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Exhibit 10.1
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is made and
entered into as of November 30, 1995 by and among Sierra On-Line, Inc., a
Delaware corporation ("Sierra" or the "Company"), and the former shareholders of
Papyrus Design Group, Inc., a Massachusetts corporation ("Papyrus"), listed on
the signature pages hereto (collectively the "Shareholders" and individually a
"Shareholder").
RECITALS
A. The Company, PDG Acquisition Corp., a Washington corporation
and wholly owned subsidiary of Sierra ("Purchaser"), Papyrus and the
Shareholders are parties to an Agreement and Plan of Merger (the "Merger
Agreement") pursuant to which Sierra will acquire Papyrus through a merger of
Purchaser with and into Papyrus in which shares of Sierra's common stock, $.01
par value per share ("Common Stock"), will be issued to the Shareholders as set
forth in the Merger Agreement.
B. The execution and delivery of this Agreement by the parties
hereto is a condition precedent to the obligations of the parties under the
Merger Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants contained herein, the parties hereto agree as follows:
1. DEFINITIONS
For the purposes of this Agreement, the following terms have the
meanings indicted below:
1933 Act. The Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder.
1934 Act. The Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated thereunder.
Business Day. Each Monday, Tuesday, Wednesday, Thursday and
Friday that is not a day on which banking institutions in New York are
authorized or obligated by law or executive order to close.
Commission. The United States Securities and Exchange
Commission.
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Holder. Any person owning Registrable Securities who is a
party to this Agreement, and any transferee thereof in accordance with Section 7
of this Agreement.
Prospectus. The prospectus included in any Registration
Statement, as amended or supplemented by any prospectus supplement (including,
without limitation, any prospectus supplement with respect to the terms of the
offering of any portion of the Registrable 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.
Register, registration and registered. A registration effected
by preparing and filing a registration statement or similar document with the
Commission in compliance with the 1933 Act, and the declaration or ordering of
effectiveness of such registration statement or document.
Registrable Securities. The shares of Common Stock issued to
the Shareholders pursuant to the Merger Agreement and any securities that may be
issued by the Company or any successor to the Company from time to time with
respect to, in exchange for, or in replacement of such shares of Common Stock,
including, without limitation, securities issued as a stock dividend on or
pursuant to a stock split of such shares of Common Stock; provided, however,
that those shares as to which the following apply shall cease to be Registrable
Securities: (a) a Registration Statement with respect to the sale of such
Registrable Securities shall have become effective under the 1933 Act and such
Registrable Securities shall have been disposed of under such Registration
Statement; (b) such Registrable Securities shall have become transferable in
accordance with Rule 144, or any successor rule or provision, under the 1933
Act; (c) such Registrable Securities shall have been transferred in a
transaction in which the Holder's rights and obligations under this Agreement
were not assigned in accordance with this Agreement; or (d) such Registrable
Securities shall have ceased to be outstanding.
Registration Expenses. All expenses incident to the Company's
performance of or compliance with Sections 2 and 4, including, without
limitation, all registration and filing fees (including filing fees with respect
to the Commission and to the National Association of Securities Dealers, Inc.
and listing fees of the Nasdaq National Market), all fees and expenses of
complying with state securities or "blue sky" laws (including fees and
disbursements of underwriters' counsel in connection with any "blue sky"
memorandum or survey), all printing expenses, all registrars' and transfer
agents' fees and all fees and disbursements of the Company's counsel and
independent public accountants.
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Registration Statement. A registration statement prepared and
filed with the Commission in compliance with the 1933 Act.
Seller. Any person, including any Holder, participating in an
offering of any Registrable Securities of the Company pursuant to this
Agreement.
Selling Expenses. All applicable transfer taxes and any fees
and disbursements of any counsel, accountants or other advisors for any seller
of the Registrable Securities being registered.
Shelf Registration. A registration effected pursuant to a
shelf Registration Statement of the Company, on an appropriate form under Rule
415 under the 1933 Act, or any similar rule that may be adopted by the
Commission, all amendments and supplements to such registration statement,
including post-effective amendments, in each case including the Prospectus
contained therein, all exhibits thereto and all material incorporated by
reference therein. A Registration Statement relating to a Shelf Registration
shall be referred to herein as the "Shelf Registration Statement."
2. SHELF REGISTRATION
2.1 GENERAL
Subject to the limitations set forth elsewhere in this Section 2, on or
before January 31, 1996, the Company shall file with the Commission a Shelf
Registration Statement on Form S-3 of all the Registrable Securities held by the
Holders.
2.2 LIMITATION ON REGISTRATION OBLIGATION
Notwithstanding the provisions of Section 2.1, if, prior to the filing
or effective date of the Shelf Registration Statement referred to in Section 2.1
above, the Company shall furnish to such Holders a certificate signed by the
President and the General Counsel of the Company stating that, in their good
faith judgment:
(a) the filing of the Shelf Registration Statement or the
offering of securities pursuant thereto would materially and adversely affect
(i) a pending or scheduled public offering or private placement of Sierra's
securities, (ii) a pending or proposed acquisition, merger, consolidation,
reorganization, restructuring or similar transaction of or by Sierra, (iii) bona
fide negotiations, discussions or proposals with respect to any of the
foregoing, or (iv) the position or strategy of Sierra in connection with any
pending or threatened litigation, claim, assessment or government investigation;
and
(b) in the event the Shelf Registration Statement were
then effective and sales of Registrable Securities were made thereunder, and
disclosure of all material
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information with respect to the foregoing had not been made, such circumstances
would cause a violation of the 1933 Act or the 1934 Act and result in potential
liability to Sierra;
then the Company shall have the right to defer the filing or effectiveness, as
the case may be, of such Shelf Registration Statement for such period of time as
such the above circumstances shall continue, such period not to exceed 180 days
after the date of this Agreement.
2.3 SELLING PROCEDURES; SUSPENSION
Each Holder of Registrable Securities agrees to give written notice to
the General Counsel and the Chief Accounting Officer of the Company at least 10
Business Days prior to any intended sale or distribution of Registrable
Securities under the Shelf Registration Statement referred to in Section 2.1,
which notice shall specify the date on which such Holder intends to begin such
sale or distribution. As soon as practicable after the date such notice is
received by the Company, and in any event within 10 Business Days after such
date, the Company shall comply with either paragraph (a) or (b) below.
(a) Except in the event that paragraph (b) below applies,
the Company shall (i) if deemed necessary by the Company, prepare and file with
the Commission a post-effective amendment to the Shelf Registration Statement or
a supplement to the related Prospectus or a supplement or amendment to any
document incorporated therein by reference or file any other required document
so that such Registration Statement will not contain 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, and so that, as
thereafter delivered to purchasers of the Registrable Securities being sold
thereunder, such Prospectus will not contain 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, in light of the circumstances under which they
were made, not misleading; (ii) provide the Holders of the Registrable
Securities who gave such notice copies of any documents filed pursuant to
Section 2.3(a)(i); and (iii) inform each such Holder that the Company has
complied with its obligations in Section 2.3(a)(i) (or that, if the Company has
filed a post-effective amendment to the Shelf Registration Statement which has
not yet been declared effective, the Company will notify each such Holder to
that effect, will use its best efforts to secure the effectiveness of such
post-effective amendment and will immediately notify each such Holder pursuant
to Section 2.3(a)(i) hereof when the amendment has become effective). Each
Holder who has given notice of intention to distribute such Holder's Registrable
Securities in accordance with Section 2.3 hereof (a "Notice Holder") shall sell
all or any of such Registrable Securities pursuant to the Shelf Registration
Statement and related Prospectus only during the 30-day period commencing with
the date on which the Company gives notice, pursuant to
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Section 2.3(a)(i), that the Registration Statement and Prospectus may be used
for such purpose (such 30-day period is referred to as a "Selling Period"). The
Notice holders will not sell any Registrable Securities pursuant to such
Registration Statement or Prospectus after such Selling Period without giving a
new notice of intention to sell pursuant to Section 2.3 hereof and receiving a
further notice from the Company pursuant to Section 2.3(a)(i) hereof or
paragraph (b) below.
(b) In the event of (i) any request by the Commission or
any other federal or state governmental authority during the period of
effectiveness of the Shelf Registration Statement for amendments or supplements
to a Shelf Registration Statement or related Prospectus or for additional
information; (ii) the issuance by the Commission or any other federal or state
governmental authority of any stop order suspending the effectiveness of a Shelf
Registration Statement or the initiation of any proceedings for that purpose;
(iii) the receipt by the Company of any notification with respect to the
suspension of the qualification or exemption from qualification of any of the
Registrable Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose; (iv) any event or circumstance
which necessitates the making of any changes in the Shelf Registration Statement
or Prospectus, or any document incorporated or deemed to be incorporated therein
by reference, so that, in the case of the Shelf Registration Statement, it will
not contain any untrue statement of a material fact or any omission to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and that in the case of the Prospectus, it will not
contain any untrue statement of a material fact or any omission to state a
material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; (v) the Company's reasonable determination that a post-effective
amendment to a Shelf Registration Statement would be appropriate; or (vi) that,
in the good faith judgment of the Company's President and Chief Financial
Officer, it is advisable to suspend use of the Prospectus for a discrete period
of time due to pending corporate developments, public filings with the
Commission or similar events; then, subject to paragraph (d) below, the Company
shall deliver a certificate in writing to the Notice Holders (the "Suspension
Notice") to the effect of the foregoing and, upon receipt of such Suspension
Notice, each such Notice Holder's Selling Period will not commence (a
"Suspension") until such Notice Holder's receipt of copies of the supplemented
or amended Prospectus provided for in Section 2.3(a)(i) hereof, or until it is
advised in writing by the Company that the Prospectus may be used, and has
received copies of any additional or supplemental filings that are incorporated
or deemed incorporated by reference in such Prospectus.
(c) In the event any of the events or circumstances
listed in the foregoing paragraph (b) occur or exist after a Selling Period has
commenced, subject to paragraph (d) below, the Company shall have the same right
to suspend such Selling Period by delivery of a Suspension Notice as the Company
would have had if the
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Selling Period had not yet commenced, and any such suspension of a Selling
Period shall be deemed included within the meaning of the term "Suspension" for
all purposes under this Agreement.
(d) In the event of any Suspension, or any delay in
effecting the Shelf Registration under Section 2.2 above, the Company will use
its best efforts to ensure that the use of the Prospectus so suspended or
delayed may be commenced or resumed, as the case may be, and that any Selling
Period so suspended will commence or resume, as the case may be, as soon as
practicable and, in the case of a pending development, filing or event referred
to in Section 2.3(b)(iv), (v) or (vi) hereof, as soon, in the judgment of the
Company's President and General Counsel, as disclosure of the material relating
to such pending development, filing or event would not have an adverse effect on
the Company's ability to consummate the transaction, if any, to which such
development, filing or event relates. Notwithstanding any other provision of
this Agreement, the Company shall have the right to cause a maximum of five
Suspensions as provided above (including for this purpose a delay in effecting
the Shelf Registration pursuant to Section 2.2 above) during any 12-month period
after the initial effective date of the Shelf Registration Statement, and the
total number of days in any 12-month period during which a Suspension or
Suspensions (including for this purpose a delay in effecting the Shelf
Registration Statement pursuant to Section 2.2 above) may be in effect shall not
exceed 180.
2.4 VOLUME LIMITATIONS
Notwithstanding any other provision of this Agreement, no Holder of
Registrable Securities shall dispose of Registrable Securities in such a way as
to result in the merger contemplated by the Merger Agreement not qualifying as a
tax-free reorganization under Section 368(a) of the Internal Revenue Code of
1986, as amended.
3. EXPENSES
The Company will pay all Registration Expenses in connection with the
registration of Registrable Securities effected by the Company pursuant to
Section 2. Holders of Registrable Securities registered pursuant to this
Agreement shall pay all Selling Expenses with each such Holder bearing a pro
rata portion of the Selling Expenses based upon the number of Registrable
Securities registered by each such Holder.
4. REGISTRATION PROCEDURES
In connection with the registration of Registrable Securities under
this Agreement, and subject to the other provisions of this Agreement, the
Company shall:
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(a) use commercially reasonable efforts to cause the
Registration Statement filed in accordance with Section 2 to become effective as
soon as practicable after the date of filing thereof;
(b) 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
continuously effective for the shorter of (i) two years after the date hereof or
(ii) until there are no Registrable Securities outstanding, and to comply with
the provisions of the 1933 Act with respect to the disposition of the
Registrable Securities;
(c) furnish to each Seller of such Registrable Securities
such number of copies of the Prospectus included in such Registration Statement
as such Seller may reasonably request in order to facilitate the sale or
disposition of such Registrable Securities;
(d) use commercially reasonable efforts to register or
qualify all securities covered by such Registration Statement under such other
securities or "blue sky" laws of such jurisdictions as each Seller shall
reasonably request, and do any and all other acts and things that may be
necessary to enable such Seller to consummate the disposition in such
jurisdictions of its Registrable Securities covered by such Registration
Statement, except that the Company shall not for any such purpose be required to
qualify generally to do business as a foreign corporation in any jurisdiction
wherein it is not so qualified, or to subject itself to taxation in respect of
doing business in any such jurisdiction, or to consent to general service of
process in any such jurisdiction;
(e) notify each Seller of Registrable Securities covered
by such Registration Statement, at any time when a Prospectus relating thereto
is required to be delivered under the 1933 Act, of the happening of any event as
a result of which the Prospectus included in such Registration Statement, as
then in effect, includes an untrue statement of a material fact or omits to
state any material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances then existing or
if it is necessary to amend or supplement such Prospectus to comply with the
law, and at the request of any such Seller, prepare and furnish to 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 or securities, such Prospectus, as
amended or supplemented, will comply with the law;
(f) timely file with the Commission such information as
the Commission may prescribe under Section 13 or 15(d) of the 1934 Act and
otherwise use commercially reasonable efforts to ensure that the public
information requirements of
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Rule 144 under the 1933 Act are satisfied with respect to the Company. The
Company shall furnish to any Holder of Registrable Securities, upon request,
copies of the Company's most recent annual and quarterly reports and other
publicly available documents filed with the Commission as a Holder may
reasonably request in availing itself of any rule or regulation of the
Commission allowing such Holder to sell Registrable Securities without
registration.
(g) use commercially reasonable efforts to qualify such
securities for inclusion in the Nasdaq National Market, and provide a transfer
agent and registrar for such Registrable Securities not later than the effective
date of such Registration Statement; and
(h) issue to any person to which any Holder of
Registrable Securities may sell such Registrable Securities in connection with
such registration certificates evidencing such Registrable Securities without
any legend restricting the transferability of the Registrable Securities.
5. SELLER INFORMATION
It shall be a condition precedent to the obligations of the Company to
take any action pursuant to this Agreement that all Sellers of Registrable
Securities shall furnish to the Company such information regarding themselves,
the Registrable Securities held by them and the intended method of disposition
of such Registrable Securities as shall be reasonably required to effect the
registration of their Registrable Securities and to execute such documents in
connection with such registration as the Company may reasonably request.
6. INDEMNIFICATION AND CONTRIBUTION
In the event any Registrable Securities are included in a Registration
Statement under Section 2:
(a) The Company will indemnify and hold harmless each
Seller, the officers, directors, partners, agents and employees of each Seller,
any underwriter (as defined in the 0000 Xxx) for such Seller and each person, if
any, who controls such Seller or underwriter within the meaning of the 1933 Act
or the 1934 Act, against any losses, claims, damages or liabilities (joint or
several) to which they may become subject under the 1933 Act, the 1934 Act or
other federal or state law, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
of the following statements, omissions or violations (collectively, a
"Violation"): (i) any untrue statement or alleged untrue statement of a material
fact contained in such Registration Statement, including any preliminary
prospectus or final prospectus contained therein or any amendments or
supplements thereto; (ii) the omission or alleged omission to state therein a
material fact required to be stated therein,
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or necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading; or (iii) any violation or alleged
violation by the Company of the 1933 Act, the 1934 Act, any state securities law
or any rule or regulation promulgated under the 1933 Act, the 1934 Act or any
state securities law; and the Company will reimburse each such Seller, officer,
director, partner, agent, employee, underwriter or controlling person for any
reasonable legal or other expenses reasonably incurred by them in connection
with investigating or defending any such loss, claim, damage, liability or
action; provided, however, that the indemnity agreement contained in this
Section 6(a) shall not apply to amounts paid in settlement of any such loss,
claim, damage, liability or action if such settlement is effected without the
consent of the Company (which consent shall not be unreasonably withheld or
delayed), nor shall the Company be liable in any such case for any such loss,
claim, damage, liability or action to the extent that it arises out of or is
based upon a Violation which occurs in reliance upon and in conformity with
written information furnished expressly for use in connection with such
registration by any such Seller, underwriter or controlling person.
(b) Each Seller will indemnify and hold harmless the
Company, each of its officers, directors, partners, agents or employees, each
person, if any, who controls the Company within the meaning of the 1933 Act, any
underwriter and any other Seller or any of its directors, officers, partners,
agents or employees or any person who controls such Seller, against any losses,
claims, damages or liabilities (joint or several) to which the Company or any
such director, officer, partner, agent, employee, controlling person or
underwriter, or other such Seller or director, officer, partner, agent, employee
or controlling person may become subject, under the 1933 Act, the 1934 Act or
other federal or state law, insofar as such losses, claims, damages or
liabilities (or actions in respect thereto) arise out of or are based upon any
Violation, in each case to the extent (and only to the extent) that such
Violation occurs in reliance upon and in conformity with written information
furnished by such Seller expressly for use in connection with such registration;
and each such Seller will reimburse any reasonable legal or other expenses
reasonably incurred by the Company or any such director, officer, partner,
agent, employee, controlling person or underwriter, other Seller, officer,
director, partner, agent, employee or controlling person in connection with
investigating or defending any such loss, claim, damage, liability or action;
provided, however, that the indemnity agreement contained in this Section 6(b)
shall not apply to amounts paid in settlement of any such loss, claim, damage,
liability or action if such settlement is effected without the consent of the
Seller, which consent shall not be unreasonably withheld or delayed; provided
further, that the aggregate liability of each Seller in connection with any sale
of Registrable Securities pursuant to a Registration Statement in which a
Violation occurred shall be limited to the net proceeds from such sale.
(c) Promptly after receipt by an indemnified party under
this Section 6 of notice of the commencement of any action (including any
governmental action), such
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indemnified party will, if a claim in respect thereof is to be made against any
indemnifying party under this Section 6, deliver to the indemnifying party a
written notice of the commencement thereof and the indemnifying party shall have
the right to participate in, and, to the extent the indemnifying party so
desires, jointly with any other indemnifying party similarly noticed, to assume
the defense thereof with counsel mutually satisfactory to the parties; provided,
however, that an indemnified party shall have the right to retain its own
counsel, with the fees and expenses to be paid by the indemnifying party, if
representation of such indemnified party by the counsel retained by the
indemnifying party would be inappropriate due to actual or potential differing
or conflicting interests between such indemnified party and any other party
represented by such counsel in such proceeding. The failure to deliver written
notice to the indemnifying party within a reasonable time of the commencement of
any such action, to the extent prejudicial to its ability to defend such action,
shall relieve such indemnifying party of liability to the indemnified party
under this Section 6 to the extent of such prejudice, but the omission so to
deliver written notice to the indemnifying party will not relieve it of any
liability that it may have to any indemnified party otherwise than under this
Section 6.
(d) If recovery is not available under the foregoing
indemnification provisions of this Section 6, for any reason other than as
specified therein, the parties entitled to indemnification by the terms thereof
shall be entitled to contribution to liabilities and expenses in such proportion
as is appropriate to reflect the relative fault of the indemnifying parties and
the indemnified parties, except to the extent that contribution is not permitted
under Section 11(f) of the 1933 Act. The relative fault of such indemnifying
party and indemnified party shall be determined by reference to, among other
things, the parties' relative knowledge and access to information concerning the
matter with respect to which the claim was asserted, the opportunity to correct
and prevent any statement or omission and any other equitable considerations
appropriate under the circumstances, including, without limitation, whether any
untrue statement or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact relates to information supplied by the
Company, on the one hand, or by the Holder of Registrable Securities, on the
other hand. The Company and the Sellers of the Registrable Securities covered by
such Registration Statement agree that it would not be equitable if the amount
of such contribution were determined by pro rata or per capita allocation. No
Seller of Registrable Securities covered by such Registration Statement or
person controlling such Seller shall be obligated to make any contribution
hereunder which in the aggregate exceeds the total public offering price of the
securities sold by such Seller, less the aggregate amount of any damages which
such Seller and its controlling persons have otherwise been required to pay in
respect of the same claim or any substantially similar claim. The obligations of
such Sellers to contribute are several in proportion to their respective
ownership of the securities covered by such Registration Statement and not
joint.
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7. TRANSFERABILITY
Each Holder agrees that he will not make any disposition of all or any
portion of the Registrable Securities (a) except in a registered public offering
pursuant to the rights granted in this Agreement; or (b) until (i) such Holder
shall have furnished the Company with a statement of the circumstances
surrounding the proposed disposition and (ii) if reasonably requested by the
Company, such Holder shall have furnished the Company with an opinion of
counsel, reasonably satisfactory to counsel for the Company, that such
disposition will not require registration of such Registrable Securities or such
transaction under the 1933 Act or applicable state securities laws.
Notwithstanding any other provision of this Agreement: (x) no Holder may sell or
transfer any Registrable Securities under this Agreement or otherwise until the
date of filing with the Commission of the Company's Quarterly Report on Form
10-Q for the first fiscal quarter of the Company ending after the date of this
Agreement which contains a period of at least 30 days of combined financial
results of Sierra and Papyrus; and (y) no sale or transfer of Registrable
Securities other than in a registered public offering pursuant to the
Registration Statement referred to in Section 2.1 shall be made hereunder or
otherwise unless the purchaser or transferee of such Registrable Securities
agrees in writing to be bound by all the terms and conditions of this Agreement.
8. LEGENDS
Each Holder understands and agrees that the certificates evidencing the
Registrable Securities will bear legends in substantially the following form:
"The securities evidenced by this certificate have not been
registered under the Securities Act of 1933 or any applicable
state law, and no interest therein may be sold, distributed,
assigned, offered, pledged or otherwise transferred unless (a)
there is an effective registration statement under such act
and applicable state securities laws covering any such
transaction involving said securities or (b) this corporation
receives an opinion of legal counsel for the holder of these
securities (reasonably satisfactory to this corporation)
stating that such transaction is exempt from registration or
(c) this corporation otherwise satisfies itself that such
transaction is exempt from registration. This legend will be
canceled, and a certificate free from such legend issued to
the holder hereof, upon compliance with the following
conditions: (i) surrender of this certificate to this
corporation in the manner and at the place designated for
cancellation, (ii) a representation by the holder that it has
held the securities evidenced by this certificate for not less
than three years, and that it is not, and has not within the
preceding 90 days been, an "affiliate" (as that term is
defined for
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purposes of Rule 144) of this corporation, and (iii) an
undertaking that if at any time the holder shall again become
an affiliate or otherwise cease to enjoy free transferability
of such securities under Rule 144 either by reason of change
of circumstance or amendment of said Rule, it shall forthwith
surrender any unlegended certificate(s) received by it in
respect of the securities evidenced by this certificate for
imposition of any appropriate legend."
9. MISCELLANEOUS
9.1 AMENDMENTS AND WAIVERS
Any provision of this Agreement may be amended and the observance
thereof may only be waived (either generally or in a particular instance and
either retroactively or prospectively), with the written consent of the Company
and the Holders of a majority of the Registrable Securities then outstanding.
Any amendment or waiver effected in accordance with this Section 9.1 shall be
binding upon each Holder of Registrable Securities at the time outstanding, each
future Holder of Registrable Securities, and the Company.
9.2 NOTICES
Any notice required or permitted to be given hereunder shall be in
writing and shall be deemed given at the opening of business on the first
Business Day following the time (a) delivery is made, if by hand delivery, (b)
the facsimile is successfully transmitted, if by telecopier or facsimile
machine, or (c) the Business Day after such notice is deposited with a reputable
next-day courier, postage prepaid, for next-day delivery, addressed as
respectively set forth below or to such other address as any party shall have
previously designated by such a notice.
To the Company:
Sierra On-Line, Inc.
3380 000 Xxxxx X.X., Xxxxx 000
Xxxxxxxx, Xxxxxxxxxx 00000
Fax: (000) 000-0000
Attention: General Counsel
with a copy to:
Xxxxxxx Coie
0000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxxxxx 00000-0000
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Fax: (000) 000-0000
Attention: Xxxxxxx X. XxXxxx
To a Holder of Registrable Securities:
At the addresses listed in Schedule A hereto.
with a copy to:
Xxxxx, Xxxxxxx & Xxxxxxxxx
High Street Tower
000 Xxxx Xxxxxx
Xxxxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxx X. Xxxxxxx
9.3 GOVERNING LAW
This Agreement shall for all purposes be governed by and construed in
accordance with the internal laws of the State of Washington without regard to
conflicts-of-laws principles. The parties hereto agree to submit to the
jurisdiction of the federal and state courts of the State of Washington with
respect to the breach or interpretation of this Agreement or the enforcement of
any and all rights, duties, liabilities, obligations, powers and other relations
between parties arising under this Agreement.
9.4 SEVERABILITY
If one or more provisions of this Agreement are held to be
unenforceable under applicable law, such provision shall be excised from this
Agreement, and the remainder of this Agreement shall be interpreted as if such
provision were so excised and shall be enforceable in accordance with its
remaining terms.
9.5 COUNTERPARTS
This Agreement may be executed in two or more counterparts, each of
which shall be deemed to be an original and all of which together shall
constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
SIERRA ON-LINE, INC.
By: /s/ XXXXXXX X. XXXXXX
-------------------------------
Its President
SHAREHOLDERS:
/s/ XXXX X. XXXXXXX
-----------------------------------
Xxxx X. Xxxxxxx
/s/ J. XXXXX XXXXXXX
-----------------------------------
J. Xxxxx Xxxxxxx
/s/ XXXXXXX X. XXXXXX
-----------------------------------
Xxxxxxx X. Xxxxxx
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SCHEDULE A
REGISTRABLE
HOLDERS SECURITIES
------- -----------
Xxxx Xxxxxxx
00 Xxxxxx Xxxxxx 000,000
Xxxxxxxx, XX 00000
SSN: ###-##-####
J. Xxxxx Xxxxxxx
00 Xxxxxxxxxxx Xxxx 550,469
Xxxxxxx, XX 00000
SSN: ###-##-####
Xxxxxxx X. Xxxxxx
000 Xxxxxx Xxxxxx 00,000
Xxxxxxxxxx, XX 00000
SSN: ###-##-####
