exv10w2



 







Exhibit 10.2




REGISTRATION RIGHTS AGREEMENT




     THIS REGISTRATION RIGHTS AGREEMENT (the “Agreement”) is made and entered into as of
May 30, 2005 by and between Midway Games Inc., a Delaware corporation (the “Company”), and
Banc of America Securities LLC (the “Initial Purchaser”), pursuant to that certain Purchase
Agreement, dated as of May 24, 2005 (the “Purchase Agreement”) between the Company and the
Initial Purchaser.



     In order to induce the Initial Purchaser to enter into the Purchase Agreement, the Company has
agreed to provide the registration rights set forth in this Agreement. The execution of this
Agreement is a condition to the closing under the Purchase Agreement.



     The Company agrees with the Initial Purchaser (i) for its benefit as Initial Purchaser and
(ii) for the benefit of the beneficial owners (including the Initial Purchaser) from time to time
of the Bonds (as defined herein) and the beneficial owners from time to time of the Underlying
Common Stock (as defined herein) issued upon conversion of the Bonds (each of the foregoing a
“Holder” and together the “Holders”), as follows:



     Section 1. Definitions. Capitalized terms used herein without definition shall have their
respective meanings set forth in the Purchase Agreement. As used in this Agreement, the following
terms shall have the following meanings:



     “Affiliate” means with respect to any specified person, an “affiliate,” as defined in
Rule 144, of such person.



     “Amendment Effectiveness Deadline Date” has the meaning set forth in Section 2(d)
hereof.



     “Applicable Conversion Price” means, as of any date of determination, $1,000 divided
by the Conversion Rate then in effect as of the date of determination or, if no Bonds are then
outstanding, the Conversion Rate that would be in effect were Bonds then outstanding.



     “Bonds” means the 7.125% Convertible Senior Notes due 2026 of the Company to be
purchased pursuant to the Purchase Agreement.



     “Business Day” means each day on which the New York Stock Exchange is open for
trading.



     “Common Stock” means the shares of common stock, par value $0.01 per share, of the
Company and any other shares of capital stock as may constitute “Common Stock” for purposes
of the Indenture, including the Underlying Common Stock.



     “Conversion Rate” has the meaning assigned to such term in the Indenture.



     “Damages Accrual Period” has the meaning set forth in Section 2(e) hereof.













 





     “Damages Payment Date” means each interest payment date under the Indenture in the
case of Bonds, and each May 31 and November 30 in the case of the Underlying Common Stock.



     “Effectiveness Deadline Date” has the meaning set forth in Section 2(a) hereof.



     “Effectiveness Period” means a period (subject to extension pursuant to Section 3(i)
hereof) of two years after the later of (1) the latest date the Bonds are issued and (2) the last
date that the Company or any of its Affiliates was the owner of such Bonds (or any predecessor
thereto), or such shorter period of time (x) as permitted by Rule 144(k) under the Securities Act
or any successor provisions thereunder or (y) that will terminate when each of the Registrable
Securities covered by the Shelf Registration Statement ceases to be a Registrable Security.



     “Event” has the meaning set forth in Section 2(e) hereof.



     “Event Date” has the meaning set forth in Section 2(e) hereof.



     “Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules
and regulations of the SEC promulgated thereunder.



     “Filing Deadline Date” has the meaning set forth in Section 2(a) hereof.



     “Free Writing Prospectus” means a free writing prospectus, as defined in Rule 405
under the Securities Act.



     “Holder” has the meaning set forth in the third paragraph of this Agreement.



     “Indenture” means the Indenture, dated as of May 30, 2006, between the Company and
Wells Fargo Bank, N.A., as trustee, pursuant to which the Bonds are being issued.



     “Initial Purchaser” has the meaning set forth in the preamble hereto.



     “Initial Shelf Registration Statement” has the meaning set forth in Section 2(a)
hereof.



     “Issue Date” means the first date of original issuance of the Bonds.



     “Issuer Free Writing Prospectus” means an issuer free writing prospectus, as defined
in Rule 433 under the Securities Act.



     “Liquidated Damages Amount” has the meaning set forth in Section 2(e) hereof.



     “Material Event” has the meaning set forth in Section 3(i) hereof.



     “Notice and Questionnaire” means a written notice and questionnaire delivered to the
Company containing substantially the information called for by the Selling Securityholder Notice
and Questionnaire attached as Annex A to the Offering Memorandum dated May 24, 2006 relating to the
Bonds.



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     “Notice Holder” means, on any date, any Holder that has delivered a properly completed
and signed Notice and Questionnaire to the Company on or prior to such date, so long as all of
their Registrable Securities that have been registered for resale pursuant to a Notice and
Questionnaire have not been sold in accordance with a Shelf Registration Statement.



     “Permitted Free Writing Prospectus” has the meaning set forth in Section 8(a) hereof.



     “Purchase Agreement” has the meaning set forth in the preamble hereof.



     “Prospectus” means the prospectus included in any Shelf Registration Statement
(including, without limitation, a prospectus that discloses information previously omitted from a
prospectus filed as part of an effective registration statement in reliance upon Rule 415
promulgated under the Securities Act), as amended or supplemented by any amendment or prospectus
supplement, including post-effective amendments, and all materials incorporated by reference or
explicitly deemed to be incorporated by reference in such Prospectus.



     “Record Holder” means (i) with respect to any Damages Payment Date relating to any
Bonds as to which any such Liquidated Damages Amount has accrued, the holder of record of such Bond
on the record date with respect to the interest payment date under the Indenture on which such
Damages Payment Date shall occur and (ii) with respect to any Damages Payment Date relating to the
Underlying Common Stock as to which any such Liquidated Damages Amount has accrued, the registered
holder of such Underlying Common Stock fifteen (15) days prior to such Damages Payment Date.



     “Registrable Securities” means the Bonds until such Bonds have been converted into the
Underlying Common Stock and, at all times the Underlying Common Stock and any securities into or
for which such Underlying Common Stock has been converted, and any security issued with respect
thereto upon any stock dividend, split or similar event until, in the case of any such security,
the earliest of (a) the date on which such security has been effectively registered under the
Securities Act and disposed of, whether or not in accordance with the Shelf Registration Statement;
(b) the date that is two years after the later of (1) the original issuance of the Bonds and (2)
the last date that the Company or any of its Affiliates was the owner of such Bonds (or any
predecessor thereto), or such shorter period of time as permitted by Rule 144(k) under the
Securities Act or any successor provision thereto; and (c) the date when such security has been
publicly sold pursuant to Rule 144 under the Securities Act or any successor provision thereto.



     “Registration Expenses” has the meaning set forth in Section 5 hereof.



     “Registration Statement” means any registration statement of the Company that covers
any of the Registrable Securities pursuant to the provisions of this Agreement including the
Prospectus, amendments and supplements to such registration statement, including post-effective
amendments, all exhibits, and all materials incorporated by reference or explicitly deemed to be
incorporated by reference in such registration statement.



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     “Rule 144” means Rule 144 under the Securities Act, as such Rule may be amended from
time to time, or any similar rule or regulation hereafter adopted by the SEC.



     “Rule 144A” means Rule 144A under the Securities Act, as such Rule may be amended from
time to time, or any similar rule or regulation hereafter adopted by the SEC.



     “SEC” means the Securities and Exchange Commission.



     “Securities Act” means the Securities Act of 1933, as amended, and the rules and
regulations promulgated by the SEC thereunder.



     “Shelf Registration Statement” has the meaning set forth in Section 2(a) hereof.



     “Subsequent Shelf Registration Statement” has the meaning set forth in Section 2(b)
hereof.



     “Suspension Notice” has the meaning set forth in Section 3(i) hereof.



     “Suspension Period” has the meaning set forth in Section 3(i) hereof.



     “TIA” means the Trust Indenture Act of 1939, as amended.



     “Trustee” means Wells Fargo Bank, N.A., the Trustee under the Indenture.



     “Underlying Common Stock” means the Common Stock into which the Bonds are convertible
or issued upon any such conversion.



     Section 2. Shelf Registration. (a) The Company shall prepare and file or cause to be prepared
and filed with the SEC, as soon as practicable but in any event by the date (the “Filing
Deadline Date”) that is ninety (90) days after the Issue Date, a Registration Statement for an
offering to be made on a delayed or continuous basis pursuant to Rule 415 of the Securities Act (a
“Shelf Registration Statement”) registering the resale from time to time by Holders thereof
of all of the Registrable Securities (the “Initial Shelf Registration Statement”). The
Initial Shelf Registration Statement shall be on Form S-1 or S-3 or another appropriate form
permitting registration of such Registrable Securities for resale by such Holders in accordance
with the reasonable methods of distribution elected by the Holders, approved by the Company, and
set forth in the Initial Shelf Registration Statement. The Company shall use its reasonable best
efforts to cause the Initial Shelf Registration Statement to be declared effective under the
Securities Act as promptly as is practicable but in any event by the date (the “Effectiveness
Deadline Date”) that is two hundred ten (210) days after the Issue Date, and to keep the
Initial Shelf Registration Statement (or any Subsequent Shelf Registration Statement) continuously
effective under the Securities Act until the expiration of the Effectiveness Period. At the time
the Initial Shelf Registration Statement is declared effective, each Holder that became a Notice
Holder on or prior to the date that is ten (10) Business Days prior to such time of effectiveness
shall be named as a selling securityholder in the Initial Shelf Registration Statement and the



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related Prospectus in such a manner as to permit such Holder to deliver such Prospectus to
purchasers of Registrable Securities in accordance with applicable law.



     (b) If the Initial Shelf Registration Statement or any Subsequent Shelf Registration Statement
ceases to be effective for any reason at any time during the Effectiveness Period, the Company
shall use its best efforts to obtain the prompt withdrawal of any order suspending the
effectiveness thereof, and in any event shall use its best efforts to, within thirty (30) days of
such cessation of effectiveness, amend the Shelf Registration Statement to the extent that an
amendment would be reasonably expected to obtain the withdrawal of the order suspending the
effectiveness thereof, or file an additional Shelf Registration Statement covering all of the
securities that as of the date of such filing are Registrable Securities (a “Subsequent Shelf
Registration Statement”). If a Subsequent Shelf Registration Statement is filed, the Company
shall use its best efforts to cause the Subsequent Shelf Registration Statement to become effective
as promptly as is practicable after such filing and to keep such Shelf Registration Statement (or
subsequent Shelf Registration Statement) continuously effective until the end of the Effectiveness
Period.



     (c) The Company shall supplement and amend the Shelf Registration Statement if required by the
rules, regulations or instructions applicable to the registration form used by the Company for such
Shelf Registration Statement, if required by the Securities Act.



     (d) Each Holder of Registrable Securities agrees that if such Holder wishes to sell
Registrable Securities pursuant to a Shelf Registration Statement and related Prospectus, it will
do so only in accordance with this Section 2(d) and Section 3(i). Each Holder of Registrable
Securities wishing to sell Registrable Securities pursuant to a Shelf Registration Statement and
related Prospectus agrees to deliver a completed and executed Notice and Questionnaire to the
Company prior to any attempted or actual distribution of Registrable Securities under the Shelf
Registration Statement; provided that Holders of Registrable Securities shall have at least
twenty (20) Business Days from the date on which the Notice and Questionnaire is first sent to such
Holders by the Company to complete and return the Notice and Questionnaire to the Company. From
and after the date the Initial Shelf Registration Statement is declared effective, the Company
shall, as promptly as practicable after the date a Notice and Questionnaire is delivered, and in
any event within the later of (x) five (5) Business Days after such date or (y) five (5) Business
Days after the expiration of any Suspension Period (1) in effect when the Notice and Questionnaire
is delivered or (2) put into effect within five (5) Business Days of such delivery date (the later
of (x) and (y) being referred to herein as the “Amendment Filing Deadline Date”), (i) if
required by applicable law, file with the SEC a post-effective amendment to the Shelf Registration
Statement or, if required by applicable law, prepare and file a supplement to the related
Prospectus or a supplement or amendment to any document incorporated therein by reference or file
any other required document so that the Holder delivering such Notice and Questionnaire is named as
a selling securityholder in the Shelf Registration Statement and the related Prospectus in such a
manner as to permit such Holder to deliver such Prospectus to purchasers of the Registrable
Securities in accordance with applicable law and, if the Company shall file a post-effective
amendment to the Shelf Registration Statement, use its best efforts to cause such post-effective
amendment to be declared effective under the Securities Act as



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promptly as is practicable, but in
any event by the date (the “Amendment Effectiveness Deadline Date”) that is forty-five (45)
days after the date such post-effective amendment is required by this clause to be filed; (ii)
provide such Holder a reasonable number of copies of any documents filed pursuant to Section
2(d)(i); and (iii) notify such Holder as promptly as practicable after the effectiveness under the
Securities Act of any post-effective amendment filed pursuant to Section 2(d)(i); provided
that if such Notice and Questionnaire is delivered during a Suspension Period, or a Suspension
Period is put into effect within five (5) Business Days after such delivery date, the Company shall
so inform the Holder delivering such Notice and Questionnaire and shall take the actions set forth
in clauses (i), (ii) and (iii) above within five (5) Business Days after expiration of the
Suspension Period in accordance with Section 3(i); provided further that if under
applicable law, the Company has more than one option as to the type or manner of making any such
filing, the Company shall make the required filing or filings in the manner or of a type that is
reasonably expected to result in the earliest availability of the Prospectus for effecting resales
of Registrable Securities; provided further that the Company shall not be required to file
more than one supplement to the Prospectus pursuant to Section 2(d)(i) above per 30-day period to
name as a selling securityholder any Holder that has provided us with a completed and executed
Notice and Questionnaire after the 45th day following the effective date of the Initial
Shelf Registration Statement and the Company shall not be required to file more than one
post-effective amendment or new registration statement pursuant to Section 2(d)(i) above per 90-day
period to permit resales by Holders seeking to include Registrable Securities in the Shelf
Registration Statement after the effective date of the Initial Shelf Registration Statement.
Notwithstanding anything contained herein to the contrary, the Company shall be under no obligation
to name any Holder that is not a Notice Holder as a selling securityholder in any Shelf
Registration Statement or related Prospectus; provided, however, that any Holder
that becomes a Notice Holder pursuant to the provisions of this Section 2(d) (whether or not such
Holder was a Notice Holder at the time the Shelf Registration Statement was declared effective)
shall be named as a selling securityholder in the Shelf Registration Statement or related
Prospectus in accordance with the requirements of this Section 2(d).



     (e) The parties hereto agree that the Holders of Registrable Securities will suffer damages,
and that it would not be feasible to ascertain the extent of such damages with precision, if (i)
the Initial Shelf Registration Statement has not been filed on or prior to the Filing Deadline
Date, (ii) the Initial Shelf Registration Statement has not been declared effective under the
Securities Act on or prior to the Effectiveness Deadline Date, (iii) a Holder of Registrable
Securities has delivered a completed and executed Notice and Questionnaire to the Company after the
fifth (5th) Business Day before the Initial Shelf Registration Statement is declared
effective, but the Company fails to file in accordance with Section 2(d) a post-effective amendment
to the Shelf Registration Statement, a supplement to the related Prospectus or a supplement or
amendment to other documents as provided for in Section 2(d) on or prior to the Amendment Filing
Deadline Date or fails to have such an amendment to the Shelf Registration Statement declared
effective on or prior to the Amendment Effectiveness Deadline Date, (iv) the Initial Shelf
Registration Statement is filed and declared effective but shall thereafter cease to be effective
(without being succeeded immediately by an additional registration statement filed and declared
effective) or usable for the offer and sale of Registrable Securities for a period of time



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(including any Suspension Period) which shall exceed forty-five (45) days in the aggregate in any
three (3) month period or ninety (90) days in the aggregate in any twelve (12) month period, or (v)
the Company fails to name as a selling securityholder in the Shelf Registration Statement or any
amendment thereto at the time it becomes effective under the Securities Act, or in any related
Prospectus at the time the Company files the Prospectus with the SEC, any Holder of Registrable
Securities that is entitled to be so named as a selling securityholder (each of the events of a
type described in any of the foregoing clauses (i) through (v) are individually referred to herein
as an “Event,” and the Filing Deadline Date in the case of clause (i), the Effectiveness
Deadline Date in the case of clause (ii), the Amendment Filing Deadline Date or the Amendment
Effectiveness Deadline Date in the case of clause (iii), the date on which the duration of the
ineffectiveness or unusability of the Initial Shelf Registration Statement in any period exceeds
the number of days permitted by clause (iv) hereof in the case of clause (iv) and the date of
effectiveness or filing in which the relevant Holder of Registrable Securities has failed to be
named as a selling securityholder in the case of clause (v), being referred to herein as an
“Event Date”). Events shall be deemed to continue until the following dates with respect to
the respective types of Events: the date the Initial Shelf Registration Statement is filed in the
case of an Event of the type described in clause (i), the date the Initial Shelf Registration
Statement is declared effective under the Securities Act in the case of an Event of the type
described in clause (ii), the date the relevant amendment to the Shelf Registration Statement or
Prospectus is filed or the date the relevant amendment to the Shelf Registration Statement is
declared effective under the Securities Act, as the case may be, in the case of an Event of the
type described in clause (iii), the date the Initial Shelf Registration Statement becomes effective
or usable again in the case of an Event of the type described in clause (iv), the date the relevant
Holder of Registrable Securities has been named in the Shelf Registration Statement or any
amendment thereto or in any related Prospectus in the case of an Event of the type described in
clause (v).



     Accordingly, commencing on (and including) any Event Date and ending on (but excluding) the
next date on which there are no Events that have occurred and are continuing (a “Damages
Accrual Period”), the Company agrees to pay, as liquidated damages and not as a penalty, an
amount (the “Liquidated Damages Amount”) at the rate described below, payable periodically
on each Damages Payment Date to Record Holders of Bonds that are Registrable Securities and of
shares of Underlying Common Stock issued upon conversion of Bonds that are Registrable Securities,
as the case may be, to the extent of, for each such Damages Payment Date, accrued and unpaid
Liquidated Damages Amount to (but excluding) such Damages Payment Date (or, if the Damages Accrual
Period shall have ended prior to such Damages Payment Date, the date of the end of the Damages
Accrual Period); provided that any Liquidated Damages Amount accrued with respect to any
Bond or portion thereof called for redemption on a redemption date or converted into Underlying
Common Stock on a conversion date prior to the Damages Payment Date, shall, in any such event, be
paid instead to the Holder who submitted such Bond or portion thereof for redemption or conversion
on the applicable redemption date or conversion date, as the case may be, on such date (or promptly
following the conversion date, in the case of conversion). The Liquidated Damages Amount shall
accrue at a rate per annum equal to one-quarter of one percent (0.25%) for the first 90-day period
from the Event Date, and thereafter at a rate per annum equal to one-half of one percent (0.5%) of
(i) the principal amount



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of such Bonds or, without duplication, (ii) in the case of Bonds that have
been converted into Underlying Common Stock, the Applicable Conversion Price of such shares of
Underlying Common Stock, as the case may be, in each case determined as of the Business Day
immediately preceding the next Damages Payment Date. Notwithstanding the foregoing, no Liquidated
Damages Amounts shall accrue as to any Registrable Security from and after the earlier of (x) the
date such security is no longer a Registrable Security and (y) expiration of the Effectiveness
Period. The rate of accrual of the Liquidated Damages Amount with respect to any period shall not
exceed the rate provided for in this paragraph notwithstanding the occurrence of multiple
concurrent Events. Following the cure of all Events requiring the payment by the Company of
Liquidated Damages Amounts to the Holders of Registrable Securities pursuant to this Section, the
accrual of Liquidated Damages Amounts shall cease (without in any way limiting the effect of any
subsequent Event requiring the payment of Liquidated Damages Amount by the Company).
Notwithstanding the foregoing, in no event will a Liquidated Damages Amount be payable in
connection with a failure to register the Underlying Common Stock. For the avoidance of doubt, if
the Company fails to register both the Bonds and the Underlying Common Stock, then the Liquidated
Damages Amount shall be payable in connection with the failure to register the Bonds.



     The Trustee shall be entitled, on behalf of Holders of Bonds, to seek any available remedy for
the enforcement of this Agreement, including for the payment of any Liquidated Damages Amount.
Notwithstanding the foregoing, the parties agree that the sole damages payable for a violation of
the terms of this Agreement with respect to which liquidated damages are expressly provided shall
be such liquidated damages.



     All of the Company’s obligations set forth in this Section 2(e) that are outstanding with
respect to any Registrable Security at the time such security ceases to be a Registrable Security
shall survive until such time as all such obligations with respect to such security have been
satisfied in full (notwithstanding termination of this Agreement pursuant to Section 8(l)).



     The parties hereto agree that the liquidated damages provided for in this Section 2(e)
constitute a reasonable estimate of the damages that may be incurred by Holders of Registrable
Securities by reason of the failure of the Shelf Registration Statement to be filed or declared
effective or available for effecting resales of Registrable Securities in accordance with the
provisions hereof.



     Section 3. Registration Procedures. In connection with the registration obligations of the
Company under Section 2 hereof, the Company shall:



     (a) Prepare and file with the SEC a Shelf Registration Statement or Shelf Registration
Statements on Form S-1 or S-3 or any other appropriate form under the Securities Act available for
the sale of the Registrable Securities by the Holders thereof in accordance with the intended
method or methods of distribution thereof, and use its reasonable best efforts to cause each such
Shelf Registration Statement to become effective and remain effective as provided herein;
provided that before filing any Shelf Registration Statement or Prospectus or any
amendments or supplements thereto with the SEC, the Company shall furnish to the Initial Purchaser
and



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counsel for the Holders and for the Initial Purchaser (or, if applicable, separate counsel for
the Holders) copies of all such documents proposed to be filed and use its reasonable best efforts
to reflect in each such document when so filed with the SEC such comments as the such counsel
reasonably shall propose within three (3) Business Days of the delivery of such copies to the
Initial Purchaser and such counsel.



     (b) Prepare and file with the SEC such amendments and post-effective amendments to each Shelf
Registration Statement as may be necessary to keep such Shelf Registration Statement continuously
effective until the expiration of the Effectiveness Period; cause the related Prospectus to be
supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to
Rule 424 (or any similar provisions then in force) under the Securities Act; and use its best
efforts to comply with the provisions of the Securities Act applicable to it with respect to the
disposition of all securities covered by such Shelf Registration Statement during the Effectiveness
Period in accordance with the intended methods of disposition by the sellers thereof set forth in
such Shelf Registration Statement as so amended or such Prospectus as so supplemented.



     (c) As promptly as practicable give notice to the Notice Holders, the Initial Purchaser and
counsel for the Holders and for the Initial Purchaser (or, if applicable, separate counsel for the
Holders) (i) when any Prospectus, Prospectus supplement, Issuer Free Writing Prospectus, Shelf
Registration Statement or post-effective amendment to a Shelf Registration Statement has been filed
with the SEC and, with respect to a Shelf Registration Statement or any post-effective amendment,
when the same has been declared effective, (ii) of any request, following the effectiveness of the
Initial Shelf Registration Statement under the Securities Act, by the SEC or any other federal or
state governmental authority for amendments or supplements to any Shelf Registration Statement,
related Prospectus or Issuer Free Writing Prospectus or for additional information, (iii) of the
issuance by the SEC or any other federal or state governmental authority of any stop order
suspending the effectiveness of any Shelf Registration Statement or the initiation or threatening
of any proceedings for that purpose, (iv) of the receipt by the Company of any notification with
respect to the suspension of the qualification or exemption from qualification of any of the
Registrable Securities for sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose, (v) after the effective date of any Shelf Registration Statement filed
pursuant to this Agreement of the occurrence of (but not the nature of or details concerning) a
Material Event, and (vi) of the determination by the Company that a post-effective amendment to a
Shelf Registration Statement will be filed with the SEC, which notice may, at the discretion of the
Company (or as required pursuant to Section 3(i)), state that it constitutes a Suspension Notice,
in which event the provisions of Section 3(i) shall apply.



     (d) Use its best efforts to prevent the issuance of, and, if issued, to obtain the withdrawal
of any order suspending the effectiveness of a Shelf Registration Statement or the lifting of any
suspension of the qualification (or exemption from qualification) of any of the Registrable
Securities for sale in any jurisdiction in which they have been qualified for sale, in either case
at the earliest possible moment, and provide prompt notice to each Notice Holder and the Initial
Purchaser of the withdrawal of any such order.



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     (e) If requested by the Initial Purchaser or any Notice Holder, as promptly as practicable
incorporate in an Issuer Free Writing Prospectus, a Prospectus supplement or post-effective
amendment to a Shelf Registration Statement such information as the Initial Purchaser, such Notice
Holder or counsel for the Holders and for the Initial Purchaser (or, if applicable, separate
counsel for the Holders) shall determine to be required to be included therein to correct any
untrue statement of a material fact or any omission of a material fact necessary to make the
statements therein not misleading or by applicable law, and make any required filings of such
Issuer Free Writing Prospectus, Prospectus supplement or such post-effective amendment;
provided that the Company shall not be required to take any actions under this Section 3(e)
if it receives written advice of counsel that the incorporation of such information is not required
by applicable law.



     (f) As promptly as practicable furnish to each Notice Holder, counsel for the Holders and for
the Initial Purchaser (or, if applicable, separate counsel for the Holders) and the Initial
Purchaser, without charge, at least one (1) conformed copy of the Shelf Registration Statement and
any amendment thereto, including financial statements but excluding schedules, all documents
incorporated or deemed to be incorporated therein by reference and all exhibits (unless requested
in writing to the Company by such Notice Holder, such counsel or the Initial Purchaser).



     (g) During the Effectiveness Period, deliver to each Notice Holder, counsel for the Holders
and for the Initial Purchaser (or, if applicable, separate counsel for the Holders) and the Initial
Purchaser, in connection with any sale of Registrable Securities pursuant to a Shelf Registration
Statement, without charge, as many copies of the Prospectus or Prospectuses relating to such
Registrable Securities (including each preliminary prospectus) and Issuer Free Writing Prospectus
or Prospectuses (in each case including any amendment or supplement thereto) as such Notice Holder
and the Initial Purchaser may reasonably request; and the Company hereby consents (except during
such periods that a Suspension Notice is outstanding and has not been revoked) to the use of such
Prospectus and Issuer Free Writing Prospectus (in each case including each amendment or supplement
thereto) by each Notice Holder, in connection with any offering and sale of the Registrable
Securities covered by such Prospectus and any amendment or supplement thereto in the manner set
forth therein.



     (h) Prior to any public offering of the Registrable Securities pursuant to the Shelf
Registration Statement, use its best efforts to register or qualify or cooperate with the Notice
Holders in connection with the registration or qualification (or exemption from such registration
or qualification) of such Registrable Securities for offer and sale under the securities or Blue
Sky laws of such jurisdictions within the United States as any Notice Holder reasonably requests in
writing (which request may be included in the Notice and Questionnaire); prior to any public
offering of the Registrable Securities pursuant to the Shelf Registration Statement, use its best
efforts to keep each such registration or qualification (or exemption therefrom) effective during
the Effectiveness Period in connection with such Notice Holder’s offer and sale of Registrable
Securities pursuant to such registration or qualification (or exemption therefrom) and do any and
all other acts or things reasonably necessary or advisable to enable the disposition in such
jurisdictions of such Registrable Securities in the manner set forth in the relevant Shelf



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Registration Statement and the related Prospectus; provided that the Company will not be
required to (i) qualify as a foreign corporation or as a dealer in securities in any jurisdiction
where it would not otherwise be required to qualify but for this Agreement or (ii) take any action
that would subject it to general service of process in suits or to taxation in any such
jurisdiction where it is not then so subject.



     (i) Upon (A) the issuance by the SEC of a stop order suspending the effectiveness of the Shelf
Registration Statement or the initiation of proceedings with respect to the Shelf Registration
Statement under Section 8(d) or 8(e) of the Securities Act, (B) the occurrence of any event or the
existence of any fact as a result of which any Shelf Registration Statement shall contain any
untrue statement of a material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading, or any Prospectus or Issuer
Free Writing Prospectus shall contain any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading, or (C) the occurrence or existence of any pending
corporate development (a “Material Event”) that, in the reasonable discretion of the
Company, makes it appropriate to suspend the availability of the Shelf Registration Statement and
the related Prospectus and any related Issuer Free Writing Prospectus, (i) in the case of clause
(B) or (C) above, subject to the next sentence, as promptly as practicable, prepare and file, if
necessary pursuant to applicable law, a post-effective amendment to such Shelf Registration
Statement or a supplement to the related Prospectus, relevant Issuer Free Writing Prospectus or any
document incorporated therein by reference or file any other required document that would be
incorporated by reference into such Shelf Registration Statement, Prospectus or Issuer Free Writing
Prospectus so that such Shelf Registration Statement does not contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein or necessary to make
the statements therein not misleading, and such Prospectus and any such Issuer Free Writing
Prospectus does not contain any untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading (it being understood that the Company may rely on information
provided by each Notice Holder with respect to such Notice Holder), as thereafter delivered to the
purchasers of the Registrable Securities being sold thereunder, and, in the case of a
post-effective amendment to a Shelf Registration Statement, subject to the next sentence, use its
best efforts to cause it to be declared effective as promptly as is practicable, and (ii) give
notice to the Notice Holders and counsel for the Holders and for the Initial Purchaser (or, if
applicable, separate counsel for the Holders) that the availability of the Shelf Registration
Statement is suspended (a “Suspension Notice”) and, upon receipt of any Suspension Notice,
each Notice Holder agrees not to sell any Registrable Securities pursuant to such Shelf
Registration Statement until such Notice Holder’s receipt of copies of the supplemented or amended
Prospectus as provided for in clause (i) above, or until it is advised in writing by the Company
that the Prospectus and any applicable Issuer Free Writing Prospectus may be used, and has received
copies of any additional or supplemental filings that are incorporated or deemed incorporated by
reference in such Prospectus or Issuer Free Writing Prospectus. The Company will use its best
efforts to ensure that the use of the Prospectus may be resumed (x) in the case of clause (A)
above, as promptly as is practicable, (y) in the case of



11









 







clause (B) above, as soon as, in the
reasonable judgment of the Company, the Shelf Registration Statement does not contain any untrue
statement of a material fact or omits to state any material fact required to be stated therein or
necessary to make the statements therein not misleading and the Prospectus and Issuer Free Writing
Prospectus does not contain any untrue statement of a material fact or omits to state any material
fact necessary in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading, and (z) in the case of clause (C) above, as soon as, in the
reasonable discretion of the Company, such suspension is no longer appropriate. The period during
which the availability of the Shelf Registration Statement and any Prospectus and Issuer Free
Writing Prospectus may be suspended (the “Suspension Period”) without the Company incurring
any obligation to pay liquidated damages pursuant to Section 2(e) shall not exceed forty-five (45)
days in any three (3) month period and ninety (90) days in any twelve (12) month period. The
Effectiveness Period shall be extended by the number of days from and including the date of the
giving of the Suspension Notice to and including the date on which the Notice Holder received
copies of the supplemented or amended Prospectus (including by means of an Issuer Free Writing
Prospectus) or of the relevant Issuer Free Writing Prospectus, each as provided for in clause (i)
above, or the date on which it is advised in writing by the Company that the Prospectus may be
used, and has received copies of any additional or supplemental filings that are incorporated or
deemed incorporated by reference in such Prospectus or Issuer Free Writing Prospectus.



     (j) Make available for inspection during normal business hours by representatives for the
Notice Holders of such Registrable Securities, and any broker-dealers, attorneys and accountants
retained by such Notice Holders, all relevant financial and other records and pertinent corporate
documents and properties of the Company and its subsidiaries, and cause the appropriate officers,
directors and employees of the Company and its subsidiaries to make available for inspection during
normal business hours all relevant information reasonably requested by such representatives for the
Notice Holders, or any such broker-dealers, attorneys or accountants in connection with such
disposition, in each case as is customary for similar “due diligence” examinations;
provided, however, that such persons shall, at the Company’s request, first agree
in writing with the Company that any information that is reasonably and in good faith designated by
the Company in writing as confidential at the time of delivery of such information shall be kept
confidential by such persons and shall be used solely for the purposes of exercising rights under
this Agreement, unless (i) disclosure of such information is required by court or administrative
order or is necessary to respond to inquiries of regulatory authorities, (ii) disclosure of such
information is required by law (including any disclosure requirements pursuant to federal
securities laws in connection with the filing of any Shelf Registration Statement or the use of any
Prospectus or Issuer Free Writing Prospectus referred to in this Agreement), (iii) such information
becomes generally available to the public other than as a result of a disclosure or failure to
safeguard by any such person or (iv) such information becomes available to any such person from a
source other than the Company and such source is not bound by a confidentiality agreement or is not
otherwise under a duty of trust to the Company, and provided that the foregoing inspection
and information gathering shall, to the greatest extent possible, be coordinated on behalf of all
the Notice Holders and the other parties entitled thereto by the counsel referred to in Section 5.



12









 





     (k) Comply with all applicable rules and regulations of the SEC and make generally available
to its securityholders earning statements (which need not be audited) satisfying the provisions of
Section 11(a) of the Securities Act and Rule 158 thereunder (or any similar rule promulgated under
the Securities Act) no later than 45 days after the end of any 12-month period (or 90 days after
the end of any 12-month period if such period is a fiscal year) commencing on the first day of the
first fiscal quarter of the Company commencing after the effective date of a Shelf Registration
Statement, which statements shall cover said 12-month periods.



     (l) Cooperate with each Notice Holder to facilitate the timely preparation and delivery of
certificates representing Registrable Securities sold pursuant to a Shelf Registration Statement,
which certificates shall not bear any restrictive legends, and cause such Registrable Securities to
be in such denominations as are permitted by the Indenture and registered in such names as such
Notice Holder may request in writing at least (2) Business Days prior to any sale of such
Registrable Securities.



     (m) Provide a CUSIP number for all Registrable Securities covered by each Shelf Registration
Statement not later than the effective date of such Shelf Registration Statement and provide the
Trustee and the transfer agent for the Common Stock with certificates for the Registrable
Securities that are in a form eligible for deposit with The Depository Trust Company.



     (n) Cooperate and assist in any filings required to be made with the National Association of
Securities Dealers, Inc.



     (o) Upon (i) the filing of the Initial Registration Statement and (ii) the effectiveness of
the Initial Registration Statement, announce the same, in each case by release to Reuters Economic
Services and Bloomberg Business News.



     (p) Enter into such customary agreements and take all such other necessary actions in
connection therewith (including those reasonably requested by the holders of a majority of the
Registrable Securities being sold) in order to expedite or facilitate disposition of such
Registrable Securities.



     (q) Cause the Indenture to be qualified under the TIA not later than the effective date of any
Shelf Registration Statement; and in connection therewith, cooperate with the Trustee to effect
such changes to the Indenture as may be required for the Indenture to be so qualified in accordance
with the terms of the TIA and execute, and use its best efforts to cause the Trustee to execute,
all documents as may be required to effect such changes, and all other forms and documents required
to be filed with the SEC to enable the Indenture to be so qualified in a timely manner.



     Section 4. Holder’s Obligations. Each Holder agrees, by acquisition of the Registrable
Securities, that no Holder of Registrable Securities shall be entitled to sell any of such
Registrable Securities pursuant to a Shelf Registration Statement or to receive a Prospectus
relating thereto, unless such Holder has furnished the Company with a properly completed and
executed Notice and Questionnaire as required pursuant to Section 2(d) hereof (including the



13









 







information required to be included in such Notice and Questionnaire) and the information set forth
in the next sentence. Each Notice Holder agrees promptly to furnish to the Company all information
required to be disclosed in order to make the information previously furnished to the Company by
such Notice Holder not misleading and any other information regarding such Notice Holder and the
distribution of such Registrable Securities as the Company may from time to time reasonably
request. Any sale of any Registrable Securities by any Holder shall constitute a representation and
warranty by such Holder that the information relating to such Holder and its plan of distribution
is as set forth in the Prospectus delivered by such Holder in connection with such disposition,
that such Prospectus does not as of the time of such sale contain any untrue statement of a
material fact relating to or provided by such Holder or its plan of distribution and that such
Prospectus does not as of the time of such sale omit to state any material fact relating to or
provided by such Holder or its plan of distribution necessary in order to make the statements in
such Prospectus, in the light of the circumstances under which they were made, not misleading.



     Section 5. Registration Expenses. The Company shall bear all fees and expenses incurred in
connection with the performance by the Company of its obligations under Section 2 and 3 of this
Agreement whether or not any of the Shelf Registration Statements are declared effective. Such fees
and expenses (“Registration Expenses”) shall include, without limitation, (i) all
registration and filing fees (including, without limitation, fees and expenses (x) with respect to
filings required to be made with the National Association of Securities Dealers, Inc. and (y) of
compliance with federal and state securities or Blue Sky laws (including, without limitation,
reasonable fees and disbursements of one counsel for the Holders in connection with Blue Sky
qualifications of the Registrable Securities under the laws of such jurisdictions as the Notice
Holders of a majority of the Registrable Securities being sold pursuant to a Shelf Registration
Statement may designate), (ii) printing expenses (including, without limitation, expenses of
printing certificates for Registrable Securities in a form eligible for deposit with The Depository
Trust Company), (iii) duplication and mailing expenses relating to copies of any Shelf Registration
Statement, Prospectus or Issuer Free Writing Prospectus delivered to any Holders hereunder, (iv)
fees and disbursements of counsel for the Company and the reasonable fees and disbursements of one
counsel for the Holders in connection with the Shelf Registration Statement, which Holders’ counsel
fees and disbursements shall not exceed $50,000, (v) fees and disbursements of the Trustee and its
counsel and of the registrar and transfer agent for the Common Stock and (vi) Securities Act
liability insurance obtained by the Company in its sole discretion. In addition, the Company shall
pay the internal expenses of the Company (including, without limitation, all salaries and expenses
of officers and employees performing legal or accounting duties), the expense of any annual audit,
the fees and expenses incurred in connection with the listing by the Company of the Registrable
Securities on any securities exchange on which similar securities of the Company are then listed
and the fees and expenses of any person, including special experts, retained by the Company.



     Section 6. Indemnification; Contribution.



     (a) The Company agrees to indemnify, defend and hold harmless each Holder and each person who
controls any Holder within the meaning of Section 15 of the Securities Act or



14









 







Section 20 of the
Exchange Act (each, a “Holder Indemnified Party”), from and against any loss, damage,
expense, liability or claim (including the reasonable cost of investigation) which such Holder
Indemnified Party may incur under the Securities Act, the Exchange Act or otherwise, insofar as
such loss, damage, expense, liability or claim arises out of or is based upon any untrue statement
or alleged untrue statement of a material fact contained in any Shelf Registration Statement or
Prospectus (or in any amendment or supplement thereto), preliminary prospectus or Issuer Free
Writing Prospectus (or in any amendment or supplement thereto), or arises out of or is based upon
any omission or alleged omission to state a material fact required to be stated in any Shelf
Registration Statement or in any amendment or supplement thereto or necessary to make the
statements therein not misleading, or arises out of or is based upon any omission or alleged
omission to state a material fact necessary in order to make the statements made in any Prospectus
(or in any amendment or supplement thereto), preliminary prospectus or Issuer Free Writing
Prospectus (or in any amendment or supplement thereto), in the light of the circumstances under
which they were made, not misleading, except insofar as any such loss, damage, expense, liability
or claim arises out of or is based upon any untrue statement or omission or alleged untrue
statement or omission of a material fact contained in, or omitted from, and in conformity with
information furnished in writing by or on behalf of any Holder to the Company expressly for use
therein.



     (b) Each Holder, severally and not jointly, agrees to indemnify, defend and hold harmless the
Company, its directors and officers and any person who controls the Company within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act (each, a “Company
Indemnified Party”) from and against any loss, damage, expense, liability or claim (including
the reasonable cost of investigation) which such Company Indemnified Party may incur under the
Securities Act, the Exchange Act or otherwise, insofar as such loss, damage, expense, liability or
claim arises out of or is based upon (i) any untrue statement or alleged untrue statement of a
material fact contained in information furnished in writing by or on behalf of such Holder to the
Company expressly for use in any Shelf Registration Statement or Prospectus (or in any amendment or
supplement thereto) or in any preliminary prospectus or in any Free Writing Prospectus (or in any
amendment or supplement thereto), or arises out of or is based upon any omission or alleged
omission to state a material fact required to be stated in any Shelf Registration Statement or in
any amendment or supplement thereto or necessary to make the statements therein not misleading, or
arises out of or is based upon any omission or alleged omission to state a material fact necessary
in order to make the statements in any Prospectus (or in any amendment or supplement thereto) or in
any preliminary prospectus or in any Free Writing Prospectus (or in any amendment or supplement
thereto), in the light of the circumstances under which they were made, not misleading, in
connection with such information and (ii) any Free Writing Prospectus used by such Holder without
the prior written consent of the Company, provided that the indemnification obligation in this
clause (ii) shall be several, not joint and several, among the Holders who used such Free Writing
Prospectus. In no event shall the liability of any selling Holder of Registrable Securities
hereunder be greater in amount than the dollar amount of the proceeds received by such Holder upon
the sale of the Registrable Securities pursuant to the Shelf Registration Statement giving rise to
such indemnification obligation.



15









 





     (c) If any action, suit or proceeding (each, a “Proceeding”) is brought against any
person in respect of which indemnity may be sought pursuant to either subsection (a) or (b) of this
Section 6, such person (the “Indemnified Party”) shall promptly notify the person against
whom such indemnity may be sought (the “Indemnifying Party”) in writing of the institution
of such Proceeding and the Indemnifying Party shall assume the defense of such Proceeding;
provided, however, that the omission to notify such Indemnifying Party shall not
relieve such Indemnifying Party from any liability which it may have to such Indemnified Party or
otherwise. Such Indemnified Party shall have the right to employ its own counsel in any such case,
but the fees and expenses of such counsel shall be at the expense of such Indemnified Party unless
the employment of such counsel shall have been authorized in writing by such Indemnifying Party in
connection with the defense of such Proceeding or such Indemnifying Party shall not have employed
counsel to have charge of the defense of such Proceeding within 30 days of the receipt of notice
thereof or such Indemnified Party shall have reasonably concluded upon the written advice of
counsel that there may be one or more defenses available to it that are different from, additional
to or in conflict with those available to such Indemnifying Party (in which case such Indemnifying
Party shall not have the right to direct that portion of the defense of such Proceeding on behalf
of the Indemnified Party, but such Indemnifying Party may employ counsel and participate in the
defense thereof but the fees and expenses of such counsel shall be at the expense of such
Indemnifying Party), in any of which events such reasonable fees and expenses shall be borne by
such Indemnifying Party and paid as incurred (it being understood, however, that such Indemnifying
Party shall not be liable for the expenses of more than one separate counsel in any one Proceeding
or series of related Proceedings together with reasonably necessary local counsel representing the
Indemnified Parties who are parties to such action). An Indemnifying Party shall not be liable for
any settlement of such Proceeding effected without the written consent of such Indemnifying Party,
but if settled with the written consent of such Indemnifying Party, such Indemnifying Party agrees
to indemnify and hold harmless an Indemnified Party from and against any loss or liability by
reason of such settlement. Notwithstanding the foregoing sentence, if at any time an Indemnified
Party shall have requested an Indemnifying Party to reimburse such Indemnified Party for fees and
expenses of counsel as contemplated by the second sentence of this paragraph, then such
Indemnifying Party agrees that it shall be liable for any settlement of any Proceeding effected
without its written consent if (i) such settlement is entered into more than 60 Business Days after
receipt by such Indemnifying Party of the aforesaid request, (ii) such Indemnifying Party shall not
have reimbursed such Indemnified Party in accordance with such request prior to the date of such
settlement and (iii) such Indemnified Party shall have given such Indemnifying Party at least 30
days’ prior notice of its intention to settle. No Indemnifying Party shall, without the prior
written consent of any Indemnified Party, effect any settlement of any pending or threatened
Proceeding in respect of which such Indemnified Party is or could have been a party and indemnity
could have been sought hereunder by such Indemnified Party, unless such settlement includes an
unconditional release of such Indemnified Party from all liability on claims that are the subject
matter of such Proceeding and does not include an admission of fault, culpability or a failure to
act, by or on behalf of such Indemnified Party.



16









 





     (d) If the indemnification provided for in this Section 6 is unavailable to an Indemnified
Party under subsections (a) and (b) of this Section 6 in respect of any losses, damages, expenses,
liabilities or claims referred to therein, then each applicable Indemnifying Party, in lieu of
indemnifying such Indemnified Party, shall contribute to the amount paid or payable by such
Indemnified Party as a result of such losses, damages, expenses, liabilities or claims (i) in such
proportion as is appropriate to reflect the relative benefits received by the Company on the one
hand and the Holders on the other hand from the offering of the Registrable Securities or (ii) if
the allocation provided by clause (i) above is not permitted by applicable law, in such proportion
as is appropriate to reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of the Company on the one hand and of the Holders on the other in
connection with the statements or omissions which resulted in such losses, damages, expenses,
liabilities or claims, as well as any other relevant equitable considerations. The relative fault
of the Company on the one hand and of the Holders on the other shall be determined by reference to,
among other things, whether the untrue statement or alleged untrue statement of a material fact or
omission or alleged omission relates to information supplied by the Company or by the Holders and
the parties’ relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The amount paid or payable by a party as a result of the
losses, damages, expenses, liabilities and claims referred to above shall be deemed to include any
reasonable legal or other fees or expenses reasonably incurred by such party in connection with
investigating or defending any Proceeding.



     (e) The Company and the Holders agree that it would not be just and equitable if contribution
pursuant to this Section 6 were determined by pro rata allocation or by any other method of
allocation which does not take account of the equitable considerations referred to in subsection
(d) above. Notwithstanding the provisions of this Section 6, no Holder shall be required to
contribute any amount in excess of the amount by which the total price at which the Registrable
Securities sold by it were offered to the public exceeds the amount of any damages which it has
otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or
alleged 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 misrepresentation. The Holders’ respective obligations to contribute pursuant
to this Section 6 are several in proportion to the respective amount of Registrable Securities they
have sold pursuant to a Shelf Registration Statement, and not joint. The remedies provided for in
this Section 6 are not exclusive and shall not limit any rights or remedies which may otherwise be
available to any indemnified party at law or in equity.



     (f) The indemnity and contribution provisions contained in this Section 6 shall remain
operative and in full force and effect regardless of (i) any termination of this Agreement, (ii)
any investigation made by or on behalf of any Holder or any person controlling any Holder, or the
Company, or the Company’s officers or directors or any person controlling the Company and (iii) the
sale of any Registrable Security by any Holder.



     Section 7. Information Requirements. (a) The Company covenants that, if at any time before
the end of the Effectiveness Period it is not subject to the reporting requirements of the Exchange
Act, it will cooperate with any Holder of Registrable Securities and take such further



17









 







action as
any Holder of Registrable Securities may reasonably request in writing (including, without
limitation, making such representations as any such Holder may reasonably request), all to the
extent required from time to time to enable such Holder to sell Registrable Securities without
registration under the Securities Act within the limitation of the exemptions provided by Rule 144,
Rule 144A, Regulation S and Regulation D under the Securities Act and customarily taken in
connection with sales pursuant to such exemptions. Upon the written request of any Holder of
Registrable Securities, the Company shall deliver to such Holder a written statement as to whether
it has complied with such filing requirements, unless such a statement has been included in the
Company’s most recent report filed with the SEC pursuant to Section 13 or Section 15(d) of Exchange
Act. Notwithstanding the foregoing, nothing in this Section 7 shall be deemed to require the
Company to register any of its securities (other than the Common Stock) under any section of the
Exchange Act.



     (b) The Company shall file the reports required to be filed by it under the Exchange Act and
shall comply with all other requirements set forth in the instructions to Form S-1 or Form S-3, as
the case may be, in order to allow the Company to be eligible to file registration statements on
Form S-1 or Form S-3.



     Section 8. Miscellaneous.



     (a) Free Writing Prospectus. Each Holder represents that it has not prepared or had prepared
on its behalf or used or referred to, and agrees that it will not prepare or have prepared on its
behalf or use or refer to, any Free Writing Prospectus, and has not distributed and will not
distribute any written materials in connection with the offer or sale of the Registrable Securities
without the prior express written consent of the Company. Any such Free Writing Prospectus
consented to by the Company is hereinafter referred to as a “Permitted Free Writing Prospectus.”
The Company represents and agrees that it has treated and will treat, as the case may be, each
Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus, including in respect of
timely filing with the SEC, legending and record keeping.



     (b) No Conflicting Agreements. The Company is not, as of the date hereof, a party to, nor
shall it, on or after the date of this Agreement, enter into, any agreement with respect to its
securities that conflicts with the rights granted to the Holders of Registrable Securities in this
Agreement. The Company represents and warrants that the rights granted to the Holders of
Registrable Securities hereunder do not in any way conflict with the rights granted to the holders
of the Company’s securities under any other agreements.



     (c) 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 a majority of the then outstanding Underlying Common Stock constituting Registrable
Securities (with Holders of Bonds deemed to be the Holders, for purposes of this Section, of the
number of outstanding shares of Underlying Common Stock into which such Bonds are or would be
convertible as of the date on which such consent is requested). Notwithstanding the foregoing, a
waiver or consent to depart from the



18









 







provisions hereof with respect to a matter that relates
exclusively to the rights of Holders of Registrable Securities whose securities are being sold
pursuant to a Shelf Registration Statement and that does not directly or indirectly affect the
rights of other Holders of Registrable Securities may be given by Holders of at least a majority of
the Registrable Securities being sold by such Holders pursuant to such Shelf Registration
Statement; provided that the provisions of this sentence may not be amended, modified, or
supplemented except in accordance with the provisions of the immediately preceding sentence. Each
Holder of Registrable Securities outstanding at the time of any such amendment, modification,
supplement, waiver or consent or thereafter shall be bound by any such amendment, modification,
supplement, waiver or consent effected pursuant to this Section 8(c), whether or not any notice,
writing or marking indicating such amendment, modification, supplement, waiver or consent appears
on the Registrable Securities or is delivered to such Holder.



     (d) Notices. All notices and other communications provided for or permitted hereunder shall be
made in writing by hand delivery, by telecopier, by courier guaranteeing overnight delivery or by
first-class mail, return receipt requested, and shall be deemed given (i) when made, if made by
hand delivery, (ii) upon confirmation, if made by telecopier, (iii) one (1) Business Day after
being deposited with such courier, if made by overnight courier or (iv) on the date indicated on
the notice of receipt, if made by first-class mail, to the parties as follows:



     (x) if to a Holder of Registrable Securities, at the most current address given by such Holder
to the Company in a Notice and Questionnaire or any amendment thereto;



	 	 	 	 	 
	 

	(y)
	 	if to the Company, to:
	 
	 	 	 	 
	 

	 	 	 	2704 West Roscoe Street
	 

	 	 	 	Chicago, Illinois 60618
	 

	 	 	 	Attention: Deborah K. Fulton
	 

	 	 	 	Telecopy No.: 773-961-2299
	 
	 	 	 	 
	 

	(z)
	 	if to the Initial Purchaser, to:
	 
	 	 	 	 
	 

	 	 	 	Banc of America Securities LLC
	 

	 	 	 	9 West 57th Street, 22nd Floor
	 

	 	 	 	New York, New York 10019
	 

	 	 	 	Attention: Syndicate Department
	 

	 	 	 	Telecopy No.: (212) 933-2217
	 
	 	 	 	 
	 

	 	 	 	with a copy to (for informational purposes only):
	 
	 	 	 	 
	 

	 	 	 	Banc of America Securities LLC
	 

	 	 	 	9 W. 57th Street, 22nd Floor
	 

	 	 	 	New York, New York 10019
	 

	 	 	 	Attention: Legal Department
	 

	 	 	 	Telecopy No.: (212) 457-3745






19









 





or to such other address as such person may have furnished to the other persons identified in
this Section 8(d) in writing in accordance herewith.




     (e) Approval of Holders. Whenever the consent or approval of Holders of a specified percentage
of Registrable Securities is required hereunder, Registrable Securities held by the Company or its
affiliates (as such term is defined in Rule 405 under the Securities Act) (other than the Initial
Purchaser or subsequent Holders of Registrable Securities if such subsequent Holders are deemed to
be such 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
percentage.



     (f) Successors and Assigns. Any person who purchases any Registrable Securities from the
Initial Purchaser or any Holder shall be deemed, for purposes of this Agreement, to be an assignee
of the Initial Purchaser or such Holder, as the case may be. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the parties and shall inure to
the benefit of and be binding upon each Holder of any Registrable Securities.



     (g) 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
original and all of which taken together shall constitute one and the same agreement.



     (h) Headings. The headings in this Agreement are for convenience of reference only and shall
not limit or otherwise affect the meaning hereof.



     (i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES THEREOF.



     (j) Severability. If any term, provision, covenant or restriction of this Agreement is held
to be invalid, illegal, void or unenforceable, the remainder of the terms, provisions, covenants
and restrictions set forth herein shall remain in full force and effect and shall in no way be
affected, impaired or invalidated thereby, and the parties hereto shall use their best efforts to
find and employ an alternative means to achieve the same or substantially the same result as that
contemplated by such term, provision, covenant or restriction, it being intended that all of the
rights and privileges of the parties shall be enforceable to the fullest extent permitted by law.



     (k) 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 and the
registration rights granted by the Company with respect to the Registrable Securities. Except as
provided in the Purchase Agreement, there are no restrictions, promises, warranties or
undertakings, other than those set forth or referred to herein, with respect to the registration
rights granted by the Company with respect to the Registrable Securities. This Agreement



20









 







supersedes
all prior agreements and undertakings among the parties with respect to such registration rights.
No party hereto shall have any rights, duties or obligations other than those specifically set
forth in this Agreement.



     (l) Termination. This Agreement and the obligations of the parties hereunder shall terminate
upon the end of the Effectiveness Period, except for any liabilities or obligations under Section
4, 5 or 6 hereof and the obligations to make payments of and provide for liquidated damages under
Section 2(e) hereof to the extent such damages accrue prior to the end of the Effectiveness Period,
each of which shall remain in effect in accordance with its terms.



     (m) Submission to Jurisdiction. Except as set forth below, no Proceeding may be commenced,
prosecuted or continued in any court other than the courts of the State of New York located in the
City and County of New York or in the United States District Court for the Southern District of New
York, which courts shall have jurisdiction over the adjudication of such matters, and the Company
hereby consents to the jurisdiction of such courts and personal service with respect thereto. The
Company hereby consents to personal jurisdiction, service and venue in any court in which any
Proceeding arising out of or in any way relating to this Agreement is brought by any third party
against the Initial Purchaser. The Company hereby waives all right to trial by jury in any
Proceeding (whether based upon contract, tort or otherwise) in any way arising out of or relating
to this Agreement. The Company agrees that a final judgment in any such Proceeding brought in any
such court shall be conclusive and binding upon the Company and may be enforced in any other courts
in the jurisdiction of which the Company is or may be subject, by suit upon such judgment.



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     IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written
above.



	 	 	 	 	 
	 	MIDWAY GAMES INC.

 	 
	 	By:  	/s/ David F. Zucker
 	 
	 	 	Name:  	David F. Zucker 	 
	 	 	Title:  	President and CEO 	 
	 



Confirmed and accepted as of the date

first above written:





BANC OF AMERICA SECURITIES LLC




	 	 	 	 	 
	 	 	 
	By:  	/s/ Derek Dillon 	 
	 	 	Name:  	Derek Dillon 	 
	 	 	Title:  	Managing Director 	 
	 




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