EXHIBIT 10.3
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made and entered
into this 29th day of October, 2004, by and between ELECTRONIC GAME CARD, INC.,
a Nevada corporation (the "Company"), and SCIENTIFIC GAMES INTERNATIONAL, INC.,
a Delaware corporation ("SciGames").
BACKGROUND:
A. SciGames has subscribed for certain shares of "Common Stock" (as defined
below) of the Company pursuant to a Subscription Agreement, dated October 12,
2004 (the "Subscription Agreement").
B. In connection with the transactions contemplated by the Subscription
Agreement, the Company desires to grant to SciGames certain registration rights
with respect to such shares, all as more particularly described in this
Agreement.
NOW, THEREFORE, FOR AND IN CONSIDERATION of the premises, the mutual
promises, covenants and agreements contained herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
As used in this Agreement, the following terms shall have the following
respective meanings:
1.1 "BUSINESS DAY" shall mean any day that is not a Saturday, a Sunday or
a day on which banks are required or permitted to be closed in the State of
Georgia.
1.2 "COMMON STOCK" shall mean the $0.001 par value common stock of the
Company.
1.3 "EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as
amended.
1.4 "HOLDER" shall mean SciGames and any permitted transferee of SciGames.
1.5 "PERSON" shall mean any individual, partnership, corporation, trust or
other entity.
1.6 The terms "REGISTER," "REGISTERED" and "REGISTRATION" refer to a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act, and the declaration or order by the SEC of
the effectiveness of such registration statement.
1.7 "REGISTRABLE SECURITIES" shall mean (i) the Shares and (ii) any other
shares of Common Stock issued by way of (or issuable upon conversion or exercise
of any warrant, right or other security which is issued as) a dividend, stock
split, combination of shares, recapitalization, restructuring, merger,
consolidation or other distribution with respect to or exchange for or
replacement of the Shares; provided, however, that the term "Registrable
Securities" shall not include (i) any Shares that have been registered and sold
pursuant to a registration, or (ii) any Shares that have been sold, or could
then be sold within any three (3) month period, pursuant to Rule 144 promulgated
under the Securities Act.
1.8 "SECURITIES ACT" shall mean the Securities Act of 1933, as amended.
1.9 "SEC" shall mean the Securities and Exchange Commission.
1.10 "SHARES" shall mean the shares of Common Stock issued to SciGames
pursuant to the Subscription Agreement.
ARTICLE II
DEMAND REGISTRATION
2.1 Demand Registration.
(a) For a period of 270 days (plus any additional days during which a
registration has been postponed pursuant to Section 2.1(f) hereof) from and
after the date that is one (1) year from the date of this Agreement, the Holder
shall be entitled to have the Company effect one (1) demand registration on Form
S-3 (to the extent available to the Company, or any applicable substitute,
replacement or successor form that may be adopted by the SEC) of the Registrable
Securities then owned of record and beneficially by such Holder. A request for
such demand registration (a "Registration Request") must be made in writing by
the Holder.
(b) The Company shall use its best efforts to cause the Registrable
Securities specified in the Registration Request to be registered as soon as
reasonably practicable so as to permit the sale thereof and, in connection
therewith, shall, within thirty (30) days after the Holder provides the Company
with such notice, prepare and file a registration statement with the SEC under
the Securities Act to effect such registration.
(c) Such registration statement shall contain such required information
pursuant to the rules and regulations promulgated under the Securities Act and
such additional information as deemed necessary by the managing underwriter or,
if there is no managing underwriter, as deemed under the Securities Act to be
necessary by the Company.
(d) In connection with the preparation of the registration statement, the
Holder shall:
(i) Specify the number of Registrable Securities intended to be
offered and sold by the Holder;
(ii) Express the Holder's intention to offer or cause the offering
of such shares for distribution;
(iii) Describe the nature or method of the proposed offer and sale
thereof by the Holder; and
(iv) Undertake to provide all such information and materials and
take all such action as may be required in order to permit the Company to
comply with all applicable requirements of the SEC and to obtain any
desired acceleration of the effective date of such registration statement.
(e) Notwithstanding the foregoing, if the Company shall furnish to the
Holder a certificate signed by a duly authorized officer of the Company stating
that in the good faith judgment of the Board of Directors of the Company it
would be seriously detrimental to the Company for such registration statement to
be filed on or before the date such filing would be required, then the Company
shall be entitled to postpone the filing of the registration statement for up to
ninety (90) days; provided, that no period of postponement shall be counted in
tolling the 270-day period referred to in Section 2.1(a) above.
(f) If a registration has become effective but is withdrawn before
completion of the offering contemplated thereby because of adverse business
developments at the Company that were not known to the Holder when it requested
that the Company initiate such registration proceedings, or which developments
came into existence subsequent to such request, such registration shall not
count as the demand registration referred to in the first sentence of this
Section 2.1.
(g) If a registration is filed on behalf of the Holder and such
registration is withdrawn at the request of the Holder for any reason other than
adverse business developments at the Company that were not known to the Holder,
such registration shall count as the demand registration referred to in the
first sentence of this Section 2.1.
(h) The Company shall not cause the registration under the Securities Act
of any other shares of Common Stock to become effective (other than the
registration of an employee stock plan, or registration in connection with any
Rule 145 or similar transaction) during the effectiveness of a registration
requested hereunder.
2.2 Inclusion of Additional Shares.
(a) The Company may include in a registration pursuant to this Article II
securities for its own account and by other third parties in amounts as
determined by the Company's Board of Directors. To the extent the Company
includes in such registration statement securities for its own account or held
by other parties, the Company shall take all actions it deems reasonably
necessary to ensure that security holders of the Company, whether or not holding
contractual registration rights, shall not have the right to exclude from any
registration initiated pursuant to this Article II any Registrable Securities of
the Holder.
(b) The Company may enter into an underwriting agreement in customary form
with the underwriter or representative of the underwriters selected for such
underwriting. Notwithstanding any other provision of this Section 2.2, if the
underwriter or underwriters' representative advises the Holder in writing that
marketing factors require a limitation on the number of shares to be
underwritten, the securities of the Company, the securities held by officers,
directors or employees of the Company and the securities held by other third
parties shall be excluded from the underwriting by reason of the underwriter's
marketing limitation to the extent so required by such limitation. No securities
excluded from the underwriting by reason of the underwriter's marketing
limitation shall be included in such registration.
(c) If the Holder disapproves of the terms of the underwriting, the
Holder's sole remedy shall be to withdraw therefrom by written notice to the
Company and the underwriter or the underwriters' managing representative. The
Holder shall be deemed to have withdrawn if the Holder fails to execute
underwriting documents in customary form requested by the underwriter or the
underwriters' managing representative within the time period requested for
execution of such documents.
ARTICLE III
PIGGYBACK RIGHTS
3.1 Notice of Registration. If at any time or from time to time the
Company proposes to register (including for this purpose a registration effected
by the Company for stockholders of the Company other than the Holder) under the
Securities Act any class of the Company's equity securities for sale to the
public on a registration statement on Form X-0, X-0, X-0 or any applicable
substitute, replacement or successor form that may be adopted by the SEC for the
sale of equity securities to the public, then and in each such case the Company,
subject to the terms and conditions contained herein, shall:
(a) Promptly give to the Holder written notice thereof; and
(b) Include in such registration (and any related qualification
under blue sky laws or other compliance) and underwriting, the Registrable
Securities (subject to cutback as set forth in Section 3.2) specified in a
written request or requests made within thirty (30) days after receipt of such
written notice from the Company by the Holder (the "Piggyback Request").
3.2 Priority in Piggyback Registrations. In connection with any offering
involving an underwriting of shares of the Company's equity securities as
described in Section 3.1 above, the Company shall not be required under this
Section 3.2 to include any of the Registrable Securities in such underwriting
unless the Holder accepts the terms of the underwriting as agreed upon between
the Company and the underwriters selected by it. If the underwriters determine
in writing and in good faith that the amount of Registrable Securities requested
to be included in such registration would jeopardize the success of such
offering, then the Company shall be required to include in the offering only
that number of Registrable Securities which the underwriters determine in their
sole discretion will not jeopardize the success of the offering. Allocation of
securities to be sold in any such offering shall be made first to the Company
(unless the offering is pursuant to a contractual demand right, in which case
the allocation shall be made first to the stockholders exercising such demand
right, including the Holder) and thereafter, to the extent any other securities
are to be included, on a pro-rata basis among the Holder and any other selling
stockholders who have contractual rights to include shares in such offering
according to the total number of designated Registrable Securities requested by
the Holder and securities requested by such other selling stockholders to be
included in such offering and entitled to inclusion therein on the basis of this
Agreement or such other contractual agreement. To facilitate the allocation of
shares in accordance with the above provisions, the Company may round the number
of Registrable Securities allocated to the Holder or of securities allocated to
each other selling stockholder to the nearest one hundred (100) shares.
Notwithstanding anything to the contrary in this Agreement, but subject to the
next sentence, the Holder agrees to delay the sale of any Registrable Securities
not sold in such registration for the period requested by the underwriter or
managing agent up to ninety (90) days (or such lesser amount of time if
permitted by such underwriter or managing agent) following the effective date of
the registration statement. The foregoing restriction shall not apply to the
number of Registrable Securities, if any, requested by the Holder to be included
in a registration but which are excluded from such registration at the
discretion of the underwriters as set forth in this Section 3.2.
3.3 Underwriting. The right of the Holder to registration pursuant to this
Article III shall be conditioned upon the Holder's participation in such
underwriting and the inclusion of Registrable Securities in the underwriting to
the extent provided herein. If the Holder proposes to distribute its securities
through such underwriting, the Holder shall (together with the Company and any
other holders distributing their securities through such underwriting) enter
into an underwriting agreement in customary form with the managing underwriter
selected for such underwriting by the Company.
3.4 Right to Terminate Registration. The Company shall have the right to
terminate or withdraw in good faith any registration initiated by it under this
Article III prior to the effectiveness of such registration, whether or not the
Holder has elected to include securities in such registration.
ARTICLE IV
OBLIGATIONS OF THE COMPANY
4.1 Obligations of the Company. Whenever the Company is required by the
provisions of this Agreement to use its best efforts to effect the registration
of the Registrable Securities, the Company shall:
(a) Prepare and file with the SEC a registration statement with
respect to the Registrable Securities, and use its best efforts to cause such
registration statement to become effective and to remain effective until the
earlier of (i) the sale of the Registrable Securities so registered or (ii)
ninety (90) days subsequent to the effective date of such registration; provided
that, not less than three (3) days before filing with the SEC any registration
statement or prospectus or not less than one (1) day before filing with the SEC
any amendments or supplements thereto, the Company will furnish to the Holder
and its counsel copies of all such documents proposed to be filed, including,
without limitation, documents incorporated by reference in the prospectus and,
if requested by the Holder, the exhibits incorporated by reference therein, and
the Holder shall have the opportunity to object to any information pertaining
solely to the Holder that is contained therein and the Company will make the
corrections reasonably requested by the Holder with respect to such information
prior to filing any registration statement or amendment thereto or any
prospectus or any supplement thereto. The Company will not include or name the
Holder in any registration statement or prospectus without the consent of the
Holder, unless required to do so by the Securities Act and the rules and
regulations promulgated thereunder; provided, however, that the Company may
withdraw any registration of its securities in good faith at any time prior to
the effective date of the registration statement relating thereto; provided,
further, that in the event of any such withdrawal such registration shall not
count as the demand registration referred to in the first sentence of Section
2.1 above;
(b) Prepare and, as soon as reasonably practicable, file with the
SEC such amendments and supplements to such registration statement and the
prospectus used in connection therewith as may be necessary to make and to keep
such registration statement effective and to comply with the provisions of the
Securities Act with respect to the sale or other disposition of all securities
proposed to be registered in such registration statement for the applicable
period set forth in the immediately foregoing paragraph (a);
(c) Furnish to the Holder such number of copies of the registration
statement (including any amendment or supplement thereto) and prospectus
(including any preliminary prospectus and any amended or supplemented
prospectus), in conformity with the requirements of the Securities Act and the
rules and regulations promulgated thereunder, as the Holder may reasonably
request in order to effect the offering and sale of the Registrable Securities
to be offered and sold, but only while the Company shall be required under the
provisions hereof to cause the registration statement to remain current;
(d) If necessary, use its best efforts to register or qualify the
Registrable Securities covered by such registration statement under the
securities or blue sky laws of such states as the Holder shall reasonably
request (provided, however, that the Company shall not be obligated to qualify
as a foreign corporation to do business under the laws of any jurisdiction in
which it is not then qualified), maintain any such registration or qualification
current until the earlier of the sale of the Registrable Securities so
registered or ninety (90) days subsequent to the effective date of the
registration statement, and take any and all other actions either necessary or
advisable to enable the Holder to consummate the public sale or other
disposition of the Registrable Securities in jurisdictions where the Holder
desires to effect such sales or other disposition;
(e) The Company shall promptly notify the Holder of any stop order
issued by the SEC and use its best efforts to obtain the withdrawal of any order
suspending the effectiveness of the registration statement;
(f) The Company shall use its best efforts to cause all Registrable
Securities covered by each registration statement to be listed subject to notice
of issuance, prior to the date of the first sale of such Registrable Securities
pursuant to such registration statement, on each securities exchange on which
the Common Stock is then listed and admitted to trading on;
(g) In the case of an underwritten offering, the Company shall cause
to be delivered to the Holder and the underwriters, if any, copies of opinions
of counsel to the Company in customary form, covering such matters as are
customarily covered by opinions for an underwritten public offering as the
underwriters may request and addressed to the underwriters;
(h) The Company shall provide a transfer agent and registrar for all
such Registrable Securities not later than the effective date of such
registration statement;
(i) The Company shall cause to be delivered, immediately prior to
the effectiveness of the registration statement (and, in the case of an
underwritten offering, at the time of delivery of any Registrable Securities
sold pursuant thereto), letters from the Company's independent certified public
accountants addressed to each underwriter, if any, stating that such accountants
are independent public accountants within the meaning of the Securities Act and
the applicable published rules and regulations promulgated thereunder, and
otherwise in customary form and covering such financial and accounting matters
as are customarily covered by letters of the independent certified public
accountants delivered in connection with primary or secondary underwritten
public offerings, as the case may be;
(j) The Company will notify the Holder at any time when a prospectus
relating to a registration statement for any Registrable Securities is required
to be delivered under the Securities Act, upon the Company's discovery that, or
upon the happening of any event as a result of which, the prospectus included in
such registration statement, as then in effect, includes an untrue statement of
a material fact or omits to state any material fact required to be stated
therein necessary to make the statements therein not misleading in the light of
the circumstances under which they were made, and at the request of the Holder
prepare and furnish to the Holder and each underwriter, if any, a reasonable
number of copies of a supplement to or an amendment of such prospectus as may be
necessary so that, as thereafter delivered to the purchasers of such securities,
such prospectus shall not include an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances under which
they were made; and
(k) Take all such other actions either necessary or desirable to
permit the Registrable Securities held by the Holder to be registered and
disposed of in accordance with the method of disposition described herein.
4.2 Condition Precedent to the Company's Obligations. It shall be a
condition precedent to the obligation of the Company to take any action pursuant
to this Agreement in respect of the securities which are to be registered at the
request of the Holder that the Holder shall furnish to the Company such
information regarding the securities held by the Holder and the intended method
of disposition thereof as the Company shall reasonably request and as shall be
required in connection with the action taken by the Company.
ARTICLE V
DISCONTINUANCE OF USE OF PROSPECTUS
The Holder agrees by acquisition of the Shares that, upon receipt of any
written notice from the Company of the occurrence of any event of the kind
described in Section 4.1(j) above, the Holder will forthwith discontinue the
Holder's offer of Shares pursuant to the registration statement relating to such
Shares until the Holder's receipt of the copies of the supplemented or amended
prospectus contemplated by Section 4.1(j) and, if so directed by the Company,
will deliver to the Company all copies, other than permanent file copies, then
in the Holder's possession of the prospectus relating to such Shares at the time
of receipt of such notice. In the event that the Holder uses a prospectus in
connection with the offering and sale of any of the Shares covered by such
prospectus, the Holder will use only the latest version of such prospectus
provided by the Company.
ARTICLE VI
EXPENSES OF REGISTRATION
The Company shall pay all of the expenses incurred in connection with any
registration statements that are initiated pursuant to this Agreement,
including, without limitation, all SEC and blue sky registration and filing
fees, printing expenses, transfer agent and registrar fees, stock exchange
qualification fees, the fees and disbursements of the Company's outside counsel
and independent accountants, including expenses incurred in connection with any
special audits incidental to or required by such registration. Any underwriting
discounts, fees and disbursements of counsel to the Holder, selling commissions
and stock transfer taxes applicable to the Registrable Securities registered on
behalf of the Holder shall be borne by the Holder.
ARTICLE VII
INDEMNIFICATION AND CONTRIBUTION
7.1 Indemnification by the Company. In the case of each registration
effected by the Company pursuant to this Agreement in which the Holder's
Registrable Securities are included, the Company shall indemnify and hold
harmless the Holder and each party, if any, that controls the Holder within the
meaning of the Securities Act and the Holder's and any such party's directors
and officers against any and all losses, claims, damages or liabilities to which
they or any of them may become subject under the Securities Act or any other
statute or common law, including any amount paid in settlement of any
litigation, commenced or threatened, if such settlement is effected with the
written consent of the Company, and to reimburse them for any reasonable legal
or other reasonable expenses incurred by them in connection with the
investigation of any claims and defenses of any actions, insofar as any such
losses, claims, damages, liabilities or actions arise out of or are based upon
any untrue statement or alleged untrue statement of a material fact contained in
(i) the registration statement, (ii) any preliminary prospectus or final
prospectus contained therein, or (iii) any amendment or supplement thereto or
any document incorporated by reference therein, or the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading; provided, however, that
the indemnification agreement contained in this Section 7.1 shall not (i) apply
to such losses, claims, damages, liabilities or actions of the Holder arising
out of, or based upon, any such untrue statement or alleged untrue statement, or
any such omission or alleged omission, if such statement or omission was made in
reliance upon and in conformity with information furnished to the Company in
writing by the Holder for use in connection with the preparation of the
registration statement or any preliminary prospectus or final prospectus
contained in the registration statement or any such amendment thereof or
supplement thereto or any document incorporated by reference therein, or (ii)
inure to the benefit of any party to the extent such party's claim for
indemnification hereunder arises out of or is based on any violation by such
party of applicable law.
7.2 Indemnification by the Holder. In the case of each registration
effected by the Company pursuant to this Agreement in which the Holder's
Registrable Securities are included, the Holder shall be obligated, in the same
manner and to the same extent as set forth in Section 7.1 above, to indemnify
and hold harmless the Company and each party, if any, who controls the Company
within the meaning of the Securities Act, and the Company's and any such party's
directors and officers, and the underwriters for such offering, and each person,
if any, who controls any such underwriter within the meaning of the Securities
Act, with respect to any untrue statement or alleged untrue statement of a
material fact in, or omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading from, such registration statement or any post-effective amendment
thereof or any preliminary prospectus or final prospectus (as amended or
supplemented, if amended or supplemented as aforesaid) contained in such
registration statement, if such statement or omission was made in reliance upon
and in conformity with information furnished in writing to the Company by such
indemnifying party for use in connection with the preparation of such
registration statement or any preliminary prospectus or final prospectus
contained in such registration statement or any such amendment thereof or
supplement thereto; provided, however, that (x) the indemnification required by
this Section 7.2 shall not apply to amounts paid in settlement of any loss,
claim, damage, liability or expense if settlement is effected without the
consent of the Holder of Registrable Securities, which consent shall not be
unreasonably withheld, and (y) in no event shall the amount of any indemnity
under this Section 7.2 exceed the net proceeds from the applicable offering
received by the Holder.
7.3 Defense of Claims. Each party entitled to indemnification under this
Article VII (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 shall permit the Indemnifying Party to assume the defense of any
such claim or any litigation resulting therefrom; provided, that counsel for the
Indemnifying Party, who shall conduct the defense of such claim or any
litigation resulting therefrom, shall be approved by the Indemnified Party
(whose approval shall not unreasonably be withheld) and the Indemnified Party
may participate in such defense at the Indemnified Party's expense (unless the
Indemnified Party shall have reasonably concluded that there may be a conflict
of interest between the Indemnifying Party and the Indemnified Party in such
action, in which case the fees and expenses of counsel shall be at the expense
of the Indemnifying Party), and provided, further, that the failure of any
Indemnified Party to give notice as provided herein shall not relieve the
Indemnifying Party of its obligations under this Article VII unless, and only to
the extent that, the Indemnifying Party is materially prejudiced thereby. No
Indemnifying Party, in the defense of any such claim or litigation shall, except
with the consent of each Indemnified Party, consent to entry of any judgment or
enter into any settlement which does not include as an unconditional term
thereof the giving by the claimant or plaintiff to such Indemnified Party of a
release from all liability in respect to such claim or litigation. Each
Indemnified Party shall furnish such information regarding itself or the claim
in question as an Indemnifying Party may reasonably request in writing and as
shall be reasonably required in connection with the defense of such claim and
litigation resulting therefrom.
7.4 Contribution. If the indemnification provided for in this Article VII
is held by a court of competent jurisdiction to be unavailable to an Indemnified
Party with respect to any loss, liability, claim, damage or expense referred to
herein, then the Indemnifying Party, in lieu of indemnifying such Indemnified
Party hereunder, shall contribute to the amount paid or payable by such
Indemnified Party as a result of such loss, liability, claim, damage or expense
in such proportion as is appropriate to reflect the relative fault of the
Indemnifying Party on the one hand and of the Indemnified Party on the other
hand in connection with the statements or omissions which resulted in such loss,
liability, claim, damage or expense, as well as any other relevant equitable
considerations. The relative fault of the Indemnifying Party and of the
Indemnified Party shall be determined by reference to, among other things,
whether the untrue (or alleged untrue) statement of a material fact or the
omission (or alleged omission) to state a material fact relates to information
supplied by the Indemnifying Party or by the Indemnified Party and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. Notwithstanding anything in this Section 7.4
to the contrary, in no event shall the Holder's aggregate liability pursuant to
this Agreement exceed the net proceeds from the applicable offering received by
the Holder.
7.5 Limitation. The foregoing indemnity and contribution agreements of the
Company and the Holder are subject to the condition that, insofar as they relate
to any loss, claim, liability or damage arising from any misstatement or
omission made in a preliminary prospectus, but eliminated or remedied in the
amended or supplemented prospectus on file with the SEC at the time the
registration statement in question becomes effective or the amended or
supplemented prospectus is filed with the SEC pursuant to SEC Rule 424(b) (the
"Final Prospectus"), such indemnity or contribution agreement shall not inure to
the benefit of any underwriter or the Holder if a copy of the Final Prospectus
was furnished to the underwriter or the Holder and was not furnished to the
Person asserting the loss, liability, claim or damage at or prior to the time
such action is required by the Securities Act.
ARTICLE VIII
SELECTION OF MANAGING UNDERWRITERS
Subject to the obligations of the Company under agreements existing on the
date hereof, the managing underwriter or underwriters for any offering of
Registrable Securities to be registered pursuant to the terms and conditions
hereof shall be selected by the Company. The Holder may not participate in any
underwritten offering hereunder unless the Holder: (i) agrees to sell its
Registrable Securities on the basis provided in any underwriting arrangements
approved by the Company; (ii) completes and executes powers of attorney,
indemnities, underwriting agreements and other documents required under the
terms of such underwriting arrangements; (iii) complies with all reasonable
requests made by the Company or its counsel with respect to the registration of
the Holder's Registrable Securities, including, without limitation, providing
such information regarding the Holder and the distribution of the Holder's
Registrable Securities.
ARTICLE IX
RULE 144 REPORTING
With a view to making available the benefits of certain rules and
regulations of the SEC which may at any time permit the sale of the Registrable
Securities to the public without registration, the Company agrees to use its
best efforts to:
(a) Make and keep public information available, as those terms are
understood and defined in Rule 144 under the Securities Act; and
(b) File with the SEC in a timely manner all reports and other
documents required of The Company under the Securities Act and the Exchange Act.
ARTICLE X
TERMINATION
This Agreement shall terminate (except with respect to Article VII and
this Article X, which are intended to survive any termination of this Agreement)
on the seventh (7th) anniversary of the date hereof.
ARTICLE XI
MISCELLANEOUS
11.1 No Waiver. No failure or delay on the part of any party in the
exercise of any power, right or privilege hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such power, right or
privilege preclude other or further exercise thereof or of any other right,
power or privilege.
11.2 Entire Agreement; Amendment. This Agreement constitutes the entire
understanding of the parties hereto with respect to the subject matter hereof.
This Agreement may be amended only by an agreement in writing executed by the
Company and the Holder.
11.3 Severability. If any provision of this Agreement is held by a court
of competent jurisdiction to be unenforceable, the remaining provisions shall
remain in full force and effect. It is declared to be the intention of the
parties hereto that they would have executed the remaining provisions without
including any that may be declared unenforceable.
11.4 Headings; References. Article and Section headings are for
convenience only and will not control or affect the meaning or construction of
any provision of this Agreement. Any references to specific Articles or Sections
shall be references to Articles or Sections of this Agreement unless expressly
stated otherwise.
11.5 Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed to be an original, but all of which together shall
constitute the same Agreement, and any signature page of any such counterpart,
or any electronic facsimile thereof, may be attached or appended to any other
counterpart to complete a fully executed counterpart of this Agreement, and any
telecopy or other facsimile transmission of any signature shall be deemed an
original.
11.6 Notices. All notices and other communications required or permitted
hereunder shall be in writing, shall be effective when given, and shall in any
event be deemed to be given upon receipt or, if earlier, (a) five (5) days after
deposit with the U.S. Postal Service or other applicable postal service, if
delivered by first class mail, postage prepaid, (b) upon delivery, if delivered
by hand, (c) one (1) business day after the business day of deposit with Federal
Express or similar overnight courier, freight prepaid or (d) one (1) business
day after the business day of facsimile transmission, if delivered by facsimile
transmission with copy by first class mail, postage prepaid, and shall be
addressed to the address of such party as set forth beneath such party's
signature hereto, or at such other address as a party may designate by ten days'
advance written notice to the other parties hereto pursuant to the provisions of
this Section 11.6.
11.7 Successors and Assigns; Assignment. This Agreement shall bind the
successors and assigns of the parties hereto, and shall inure to the benefit of
any successor or assign of any of the parties hereto. This Agreement may not be
assigned by any party hereto without the prior written consent of the other
party or parties; provided, however, that Holder may assign its rights and
obligations under this Agreement (other than under Article II) without such
consent to any transferee of Registrable Securities who is an affiliate of
SciGames, provided such affiliate agrees to be bound by the terms of this
Agreement as a "Holder."
11.8 Governing Law. The validity and effect of this Agreement and the
rights and obligations of the parties hereto shall be governed by and construed
in accordance with the laws of the State of Delaware.
IN WITNESS WHEREOF, the undersigned have caused their respective duly
authorized representatives to execute this Agreement as of the day and year
first above written.
"Company"
ELECTRONIC GAME CARD, INC.
By: /s/ Xxxx Xxxxxxx
------------------------------------
Name: Xxxx Xxxxxxx
Title: President
Address: Electronic Game Card, Inc.
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000-0000
"SciGames"
SCIENTIFIC GAMES INTERNATIONAL, INC.
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Senior Vice President
Address: Scientific Games International, Inc.
