Exhibit 4.8
WARRANT REGISTRATION RIGHTS AGREEMENT
among
WINDSOR WOODMONT BLACK HAWK RESORT CORP.
and
THE UNIT PURCHASERS (AS DEFINED HEREIN),
HYATT GAMING MANAGEMENT, INC.,
THE PREFERRED STOCK PURCHASERS (AS DEFINED HEREIN),
AND
U.S. BANCORP LIBRA
dated as of
MARCH 14, 2000
TABLE OF CONTENTS
Page
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SECTION 1. Definitions.................................................1
SECTION 2. Registration Rights...............................................6
2.1 (a) Warrant Shelf Registration Statement...............6
(b) Blue Sky...........................................6
(c) Accuracy of Disclosure.............................6
(d) Liquidated Damages.................................7
(e) Additional Acts. ..................................7
2.2 (a) Piggy-Back Registration............................7
(b) Priority in Piggy-Back Registration................8
(c) Restrictions on Sale by Holder.....................9
2.3 Demand Registrations.......................................10
(a) Requests for Registration.........................10
(b) Preservation of Demand Registration...............10
(c) Continued Effectiveness...........................10
(d) Blue Sky..........................................11
(e) Additional Acts...................................11
2.4 Limitations, Conditions and Qualifications to Obligations
Under Registration Covenants...............................11
2.5 Restrictions on Sale by the Company and Others.............12
2.6 Rule 144 and Rule 144A.....................................12
2.7 Underwritten Registrations.................................13
SECTION 3. Registration Procedures..........................................13
SECTION 4. (a) Indemnification and Contribution...........................18
SECTION 5. Miscellaneous....................................................21
5.1 Remedies...................................................21
5.2 No Inconsistent Agreement..................................22
5.3 Amendments and Waivers.....................................22
5.4 Notices....................................................22
5.5 Successors and Assigns.....................................23
5.6 Counterparts...............................................23
5.7 Governing Law..............................................23
5.8 Severability...............................................23
5.9 Headings...................................................23
5.10 Entire Agreement...........................................23
5.11 Securities Held by the Company or Its Affiliates...........23
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WARRANT REGISTRATION RIGHTS AGREEMENT
This WARRANT REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made
and entered into as of March 14, 2000, among Windsor Woodmont Black Hawk Resort
Corp., a Colorado corporation (the "Company"), the Unit Purchasers (as defined
herein), Hyatt Gaming Management, Inc. ("Hyatt Gaming"), the Preferred Stock
Purchasers (as defined herein) and U.S. Bancorp Libra ("Libra" and, together
with Hyatt Gaming, the Preferred Stock Purchasers and the Unit Purchasers, the
"Purchasers").
WHEREAS, the Company has entered into the First Warrant Agreement
dated as of March 14, 2000 (the "First Warrant Agreement") with SunTrust Bank,
as warrant agent (the "Warrant Agent"), in connection with (i) the issuance to
the purchasers of the Company's units (the "Unit Purchasers") consisting of 13%
First Mortgage Notes due 2005 (the "Notes") and warrants (each, a "Tranche A
Warrant" and collectively, the "Tranche A Warrants") for the purchase of 342,774
shares ("Tranche A Warrant Shares") of common stock, $0.01 par value ("Common
Stock"), of the Company, (ii) the issuance to Hyatt Gaming of Tranche A Warrants
to purchase 33,887 Tranche A Warrant Shares; and (iii) the issuance to Libra of
Tranche A Warrants to purchase 80,031 Warrant Shares; and
WHEREAS, the Company has entered into the Second Warrant Agreement
dated as of March 14, 2000 (the "Second Warrant Agreement" and, together with
the First Warrant Agreement, the "Warrant Agreements" and each, a "Warrant
Agreement"), with the Warrant Agent in connection with the issuance to the
purchasers of the Company's Series B preferred stock, $.01 par value per share
(the "Preferred Stock Purchasers"), of warrants (each a "Tranche B Warrant" and
collectively, the "Tranche B Warrants" and, together with the Tranche A
Warrants, the "Warrants") to purchase 257,058 shares of Common Stock ("Tranche B
Warrant Shares" and together with the Tranche A Warrant Shares, the "Warrant
Shares").
NOW, THEREFORE, in consideration of the foregoing and the premises and
the mutual agreements herein set forth, the parties hereto agree as follows:
SECTION 1. Definitions. As used in this Agreement, the following
defined terms shall have the following meanings:
"Advice" has the meaning ascribed to such term in Section 3 hereof.
"Agreement" shall have the meaning ascribed to such term in the
preamble hereto.
"Business Day" shall mean a day that is not a Legal Holiday.
"Capital Stock" shall mean, with respect to any Person, any and all
shares, interests, partnership interests, participations, rights in or other
equivalents (however designated and whether voting or non-voting) of such
person's capital stock, and any rights (other than debt securities convertible
into capital stock), warrants or options exchangeable for or convertible into
such capital stock, whether outstanding on the Issue Date or issued after the
Issue Date.
"Change of Control" shall have the meaning ascribed to such term in
the Indenture.
"Company" shall have the meaning ascribed to such term in the preamble
hereto and shall also include the Company's permitted successors and assigns.
"Common Stock" shall have the meaning ascribed to such term in
the preamble hereto.
"Demand Registration Notice" shall have the meaning ascribed to such
term in Section 2.3(a) hereof.
"Demand Registration Request" shall have the meaning ascribed to such
term in Section 2.3(a) hereof.
"Demand Registration Statement" shall have the meaning ascribed to
such term in Section 2.3(a) hereof.
"Demand Right" shall have the meaning ascribed to such term in Section
2.3(a) hereof.
"DTC" shall have the meaning ascribed to such term in Section 3(i)
hereof.
"Effectiveness Period" shall mean the respective periods for which the
Company is obligated to keep a Registration Statement effective pursuant to
Sections 2.1(a), 2.2(a) and 2.3(c) hereof.
"Equity Offering" means a public offering (other than a public
offering registered on Form S-8 under the Securities Act) or private placement
of Common Stock of the Company that results in gross proceeds of at least $25.0
million to the Company.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended from time to time.
"Exercise Date" shall mean the date of issuance of the Warrants.
"First Warrant Agreement" shall have the meaning ascribed to such term
in the preamble hereto.
"Holder" shall mean each holder of any Registrable Securities, and
each of their successors, assigns and direct and indirect transferees who become
registered owners of such Registrable Securities.
"Hyatt Gaming" shall have the meaning ascribed to such term in the
preamble hereto.
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"indemnified party" and "indemnifying party" shall have the respective
meanings ascribed to such terms in Section 4(c).
"Indenture" shall mean the Indenture, dated as of the date hereof,
between the Company and SunTrust Bank, as Trustee, pursuant to which the Notes
are issued.
"Inspectors" shall have the meaning ascribed to such term in Section
4(m) hereof.
"Issue Date" shall mean the date of initial issuance of the Warrants.
"Legal Holiday" shall mean a Saturday, a Sunday or a day on which (i)
banking institutions in the City of New York are required or authorized by law
or other government action to be closed and (ii) the principal U.S. securities
exchange or market, if any, on which any Common Stock is listed or admitted to
trading and the principal U.S. securities exchange or market, if any, on which
the Warrants are listed or admitted to trading are closed for business.
"Liquidated Damages" shall have the meaning ascribed to such term in
Section 2.1(d) hereof.
"Notes" shall have the meaning ascribed to such term in the preamble
hereto.
"Other Registration Rights" shall have the meaning ascribed to such
term in Section 2.3(a) hereof.
"Person" shall mean any individual, corporation, limited liability
company, partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof or any other entity, including any predecessor of any such entity.
"Piggy-Back Registration" shall have the meaning ascribed to such term
in Section 2.2(a) hereof.
"Piggy-Back Registration Statement" shall have the meaning ascribed to
such term in Section 2.2(c) hereof.
"Preferred Stock Purchasers" has the meaning ascribed to such term in
the preamble hereto.
"Prospectus" shall mean the prospectus included in any Registration
Statement (including, without limitation, any prospectus subject to completion
and a prospectus that includes any information previously omitted from a
prospectus filed as part of an effective registration statement in reliance upon
Rule 430A promulgated under the Securities Act), as amended or supplemented by
any prospectus supplement, and all other amendments and supplements to the
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Prospectus, including post-effective amendments, and all material incorporated
by reference or deemed to be incorporated by reference in such Prospectus.
"Purchase Agreements" shall mean the Preferred Stock Purchase
Agreement and the Unit Purchase Agreement.
"Preferred Stock Purchase Agreement" shall mean the Purchase
Agreement, dated as of the date hereof, among the Company and the Preferred
Stock Purchasers.
"Registrable Securities" shall mean any of (i) the Warrants, (ii) the
Warrant Shares and (iii) any other securities issued or issuable with respect to
the Warrants or Warrant Shares by way of stock dividend or stock split or in
connection with a combination of shares, recapitalization, merger, consolidation
or other reorganization or otherwise. As to any particular Registrable
Securities, such securities shall cease to be Registrable Securities when (a) a
registration statement with respect to the offering of such securities by the
holder thereof shall have been declared effective under the Securities Act and
such securities shall have been disposed of by such holder pursuant to such
registration statement, (b) such securities have been sold to the public
pursuant to, or are eligible for sale to the public without volume or manner of
sale restrictions under, Rule 144(k) (or any similar provision then in force,
but not Rule 144A) promulgated under the Securities Act, (c) such securities
shall have been otherwise transferred and new certificates for such securities
not bearing a legend restricting further transfer shall have been delivered by
the Company or its transfer agent and subsequent disposition of such securities
shall not require registration or qualification under the Securities Act or any
similar state law then in force, or (d) such securities shall have ceased to be
outstanding.
"Registration Expenses" shall mean all expenses incident to the
Company's performance of or compliance with this Agreement, including, without
limitation, all SEC and stock exchange or National Association of Securities
Dealers, Inc. registration and filing fees and expenses, fees and expenses of
compliance with securities or blue sky laws (including, without limitation,
reasonable fees and disbursements of counsel for the underwriters in connection
with blue sky qualifications of the Registrable Securities), printing expenses,
messenger, telephone and delivery expenses, fees and disbursements of counsel
for the Company, the fees and expenses of underwriters customarily paid by
issuers or sellers of securities (but not including any underwriting discounts
or commissions or transfer taxes, if any, attributable to the sale of
Registrable Securities by Holders of such Registrable Securities), and all
independent certified public accountants, and other reasonable out-of-pocket
expenses of Holders (including the fees and expenses of one counsel for the
Holders to be selected by a majority of such Holders).
"Registration Notice" shall have the meaning ascribed to such term in
Section 2.3(a) hereof.
"Registration Statement" shall mean any appropriate registration
statement of the Company filed with the SEC pursuant to the Securities Act which
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covers any of the Warrants, the Warrant Shares and any other Registrable
Securities pursuant to the provisions of this Agreement and all amendments and
supplements to any such Registration Statement, including post-effective
amendments, in each case including the Prospectus contained therein, all
exhibits thereto and all material incorporated by reference therein.
"Requesting Holder" shall have the meaning ascribed to such term in
Section 2.3(a) hereof.
"Rule 144" shall mean Rule 144 promulgated under the Securities Act,
as such Rule may be amended from tune to time, or any similar rule (other than
Rule 144A) or regulation hereafter adopted by the SEC providing for offers and
sales of securities made in compliance therewith resulting in offers and sales
by subsequent holders that are not affiliates of an issuer of such securities
being free of the registration and prospectus delivery requirements of the
Securities Act.
"Rule 144A" shall mean Rule 144A promulgated under the Securities Act,
as such Rule may be amended from time to time, or any similar rule (other than
Rule 144) or regulation hereafter adopted by the SEC.
"SEC" shall mean the Securities and Exchange Commission.
"Second Warrant Agreement" has the meaning ascribed to such term in
the preamble hereto.
"Securities Act" shall mean the Securities Act of 1933, as amended
from time to time.
"Selling Holder" shall mean a Holder who is selling Registrable
Securities in accordance with the provisions of Section 2.2 hereof.
"Shelf Registration Default" shall have the meaning ascribed to such
term in Section 2.1(d) hereof.
"Suspension Period" shall have the meaning ascribed to such term in
Section 2.4(a) hereof.
"Tranche A Warrant" and "Tranche A Warrants" shall each have the
meanings ascribed to such terms in the preamble hereto.
"Tranche B Warrant" and "Tranche B Warrants" shall each have the
meanings ascribed to such terms in the preamble hereto.
"Unit Purchase Agreement" shall mean the Purchase Agreement, dated as
of the date hereof, among the Company and the Unit Purchasers.
"Unit Purchasers" has the meaning ascribed to such term in the
preamble hereto.
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"Warrant Agent" shall have the meaning ascribed to such term in the
preamble hereto.
"Warrant Agreement" and "Warrant Agreements" shall have the meanings
ascribed to such terms in the preamble hereto, as amended or supplemented from
time to time in accordance with their respective terms.
"Warrant Shares" shall have the meaning ascribed to such term in the
preamble hereo.
"Warrant Shelf Registration Statement" shall mean the Registration
Statement filed with the SEC pursuant to Section 2.1(a) hereof.
"Warrants" shall have the meaning ascribed to such term in the
preamble hereto.
Capitalized terms used herein but not defined shall have the meaning
ascribed thereto in the Warrant Agreement.
SECTION 2. Registration Rights.
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2.1 (a) Warrant Shelf Registration Statement. The Company shall cause
to be filed pursuant to Rule 415 (or any successor provision) of the Securities
Act a shelf registration statement covering the issuance of Warrant Shares to
the Holders upon exercise of the Warrants by the Holders thereof (to the extent
necessary) and the resale of the Warrants (the "Warrant Shelf Registration
Statement") and shall use its reasonable best efforts to cause the Warrant Shelf
Registration Statement to be declared effective under the Securities Act on or
before March 15, 2005. Subject to Section 2.4(a) hereof, the Company shall use
reasonable efforts to maintain the effectiveness of the Warrant Shelf
Registration Statement until such time as all Warrants have been exercised and
the Warrant Shares resold. The Company will pay all Registration Expenses in
connection with the resale of Warrants and Warrant Shares.
(b) Blue Sky. The Company shall use its reasonable efforts to register
or qualify the Warrant Shares under all applicable securities laws, blue sky
laws or similar laws of all jurisdictions in the United States in which any
Holder may or may be deemed to purchase Warrant Shares upon the exercise of
Warrants and shall use its reasonable efforts to maintain such registration or
qualification through such time as all Warrants have been exercised and Warrant
Shares have been resold; provided, however, that the Company shall not be
required to qualify generally to do business in any jurisdiction where it would
not otherwise be required to qua1ify but for this Section 2.1(b) or to take any
action which would subject it to general service of process or to taxation in
any such jurisdiction where it is not then so subject.
(c) Accuracy of Disclosure. The Company represents and warrants to
each Holder and agrees for the benefit of each Holder that (i) the Warrant Shelf
Registration Statement and any amendment thereto will not contain any untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements contained therein not
misleading; and (ii) each of the prospectuses furnished to such Holder for
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delivery in connection with the exercise of Warrants or in connection with the
sale of Warrant Shares, as the case may be, and the documents incorporated by
reference therein will not contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to make
the statements contained therein, in light of the circumstances under which they
were made, not misleading; provided, however, that the Company shall have no
liability under clause (i) or (ii) of this Section 2.1(c) with respect to any
such untrue statement or omission made in the Warrant Shelf Registration
Statement in reliance upon and in conformity with information furnished to the
Company by or on behalf of the Holders specifically for inclusion therein.
(d) Liquidated Damages. In the event that (i) the Warrant Shelf
Registration Statement is not declared effective by the SEC on or prior to Xxxxx
00, 0000 xx (xx) following the date such Warrant Shelf Registration Statement is
declared effective but thereafter ceases to be effective or usable without being
restored to effectiveness by amendment or otherwise, except during such time
periods indicated in Section 2.4(a) (each of the events referred to in clauses
(i) and (ii) above, a "Shelf Registration Default"), then the Company shall pay
liquidated damages ("Liquidated Damages") to each Holder of Warrants or Warrant
Shares in an amount initially equal to $0.05 per week per Warrant or Warrant
Share for each week that the Shelf Registration Default continues for the first
90-day period following such Shelf Registration Default. The Liquidated Damages
shall be increased by an additional $0.05 per week per Warrant or Warrant Share
with respect to each subsequent 90-day period until such Shelf Registration
Default has been cured, up to a maximum amount of Liquidated Damages of $0.25
per week per Warrant or Warrant Share.
(e) Additional Acts. If the issuance or sale of any Warrant Shares or
other securities issuable upon the exercise of the Warrants requires
registration or approval of any gaming authority before such securities may be
validly offered or sold in compliance with such laws, then the Company covenants
that it will, in good faith and as expeditiously as reasonably possible, use all
reasonable efforts to secure and maintain such registration or approval or to
take such other action, as the case may be.
2.2 (a) Piggy-Back Registration. If at any time the Company proposes
to file a Registration Statement under the Securities Act with respect to an
offering by the Company of Common Stock for its own account or for the account
of any of its securityholders (other than (i) a Registration Statement on Form
S-4 or S-8 (or any substitute form that may be adopted by the SEC) or any other
publicly registered offering pursuant to the Securities Act pertaining to the
issuance of shares of Common Stock or securities exercisable therefor under any
benefit plan, employee compensation plan, or employee or director stock purchase
plan, or (ii) a registration statement filed in connection with an offer of
securities solely to the Company's existing securityholders), then the Company
shall give written notice of such proposed filing to the Holders of Registrable
Securities as soon as practicable (but in no event fewer than 15 days before the
anticipated filing date or 10 days if the Company is subject to filing reports
under the Exchange Act and able to use Form S-3 under the Securities Act), and
such notice shall offer such Holders the opportunity to register such number of
shares of Registrable Securities as each such Holder may request in writing at
least five days prior to the anticipated filing date of the Registration
Statement after receipt of such written notice from the Company (which request
shall specify the Registrable Securities intended to be disposed of by such
Selling Holder and the intended method of distribution thereof) (a "Piggy-Back
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Registration"). The Company shall use its reasonable best efforts to keep such
Piggy-Back Registration continuously effective under the Securities Act in the
qualifying jurisdictions until at least the earlier of (A) 60 days after the
effective date thereof or (B) the consummation of the distribution by the
Holders of all of the Registrable Securities covered thereby. The Company shall
use its reasonable best efforts to cause the managing underwriter or
underwriters, if any, of such proposed offering to permit the Registrable
Securities requested to be included in a Piggy-Back Registration to be included
on the same terms and conditions as any similar securities of the Company or any
other securityholder included therein and to permit the sale or other
disposition of such Registrable Securities in accordance with the intended
method of distribution thereof. Any Selling Holder shall have the right to
withdraw its request for inclusion of its Registrable Securities in any
Registration Statement pursuant to this Section 2.2 by giving written notice to
the Company of its request to withdraw. The Company may withdraw a Piggy-Back
Registration at any time prior to the time it becomes effective or the Company
may elect to delay the registration; provided, however, that the Company shall
give prompt written notice thereof to participating Selling Holders. The Company
will pay all Registration Expenses in connection with each registration of
Registrable Securities requested pursuant to this Section 2.2, and each Holder
of Registrable Securities shall pay all underwriting discounts and commissions
and transfer taxes, if any, relating to the sale or disposition of such Holder's
Registrable Securities pursuant to a Registration Statement effected pursuant to
this Section 2.2.
No registration effected under this Section 2.2, and no failure to
effect a registration under this Section 2.2, shall relieve the Company of its
obligation to effect a registration pursuant to Section 2.1 or 2.3 hereof, and
no failure to effect a registration under this Section 2.2 and to complete the
sale of securities registered thereunder in connection therewith shall relieve
the Company of any other obligation under this Agreement.
(b) Priority in Piggy-Back Registration. In a registration pursuant to
this Section 2.2 involving an underwritten offering, if the managing underwriter
or underwriters of such underwritten offering have informed, in writing, the
Company and the Selling Holders requesting inclusion in such offering that in
such underwriter's or underwriters' reasonable opinion the total number of
securities which the Company, the Selling Holders and any other persons desiring
to participate in such registration intend to include in such offering is such
as to materially and adversely affect the success of such offering, including
the price at which such securities can be sold, then the Company will be
required to include in such registration only the amount of securities which it
is so advised should be included in such registration. In such event: (x) in
cases only involving the registration for sale of Common Stock for the Company's
own account (which may include securities included pursuant to the exercise of
piggy-back rights herein and in other contractual commitments of the Company),
securities shall be registered in such offering in the following order of
priority: (i) first, the Common Stock which the Company proposes to register,
(ii) second, provided that no Common Stock sought to be included by the Company
have been excluded from such registration, the shares of Common Stock which have
been requested to be included in such registration by the Holders of Registrable
Securities pursuant to this Agreement (such securities for the account of the
Holders to be allocated among the Holders pro rata based on the amount of
securities sought to be registered by the Holder) and (iii) third, provided that
no Common Stock sought to be included by the Company or the Holders have been
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excluded from such registration, the securities of other Persons entitled to
exercise "piggy-back" registration rights pursuant to contractual commitments of
the Company (pro rata based on the amount of securities sought to be registered
by such Persons); and (y) in cases not involving the registration for sale of
Common Stock for the Company's own account only, securities shall be registered
in such offering in the following order of priority: (i) first, Common Stock to
be sold for the account of the Company and the securities of any Person whose
exercise of a "demand" registration right pursuant to a contractual commitment
of the Company is the basis for the registration (provided that if such Person
is a Holder of Registrable Securities, as among Holders of Registrable
Securities there shall be no priority and Registrable Securities sought to be
included by Holders of Registrable Securities shall be included pro rata based
on the amount of securities sought to be registered by such Persons), (ii)
second, provided that no securities of the Company or such Person referred to in
the immediately preceding clause (i) have been excluded from such registration,
the securities requested to be included in such registration by the Holders of
Registrable Securities pursuant to this Agreement (such securities for the
account of the Holders to be allocated among the Holders pro rata based on the
total amount of securities sought to be registered by the Holders) and (iii)
third, provided that no securities of such Person referred to in the immediately
preceding clause (i) or of the Holders have been excluded from such
registration, securities of other Persons entitled to exercise "piggy- back"
registration rights pursuant to contractual commitments (pro rata based on the
amount of securities sought to be registered by such Persons).
If, as a result of the provisions of this Section 2.2(b), any Selling
Holder shall not be entitled to include all Registrable Securities in a
Piggy-Back Registration that such Selling Holder has requested to be included,
such Selling Holder may elect to withdraw his request to include Registrable
Securities in such registration.
(c) Restrictions on Sale by Holder. Each Holder of Registrable
Securities whose Registrable Securities are covered by a Registration Statement
filed pursuant to this Section 2.2 (a "Piggy-Back Registration Statement") and
are to be sold thereunder agrees, if and to the extent reasonably requested by
the managing underwriter or underwriters in an underwritten public offering, not
to effect any sale or distribution or otherwise dispose of Registrable
Securities or of securities of the Company of the same class as any securities
included in such Piggy-Back Registration Statement, including a sale pursuant to
Rule 144 (except as part of such underwritten offering), during a period not to
exceed 180 days or such fewer number of days agreed to with officers, directors,
or significant shareholders of the Company, after consummation of such
underwritten public offering.
The foregoing provisions of Section 2.2(c) shall not apply to any
Holders of Registrable Securities if such Holder is prevented by applicable
statute or regulation from entering into any such agreement; provided, however,
that any such Holder shall undertake, in its request to participate in any such
underwritten offering, not to effect any sale or distribution or otherwise
dispose of any Registrable Securities commencing on the date of sale of such
Registrable Securities unless it has provided 45 days' prior written notice of
such sale or distribution to the managing underwriter or underwriters.
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2.3 Demand Registrations.
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(a) Requests for Registration. From and after 180 days following the
closing of the Company's first Equity Offering, the Holders of a majority of the
Registrable Securities shall have the right (the "Demand Right") to request
registration under the Securities Act of all or any portion of the Registrable
Securities held by such requesting Holders (referred to herein as the
"Requesting Holders") by delivering a written notice to the principal business
office of the Company, which notice identifies the Requesting Holders and
specifies the number of Registrable Securities to be included in such
registration (the "Demand Registration Request"). The Holders shall collectively
have only one Demand Right pursuant to this Section 2.3. Subject to the
restrictions set forth in Section 2.4, the Company will give prompt written
notice of such Registration Request (the "Demand Registration Notice") to all
other Holders and will thereupon use its reasonable best efforts to file within
90 days of receipt of the Demand Registration Request a registration statement
on whichever form is available for use by the Company (the "Demand Registration
Statement") with the SEC in order to effect the registration under the
Securities Act of:
(i) The Registrable Securities requested to be registered by the
Requesting Holders;
(ii) all other Registrable Securities which the Company has received a
written request to register within 15 days after the Demand
Registration Notice is given and any securities of the Company
proposed to be included in such registration by the Company for
its own account; and
(iii) any Common Stock of the Company proposed to be included in such
registration by the holders of registration rights granted other
than pursuant to this Agreement ("Other Registration Rights").
The Company shall use its reasonable best efforts to cause the Demand
Registration Statement to be declared effective by the SEC within 120 days
following the receipt by the Company Demand Registration Notice.
(b) Preservation of Demand Registration. A registration undertaken by
the Company at the request of the Requesting Holders will not count as the
permitted Demand Registration for purposes of this Section 2.3 if the Requesting
Holder withdraws a Demand Registration Request upon the determination of the
Board of Directors of the Company to postpone the filing or effectiveness of a
Registration Statement pursuant to Section 2.4 or if the Company does not
otherwise comply, in all material respects, with its obligations under this
Section 2.3.
(c) Continued Effectiveness. Subject to Section 2.4(a) hereof, the
Company shall use reasonable efforts to maintain the effectiveness of the Demand
Registration Statement until such time as all Warrants covered by such Demand
Registration Statement have been exercised and the Warrant Shares covered by
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such Demand Registration Statement resold. The Company will pay all Registration
Expenses in connection with the resale of Warrants and Warrant Shares pursuant
to the Demand Registration Statement.
(d) Blue Sky. The Company shall use its reasonable efforts to register
or qualify the Warrant Shares covered by such Demand Registration Statement
under all applicable securities laws, blue sky laws or similar laws of all
jurisdictions in the United States in which any Holder may or may be deemed to
purchase Warrant Shares upon the exercise of Warrants and shall use its
reasonable efforts to maintain such registration or qualification through such
time as all Warrants have been exercised and Warrant Shares have been resold
pursuant to such Demand Registration Statement; provided, however, that the
Company shall not be required to qualify generally to do business in any
jurisdiction where it would not otherwise be required to qua1ify but for this
Section 2.3(d) or to take any action which would subject it to general service
of process or to taxation in any such jurisdiction where it is not then so
subject.
(e) Additional Acts. If the issuance or sale of any Warrant Shares
requires registration or approval of any gaming authority before such securities
may be validly offered or sold in compliance with such laws, then the Company
covenants that it will, in good faith and as expeditiously as reasonably
possible, use all reasonable efforts to secure and maintain such registration or
approval or to take such other action, as the case may be.
2.4 Limitations, Conditions and Qualifications to Obligations Under
Registration Covenants. The obligations of the Company set forth in Sections
2.1, 2.2, 2.3 and 2.7 hereof are subject to each of the following limitations,
conditions and qualifications:
(a) Subject to the next sentence of this paragraph, the Company shall
be entitled to postpone, for a reasonable period of time, the filing of, or
suspend the effectiveness of, any registration statement or amendment thereto,
or suspend the use of any prospectus and shall not be required to amend or
supplement the registration statement, any related prospectus or any document
incorporated therein by reference (other than an effective registration
statement being used for an underwritten offering); provided that the duration
of such postponement or suspension (a "Suspension Period") may not exceed up to
two 30 consecutive-day periods in any 365-day period while the Warrants are
exercisable and provided further, the Suspension Period may not occur during the
30-consecutive-day period immediately after the Exercise Date and during the
30-consecutive- day period immediately prior to March 15, 2010. Such Suspension
Period may be effected only if (i) the Company's Board determines in its good
faith that there is a valid business purpose for such suspension and (ii)
provides notice that such determination was made by the Company's Board to the
Holders of the Warrants; provided, however, that the Effectiveness Period shall
be extended by the number of days in any Suspension Period. If the Company shall
so postpone the filing of a Registration Statement it shall, as promptly as
possible, deliver a certificate signed by the Chief Executive Officer of the
Company to the Selling Holders as to such determination, and the Selling Holders
shall (1) have the right, in the case of a postponement of the filing or
effectiveness of a Registration Statement, upon the affirmative vote of the
Holders of not less than a majority of the Registrable Securities to be included
in such Registration Statement, to withdraw the request for registration by
giving written notice to the Company within 10 days after receipt of such notice
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or (2) in the case of a suspension of the right to make sales, receive an
extension of the registration period equal to the number of days of the
suspension.
(b) The Company's obligations shall be subject to the obligations of
the Selling Holders, which the Selling Holders acknowledge, to furnish all
information and materials and to take any and all actions as may be required
under applicable federal and state securities laws and regulations to permit the
Company to comply with all applicable requirements of the SEC, if applicable,
and to obtain any acceleration of the effective date of such Registration
Statement.
(c) The Company shall not be obligated to cause any special audit to
be undertaken in connection with any registration pursuant to this Agreement
unless such audit is required by the SEC or requested by the underwriters with
respect to such registration.
2.5 Restrictions on Sale by the Company and Others. The Company
covenants and agrees that (i) it shall not, and that it shall not cause or
permit any of its subsidiaries to, effect any public sale or distribution of any
securities of the same class as any of the Registrable Securities or any
securities convertible into or exchangeable or exercisable for such securities
(or any option or other right for such securities), other than any Common Stock
and/or options, warrants or other Common Stock purchase rights and the Common
Stock issued pursuant to such options, warrants or other rights to employees,
officers or directors of, or consultants or advisers to, the Company or any
subsidiary, pursuant to stock purchase or stock option plans or other
arrangements that are approved by the Board of Directors of the Company, during
the 7-day period prior to, and during the 90-day period beginning on, the
commencement of any underwritten offering of Registrable Securities pursuant to
a Piggy-Back Registration which has been scheduled, prior to the Company or any
of its subsidiaries publicly announcing its intention to effect any such public
sale or distribution; (ii) the Company will not, and the Company will not cause
or permit any subsidiary of the Company to, after the date hereof, enter into
any agreement or contract that conflicts with or limits or prohibits the full
and timely exercise by the Holders of Registrable Securities of the rights
herein to join in any Piggy-Back Registration subject to the other terms and
provisions hereof; and (iii) upon request of the Holders of not less than a
majority of the Registrable Securities to be included in such Registration
Statement or any underwriter, it shall use its reasonable best efforts to secure
the written agreement of each of its officers and directors to not effect any
public sale or distribution of any securities of the same class as the
Registrable Securities (or any securities convertible into or exchangeable or
exercisable for an such securities), or any option or right for such securities
during the period described in clause (i) of this Section 2.5.
2.6 Rule 144 and Rule 144A. The Company covenants that it will file
the reports required to be filed by it under the Securities Act and the Exchange
Act and the rules and regulations adopted by the SEC thereunder in a timely
manner and, if at any time the Company is not required to file such reports, it
will, upon the request of any Holder or beneficial owner of Registrable
Securities, make available such information necessary to permit sales pursuant
to Rule 144A under the Securities Act. The Company further covenants that it
will take such further action as any Holder of Registrable Securities 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 (a) Rule 144(k) and Rule
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144A under the Securities Act, as such Rules may be amended from time to time,
or (b) any similar rule or regulation hereafter adopted by the SEC (it being
expressly understood that the foregoing shall not create any obligation on the
part of the Company to file periodic reports or other reports under the Exchange
Act at any time that it is not then required to file such reports pursuant to
the Exchange Act). Upon the request of any Holder of Registrable Securities, the
Company will in a timely manner deliver to such Holder a written statement as to
whether it has complied with such information requirements.
2.7 Underwritten Registrations. No Holder of Registrable Securities
may participate in any underwritten registration pursuant to a Registration
Statement filed under this Agreement unless such Holder (a) agrees to (i) sell
such Holder's Registrable Securities on the basis provided in and in compliance
with customary underwriting arrangements and (ii) comply with Rules 101, 102 and
104 of Regulation M under the Exchange Act and (b) completes and executes all
questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents reasonably required under the terms of such underwriting
arrangements.
2.8 Listing of Warrant Shares. The Company shall use its reasonable
best efforts to register the Warrant Shares for trading on the Nasdaq National
Market or any other national securities exchange, to the extent the Company is
eligible to register for such trading, on or prior to the earlier of (i) the
effective date of the Demand Registration Statement and (ii) the effective date
of the Warrant Shelf Registration Statement.
SECTION 3. Registration Procedures. In connection with the obligations
of the Company with respect to any Registration Statement pursuant to Sections
2.1, 2.2, 2.3 and 2.7 hereof, the Company shall, except as otherwise provided:
(a) At least five days prior to the initial filing of a Registration
Statement or Prospectus and at least two days prior to the filing of any
amendment or supplement thereto (including any document that would be
incorporated or deemed to be incorporated therein by reference), furnish to the
Warrant Agent, the Holders and the managing underwriters, if any, copies of all
such documents proposed to be filed, which documents (other than those
incorporated or deemed to be incorporated by reference) shall be subject to the
review of such Holders, and such underwriters, if any, and cause the officers
and directors of the Company, counsel to the Company and independent certified
public accountants to the Company to respond to such reasonable inquiries as
shall be necessary, in the opinion of counsel to such underwriters, to conduct a
reasonable investigation within the meaning of the Securities Act. The Company
shall not file any such Registration Statement or related Prospectus or any
amendments or supplements thereto which the Holders of a majority of the
Registrable Securities included in such Registration Statement shall reasonably
object on a timely basis.
(b) Prepare and file with the SEC such amendments, including post-
effective amendments to each Registration Statement as may be necessary to keep
such Registration Statement continuously effective for the applicable time
period required hereunder; 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) promulgated under the
Securities Act; and comply with the provisions of the Securities Act and the
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Exchange Act with respect to the disposition of all securities covered by such
Registration Statement during such period in accordance with the intended
methods of disposition by the sellers thereof set forth in such Registration
Statement as so amended or in such Prospectus as so supplemented.
(c) Notify the Warrant Agent, the Holders of Registrable Securities to
be sold and the managing underwriters, if any, promptly, and (if requested by
any such person) confirm such notice in writing, (i)(A) when a Prospectus or any
Prospectus supplement or post-effective amendment is proposed to be filed, and
(B) with respect to a Registration Statement or any post- effective amendment
when the same has become effective, (ii) of any request by the SEC or any other
Federal or state governmental authority for amendments or supplements to a
Registration Statement or related Prospectus or for additional information,
(iii) of the issuance by the SEC, any state securities commission, any other
governmental agency or any court of any stop order suspending the effectiveness
of such Registration Statement or of any order or injunction suspending or
enjoining the use of a Prospectus or the effectiveness of a Registration
Statement or the initiation 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, and (v) of the happening of any event, or the
existence of any information becoming known, that makes any statement made in a
Registration Statement or related Prospectus or any document incorporated or
deemed to be incorporated therein by reference untrue in any material respect or
omit to state any material fact required to be stated therein or necessary to
make the statements therein, not misleading, and that in the case of the
Prospectus, it will 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 light of the circumstances under which they were
made, not misleading.
(d) Use its reasonable best efforts to avoid the issuance of or, if
issued, obtain the withdrawal of any order enjoining or suspending the
effectiveness of the Registration Statement or the use of a Prospectus or the
lifting of any suspension of the qualification (or exemption from qualification)
of any of the Registrable Securities covered thereby for sale in any
jurisdiction described in Section 3(h) at the earliest practicable moment.
(e) If requested by the managing underwriters, if any, or if none, by
the Holders of a majority of the Registrable Securities being sold pursuant to
such Registration Statement, (i) promptly incorporate in a Prospectus supplement
or post-effective amendment such information as the managing underwriters, if
any, or if none, such Holders reasonably believe should be included therein, and
(ii) make all required filings of such Prospectus supplement or such post-
effective amendment under the Securities Act as soon as practicable after the
Company has received notification of the matters to be incorporated in such
prospectus supplement or post-effective amendment; provided, however, that the
Company shall not be required to take any action pursuant to this Section 3(e)
that would in the opinion of counsel for the Company, violate applicable law.
(f) Upon written request to the Company, furnish to each Holder of
Registrable Securities to be sold pursuant to a Registration Statement and each
managing underwriter, if any, without charge, at least one conformed copy of the
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Registration Statement and each amendment thereto, including financial
statements and schedules, all documents incorporated or deemed to be
incorporated therein by reference, and all exhibits to the extent requested
(including those previously furnished or incorporated by reference) as soon as
practicable after the filing of such documents with the SEC.
(g) Deliver to each Holder of Registrable Securities to be sold
pursuant to a Registration Statement and each managing underwriter, if any,
without charge, as many copies of each Prospectus (including each form of
prospectus) and each amendment or supplement thereto as such Persons may
reasonably request; and, subject to the second to last paragraph of this Section
3, the Company hereby consents to use of such Prospectus and each amendment or
supplement thereto and each document supplemental thereto by each of the selling
Holders of Registrable Securities and the underwriters or agents, if any, in
connection with the offering and sale of the Registrable Securities covered by
such Prospectus and any amendment or supplement thereto.
(h) Prior to any offering of Registrable Securities, use its
reasonable best efforts to register or qualify or cooperate with the Holders of
Registrable Securities to be sold, the managing underwriter or underwriters, if
any, and their respective counsel 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 as any such Holder or underwriter reasonably requests in
writing; keep each such registration or qualification (or exemption therefrom)
effective during the period such Registration Statement is required to be kept
effective hereunder and do any and all other acts or things necessary or
advisable to enable the disposition in such jurisdictions of the Registrable
Securities covered by the applicable Registration Statement; provided, however,
that the Company shall not be required to (i) qualify generally to do business
in any jurisdiction where it is not then so qualified or (ii) take any action
that would subject it to general service of process in any such jurisdiction
where it is not then so subject or to taxation in any jurisdiction where it is
not so subject.
(i) In connection with any sale or transfer of Registrable Securities
that will result in such securities no longer being Registrable Securities,
cooperate with the Holders of Registrable Securities and the managing
underwriters, if any, to facilitate the timely preparation and delivery of
certificates representing Registrable Securities to be sold, which certificates
shall not bear any restrictive legends whatsoever and shall be in a form
eligible for deposit with The Depository Trust Company ("DTC"); and to enable
such Registrable Securities to be in such denominations and registered in such
names as the underwriter or underwriters, if any, or such Holders may reasonably
request at least two Business Days prior to any sale of Registrable Securities.
(j) Upon the occurrence of any event contemplated by Section 3(c)(v)
above, as promptly as practicable prepare a supplement or amendment, including
if appropriate a post-effective amendment to each Registration Statement or a
supplement to the related Prospectus or any document incorporated or deemed to
be incorporated therein by reference, and file any other required document so
that, as thereafter delivered, such Prospectus will not contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
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(k) Prior to the effective date of a Registration Statement, (i)
provide the registrar for the Warrants and Registrable Securities with
certificates for such securities in a form eligible for deposit with DTC and
(ii) provide CUSIP numbers for such securities.
(l) Enter into such agreement (including an underwriting agreement in
such form, scope and substance as is customary in underwritten offerings) and
take all such other reasonable actions in connection therewith (including those
reasonably requested by the managing underwriters, if any, or the Holders of a
majority of the Registrable Securities being sold) in order to expedite or
facilitate the disposition of such Registrable Securities, and, whether or not
an underwriting agreement is entered into and whether or not the registration is
an underwritten registration, (i) make such representations and warranties to
the Holders of such Registrable Securities and the underwriter or underwriters,
if any, with respect to the business of the Company and the subsidiaries of the
Company (including with respect to businesses or assets acquired or to be
acquired by any of them), and the Registration Statement, Prospectus and
documents, if any, incorporated or deemed to be incorporated by reference
therein, in each case, in form, substance and scope as are customarily made by
issuers to underwriters in underwritten offerings, and confirm the same if any
when requested; (ii) use its reasonable best efforts to obtain opinions of
counsel to the Company and updates thereof (which counsel and opinions (in form,
scope and substance) shall be reasonably satisfactory to the managing
underwriters, if any, addressed to each Selling Holder of Registrable Securities
and each of the underwriters, if any), covering the matters customarily covered
in opinions requested in underwritten offerings and such other matters as may be
reasonably requested by such underwriters; (iii) use its reasonable best efforts
to obtain customary "cold comfort" letters and updates thereof from the
independent certified public accountants of the Company (and, if necessary, any
other independent certified public accountants of any subsidiary of the Company
or of any business acquired by the Company for which financial statements and
financial data are, or are required to be, included in the Registration
Statement), addressed (where reasonably possible) to each Selling Holder of
Registrable Securities and each of the underwriters, if any, such letters to be
in customary form and covering matters of the type customarily covered in "cold
comfort" letters in connection with underwritten offerings; (iv) if an
underwriting agreement is entered into, the same shall contain customary
indemnification provisions and procedures no less favorable to the Selling
Holders and the underwriters, if any, than those set forth in Section 4 hereof
(or such other provisions and procedures acceptable to Holders of a majority of
Registrable Securities covered by such Registration Statement and the managing
underwriter, if any); and (v) deliver such documents and certificates as may be
reasonably requested by the Holders of a majority of the Registrable Securities
being sold and the managing underwriters or underwriters to evidence the
continued validity of the representations and warranties made pursuant to clause
(i) above and evidence compliance with any customary conditions contained in the
underwriting agreement or other agreements entered into by the Company.
(m) Make available for inspection by a representative of the Selling
Holders of Registrable Securities, any underwriter participating in any such
disposition of Registrable Securities, if any, and any attorney, consultant or
accountant retained by such representative of the Selling Holders of Registrable
Securities or underwriter (collectively, the "Inspectors"), at the offices where
normally kept, during the reasonable business hours, all financial and other
records, pertinent corporate documents and properties of the Company and the
subsidiaries
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subsidiaries of the Company (including with respect to businesses and assets
acquired or to be acquired to the extent that such information is available to
the Company), and cause the officers, directors, agents and employees of the
Company and its subsidiaries of the Company (including with respect to
businesses and assets acquired or to be acquired to the extent that such
information is available to the Company) to supply all information in each case
reasonably requested by any such Inspector in connection with such Registration
Statement; provided, however, that all such information shall be kept
confidential by such Inspector and shall not be used for any purpose other than
as contemplated hereby, unless (i) disclosure of such information is required by
court of competent jurisdiction or administrative order or is necessary to
respond to inquiries of regulatory authorities; provided, however, that prior
notice is given to the Company, and the Company's legal counsel and such
Inspectors' legal counsel concur that disclosure is required; (ii) disclosure of
such information is required by law (including any disclosure requirements
pursuant to U.S. securities laws in connection with the filing of the
Registration Statement or the use of any Prospectus); provided, however, that
prior notice is given to the Company, and the Company's legal counsel and such
Inspector's legal counsel concur that disclosure is required; (iii) such
information becomes generally available to the public other than as a result of
a disclosure or failure to safeguard such information by such person or (iv)
such information becomes available to such person from a source other than the
Company and its subsidiaries and such source is not bound by a confidentiality
agreement.
(n) Comply with all applicable rules, regulations and policies of the
SEC and make generally available to its securityholders earnings statements
satisfying the provisions of Section 11(a) of the Securities Act and Rule 158
thereunder no later than 60 days after the end of any 12-month period (or 135
days after the end of any 12-month period if such period is a fiscal year) (i)
commencing at the end of any fiscal quarter in which Registrable Securities are
sold to an underwriter or to underwriters in a firm commitment or best efforts
underwritten offering and (ii) if not sold to an underwriter or to underwriters
in such an offering, commencing on the first day of the first fiscal quarter of
the Company after the effective date of the relevant Registration Statement,
which statements shall cover said such period, consistent with the requirements
of Rule 158 under the Securities Act.
(o) Use its reasonable best efforts to cause the Warrant Shares
relating to such Registration Statement to be listed on each securities
exchange, if any, on which similar securities issued by the Company are then
listed, or, to the extent eligible, to procure an original listing as
contemplated by Sections 2.1(f) and 2.3(f).
(p) Cooperate with the Selling Holders of Registrable Securities to
facilitate the timely preparation and delivery of certificates representing
Registrable Securities to be sold and not bearing any restrictive legends and
registered in such names as the Selling Holders may reasonably request at least
two Business Days prior to the closing of any sale of Registrable Securities.
(q) Cooperate with the Selling Holders of Registrable Securities
covered by any Registration Statement and each underwriter, if any,
participating in the disposition of such Warrants or Registrable Securities and
its respective counsel in connection with any filings required to be made with
the National Association of Securities Dealers, Inc.
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The Company may require a Holder of Registrable Securities to be
included in a Registration Statement to furnish to the Company such information
regarding (i) the intended method of distribution of such Registrable Securities
(ii) such Holder and (iii) the Registrable Securities held by such Holder as is
required by law to be disclosed in such Registrable Statement and the Company
may exclude from such Registration Statement the Registrable Securities of any
Holder who fails to furnish such information within a reasonable time after
receiving such request.
If any such Registration Statement refers to any Holder by name or
otherwise as the Holder of any securities of the Company, then such Holder shall
have the right to require, in the event that such reference to such Holder by
name or otherwise is not required by the Securities Act, the deletion of the
reference to such Holder in such amendment or supplement to the Registration
Statement filed or prepared subsequent to the time that such reference ceases to
be required.
Each Holder of Registrable Securities agrees by acquisition of such
Registrable Securities that, upon receipt of any notice from the Company of the
happening of any event of the kind described in Section 3(c)(ii), 3(c)(iv) or
3(c)(v) hereof, such Holder will forthwith discontinue disposition of such
Registrable Securities covered by the Registration Statement or Prospectus until
such Holder's receipt of the copies of the supplemented or amended Prospectus
contemplated by Section 3(j) hereof, or until it is advised in writing (the
"Advice") by the Company that the use of the applicable Prospectus may be
resumed, and in either case has received copies of any additional or
supplemental filings that are incorporated or deemed to be incorporated by
reference in such Prospectus, and, if so directed by the Company, such Holder
will deliver to the Company all copies that are in such Holder's possession of
the Prospectus covering such Registrable Securities current at the time of
receipt of such notice. If the Company shall give any such notice, the
Effectiveness Period shall be extended by the number of days during such periods
from and including the date of the giving of such notice to and including the
date when each seller of Registrable Securities covered by such Registration
Statement shall have received (x) the copies of the supplemented or amended
Prospectus contemplated by Section 3(j) hereof or (y) the Advice, and, in either
case, has received copies of any additional or supplemental filings that are
incorporated or deemed to be incorporated by reference in such Prospectus.
Holders of the Registrable Securities shall be obligated to keep
confidential the existence of a Suspension Period or any confidential
information communicated by the Company to the Holder with respect thereto.
SECTION 4. (a) Indemnification and Contribution. The Company agrees to
indemnify and hold harmless each Holder and each underwriter, if any, who
participates in an offering of Registrable Securities, their respective
affiliates, and their respective directors, officers, employees, agents and each
Person, if any, who controls any of such parties within the meaning of 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 any
Registration Statement (or any amendment thereto) pursuant to which
Registrable Securities were registered under the Securities Act,
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including all documents incorporated therein by reference, or the
omission or alleged omission therefrom of a 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
or arising out of any untrue statement or alleged untrue statement of
a material fact contained in any Prospectus (or any amendment or
supplement thereto) or the omission or alleged omission therefrom of a
material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading;
provided, however, that this indemnity agreement does not apply to any loss,
liability, claim, damage or expense to the extent (i) arising out of an untrue
statement or omission or alleged untrue statement or omission (A) made in or
omitted from a preliminary Prospectus or Registration Statement and corrected or
included in a subsequent Prospectus or Registration Statement or any amendment
or supplement thereto, (B) made in reliance upon and in conformity with written
information furnished to the Company by such Holder expressly for use in the
Registration Statement (or any amendment thereto) or the Prospectus (or any
amendment or supplement thereto) or (C) resulting from the use of the Prospectus
during a period when the use of the Prospectus has been suspended for sales
thereunder in accordance with Sections 2.1(b), 2.1(c), 2.2(c), 2.4, 2.5 or 2.7
hereof, provided, in each case, that such Holder or such underwriter, as
applicable, received prior notice of such suspension or other unavailability.
(b) Each Holder agrees, severally and not jointly, to indemnify and
hold harmless the Company, and each underwriter, if any, who participates in an
offering of Registrable Securities and the other Selling Holders and each of
their respective affiliates, and their respective directors, officers (including
each officer of the Company who signed the Registration Statement), employees,
agents and each Person, if any, who controls any of such parties within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act,
against any and all loss, liability, claim, damage and expense described in the
indemnity contained in Section 5(a) hereof, as incurred, but only with respect
to untrue statements or omissions, or alleged untrue statements or omissions,
made in the Registration Statement (or any amendment thereto) or the Prospectus
(or any amendment or supplement thereto) in reliance upon and in conformity with
written information furnished to the Company by such Holder expressly for use in
the Registration Statement (or any amendment thereto), or the Prospectus (or any
amendment or supplement thereto); provided, however, that no such Holder shall
be liable for any claim hereunder in excess of the amount of net proceeds
received by such Holder from the sale of Warrants and Registrable Securities
pursuant to such Registration Statement.
(c) In case any action shall be commenced involving any person in
respect of which indemnity may be sought pursuant to Section 4(a) or 4(b) (the
"indemnified party"), the indemnified party shall promptly notify the person
against whom such indemnity may be sought (the "indemnifying party") in writing
and the indemnifying party shall assume the defense of such action, including
the employment of counsel reasonably satisfactory to the indemnified party and
the payment of all fees and expenses of such counsel, as incurred (except that
in the case of any action in respect of which indemnity may be sought pursuant
to both Section 4(a) and 4(b), the indemnifying party, shall not be required to
assume the defense of such action pursuant to this Section 4(c), but may employ
separate counsel and participate in the defense thereof, but the fees and
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expenses of such counsel, except as provided below, shall be at the expense of
the indemnifying party). Any indemnified party shall have the right to employ
separate counsel in any such action and participate in the defense thereof, but
the fees and expenses of such counsel shall be at the expense of the indemnified
party unless (i) the employment of such counsel shall have been specifically
authorized in writing by the indemnifying party, (ii) the indemnifying party
shall have failed to assume the defense of such action or employ counsel
reasonably satisfactory to the indemnified party or (iii) the named parties to
any such action (including any impleaded parties) include both the indemnified
party and the indemnifying party, and the indemnified party shall have been
advised by such counsel in writing that there may be one or more legal defenses
available to it which are different from or additional to those available to the
indemnifying party (in which case the indemnifying party shall not have the
right to assume the defense of such action on behalf of the indemnified party).
In any such case, the indemnifying party shall not, in connection with any one
action or separate but substantially similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances, be
liable for the fees and expenses of more than one separate firm of attorneys (in
addition to one local counsel) for all indemnified parties and all such fees and
expenses shall be reimbursed as they are incurred. Such firm shall be designated
in writing by a majority of the Holders, in the case of the parties indemnified
pursuant to Section 4(a), and by the Company, in the case of parties indemnified
pursuant to Section 4(b). The indemnifying party shall indemnify and hold
harmless the indemnified party from and against any and all losses, claims,
damages, liabilities and judgments by reason of any settlement of any action (i)
effected with its written consent or (ii) effected without its written consent
if the settlement is entered into more than twenty Business Days after the
indemnifying party shall have received a request from the indemnified party for
reimbursement for the fees and expenses of counsel (in any case where such fees
and expenses are at the expense of the indemnifying party) and, prior to the
date of such settlement, the indemnifying party shall have failed to comply with
such reimbursement request. No indemnifying party shall, without the prior
written consent of the indemnified party, effect any settlement or compromise
of, or consent to the entry of judgment with respect to, any pending or
threatened action in respect of which the indemnified party is or could have
been a party and indemnity or contribution may be or could have been sought
hereunder by the indemnified party, unless such settlement, compromise or
judgment (i) includes an unconditional release of the indemnified party from all
liability on claims that are or could have been the subject matter of such
action 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 the indemnified party.
(d) To the extent the indemnification provided for in this Section 4
is unavailable to an indemnified party or insufficient in respect of any losses,
claims, damages, liabilities or judgments referred to therein, then each
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, claims, damages, liabilities and judgments in such proportion as
is appropriate to reflect the relative fault of the Company, on the one hand,
and of the Holder, on the other hand, in connection with the statements or
omissions which resulted in such losses, claims, damages, liabilities or
judgments, as well as any other equitable considerations appropriate in the
circumstances. The relative fault of the Company, on the one hand, and of the
Holder, on the other hand, shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
-20-
supplied by the Company on the one hand, or by the Holder, on the other hand,
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. No person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. For purposes of this paragraph (d),
each person, if any, who controls a Purchaser 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 Purchaser, and each director of the Company, each
officer of the Company, and each person, if any, who controls the Company 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.
(e) The Company and the Purchasers agree that it would not be just and
equitable if contribution pursuant to Section 4(d) were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to in the immediately preceding paragraph.
The amount paid or payable by an indemnified party as a result of the losses,
claims, damages, liabilities or judgments referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses incurred by such indemnified party in
connection with investigating or defending any matter, including any action,
that could have given rise to such losses, claims, damages, liabilities or
judgments. Notwithstanding the provisions of this Section 4, no Holder, its
directors, its officers or any Person, if any, who controls such Holder shall be
required to contribute, in the aggregate, any amount in excess of the amount by
which the total received by such Holder with respect to the sale of Transfer
Restricted Securities pursuant to a Registration Statement exceeds (i) the
amount paid by such Holder for such Transfer Restricted Securities and (ii) the
amount of any damages which such Holder 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 Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The Holders'
obligations to contribute pursuant to this Section 4(d) are several in
proportion to the respective principal amount of Transfer Restricted Securities
held by each Holder hereunder and not joint.
(f) The remedies provided for in this Section 4 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.
SECTION 5. Miscellaneous.
-------------
5.1 Remedies. In the event of a breach by the Company of any of its
obligations under this Agreement, each Holder, in addition to being entitled to
exercise all rights provided herein, in the Purchase Agreements or granted by
law, including recovery of damages, will be entitled to specific performance of
its rights under this Agreement. The Company agrees that monetary damages would
not be adequate compensation for any loss incurred by reason of a breach by it
of any of the provisions of this Agreement.
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5.2 No Inconsistent Agreement. The Company will not enter into any
agreement which is inconsistent with the rights granted to the Holders of
Registrable Securities in this Agreement or otherwise conflicts with the
provisions hereof. The rights granted to the Holders hereunder do not in any way
conflict with and are not inconsistent with the rights granted to the holders of
the Company's other issued and outstanding securities, if any, under any such
agreements.
5.3 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, otherwise than with the prior written consent of the Company
and a majority of the Holders and; provided, however, that, for the purposes of
this Agreement, Warrants and Registrable Securities that are owned, directly or
indirectly, by the Company or any of its affiliates are not deemed outstanding.
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 one or
more Holders and that does not directly or indirectly affect the rights of other
Holders may be given by a majority of the Holders so affected; provided,
however, that the provisions of this sentence may not be amended, modified or
supplemented except in accordance with the provisions of the immediately
preceding sentence. Notwithstanding the foregoing, no amendment, modification,
supplement, waiver or consent with respect to Section 4 and this Section 5.3
shall be made or given otherwise than with the prior written consent of each
Person affected thereby.
5.4 Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand delivery, registered
first-class mail, facsimile, or any courier guaranteeing overnight delivery (i)
if to a Holder, at the most current address of such Holder as set forth in the
register for the Registrable Securities, which address initially is, with
respect to each Unit Purchaser, the address set forth with respect to such Unit
Purchaser in the Unit Purchase Agreement, and with respect to each Preferred
Stock Purchaser, the address set forth with respect to such Preferred Stock
Purchaser in the Preferred Stock Purchase Agreement; (ii) if to Hyatt Gaming,
Hyatt Gaming Management, Inc., Madison Plaza, 39th Floor, 000 Xxxx Xxxxxxx
Xxxxxx, Xxxxxxx, XX 00000, Attention: General Counsel and (iii) if to the
Company, initially to Windsor Woodmont Black Hawk Resort Corp., 0000 Xxxxxxx
Xxxxxx, Xxxxxx, Xxxxx 00000, Attention: Xxxxxx X. Xxxxxxxxxx, facsimile no.:
(000) 000-0000, and thereafter at such other address, notice of which is given
in accordance with the provisions of this Section 6(e), with a copy to Paul,
Hastings, Xxxxxxxx & Xxxxxx, LLP, 000 Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: Xxxxxxx X. Xxxxxxxxx, facsimile no.: (000) 000-0000, and
thereafter at such other address notice of which is given in accordance with the
provisions of this Section 6(e).
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five Business
Days after being deposited in the mail, postage prepaid, if mailed; when
answered back, if telexed; when receipt is acknowledged, if telecopied; and on
the next Business Day, if timely delivered to an air courier guaranteeing
overnight delivery.
-22-
5.5 Successors and Assigns. This Agreement shall inure to the benefit
of and be binding upon the successors and permitted assigns of each of the
parties and shall inure to the benefit of each Holder. If any transferee of any
Holder shall acquire Registrable Securities, in any manner, whether by operation
of law or otherwise, such Registrable Securities shall be held subject to all of
the terms of this Agreement, and by taking and holding such Registrable
Securities such Person shall be conclusively deemed to have agreed to be bound
by and to perform all of the terms and provisions of this Agreement and such
Person shall be entitled to receive the benefits hereof. The Company may not
assign any of its rights or obligations hereunder without the prior written
consent of each Holder of Registrable Securities. Notwithstanding the foregoing,
no successor or assignee of the Company shall have any rights granted under the
Agreement until such person shall acknowledge its rights and obligations
hereunder by a signed written statement of such person's acceptance of such
rights and obligations.
5.6 Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and a of which taken together
shall constitute one and the same Agreement.
5.7 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE
CONFLICT OF LAW PROVISIONS THEREOF.
5.8 Severability. If any term, provision, covenant or restriction of
this Agreement is held by a court of competent jurisdiction 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, 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 is hereby stipulated and declared
to be the intention of the parties that they would have executed the remaining
terms, provisions, covenants and restrictions without including any of such that
may be hereafter declared invalid, illegal, void or unenforceable.
5.9 Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
5.10 Entire Agreement. This Agreement, together with the Purchase
Agreements and the Warrant Agreements, 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 therein. This Agreement, the Purchase
Agreements and the Warrant Agreements supersede all prior agreements and
understandings between the parties with respect to such subject matter.
5.11 Securities Held by the Company or Its Affiliates. Whenever the
consent or approval of Holders of a specified percentage of Registrable
Securities is required hereunder, Registrable Securities held by the Company or
by any of its affiliates (as such term is defined in Rule 405 under the
-23-
Securities Act) shall not be counted (in either the numerator or the
denominator) in determining whether such consent or approval was given by the
Holders of such required percentage.
[Signature Pages Follow]
-24-
[Signature Page to Warrant Registration Rights Agreement]
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
WINDSOR WOODMONT BLACK HAWK
RESORT CORP.
By /s/ Xxxxxxx Xxxxxxxxx
------------------------------------
Name:
Title:
Confirmed and accepted as of the date first above written:
US. BANCORP LIBRA
By:
--------------------------------------
Name:
Title:
HYATT GAMING MANAGEMENT, INC.,
a Nevada corporation
By:
--------------------------------------
Name:
Title:
[Signature Page to Warrant Registration Rights Agreement]
ABLECO HOLDING LLC
By: /s/ Xxxxx Xxxxx
----------------------------------
Name: Xxxxx Xxxxx
Title: Vice President
[Signature Page to Warrant Registration Rights Agreement]
XXXXXXXXX L.L.C
By: /s/ Xxxxx Xxxxx
----------------------------------
Name: Xxxxx Xxxxx
Title: Vice President
[Signature Page to Warrant Registration Rights Agreement]
BAY HARBOUR MANAGEMENT LC
By:
----------------------------------
Name:
Title:
[Signature Page to Warrant Registration Rights Agreement]
CONTINENTAL CASUALTY COMPANY
By: /s/ Xxxxxxx X. Xxxxxxxx
----------------------------------
Name: Xxxxxxx X. Dubberka
Title: Vice President
[Signature Page to Warrant Registration Rights Agreement]
PALESTRA PARTNERS
By: /s/ Xxxxx Bra?????
----------------------------------
Name: Xxxxx B
Title: ?????????
[Signature Page to Warrant Registration Rights Agreement]
THE MAINSTAY FUNDS, ON BEHALF OF ITS
HIGH YIELD CORPORATE BOND FUND SERIES
By: MacKay Xxxxxxx LLC
Its: Investment Advisor
By: /s/ Xxxxxx X. Nisi
---------------------------------
Name: Xxxxxx X. Nisi
Title: General Counsel
[Signature Page to Warrant Registration Rights Agreement]
PURCHASER:
By:
----------------------------------
Name:
Title:
[Signature Page to Warrant Registration Rights Agreement]
THE RAVICH REVOCABLE TRUST OF 1989
By: /s/ Xxxx X. Xxxxxx
----------------------------------
Name: Xxxx X. Xxxxxx
Title: Trustee
[Signature Page to Warrant Registration Rights Agreement]
THE MAINSTAY VP SERIES FUND, INC., ON
BEHALF OF ITS HIGH YIELD CORPORATE BOND
PORTFOLIO
By: MacKay Xxxxxxx LLC
Its: Investment Advisor
By:
----------------------------------
Xxxxxx X. Nisi
General Counsel
