EXHIBIT 10.3
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "AGREEMENT") is made and
entered into as of July 26, 2004 among Empire Resorts, Inc., a Delaware
corporation (the "COMPANY"), the subsidiary guarantors party hereto (the
"GUARANTORS") and Xxxxxxxxx & Company, Inc. (the "INITIAL PURCHASER"). In order
to induce the Initial Purchaser to enter into the purchase agreement, dated July
16, 2004 (the "PURCHASE AGREEMENT"), the Company and the Guarantors agree 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 and the Guarantors agree 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 Notes (as
defined herein), and the beneficial owners from time to time of the Underlying
Common Stock (as defined herein) issued upon conversion of Notes (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. In addition to the terms that are defined elsewhere in this
Agreement, the following terms shall have the following meanings:
"AFFILIATE" with respect to any specified person, has the meaning
specified in Rule 144.
"BUSINESS DAY" means each Monday, Tuesday, Wednesday, Thursday and
Friday that is not a day on which banking institutions in The City of New York
are authorized or obligated by law or executive order to close.
"COMMON STOCK" means any shares of the common stock, $0.01 par
value, of the Company and any other shares of common stock as may constitute
"Common Stock" for purposes of the Indenture, including the Underlying Common
Stock.
"CONVERSION PRICE" means, as of any date of determination, $1,000
principal amount of Notes divided by the Conversion Rate as of such date, or, if
no Notes are then outstanding, the Conversion Rate that would be in effect were
Notes then outstanding, in each case, subject to adjustment.
"CONVERSION RATE" has the meaning assigned to such term in the
Indenture.
"DAMAGES ACCRUAL PERIOD" has the meaning specified in SECTION 2(e)
hereof.
"DAMAGES PAYMENT DATE" means each January 31 and July 31.
"DEFERRAL NOTICE" has the meaning specified in SECTION 3(i) hereof.
"DEFERRAL PERIOD" has the meaning specified in SECTION 3(i) hereof.
"EFFECTIVENESS DEADLINE DATE" has the meaning specified in SECTION
2(a) hereof.
"EFFECTIVENESS PERIOD" means the period from the effectiveness of
the Initial Shelf Registration Statement to the earliest date of the following
to occur: (1) all of the Registrable Securities shall have been sold pursuant to
the Shelf Registration Statement; (2) the Holders of the Registrable Securities
that are not affiliates of the Company are able to sell all such Registrable
Securities immediately pursuant to Rule 144(k) under the Securities Act, (3) the
date when all of the Registrable Securities have ceased to be outstanding and
(4) the date that is two years, subject to specified blackout periods, following
the filing of the Shelf Registration Statement.
"EVENT" has the meaning specified in SECTION 2(e) hereof.
"EVENT TERMINATION DATE" has the meaning specified in SECTION 2(e)
hereof.
"EVENT DATE" has the meaning specified 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 specified in SECTION 2(a)
hereof.
"HOLDER" has the meaning specified in the second paragraph of this
Agreement.
"INDENTURE" means the Indenture dated as of the date hereof between
the Company, the Guarantors and the Trustee, as trustee, pursuant to which the
Notes are being issued.
"INITIAL PURCHASER" shall have the meaning set forth in the preamble
to this Agreement.
"INITIAL SHELF REGISTRATION STATEMENT" has the meaning specified in
SECTION 2(a) hereof.
"ISSUE DATE" means July 23, 2004.
"LIQUIDATED DAMAGES AMOUNT" has the meaning specified in SECTION
2(e) hereof.
"LOSSES" has the meaning specified in SECTION 6 hereof.
"MATERIAL EVENT" has the meaning specified in SECTION 3(i) hereof.
"NOTES" means the Convertible Senior Notes due 2014 of the Company
to be purchased pursuant to the Purchase Agreement.
"NOTICE AND QUESTIONNAIRE" means a written notice 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 of the Company dated July 16, 2004 relating to the Notes.
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"NOTICE HOLDER" means on any date, any Holder that has delivered a
Notice and Questionnaire to the Company on or prior to such date.
"PROSPECTUS" means the prospectus included in any 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.
"PURCHASE AGREEMENT" has the meaning specified in the preamble of
this Agreement.
"RECORD HOLDER" means with respect to any Damages Payment Date
relating to any Note or shares of Underlying Common Stock as to which any
Liquidated Damages Amount has accrued, the registered holder of such Note or
such shares of Underlying Common Stock, as the case may be, on the 15th day
immediately prior to the next succeeding Damages Payment Date.
"REGISTRABLE SECURITIES" means the Notes and the Underlying Common
Stock until such securities have been converted or exchanged and, at all times
subsequent to any such conversion or exchange, any securities into or for which
such securities have been converted or exchanged, and any security issued with
respect thereto upon any stock dividend, split, merger or similar event until,
in the case of any such security, the earliest of (i) its effective registration
under the Securities Act and resale in accordance with the Registration
Statement covering it, (ii) expiration of the holding period that would be
applicable thereto under Rule 144(k) were it not held by an Affiliate of the
Company, or (iii) its sale to the public pursuant to Rule 144.
"REGISTRATION EXPENSES" has the meaning specified 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.
"RESTRICTED SECURITIES" has the meaning assigned to such term in
Rule 144.
"RULE 144" means Rule 144 under the Securities Act, as such Rule may
be amended from time to time, or any similar or successor rule or regulation
hereafter adopted by the SEC having substantially the same effect as such Rule.
"RULE 144A" means Rule 144A under the Securities Act, as such Rule
may be amended from time to time, or any similar or successor rule or regulation
hereafter adopted by the SEC having substantially the same effect as such Rule.
"SEC" means the United States Securities and Exchange Commission.
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"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 specified in SECTION
2(a) hereof.
"SUBSEQUENT SHELF REGISTRATION STATEMENT" has the meaning specified
in SECTION 2(b) hereof.
"TAX EVENT" has the meaning assigned to such term in the Indenture.
"TIA" means the Trust Indenture Act of 1939, as amended.
"TRUSTEE" means the Bank of New York (or any successor entity), the
Trustee under the Indenture.
"UNDERLYING COMMON STOCK" means the Common Stock into which the
Notes are convertible or issued upon any such conversion.
"UNDERLYING COMMON STOCK VALUE" means the product of the number of
shares of Underlying Common Stock that are Registrable Securities multiplied by
the Conversion Price.
SECTION 2. SHELF REGISTRATION.
(a) The Company and the Guarantors shall prepare and file or cause
to be prepared and filed with the SEC no later than a date which is ninety (90)
days after the Issue Date (the "FILING DEADLINE 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 of all of the Registrable Securities (the "INITIAL
SHELF REGISTRATION STATEMENT"). The Initial Shelf Registration Statement shall
be on Form S-3 or another appropriate form permitting registration of such
Registrable Securities for resale by such Holders in accordance with the methods
of distribution reasonably elected by the Holders and set forth in the Initial
Shelf Registration Statement; PROVIDED that in no event will such method(s) of
distribution take the form of an underwritten offering of the Registrable
Securities without the prior agreement of the Company and the Guarantors. The
Company and the Guarantors shall use reasonable best efforts to cause the
Initial Shelf Registration Statement to be declared effective under the
Securities Act no later than the date (the "EFFECTIVENESS DEADLINE DATE") that
is one-hundred and fifty (150) 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. Each Holder that became a Notice Holder on or prior
to the date ten (10) Business Days prior to the time that the Initial Shelf
Registration Statement became effective shall be named as a selling security
holder in the Initial Shelf Registration Statement and the related Prospectus in
such a manner as to permit such Holder to deliver such Prospectus to purchasers
of Registrable Securities in accordance with the Securities Act and applicable
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state securities laws generally applicable to all such Holders. Notwithstanding
the foregoing, no Holder shall be entitled to have the Registrable Securities
held by it covered by such Shelf Registration Statement unless such Holder has
provided a Notice and Questionnaire in accordance with SECTION 2(d) and is in
compliance with SECTION 4. The Company and the Guarantors shall not permit any
of the Company's security holders (other than the Holders of Registrable
Securities) to include any of the Company's securities in the Shelf Registration
Statement.
(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 and the Guarantors shall use
reasonable best efforts to obtain the prompt withdrawal of any order suspending
the effectiveness thereof, and in any event shall within thirty (30) days of
such cessation of effectiveness amend the Shelf Registration Statement in a
manner reasonably expected by the Company and the Guarantors 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 and the Guarantors shall use reasonable best efforts to cause the
Subsequent Shelf Registration Statement to become effective as promptly as is
reasonably practicable after such filing or, if filed during a Deferral Period,
after the expiration of such Deferral Period, and to keep such Registration
Statement (or Subsequent Shelf Registration Statement) continuously effective
until the end of the Effectiveness Period.
(c) The Company and the Guarantors 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 and the
Guarantors for such Shelf Registration Statement, if required by the Securities
Act or, to the extent to which the Company and the Guarantors do not reasonably
object, as reasonably requested by the Initial Purchaser or by the Trustee on
behalf of the registered Holders.
(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) and SECTION 4. Each Holder of Registrable Securities wishing to
sell Registrable Securities pursuant to a Shelf Registration Statement and
related Prospectus agrees to deliver a Notice and Questionnaire to the Company
at least five (5) Business Days prior to any intended distribution of
Registrable Securities under the Shelf Registration Statement. From and after
the date the Initial Shelf Registration Statement is declared effective, the
Company and the Guarantors shall, as promptly as is reasonably practicable after
the date a Notice and Questionnaire is delivered, (i) if required by applicable
law, file with the SEC a post-effective amendment to the Shelf Registration
Statement or prepare and, if required by applicable law, file a supplement to
the related Prospectus or a supplement or amendment to any document incorporated
therein by reference or file any other document required by the SEC so that the
Holder delivering such Notice and Questionnaire is named as a selling security
holder 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 the Securities Act and applicable
state securities laws and, if the Company and the Guarantors shall file a
post-effective amendment to the Shelf Registration Statement, use reasonable
best efforts to cause such post-effective amendment to be declared effective
under the Securities Act as promptly as is reasonably practicable; (ii) provide
such Holder copies of any documents filed pursuant to SECTION 2(d)(i); and (iii)
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notify such Holder as promptly as is reasonably 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 Deferral Period, the Company and the Guarantors shall so
inform the Holder delivering such Notice and Questionnaire and shall take the
actions set forth in CLAUSES (i), (ii) and (iii) above upon expiration of the
Deferral Period in accordance with SECTION 3(i); PROVIDED FURTHER, that if under
applicable law the Company and the Guarantors have more than one option as to
the type or manner of making any such filing, they will 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. Notwithstanding anything contained herein to the contrary, the
Company and the Guarantors shall be under no obligation to name any Holder that
is not a Notice Holder as a selling security holder in any 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 Registration Statement was
initially declared effective) shall be named as a selling security holder in the
Registration Statement or related Prospectus subject to and 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, or (iii) the
aggregate duration of Deferral Periods in any period exceeds the number of days
permitted in respect of such period pursuant to SECTION 3(i) hereof (each of the
events of a type described in any of the foregoing CLAUSES (i) through (iii) 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), and the date on which the aggregate duration of Deferral Periods in any
period exceeds the number of days permitted by SECTION 3(I) hereof in the case
of CLAUSE (iii), being referred to herein as an "EVENT DATE"). Events shall be
deemed to continue until the "EVENT TERMINATION DATE," which shall be 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), termination of the Deferral Period that caused
the limit on the aggregate duration of Deferral Periods in a period set forth in
SECTION 3(i) to be exceeded in the case of the commencement of an Event of the
type described in CLAUSE (iii).
Accordingly, commencing on (and including) any Event Date and ending
on (but excluding) the next date after an Event Termination Date (a "DAMAGES
ACCRUAL PERIOD"), the Company and the Guarantors agree to pay, as liquidated
damages and not as a penalty, an amount (the "LIQUIDATED DAMAGES AMOUNT"),
payable on the Damages Payment Dates to Record Holders of then outstanding Notes
that are Registrable Securities or of then outstanding shares of Underlying
Common Stock issued upon conversion of Notes that are Registrable Securities, as
the case may be, accruing, for each portion of such Damages Accrual Period
beginning on and including a Damages Payment Date (or, in respect of the first
time that the Liquidation Damages Amount is to be paid to Holders on a Damages
Payment Date as a result of the occurrence of any particular Event, from the
Event Date) and ending on but excluding the first to occur of (A) the date of
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the end of the Damages Accrual Period or (B) the next Damages Payment Date, at a
rate that will accrue, in addition to the interest on the Notes, at an amount
per week per $1,000 principal amount of Notes or per $1,000 Underlying Common
Stock Value, as applicable, equal to $0.05 for the first ninety (90) days
immediately following the Event Date, with such Liquidated Damages Amount
increasing by an additional $0.05 per week per $1,000 principal amount of Notes
or per $1,000 Underlying Common Stock Value, as applicable, with respect to each
subsequent 90-day period, up to a maximum of $0.25 per week per $1,000 principal
amount of Notes or per $1,000 Underlying Common Stock Value, as applicable. Any
Liquidated Damages Amount accrued with respect to any Note 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 Note 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). 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 and the Guarantors of Liquidated Damages Amounts to the Holders of
Registrable Securities pursuant to this Section, the accrual of Liquidated
Damages Amounts will cease (without in any way limiting the effect of any
subsequent Event requiring the payment of the Liquidated Damages Amount by the
Company and the Guarantors).
The Trustee, subject to the applicable provisions of the Indenture,
shall be entitled, on behalf of Holders of Notes or Underlying Common Stock, 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 monetary 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. Nothing shall preclude a Notice
Holder or Holder of Registrable Securities from pursuing or obtaining specific
performance or other equitable relief with respect to this Agreement.
All of the Company's and the Guarantors' 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(k)).
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 and the Guarantors under SECTION 2
hereof, the Company and the Guarantors shall:
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(a) Before filing any Registration Statement or Prospectus or any
amendments or supplements (other than amendments or supplements that do nothing
more substantive than name one or more Notice Holders as selling security
holders) thereto with the SEC, furnish to the Initial Purchaser copies of all
such documents proposed to be filed and use reasonable best efforts to reflect
in each such document when so filed with the SEC such comments as the Initial
Purchaser reasonably shall propose within three (3) Business Days of the
delivery of such copies to the Initial Purchaser.
(b) Prepare and file with the SEC such amendments and post-effective
amendments to each Registration Statement as may be necessary to keep such
Registration Statement continuously effective for the applicable period
specified in SECTION 2(a); 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 reasonable 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 Registration Statement during the Effectiveness Period in accordance
with the intended methods of disposition by the sellers thereof set forth in
such Registration Statement as so amended or such Prospectus as so supplemented.
(c) As promptly as reasonably practicable give notice to the Notice
Holders and the Initial Purchaser (i) when any Prospectus, Prospectus
supplement, Registration Statement or post-effective amendment to a Registration
Statement has been filed with the SEC and, with respect to a Registration
Statement or any post-effective amendment, when the same has been declared
effective (PROVIDED, HOWEVER, that the Company and the Guarantors shall not be
required by this CLAUSE (i) to notify (A) the Initial Purchaser of the filing of
a Prospectus supplement that does nothing more substantive than name one or more
Notice Holders as selling security holders or (B) any Notice Holder of the
filing of a Prospectus supplement that does nothing more substantive than name
one or more other Notice Holders as selling security holders), (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 Registration Statement or related
Prospectus or for additional information, (iii) of the issuance by the SEC or
any other federal or state governmental authority of any stop order or
injunction suspending or enjoining the use of any Prospectus or the
effectiveness of any Registration Statement or the initiation or threatening of
any proceedings for that purpose, (iv) of the receipt by the Company or the
Guarantors 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) of the occurrence of (but not the nature of or
details concerning) a Material Event (PROVIDED, HOWEVER, that no notice by the
Company and the Guarantors shall be required pursuant to this CLAUSE (v) in the
event that the Company and the Guarantors either promptly file a Prospectus
supplement to update the Prospectus or a Current Report on Form 8-K or other
appropriate Exchange Act report that is incorporated by reference into the
Registration Statement, which, in either case, contains the requisite
information with respect to such Material Event that results in such
Registration Statement no longer containing any untrue statement of material
fact or omitting to state a material fact necessary to make the statements
contained therein not misleading) and (vi) of the determination by the Company
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and the Guarantors that a post-effective amendment to a Registration Statement
will be filed with the SEC, which notice may, at the discretion of the Company
and the Guarantors (or as required pursuant to SECTION 3(i)), state that it
constitutes a Deferral Notice, in which event the provisions of SECTION 3(i)
shall apply.
(d) Use reasonable best efforts to obtain the withdrawal of any
order suspending the effectiveness of a 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 or, if any
such order or suspension is made effective during any Deferral Period, at the
earliest possible moment after the expiration of such Deferral Period.
(e) If reasonably requested by the Initial Purchaser or any Notice
Holder, as promptly as reasonably practicable incorporate in a Prospectus
supplement or post-effective amendment to a Registration Statement such
information as the Initial Purchaser or such Notice Holder shall, on the basis
of a written opinion of nationally-recognized counsel experienced in such
matters (which opinion shall also be addressed to the Company), determine to be
required to be included therein by applicable law and make any required filings
of such Prospectus supplement or such post-effective amendment; PROVIDED that
the Company and the Guarantors shall not be required to take any actions under
this SECTION 3(e) that are not, in the reasonable opinion of counsel for the
Company and the Guarantors, in compliance with applicable law.
(f) As promptly as reasonably practicable after the filing of such
documents with the SEC furnish to each Notice Holder and the Initial Purchaser,
upon their request and without charge, at least one (1) conformed copy of the
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 or the Initial Purchaser, as the case may
be).
(g) During the Effectiveness Period, deliver to each Notice Holder
in connection with any sale of Registrable Securities pursuant to a Registration
Statement, without charge, as many copies of the Prospectus or Prospectuses
relating to such Registrable Securities (including each preliminary prospectus)
and any amendment or supplement thereto as such Notice Holder may reasonably
request; and the Company and the Guarantors hereby consent (except during such
periods that a Deferral Notice is outstanding and has not been revoked) to the
use of such Prospectus or each amendment or supplement thereto by each Notice
Holder in connection with any offering and sale of the Registrable Securities
covered by such Prospectus or any amendment or supplement thereto in the manner
set forth therein.
(h) Subject to SECTION 3(i), prior to any public offering of the
Registrable Securities pursuant to the Shelf Registration Statement, use
reasonable best efforts to 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), it being agreed that no such registration or
qualification will be made unless so requested; prior to any public offering of
the Registrable Securities pursuant to the Shelf Registration Statement, use
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reasonable 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 necessary to enable the disposition in such jurisdictions
of such Registrable Securities in the manner set forth in the relevant
Registration Statement and the related Prospectus; PROVIDED that the Company and
each of the Guarantors will not be required to (i) qualify as a foreign
corporation or as a dealer in securities in any jurisdiction where it is not
otherwise qualified 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 (a "MATERIAL EVENT") as a result of which any 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 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, in the light of the circumstances
under which they were made, not misleading (including, in any such case, as a
result of the non-availability of financial statements), or (C) the occurrence
or existence of any pending corporate development that, in the discretion of the
Company and the Guarantors, makes it appropriate to suspend the availability of
the Shelf Registration Statement and the related Prospectus, (i) in the case of
CLAUSE (B) above, subject to the next sentence, as promptly as practicable
prepare and file a post-effective amendment to such Registration Statement or a
supplement to the related Prospectus or any document incorporated therein by
reference or file any other required document that would be incorporated by
reference into such Registration Statement and Prospectus so that such
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 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, in
the light of the circumstances under which they were made, not misleading, as
thereafter delivered to the purchasers of the Registrable Securities being sold
thereunder, and, in the case of a post-effective amendment to a Registration
Statement, subject to the next sentence, use reasonable best efforts to cause it
to be declared effective as promptly as is reasonably practicable, and (ii) give
notice to the Notice Holders that the availability of the Shelf Registration
Statement is suspended (a "DEFERRAL NOTICE") and, upon receipt of any Deferral
Notice, each Notice Holder agrees not to sell any Registrable Securities
pursuant to the Registration Statement until such Notice Holder's receipt of
copies of the supplemented or amended Prospectus provided for in CLAUSE (i)
above, or until it is advised in writing by the Company and the Guarantors 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. The Company and the Guarantors will use reasonable 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 CLAUSE
(B) above, as soon as, in the sole judgment of the Company and the Guarantors,
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public disclosure of such Material Event would not be prejudicial to or contrary
to the interests of the Company and the Guarantors or, if necessary to avoid
unreasonable burden or expense, as soon as reasonably practicable thereafter and
(z) in the case of CLAUSE (C) above, as soon as, in the discretion of the
Company and the Guarantors, such suspension is no longer appropriate. So long as
the period during which the availability of the Registration Statement and any
Prospectus is suspended (the "DEFERRAL PERIOD") does not exceed forty-five (45)
days during any three (3) month period or one hundred and twenty (120) days
during any twelve (12) month period, the Company and the Guarantors shall not
incur any obligation to pay liquidated damages pursuant to SECTION 2(e).
(j) If reasonably requested in writing in connection with a
disposition of Registrable Securities pursuant to a Registration Statement, make
reasonably available for inspection during normal business hours by a
representative 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, pertinent corporate documents and
properties of the Company and its subsidiaries, and cause the appropriate
executive officers, directors and designated employees of the Company and its
subsidiaries to make reasonably available for inspection during normal business
hours all relevant information reasonably requested by such representative 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 first agree
in writing with the Company and the Guarantors that any information that is
reasonably designated by the Company and the Guarantors 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 Registration
Statement or the use of any 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 on a non-confidential basis
from a source other than the Company and the Guarantors and such source is not
bound by a confidentiality agreement; and PROVIDED FURTHER, 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.
(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 forty-five (45) days after the end of any 12-month period (or
ninety (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 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 Registration Statement, and cause such Registrable Securities
to be in such denominations as are permitted by the Indenture and registered in
11
such names as such Notice Holder may request in writing at least five (5)
Business Days prior to any sale of such Registrable Securities.
(m) Provide a CUSIP number for all Registrable Securities covered by
each Registration Statement not later than the effective date of such
Registration Statement and provide the Trustee for the Notes 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) Make reasonable effort to provide such information as is
required for any filings required to be made with the National Association of
Securities Dealers, Inc.
(o) Upon (i) the filing of the Initial Shelf Registration Statement
and (ii) the effectiveness of the Initial Shelf Registration Statement, announce
the same, in each case by release to Businesswire, Reuters Economic Services,
Bloomberg Business News or any other means of dissemination reasonably expected
to make such information known publicly.
(p) Take all actions necessary, or 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; PROVIDED that
the Company and the Guarantors shall not be required to take any action in
connection with an underwritten offering without their consent; and
(q) Cause the Indenture to be qualified under the TIA not later than
the effective date of any 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 reasonable 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 Registration
Statement or to receive a Prospectus relating thereto, unless such Holder has
furnished the Company and the Guarantors with a Notice and Questionnaire as
required pursuant to SECTION 2(d) hereof (including the 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
and the Guarantors all information required to be disclosed in order to make the
information previously furnished to the Company and the Guarantors by such
Notice Holder not misleading, any other information regarding such Notice Holder
and the distribution of such Registrable Securities as may be required to be
disclosed in the Registration Statement under applicable law or pursuant to SEC
comments and any information otherwise required by the Company and the
Guarantors to comply with applicable law or regulations. Each Holder further
agrees, following termination of the Effectiveness Period, to notify the Company
within ten (10) Business Days of a request, of the amount of Registrable
Securities sold pursuant to the Registration Statement and, in the absence of a
response, the Company and the Guarantors may assume that all of the Holder's
Registrable Securities were so sold.
12
SECTION 5. REGISTRATION EXPENSES. The Company and the Guarantors
shall bear all fees and expenses incurred in connection with the performance by
the Company and the Guarantors of its obligations under SECTIONS 2 and 3 of this
Agreement whether or not any of the Registration Statements are declared
effective. Such fees and 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 to the extent such filings or compliance are required pursuant
to this Agreement (including, without limitation, reasonable fees and
disbursements of the counsel specified in the next sentence 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 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 expenses relating to copies of any Registration
Statement or Prospectus delivered to any Holders hereunder, (iv) fees and
disbursements of counsel for the Company and the Guarantors in connection with
the Shelf Registration Statement, and (v) reasonable fees and disbursements of
the Trustee and its counsel and of the registrar and transfer agent for the
Common Stock. In addition, the Company and the Guarantors shall bear or
reimburse the Notice Holders for the reasonable fees and disbursements of one
firm of legal counsel for the Holders, which shall, upon the written consent of
the Initial Purchaser (which shall not be unreasonably withheld), be another
nationally recognized law firm experienced in securities law matters designated
by the Company and the Guarantors. In addition, the Company and the Guarantors
shall pay the internal expenses of the Company and the Guarantors (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 of the Registrable
Securities on any securities exchange on which the same securities of the
Company are then listed and the fees and expenses of any person, including
special experts, retained by the Company and the Guarantors.
SECTION 6. INDEMNIFICATION; CONTRIBUTION.
(a) The Company and the Guarantors, jointly and severally, agree to
indemnify and hold harmless the Initial Purchaser and each Holder of Registrable
Securities and each person, if any, who controls the Initial Purchaser or any
Holder of Registrable Securities within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act, as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement (or any amendment or supplement thereto), or the omission or
alleged omission therefrom of a material fact required to be stated
therein or necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading or arising
out of any untrue statement or alleged untrue statement of a material fact
included in any preliminary prospectus or the Prospectus (or any amendment
or supplement thereto), or the omission or alleged omission therefrom of a
13
material fact required to be stated therein or necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, PROVIDED that (subject to SECTION
6(d) below) any such settlement is effected with the prior written consent
of the Company and the Guarantors; and
(iii) subject to SECTION 6(c) below, against any and all expense
whatsoever, as incurred (including the fees and disbursements of counsel),
reasonably incurred in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency
or body, commenced or threatened, or any claim whatsoever based upon any
such untrue statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under (i) or
(ii) above;
PROVIDED, HOWEVER, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company and the
Guarantors by or on behalf of the Initial Purchaser, such Holder of Registrable
Securities (which also acknowledges the indemnity provisions herein) or any
person, if any, who controls the Initial Purchaser or any such Holder of
Registrable Securities expressly for use in the Registration Statement (or any
amendment thereto), or any preliminary prospectus or the Prospectus (or any
amendment or supplement thereto); PROVIDED FURTHER, that this indemnity
agreement shall not apply to any loss, liability, claim, damage or expense (1)
arising from an offer or sale of Registrable Securities occurring during a
Deferral Period, if a Deferral Notice was given to such Notice Holder in
accordance with SECTION 8(c), or (2) if the Holder fails to deliver at or prior
to the written confirmation of sale, the most recent Prospectus, as amended or
supplemented, and such Prospectus, as amended or supplemented, would have
corrected such untrue statement or omission or alleged untrue statement or
omission of a material fact and the delivery thereof was required by law.
(b) In connection with any Shelf Registration in which a Holder,
including, without limitation, the Initial Purchaser, of Registrable Securities
is participating, in furnishing information relating to such Holder of
Registrable Securities to the Company and the Guarantors in writing expressly
for use in such Registration Statement, any preliminary prospectus, the
Prospectus or any amendments or supplements thereto, the Holders of such
Registrable Securities agree, severally and not jointly, to indemnify and hold
harmless the Initial Purchaser and each person, if any, who controls the Initial
Purchaser within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act and the Company, the Guarantors, and each person,
if any, who controls the Company or the Guarantors within the meaning of either
such Section, against any and all loss, liability, claim, damage and expense
described in the indemnity contained in SUBSECTION (a) of this Section, as
incurred, but only with respect to untrue statements or omissions, or alleged
14
untrue statements or omissions, made in the Registration Statement (or any
amendment thereto), or any preliminary prospectus or the Prospectus (or any
amendment or supplement thereto) in reliance upon and in conformity with written
information furnished to the Company and the Guarantors by or on behalf of such
Holder of Registrable Securities (which also acknowledges the indemnity
provisions herein) or any person, if any, who controls any such Holder of
Registrable Securities expressly for use in the Registration Statement (or any
amendment thereto) or such preliminary prospectus or the Prospectus (or any
amendment or supplement thereto).
(c) Each indemnified party shall give notice as promptly as
reasonably practicable to each indemnifying party of any action or proceeding
commenced against it in respect of which indemnity may be sought hereunder, but
failure to so notify an indemnifying party shall not relieve such indemnifying
party from any liability hereunder to the extent it is not materially prejudiced
as a result thereof and in any event shall not relieve it from any liability
which it may have otherwise than on account of these indemnity provisions. The
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding and
shall pay the fees and disbursements of such counsel related to such proceeding.
In any such proceeding, any indemnified party shall have the right to retain a
separate firm as its own counsel, but the fees and expenses of such counsel
shall be at the expense of such indemnified party unless (i) the indemnifying
party and the indemnified party shall have mutually agreed to the retention of
such counsel or (ii) the named parties to any such proceeding (including any
impleaded parties) include both the indemnifying party and the indemnified party
and representation of both parties by the same counsel would be inappropriate
due to actual or potential differing interests between them. It is understood
that the indemnifying party shall not, in respect of the legal expenses of any
indemnified party in connection with any proceeding or related proceedings in
the same jurisdiction, be liable for (a) the reasonable fees and expenses of
more than one firm (in addition to any local counsel) for the Initial Purchaser,
Holders of Registrable Securities, and all persons, if any, who control the
Initial Purchaser or Holders of Registrable Securities within the meaning of
either Section 15 of the Securities Act or Section 20 of the Exchange Act, (b)
the reasonable fees and expenses of more than one firm (in addition to any local
counsel) for the Company and the Guarantors, their directors, and each person,
if any, who controls the Company and the Guarantors within the meaning of either
such Section, and that all such reasonable fees and expenses shall be reimbursed
as they are incurred. In the event a separate firm is retained for the Initial
Purchaser, Holders of Registrable Securities, and control persons of the Initial
Purchaser and Holders of Registrable Securities, such firm shall be designated
in writing by the Initial Purchaser. In the event a separate firm is retained
for the Company and the Guarantors, and such directors, officers and control
persons of the Company and the Guarantors, such firm shall be designated in
writing by the Company and the Guarantors. No indemnifying party shall, without
the prior written consent of the indemnified parties, settle or compromise or
consent to the entry of any judgment with respect to any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever in respect of which indemnification or
contribution could be sought under this SECTION 6 (whether or not the
indemnified parties are actual or potential parties thereto), unless such
settlement, compromise or consent (i) includes an unconditional release of each
indemnified party from all liability arising out of such litigation,
15
investigation, proceeding or claim and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act by or on behalf of any
indemnified party.
(d) If at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel, such indemnifying party agrees that it shall be liable for any
settlement of the nature contemplated by SECTION 6(a)(ii) effected without its
written consent if (i) such settlement is entered into more than 60 days after
receipt by such indemnifying party of aforesaid request, (ii) such indemnifying
party shall have received notice of the terms of such settlement at least
forty-five (45) days prior to such settlement being entered into and (iii) such
indemnifying party shall not have reimbursed such indemnified party in
accordance with such request prior to the date of such settlement; PROVIDED that
an indemnifying party shall not be liable for any such settlement effected
without its consent if such indemnifying party (1) reimburses such indemnified
party in accordance with such request to the extent it considers such request to
be reasonable and (2) provides written notice to the indemnified party
describing any unpaid balance it believes is unreasonable and the reasons
therefor, in each case prior to the date of such settlement.
(e) If the indemnification to which an indemnified party is entitled
under this SECTION 6 is for any reason unavailable to or insufficient although
applicable in accordance with its terms to hold harmless an indemnified party in
respect of any losses, liabilities, claims, damages or expenses referred to
therein, then each indemnifying party shall contribute to the aggregate amount
of such losses, liabilities, claims, damages and expenses incurred by such
indemnified party, as incurred, in such proportion as is appropriate to reflect
the relative fault of the indemnifying party or parties on the one hand and of
the indemnified party on the other hand in connection with the statements or
omissions which resulted in such losses, liabilities, claims, damages or
expenses, as well as any other relevant equitable considerations.
The relative fault of the Company and the Guarantors on the one hand
and the Holders of the Registrable Securities or the Initial Purchaser on the
other hand shall be determined by reference to, among other things, whether any
such untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact relates to information supplied by the
Company and the Guarantors or by the Holder of the Registrable Securities or the
Initial Purchaser and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this SECTION 6(e) 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 SECTION 6(e). The
aggregate amount of losses, liabilities, claims, damages, and expenses incurred
by an indemnified party and referred to above in this SECTION 6(e) shall be
deemed to include any out-of-pocket legal or other expenses reasonably incurred
by such indemnified party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this SECTION 6, neither the Holder
of any Registrable Securities nor the Initial Purchaser, shall be required to
indemnify or contribute any amount in excess of the amount by which the total
16
price at which the Registrable Securities sold by such Holder of Registrable
Securities or by the Initial Purchaser, as the case may be, and distributed to
the public were offered to the public exceeds the amount of any damages that
such Holder of Registrable Securities or the Initial Purchaser 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.
For purposes of this SECTION 6(e), each person, if any, who controls
the Initial Purchaser or any Holder of Registrable Securities within the meaning
of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have
the same rights to contribution as the Initial Purchaser or such Holder, and
each person, if any, who controls the Company and the Guarantors within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act
shall have the same rights to contribution as the Company and the Guarantors.
SECTION 7. INFORMATION REQUIREMENTS. The Company and the Guarantors
covenant that, if at any time before the end of the Effectiveness Period the
Company and the Guarantors are not subject to the reporting requirements of the
Exchange Act, they will cooperate with any Holder of Registrable Securities and
take such further reasonable action as any Holder of Registrable Securities may
reasonably request in writing (including, without limitation, making such
reasonable 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 limitations
of Rule 144 and Rule 144A 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 and the Guarantors shall
deliver to such Holder a written statement as to whether they have complied with
such filing requirements, unless such a statement has been included in the
Company's most recent report required to be filed and filed 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 under any section of the Exchange Act.
SECTION 8. MISCELLANEOUS.
(a) NO CONFLICTING AGREEMENTS. The Company and the Guarantors are
not, as of the date hereof, parties to, nor shall they, on or after the date of
this Agreement, enter into, any agreement with respect to the Company's
securities that conflicts with the rights granted to the Holders of Registrable
Securities in this Agreement. The Company and the Guarantors represent and
warrant 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.
(b) 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 and the Guarantors have obtained the
written consent of Holders of a majority of the then outstanding Underlying
17
Common Stock constituting Registrable Securities (with Holders of Notes deemed
to be the Holders, for purposes of this Section, of the number of outstanding
shares of Underlying Common Stock into which such Notes are or would be
convertible or exchangeable as of the date on which such consent is requested).
Notwithstanding the foregoing, a waiver or consent to depart from the 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
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 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(b), 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.
(c) 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:
(A) if to a Holder of Registrable Securities that is not a Notice
Holder, at the address for such Holder then appearing in the Registrar (as
defined in the Indenture);
(B) if to a Notice Holder, at the most current address given by such
Holder to the Company in a Notice and Questionnaire or any amendment thereto;
if to the Company and the Guarantors, to:
Empire Resorts, Inc.
x/x Xxxxxxxxxx Xxxxxxx, Xxxxx 00X
Xxxxxxxxxx, XX 00000
Telephone No. (000) 000-0000
Facsimile No. [________]
Attention: President
18
and
Olshan Xxxxxxxx Frome Rosenzwig & Wolosky LLP
Park Avenue Tower
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Telephone No. (000) 000-0000
Facsimile No. (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxx
and
if to the Initial Purchaser, to:
Xxxxxxxxx & Company, Inc.
000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Telephone No. (000) 000-0000
Facsimile No. (000) 000-0000
Attention: Xxxxx Xxxxxxx
and
Mayer, Brown, Xxxx and Maw LLP
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
Telephone No. (000) 000-0000
Facsimile No. (000) 000-0000
Attention: Xxxxxx X. Xxxxx
or to such other address as such person may have furnished to the other persons
identified in this SECTION 8(c) in writing in accordance herewith.
(d) 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 and the Guarantors or their
Affiliates (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.
(e) SUCCESSORS AND ASSIGNS. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the parties
and, without requiring any express assignment, shall inure to the benefit of and
be binding upon each Holder of any Registrable Securities.
19
(f) 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.
(g) HEADINGS. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(h) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
(i) 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.
(j) 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 and the Guarantors 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 and the Guarantors with respect to the Registrable Securities. This
Agreement supersedes all prior agreements and undertakings among the parties
with respect to such registration rights.
(k) 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 SECTIONS 4, 5 or 6 hereof, 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.
20
IN WITNESS WHEREOF, the parties have executed this Registration
Rights Agreement as of the date first written above.
Very truly yours,
EMPIRE RESORTS, INC.
By /s/ Xxxxx X. Xxxxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Chief Financial Officer
ALPHA MONTICELLO, INC.
By /s/ Xxxxx X. Xxxxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: President
ALPHA CASINO MANAGEMENT INC.
By /s/ Xxxxx X. Xxxxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: President
MOHAWK MANAGEMENT, LLC
By /s/ Xxxxx X. Xxxxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: President
MONTICELLO CASINO MANAGEMENT, LLC
By /s/ Xxxxx X. Xxxxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Manager
MONTICELLO RACEWAY DEVELOPMENT COMPANY,
LLC
By /s/ Xxxxx X. Xxxxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Manager
MONTICELLO RACEWAY MANAGEMENT, INC.
By /s/ Xxxxxx X. Xxx
------------------------------------
Name: Xxxxxx X. Xxx
Title: President
Accepted as of the date
first above written:
XXXXXXXXX & COMPANY, INC.
By:/s/ M. Xxxxx Xxxxxxx
-----------------------
Name: M. Xxxxx Xxxxxxx
Title: Executive Vice President
