EXHIBIT 4(b)
REGISTRATION RIGHTS AGREEMENT
This AGREEMENT (the "Agreement") is made as of June 17, 1997 by and between
BE AEROSPACE, INC., a Delaware corporation ("BEA"), and SKY GAMES INTERNATIONAL
LTD., a Bermuda exempted company f/k/a Creator Capital, Inc. (the "Company").
WHEREAS, the Company has issued to BEA a promissory note dated December 30,
1994 in the original principal amount of $2,500,000 (the "Note") which is
convertible at certain times in whole but not in part into shares of common
stock, par value US$.01 per share, of the Company (the "Common Stock") at the
option of BEA;
WHEREAS, the parties have agreed as of October 30, 1996 to convert the Note
in whole into shares of non-voting convertible redeemable preference shares, par
value US$.01 per share, of the Company (the "Class A Preference Shares") which
are convertible into shares of Common Stock at the option of BEA;
WHEREAS, the Company has committed to provide BEA with the rights to
register the Common Stock as set forth herein;
NOW, THEREFORE, in consideration of the foregoing recitals, the mutual
covenants and agreements herein contained and for other valuable consideration
the adequacy of which is hereby acknowledged, the parties hereto agree as
follows:
1. Registration Rights.
1.1. Definitions.
(a) 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 United States Securities Act of
1933, as amended, and the rules and regulations promulgated thereunder (the
"1933 Act"), and the automatic effectiveness or the declaration or ordering
of effectiveness of such registration statement or document.
(b) The term "Registrable Securities" means the Common Stock issuable
upon conversion of the Class A Preference Shares which are held by BEA or
its Affiliates or permitted assigns hereunder; provided, however, that
"Registrable Securities" shall not include any shares of such Common Stock
previously disposed of in a registration or pursuant to Rule 144 of the SEC
(as defined below).
(c) The term "Holder" means any person owning or having the right to
acquire (through conversion of the Class A Preference Shares) Registrable
Securities.
(d) The terms "Form X-0," "Xxxx X-0" and "Form S-8" mean such
respective forms under the 1933 Act as in effect on the date hereof, any
comparable form under the 1933 Act for use by foreign issuers or any
successor forms to any such form under the 1933 Act subsequently adopted by
the United States Securities and Exchange Commission ("SEC").
(e) The term "Affiliate" means any Person which Controls a party to
this Agreement, which that party Controls or which is under common Control
with that party.
(f) The term "Control" means the power, direct or indirect, to direct
or cause the direction of the management and policies of a Person through
voting securities, contract or otherwise.
(g) The term "Person" means any individual, partnership, limited
partnership, corporation, limited liability company, association, joint
stock company, trust, joint venture or unincorporated organization, or the
United States of America or any other nation, any state or other political
subdivision thereof, or any entity exercising executive, legislative,
judicial, regulatory or administrative functions of government or other
entity, and shall include any successor (by merger or otherwise) of such
entity.
1.2. Request for Registration.
(a) If at any time the Company shall receive a written request from
one or more Holders that the Company effect a registration under the 1933
Act of the Registrable Securities owned by such Holders, the Company shall,
subject to the limitations of this Section 1.2, file as soon as practicable
and in any event within ninety (90) days of the receipt of such request a
registration statement under the 1933 Act covering such Registrable
Securities and use its best efforts to have such registration statement
become effective.
(b) If one or more Holders desire to distribute the Registrable
Securities covered by their request by means of an underwriting, they shall
so advise the Company as part of their request made pursuant to this
Section 1.2. All Holders proposing to distribute their Registrable
Securities through such underwriting shall (together with the Company as
provided in Section 1.4(f)) enter into an underwriting agreement in
customary form with the underwriter or underwriters shall be reasonably
acceptable to the Company.
(c) The Company shall be obligated to effect no more than one (1)
registration pursuant to Section 1.2(a).
(d) The Company shall not be obligated to effect any registration
under this Section 1.2 if the Company would be required to supply certified
interim financial statements to any underwriter as a condition of such
registration.
(e) The Company shall not be obligated to effect any registration
under this Section 1.2 if the proposed aggregate offering price of all
Registrable Securities proposed to be sold by the requesting Holder(s) is
reasonably expected to be less than two million U.S. dollars (US$2,000,000)
unless (i) the Registrable Securities proposed to be sold constitute all
Registrable Securities and (ii) if the aggregate offering price of all such
Registrable Securities is expected to be at least one million U.S. dollars
(US$1,000,000).
(f) Upon the reasonable request of the Company, the Holders
requesting registration under this Section 1.2 will permit such filing to
be delayed for a reasonable period of time if the earlier filing of a
registration statement would require the Company to disclose sensitive
confidential information, the earlier disclosure of which may have a
material adverse effect on the Company.
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1.3. Company Registration. If at any time, the Company proposes to
register any of its Common Stock under the 1933 Act in connection with the
public offering of such securities (other than a registration on Form S-8 or a
registration on Form S-4 or any other form for a limited purpose which excludes
registration of the Registrable Securities), the Company shall give each Holder
written notice of such proposed registration. Upon the written request of any
Holder within fifteen (15) days after the giving of such notice, the Company
shall, subject to the provisions of Section 1.8, use its best efforts, subject
to the written advice of the underwriter for such offering, if any, to cause
such registration statement (i) to cover such Registrable Securities as the
Holders shall specify pursuant to such notice to include in such registration
and (ii) to become effective under the 1933 Act. The Company shall be under no
obligation to complete any offering of its securities it proposes to make and
shall incur no liability to any Holder for its failure to do so.
If at the time of a request under Section 1.2 the Company has publicly
announced its intention to register any of its Common Stock, Holders will be
required to use the provisions of this Section, and no public sale or
distribution (including sales pursuant to Rule 144) of any Registrable
Securities shall be made during the seven (7) days immediately prior to such
registration and no registration of any Registrable Securities shall be
initiated under Section 1.2 until four (4) months after the effective date of
such registration, unless the Company is no longer proceeding to effect such
registration, whether such registration is for the sale of securities for the
Company's account or for the account of others.
1.4. Obligations of the Company. Whenever required under this Section 1 to
use its best efforts the registration of any Registrable Securities, the Company
shall:
(a) Prepare and file with the 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 written
request of the Holders of a majority of the Registrable Securities
registered thereunder, keep such registration statement effective for up to
ninety (90) consecutive days; provided that the Company may keep such
registration statement effective for a shorter period if all of the Holders
have notified the Company in writing that the distribution of their
Registrable Securities has been completed.
(b) Provide that the registration statement or any amendments or
supplements thereto, when they become effective or are filed with the SEC,
as the case may be, will conform in all material respects to the
requirements of the 1933 Act and 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 are made, not misleading.
(c) Prepare and file with the SEC such amendments and supplements to
such registration statement and the prospectus used in connection with such
registration statement, and use its best efforts to cause each such
amendment to become effective, 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.
(d) Furnish to the Holders such reasonable number 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.
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(e) Use its best efforts to register or qualify the securities
covered by such registration statement under such other securities or Blue
Sky laws of such United States jurisdictions (not exceeding ten (10) in the
aggregate) as shall be reasonably requested by the Holders; 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 states or jurisdiction and further provided that
(anything herein to the contrary notwithstanding with respect to the
bearing of expenses) if any jurisdiction in which the Registrable
Securities shall be qualified shall require that expenses incurred in
connection with the qualification therein of the Registrable Securities be
borne by selling shareholders, then such expenses shall be payable by the
Holders pro rata to the extent required by such jurisdiction.
(f) In the event of any underwritten public offering of the
Registrable Securities, enter into and perform its obligations under an
underwriting agreement, in usual and customary form, with the managing
underwriter of such offering.
(g) Notify each Holder of Registrable Securities covered by such
registration statement, at any time when a prospectus relating thereto
covered by such registration statement 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 a
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they are
made, not misleading and promptly file such amendments and supplements
which may be required pursuant to subparagraph (b) of this Section 1.4 on
account of such event and use its best efforts to cause each such amendment
and supplement to become effective.
(h) Furnish, to the extent practicable, at the request of any Holder
requesting registration of Registrable Securities pursuant to this Section
1, on the date that such Registrable Securities are delivered to the
underwriters for sale in connection with a registration pursuant to this
Section 1, if such securities are being sold through underwriters, or on
the date that the registration statement with respect to such securities
becomes effective, if such securities are not being sold through
underwriters, (i) an opinion, dated such date, of counsel representing the
Company for the purposes of such registration, in form and substance as is
customarily given by company counsel to the underwriters in an underwritten
public offering, addressed to the underwriters, if any, and to the Holders
requesting registration of Registrable Securities and (ii) a letter dated
such date, from the independent certified public accountant of the Company,
in form and substance as is customarily given by independent certified
public accountants to underwriters in an underwritten public offering,
addressed to the underwriters, if any, and to the Holders requesting
registration of Registrable Securities.
(i) Apply for listing and use its best efforts to list the
Registrable Securities being registered on any national securities exchange
on which the Company's Common Stock is listed or, if the Company's Common
Stock is not listed on a national securities exchange, apply for
qualification and use its best efforts to qualify the Registrable
Securities being registered for inclusion on the automated quotation system
of the National Association of Securities Dealers, Inc.
1.5. Furnish Information. It shall be a condition precedent to the
obligations of the Company to take any action pursuant to this Section 1 in
respect of the Registrable Securities of any selling Holder that such selling
Holders shall furnish to the Company such information regarding themselves, the
Registrable Securities
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held by them, and the intended method of disposition of such securities as shall
be required to effect the registration of their Registrable Securities.
1.6. Expenses of Demand Registration. All expenses, other than
underwriting discounts and commissions relating to Registrable Securities,
incurred in connection with each registration, filing or qualification pursuant
to Section 1.2, including (without limitation) all registration, filing and
qualification fees, printing and accounting fees and fees and disbursements of
counsel for the Company, shall be borne by the Company. Underwriting discounts
and commissions, if any, relating to Registrable Securities will be borne and
paid ratably by the Holders of such Registrable Securities. In addition, each
Holder shall bear its own counsel fees and disbursements.
1.7. Expenses of Company Registration. The Company shall bear and pay all
expenses incurred in connection with any registration, filing or qualification
of Registrable Securities with respect to a registration pursuant to Section 1.3
for each Holder, including, without limitation, all registration, filing and
qualification fees, printing and accounting fees and fees and disbursements of
counsel for the Company; provided, however, that if any registration expense is
attributable solely to one or more Holders and does not constitute a normal cost
or expense of registration, such cost or expense shall be allocated to and paid
by such Holder or Holders. Underwriting discounts and commissions, if any,
relating to Registrable Securities will be borne and paid ratably by the Holders
of such Registrable Securities. In addition, each Holder shall bear its own
counsel fees and disbursements.
1.8. Underwriting Requirements. In connection with any offering involving
an underwriting of securities being issued by the Company, the Company shall not
be required under Section 1.3 to include any of the Holders' securities in such
underwriting unless they accept the terms of the underwriting as agreed upon
between the Company and the underwriters selected by it, and then only in such
quantity, if any, as will not, in the opinion of the underwriters, likely
adversely affect the success of the offering by the Company. If the managing
underwriter for the offering shall advise the Company in writing that the total
amount of securities, including Registrable Securities, requested by
shareholders to be included in such offering exceeds the amount of securities
which the managing underwriter reasonably believes can be offered without such
adverse effect, the quantity of securities which the managing underwriter
believes can be offered without such effect shall be allocated first to the
Company and thereafter pro rata among the Holders of Registrable Securities
before any portion of such amount is allocated to any other shareholders. Any
Registrable Securities not included in an offering pursuant to the preceding
sentence shall remain entitled to the benefits of Section 1.3 above in the event
of any subsequent Company registration.
1.9. Indemnification. In the event any Registrable Securities are included
in a registration statement under this Section 1:
(a) To the extent permitted by law, the Company will indemnify and
hold harmless each Holder, the officers, directors, partners, agents and
employees 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 United States
Securities Exchange Act of 1934, as amended (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 (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
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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, 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 in connection with such registration. The Company will
reimburse each such Holder, officer, director, partner, agent, employee,
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 as such losses are
incurred. The indemnity agreement contained in this subsection 1.9(a) shall
not apply to amounts paid in settlement of any loss, claim, damage,
liability, or action if such settlement is effected without the consent of
the Company, nor shall the Company be liable to a Holder in any such case
for any such loss, claim, damage, liability, or action (i) to the extent
that it arises out of or is based upon an untrue statement or alleged
untrue statement of material fact made in the registration statement, any
preliminary prospectus or the final prospectus or any amendment or
supplement thereto or the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading when made, in reliance upon and in
conformity with written information furnished to the Company by or on
behalf of such Holder, officer, director, partner, agent, employee,
underwriter or controlling person expressly for use in such registration
statement, preliminary prospectus or final prospectus or any amendment or
supplement thereto or (ii) in the case of a sale directly by a Holder of
Registrable Securities (including a sale of such Registrable Securities
through any underwriter retained by such Holder to engage in a distribution
solely on behalf of such Holder), such untrue statement or alleged untrue
statement or omission or alleged omission was contained in a preliminary
prospectus and corrected in a final or amended prospectus, and such Holder
failed to deliver a copy of the final or amended prospectus at or prior to
the confirmation of the sale of the Registrable Securities to the person
asserting any such loss, claim, damage or liability in any case where such
delivery is required by the 0000 Xxx.
(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 or the 1934
Act, each agent and any underwriter for the Company, and any other Holder
selling securities in such registration statement or any of its directors,
officers, partners, agents or employees or any person who controls such
Holder or underwriter, against any losses, claims, damages, or liabilities
(joint or several) to which the Company or any such director, officer,
controlling person, agent, or underwriter or controlling person, or other
such Holder or director, officer 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 an untrue statement or alleged untrue
statement of a material fact made in the registration statement, any
preliminary prospectus or the final prospectus or any amendment or
supplement thereto or the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent (and only to
the extent) that such untrue statement or alleged untrue statement or
omission or alleged omission was made in reliance upon and in conformity
with written information furnished to the Company by or on behalf of such
Holder expressly for use in such registration statement, preliminary
prospectus or final prospectus or amendment or supplement thereto; and each
such Holder will reimburse any legal or other expenses reasonably incurred
by the Company or any such director, officer, controlling person, agent or
underwriter or controlling person, other Holder, officer, director,
partner, agent, employee, or controlling person in connection with
investigating or defending any such loss, claim, damage, liability, or
action as such expenses are incurred; provided, however, that the liability
of any Holder
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hereunder shall be limited to the amount of proceeds received by such
Holder in the offering giving rise to the loss, claim, damage, liability or
action; and provided, further, that the indemnity agreement contained in
this subsection 1.9(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 Holder, which consent shall not be
unreasonably withheld nor, in the case of a sale directly by the Company of
its securities (including a sale of such securities through any underwriter
retained by the Company to engage in a distribution solely on behalf of the
Company), shall the Holder be liable to the Company in any case in which
such untrue statement or alleged untrue statement or omission or alleged
omission was contained in a preliminary prospectus and corrected in a final
or amended prospectus, and the Company failed to deliver a copy of the
final or amended prospectus at or prior to the confirmation of the sale of
the securities to the person asserting any such loss, claim, damage or
liability in any case where such delivery is required by the 1933 Act.
(c) Promptly after receipt by an indemnified party under this Section
1.9 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 1.9, 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 and control 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 interests, as reasonably determined by either party, 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, if
the indemnifying party shall demonstrate that such failure was prejudicial
to its ability to defend such action, shall relieve such indemnifying party
of any liability to the indemnified party under this Section 1.9 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 1.9.
(d) If the indemnification provided for in this Section 1.9 is
unavailable to or insufficient to hold harmless an indemnified party under
subsections (a) and (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or
liabilities (or actions in respect thereof) in such proportions as is
appropriate to reflect the relative fault of the Company and each Holder in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities (or actions in respect thereof), 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 of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
Company or such Holder and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or
omission. The Company and BEA agree that it would not be just and equitable
if contributions pursuant to this subsection (d) were determined by pro
rata allocation or by any other method of allocation which does not take
account of the equitable considerations referred to above in this
subsection (d). The amount paid or payable by an indemnified party as a
result of the losses, claims, damages or liabilities (or actions in respect
thereof) referred to above in this subsection (d) shall be deemed to
include any legal or other expenses reasonably incurred
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by such indemnified party in connection with investigating or defining any
such action or claim. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the 0000 Xxx) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
(e) The obligations of the Company and the Holders under this Section
1.9 shall survive the completion of any offering of Registrable Securities
in a registration statement whether under this Section 1 or otherwise.
2. Miscellaneous.
2.1. Legend. Each certificate representing Registrable Securities shall
bear a legend to the following effect:
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE
PROVISIONS OF A REGISTRATION RIGHTS AGREEMENT DATED AS OF JUNE 17,
1997 BY AND AMONG THE ISSUER AND BE AEROSPACE, INC., A COPY OF WHICH
IS ON FILE AT THE REGISTERED OFFICE OF THE ISSUER. SUCH AGREEMENT
PROVIDES FOR THE REQUIRED DIVESTITURE OR REPURCHASE OF SUCH SHARES
UNDER CERTAIN CIRCUMSTANCES.
2.2. Required Divestiture. BEA acknowledges and understands that the
Company and its Affiliates intend to conduct operations and/or enter into
contractual arrangements for the conduct of operations that will or may subject
the Company to laws and regulations regulating gaming and wagering, and that as
a result thereof, the Company may not have as a shareholder any person or entity
found to be unsuitable under such laws or regulations. In addition, as a result
of provisions in the Company's bye-laws and in contracts currently proposed to
be entered into by the Company and its Affiliates with Affiliates of Xxxxxx'x
Entertainment, Inc. (collectively, "HEI"), the Company is required and HEI has
required that any such person or entity be divested of its shareholdings in the
Company. Accordingly, in any of such events, the Company may give written
notice to BEA requiring BEA to divest itself immediately of all, but not less
Registrable Securities. If BEA does not so divest itself of such Registrable
Securities required by the notice from the Company HEI or to the time that such
failure may have a material adverse effect on the Company, the Company may, but
shall not be obligated to, purchase such Registrable Securities at a per share
price equal to one hundred twenty percent (120%) (or, if required by a
regulatory body having jurisdiction, one hundred percent (100%)) of the average
closing per share price for the Company's Common Stock in the United States in
the over-the-counter market as reported by NASDAQ or an equivalent generally
accepted reporting service or, if such Common Stock is so traded on the NASDAQ
National Market system or on any United States national securities exchange,
during the twenty (20) trading days preceding the date of the notice from the
Company. Upon any such purchase by the Company, the certificates for such
Registrable Securities shall be duly endorsed and surrendered to the Company,
and shall be accompanied by a certificate from the holder(s) thereof
representing and warranting that such person(s) have good and marketable title
to such Registrable Securities, free and clear of any and all adverse claims,
liens and encumbrances.
2.3. Notices. All notices, requests, consents and demands shall be in
writing and shall be personally delivered, mailed first class (air mail in the
case of international mail), postage prepaid, telecopied against confirmed
receipt,
to BEA at:
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BE Aerospace, Inc.
0000 Xxxxxxxxx Xxxxxx Xxx
Xxxxxxxxxx, Xxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxxxx, General Counsel
Telecopier: (000) 000-0000
with a copy to:
Ropes & Xxxx
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
X.X.X.
Attn: Xxxxxxxx X. Xxxxxx
Telecopier: (000) 000-0000
and to the Company at:
Sky Games International Ltd.
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, Xxxxxxx Xxxxxxxx X0X 0X0
Xxxxxx
Attn: Xxxxxxx X. Xxxxx
Telecopier: (000) 000-0000
with a copy to:
Altheimer & Xxxx
00 Xxxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxx X. XxXxxx
Telecopier: (000) 000-0000
or such other address as may be furnished in writing to the other parties
hereto. All such notices, requests, demands and other communication shall, when
mailed (registered or certified air mail, return receipt requested, postage
prepaid), personally delivered, telecopied or telegraphed, be effective seven
(7) days after deposit in the mails, when personally delivered, respectively,
addressed as aforesaid, unless otherwise provided herein and, when telecopied,
shall be effective upon actual confirmed receipt.
2.4. Entire Agreement. This Agreement constitutes the entire agreement of
the parties with respect to the matters contemplated herein. This Agreement
supersedes any and all prior understandings or agreements as to the subject
matter of this Agreement, including, without limitation, that Registration
Rights Agreement dated as of December 30, 1994 between the parties.
2.5. Amendments, Waivers and Consents. Any provision in this Agreement to
the contrary notwithstanding, changes in or additions to this Agreement may be
made, and compliance with any covenant or provision herein set forth may be
omitted or waived, if the Company (i) shall obtain consent thereto in writing
from persons holding or having the right to acquire an aggregate of at least a
majority of the aggregate
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of the Registrable Securities then outstanding and (ii) shall, in each such
case, deliver copies of such consent in writing to any Holders who did not
execute the same.
2.6. Binding Effect; Assignment. This Agreement shall be binding upon and
inure to the benefit of the personal representatives, successors and assigns of
the respective parties hereto.
2.7. General. The headings contained in this Agreement are for reference
purposes only and shall not in any way affect the meaning or interpretation of
this Agreement. In this Agreement the singular includes the plural, the plural,
the singular, the masculine gender includes the neuter, masculine and feminine
genders. This Agreement shall be governed by and construed under the laws of
the State of Delaware.
2.8. Severability. If any provisions of this Agreement shall be found by
any court of competent jurisdiction to be invalid or unenforceable, the parties
hereby waive such provision to the extent that it is found to be invalid or
unenforceable. Such provision shall, to the maximum extent allowable by law, be
modified by such court so that it becomes enforceable, and, as modified, shall
be enforced as any other provision hereof, all the other provisions hereof
continuing in full force and effect.
2.9. Counterparts. This Agreement may be executed in counterparts, all of
which together shall constitute one and the same instrument.
2.10. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws (other than the conflict of law rules) of Bermuda.
* * * * *
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IN WITNESS WHEREOF, the parties have caused this Registration Rights
Agreement to be duly executed as of the date first above written.
BE AEROSPACE, INC.
By:
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Title:
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SKY GAMES INTERNATIONAL LTD.
By:
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Title:
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