the Registration Statement would be appropriate;
(iii) use commercially reasonable efforts to obtain the withdrawal of
any order suspending the effectiveness of the Registration Statement as
soon as reasonably practicable;
(iv) furnish to the Stockholders Representative (as representative of
the Selling Stockholders) and Special Counsel a conformed copy of the
Registration Statement as declared effective by the Commission and 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 by the Selling
Stockholders in accordance with the methods of distribution described in
the Registration Statement;
(v) cooperate with the Selling Stockholders to facilitate the timely
preparation and delivery of certificates representing Registrable Shares to
be sold under the Registration
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Statement and not bearing any restrictive legends and in such denominations
and registered in such names as any Selling Stockholder may reasonably
request at least one Business Days prior to the closing of any sale of
Registrable Shares by such Selling Stockholder pursuant to the Registration
Statement;
(vi) prepare and file, as soon as reasonably practicable, an
appropriate post-effective amendment to the Registration Statement or a
supplement to the related Prospectus or file a Form 8-K or other report
that will be incorporated by reference into the Prospectus so that,
following the occurrence of any circumstance requiring such a filing, the
Prospectus included in the Registration Statement, as thereafter delivered
to the purchasers of Registrable Shares, will not include an untrue
statement of a material fact or omit to state a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading;
(vii) make generally available to its securityholders earning
statements satisfying the provisions of Section 11(a) of the Securities Act
and Rule 158 thereunder (or any similar rule promulgated under the
Securities Act) no later than 45 days after the end of the 12-month period
(or 90 days after the end of any 12-month period if such period is a fiscal
year), commencing on the first day of the first fiscal quarter of the
Company after the effective date of the Registration Statement, which
statements shall cover said 12-month period;
(viii) register or qualify the Registrable Shares covered by the
Registration Statement under such securities or blue sky laws in the United
States as may be requested by the Stockholders Representative, and do any
and all other acts and things which may be necessary to enable the Selling
Stockholders to consummate the disposition in such jurisdictions of
Registrable Shares in accordance with a method of distribution described in
such Registration Statement; provided, however, that the Company shall in
no event be required to qualify to do business as a foreign corporation or
as 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;
(ix) cause the Registrable Shares covered by the 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 shares of
Common Stock are then listed or traded upon the sale of Registrable Shares
pursuant to the Registration Statement; and
(x) otherwise comply with applicable rules and regulations of the
Commission and use its commercially reasonable efforts to take such other
actions as may be required to
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permit unrestricted sales of Registrable Shares under the Registration
Statement in accordance with the methods of distribution described therein.
(b) Notwithstanding anything to the contrary contained herein, if at
any time after the filing of the Registration Statement or after it is declared
effective by the Commission, the Company determines, in its reasonable business
judgment, that such registration and the offering of Registrable Shares
thereunder would require the Company to disclose matters, that otherwise would
not be required to be disclosed at such time, and such disclosure would
interfere with or otherwise adversely affect any financing, acquisition,
corporate reorganization, or other material transaction or development
involving the Company, then the obligation of the Company under Section
2(a)(ii) or 2(a)(iii), as the case may be, shall be suspended upon the giving
of notice to the Stockholders Representative of such suspension; provided,
however, that any such suspension shall not last more than 30 days, or past the
date on which any Quarterly Report on Form 10-Q or Annual Report on Form 10-K
is filed by the Company, following the giving of such notice. Any such notice
need not specify the reasons for such suspension if the Company determines, in
its reasonable business judgment, that doing so would interfere with or
adversely affect such transaction or development or would result in the
disclosure of material non-public information. In the event of a suspension
pursuant to this Section 3(b), the one-year period referred to in Section
2(a)(iii)(y) will be extended by a number of days equal to the total number of
days for which the suspension of the Company's obligations under Section
2(a)(ii) or 2(a)(iii), as the case may be, was in effect.
(c) The Company's obligations under this Agreement to the Selling
Stockholders shall be conditioned upon the compliance by the Selling
Stockholders with the following:
(1) the Selling Stockholders shall cooperate with the Company in
connection with the preparation of the Registration Statement and
related Prospectus and, for so long as the Company is obligated to
keep the Registration Statement effective, the Selling Stockholders
shall provide to the Company, in writing, for use in the Registration
Statement and the Prospectus, all information regarding the Selling
Stockholders and such other information as may be reasonably required
to enable the Company to prepare the Registration Statement and
Prospectus covering the Registrable Shares and to maintain the
currency and effectiveness thereof;
(2) during such time as the Selling Stockholders may be engaged
in a distribution of the Registrable Shares, the Selling Stockholders
shall comply with all applicable laws, including, but not limited to,
Regulation M promulgated by the Commission 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 solely in the manner described in the Registration Statement;
and (C) 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;
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(3) at least one Business Day prior to any distribution by a
Selling Stockholder of Registrable Shares, such Selling Stockholder
shall advise the Company in writing of the dates on which the
distribution will commence and, to the best knowledge of such Selling
Stockholders at that time, the date on which the distribution will
terminate, the number of Registrable Shares to be sold, the terms and
the manner of sale (including, to the extent applicable, the purchase
price, the name of any 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 broker-dealer) and
the number of shares of Common Stock that will be owned beneficially
by such Selling Stockholders after giving effect to such sale;
(4) on notice from the Company of the happening of any of the
events specified in clauses (C), (D), (E), (F) or (G) of Section
3(a)(ii), the Selling Stockholders shall cease offering or
distributing the Registrable Shares until such time as the Company
notifies the Selling Stockholders that offering and distribution of
the Registrable Shares may recommence; and
(5) on notice from the Company that (x) it is about to effect a
primary public offering of shares of Common Stock and (y) the managing
underwriter(s) for such offering have so requested in writing, then
each Selling Stockholder who, as of the date such notice is given,
owns in excess of 5% of the issued and outstanding shares of Common
Stock of the Company shall cease offering or distributing any of such
shares (including Registrable Shares owned by such Selling
Stockholders) during the 7 days prior to, and during the 30-day period
beginning on, the effective date of the registration statement for
such primary public offering.
4. 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 Registrable Shares shall, as between the
Selling Stockholders and the Company, be borne as follows:
(a) 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 3(a)(viii)), printing fees and
all fees and disbursements of the Company's counsel and accountants. The
Company shall be responsible for fees and disbursements of Special Counsel in
connection with the registration of the Registrable Shares under the
Registration Statement; provided that the amount of such fees and disbursements
payable by the Company shall not exceed $____. 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. The Company shall pay the cost of any legal opinion
required to remove the restrictive legend from the certificates for any
Registrable Shares that are sold by a Selling Stockholder under the
Registration Statement
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pursuant to one of the methods of distribution described therein, provided such
Selling Stockholder provides to the Company a broker's letter or other proof,
reasonably satisfactory to the Company, that such Registrable Shares have been
so sold under the Registration Statement.
(b) The Selling Stockholders shall pay all fees and disbursements of
their own counsel (except as otherwise provided in Section 3(a) above) and
advisers, all stock transfer fees (including the cost of all transfer tax
stamps) or expenses, if any, and all other expenses (including 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.
5. 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 5(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, or broker-dealer engaged by them) or any failure by such Selling
Stockholder to give any purchaser of Registrable Shares, at or prior to the
written confirmation of sale, a copy of the most recent Prospectus (provided
copies of such Prospectus were previously provided to the Stockholders
Representative) 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 in writing by or on behalf of any
Stockholder Indemnified Party specifically 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 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
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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 in
writing specifically by or on behalf of such Selling Stockholder or any person
who controls such Selling Stockholder for use in the Registration Statement or
any Prospectus, (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, (iii) the use of any Prospectus after such time as (x)
the Company has given notice to such Selling Stockholder that the Registration
Statement is not effective or current or has been withdrawn or abandoned or (y)
the Company has given notice to such Selling Stockholder that any offering or
distribution pursuant to the related Registration Statement 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 or
broker-dealer engaged by such Selling Stockholder or any such controlling
person) of any federal or state securities law or rule or regulation thereunder
or any failure by such Selling Stockholder to give any purchaser of Registrable
Shares, at or prior to the written confirmation of sale, a copy of the most
recent Prospectus furnished by the Company to the Stockholder Representative;
and, subject to Section 5(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 5(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 review within a reasonable period
before filing or use thereof and to which 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 5 (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 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
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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 in writing 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 5 is
unavailable 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 in such proportion as is
appropriate to reflect 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 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
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.
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6. Stockholders Representative's Power of Attorney. Each Selling
Stockholder agrees that the Stockholders Representative shall act as his, her
or its representative for all purposes of this Agreement. In furtherance of the
foregoing, each of the Selling Stockholders hereby makes, constitutes and
appoints the Stockholders Representative as his, her or its true and lawful
attorney-in-fact and agent for such Selling Stockholder, in his, her or its
name, place and stead, to (i) execute on behalf of the Selling Stockholder all
instruments, agreements and documents which are reasonably requested by the
Company or otherwise necessary or required to be executed in connection with
the preparation, filing and effectuation and maintenance of the Registration
Statement and (ii) receive and acknowledge delivery and receipt of any and all
notices, instruments, documents and agreements in connection with this
Agreement and the transactions contemplated hereunder. Such appointment by each
Selling Stockholder shall be deemed to be coupled with an interest hereunder
and accordingly shall be irrevocable until the termination of this Agreement in
accordance with the terms hereunder.
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 telecopier, as follows:
(a) if to the Company:
Family Golf Centers, Inc.
000 Xxxxxxxxxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000
Attention: General Counsel
Facsimile: 000-000-0000
with a copy to:
Xxxxx & Xxxxx, L.L.P.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxx Xx., Esq.
Facsimile: 000-000-0000
(b) if to the Stockholders Representative (on behalf of any or
all of the Selling Stockholders):
Xxxxxx X. Xxxxxx Xx.
------------------------------
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Facsimile:
--------------------
with a copy to:
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Ruskin, Moscou, Xxxxx & Faltischek, P.C.
000 Xxx Xxxxxxx Xxxx
Xxxxxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxx
Facsimile: 000-000-0000
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, and (ii) when
delivered by hand or transmitted by telecopy (with confirmation received).
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 between the
Company and the Stockholders Representative. 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 New York, without giving
effect to principles of conflicts of laws.
12. Assignment. A Selling Stockholder 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 permitted assigns.
12
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
FAMILY GOLF CENTERS, INC.
By:
--------------------------------
Name:
Title:
STOCKHOLDERS REPRESENTATIVE
-----------------------------------
Name:
SELLING STOCKHOLDERS:
*
-----------------------------------
Name:
*
-----------------------------------
Name:
*
-----------------------------------
Name:
*
-----------------------------------
Name:
*
-----------------------------------
Name:
*
-----------------------------------
Name:
13
*
-----------------------------------
Name:
*
-----------------------------------
Name:
* By Xxxxxx X. Xxxxxx Xx., as attorney in fact.
14
EXHIBIT "A"
PLAN OF DISTRIBUTION
--------------------
The Registrable Shares may be sold by the Selling Stockholders
directly or through agents designated from time to time or to or through
broker-dealers designated from time to time. To the extent required, any such
agent or broker-dealer involved in the offer and sale of the Registrable Shares
and any applicable commissions, discounts or other items constituting
compensation to such agents or broker-dealers will be set forth in a Prospectus
Supplement.
The distribution of the Registrable Shares may be effected from time
to time in one or more transactions at a fixed price or prices, which may be
changed, at market prices prevailing at the time of sale, at prices related to
such prevailing market prices or at prices determined on a negotiated or
competitive bid basis. Registrable Shares may be sold through a broker-dealer
acting as agent or broker for a Selling Stockholder, or to a broker-dealer
acting as principal. In the latter case, the broker-dealer may then resell such
Registrable Shares to the public at varying prices to be determined by such
broker-dealer at the time of resale.
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