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[Execution Copy]
AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
BY AND AMONG
SKYLINE MULTIMEDIA ENTERTAINMENT, INC.,
PROSPECT STREET NYC DISCOVERY FUND, L.P.,
AND
BANK OF NEW YORK, AS TRUSTEE
FOR THE EMPLOYEES RETIREMENT PLAN
OF THE BROOKLYN UNION GAS COMPANY
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AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT, dated as of
December 20, 1996, by and among SKYLINE MULTIMEDIA ENTERTAINMENT, INC., a New
York corporation (the "Company"), PROSPECT STREET NYC DISCOVERY FUND, L.P., a
Delaware limited partnership ("NYCDF") and BANK OF NEW YORK, AS TRUSTEE FOR THE
EMPLOYEES RETIREMENT PLAN OF THE BROOKLYN UNION GAS COMPANY ("Bug").
RECITALS
WHEREAS, in order to induce NYCDF to enter into that certain Stock
Purchase Agreement between NYCDF and the Company dated June 30, 1995, the
Company agreed to provide NYCDF with the registration rights set forth in the
Registration Rights Agreement dated as of June 30, 1995 (the "Existing
Registration Rights Agreement");
WHEREAS, in order to induce NYCDF and Bug to enter into that certain
Senior Credit Agreement by and among the parties hereto, dated as of the date
hereof (the "Credit Agreement"), the Company has agreed to amend and restate the
Existing Registration Rights Agreement in order to provide NYCDF and Bug with
the registration rights set forth in this Agreement; and
WHEREAS, capitalized terms used and not otherwise defined herein
have the respective meanings ascribed thereto in Article X;
NOW, THEREFORE, the parties hereto hereby agree as follows:
ARTICLE I
DEMAND REGISTRATIONS
1.1 REQUESTS FOR REGISTRATION. At any time and from time to time each of the
Required NYCDF Investors and the Required Bug Investors, acting alone or
jointly, may request in writing registration under the Securities Act of all or
part of their Registrable Securities (i) on Form S-1 or any similar long-form
Registration Statement ("Long-Form Registrations"), or (ii) on Form S-2 or S-3
or any similar short-form Registration Statement ("Short-Form Registrations") if
the Company qualifies to use such short form. All registrations requested
pursuant to this Section 1.1 are referred to herein as "Demand Registrations."
Demand Registrations will be Short-Form Registrations whenever the Company is
qualified to use any applicable short form. The Company will use its best
efforts to make Short-Form Registrations available for the sale of Registrable
Securities. Within ten days after receipt of any such request, the Company will
give written notice of such request to all other holders of Registrable
Securities. Thereafter, the Company will use its best efforts to effect the
registration under the
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Securities Act on the form requested by the Required NYCDF Investors or the
Required Bug Investors, as the case may be, and will include in such
registration all Registrable Securities with respect to which the Company has
received written requests for inclusion therein within 30 days after the receipt
of the Company's notice, subject to the provisions of Section 1.4. The Required
NYCDF Investors or the Required Bug Investors, as the case may be, after
requesting a Demand Registration under this Article I may, at any time prior to
the effective date of the Registration Statement relating to such registration,
revoke such request by providing written notice to the Company.
1.2 NUMBER OF DEMAND REGISTRATIONS; EXPENSES. Subject to Section
1.3, the Company shall have no obligation to effect more than four Demand
Registration Statements at the request of the Required NYCDF Investors, nor more
than one Demand Registration Statement at the request of the Required Bug
Investors . The Company will pay all Registration Expenses in connection with
any Demand Registration, including any Demand Registration Statement that is not
deemed to be effected pursuant to the provisions of Section 1.3 hereof.
1.3 EFFECTED REGISTRATION STATEMENT. A registration demanded
pursuant to Section 1.1 of this Agreement shall not be deemed to have been
effected (i) unless a Registration Statement with respect thereto has been
declared effective by the Commission and the Company has complied in all
material respects with its obligations under this Agreement with respect
thereto, (ii) if after it has become effective, such registration is interfered
with by any stop order, injunction or other order or requirement of the
Commission or other governmental agency or court for any reason, and, as a
result thereof, the Registrable Securities covered thereby have not been sold,
(iii) if the conditions to closing specified in the purchase agreement or
underwriting agreement entered into in connection with such registration are not
satisfied by reason of a failure by or inability of the Company to satisfy any
thereof, or the occurrence of an event outside the control of the holders of
Registrable Securities, (iv) if holders of Registrable Securities are not able
to register and sell at least 90% of the amount of Registrable Securities
requested to be included in such registration, or (v) the Registration Statement
does not remain effective for a period of at least 180 days beyond the effective
date thereof or, with respect to an underwritten offering of Registrable
Securities, until 45 days after the commencement of the distribution by the
holders of the Registrable Securities included in such Registration Statement.
If a registration requested pursuant to this Article I is deemed not to have
been effected as provided in this Section 1.3, then the Company shall continue
to be obligated to effect the number of Demand Registrations set forth in
Section 1.2 without giving effect to such requested registration.
1.4 PRIORITY ON DEMAND REGISTRATIONS. The Company will not include
in any Demand Registration any securities which are not Registrable Securities
without the written consent of the holders of a majority (by number of shares)
of Registrable Securities on a Diluted Basis requested to be included in such
Demand Registration. If other securities are permitted to be included in a
Demand Registration which is an underwritten offering and the managing
underwriters advise the Company in writing that in their opinion the number of
Registrable
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Securities and other securities requested to be included exceeds the number of
Registrable Securities and other securities which can be sold in such offering
within a price range acceptable to the holders of a majority (by a number of
shares) of Registrable Securities on a Diluted Basis requested to be included in
such Demand Registration, the Company will include in such registration, to the
exclusion of any securities which are not Registrable Securities, the number of
Registrable Securities requested to be included which in the opinion of such
underwriters can be sold, pro rata among the holders of Registrable Securities
on the basis of the amount of Registrable Securities on a Diluted Basis
requested to be offered thereby.
1.5 FORM OF OFFERING; SELECTION OF UNDERWRITERS. If the holders of a
majority (by number of shares) of Registrable Securities requested to be
included in such Demand Registration so elect, the offering of such Registrable
Securities pursuant to such Demand Registration shall be (x) underwritten and/or
(y) in the form of a "shelf" registration. The holders of a majority (by number
of shares) of Registrable Securities requested to be included in such Demand
Registration will have the right to select the underwriters and the managing
underwriter to administer any underwritten Demand Registration.
1.6 OTHER REGISTRATION RIGHTS. Except as provided in this Agreement,
without the written consent of the Required Holders, the Company will not grant
to any Person the right to request the Company to register any equity securities
of the Company, or any securities convertible, exchangeable or exercisable for
or into such securities, other than piggyback registration rights entitling the
holder thereof to participate in Company-initiated registrations, subject to the
prior rights of holders of Registrable Securities.
ARTICLE II
PIGGY-BACK REGISTRATIONS
2.1 RIGHT TO PIGGY-BACK. Whenever the Company proposes to register
any of its securities under the Securities Act (other than pursuant to a Demand
Registration), and the registration form to be used may be used for the
registration of Registrable Securities (a "Piggy-back Registration"), the
Company will give prompt written notice (in any event within three Business Days
after its receipt of notice of any exercise of other demand registration rights)
to all holders of Registrable Securities of its intention to effect such a
registration and will include in such registration all Registrable Securities
with respect to which the Company has received written requests for inclusion
therein within 30 days after the receipt of the Company's notice. Such requests
for inclusion shall specify the number of Registrable Securities intended to be
disposed of and the intended method of distribution thereof.
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2.2 PIGGY-BACK EXPENSES. The Registration Expenses of the holders of
Registrable Securities will be paid by the Company in all Piggy-back
Registrations.
2.3 PRIORITY ON COMPANY REGISTRATIONS. If a Piggy-back Registration
is an underwritten registration on behalf of the Company, and the managing
underwriters advise the Company in writing that in their good faith opinion the
number of securities requested to be included in such registration exceeds the
number which can be sold in such offering, the Company will include in such
registration (i) first, the securities the Company proposes to sell, (ii)
second, the Registrable Securities requested to be included in such
registration, provided, that if the managing underwriters in good faith
determine that a lower number of Registrable Securities should be included, then
the Company shall be required to include in the underwriting only that lower
number of Registrable Securities, and the holders of Registrable Securities who
have requested registration shall participate in the underwriting pro rata based
upon their total ownership of Registrable Securities on a Diluted Basis, and
(iii) third, if all Registrable Securities requested to be included in such
registration are included in the registration, other securities requested to be
included in such registration.
2.4 PRIORITY ON STOCKHOLDER REGISTRATIONS. If a Piggy-back
Registration is not a Demand Registration pursuant to Article I but is an
underwritten secondary registration on behalf of holders of the Company's
securities, and the managing underwriters advise the Company in writing that in
their good faith opinion the number of securities requested to be included in
such registration exceeds the number which can be sold in such offering, the
Company will include in such registration (i) first, the securities requested to
be included therein by the holders requesting such registration, (ii) second,
the Registrable Securities requested to be included in such registration,
provided, that if the managing underwriters in good faith determine that a lower
number of Registrable Securities should be included, then the Company shall be
required to include in the underwriting only that lower number of Registrable
Securities, and the holders of Registrable Securities who have requested
registration shall participate in the underwriting pro rata based upon their
total ownership of Registrable Securities on a Diluted Basis, and (iii) if all
Registrable Securities requested to be included in such registration are
included in the registration, third, other securities requested to be included
in such registration. Notwithstanding the foregoing, if Xxxxxx Xxxxxx is among
the holders requesting registration, his securities shall be included for the
priority purposes of this Section 2.4 as covered by the reference to "other
securities" in clause (iii) of the preceding sentence.
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ARTICLE III
OTHER REGISTRATIONS
3.1 OTHER REGISTRATIONS. If the Company has previously filed a
Registration Statement with respect to Registrable Securities pursuant to
Article I or II of this Agreement, and if such previous registration has not
been withdrawn or abandoned, the Company will not file or cause to be effected
any other registration of any of its equity securities or securities
convertible, exchangeable or exercisable for or into its equity securities under
the Securities Act (except on Form S-4 or Form S-8 or any successor form),
whether on its own behalf or at the request of any holder or holders of such
securities, until the earlier of (i) the date on which the Registrable
Securities included therein have been sold, or (ii) 6 months from such effective
date.
ARTICLE IV
REGISTRATION PROCEDURES
Whenever the holders of Registrable Securities have requested that
any Registrable Securities be registered pursuant to this Agreement, the Company
will use its best efforts to effect the registration and the sale of such
Registrable Securities in accordance with the intended method of disposition
thereof as quickly as practicable, and pursuant thereto the Company will as
expeditiously as possible (or, in the case of clause (q) below, will not):
(a) promptly prepare and file with the Commission a Registration
Statement with respect to such Registrable Securities (such Registration
Statement to include all information which the holders of the Registrable
Securities to be registered thereby shall reasonably request) and use its best
efforts to cause such Registration Statement to become and remain effective
until the completion of the distribution contemplated thereby; provided that at
least ten days before filing a Registration Statement or Prospectus or any
amendments or supplements thereto, the Company will (i) furnish to counsel
selected by the Required Holders or if no holders of Registrable Securities are
participating in such registration, holders of a majority (by number of shares)
of the securities covered by such Registration Statement, copies of all such
documents proposed to be filed, and the Company shall not file any thereof to
which such counsel shall have reasonably objected on the grounds that such
document does not comply in all material respects with the requirements of the
Securities Act or of the rules or regulations thereunder, and (ii) notify each
holder of Registrable Securities covered by such Registration Statement of (x)
any request by the Commission to amend such Registration Statement or amend or
supplement any Prospectus, or (y) any stop order issued or threatened by the
Commission, and take all reasonable actions required to prevent the entry of
such stop order or to remove it if entered;
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(b) (i) prepare and file with the Commission such amendments and
supplements to such Registration Statement and the Prospectus used in connection
therewith as may be necessary to keep such Registration Statement effective for
a period of not less than 180 days (except that such 180 day period shall be
extended (x) by the length of any period that a stop order or similar proceeding
is in effect which prohibits the distribution of the Registrable Securities, and
(y) by the number of days during the period from and including the date on which
each seller of Registrable Securities shall have received a notice delivered
pursuant to clause (f) below until the date when such seller shall have received
a copy of the supplemented or amended Prospectus contemplated by clause (f)
below), and (ii) comply with the provisions of the Securities Act with respect
to the disposition of all securities covered by such Registration Statement
during such period in accordance with the intended methods of disposition by the
sellers thereof set forth in such Registration Statement;
(c) furnish to each seller of Registrable Securities, without
charge, such number of conformed copies of such Registration Statement, each
amendment and supplement thereto, the Prospectus included in such Registration
Statement (including each preliminary Prospectus and, in each case including all
exhibits) and such other documents as such seller may reasonably request in
order to facilitate the disposition of the Registrable Securities owned by such
seller;
(d) use its best efforts to register or qualify such Registrable
Securities under such other securities or "blue sky" laws of such jurisdictions
as any seller thereof shall reasonably request, to keep such registration or
qualification in effect for so long as such Registration Statement remains in
effect and do any and all other acts and things which may be reasonably
necessary or advisable to enable such seller to consummate the disposition in
such jurisdictions of the Registrable Securities owned by such seller, provided,
however, that the Company will not be required to (i) qualify generally to do
business in any jurisdiction where it would not otherwise be required to qualify
but for this clause (d), (ii) subject itself to taxation in any such
jurisdiction or (iii) consent to general service of process in any such
jurisdiction;
(e) furnish to each seller of Registrable Securities a signed copy,
addressed to such seller (and the underwriters, if any), of an opinion of
counsel for the Company dated the effective date of such Registration Statement
(and, if such Registration Statement includes an underwritten public offering,
dated the date of the closing under the underwriting agreement), reasonably
satisfactory in form and substance to such seller, covering substantially the
same matters with respect to such Registration Statement (and the Prospectus
included therein) as are customarily covered in opinions of issuer's counsel
delivered to the underwriters in underwritten public offerings, and such other
legal matters as the seller (or the underwriters, if any) may reasonably
request;
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(f) notify each seller of Registrable Securities, at a time when a
Prospectus relating thereto is required to be delivered under the Securities
Act, of the happening of any event known to the Company as a result of which the
Prospectus included in such Registration Statement, as then in effect, contains
an untrue statement of a material fact or omits to state any fact required to be
stated therein or necessary to make the statements therein not misleading in
light of the circumstances under which they were made, and, at the request of
any such seller, the Company will prepare and furnish such seller 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 Registrable
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;
(g) cause all such Registrable Securities to be listed on each
securities exchange on which similar securities issued by the Company are then
listed and on any Securities Exchange or National Automated Quotation System
requested by the holders of a majority (by number of shares) of such Registrable
Securities on a Diluted Basis, provided that the Company then meets or is
reasonably capable of meeting the eligibility requirements for such exchange or
system and such exchange or system is reasonably satisfactory to the managing
underwriters, and to enter into such customary agreements as may be required in
furtherance thereof, including, without limitation, listing applications and
indemnification agreements in customary form;
(h) provide a transfer agent and registrar for all such Registrable
Securities not later than the effective date of such Registration Statement;
(i) enter into such customary arrangements and agreements and take
all such other actions as the holders of a majority (by number of shares) on a
Diluted Basis of the Registrable Securities being sold or the underwriters, if
any, reasonably request in order to expedite or facilitate the disposition of
such Registrable Securities.
(j) in connection with an underwritten offering, participate, to the
extent reasonably requested by the managing underwriters for the offering or the
holders of the Registrable Securities being sold, in customary efforts to sell
the securities in the offering, including, without limitation, participating in
"road shows";
(k) make available for inspection by any seller of Registrable
Securities, any underwriter participating in any disposition pursuant to such
Registration Statement and any attorney, accountant or other agent retained by
any such seller or underwriter, all financial and other records, pertinent
corporate documents and properties of the Company, and cause the Company's
officers, directors, employees and independent accountants to supply all
information reasonably requested by any such seller, underwriter, attorney,
accountant or agent in connection
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with such Registration Statement to enable them to conduct a reasonable
investigation within the meaning of the Securities Act;
(l) subject to other provisions hereof, use its best efforts to
cause such Registrable Securities covered by such Registration Statement to be
registered with or approved by such other governmental agencies or authorities
or self-regulatory organizations as may be necessary to enable the sellers
thereof to consummate the disposition of such Registrable Securities;
(m) use its best efforts to obtain a "comfort" letter, dated the
effective date of such Registration Statement (and, if such registration
includes an underwritten offering, dated the date of the closing under the
underwriting agreement), signed by the independent public accountants who have
certified the Company's financial statements, addressed to each seller, and to
the underwriters, if any, covering substantially the same matters with respect
to such Registration Statement (and the Prospectus included therein) and with
respect to events subsequent to the date of such financial statements, as are
customarily covered in accountants' letters delivered to the underwriters in
underwritten public offerings of securities and such other financial matters as
such seller (or the underwriters, if any) may reasonably request;
(n) otherwise use its best efforts to comply with all applicable
rules and regulations of the Commission and make available to its
securityholders, in each case as soon as practicable, an earnings statement
covering a period of at least twelve months, beginning with the first month
after the effective date of the Registration Statement, which earnings statement
shall satisfy the provisions of Section 11(a) of the Securities Act;
(o) permit any holder of Registrable Securities, which holder, in
the sole judgment, exercised in good faith, of such holder might be deemed to be
a controlling person of the Company (within the meaning of the Securities Act or
the Exchange Act) to participate in the preparation of any Registration
Statement covering such holder's Registrable Securities and to include therein
material, furnished to the Company in writing, which in the reasonable judgment
of such holder should be included and which is reasonably acceptable to the
Company;
(p) promptly notify the holders of the Registrable Securities of the
issuance of any stop order by the Commission or the issuance by any state
securities commission or other regulatory authority of any order suspending the
qualification or exemption from qualification of any of the Registrable
Securities under state securities or "blue sky" laws, and use every reasonable
effort to obtain the lifting at the earliest possible time of any stop order
suspending the effectiveness of any Registration Statement or of any such other
order;
(q) at any time file or make any amendment to a Registration
Statement, or any amendment of or supplement to a Prospectus (including
amendments of the documents incorporated by reference into the Prospectus), of
which each seller of Registrable Securities or the managing underwriters shall
not have previously been advised and furnished a copy or to
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which the sellers of Registrable Securities, the managing underwriters, or
counsel for such sellers or for the underwriters shall reasonably object;
(r) make such representations and warranties (subject to appropriate
disclosure schedule exceptions) to sellers of Registrable Securities and the
underwriters, if any, in form, substance and scope as are customarily made by
issuers to underwriters and selling holders, as the case may be, in underwritten
public offerings of substantially the same type;
(s) during the period when the Prospectus is required to be
delivered under the Securities Act, promptly file all documents required to be
filed with the Commission pursuant to Sections 13(a), 13(c), 14 or 15(d) of the
Exchange Act;
(t) if any proposed registration statement refers to any seller by
name or otherwise as the holder of any securities of the Company then (whether
or not, in the sole judgment, exercised in good faith, of such seller, such
seller is or might be deemed to be a controlling person of the Company), (i) the
Company shall be required at the request of such seller to insert therein
language, in form and substance reasonably satisfactory to such seller, the
Company and the managing underwriters, to the effect that the holding by such
seller of such securities is not to be construed as a recommendation by such
seller of the investment quality of the Company's securities covered thereby and
that such holding does not imply that such seller will assist in meeting any
future financial requirements of the Company, or (ii) in the event that such
reference to such seller by name or otherwise is not required by the Securities
Act, any similar Federal or state statute, or any rule or regulation of any
other regulatory body having jurisdiction over the offering, then in force, the
Company shall be required at the request of such seller to delete the reference
to such seller.
ARTICLE V
REGISTRATION EXPENSES
5.1 REGISTRATION EXPENSES. All expenses incident to the Company's
performance of or compliance with this Agreement, including without limitation,
all registration and filing fees; fees and expenses of compliance with
securities or blue sky laws (including the fees and expenses of counsel in
connection with blue sky qualifications of the Registrable Securities); printing
expenses; messenger and delivery expenses; fees and disbursements of counsel for
the Company, one firm of counsel for the selling holders, and all independent
public accountants, underwriters (excluding discounts and commissions) and other
Persons retained by the Company; the Company's internal expenses (including,
without limitation, all salaries and expenses of its officers and employees
performing legal or accounting duties); the expense of any annual audit or
quarterly review; the expense of any liability insurance; and the expenses and
fees for listing the securities to be registered on each securities exchange or
national market
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system on which similar securities issued by the Company are then listed (all of
such expenses being herein called the "Registration Expenses") will be paid for
by the Company.
5.2 SELLERS' EXPENSES. The Company shall have no obligation to pay
any underwriting discounts or commissions attributable to the sale of Registered
Securities, which expenses will be borne by all sellers of securities included
in such registration in proportion to the aggregate selling price of the
securities to be so registered by each seller.
ARTICLE VI
UNDERWRITTEN OFFERINGS
6.1 DEMAND UNDERWRITTEN OFFERINGS. If requested by the underwriters
for any underwritten offerings of Registrable Securities pursuant to a Demand
Registration, the Company will enter into an underwriting agreement with such
underwriters for such offering, such agreement to be satisfactory in substance
and form to a majority (by number of shares) of holders of Registrable
Securities on a Diluted Basis being offered and the underwriters, and to contain
such representations and warranties by the Company and such other terms as are
generally included in agreements of this type, including, without limitation,
indemnities customarily included in such agreements. The holders of the
Registrable Securities will cooperate with the Company in the negotiation of the
underwriting agreement. The holders of Registrable Securities to be distributed
by such underwriters may be parties to such underwriting agreement and such
holders may, at their option, require that any or all of the representations and
warranties by, and the other agreements on the part of, the Company to and for
the benefit of such underwriters shall also be made to and for the benefit of
such holders of Registrable Securities and that any or all of the conditions
precedent to the obligations of such underwriters under such underwriting
agreement be conditions precedent to the obligations of such holders of
Registrable Securities. The Company shall cooperate with any such holder of
Registrable Securities in order to limit any representations or warranties to,
or agreements with, the Company or the underwriters to be made by such holder
only to those representations, warranties or agreements regarding such holder,
such holder's Registrable Securities and such holder's intended method of
distribution and any other representation required by law.
6.2 INCIDENTAL UNDERWRITTEN OFFERINGS. If the Company at any time
proposes to register any of its securities under the Securities Act as
contemplated by Article II of this Agreement and such securities are to be
distributed by or through one or more underwriters, the Company will, if
requested by any holder of Registrable Securities as provided in Article II of
this Agreement, arrange for such underwriters to include all the Registrable
Securities to be offered and sold by such holder, subject to the limitations set
forth in Article II hereof, among the securities to be distributed by such
underwriters. The holders of Registrable Securities to be distributed by such
underwriters shall be parties to the underwriting agreement between the Company
and such underwriters, and may, at their option, require that any or all of the
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representations and warranties by, and the other agreements on the part of, the
Company to and for the benefit of such underwriters shall also be made to and
for the benefit of such holders of Registrable Securities and that any or all of
the conditions precedent to the obligations of such underwriters under such
underwriting agreement be conditions precedent to the obligations of such
holders of Registrable Securities. The Company shall cooperate with any such
holder of Registrable Securities in order to limit any representations or
warranties to, or agreements with, the Company or the underwriters to be made by
such holder only to those representations, warranties or agreements regarding
such holder, such holder's Registrable Securities and such holder's intended
method of distribution and any other representation required by law.
ARTICLE VII
INDEMNIFICATION
7.1 INDEMNIFICATION BY THE COMPANY. The Company agrees to indemnify
and hold harmless, to the fullest extent permitted by law, each holder of any
Registrable Securities covered by any Registration Statement referred to herein,
its general partners, limited partners, officers, directors, employees and
agents, and each Person, if any, who controls such holder within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act, together
with the general partners, limited partners, officers, directors, employees and
agents of such controlling Person (collectively, the "Controlling Person"), from
and against any loss, claim, damage, liability, reasonable attorneys' fees, cost
or expense and reasonable costs and expenses of investigating and defending any
such claim and any action in respect thereof (collectively, the "Damages") to
which such holder, its general partners, limited partners, officers, directors,
employees and agents, and any such Controlling Person may become subject under
the Securities Act or otherwise, insofar as such Damages (or proceedings in
respect thereof) arise out of, or are based upon, any untrue statement or
alleged untrue statement of a material fact contained in any Registration
Statement or Prospectus or any preliminary Prospectus, or arises out of, or are
based upon, any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading in light of the circumstances in which they were made, except insofar
as the same are based upon information furnished in writing to the Company by a
holder expressly for use therein, and shall reimburse each holder, its general
partners, limited partners, officers, directors, employees and agents, and each
such Controlling Person for any legal and other expenses reasonably incurred by
that holder, its general partners, limited partners, officers, directors,
employees and agents, or any such Controlling Person in investigating or
defending or preparing to defend against any such Damages or proceedings;
provided, however, that the Company shall not be liable to any holder or other
indemnitee to the extent that any such Damages arise out of or are based upon an
untrue statement or omission made in any preliminary Prospectus if (i) such
holder or other indemnitee failed to send or deliver a copy of the final
Prospectus with or prior to the delivery of written confirmation of the sale by
such holder to the Person asserting the claim from which such Damages arise, and
(ii) the final Prospectus would have corrected such untrue
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statement or such omission. Such indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf of such holder or any such
general partners, limited partners, officers, directors, agents, or any
Controlling Person and shall survive the transfer of such securities by such
holder.
7.2 INDEMNIFICATION BY HOLDERS. In connection with any Registration
Statement in which a holder of Registrable Securities is participating, each
such selling holder agrees, as to itself, to indemnify and hold harmless (in the
same manner and to the same extent as set forth in Section 7.1), to the extent
permitted by law, the Company, its officers, directors, employees and agents and
each person, if any, who controls the Company within the meaning of Section 15
of the Securities Act or Section 20 of the Exchange Act, together with the
general partners, limited partners, officers, directors, employees and agents of
such controlling Person, with respect to any statement or alleged statement in
or omission or alleged omission from such Registration Statement or Prospectus,
or any amendment or supplement thereto, or any preliminary Prospectus, if such
statement or alleged statement or omission or alleged omission was made about
such holder in reliance upon and in conformity with written information
furnished to the Company by or on behalf of such holder, specifically stating
that it is for use in the preparation of such Registration Statement or
Prospectus. Such indemnity shall remain in full force and effect regardless of
any investigation made by or on behalf of the Company or any of its directors,
officers or controlling Persons and shall survive the transfer of such
securities by such holder. With respect to each claim pursuant to this Section
7.2, each such holder's maximum liability under this Section shall be limited to
an amount equal to the net proceeds actually received by such holder (after
deducting any underwriting discount and expenses) from the sale of Registrable
Securities being sold pursuant to such Registration Statement or Prospectus by
such holder.
7.3 CONDUCT OF INDEMNIFICATION PROCEEDINGS. Promptly after receipt
by an indemnified party hereunder of written notice of the commencement of any
action or proceeding involving a claim referred to in Section 7.1 or Section 7.2
of this Agreement, such indemnified party will, if a claim in respect thereof is
to be made against an indemnifying party, give written notice to the latter of
the commencement of such action; provided, that the failure of any indemnified
party to give notice as provided herein shall not relieve the indemnifying party
of its obligations under Section 7.1 or Section 7.2 of this Agreement except to
the extent that the indemnifying party is actually prejudiced by such failure to
give notice. In case any such action is brought against an indemnified party,
the indemnifying party will be entitled to participate in and to assume the
defense thereof, jointly with any other indemnifying party similarly notified,
to the extent that it may wish, with counsel reasonably satisfactory to such
indemnified party, and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party will not be liable to such indemnified party for any legal or
other expenses subsequently incurred by the latter in connection with the
defense thereof, unless in such indemnified party's reasonable judgment a
conflict of interest between such indemnified and indemnifying parties may exist
in respect of such claim, in which case the indemnifying party shall not be
liable for the fees and expenses of (i) more than one counsel for
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all holders of Registrable Securities, selected by the Required Holders, or (ii)
more than one counsel for the Company, in each case in connection with any one
action or separate but similar or related actions. An indemnifying party who is
not entitled to, or elects not to, assume the defense of a claim will not be
obligated to pay the fees and expenses of more than one counsel for all parties
indemnified by such indemnifying party with respect to such claim, unless in the
reasonable judgment of any indemnified party a conflict of interest may exist
between such indemnified party and any other of such indemnified parties with
respect to such claim, in which event the indemnifying party shall be obligated
to pay the fees and expenses of such additional counsel or counsels.
Notwithstanding anything to the contrary set forth herein, and without limiting
any of the rights set forth above, in any event any party shall have the right
to retain, at its own expense, counsel with respect to the defense of a claim.
The indemnifying party will not, without the prior written consent of each
indemnified party, settle or compromise or consent to the entry of any judgment
in any pending or threatened claim, action, suit or proceeding in respect of
which indemnification may be sought hereunder (whether or not such indemnified
party or any Person who controls such indemnified party is a party to such
claim, action, suit or proceeding), unless such settlement, compromise or
consent includes an unconditional release of such indemnified party from all
liability arising out of such claim, action, suit or proceeding and such
settlement, compromise or consent involves only the payment of money and such
money is actually paid by the indemnifying party. Whether or not the defense of
any claim or action is assumed by the indemnifying party, such indemnifying
party will not be subject to any liability for any settlement made without its
consent, which consent will not be unreasonably withheld.
7.4 INDEMNITY IN UNDERWRITING AGREEMENT. The Company and each holder
of Registrable Securities requesting registration shall provide for the
foregoing indemnity (with appropriate modifications) in any underwriting
agreement with respect to any required registration or other qualification of
securities under any Federal or state law or regulation of any governmental
authority other than the Securities Act.
7.5 CONTRIBUTION. If the indemnification provided for in Sections
7.1 and 7.2 of this Agreement are unavailable or insufficient to hold harmless
an indemnified party under such Sections , then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a result
of the losses, claims, damages or liabilities referred to in Section 7.1 or
Section 7.2 of this Agreement in such proportion as is appropriate to reflect
the relative fault of the indemnifying party on the one hand, and the
indemnified party on the other, in connection with statements or omissions which
resulted in such losses, liabilities, claims, damages or expenses, as well as
any other relevant equitable considerations, including, without limitation, the
relative benefits received by each party from the offering of the securities
covered by such Registration Statement, the parties' relative knowledge and
access to information concerning the matter with respect to which the claim was
asserted and the opportunity to correct and prevent any statement or omission.
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 the indemnifying party or the indemnified party and the parties'
relative intent, knowledge, access to
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information and opportunity to correct or prevent such untrue statements or
omission. The parties hereto agree that it would not be just and equitable if
contributions pursuant to this Section 7.5 were to be determined by pro rata or
per capita allocation (even if the underwriters were treated as one entity for
such purpose) or by any other method of allocation which does not take account
of the equitable considerations referred to in the first sentence of this
Section 7.5. The amount paid by an indemnified party as a result of the losses,
claims, damages or liabilities referred to in the first sentence of this Section
7.5 shall be deemed to include any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any
action or claim (which shall be limited as provided in Section 7.3 of this
Agreement if the indemnifying party has assumed the defense of any such action
in accordance with the provisions thereof) which is the subject of this Section
7.5. Promptly after receipt by an indemnified party under this Section 7.5 of
notice of the commencement of any action against such party in respect of which
a claim for contribution may be made against an indemnifying party under this
Section 7.5, such indemnified party shall notify the indemnifying party in
writing of the commencement thereof if the notice specified in Section 7.3 of
this Agreement has not been given with respect to such action; provided, that
the omission to so notify the indemnifying party shall not relieve the
indemnifying party from any liability which it may otherwise have to any
indemnified party under this Section 7.5, except to the extent that the
indemnifying party is actually prejudiced by such failure to give notice. The
Company and each holder of Registrable Securities agrees with each other and the
underwriters of the Registrable Securities, if requested by such underwriters,
that (i) the underwriters' portion of such contribution shall not exceed the
underwriting discount and (ii) that the amount of such contribution shall not
exceed an amount equal to the net proceeds actually received by such
indemnifying party from the sale of Registrable Securities in the offering to
which the losses, liabilities, claims, damages or expenses of the indemnified
parties relate. 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.
7.6 PAYMENT. The indemnification required by this Article VII shall
be made by periodic payments of the amount thereof during the course of the
investigation or defense, as and when bills are received or expense, loss,
damage or liability is incurred.
ARTICLE VIII
RULE 144
The Company covenants that it will file the reports required to be
filed by it under the Securities Act and the Exchange Act and the rules and
regulations adopted by the Commission thereunder (or, if the Company is not
required to file such reports, it will, upon the request of any holder of
Registrable Securities, make publicly available other information), and it will
take such further action as any holder of Registrable Securities may reasonably
request, all to the extent required from time to time to enable such holder to
sell shares of Registrable
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Securities without registration under the Securities Act within the limitation
of the exemption provided by (i) Rule 144 under the Securities Act, as such Rule
may be amended from time to time, or (ii) any similar rule or regulation
hereafter adopted by the Commission. Upon the request of any holder of
Registrable Securities, the Company will deliver to such holder a written
statement as to whether it has complied with such requirements.
ARTICLE IX
PARTICIPATION IN UNDERWRITTEN REGISTRATIONS
No Person may participate in any underwritten registration hereunder
unless such Person (i) agrees to sell such Person's securities on the basis
provided in any underwriting arrangements approved by the Person or Persons
entitled hereunder to approve such arrangements and (ii) completes and executes
all questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents required under the terms of such underwriting arrangements and
consistent with the provisions of this Agreement.
ARTICLE X
DEFINITIONS
10.1 As used in this Agreement, the following defined terms shall have the
meanings set forth below:
"BUG INVESTORS" means Bug, and each of its direct and indirect
transferees, so long as such Person shall be a holder of Registrable Securities.
"BUSINESS DAY" means a day other than Saturday, Sunday or any day on
which banks located in the State of New York are authorized or obligated to
close.
"COMMISSION" means the U.S. Securities and Exchange Commission.
"COMMON STOCK" means the Common Stock, par value $.001 per share of
the Company, any securities into which such Common Stock shall have been changed
or any securities resulting from any reclassification or recapitalization of
such Common Stock, and all other securities of any class or classes (however
designated) of the Company the holders of which have the right, without
limitation as to amount, after payment on any securities entitled to a
preference on dividends or other distributions upon any dissolution, liquidation
or winding up, either to all or to a share of the balance of payments upon such
dissolution, liquidation or winding up.
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"DILUTED BASIS" means with respect to the calculation of the number
of shares of Common Stock (i) all shares of Common Stock outstanding at the time
of determination, (ii) all shares of Common Stock issuable upon conversion of
the Preferred Stock, (iii) all shares of Common Stock issuable upon conversion
of the Warrants and (iv) any securities issued or issuable with respect to the
Common Stock referred to in clause (i), (ii) or (iii) in connection with a
combination of shares, recapitalization, merger, consolidation or other
reorganization.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended, or any similar Federal statute then in effect, and any reference to a
particular section thereof shall include a reference to the equivalent section,
if any, of any such similar Federal statute, and the rules and regulations
thereunder.
"GOVERNMENTAL OR REGULATORY AUTHORITY" has the meaning ascribed to
it in the Credit Agreement.
"NYCDF INVESTORS" means NYCDF, and each of its direct and indirect
transferees, so long as such Person shall be a holder of Registrable Securities.
"PERMITTED TRANSFEREES" shall have the meaning specified in the
Stockholders Agreement.
"PERSON" means any natural person, corporation, general partnership,
limited partnership, limited liability company, limited liability partnership,
proprietorship, other business organization, trust, union, association or
Governmental or Regulatory Authority.
"PREFERRED STOCK" means the Series A Convertible Participating
Preferred Stock, par value $.001 per share, of the Company.
"PROSPECTUS" means the prospectus included in any Registration
Statement (including without limitation, a prospectus that disclosed information
previously omitted from a prospectus filed as part of an effective registration
statement in reliance upon Rule 430A promulgated under the Securities Act), as
amended or supplemented by any prospectus supplement, with respect to the terms
of the offering of any portion of the securities covered by such Registration
Statement, and all other amendments and supplements to the Prospectus, including
post-effective amendments, and all material incorporated by reference or deemed
to be incorporated by reference in such prospectus.
"REGISTRABLE SECURITIES" means (i) any Common Stock issued or
issuable upon conversion of the Preferred Stock, (ii) any Common Stock issued or
issuable upon exercise of any Warrant, and (iii) any securities issued or
issuable with respect to the Common Stock referred to in clause (i) or clause
(ii) above in connection with a combination of shares, recapitalization, merger,
consolidation or other reorganization. As to any particular Registrable
Securities, such securities will cease to be Registrable Securities unless such
securities are held at
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such time by a holder of Registrable Securities when they have (x) been
effectively registered under the Securities Act and disposed of in accordance
with the Registration Statement covering them, (y) been transferred pursuant to
Rule 144 (or any similar rule then in force) under the Securities Act or (z)
been otherwise transferred and new certificates for them not bearing a
restrictive Securities Act legend have been delivered by the Company and can be
sold without complying with the registration requirements of the Securities Act.
"REGISTRATION STATEMENT" means any registration statement of the
Company which covers any of the Registrable Securities pursuant to the
provisions of this Agreement, including the Prospectus, amendments and
supplements to such Registration Statement, including post-effective amendments,
all exhibits and all material incorporated by reference in such Registration
Statement.
"REQUIRED BUG INVESTORS" means, as of the date of any determination
thereof, (i) Bug, so long as it holds any Registrable Securities representing at
such time at least twenty percent (20%) (by number of shares) of the Registrable
Securities held by all CFD Investors on a Diluted Basis or (ii) Bug Investors
which hold Registrable Securities representing at such time at least a majority
(by number of shares) of the Registrable Securities held by all Bug Investors on
a Diluted Basis.
"REQUIRED HOLDERS" means, as of the date of any determination
thereof, holders of Registrable Securities representing at such time at least a
majority (by number of shares) of all Registrable Securities on a Diluted Basis.
"REQUIRED NYCDF INVESTORS" means, as of the date of any
determination thereof, (i) CFD, so long as it holds any Registrable Securities
representing at such time at least twenty percent (20%) (by number of shares) of
the Registrable Securities held by all NYCDF Investors on a Diluted Basis or
(ii) NYCDF Investors which hold Registrable Securities representing at such time
at least a majority (by number of shares) of the Registrable Securities held by
all NYCDF Investors on a Diluted Basis.
"SECURITIES ACT" means the Securities Act of 1933, as amended, or
any similar Federal statute then in effect, and any reference to a particular
section thereof shall include a reference to a comparable section, if any, of
any such similar Federal statute, and the rules and regulations thereunder.
"WARRANT" means any Stock Purchase Warrant issued by the Company
pursuant to the Credit Agreement.
10.2 Unless otherwise stated, other defined terms used in this
Agreement shall have the meanings set forth in the Stockholders Agreement.
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10.3 The following defined terms, when used in this Agreement, shall
have the meaning ascribed to them in the corresponding Sections of this
Agreement listed below:
"Agreement" -- Preamble
"Bug" -- Preamble
"Company" -- Preamble
"Controlling Persons" -- Section 7.1
"Credit Agreement" -- Preamble
"Damages" -- Section 7.1
"Demand Registrations" -- Section 1.1
"Existing Registration Rights Agreement" -- Preamble
"Long-Form Registrations" -- Section 1.1
"NYCDF" -- Preamble
"Piggy-back Registration" -- Section 2.1
"Registration Expenses" -- Section 5.1
"Short-Form Registrations" -- Section 1.1
ARTICLE XI
MISCELLANEOUS
11.1 NO INCONSISTENT AGREEMENTS. The Company will not hereafter
enter into any agreement with respect to its securities which is inconsistent
with the rights granted to the holders of Registrable Securities in this
Agreement.
11.2 CERTAIN ACTIONS AFFECTING REGISTRABLE SECURITIES. The Company
will not take any action, or fail to take any action which it may properly take,
with respect to its securities which would adversely affect the ability of the
holders of Registrable Securities to include Registrable Securities in a
registration undertaken pursuant to this Agreement or which, to the extent
within its control, would adversely affect the marketability of such Registrable
Securities in any such registration (including, without limitation, effecting a
stock split or a combination of shares).
11.3 DEFERRAL. Notwithstanding the provisions of Articles I and II,
the Company's obligations to file a Registration Statement, or cause such
Registration Statement to become and remain effective, shall be suspended for a
period not to exceed 90 consecutive days if there exists at the time material
non-public information relating to the Company that, in the reasonable opinion
of the Company's counsel, should not be disclosed.
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11.4 REMEDIES. In the event of a breach by any party to this
Agreement of its obligations under this Agreement, any party injured by such
breach, in addition to being entitled to exercise all rights granted by law,
including recovery of damages, will be entitled to specific performance of its
rights under this Agreement. The parties agree that the provisions of this
Agreement shall be specifically enforceable, it being agreed by the parties that
the remedy at law, including monetary damages, for breach of any such provision
will be inadequate compensation for any loss and that any defense in any action
for specific performance that a remedy at law would be adequate is waived.
11.5 AMENDMENTS AND WAIVERS. Except as otherwise provided herein, no
modification amendment or waiver of any provision of this Agreement will be
effective against the Company or any holder of Registrable Securities, unless
such modification, amendment or waiver is approved in writing by the Company and
the Required holders. The failure of any party to enforce any of the provisions
of this Agreement will in no way be construed as a waiver of such provisions and
will not affect the right of such party thereafter to enforce each and every
provision of this Agreement in accordance with its terms.
11.6 SUCCESSORS AND ASSIGNS. All covenants and agreements in this
Agreement by or on behalf of any of the parties hereto will bind and inure to
the benefit of the respective successors and assigns of the parties hereto
whether so expressed or not. In addition, whether or not any express assignment
has been made, the provisions of this Agreement which are for the benefit of
holders of Registrable Securities are also for the benefit of, and enforceable
by, any subsequent holder of Registrable Securities, except to the extent
reserved to or by the transferor in connection with any such transfer.
11.7 NOTICES. All notices, requests and other communications
hereunder must be in writing and will be deemed to have been duly given only if
delivered personally against written receipt or by facsimile transmission or
mailed by pre-paid first class mail, return receipt requested or mailed by
overnight courier to the parties at the following addresses or facsimile
numbers:
(i) If to NYCDF:
Prospect Street NYC Discovery Fund, L.P.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Facsimile No.: (000) 000-0000
Attn: Xxxxxx X. Xxxxxx
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with a copy to:
Xxxxxx, Xxxxx & Bockius
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile No.: (000) 000-0000
Attn: Xxx Xxxxx, Esq.
(ii) If to Bug, Inc.
Bank of New York, as Trustee for the
Employees Retirement Plan of the
Brooklyn Union Gas Company
c/o The Brooklyn Union Gas Company
Xxx XxxxxXxxx Xxxxxx
Xxxxxxxx, XX 00000-0000
Attn: Xxxxxx Xxxxxxx
(ii) If to the Company, to:
Skyline Multimedia Entertainment, Inc.
Empire State Building
000 Xxxxx Xxxxxx
Xxxxx 000
Xxx Xxxx, XX 00000
Facsimile No.: (212)
Attn: Xxxxxx X. Xxxxxx
with a copy to:
Rosenman & Colin
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
Attn: Xxxx Xxxxxxx, Esq.
(ii) If to a holder of Registrable Securities, to the last
address for such Person set forth in the records of the
Company.
All such notices, requests and other communications will (w) if delivered
personally to the address as provided in this Section , be deemed given upon
delivery, (x) if delivered by facsimile transmission to the facsimile number as
provided in this Section , be deemed given upon receipt, (y) if delivered by
mail in the manner described above to the address as provided in this Section ,
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upon the earlier of the third Business Day following mailing or upon receipt and
(z) if delivered by overnight courier to the address as provided in this
Section , be deemed given on the earlier of the first Business Day following the
date sent by such overnight courier or upon receipt (in each case regardless of
whether such notice, request or other communication is received by any other
Person to whom a copy of such notice is to be delivered pursuant to this
Section ). Any party from time to time may change its address, facsimile number
or other information for the purpose of notices to that party by giving notice
specifying such change to the other parties hereto.
11.8 HEADINGS. The headings used in this Agreement have been
inserted for convenience of reference only and do not define or limit the
provisions hereof.
11.9 GENDER. Whenever the pronouns "he" or "his" are used herein
they shall also be deemed to mean "she" or "hers" or "it" or "its" whenever
applicable. Words in the singular shall be read and construed as though in the
plural and words in the plural shall be construed as though in the singular in
all cases where they would so apply.
11.10 INVALID PROVISIONS. If any provision of this Agreement is held
to be illegal, invalid or unenforceable under any present or future Law, and if
the rights or obligations of any party hereto under this Agreement will not be
materially and adversely affected thereby, (i) such provision will be fully
severable, (ii) this Agreement will be construed and enforced as if such
illegal, invalid or unenforceable provision had never comprised a part hereof,
(iii) the remaining provisions of this Agreement will remain in full force and
effect and will not be affected by the illegal, invalid or unenforceable
provision or by its severance herefrom and (iv) in lieu of such illegal, invalid
or unenforceable provision, there will be added automatically as a part of this
Agreement a legal, valid and enforceable provision as similar in terms to such
illegal, invalid or unenforceable provision as may be possible.
11.11 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE DOMESTIC LAWS OF THE STATE OF NEW YORK WITHOUT
GIVING EFFECT TO ANY CHOICE OF LAW OR CONFLICT OF LAW PROVISION OR RULE (WHETHER
OF THE STATE OF NEW YORK OR ANY OTHER JURISDICTION) THAT WOULD CAUSE THE
APPLICATION OF THE LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF NEW YORK.
11.12 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which will be deemed an original, but all of which
together will constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereby have executed this Agreement
as of the date first written above.
SKYLINE MULTIMEDIA ENTERTAINMENT, INC.
By: __________________________
Name:
Title:
PROSPECT STREET NYC DISCOVERY FUND, L.P.
By: Prospect Street Discovery Fund, Inc.,
General Partner
By: __________________________
Name:
Title:
Bank of New York, as Trustee for the Employees
Retirement Plan of the Brooklyn Union Gas Company
By: __________________________
Name:
Title:
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This Table of Contents is not part of the Agreement to which it is
attached but is inserted for convenience only.
TABLE OF CONTENTS
Page
RECITALS.....................................................................2
ARTICLE I
DEMAND REGISTRATIONS...................................................2
1.1 Requests for Registration.......................................2
1.2 Number of Demand Registrations; Expenses........................3
1.3 Effected Registration Statement.................................3
1.4 Priority on Demand Registrations................................3
1.5 Form of Offering; Selection of Underwriters.....................4
1.6 Other Registration Rights.......................................4
ARTICLE II
PIGGY-BACK REGISTRATIONS...............................................4
2.1 Right to Piggy-back.............................................4
2.2 Piggy-back Expenses.............................................5
2.3 Priority on Company Registrations...............................5
2.4 Priority on Stockholder Registrations...........................5
ARTICLE III
OTHER REGISTRATIONS....................................................6
3.1 Other Registrations.............................................6
ARTICLE IV
REGISTRATION PROCEDURES................................................6
ARTICLE V
REGISTRATION EXPENSES.................................................10
5.1 Registration Expenses..........................................10
5.2 Sellers' Expenses..............................................11
ARTICLE VI
UNDERWRITTEN OFFERINGS................................................11
6.1 Demand Underwritten Offerings..................................11
6.2 Incidental Underwritten Offerings..............................11
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ARTICLE VII
INDEMNIFICATION.......................................................12
7.1 Indemnification by the Company.................................12
7.2 Indemnification by Holders.....................................13
7.3 Conduct of Indemnification Proceedings.........................13
7.4 Indemnity in Underwriting Agreement............................14
7.5 Contribution...................................................14
7.6 Payment........................................................15
ARTICLE VIII
RULE 144..............................................................15
ARTICLE IX
PARTICIPATION IN UNDERWRITTEN REGISTRATIONS...........................16
ARTICLE X
DEFINITIONS...........................................................16
ARTICLE XI
MISCELLANEOUS.........................................................19
11.1 No Inconsistent Agreements.....................................19
11.2 Certain Actions Affecting Registrable Securities...............19
11.3 Deferral.......................................................19
11.4 Remedies.......................................................20
11.5 Amendments and Waivers.........................................20
11.6 Successors and Assigns.........................................20
11.7 Notices........................................................20
11.8 Headings.......................................................22
11.9 Gender.........................................................22
11.10 Invalid Provisions.............................................22
11.11 Governing Law..................................................22
11.12 Counterparts...................................................22
ii
