REGISTRATION RIGHTS AGREEMENT
-----------------------------
REGISTRATION RIGHTS AGREEMENT ("Agreement"), dated as of December
30, 1996, by and among FAMILY GOLF CENTERS, INC., a Delaware corporation (the
"Company"), and CINCINNATI GOLF ACADEMY, LTD., an Ohio limited liability
company (the "Seller").
WHEREAS, Maineville Family Golf Centers, Inc., a wholly-owned
subsidiary of the Company (the "Purchaser") and the Seller are parties to a
Purchase Agreement, dated as of December 30, 1996 (the "Transaction
Agreement"), providing for the purchase by the Purchaser of certain assets of
the Seller;
WHEREAS, in connection with the transactions contemplated by the
Transaction Agreement, the Seller received an aggregate of 40,000 shares of
Common Stock, $.01 par value per share, of the Company (the "Common Stock"),
which are "restricted securities" (as defined in Rule 144 under the Securities
Act of 1933, as amended) and the Company has agreed to provide the Seller with
the registration rights set forth herein.
NOW THEREFORE, in consideration of the premises and of the mutual
agreements and covenants hereinafter set forth, the parties hereto agree as
follows:
1. Certain Definitions.
Business Day: Any day other than a Saturday, Sunday or holiday on
which banking institutions in Denver, Colorado or New York, New York are
closed.
Commission: The Securities and Exchange Commission, or any other
Federal agency at the time administering the Securities Act or the Exchange
Act.
Company Indemnified Parties: As defined in Section 6(b).
Exchange Act: The Securities and Exchange Act of 1934, as amended,
or any successor Federal statute, and the rules and regulations of the
Commission promulgated thereunder, as they each may, from time to time, be in
effect.
Losses: As defined in Section 6(a).
Prospectus: The prospectus included in the Registration Statement as
of the date it becomes effective under the Securities Act and, in the case of
references to the Prospectus as of a date subsequent to the effective date of
the Registration Statement, as amended or supplemented
as of such date, including all documents incorporated by reference therein, as
amended, and each prospectus supplement relating to the offering and sale of
any of the Registrable Shares.
Registrable Shares: Shares of Common Stock issued to the Seller
pursuant to the Transaction Agreement, other than the shares held in escrow
pursuant to the Escrow Agreement dated as of even date herewith, and any other
shares of capital stock of the Company issued in respect of such shares as a
result of stock splits, stock dividends, reclassification, recapitalizations,
mergers, consolidations or similar events. References in this Agreement to
amounts or percentages of Registrable Shares as of or on any particular date
shall be deemed to refer to amounts or percentages after giving effect to any
applicable events contemplated by the preceding sentence.
Registraston Statement: A registration statement of the Company on
any form (to be selected by the Company) for which the Company then qualifies
and which permits the secondary resale thereunder of Registrable Shares. The
term Registration Statement shall also include all exhibits and financial
statements and schedules and documents incorporated by reference in such
Registration Statement when it becomes effective under the Securities Act, and
in the case of the references to the Registration Statement as of a date
subsequent to the effective date, as amended or supplemented as of such date.
Securities Act: The Securities Act of 1933, as amended, or any
successor Federal statute, and the rules and regulations of the Commission
promulgated thereunder, as they each may, from time to time, be in effect.
Stockholder Indemnified Parties: As defined in Section 6(a).
Selling Stockholder: Any Stockholder whose Registrable Shares are
included at the request of such Stockholder in any Registration Statement
filed pursuant to Section 2.
Stockholder: The Seller or any transferee thereof permitted
hereunder if such transferee (i) is designated a Stockholder by Seller and
(ii) has executed a counterpart hereof at the time of the transfer to such
transferee, unless the Registrable Shares held by such person are acquired in
(a) a public distribution pursuant to a registration statement under the
Securities Act or (b) one or more transactions exempt from registration under
the Securities Act where shares sold in such transaction may be publicly
resold without subsequent registration under the Securities Act (and without
limitations as to volume or manner of sale or both).
2. Incidental Registration.
(a) At any time until the time at which Stockholders may sell
publicly all Registrable Shares owned by such Stockholders without
registration under the Securities Act and then again if Stockholders may not
sell without registration under the Securities Act, each time that the Company
proposes to register shares of its Common Stock under the Securities Act for
cash pursuant to either an underwritten public offering, broker-dealer
transactions, or a combination of the foregoing (other than in connection with
a dividend reinvestment, employee
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benefit, stock option or similar plan, an offering of rights, warrants or
securities directly or indirectly convertible into or exchangeable or
exercisable for Common Stock or as registration solely for the account of the
Company pursuant to Rule 415 under the Securities Act or a registration of
shares on Form S-8 or S-4 or any other form not generally available for the
registration of securities for sale to the public), the Company shall give
written notice to Xxxxx Xxxxxxxx, a the representative of the Stockholders
(the "Representative"), of its intention to do so. Upon receipt of such
notice, the Representative may give the Company a written request to register
all or some of such Stockholders' Registrable Shares in the registration
described in the written notice from the Company as set forth in the foregoing
sentence, provided that such written request is given within seven (7) days
after any such notice has been given by the Company (with such request stating
(i) the amount of Registrable Shares to be included and (ii) any other
information reasonably requested by the Company to properly effect the
registration of such Registrable Shares). Subject to Sections 2(b) and 4(c),
upon receipt of such request, if the registration form proposed to be used by
the Company may also be used to register Registgible Shares for distribution
by such Selling Stockholders, the Company will use its reasonable best efforts
to promptly cause all such Registrable Shares requested to be included in such
registration to be so included (in accordance with the methods set forth in
the Company's notice of intended registration).
(b) If the proposed method of distribution is a firm commitment
underwritten public offering and the managing underwriter thereof determines
in good faith that the inclusion of such Registrable Shares would materially
adversely affect the offering, the number of Registrable Shares to be offered
for the accounts of the Selling Stockholders shall be reduced or limited in
proportion to the number of Registrable Shares owned by all such Selling
Stockholders to the extent necessary to reduce the total number of shares to
be included in such offering to the amount recommended by such managing
underwriter; provided, that if securities are being offered for the account of
other persons or entities (other than, or in addition to, the Company), such
reduction shall be made pro rata from the securities intended to be offered by
such other persons (regardless of whether such other persons acquire or have
acquired their shares of Common Stock before, on or after the date hereof) and
the Selling Stockholders and subject to the registration rights of those
persons set forth on Schedule I hereto, but no such reduction shall be made
from the securities to be offered for the account of the Company.
(c) The Company's obligations under this Section 2 shall apply to a
registration to be effected for securities to be sold for the account of the
Company as well as a registration statement which includes securities to be
offered for the account of other holders of Common Stock.
(d) The Company may, without the consent of any Stockholder, delay,
suspend, abandon or withdraw any Registration Statement described in Section
2(a) and any related proposed offering or other distribution in which any
Stockholder has requested inclusion of such Stockholder's Registrable Shares
pursuant to this Section 2.
3. Limitations on Registration Rights. Notwithstanding the
provisions of Section 2 hereof, the Company shall not be required to effect or
maintain any registration if (i) the
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Company has previously filed with the Commission a Registration Statement
which included any of the Stockholders Registrable Shares pursuant to Section
2 of this Agreement; provided, however that if pursuant to Section 2(b) the
number of Registrable Shares requested to be registered by the Selling
Stockholders was reduced, then such Selling Stockholders shall be given
another opportunity to register their Registrable Shares in accordance with
this Section 2; or (ii) there shall have been a material breach of a
representation, warranty, covenant or agreement contained in the Transaction
Agreement or an unsatisfied claim under any indemnity arrangement relating
thereto by a party other than the Company or the Purchaser, which breach
continues after the expiration of any applicable notice or cure periods.
4. Obligations with Respect to Registration.
(a) If and whenever the Company is obligated by the provisions of
this Agreement to effect the registration of any Registrable Shares under the
Securities Act, the Company shall:
(1) subject to Section 4(b), use its diligent efforts to cause
the Registration Statement to remain effective, and to
prepare and file with the Commission any amendments and
supplements to the Registration Statement and to the
Prospectus used in connection therewith as may be
necessary to keep the Prospectus current and in compliance
in all material respects with the provisions of the
Securities Act, until (A) in the case of a shelf
Registration Statement, the sooner to occur of the
expiration of a two-year period following the date of this
Agreement and the sale of all of the Registrable Shares
covered by such shelf Registration Statement, and (B) in
the case of any other Registration Statement, the sooner
to occur of the sale of all of the Registrable Shares
covered by such Registration Statement or the 90th day
following the effective date of such Registration
Statement;
(2) notify the Selling Stockholders, (A) when a Registration
Statement becomes effective, (B) when the filing of a
post-effective amendment to a Registration Statement or
supplement to the Prospectus is required, when the same is
filed, and in the case of a post-effective amendment, when
the same becomes effective, (C) of any request by the
Commission for any amendment of or supplement to a
Registration Statement or any Prospectus relating thereto
or for additional information and (D) of the entry of any
stop order suspending the effectiveness of such
Registration Statement or of the initiation of any
proceedings for that purpose;
(3) furnish to each Selling Stockholder a conformed copy of
the Registration Statement as declared effective by the
Commission
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and of each post-effective amendment thereto, and such
number of copies of the final Prospectus and of each
supplement thereto as may reasonably be required to
facilitate the distribution of the Registrable Shares;
(4) register or qualify the Registrable Shares covered by a
Registration Statement under the securities or blue sky
laws of such jurisdictions in the United States as the
Selling Stockholders shall reasonably request, and do any
and all other acts and things which may be necessary to
enable each Selling Stockholder whose Registrable Shares
are covered by such Registration Statement to consummate
the disposition in such jurisdictions of such Registrable
Shares; provided, however, that the Company shall in no
event be required to qualify to do business as a foreign
corporation or a dealer in any jurisdiction where it is
not so qualified, to conform its capitalization or the
composition of its assets at the time to the securities or
blue sky laws of such jurisdiction, to execute or file any
general consent to service of process under the laws of
any jurisdiction, to take any action that would subject it
to service of process in suits other than those arising
out of the offer and sale of the Registrable Shares
covered by such Registration Statement, or to subject
itself to taxation in any jurisdiction where it has not
theretofore done so; and
(5) cause such Registrable Shares covered by a Registration
Statement to be listed on the principal exchange or
exchanges or qualified for trading on the principal over
the counter market on which the Common Stock is then
listed or traded upon the sale of such Registrable Shares
pursuant to such Registration Statement.
(b) Notwithstanding anything to the contrary contained herein, if at
any time after the filing of a Registration Statement which includes
Registrable Shares the Company determines, in its reasonable business
judgment, that such registration and offering could interfere with or
otherwise adversely affect any financing, acquisition, corporate
reorganization, or other material transaction or development involving the
Company or any of its affiliates or require the Company to disclose matters
that otherwise would not be required to be disclosed at such time, then the
Company may require the suspension by each Selling Stockholder of the
distribution of any of the Registrable Shares by giving notice to such Selling
Stockholder. Any such notice need not specify the reasons for such suspension
if the Company determines, in its reasonable business judgment, that doing so
would interfere with or adversely affect such transaction or development or
would be or might result in any such disclosure. In the event that such notice
is given, then until the Company has determined, in its reasonable business
judgment, that such registration and offering would no longer interfere with
the matters described in the preceding sentence and has given notice thereof
to the Selling Stockholders, the Company's obligations under Section 4(a)(1),
if the Registration Statement has become effective, will be suspended. In the
event of a
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suspension pursuant to this Section 4(b), the two-year period of effectiveness
of such Registration Statement that is referred to in Section 4(a)(1) and the
ninety-day period of effectiveness of such Registration Statement that is
referred to in Section 4(a)(1) will each be extended by a number of days equal
to the total number of days for which the distribution of Registrable Shares
included in such Registration Statement by the Selling Stockholder has been
suspended under this Section 4(b).
(c) The Company's obligations under this Agreement with respect to a
Selling Stockholder shall be conditioned upon such Selling Stockholder's
compliance with the following:
(1) such Selling Stockholder shall cooperate with the Company
in connection with the preparation of the Registration
Statement, and for so long as the Company is obligated to
keep the Registration Statement effective, such Selling
Stockholder will provide to the Company, in writing, for
use in the Registration Statement, all information
regarding such Selling Stockholder and such other
information as may be necessary to enable the Company to
prepare the Registration and Prospectus covering the
Registrable Shares and to maintain the currency and
effectiveness thereof;
(2) such Selling Stockholder shall permit the Company, the
proposed underwriters, agents or broker-dealers of the
offering or other distribution and their respective
representatives and agents to examine such documents and
records and shall supply any information as they may
reasonably request in connection with the offering or
other distribution in which such Selling Stockholder
proposes to participate;
(3) such Selling Stockholder shall enter into such agreements
with the Company and any underwriter, broker-dealer or
similar securities industry professional containing
representations, warranties, indemnities and agreements as
are in each case customarily entered into and made by
selling stockholders, and will cause its counsel to give
any legal opinions customarily given, in secondary
distributions under similar circumstances;
(4) during such time as such Selling Stockholder may be
engaged in a distribution of the Registrable Shares, such
Selling Stockholder will comply with all applicable laws
including but not limited to Rules 10b-6 and 10b-7
promulgated under the Exchange Act and pursuant thereto
will, among other things: (A) not engage in any
stabilization activity in connection with the securities
of the Company in contravention of such rules; (B)
distribute the Shares owned by such Selling Stockholder
solely in the manner described
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in the Registration Statement; (C) cause to be furnished
to each underwriter, agent or broker-dealer to or through
whom the Registrable Shares owned by such Selling
Stockholder may be offered, or to the offeree if an offer
is made directly by the Selling Stockholder, such copies
of the Prospectus (as amended and supplemented to such
date) and documents incorporated by reference therein as
may be required by such underwriter, agent, broker-dealer
or offeree; and (D) not bid for or purchase any securities
of the Company or attempt to induce any person to purchase
any securities of the Company other than as permitted
under the Exchange Act;
(5) at least five (5) days prior to any distribution of
Registrable Shares, such Selling Stockholder will advise
the Company in writing of the dates on which the
distribution will commence and terminate, the number of
the Registrable Shares to be sold, the terms and the
manner of sale (including, to the extent applicable, the
purchase price, the name of any underwriter, agent or
broker-dealer to or through whom such distribution is
being made, and the amount of any selling commissions or
other items constituting compensation to such underwriter,
agent or broker-dealer) and the number of shares of Common
Stock that will be owned beneficially by such Selling
Stockholder after giving effect to such sale; and
(6) on notice from the Company of the happening of any of the
events specified in clauses (B), (C) or (D) of Section
4(a)(2), or that, as set forth in Section 4(b), it
requires the suspension by such Selling Stockholder of the
distribution of any of the Registrable Shares, then such
Selling Stockholder shall cease offering or distributing
the Registrable Shares until such time as the Company
notifies such Selling Stockholder that offering and
distribution of the Registrable Shares may recommence.
5. Expenses of Registration.
All expenses in connection with any Registration Statement, any
qualification or compliance with federal or state laws required in connection
therewith, and the distribution of the Registrable Shares shall, as between
the Selling Stockholders and the Company, be borne as follows:
(i) The Company shall pay and be responsible for the registration
fee payable under the Securities Act, blue sky fees and expenses, if applicable
(subject to the limitations set forth in Section 4(a)(4)), printing fees and all
fees and disbursements of the Company's counsel and accountants. Solely at its
discretion, the Company may, in lieu of engaging the services of a financial
printing company with respect to the Registration Statement
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or the Prospectus, arrange for the photocopying thereof, in which event the
Company will bear the applicable photocopying costs.
(ii) The Selling Stockholders shall pay all fees and
disbursements of their own counsel and advisers, all stock transfer fees
(including the cost of all transfer tax stamps) or expenses, if any, and
all other expenses (including underwriting or brokerage discounts, commissions
and fees) related to the distribution of the Shares that have not expressly
been assumed by the Company as set forth above.
6. Indemnification.
(a) The Company agrees to indemnify and hold harmless each Selling
Stockholder and each person (if any) who controls such Selling Stockholder
within the meaning of either the Securities Act or the Exchange Act
(collectively, the "Stockholder Indemnified Parties") from and against any
losses, claims, damages or liabilities (collectively "Losses"), joint or
several, to which such Stockholder Indemnified Parties may become subject,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) are based upon any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or the Prospectus, or
any omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; and, subject to
Section 6(c), the Company will reimburse such Stockholder Indemnified Parties
for any legal or other expenses reasonably incurred by them in connection with
investigating or defending any such Losses; provided, however, that the
Company will not indemnify or hold harmless any Stockholder Indemnified Party
from or against any such Losses (i) that arise out of or are based upon any
violation of any federal or state securities laws, rules or regulations
committed by any of the Stockholder Indemnified Parties (or any person who
controls any of them or any agent, broker-dealer or underwriter engaged by
them) or in the case of a nonunderwritten offering, any failure by such
Selling Stockholder to give any purchaser of Registrable Shares at or prior to
the written confirmation of such sale, a copy of the most recent Prospectus or
(ii) if the untrue statement, omission or allegation thereof upon which icch
Losses or expenses are based (x) was made in reliance upon and in conformity
with the information provided by or on behalf of any Stockholder Indemnified
Party specifically for use or inclusion in the Registration Statement or any
Prospectus, or (y) was made in any Prospectus used after such time as the
Company advised such Selling Stockholder that the filing of a post-effective
amendment or supplement thereto was required, except the Prospectus as so
amended or supplemented, or (z) was made in any Prospectus used after such
time as the obligation of the Company hereunder to keep the Registration
Statement effective and current has expired or been suspended hereunder.
(b) Each Selling Stockholder, individually and not jointly, agrees
to indemnify and hold harmless the Company, its directors and officers and
each person, if any, who controls the Company within the meaning of either the
Securities Act or the Exchange Act (the "Company Indemnified Parties"), from
and against any Losses, joint or several, to which the Company Indemnified
Parties may become subject, insofar as such Losses (or actions in respect
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thereof) arise out of or are based upon (i) any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement or
the Prospectus, or any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading, if the statement or omission was made in reliance upon and in
conformity with the information provided by or on behalf of such Selling
Stockholder or any person who controls such Selling Stockholder specifically
for use or inclusion in the Registration Statement or any Prospectus, or (ii)
the use of any Prospectus after such time as the Company has advised such
Selling Stockholder that the filing of a post-effective amendment or
supplement thereto is required, except the Prospectus as so amended or
supplemented, or (iii) the use of any Prospectus after such time as the
obligation of the Company hereunder to keep the Registration Statement
effective and current has expired or been suspended hereunder, or (iv) any
violation by such Selling Stockholder or any person who controls such Selling
Stockholder within the meaning of either the Securities Act or the Exchange
Act (or any agent, broker-dealer or underwriter engaged by such Selling
Stockholder or any such controlling person) of any federal or state securities
law or rule or regulation thereunder or in the case of a non-underwritten
offering, any failure by such Selling Stockholder to give any purchaser of
Registrable Shares at or prior to the written confirmation of such sale, a
copy of the most recent Prospectus; and, subject to Section 6(c), such Selling
Stockholder will reimburse such Company Indemnified Parties for any legal or
other expenses reasonably incurred by them in connection with investigating or
defending any such Losses. For purposes of clause (i) of the preceding
sentence and clause (ii) of the last sentence of Section 6(a), but without
limiting the generality thereof, any information concerning any Shareholder
Indemnified Party or plan of distribution included in any Registration
Statement or Prospectus which is provided to the Selling Stockholder for his
review within a reasonable period before filing or use thereof and to which
the information such Selling Stockholder has not promptly provided written
notice of objection to the Company shall be deemed to have been provided by
such Selling Stockholder specifically for use in such Registration Statement
or Prospectus.
(c) Each party entitled to indemnification under this Section 6 (the
"Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified
Party has actual knowledge of any claim as to which indemnity may be sought,
and the Indemnifying Party may participate at its own expense in the defense,
or if it so elects, to assume the defense of any such claim and any action or
proceeding resulting therefrom, including the employment of counsel and the
payment of all expenses. The failure of any Indemnified Party to give notice
as provided herein shall not relieve the Indemnifying Party from its
obligations to indemnify such Indemnified Party, except to the extent the
Indemnified Party's failure to so notify actually prejudices the Indemnifying
Party's ability to defend against such claim, action or proceeding. In the
event that the Indemnifying Party elects to assume the defense in any action
or proceeding, the Indemnified Party shall have the right to employ separate
counsel in any such action or proceeding and to participate in the defense
thereof, but the fees and expenses of such separate counsel shall be such
Indemnified Party's expense unless (i) the Indemnifying Party has agreed to
pay such fees and expenses or (ii) the named parties to any such action or
proceeding (including any impleaded parties) include an Indemnified Party and
the Indemnifying Party, and such Indemnified Party shall have been advised by
counsel that there may be a conflict of interest between such Indemnified
Party and the
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Indemnifying Party in the conduct of the defense of such action (in which
case, if such Indemnified Party notifies the Indemnifying Party in writing
that it elects to employ separate counsel at the expense of the Indemnifying
Party, the Indemnifying Party shall not assume the defense of such action or
proceeding on such Indemnified Party's behalf, it being understood, however,
that the Indemnifying Party shall not, in connection with any one such action
or proceeding or separate but substantially similar or related actions or
proceedings arising out of the same general allegations or circumstances, be
liable for the reasonable fees and expenses of more than one separate firm of
attorneys at any time for all Indemnified Parties, which firm shall be
designated in writing by the Selling Stockholder(s) or the Company as the case
may be). No Indemnifying Party, in the defense of any such claim or
litigation, shall, except with the consent of the Indemnified Party, consent
to entry of any judgment or enter into any settlement which does not include
as an unconditional term thereof the giving by the claimant or plaintiff to
such Indemnified Party of a release from all liability in respect to such
claim or litigation. The Indemnifying Party shall not be liable for any
settlement of any such action or proceeding effected without its written
consent, but if settled with its written consent, or if there be a final
judgment for the plaintiff in any such action or proceeding, the Indemnifying
Party shall indemnify and hold harmless the Indemnified Party from and against
any loss or liability by reason of such settlement or judgment.
(d) If the indemnification provided for under this Section 6 is
unavailable to or insufficient to hold the Indemnified Party harmless under
subparagraphs (a) or (b) above in respect of any Losses referred to therein
for any reason other than as specified therein, then the Indemnifying Party
shall contribute to the amount paid or payable by such Indemnified Party as a
result of such losses, claims, damages or liabilities (i) in such proportion
as is appropriate to reflect the relative benefits received by the
Indemnifying Party on the one hand and such Indemnified Party on the other
from the subject offering or distribution or (ii) if the allocation provided
by clause (i) above is not permitted by applicable law, in such proportion as
is appropriate to reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of the Indemnifying Party on the one
hand and such Indemnified Party on the other in connection with the statements
or omissions which resulted in such Losses as well as any other relevant
equitable considerations. The relative benefits received by the Indemnifying
Party on the one hand and the Indemnified Party on the other hand shall be
deemed to be in the same proportion as the net proceeds of the offering or
other distribution (after deducting expenses) received by the Indemnifying
Party bears to the net proceeds of the offering or other distribution (after
deducting expenses) received by the Indemnified Party. The relative fault
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by (or
omitted to be supplied by) the Company or the Selling Stockholders, the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission, the relative benefits received
by each party from the sale of the Registrable Shares and any other equitable
considerations appropriate under the circumstances. The amount paid or payable
by an Indemnified Party as a result of the Losses referred to above in this
subsection (d) shall be deemed to include any legal or other expenses
reasonably incurred by such Indemnified Party in connection with investigating
or defending any such action or claim. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the
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Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation.
(e) The liability of each Selling Stockholder under this Section 6
shall not exceed an amount equal to the public offering price of the
Registrable Shares sold by such Selling Stockholder pursuant to the
Registration Statement.
7. Notices. All notices, requests, demands, waivers and other
communications hereunder shall be in writing and shall be deemed to have been
duly given if delivered personally or mailed, certified or registered mail
with postage prepaid, or sent by telex, telegram or telecopier, as follows:
(i) if to the Company:
Family Golf Centers, Inc.
000 Xxxxxxxxxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxx
Facsimile: (000) 000-0000
with a copy to:
Squadron, Ellenoff, Plesent
& Xxxxxxxxx, LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxx, Esq.
Facsimile: (000) 000-0000
(ii) if to Seller or the Representative:
Cincinnati Golf Academy, Ltd.
0000 Xxxxxxxx Xxxx
Xxxxxxxxxx, Xxxx 00000
Attention: Xxxxx Xxxxxxxx
Facsimile: (000) 000-0000
with a copy to:
Xxxx, Xxxxxxxxxxx & Xxxxxx
000 Xxxx 0xx Xxxxxx
Xxxxxxxxxx, Xxxx 00000
Attention: Xxxxx X. Xxxxxx, Esq.
Facsimile: (000) 000-0000
or to such other person or address as any party shall specify by notice in
writing to the other party.
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All notices and other communications given to a party in accordance with the
provisions of this Agreement shall be deemed to have been given (i) three
Business Days after the same are sent by certified or registered mail, postage
prepaid, return receipt requested, (ii) when delivered by hand or transmitted
by telecopy (answer back received) or (iii) one Business Day after the same
are sent by a reliable overnight courier service, with acknowledgement of
receipt requested. Notwithstanding the preceding sentence, notice of change of
address shall be effective only upon actual receipt thereof.
8. Amendment. Any provision of this Agreement may be amended or
modified in whole or in part at any time by an agreement in writing among the
Company and the Stockholders who hold a majority of the Registrable Shares
then outstanding, executed in the same manner as this Agreement. No consent,
waiver or similar act shall be effective unless in writing.
9. Entire Agreement. This Agreement constitutes the entire agreement
among the parties hereto and supersedes all prior agreements and
understandings, oral and written, among the parties hereto with respect to the
subject matter hereof.
10. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original, but all of
which together shall constitute one and the same instrument.
11. Governing Law. This Agreement shall be governed by and
interpreted in accordance with the internal laws of the State of Delaware,
without giving effect to principles of conflicts of laws.
12. Assignment. Subject to the last definition contained in Section
1 hereof, the Seller may not assign its rights under this Agreement without
the prior written consent of the Company. Subject to the foregoing, this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the date first above written.
FAMILY GOLF CENTERS, INC.
By:_______________________________
Name:
Title:
CINCINNATI GOLF ACADEMY, LTD.
By:______________________________
Name:
Title:
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COUNTERPART SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT
Cincinnati Golf Academy, Ltd. (the "Seller") hereby designates the
persons whose signatures appears below as a Stockholder under the Registration
Rights Agreement, dated as of December __, 1996, by and among Family Golf
Centers, Inc. (the "Company") and Seller (the "Registration Rights
Agreement"). By their execution hereof, each of the undersigned agrees to be
bound by all of the terms and conditions of the Registration Rights Agreement
as a Stockholder thereunder.
Xxxxxx Xxxxx, Trustee of Pension & Profit
Plan; 401K Trust Dated 4/24/85
By:
----------------------------------
Name:
Title:
-------------------------------------
Name: Xxxxxx X. Xxxx
-------------------------------------
Name: Xxxxxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxx X. Xxxxxx
FHM, Inc.
By:
----------------------------------
Name:
Title:
-------------------------------------
Name: Xxxxxxx Xxxxx
Xxxxx X. Xxxxxx 1951 Trust
By:
----------------------------------
Name:
Title:
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H:\SSDOCS\SQUAD01\DK\COGENER2\160476-1.WPD
-------------------------------------
Name: Xxxxx X. Xxxxx
-------------------------------------
Name: Xxxxxxxx Xxxxxxx
-------------------------------------
Name: Xxxx Xxxxxx
Rabiner Partners
By:__________________________________
Name:
Title:
-------------------------------------
Name: Xxxx Xxxxxxxxx
-------------------------------------
Name: Xxxxxx Xxxxxxxxx
Salem Realty, Inc.
By:
----------------------------------
Name:
Title:
-------------------------------------
Name: Xxxx X. Xxxxxxxx
Xx. Xxxxxxx X. Xxxxxx, Trustee u/Amended
Agreement of Trust Dated 1/18/89
By:
----------------------------------
Name:
Title:
-------------------------------------
Name: Xxxxxx X. Xxxx
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Andromeda Agency, Inc. Profit Sharing Plan
FBO Xxxxxx X. Tomb (Xxxxxx X. Tomb, Trustee)
By:
----------------------------------
Name:
Title:
--------------------------------------
Name: Xxxxxx X. Xxxxx & Xxxxx X. Xxxxx
--------------------------------------
Name: Xxxx X. Xxxxx
--------------------------------------
Name: Xxxxxx Xxxxxx
--------------------------------------
Name: Xxxxx Xxxxxxxx
Xxxx Xxxxxxx Xxxxx Trust U/A Dated 6/7/72
By:
----------------------------------
Name:
Title:
Xxxxxxx X. Xxxxxxx Trust U/A Dated 6/683
By:
----------------------------------
Name:
Title:
--------------------------------------
Name: Xxxxx Xxxxxxxx
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SCHEDULE I
1. The registration rights attaching to the 300,000 shares to be
issued upon exercise of the Warrants for such shares (not yet exercised)
issued in connection with a public offering in December 1995, (See Exhibit
10.28 of the Registration Statement dated October 3, 1995 (Registration Number
33-97686)).
2. Any registration rights in respect of the Common Stock or any
other class of capital stock of the Company, except those registration rights
in respect of shares of Common Stock issued in connection with the acquisition
by the Company of a golf center.
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