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EXHIBIT 4.5
SECOND AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
This SECOND AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT (this
"Agreement") is made and entered into as of October 2, 2000, by and among
INFOGRAMS, INC. (formerly GT Interactive Software Corp.), a Delaware corporation
(the "Company"), and CALIFORNIA U.S. HOLDINGS, INC., a Delaware corporation (the
"Securityholder").
WHEREAS, pursuant to the terms and conditions of a Securities Purchase
Agreement, dated as of November 15, 1999 (the "Company Purchase Agreement"), by
and among the Company, Infogrames Entertainment SA., a French societe anonyme
("Parent") and the Securityholder, the Company, among other things, issued to
the Securityholder an aggregate of 5,714,286 shares of common stock of the
Company, par value of $0.01 per share ("Common Stock"), and a 5% Subordinated
Convertible Note in the aggregate principal amount of approximately $60,600,000
(the "Note"), with a conversion price of $9.25 per share;
WHEREAS, concurrent with the execution and delivery of the Company Purchase
Agreement, the Company issued to the Securityholder warrants to purchase 10,000
shares of Common Stock, having an exercise price of $0.05 per share (the
"Short-Term Note Warrants");
WHEREAS, concurrently therewith, the Securityholder acquired from certain
principal stockholders of the Company an aggregate of 6,711,701 shares of Common
Stock (the "Cayre Shares") and warrants to acquire an aggregate of 900,000
shares of Common Stock at an exercise price of $0.05 per share (the "GAP
Warrants");
WHEREAS, concurrently therewith, the Company and the Securityholder entered
into a Registration Right Agreement dated as of November 15, 1999 (the
"Registration Right Agreement"), pursuant to which the Securityholder received
certain registration rights in respect of the shares of Common Stock acquired by
the Securityholder pursuant to the Company Purchase Agreement, the Cayre Shares,
and any shares of Common Stock issuable upon conversion of the Original Note or
upon exercise of the Short-Term Note Warrants and the GAP Warrants.
WHEREAS, pursuant to the terms of the Master Assignment and Acceptance
dated as of February 15, 2000 (the "Assignment and Acceptance"), by and among
(i) the Company, as borrower, (ii) First Union National Bank, Bank of America,
N.A., European American Bank, Fleet Bank, N.A., National Bank of Canada, The
Bank of Nova Scotia (collectively the "Previous Lenders"), and (iii) Parent, as
assignee, the Previous Lenders assigned to Parent all other rights and
obligations of the Previous Lenders under the Credit Agreement dated as of
September 11, 1998 (as amended, restated, supplemented or otherwise modified,
the "Credit Agreement"), by and among the Company and the Previous Lenders;
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WHEREAS, in connection with the Assignment and Acceptance, the Company
entered into a warrant agreement dated as of February 15, 2000 with Parent and
the Securityholder and issued to the Securityholder warrants to purchase 45,000
shares of Common Stock (the "Credit Warrants");
WHEREAS, in connection with the issuance of the Credit Warrants to the
Securityholder, the Company and the Securityholder amended the Registration
Right Agreement, as of February 15, 2000 (the "Amended and Restated Registration
Rights Agreement") to include the shares of Common Stock issuable upon exercise
of the Credit Warrants;
WHEREAS, in connection with the issuance of shares of Common Stock to the
Securityholder pursuant to the Agreement and Plan of Merger, dated as of
September 6, 2000, by and among the Company, INA Merger Sub, Inc., Parent, the
Securityholder and Infogrames North America, Inc. (the "Merger Agreement"), the
Company has agreed to further amend the Amended and Restated Registration
Rights Agreement to include the shares of Common Stock issuable pursuant to the
Merger Agreement and the transactions contemplated thereby;
WHEREAS, the Company and the Securityholder deem it to be in their
respective best interests to amend and restate in its entirety the Amended and
Restated Registration Rights Agreement to set forth the rights of the
Securityholder in connection with public offerings and sales of the Registrable
Securities (as defined below).
NOW, THEREFORE, in consideration of the premises and mutual covenants and
obligations hereinafter set forth, and for other good and valuable
consideration, the sufficiency and adequacy of which are hereby acknowledged,
and intending to be legally bound hereby, the parties hereto agree to amend and
restate in its entirety the Amended and Restated Registration Rights Agreement
as set forth herein and to agree as follows:
SECTION 1. DEFINITIONS.
(a) As used in this Agreement, the following terms shall have the
following meanings:
"Business Day" shall mean any Monday, Tuesday, Wednesday, Thursday or
Friday that is not a day on which banking institutions in New York City are
authorized by law, regulation or executive order to close.
"Common Stock" shall mean the common stock, par value $0.01 per share, of
the Company.
"Delay Notice" shall have the meaning set forth in Section (b) hereof.
"Demand Participation Notice" shall have the meaning set forth in Section
3(a) hereof.
"Demand Registration" shall have the meaning set forth in Section 3(a)
hereof.
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"Demand Registration Notice" shall have the meaning set forth in
Section 3(a) hereof.
"Holder" shall mean the Securityholder and any of its transferees
that owns Registrable Securities. For purposes of this Agreement, the Company
may deem the registered holder of a Registrable Security as the Holder thereof.
"Material Development Condition" shall have the meaning set forth in
Section 6(b) hereof.
"Person" shall mean any individual, corporation, partnership, joint
venture, association, joint-stock company, limited liability company, trust,
unincorporated organization or government or other agency or political
subdivision thereof.
"Prospectus" shall mean the prospectus included in any Registration
Statement, as amended or supplemented by a prospectus supplement with respect
to the terms of the offering of any portion of the Registrable Securities
covered by such Registration Statement and by all other amendments and
supplements to the prospectus, including post-effective amendments and all
materials incorporated by reference in such prospectus.
"Registrable Securities" shall mean (i) the shares of Common Stock
acquired by the Securityholder pursuant to the Company Purchase Agreement and
the Cayre Shares, (ii) any shares of Common Stock issuable upon conversion of
the Note, (iii) any shares of Common Stock issuable upon exercise of the
Short-Term Note Warrants and the GAP Warrants, (iv) any shares of Common Stock
issuable pursuant to the Merger Agreement, including the 20,089,224 shares of
Common Stock issued in connection with the conversion of the then outstanding
debt under the Credit Agreement and certain intercompany payables, and (vi) any
other securities issued or issuable as a result of or in connection with any
stock dividend, stock split or reverse stock split, combination,
recapitalization, reclassification, merger or consolidation, exchange or
distribution in respect of such Common Stock.
"Registration Expenses" shall have the definition set forth in
Section 7 hereof.
"Registration Period" shall have the definition set forth in Section
3(b) hereof.
"Registration Statement" shall mean any registration statement which
covers any of the Registrable Securities pursuant to the provisions of this
Agreement, including the Prospectus included therein, all amendments and
supplements to such registration statement, including post-effective
amendments, all exhibits and all materials incorporated by reference in such
registration statement.
"Requesting Securityholder" shall have the meaning set forth in
Section 4 hereof.
"Restricted Securities" shall have the meaning set forth in Section 2
hereof.
"Rule 144" shall mean Rule 144 promulgated under the Securities Act, as
amended from time to time, or any similar successor rule thereto that may be
promulgated by the SEC.
"Rule 415" shall mean Rule 145 promulgated under the Securities Act, as
amended from time to time, or any similar successor rule thereto that may be
promulgated by the SEC.
"Rule 903" shall mean Rule 903 promulgated under the Securities Act, as
amended from time to time, or any similar successor rule thereto that may be
promulgated by the SEC.
"Rule 904" shall mean Rule 904 promulgated under the Securities Act, as
amended from time to time, or any similar successor rule thereto that may be
promulgated by the SEC.
"SEC" shall mean the United States Securities and Exchange Commission,
or any other federal agency at the time administering the Securities Act.
"Securities Act" shall mean the Securities Act of 1933, as amended (or any
similar successor federal statute), and the rules and regulations thereunder, as
the same are in effect from time to time.
"Underwritten Offering" shall mean a registered offering in which
securities of the Company are sold to an underwriter for reoffering to the
public.
(b) All references to the number of shares of Common Stock shall reflect
the one-for-five reverse stock split of the issued and outstanding shares of
Common Stock, effected by the Company as of the close of business on June 26,
2000.
SECTION 2. SECURITIES SUBJECT TO THIS AGREEMENT.
The securities entitled to the benefits of this Agreement are the
Registrable Securities but, with respect to any particular Registrable Security,
only so long as such security continues to be a Restricted Security. A
Registrable Security that has ceased to be a Registrable Security cannot
thereafter become a Registrable Security. As used herein, a "Restricted
Security" is a Registrable Security which has not been effectively registered
under the Securities Act and distributed in accordance with an effective
Registration Statement and which has not been sold by a Holder pursuant to Rule
144 (except pursuant to a transfer to any affiliate of such Holder), Rule 903 or
Rule 904, unless, in the case of a Registrable Security distributed pursuant to
Rule 903 or 904, any applicable restricted period has not expired or the SEC or
its staff has taken the position in a published release, ruling or no-action
letter that securities distributed under Rule 903 or 904 are ineligible for
resale in the United States under Section 4(1) of the Securities Act
notwithstanding expiration of the applicable restricted period.
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SECTION 3. DEMAND REGISTRATION.
(a) Demand. At any time during the term of this
Agreement, a Holder or Holders may request the Company, in writing (a "Demand
Registration Notice"), to effect the registration of all or such portion of the
Registrable Securities as such Holder or Holders shall specify; provided, that
only one demand may be made pursuant to this Section 3(a) during any six month
period; provided, further, that an aggregate of only three demands may be made
pursuant to this Section 3(a), unless the Company is eligible to use Form S-3
(or any successor form) in which case the foregoing limitation shall not apply.
Upon receipt of any such Demand Registration Notice, the Company shall promptly
give written notice of such proposed registration to all other Holders. Such
Holders shall have the right, by giving written notice (the "Demand
Participation Notice") to the Company within fifteen (15) days after the Company
provides its notice, to elect to have included in such registration such number
of their Registrable Securities as such Holders may request in such Demand
Participation Notice. A Holder or Holders may, at any time up to five (5)
Business Days before the filing date of the applicable Registration Statement
relating to the Demand Registration, request that his or its Registrable
Securities not be included therein by providing a written notice to that effect
to the Company.
Upon receipt of a Demand Registration Notice, the
Company shall use its commercially reasonable efforts to file, as expeditiously
as possible, but in any event no later than forty-five (45) days after such
Demand Registration Notice, a Registration Statement on Form S-3 (or any
successor form), or any other form available to the Company under the Securities
Act, covering all Registrable Securities which the Company has been so requested
to register (the "Demand Registration").
(b) Effectiveness of Registration Statement. Subject to
the provisions of Sections 6(b) and (c) hereof, the Company agrees to use its
commercially reasonable efforts to (i) cause the Registration Statement(s)
relating to the Demand Registration described in Section 3(a) to become
effective as promptly as practicable (such date of effectiveness, the
"Effective Time"), and (ii) thereafter keep each such Registration Statement
effective continuously for the period (the "Registration Period") ending,
subject to the second sentence of Section 5(b) hereof and clause (3) of the last
sentence of Section 6(b) hereof, on the earlier of (A) one year following the
Effective Time, and (B) the date on which all Registrable Securities covered by
each such Registration Statement have been sold and the distribution
contemplated thereby has been completed.
(c) Inclusion of Other Securities. Any other holder of
the Company's securities who has registration rights may include its securities
in the Demand Registration effected pursuant to this Section 3.
SECTION 4. PIGGYBANK REGISTRATION.
If, during the term of this Agreement, the Company at
any time proposes to file a registration statement with respect to any class of
equity securities, whether (i) for its own account (other than in connection
with the Registration Statement contemplated by Section 3 or a registration
statement on Form S-4 or S-8 (or any successor or substantially similar form),
and other than in connection with (A) an employee stock option, stock purchase
or compensation.
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plan or of securities issued or issuable pursuant to any such plan, or (B) a
dividend reinvestment plan) or (ii) for the account of a holder of securities of
the Company pursuant to demand registration rights granted by the Company (a
"Requesting Securityholder"), then the Company shall in each case give written
notice of such proposed filing to all Holders of Registrable Securities at least
fifteen (15) days before the anticipated filing date of any such registration
statement by the Company, and such notice shall offer to all Holders the
opportunity to have any or all of the Registrable Securities held by such
Holders included in such registration statement. Each Holder of Registrable
Securities desiring to have its Registrable Securities registered under this
Section 4 shall so advise the Company in writing within ten (10) days after the
date of receipt of such notice (which request shall set forth the amount of
Registrable Securities for which registration is requested), and the Company
shall use its commercially reasonable efforts to include in such registration
statement all such Registrable Securities so requested to be included therein.
Notwithstanding the foregoing, if the managing underwriter or underwriters of
any such proposed public offering advises the Company that the total amount of
securities which the Holders of Registrable Securities, the Company and any
other Persons intended to be included in such proposed public offering is
sufficiently large to adversely affect the success of such proposed public
offering, then the amount of securities to be offered for the accounts of
Holders of Registrable Securities shall be reduced pro rata, based upon the
aggregate number of securities to be offered for the accounts of all of the
Holders of Registrable Securities and all other holders (except the Company and
the Requesting Securityholder) of securities intended to be included in such
offering and the number of securities to be offered for the account of each such
Holder, to the extent necessary to reduce the total amount of securities to be
included in such proposed public offering to the amount recommended by such
managing underwriter or underwriters before the securities offered by the
Company or any Requesting Securityholder are so reduced. Anything to the
contrary in this Agreement notwithstanding, the Company may withdraw or postpone
a registration statement referred to in this Section 4 at any time before it
becomes effective or withdraw, postpone or terminate the offering after it
becomes effective without obligation to the Holder or Holders of the Registrable
Securities; provided that the Company's obligations pursuant to Section
5(a)(ii), 7 and 8 shall remain effective.
SECTION 5. REGISTRATION PROCEDURES.
(a) General. In connection with the Company's registration
obligations pursuant to Section 3 and, to the extent applicable, Section 4
hereof, the Company will:
(i) prepare and file with the SEC a new Registration Statement or
such amendments and post-effective amendments to an existing Registration
Statement as may be necessary to keep such Registration Statement effective
for the time periods set forth in Section 3(b), provided that no
Registration Statement shall be required to remain in effect after all
Registrable Securities covered by such Registration Statement have been
sold and distributed as contemplated by such Registration Statement, and,
provided, further, that as soon as practicable, but in no event later than
five (5) Business Days before filing such Registration Statement, any
related Prospectus or any amendment or supplement thereto, other than any
amendment or supplement made solely as a result of incorporation by
reference of documents filed with the SEC subsequent to the filing of such
Registration Statement, the Company shall furnish to the Holders of the
Registrable Securities covered by such Registration Statement and the
underwriters, if any, copies of
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all such documents proposed to be filed, which documents shall be subject to
the review of such Holders and underwriters;
(ii) notify the selling Holders of Registrable Securities and the
managing underwriters, if any, promptly (1) when a new Registration Statement,
Prospectus or any Prospectus supplement or post-effective amendment has been
filed, and, with respect to any new Registration Statement or post-effective
amendment, when it has become effective, (2) of any request by the SEC for
amendments or supplements to any Registration Statement or Prospectus or for
additional information, (3) of the issuance by the SEC of any comments with
respect to any filing, (4) of any stop order suspending the effectiveness of
any Registration Statement or the initiation of any proceedings for that
purpose, (5) of any suspension of the qualification of the Registrable
Securities for sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose and (6) if there is a misstatement or omission of a
material fact in any Registration Statement, Prospectus or any document
incorporated therein by reference or if any event occurs which requires the
making of any changes in any Registration Statement, Prospectus or any document
incorporated therein by reference in order to make the statements therein (in
the case of any Prospectus, in the light of the circumstances under which they
were made) not misleading;
(iii) if reasonably requested by the managing underwriter or underwriters
or a Holder of Registrable Securities being sold in connection with an
Underwritten Offering, promptly incorporate in a Prospectus supplement or
post-effective amendment such information as the managing underwriters and the
Holders of a majority of the Registrable Securities being sold in such
Underwritten Offering agree should be included therein relating to the sale of
the Registrable Securities, including, without limitation, information with
respect to the aggregate number of shares of Registrable Securities being sold
to such underwriters, the purchase price being paid therefor by such
underwriters and with respect to any other terms of the Underwritten Offering
of the Registrable Securities to be sold in such offering; and promptly make
all required filings of such Prospectus supplement or post-effective amendment;
(iv) furnish to each selling Holder of Registrable Securities and each
managing underwriter, if any, without charge, as many conformed copies as may
reasonably be requested of the then effective Registration Statement and any
post-effective amendments thereto, including financial statements and
schedules, all documents incorporated therein by reference and all exhibits
(including those incorporated by reference);
(v) deliver to each selling Holder of Registrable Securities and the
underwriters, if any, without charge, as many copies of the then effective
Prospectus (including each prospectus subject to completion) and any amendments
or supplements thereto as such Persons may reasonably request;
(vi) use commercially reasonable efforts to register or qualify or
cooperate with the selling Holders of Registrable Securities, the underwriters,
if any, and their respective counsel in connection with the registration or
qualification of such Registrable Securities for offer and sale under the
securities or "blue sky" laws of such jurisdiction as any
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selling Holder of Registrable Securities or underwriter reasonably
requests in writing; provided, however, that the Company will not be
required to (1) qualify to do business in any jurisdiction where it
would not otherwise be required to qualify, but for this paragraph
(vi), (2) subject itself to general taxation in any such jurisdiction
or (3) file a general consent to service of process in any such
jurisdiction;
(vii) cooperate with the selling Holders of Registrable
Securities and the managing underwriters, if any, to facilitate the
timely preparation and delivery of certificates representing
Registrable Securities to be sold and not bearing any restrictive
legends; and enable such Registrable Securities to be in such
denominations and registered in such names as the managing
underwriters may request at least two (2) Business Days prior to any
sale of Registrable Securities to the underwriters;
(viii) cause all Registrable Securities covered by the
Registration Statement to be listed on each securities exchange (or
quotation system operated by a national securities association) on
which identical securities issued by the Company are then listed if
requested by the Holders of a majority of the Registrable Securities
covered by such Registration Statement or the managing underwriters,
if any, and enter into customary agreements including, if necessary, a
listing application and indemnification agreement in customary form,
and provide a transfer agent for such Registrable Securities no later
than the effective date of such Registration Statement;
(ix) otherwise use its commercially reasonable efforts to
comply in all material respects with all applicable rules and
regulations of the SEC relating to such registration and the
distribution of the securities being offered and make generally
available to its securities holders earnings statements satisfying the
provisions of Section 11(a) of the Securities Act;
(x) cooperate and assist in any filings required to be made
with the National Association of Securities Dealers, Inc.; and
(xi) subject to the proviso in paragraph (vi) above, cause the
Registrable Securities covered by the Registration Statement to be
registered with or approved by such other governmental agencies or
authorities as may be necessary to enable the seller or sellers
thereof or the underwriters, if any, to consummate the disposition of
such Registrable Securities (other than as may be required by the
governmental agencies or authorities of any foreign jurisdiction and
by reason of its own activities or business other than the sale of
Registrable Securities).
As a condition precedent to the participation in any registration
hereunder, the Company may require each seller of Registrable Securities as to
which any such registration is being effected to furnish to the Company such
information regarding such seller and the distribution of such securities as the
Company may from time to time reasonably request to comply with the applicable
provisions of the Securities Act.
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(b) Each holder of Registrable Securities agrees by acquisition of such
Registrable Securities that, upon receipt of any notice from the company of the
happening of any event of the kind described in Section 5(a)(ii)(4), (5) or (6)
hereof, such Holder will forthwith discontinue disposition of Registrable
Securities pursuant to the then current Prospectus until (1) such Holder is
advised in writing by the Company that a new Registration Statement covering
the offer of Registrable Securities has become effective under the Securities
Act or (2) such Holder receives copies of any required supplemented or amended
Prospectus, or until such Holder is advised in writing by the Company that the
use of the Prospectus may be resumed. If the Company shall have given any such
notice during a period when a Demand Registration is in effect, the Company
shall extend the period during which such Registration Statement shall be
maintained effective pursuant to this Agreement by the number of days during
which any such disposition of Registrable Securities is discontinued pursuant
to this Section 5(b). If so directed by the Company, on the happening of such
event, the Holder will deliver to the Company (at the Company's expense) all
copies other than permanent file copies then in such Holder's possession, of the
Prospectus covering such Registrable Securities current at the time of receipt
of such notice.
SECTION 6. HOLDBACK AGREEMENTS
(a) Hold-Back Election. In the case of the registration of any
underwritten primary offering initiated by the Company (other than any
registration by the Company on Form S-4 or Form S-8 (or any successor or
substantially similar form), and other than in connection with (A) an employee
stock option, stock purchase or compensation plan or of securities issued or
issuable pursuant to any such plan, or (B) a dividend reinvestment plan) or any
underwritten secondary offering initiated at the request of a holder of
securities of the Company pursuant to registration rights granted by the
Company, each Holder agrees that if he or it is (x) than a 5% or greater
stockholder, a director or an officer of the Company and (y) reasonably
requested to do so by the managing underwriter or the underwriters, then such
Holder shall not effect any public sale or distribution of securities of the
Company except as part of such underwritten registration, during the period
beginning twenty-five (25) days prior to the closing date of such underwritten
offering and ending ninety (90) days after such closing date (or such longer
period as may be reasonable requested by the managing underwriter or
underwriters).
(b) Material Development Condition. With respect to any Registration
Statement filed or to be filed pursuant to Section 3, if the Company determines
that, in its good faith judgment, (i) it would (because of the existence of, or
in reasonable anticipation of, any acquisition or corporate reorganization or
other transaction, financing activity, stock repurchase or other development
involving the Company or any subsidiary, or the unavailability for reasons
substantially beyond the Company's control of any required financial statements,
or any other event or condition of similar significance to the Company or any
subsidiary for purposes of disclosure to the stockholders or potential investors
of the Company) be materially disadvantageous (a "Material Development
Condition") to the Company or any subsidiary or its stockholders for such
Material Development Condition to be publicly disclosed, and (ii) the Company
reasonably believes it would be required under the Securities Act to disclose
such Material Development Condition in such Registration Statement, then the
Company shall, notwithstanding any other provisions of this Agreement, be
entitled, upon the giving of a written notice that a Material Development
Condition has occurred (a "Delay Notice") from an officer of
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the Company to any Holder of Registrable Securities included or to be included
in such Registration Statement, (i) to cause sales of Registrable Securities by
such Holder pursuant to such Registration Statement to cease, (ii) to cause
such Registration Statement to be withdrawn and the effectiveness of such
Registration Statement terminated, or (iii) in the event no such Registration
Statement has yet been filed or declared effective, to delay filing or
effectiveness of any such Registration Statement until, in the good faith
judgment of the Company, such Material Development Condition shall be disclosed
or no longer exists (notice of which the Company shall promptly deliver to any
Holder of Registrable Securities with respect to which any such Registration
Statement has been filed). Notwithstanding the foregoing provisions of this
Section 6(b): (1) in no event may such cessation or delay (i) be, for each such
Registration Statement, for a period of more than ninety (90) consecutive days
from the giving of its Delay Notice to a Holder or Holders with respect to such
Material Development Condition, as above provided, or (ii) for each such
Registration Statement, exceed in the aggregate one hundred twenty (120) days in
any consecutive three hundred sixty-five (365) day period; (2) in the event a
Registration Statement is filed and subsequently withdrawn by reason of any
existing or anticipated Material Development Condition as hereinbefore provided,
the Company shall cause a new Registration Statement covering the Registrable
Securities to be filed with the SEC as soon as practicable after such Material
Development Condition expires or, if sooner, as soon as practicable after the
expiration of the earlier of such ninety (90) day or one hundred twenty (120)
day period, and the Registration Period for such new Registration Statement
shall be the greater of thirty (30) days or the number of days that remained in
such Registration Period with respect to the withdrawn Registration Statement at
the time it was withdrawn; and (3) in the event the Company elects not to
withdraw or terminate the effectiveness of any such Registration Statement but
to cause a Holder or Holders to refrain from selling Registrable Securities for
any period during the Registration Period, the Registration Period with respect
to such Holders shall be extended by the number of days during the Registration
Period that such Holders are required to refrain from selling Registrable
Securities.
(c) Limitation on Demand and Piggyback Registration Rights. Anything to the
contrary contained in this Agreement notwithstanding, when (i) in the opinion of
counsel for the Company (which counsel shall be experienced in securities law
matters), registration of the Registrable Securities is not required by the
Securities Act and other applicable securities laws in connection with a
proposed sale of such Registrable Securities and (ii) the amount of Registrable
Securities held by such Holders does not exceed five percent of the outstanding
shares of Common Stock, on a fully diluted basis, the Holders shall have no
rights pursuant to Sections 3 and 4 hereof to request a Demand Registration or a
piggyback registration in connection with such proposed sale and the Company
shall promptly provide to the transfer agent and the Holders' broker in
connection with any sale transaction an opinion to the effect set forth above,
reasonably sufficient in form and substance to permit the transfer agent to
issue stock certificates for such Registrable Securities without any legend
restricting transfer thereof.
SECTION 7. REGISTRATION EXPENSES.
All expenses incident to the Company's performance of or compliance with
this Agreement, including without limitation all registration and filing fees
(including, without limitation, any fees payable to the NASD or the relevant
securities exchange if the Company's shares are listed on such exchange), fees
and expenses of compliance with securities or "blue
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sky" laws (including reasonable fees and disbursements of counsel in connection
with "blue sky" qualifications or registrations (or the obtaining of exemptions
therefrom) of the Registrable Securities), printing expenses (including
expenses of printing Prospectuses), messenger and delivery expenses, internal
expenses (including, without limitation, all salaries and expenses of its
officers and employees performing legal or accounting duties), fees and
disbursements of its counsel and its independent certified public accountants,
securities acts liability insurance (if the Company elects to obtain such
insurance), fees and expenses of any special experts retained by the Company in
connection with any registration hereunder and fees and expenses of other
Persons retained by the Company (all such expenses being referred to as
"Registration Expenses"), shall be borne by the Company; provided, that
Registration Expenses shall now include any fees and expenses of counsel for
the Holders, out-of-pocket expenses incurred by the Holders and underwriting
discounts, commissions or fees attributable to the sale of the Registrable
Securities.
SECTION 8. INDEMNIFICATION.
(a) Indemnification by the Company. The Company agrees to indemnify and
hold harmless, to the full extent permitted by law, but without duplication,
each Holder of Registrable Securities, and each Person who controls such Holder
(within the meaning of the Securities Act), against all losses, claims,
damages, liabilities and expenses (including reasonable costs of investigation
and reasonable legal fees and expenses) resulting from any untrue statement of
a material fact in, or any omission of a material fact required to be stated
in, any Registration Statement or Prospectus or necessary to make the
statements therein (in the case of a Prospectus in light of the circumstances
under which they were made) not misleading, except insofar as the same are
caused by or contained in any information furnished in writing to the Company
by any Holder or any underwriters expressly for use therein. The Company will
also indemnify underwriters participating in the distribution, their officers,
directors, employees, partners and agents, and each Person who controls such
underwriters (within the meaning of the Securities Act), to the same extent as
provided above with respect to the indemnification of the Holders of
Registrable Securities, if so requested.
(b) Indemnification by Holders of Registrable Securities. In connection
with any Registration Statement in which a Holder of Registrable Securities is
participating, each such Holder will furnish to the Company in writing such
information and affidavits relating to such Holder as the Company reasonably
requests for use in connection with any such Registration Statement or
Prospectus and agrees to indemnify and hold harmless, to the full extent
permitted by law, but without duplication, the Company, its officers,
directors, stockholders, employees, advisors and agents, and each Person who
controls the Company (within the meaning of the Securities Act), against all
losses, claims, damages, liabilities and expenses (including reasonable costs
of investigation and reasonable legal fees and expenses) resulting from any
untrue statement of material fact in, or any omission of a material fact
required to be stated in, the Registration Statement or Prospectus or necessary
to make the statements therein (in the case of a Prospectus in light of the
circumstances under which they were made) not misleading, to the extent, but
only to the extent, that such untrue statement or omission is contained in any
information or affidavit relating to such Holder so furnished in writing by
such Holder to the Company specifically for inclusion therein. The Company and
the other Persons described above shall be entitled to receive indemnities from
underwriters participating in the distribution,
12
to the same extent as provided above with respect to information so furnished
in writing by such Persons specifically for inclusion in any Prospectus or
Registration Statement. In no event shall any participating Holder have an
obligation to indemnify any Person pursuant to this Section 8(b) for any amount
in excess of the net proceeds received by such Holder from the Registrable
Securities offered and sold by such Holder pursuant to such Registration
Statement.
(c) Conduct of Indemnification Proceedings. Any Person entitled to
indemnification hereunder will (i) give prompt notice to the indemnifying party
of any claim with respect to which it seeks indemnification and (ii) permit such
indemnifying party to assume the defense of such claim with counsel of such
indemnifying party's choice and reasonably satisfactory to the indemnified
party; provided, however, that the failure to notify the indemnifying party
shall not relieve the indemnifying party of any liability that it may have to
the indemnified party hereunder, except to the extent that the indemnifying
party forfeits substantive rights or defenses by reason of such failure;
provided, further, that any Person entitled to indemnification hereunder shall
have the right to employ separate counsel and to participate in (but not
control) the defense of such claim, but the fees and expenses of such counsel
shall be at the expense of such indemnified Person unless (A) the indemnifying
party shall have failed to assume the defense of such claim and employ counsel
reasonably satisfactory to the indemnified party in a timely manner or (B) in
the reasonable judgment of any such Person, based upon a written opinion of its
counsel, a conflict of interest may exist between such Person and the
indemnifying party with respect to such claims (in either of which case, if the
Person notifies the indemnifying party in writing that such Person elects to
employ separate counsel at the expense of the indemnifying party, the
indemnifying party shall not have the right to assume the defense of such claim
on behalf of such Person). The indemnifying party will not be subject to any
liability for any settlement made without its consent. No indemnified party will
be required to 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 of such claim or litigation. An indemnifying party who is not
entitled to, or elects not to, assume the defense of the claim will not be
obligated to pay the fees and expenses of more than one counsel (except one (1)
local counsel if required in a specific instance) for all parties indemnified by
such indemnifying party with respect to such claim.
(d) Contribution. If for any reason the indemnification provided
for in Section 8(a) or Section 8(b) is unavailable to an indemnified party or
insufficient to hold it harmless as contemplated by Section 8(a) and Section
8(b), then the indemnifying party shall contribute to the amount paid or
payable by the indemnified party as a result of such loss, claim, damage or
liability in such proportion as is appropriate to reflect not only the relative
benefits received by the indemnifying party and the indemnified party, but also
the relative fault of the indemnifying party and the indemnified party, as well
as any other relevant equitable considerations. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement or the omission or alleged omission relates to information
supplied by the indemnifying party or parties on the one hand, or the
indemnified party or parties on the other hand, and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such untrue statement or omission. 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 misrepresentations. In no event shall any
13
participating Holder be required to contribute any amount in excess of the net
proceeds received by such Holder from the Registrable Securities offered and
sold by such Holder pursuant to such Registration Statement.
SECTION 9. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS.
No Person may participate in any Underwritten Offering hereunder unless
such Person (i) agrees to sell such Person's Registrable Securities on the basis
provided in any underwriting arrangements approved by the Persons entitled
hereunder to approve such arrangements and (ii) completes and executes all
questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents required under the terms of such underwriting arrangements.
Nothing in this Section 9 shall be construed to create any additional rights
regarding the registration of Registrable Securities in any Person otherwise
than as set forth herein.
SECTION 10. AMENDMENTS AND WAIVERS.
The provisions of this Agreement, including the provisions of this Section
10, 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 a majority of the Registrable
Securities then outstanding. Whenever the consent or approval of Holders of a
specified number of Registrable Securities is required hereunder, Registrable
Securities held by the Company or any of its controlled affiliates (other than
Holders of Registrable Securities if such Holders are deemed to be affiliates
solely by reason of their holdings of such Registrable Securities) shall not be
counted in determining whether such consent or approval was given by the Holders
of such required number.
SECTION 11. TERM OF AGREEMENT.
This Agreement may be terminated at any time by a written instrument signed
by Holders of all of the Registrable Securities then outstanding. Unless sooner
terminated in accordance with the preceding sentence, this Agreement shall
terminate in its entirety on such date as there shall be no Registrable
Securities outstanding; provided that any shares of Common Stock previously
subject to this Agreement shall not be Registrable Securities following the sale
of such shares in an offering registered pursuant to this Agreement.
14
SECTION 12. NOTICES.
All notices and other communications provided for or permitted
hereunder shall be made in writing by hand-delivery, registered first-class
mail, telecopier, or air-courier guaranteeing overnight delivery:
(a) If to a Holder of Registrable Securities, at the most current
address given by such Holder to the Company, in accordance with the
provisions of this Section 12, which address initially is, with respect to
each Holder, listed on Schedule 1 attached hereto.
(b) If to the Company, initially at
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Director of Legal Services
Telecopier no. (▇▇▇) ▇▇▇-▇▇▇▇
Confirm no. (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to
▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
Telecopier no. (▇▇▇) ▇▇▇-▇▇▇▇
Confirm no. (▇▇▇) ▇▇▇-▇▇▇▇
and thereafter at such other address as may be designated from time to time
by notice given in accordance with the provisions of this Section 12.
(c) All such notices and other communications shall be deemed to have
been delivered and received (i) in the case of personal delivery,
telecopier or telegram, on the date of such delivery, (ii) in the case of
air courier, on the Business Day after the date when sent and (iii) in the
case of mailing, on the third Business Day following such mailing.
SECTION 13. COUNTERPARTS.
This agreement may be executed in any number of counterparts and by
the parties hereto in separate counterparts, each of which when so executed
shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement.
SECTION 14. HEADINGS.
The headings in this Agreement are for convenience of reference only
and shall not limit or otherwise affect the meaning hereof.
15
SECTION 15. GOVERNING LAW.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO
THE PRINCIPLES OF THE CONFLICT OF LAWS THEREOF.
SECTION 16. JURISDICTION; FORUM; SERVICE OF PROCESS.
Any action or proceeding arising under or relating to this letter
or any of the transactions contemplated hereby may only be brought in the United
States District Court for the Southern District of New York or the courts of the
State of New York located in the County of New York. Each party hereto submits
to personal jurisdiction of each such court with respect to any action or
proceeding arising under or relating to this Agreement or any of the
transactions contemplated hereby and waives any objection to the laying of venue
in such courts and any claim that any such action or proceeding has been brought
in an inconvenient forum. To the extent permitted by law, any judgment in
respect of a dispute arising under or relating to this Agreement may be enforced
in any other jurisdiction within or outside the United States by suit on the
judgment, a certified copy of such judgment being conclusive evidence of the
fact and amount of such judgment. The Securityholder hereby irrevocably appoints
the person listed on the signature page hereof as its agent for service of
process in connection with any action or proceeding arising under or relating to
this Agreement and any of the transactions contemplated hereby. Each party
hereto agrees that personal service of process may be effected by any of the
means specified in Section 12 hereof, addressed to such party. The foregoing
shall not limit the rights of any party to serve process in any other manner
permitted by law.
SECTION 17. SEVERABILITY.
In the event that any one or more of the provisions contained
herein, or the application thereof in any circumstance, is held invalid, illegal
or unenforceable, the validity, legality and enforceability of any such
provision in every other respect and of the remaining provisions contained
herein shall not be affected or impaired thereby.
SECTION 18. SUCCESSORS AND ASSIGNS.
This Agreement shall inure to the benefit of and be binding upon
the successors and assigns of each of the parties hereto, including without
limitation and without the need for an express assignment to, any subsequent
Holder of the Registrable Securities.
SECTION 19. ENTIRE AGREEMENT.
This Agreement is intended by the parties as a final expression
of their agreement and is intended to be a complete and exclusive statement of
the agreement and understanding of the parties hereto in respect of the subject
matter contained herein. This Agreement supersedes all prior agreements and
understandings between the parties with respect to such subject matter.
16
IN WITNESS WHEREOF, the parties hereto have executed this Amended and
Restated Registration Rights Agreement as of the date first written above.
INFOGRAMES, INC.
By:
-------------------------------------
Name:
Title:
CALIFORNIA U.S. HOLDINGS, INC.
By:
-------------------------------------
Name:
Title:
17
SCHEDULE 1
California U.S. Holdings, Inc.
c/o Infogrames Entertainment S.A.
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▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telecopy: (▇▇▇ ▇▇) ▇▇▇ ▇▇▇▇▇▇
Conform: (▇▇▇ ▇▇) ▇▇▇ ▇▇▇▇▇▇
and
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telecopy: (▇▇▇ ▇▇) ▇▇▇ ▇▇▇▇▇▇
Confirm: (▇▇▇ ▇▇) ▇▇▇ ▇▇▇▇▇▇
