REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agree
ment") which shall be effective as of January 28, 1997, is
made and entered into by and among Acres Gaming
Incorporated, a Nevada corporation (the "Company"), and IGT,
a Nevada Corporation, (the "Investor").
RECITALS
WHEREAS, the Company and the Investor are parties
to that certain Stock Purchase Agreement, dated as of
September __, 1997 (the "Purchase Agreement"), pursuant to
which the Investor proposes to purchase Series A Convertible
Preferred Stock (the "Preferred Stock"); and
WHEREAS, in order to induce the Investor to enter
into the Purchase Agreement, the Company has agreed to
provide the registration rights set forth in this Agreement
with respect to the "Registrable Securities" (as such term
is defined in Section 1);
NOW, THEREFORE, in consideration of the foregoing
premises and the mutual covenants and agreements herein
contained, the parties, intending to be legally bound,
hereby agree as follows:
1. Definitions. For purposes of this Agreement:
(a) the term "Common Stock" means the Company's
authorized voting common stock, $.01 par value, and any
class of securities issued in exchange for the Common Stock
or into which the Common Stock is converted;
(b) the term "Holder" means any person owning of
record Registrable Securities or any permitted assignee
thereof in accordance with Section 11 hereof;
(c) the term "Initiating Holders" means the Holders of
25% or more of the Registrable Securities then outstanding;
(d) the term "Registrable Securities" means: (i) the
Common Stock issued upon conversion of the Preferred Stock
purchased pursuant to the Purchase Agreement, and (ii) any
Common Stock of the Company issued as a dividend or other
distribution with respect to, or in exchange for or in
replacement of, such Preferred Stock or Common Stock;
(e) the term "Registration Expenses" means all
expenses incurred by the Company in complying with
Sections 2, 3 and 14 hereof, including, without limitation,
all registration and filing fees, underwriters' expense
allowances (but not including non-accountable or other fixed
percentage allowances), printing expenses, fees and disburse
ments of counsel for the Company, blue sky fees and
expenses, and the expense of any special audits incident to
or required by any such registration (but not including the
compensation of regular employees of the Company which shall
be paid in any event by the Company);
(f) the terms "register," "registered" and
"registration" refer to a registration effected by preparing
and filing a registration statement or similar document in
compliance with the 1933 Act, and the declaration or or
xxxxxx of the effectiveness of such registration statement
or document by the Securities and Exchange Commission;
(g) the term "Selling Expenses" means all fees and
disbursements of counsel to the Holders (as a group) and all
underwriting discounts and selling commissions applicable to
the sale of Registrable Securities, and all non-accountable
underwriters' expense allowances that constitute a fixed
percentage of the proceeds of the offering or of the
offering price; and
(h) the number of shares of Registrable Securities
"then outstanding" shall be the number of shares of Common
Stock outstanding which are, and the number of shares of
Common Stock which upon issuance of then exercisable or
convertible securities will be, Registrable Securities.
2. Demand Registration Rights.
(a) If the Company shall receive, at any time
commencing on the earlier of (i) the conversion of the
Preferred Stock purchased pursuant to the Purchase Agreement
or (ii) December 31, 1997, a written request from the Initi
ating Holders with respect to the Registrable Securities,
that the Company file a registration statement under the
1933 Act covering the registration of at least 35% of the
Registrable Securities (or any remaining smaller balance or
any lesser percentage if the anticipated aggregate offering
price to public would exceed $5,000,000), the Company shall
promptly give written notice of such request (together with
a list of the jurisdictions in which the Initiating Holders
intend to attempt to qualify such securities under
applicable state securities laws) to all Holders and shall
as soon as practicable, subject to the limitations of this
Section 2, effect the registration under the 1933 Act of all
such Registrable Securities which the Initiating Holders
request to be registered, together with all of the
Registrable Securities of any other Holder or Holders who so
request by notice to the Company which is given within 30
days after the notice from the Company described above.
Notwithstanding the foregoing, if the Company shall furnish
to the Initiating Holders a certificate signed by the
President of the Company stating that in the good faith
judgment of the Board of Directors it would be seriously
detrimental to the Company for a registration statement to
be filed in the near future, then the Company's obligation
to use its best efforts to file a registration statement
shall be deferred for a period not to exceed 120 days;
provided, however, that the Company shall not obtain such a
deferral more than once in any 12-month period.
(b) If the Initiating Holders intend to distribute the
Registrable Securities covered by their request by means of
an underwriting, they shall so advise the Company as a part
of their request made pursuant to this Section 2 and the
Company shall include such information in the written notice
referred to in Section 2(a). In such event, the right of
any Holder to include its Registrable Securities in such
registration shall be conditioned upon such Holder's
participation in such underwriting and the inclusion of such
Holder's Registrable Securities in the underwriting (unless
otherwise mutually agreed by a majority in interest of the
Initiating Holders, by the underwriter, by the Company, and
by such Holder) to the extent provided herein.
(c) All Holders proposing to distribute their
securities through such underwriting (together with the
Company as provided in Section 4(e)) shall enter into an
underwriting agreement in customary form with the repre
sentative of the underwriter or underwriters selected for
such underwriting by a majority in interest of the
Initiating Holders and reasonably acceptable to the Company.
Notwithstanding any other provisions of this Section 2, if
the underwriter advises the Initiating Holders in writing
that marketing factors require a limitation of the number of
shares to be underwritten, the Initiating Holders shall so
advise all Holders of Registrable Securities, and the number
of shares of Registrable Securities that may be included in
the registration and underwriting shall be allocated among
all Holders thereof pro rata based on the number of shares
held by such Holders at the time of filing of the
registration statement. No Registrable Securities excluded
from the underwriting by reason of the underwriter's
marketing limitation shall be included in such registration.
If any Holder of Registrable Securities disapproves of the
terms of the underwriting, such person may elect to withdraw
therefrom by written notice to the Company, the underwriter
and, unless otherwise provided, the Initiating Holders. The
securities so withdrawn shall also be withdrawn from
registration. If the underwriter has not limited the number
of Registrable Securities to be underwritten, the Company
may include its securities for its own account in such
registration if the underwriter so agrees and if the number
of Registrable Securities which would otherwise have been
included in such registration and underwriting will not
thereby be limited.
(d) The Company is obligated to effect only three
demand registrations for the Holders pursuant to this
Section 2. The second demand for registration may not be
made until at least 12 months after the first demand for
registration was made and the third demand may not be made
until at least 12 months after the second demand was made.
3. Piggy-back Registration Rights. If, at any time
the Company proposes to register (including for this purpose
a registration effected by the Company for shareholders
other than the Holders) any of its securities under the 1933
Act in connection with the public offering of such
securities solely for cash (other than a registration form
relating to: (a) a registration of a stock option, stock
purchase or compensation or incentive plan or of stock
issued or issuable pursuant to any such plan, or a dividend
investment plan; (b) a registration of securities proposed
to be issued in exchange for securities or assets of or in
connection with a merger or consolidation with, another
corporation; or (c) a registration of securities proposed to
be issued in exchange for other securities of the Company),
the Company shall, each such time, promptly give each Holder
written notice of such registration together with a list of
the jurisdictions in which the Company intends to attempt to
qualify such securities under applicable state securities
laws. Upon the written request of any Holder given within
30 days after written notice from the Company in accordance
with Section 17, the Company shall, subject to the
provisions of Section 7 (in the case of an underwritten
offering), cause to be registered under the 1933 Act all of
the Registrable Securities that each such Holder has
requested to be registered; provided, however, in the event
and to the extent such a Holder may freely sell his
Registrable Securities without registration under the 1933
Act without regard to any restrictions set forth in Rule 144
under the 1933 Act and the person acquiring the securities
does not acquire "restricted Securities" within the meaning
of Rule 144, the Company may elect not to register such
Registrable Securities.
4. Obligations of the Company. Whenever required
under this Agreement to effect the registration of any
Registrable Securities, the Company shall, as expeditiously
as reasonably possible:
(a) Prepare and file with the Securities and Exchange
Commission ("SEC") a registration statement with respect to
such Registrable Securities and use its best efforts to
cause such registration statement to become effective, and,
upon the request of the Holders of a majority of the
Registrable Securities registered thereunder, keep such
registration statement effective for up to one year unless
all Registrable Securities to be distributed pursuant to
such registration statement have been sold prior to the
expiration of such one-year period;
(b) Prepare and file with the SEC such amendments and
supplements to such registration statement and the
prospectus used in connection with such registration
statement as may be necessary to comply with the provisions
of the 1933 Act with respect to the disposition of all
securities covered by such registration statement;
(c) Furnish to the Holders such numbers of copies of a
prospectus, including a preliminary prospectus, in
conformity with the requirements of the 1933 Act, and such
other documents as they may reasonably request in order to
facilitate the disposition of Registrable Securities owned
by them;
(d) Use its best efforts to register and qualify the
securities covered by such registration statement under the
securities laws of such jurisdictions as the Company
believes shall be reasonably appropriate for the
distribution of the securities covered by the registration
statement and such jurisdictions as the Holders
participating in the offering shall reasonably request,
provided that the Company shall not be required in
connection therewith or as a condition thereto to qualify to
do business or to file a general consent to service of
process in any such jurisdiction, and further provided that
(anything in this Agreement to the contrary notwithstanding
with respect to the bearing of expenses) if any jurisdiction
in which the securities shall be qualified shall require
that expenses incurred in connection with the qualification
of the securities in that jurisdiction be borne by selling
shareholders and provided there is no exemption from such
requirement by reason of the Company's obligation to pay
such expenses pursuant to the foregoing provisions of this
Section 4, such expenses shall be payable by the selling
Holders pro rata, to the extent required by such
jurisdiction; and
(e) In the event of any underwritten public offering,
enter into and perform its obligations under an underwriting
agreement with terms generally satisfactory to the managing
underwriter of such offering. Each Holder participating in
such underwriting shall also enter into and perform its
obligations under such an agreement.
5. Furnish Information. It shall be a condition
precedent to the obligations of the Company to take any ac
tion pursuant to this Agreement that the selling Holders
shall furnish to the Company such information regarding them
selves, the Registrable Securities held by them, and the in
tended method of disposition of such securities as shall be
required to effect the registration of their Registrable Se
curities. In that connection, each selling Holder shall be
required to represent to the Company that all such informa
tion which is given is both complete and accurate in all ma
terial respects.
6. Expenses of Registration. All Registration
Expenses incurred in connection with any registration, quali
fication or compliance pursuant to this Agreement shall be
borne by the Company except that Registration Expenses
incurred by the Company in complying a request for (i) a
second and third demand for registration under Section 2
hereof and (ii) any registration made under Section 14
hereof shall be borne by the Holders of the securities so
registered pro rata on the basis of the number of shares so
registered, and in all cases all Selling Expenses shall be
borne by the Holders of the securities so registered pro
rata on the basis of the number of shares so registered.
7. Underwriting Requirements. The right of any
Holder to "piggyback" in an underwritten public offering of
the Company's securities pursuant to Section 3 shall be con
ditioned upon such Holder's participation in such underwrit
ing and the inclusion of such Holder's Registrable Securi
ties in the underwriting to the extent provided herein. All
Holders proposing to distribute their securities through
such underwriting shall (together with the Company and any
other holders distributing their securities through such
underwriting) enter into an underwriting agreement in custom
ary form with the underwriter or underwriters selected for
underwriting by the Company. Notwithstanding any other
provision of Section 3 and this Section 7, if the under
writer determines that marketing factors require a limita
tion of the number of shares to be underwritten the under
writer may exclude some or all of the Registrable Securities
from such registration and underwriting, provided that the
Holders are allowed to participate in the offering in the
same proportion (based on the total number of securities
held by such Holders at the time of filing of the
registration statement) as any other shareholder of the
Company existing as of the date of this Agreement partici
pating in the offering. Any reduction in the number of
Registrable Securities included in such registration shall
be borne equally by the Holders as a group pro rata based on
the number of shares held by such Holders at the time of
filing of the registration statement. If any Holder
disapproves of the terms of any such underwriting, it may
elect to withdraw therefrom by written notice to the Company
and the underwriter. Any Registrable Securities excluded or
withdrawn from such underwriting shall be withdrawn from
such registration.
8. Delay of Registration. No Holder shall have any
right to obtain or seek an injunction restraining or oth
erwise delaying any such registration as the result of any
controversy that might arise with respect to the interpreta
tion or implementation of this Agreement.
9. Indemnification. If any Registrable Securities
are included in a registration statement under this
Agreement:
(a) To the extent permitted by law, the Company will
indemnify and hold harmless each Holder, the officers,
directors and partners of each Holder, any underwriter (as
defined in the 0000 Xxx) for such Holder and each person, if
any, who controls such Holder or underwriter within the
meaning of the 1933 Act or the Securities Exchange Act of
1934, as amended (the "1934 Act"), against any losses,
claims, damages, or liabilities (joint or several) to which
they or any of them may become subject under the 1933 Act,
the 1934 Act or any other federal or state law, insofar as
such losses, claims, damages, or liabilities (or actions in
respect thereof) arise from 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, or necessary to make the statements therein not mis
leading; 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, each as
applicable to the subject registration statement; and the
Company will reimburse each such Holder, officer, director
or partner, underwriter or controlling person for any 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 9 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), 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 from 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 Holder,
underwriter or controlling person.
(b) To the extent permitted by law, each selling
Holder will indemnify and hold harmless the Company, each of
its directors, each of its officers who have signed the
registration statement, each person, if any, who controls
the Company within the meaning of the 1933 Act, any
underwriter (within the meaning of the 0000 Xxx) for the
Company, any person who controls such underwriter, any other
Holder selling securities in such registration statement or
any of its directors or officers or any person who controls
such Holder against any losses, claims, damages or liabili
ties (joint or several) to which the Company or any such
director, officer, controlling person, or underwriter or
other such Holder or director, officer or controlling person
may become subject, under the 1933 Act, the 1934 Act or any
other federal or state law, insofar as such losses, claims,
damages, or liabilities (or actions in respect thereto)
arise from 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 Holder expressly for use in
connection with such registration; and each such Holder will
reimburse any legal or other expenses reasonably incurred by
the Company or any such director, officer, controlling
person, underwriter or controlling person, other Holder,
officer, director 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 9 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 Holder which consent shall not be
unreasonably withheld; provided, that in no event shall any
indemnity under this Section 9(b) exceed the gross proceeds
from the offering received by the Holder.
(c) In order to provide for just and equitable
contribution in circumstances in which the indemnification
provided for in this Section 9 is applicable but for any
reason is held to be unavailable from the Company or any
Holder, the Company and the Holders participating in the
registration shall contribute to the aggregate losses,
claims, damages and liabilities (including any
investigation, legal and other expenses incurred in
connection with, and any amount paid in settlement of, any
action, suit or proceeding or any claims asserted) to which
the Company and the participating Holders may be subject
based on (i) the relative fault of the indemnifying party
and indemnified parties in connection with the actions that
resulted in the claims and (ii) the ratio of the proceeds
received by the participating Holders on the one hand and
the Company and all selling shareholders (other than the
participating holders) on the other hand and, with respect
to the second factor, the Company shall be responsible for
the portion represented by the ratio of proceeds received by
the Company to the total proceeds received by the Company
and all selling shareholders (other than participating
Holders); provided, however, that 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. For purposes of this Section
9(c), each person, if any, who controls the Company or any
Holder within the meaning of the Securities Act, each
officer of the Company who shall have signed the
registration statement and each director of the Company
shall have the same rights to contribution as the Company.
(d) No settlement of any action in which the Holders
participating in a registration are defendants shall be
effected without the prior written consent of such Holders
unless (i) the obligations of the Company for
indemnification or contribution pursuant to this Agreement
survive and are not extinguished by reason of the settlement
and remain in full force and effect under applicable federal
and state laws, rules, regulations and orders or (ii) all
claims and actions against the participating Holders and
each person who controls a participating holder within the
meaning of Section 14 of the Securities Act or Section 20 of
the Exchange Act are extinguished by the settlement and the
indemnifying party obtains a full release of all claims and
actions against the participating Holders and each such
control person, which release shall be to the reasonable
satisfaction of the participating Holders.
(e) Promptly after receipt by an indemnified party under
this Section 9 of notice of the commencement of any action
(including any governmental action), such indemnified party
will, if a claim in respect thereof is to be made against
any indemnifying party under this Section 9, notify the
indemnifying party in writing 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 selected
by the indemnifying party or parties and reasonably
acceptable to the indemnified party; 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
interests between such indemnified party and any other party
represented by such counsel in such proceeding (and provided
further that all indemnified parties similarly situated
shall be represented jointly by a single counsel). The
failure to notify an 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 any liability to the
indemnified party under this Section 9, but the omission so
to notify the indemnifying party will not relieve it of any
liability that it may have to any indemnified party
otherwise than under this Section 9.
(f) The obligations of the Company and the Holders
under this Section 9 shall survive through the completion of
any offering of Registrable Securities in a registration
statement made under the terms of this Agreement and
otherwise.
10. Reports Under Securities Exchange Act of 1934.
With a view of making available to the Holders the benefits
of Rule 144 promulgated under the 1933 Act and any other
rule or regulation of the SEC that may at any time permit a
Holder to sell securities of the Company to the public
without registration or pursuant to a registration on
Form S-3, the Company agrees to:
(a) use its best efforts to make and keep public
information available, as those terms are understood and
defined in SEC Rule 144, at all times;
(b) use its best efforts to file with the SEC in a
timely manner all reports and other documents required of
the Company under the 1933 Act and the 1934 Act;
(c) furnish to any Holder so long as the Holder owns
any Registrable Securities, forthwith upon request: (i) a
written statement by the Company that it has complied with
the reporting requirements of Rule 144, the 1933 Act and
the 1934 Act or that it qualifies as a Registrant where
securities may be resold pursuant to Form S-3; (ii) a copy
of the most recent annual or quarterly report of the Company
and all other reports and documents filed by the Company
with the SEC; and (iii) such other information as may be
reasonably requested in availing any Holder of any rule or
regulation of the SEC which permits the selling of any such
securities without registration; and
(d) take such action as is necessary to enable the
Holders to use Form S-3 for the sale of their Registrable
Securities.
11. Assignment of Registration Rights. [Reserved].
12. Limitations on Subsequent Registration Rights.
From and after the date of this Agreement, the Company shall
not, without the prior written consent of the Holders of at
least a majority of the then outstanding Registrable Securi
ties enter into any agreement with any holder or prospective
holder of any securities of the Company which would: (a)
allow such holder or prospective holder to include such secu
rities in any registration filed under Section 2 hereof if
such inclusion would adversely affect the rights of any Hold
er of Registrable Securities hereunder; or (b) not provide
for the conversion of such other holders from demand
registration to a piggyback registration in the event the
Holders elect to demand registration under this Agreement
within 30 days after a demand by such other holders; or
(c) permit such holder or prospective holder to "piggyback"
in a public offering of the Company's securities, except
where such "piggyback" rights would not cause the holders to
be able to sell in such offering a minimum of the greater of
(i) their pro rata share (based on shares held by all
shareholders participating in the offering) of the shares to
be included in the offering and (ii) 20% of the shares of
selling shareholders to be included in the offering.
13. "Market Stand-off" Agreement. Each Holder hereby
agrees that it shall not, to the extent requested by the
Company and an underwriter of Common Stock (or other
securities) of the Company, sell or otherwise transfer or
dispose of any Registrable Securities or any interest
therein in a market or other transaction during the 180-day
period following the effective date of a registration
statement of the Company filed under the 1933 Act; provided,
however, that all officers, directors and significant
shareholders (i.e., those shareholders who beneficially own
greater than 5% of the Company's outstanding stock) of the
Company and all other persons with registration rights
(other than pursuant to this agreement) enter into similar
agreements.
In order to enforce the foregoing covenant, the
Company may impose stop-transfer instructions with respect
to the Registrable Securities of each Holder (and the shares
or securities of every other person subject to the foregoing
restriction) until the end of such 180-day period.
14. Form S-3 Registration. If the Company shall
receive, at any time commencing on the earlier of (i) the
conversion of the Preferred Stock purchased pursuant to the
Purchase Agreement or (ii) December 31, 1997, a request or
requests from the Initiating Holders that the Company effect
a registration on Form S-3 (or any similar successor form)
and any related qualification or compliance with respect to
all or a part of the Registrable Securities owned by such
Holder or Holders, the Company will:
(a) promptly give written notice of the proposed
registration, and any related qualification or compliance,
to all other Holders; and
(b) as soon as practicable, effect such registration
and all such qualifications and compliance as may be so
requested and as would permit or facilitate the sale and
distribution of all or such portion of such Holder's or
Holders' Registrable Securities as are specified in such
request, together with all or such portion of the
Registrable Securities of any other Holder or Holders
joining in such request as are specified in a written
request given within 15 days after receipt of such written
notice from the Company; provided, however, that the Company
shall not be obligated to effect any such registration,
qualification or compliance pursuant to this Section 14:
(i) if the Company is not qualified as a registrant entitled
to use Form S-3 (or the applicable successor form); or (ii)
if the Holders, together with the holders of any other
securities of the Company entitled to inclusion in such
registration, propose to sell Registrable Securities and any
other securities at an aggregate price to the public of less
than $2,500,000; or (iii) if the Company has, within the
12-month period preceding the date of such request, already
effected two registrations on Form S-3 (or applicable
successor form) for the Holders pursuant to this Section 14;
(iv) the number of securities proposed to be sold are then
eligible to be sold under Rule 144 in a single three month
period; or (v) in any particular jurisdiction in which the
Company would be required to qualify to do business or to
execute a general consent to service of process in effecting
such registration, qualification or compliance.
Subject to the foregoing, the Company shall file a
registration statement covering the Registrable Securities
and other securities so requested to be registered as soon
as practicable after receipt of the request or requests of
the Initiating Holders. Registrations effected pursuant to
this Section 14 shall not be counted as demands for
registration effected pursuant to Section 2. The Holders
agree that the maximum number of shares that they will sell
using an S-3 registration statement filed by the Company
pursuant to this Section 14 during any three month period
will not exceed the limit imposed by Rule 144(e)(1).
15. Remedies. Except as provided in Section 8 of this
Agreement, each Holder of Registrable Securities, 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 Company agrees that monetary damages would not be
adequate compensation for any loss incurred by reason of a
breach by it of the provisions of this Agreement and hereby
agrees to waive the defense in any action for specific per
formance that a remedy of law would be adequate.
16. Amendments and Waivers. The provisions of this
Agreement, including the provisions of this sentence, may
not be amended, modified or supplemented, and waivers or
consents to departures from the provisions hereof may not be
given, unless the Company has obtained the written consent
of Holders of at least a majority of the then outstanding
Registrable Securities. Notwithstanding the foregoing, a
waiver or consent to departure from the provisions hereof
with respect to a matter which relates exclusively to the
rights of Holders of Registrable Securities whose securities
are being sold pursuant to a registration statement and
which does not directly or indirectly affect the rights of
other holders of Registrable Securities may be given by the
holders of a majority of the Registrable Securities being
sold; provided, however, that the provisions of this
sentence may not be amended, modified or supplemented except
in accordance with the provisions of the immediately
preceding sentence.
17. Notices. All notices, demands and requests
required by this Agreement shall be in writing and shall be
deemed to have been given for all purposes (a) upon personal
delivery, (b) one day after being sent, when sent by profes
sional overnight courier service from and to locations
within the continental United States, (c) five days after
posting when sent by registered or certified mail, or (d) on
the date of transmission when sent by telegram, telegraph,
telex or telecopier, addressed to the Company or an Investor
at its address set forth on the signature pages hereof. Any
party hereto may from time to time by notice in writing
served upon the others as provided herein, designate a
different mailing address or a different person to which
such notices or demands are thereafter to be addressed or
delivered.
18. Successors and Assigns. Except as otherwise
provided herein, this Agreement shall inure to the benefit
of and be binding upon the successors and assigns of each of
the parties, including, without limitation and without the
need for an express assignment, subsequent holders of
Registrable Securities to which the registration rights
granted by this Agreement have been assigned as permitted
herein.
19. Counterparts. This Agreement may be executed in
separate counterparts, each of which shall be deemed to be
an original, and when executed, separately or together,
shall constitute a single original instrument, effective in
the same manner as if the parties hereto had executed one
and the same instrument.
20. Captions. Captions are provided herein for
convenience only and they are not to serve as a basis for
interpretation or construction of this Agreement, nor as evi
dence of the intention of the parties hereto.
21. Cross-References. All cross-references in this
Agreement, unless specifically directed to another agreement
or document, refer to provisions within this Agreement.
22. Governing Law. This Agreement shall be governed
by and construed in accordance with, the laws of the State
of Nevada, without reference to conflicts of laws
provisions.
23. Severability. The provisions of this Agreement
are severable. The invalidity, in whole or in part, of any
provision of this Agreement shall not affect the validity or
enforceability of any other of its provisions. If one or
more provisions hereof shall be declared invalid or unen
forceable, the remaining provisions shall remain in full
force and effect and shall be construed in the broadest pos
sible manner to effectuate the purposes hereof. The parties
further agree to replace such void or unenforceable provi
sions of this Agreement with valid and enforceable
provisions which will achieve, to the extent possible, the
economic, business and other purposes of the void or
unenforceable provisions.
24. Entire Agreement. This Agreement is intended by
the parties hereto to be the final expression of their
agreement and constitutes and embodies the entire agreement
and understanding between the parties hereto with regard to
the subject matter hereof and is a complete and exclusive
statement of the terms and conditions thereof, and shall
supersede any and all prior oral and written correspondence,
conversations, negotiations, agreements and understandings
relating to the same subject matter.
25. Attorneys' Fees. In any action at law or in
equity to enforce any of the provisions or rights under this
Agreement, the unsuccessful party to such litigation, as
determined by the court in a final judgement or decree,
shall pay the successful party all costs, expenses and
reasonable attorney's fees, as set by the court and not by a
jury, incurred by the successful party (including, without
limitation, costs, expenses and fees on any appeal).
26. Consideration for Approvals or Waivers. No
consideration shall be paid to any Holder to obtain such
Holder's approval for or waiver of any amendment of this
Agreement or any matter requiring the approval or consent of
the Holders hereunder unless such consideration is also
offered to all Holders, pro rata based upon the number of
Registrable Securities held by the Holders.
27.
IN WITNESS WHEREOF, the parties hereto have execut
ed this Registration Rights Agreement with the intent and
agreement that the same shall be effective as of the day and
year first above written.
THE COMPANY:
ACRES GAMING INCORPORATED,
a Nevada Corporation
000 X.X. Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxx 00000
By:/s/ Xxxxxx X. Xxxxxxxxx
Xxxxxx X. Xxxxxxxxx
THE INVESTOR:
IGT,
a Nevada Corporation
X.X. Xxx 00000
0000 Xxxx Xxxx
Xxxx, Xxxxxx 00000
By:/s/ G. Xxxxxx Xxxxx
G. Xxxxxx Xxxxx
