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EXHIBIT 4.03
REGISTRATION RIGHTS AGREEMENT
(Common Stock)
Registration Rights Agreement, dated as of March 30, 2001
among JCC Holding Company, a Delaware corporation ("JCC Holding"), Bankers Trust
Company ("BTCo") and Xxxxxx'x Entertainment, Inc. ("HET").
WITNESSETH:
WHEREAS, this Agreement is made pursuant to that certain Joint
Plan of Reorganization Under Chapter 11 of the Bankruptcy Code As Modified
Through February 8, 2001 and filed with the United States Bankruptcy Court for
the Eastern District of Louisiana by JCC Holding Company, Jazz Casino Company,
L.L.C., JCC Canal Development, L.L.C., JCC Xxxxxx Development, L.L.C. and JCC
Development Company, L.L.C. (the "Plan"). Pursuant to the Plan, JCC Holding has
agreed to provide the registration rights set forth in this Agreement; and
WHEREAS, pursuant to the Plan and in order to induce BTCo and
HET to accept the common stock of JCC Holding, JCC Holding has agreed to provide
registration rights with respect thereto, on the terms and conditions
hereinafter set forth;
NOW, THEREFORE, in consideration of the promises and the
covenants hereinafter contained, the parties hereto hereby agree as follows:
SECTION 1. Definitions. As used in this Agreement, the
following capitalized terms shall have the following meanings:
"BTCo Permitted Holders" shall mean (i) BTCo, (ii) any
Affiliate of BTCo which at any time holds any Registrable Securities and (iii)
any Permitted Transferee of a BTCo Permitted Holder; provided that any BTCo
Permitted Holder as described in clause (iii) above may only initiate a request
for a Demand Registration pursuant to Section 3 hereof if such BTCo Permitted
Holder is designated in writing by BTCo to JCC Holding as a potential Initiating
Holder.
"Casino" means the casino located at the site of the former
Rivergate Convention Center in New Orleans, Louisiana that is operated pursuant
to the Casino Operating Contract.
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"Casino Operating Contract" means the amended and renegotiated
casino operating contract, dated as of October 30, 1998, between the State of
Louisiana by and through the Louisiana Gaming Control Board, and Xxxxxx'x Jazz
Company and Jazz Casino Company, L.L.C., as it may be amended or supplemented
from time to time.
"Common Stock" means the common stock, $.01 par value, of JCC
Holding.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time.
"HET Permitted Holder" shall mean (i) HET, (ii) any Affiliate
of HET which at any time holds any Registrable Securities and (iii) any
Permitted Transferee of an HET Permitted Holder; provided that any HET Permitted
Holder as described in clause (iii) above may only initiate a request for a
Demand Registration pursuant to Section 3 hereof if such HET Permitted Holder is
designated in writing by HET to JCC Holding as a potential Initiating Holder.
"Holders" shall mean all BTCo Permitted Holders and all HET
Permitted Holders.
"Initiating Holder" has the meaning set forth in Section 3(a).
"NASD" means the National Association of Securities Dealers,
Inc.
"Permitted Transferee" means any Person who acquires
Registrable Securities from a Holder or from a Permitted Transferee of a Holder.
"Person" means an individual, partnership, corporation,
limited liability company, trust or unincorporated organization, or a government
or agency or political subdivision thereof.
"Piggyback Registration" has the meaning set forth in Section
4.
"Piggyback Registration Offer" has the meaning set forth in
Section 4.
"Prospectus" means the prospectus included in any Registration
Statement, as amended or supplemented by any prospectus supplement with respect
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to the terms of the offering of any portion of the Registrable Securities
covered by the Registration Statement and by all other amendments and
supplements to the prospectus, including post-effective amendments and all
material incorporated by reference in such prospectus.
"Registrable Securities" means all Common Stock held by the
Holders during the term of the Agreement. Registrable Securities shall also
include any securities which may be issued or distributed with respect to, or in
exchange for, such Registrable Securities pursuant to a stock dividend, stock
split or other distribution, merger, consolidation, recapitalization or
reclassification or similar transaction; provided, however, that any such
Registrable Securities shall cease to be Registrable Securities to the extent
(i) a Registration Statement with respect to the sale of such Registrable
Securities has been declared effective under the Securities Act and such
Registrable Securities have been disposed of in accordance with the plan of
distribution set forth in such Registration Statement, (ii) such Registrable
Securities are distributed pursuant to Rule 144 (or any similar provision then
in force) under the Securities Act, or (iii) such Registrable Securities shall
have ceased to be outstanding; provided, further, however, that any securities
that have ceased to be Registrable Securities cannot thereafter become
Registrable Securities, and any securities that are issued or distributed in
respect of securities that have ceased to be Registrable Securities are not
Registrable Securities.
"Registration Expenses" has the meaning set forth in Section
6.
"Registration Statement" means any registration statement of
JCC Holding filed with the SEC under the rules and regulations promulgated under
the Securities Act which covers Registrable Securities pursuant to the
provisions of this Agreement, including the Prospectus, amendments and
supplements to such Registration Statement, including post-effective amendments,
and all exhibits and all material incorporated by reference in such Registration
Statement.
"Securities Act" means the Securities Act of 1933, as amended
from time to time.
"SEC" means the Securities and Exchange Commission.
"Suspension Date" means the date on which JCC Holding suspends
the use of such Registration Statement by the holders of the Registrable
Securities covered thereby if JCC Holding reasonably and in good faith
determines that there has occurred any event of the type described in Section
5(c)(7) hereof.
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"Suspension Period" means the period commencing on the first
calendar day immediately following the subject Suspension Date, and ending on
the date after the subject Suspension Date on which JCC Holding no longer
suspends the use of the Registration Statement or the date any supplement or
amendment to the Registration Statement is declared effective.
"Underwritten Registration or Underwritten Offering" means a
Registration Statement pursuant to which securities of JCC Holding are sold to
an underwriter for reoffering to the public.
SECTION 2. Securities Subject to this Agreement.
(1) Registrable Securities. The securities entitled to the
benefits of this Agreement are the Registrable Securities.
(2) Holders of Registrable Securities. A Person is deemed to
be a holder of Registrable Securities whenever such Person owns Registrable
Securities or has the right to acquire such Registrable Securities.
SECTION 3. Shelf Registration. (a) Upon the written request of
any Holder, or group of Holders, (the "Initiating Holders"), requesting that JCC
Holding effect the registration under the Securities Act of such Holder's
Registrable Securities (or a portion thereof), and specifying the intended
method of disposition thereof, JCC Holding will promptly give notice of such
requested registration (the "Demand Registration") at least 30 days prior to the
anticipated filing date of the registration statement relating to such Demand
Registration to any other Holders who hold Registrable Securities at such time
(based on the books and records of the transfer agent or registrar with respect
to the Registrable Securities) and thereupon will use its best efforts to cause
the Registration Statement to become effective under the Securities Act for an
offering to be made on a continuous basis pursuant to Rule 415 (or any similar
rule that may be adopted by the SEC) under the Securities Act covering all
Registrable Securities (the "Shelf Registration") as soon as reasonably
practicable, but in no event later than 180 days of its receipt of such notice
of demand, for:
(i) the Registrable Securities that JCC Holding has been so
requested to register by the Initiating Holders then held by the Initiating
Holders; and
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(ii) all Registrable Securities that any other Holder has
requested JCC Holding to register by written request received by JCC Holding
within 20 days after the delivery to such Holders of the written notice given by
JCC Holding pursuant to Section 3(a) above (such other Holders who have
requested registration being referred to herein as "Additional Selling Holders"
and, together with the Initiating Holder, as the "Requesting Holders"),
all to the extent necessary to permit the disposition in accordance with the
intended methods thereof as aforesaid of the Registrable Securities so to be
registered; provided that JCC Holding shall not be obligated to effect more than
(x) two Demand Registrations pursuant to this Section 3 for the BTCo Permitted
Holders or (y) two Demand Registrations pursuant to this Section 3 for the HET
Permitted Holders.
Promptly after the expiration of the 20-day period referred to in
Section 3(a)(ii) hereof, JCC Holding will notify the Initiating Holders of any
Additional Selling Holders and the amount of Registrable Securities requested to
be included in the Demand Registration by such Additional Selling Holders. The
Initiating Holders requesting a registration under this Section 3(a) may, at any
time prior to the effective date of the registration statement relating to such
registration, revoke such request, without liability to any of the other
Requesting Holders, by providing a written notice to JCC Holding and such other
Requesting Holders revoking such request, in which case such request, so
revoked, shall not be considered a Demand Registration if, and only if, any fees
and expenses incurred by JCC Holding as a result of such revoked request are
paid by the Initiating Holders.
(b) Registration Statement Form. The Shelf Registration shall
be on Form S-1 or Form S-3 (or any successor to such Forms) or another
appropriate form permitting registration of such Registrable Securities for
resale by holders of Registrable Securities in the manner designated by them.
(c) Term. JCC Holding shall use its best efforts to cause the
Shelf Registration to become effective under the Securities Act in accordance
with Section 3(a) hereof and shall keep the Shelf Registration or a subsequent
Registration Statement continuously effective through the third anniversary of
the day on which the initial Shelf Registration first becomes effective (the
"Term"). JCC Holding shall also supplement or make amendments to any Shelf
Registration if required by the rules, regulations or instructions applicable to
the registration form used by JCC Holding or if required by the Securities Act.
The Term shall be extended by the aggregate number of days of any Suspension
Period(s) or any other period(s) during
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which the effectiveness of the Registration Statement is suspended.
Notwithstanding anything else in this Agreement, no Suspension Period shall last
longer than 45 trading days.
(d) Selection of Underwriters. If the holders of Registrable
Securities desire to sell Registrable Securities in an Underwritten Offering,
the investment banker or investment bankers and manager or managers that will
administer the offering will be mutually agreed to by the holders of a majority
of the Registrable Securities included in such offering and JCC Holding.
SECTION 4. Piggyback Registration.
(1) If JCC Holding at any time proposes to file a registration
statement under the Securities Act with respect to any Underwritten Offering by
JCC Holding for its own account or for the account of holders of any Common
Stock, securities convertible into Common Stock or warrants, options or other
rights to purchase Common Stock, to be offered for cash (other than on Form S-4
or S-8), then JCC Holding shall in each case give written notice of such
proposed filing to the Holders at least twenty (20) days before the anticipated
filing date, and such notice shall offer (a "Piggyback Registration Offer") such
Holders the opportunity to include all of the Registrable Securities held by
them in such registration statement (a "Piggyback Registration"). In such event
the right of any Holder to registration pursuant to this Section 4(a) may be
conditioned upon such Holder's participation in such underwriting and of the
inclusion such Holder's Registrable Securities in the underwriting to the extent
provided herein. If any such Holder desires to have Registrable Securities
registered and included in such Underwritten Offering under this Section 4(a)
such Holder shall so notify JCC Holding in writing within ten days after the
receipt by such Holder of the written notice provided for in the preceding
sentence (which notification shall set forth the amount of Registrable
Securities for which registration is requested), and JCC Holding will use its
best efforts to cause all such Registrable Securities to be registered under the
Securities Act to the extent requisite to permit the disposition in such
Underwritten Offering; provided, however, that if the managing underwriter or
underwriters of such offering, as selected by JCC Holding, shall advise JCC
Holding in writing that in its or their opinion the total amount or kind of
securities that the Holders, JCC Holding and any other Persons or entities
intend to include in such offering exceeds the amount that can be sold in such
offering without an adverse effect on the price, timing or distribution of the
securities offered by JCC Holding, JCC Holding shall be required to include in
such registration only the amount of Registrable Securities and securities of
other persons or entities, if any, that the managing underwriter or underwriters
determine, in its or their sole
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discretion, can be sold without an adverse effect on the price, timing or
distribution of the securities offered. In such event, in cases initially
involving the registration for sale of securities for JCC Holding's own account,
securities shall be registered in such offering in the following order of
priority: (i) first, the securities which JCC Holding proposes to register, (ii)
second, the securities which may have been requested to be included in such
registration pursuant to this Agreement (pro rata based on the amount of
securities sought to be registered by such Persons) and (iii) third, the
securities of other Persons entitled to exercise "piggyback" registration rights
pursuant to contractual commitments of JCC Holding (pro rata based on the amount
of securities sought to be registered by such Persons).
(2) At any time prior to the date of printing preliminary
prospectuses in connection with an Underwritten Offering under Section 4(a), a
Holder that previously requested Piggyback Registration thereof may withdraw all
or part of its Registrable Securities from such offering by providing notice to
such effect to JCC Holding.
(3) JCC Holding will pay all Registration Expenses in
connection with the registration requested pursuant to this Section 4, except
that the Holders of Registrable Securities to be registered shall pay all
underwriting discounts and commissions or placement fees of such underwriters
with respect to the Registrable Securities sold by such Holders.
SECTION 5. Hold-Back Agreements.
(1) Restrictions on Public Sale by JCC Holding and Others. JCC
Holding agrees:
(1) Not to effect any public or private sale
or distribution of its equity securities, including a sale
pursuant to Regulation D under the Securities Act, during the
14-day period prior to, and during the 90-day period
(exclusive of any Suspension Periods) beginning on, the
effective date of a Registration Statement filed under Section
3 or 4 hereof or the commencement of the public distribution
of securities to the extent timely notified in writing by a
holder of Registrable Securities covered by such Registration
Statement or the managing underwriters (the "Holdback Period")
(except as part of such Underwritten Registration or pursuant
to registrations on Forms S-4 or S-8 or any successor form to
such Forms), and
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(2) to cause each holder of its privately
placed equity securities issued by JCC Holding at any time on
or after the date of this Agreement to agree not to effect any
public sale or distribution of any such securities during the
Holdback Period, including a sale pursuant to Rule 144 under
the Securities Act (except as part of such Underwritten
Registration, if permitted).
(2) Restrictions on Public Sale by Holder of Registrable
Securities. Each holder of Registrable Securities whose Registrable Securities
are covered by a Registration Statement filed pursuant to Section 3 or 4 hereof
agrees, if timely requested in writing by the managing underwriters in an
underwritten offering, not to effect any public sale or distribution of
securities of JCC Holding of the same class as the securities included in such
Registration Statement, including a sale pursuant to Rule 144 under the
Securities Act (except as part of such underwritten registration), during the
14-day period prior to, and during the 90-day period (exclusive of any
Suspension Periods) following, the effective date of the Registration Statement
for each underwritten offering made pursuant to such Registration Statement. The
foregoing provisions shall not apply, however, to any holder of Registrable
Securities if such holder is prevented by an applicable statute or regulation
from entering into any such agreement.
SECTION 6. Registration Procedures. In connection with JCC
Holding's registration obligations pursuant to Section 3 or 4 hereof, JCC
Holding will use its best efforts to effect such registration to permit the sale
of such Registrable Securities in accordance with the intended method or methods
of disposition thereof, and pursuant thereto JCC Holding will as expeditiously
as possible:
(1) before filing a Registration Statement or Prospectus or
any amendments or supplements thereto, furnish to the holders of Registrable
Securities covered by such Registration Statement and the underwriters, if any,
copies of all such documents proposed to be filed, which documents will be
subject to the review of such holders and the underwriters, and JCC Holding will
not file any Registration Statement or amendment thereto or any Prospectus or
any supplement thereto to which the holders of Registrable Securities covered by
such Registration Statement or the underwriters, if any, shall reasonably
object; provided, however, that for purposes of this Section 6(a), objections to
information specifically required to be included in a Registration Statement by
the SEC or pursuant to statutes or rules shall not be deemed reasonable;
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(2) prepare and file with the SEC such amendments and
post-effective amendments to any Registration Statement as may be necessary to
keep such Registration Statement continuously effective for the applicable
period; cause the related Prospectus to be supplemented by any required
Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424
(or any similar provisions then in force) under the Securities Act;
(3) notify the holders of Registrable Securities and the
managing underwriters, if any, promptly, and (if requested by any such Person)
confirm such notice in writing,
(1) when the Prospectus or any Prospectus
supplement or post-effective amendment has been filed, and,
with respect to the Registration Statement or any
post-effective amendment, when the same has become effective,
(2) of the receipt of any comments from the
SEC,
(3) of any request by the SEC for amendments
or supplements to the Registration Statement or the Prospectus
or for additional information,
(4) of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration
Statement or the initiation of any proceedings for that
purpose,
(5) if at any time the representations and
warranties of JCC Holding contemplated by paragraph (n) below
cease to be true and correct,
(6) of the receipt by JCC Holding of any
notification with respect to the suspension of the
qualification of the Registrable Securities for sale in any
jurisdiction or the initiation or threatening of any
proceeding for such purpose,
(7) of the existence of any fact or the
happening of any event which results in the Registration
Statement, the Prospectus or any document incorporated therein
by reference containing an untrue statement of material fact
or omitting to state a
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material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances
under which they were made, not misleading, and
(8) of the determination of JCC Holding that
a post-effective amendment to a Registration Statement would
be appropriate,
(4) make every reasonable effort to obtain the withdrawal of
any order suspending the effectiveness of the Registration Statement or the
lifting of any suspension of the qualification (or exemption from qualification)
of any Registrable Securities for sale or exchange in any jurisdiction of the
United States of America, at the earliest possible moment;
(5) if requested by the managing underwriter or underwriters
or a holder of Registrable Securities being sold in connection with an
Underwritten Offering, immediately incorporate in a Prospectus supplement or
post-effective amendment such necessary information as the managing underwriters
and the holders of a majority of the Registrable Securities being sold agree
should be included therein relating to the plan of distribution with respect to
such Registrable Securities, including, without limitation, information with
respect to the amount of Registrable Securities being sold to such underwriters,
the purchase price being paid therefor by such underwriters and with respect to
any other terms of the underwritten (or best efforts underwritten) offering of
the Registrable Securities to be sold in such offering; and make all required
filings of such Prospectus supplement or post-effective amendment as soon as
notified of the matters to be incorporated in such Prospectus supplement or
post-effective amendment;
(6) furnish to each selling holder of Registrable Securities
and its counsel, if any, and each managing underwriter, if any, without charge,
at least one conformed copy of the Registration Statement or Registration
Statements and any post-effective amendment thereto, including financial
statements and schedules, all documents incorporated therein by reference or
deemed incorporated therein by reference and all exhibits (including those
incorporated by reference), at the earliest practicable time under the
circumstances after the filing of such documents with the SEC;
(7) deliver to each selling holder of Registrable Securities
and the underwriters, if any, without charge, as many copies of the Prospectus
(including each preliminary prospectus) and any amendment or supplement thereto
as such Persons
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may reasonably request (it being understood that during the Term JCC Holding
consents to the use of the Prospectus or any amendment or supplement thereto by
each of the selling holders of Registrable Securities and the underwriters, if
any, in connection with the offering and sale of the Registrable Securities
covered by the Prospectus or any amendment or supplement thereto) and such other
documents as such selling holder may reasonably request in order to facilitate
the disposition of the Registrable Securities by such holder and underwriters,
if any;
(8) prior to any public offering of Registrable Securities,
register or qualify or cooperate with the selling holders of Registrable
Securities, the underwriters, if any, and their respective counsel in connection
with the registration or qualification of such Registrable Securities for offer
and sale under the securities or blue sky laws of such jurisdictions as any
selling holder of Registrable Securities or any underwriter reasonably requests
in writing; keep such registration or qualification (or exemption therefrom)
effective during the Term 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 Registration Statement; provided that JCC Holding will
not be required to qualify generally to do business in any jurisdiction where it
is not then so qualified or to take any action which would subject it to general
service of process in any such jurisdiction where it is not then so subject;
(9) cooperate with the selling holders of Registrable
Securities and the managing underwriters, if any, to facilitate the timely
preparation and delivery of certificates representing Registrable Securities to
be sold and not bearing any restrictive legends; and enable such Registrable
Securities to be in such denominations and registered in such names as the
managing underwriters may request at least two business days prior to any sale
of Registrable Securities to the underwriters;
(10) use its reasonable best efforts to cause the Registrable
Securities covered by the applicable Registration Statement to be registered
with or approved by such other governmental agencies or authorities as may be
necessary to enable the seller or sellers thereof or the underwriters, if any,
to consummate the disposition of such Registrable Securities;
(11) upon the occurrence of any event contemplated by
paragraph (c)(vii) or (c)(viii) above, as promptly as practicable thereafter,
prepare and file with the SEC a supplement or post-effective amendment to the
Registration Statement or a supplement to the related Prospectus or any document
incorporated therein by reference or file any other required document so that,
as thereafter delivered to the purchasers of the Registrable Securities being
sold thereunder, the Prospectus will not
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contain an 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;
(12) cause all Registrable Securities covered by the
Registration Statement to be quoted on NASDAQ-NMS or listed on each securities
exchange on which similar securities issued by JCC Holding are then listed if
requested by the holders of any such Registrable Securities or the managing
underwriters, if any;
(13) not later than the effective date of the applicable
Registration Statement, provide a CUSIP number for all Registrable Securities
and provide the applicable transfer agent with printed certificates for the
Registrable Securities which are in a form eligible for deposit with The
Depositary Trust Company;
(14) enter into agreements (including underwriting agreements)
and take all other appropriate actions in order to expedite or facilitate the
disposition of such Registrable Securities and in such connection, whether or
not an underwriting agreement is entered into and whether or not the
registration is an Underwritten Registration:
(1) make such representations and warranties
to the holders of such Registrable Securities and the
underwriters, if any, in form, substance and scope as are
customarily made by issuers to underwriters in primary
Underwritten Offerings and covering matters including but not
limited to, the Plan;
(2) obtain opinions of counsel to JCC
Holding and updates thereof (which counsel and opinions (in
form, scope and substance) shall be reasonably satisfactory to
the managing underwriters, if any, and the holders of a
majority of the Registrable Securities being sold) addressed
to each selling holder and 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 holders and underwriters;
(3) obtain "cold comfort" letters and
updates thereof from JCC Holding's independent certified
public accountants addressed to the selling holders of
Registrable Securities and the underwriters, if any, such
letters to be in customary form and covering matters of the
type customarily covered in "cold comfort"
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letters by underwriters in connection with primary
Underwritten Offerings;
(4) if an underwriting agreement is entered
into, cause the same to set forth in full the indemnification
provisions and procedures of Section 8 hereof with respect to
all parties to be indemnified pursuant to said Section; and
(5) deliver such documents and certificates
as may be requested by the holders of a majority of the
Registrable Securities being sold and the managing
underwriters, if any, to evidence compliance with paragraph
(k) above and with any customary conditions contained in the
underwriting agreement or other agreement entered into by JCC
Holding.
The above shall be done at the effectiveness of such Registration Statement,
each closing under any underwriting or similar agreement as and to the extent
required thereunder and from time to time as may be requested by any selling
holder in connection with the disposition of Registrable Securities pursuant to
such Registration Statement;
(15) make available for inspection by a representative of the
holders of a majority of the Registrable Securities being sold, any underwriter
participating in any disposition pursuant to such Registration Statement, and
any attorney or accountant retained by the requesting Holders or the
underwriter, all financial and other records, pertinent corporate documents and
properties of JCC Holding, and cause JCC Holding's officers, directors and
employees to supply all information reasonably requested by any such
representative, underwriter, attorney or accountant in connection with the
registration; provided that any records, information or documents that are
designated by JCC Holding in writing as confidential shall be kept confidential
by such Persons unless disclosure of such records, information or documents is
required by court or administrative order;
(16) otherwise use its best efforts to comply with all
applicable rules and regulations of the SEC, and make generally available to its
security holders, earnings statements satisfying the provisions of Section 11(a)
of the Securities Act, no later than 45 days after the end of any 12-month
period (or 90 days, if such period is a fiscal year) (1) commencing at the end
of any fiscal quarter in which Registrable Securities are sold to underwriters
in an Underwritten Offering, or, if not sold to underwriters in such an
offering, (2) beginning with the first month of JCC Holding's
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first fiscal quarter commencing after the effective date of the Registration
Statement, which statements shall cover said 12-month periods;
(17) cooperate and assist in any filings required to be made
with the NASD and in the performance of any due diligence investigation by any
underwriter (including any "qualified independent underwriter" that is required
to be retained in accordance with the rules and regulations of the NASD);
(18) promptly prior to the filing of any document which is to
be incorporated by reference into the Registration Statement or the Prospectus
(after initial filing of the Registration Statement) provide copies of such
document to counsel to the selling holders of Registrable Securities and to the
managing underwriters, if any, make JCC Holding's representatives available for
discussion of such document and make such changes in such document prior to the
filing thereof as counsel for such selling holders or underwriters may
reasonably request; and
(19) make its employees and personnel available and otherwise
provide reasonable assistance to the underwriters (taking into account the needs
of JCC Holding's business and the requirements of the marketing process
including, without limitation, the participation by such employees and personnel
in "road shows") in the marketing of Registrable Securities in any Underwritten
Offering.
JCC Holding may require each seller of Registrable Securities
under a Registration Statement to furnish to JCC Holding such information
regarding the distribution of such securities as JCC Holding may from time to
time reasonably request in writing and each holder in acquiring such Registrable
Securities agrees to supply such information to JCC Holding promptly upon such
request.
Each holder of Registrable Securities agrees by acquisition of
such Registrable Securities that, upon receipt of any notice from JCC Holding of
the happening of any event of the kind described in Section 6(k) hereof, such
holder will forthwith discontinue disposition of Registrable Securities until
such holder's receipt of the copies of the supplemented or amended Prospectus
contemplated by Section 6(k) hereof, or until it is advised in writing by JCC
Holding that the use of the Prospectus may be resumed, and has received copies
of any additional or supplemental filings which are incorporated by reference in
the Prospectus, and, if so directed by JCC Holding, such holder will deliver to
JCC Holding (at JCC Holding's expense) all copies, other than permanent file
copies then in such holder's possession, of the Prospectus covering such
Registrable Securities current at the time of receipt of such notice. In the
event JCC Holding shall give any such notice, the time periods during
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which such Registration Statement shall be maintained effective shall be
extended by the number of days during the period 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 either receives
the copies of the supplemented or amended prospectus contemplated by Section
6(k) hereof or is advised in writing by JCC Holding that the use of the
Prospectus may be resumed.
SECTION 7. Registration Expenses.
(1) All expenses incident to JCC Holding's performance of or
compliance with this Agreement will be paid by JCC Holding, regardless of
whether the Registration Statement becomes effective, including without
limitation:
(1) all registration and filing fees
(including, without limitation, with respect to filings
required to be made with the SEC and any securities exchange
or NASDAQ-NMS);
(2) fees and expenses of compliance with
securities or blue sky laws (including, without limitation,
fees and disbursements of counsel for the underwriters or
selling holders in connection with blue sky qualifications of
the Registrable Securities and determination of their
eligibility for investment under the laws of such
jurisdictions as the managing underwriters or holders of a
majority of the Registrable Securities being sold may
designate);
(3) printing (including, without limitation,
expenses of printing or engraving certificates for the
Registrable Securities in a form eligible for deposit with The
Depositary Trust Company and of printing prospectuses),
messenger, telephone and delivery expenses;
(4) fees and disbursements of counsel for
(i) JCC Holding, (ii) the underwriters, and (iii) the sellers
of the Registrable Securities (subject to the provisions of
Section 7(b) hereof);
(5) fees and disbursements of all
independent certified public accountants of JCC Holding
(including, without limitation, the expenses of any special
audit and "cold comfort" letters required by or incident to
such performance);
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(6) fees and disbursements of underwriters,
if any, (excluding discounts, commissions or fees of
underwriters, selling brokers, dealer managers or similar
securities industry professionals relating to the distribution
of the Registrable Securities or legal expenses of any Person
other than JCC Holding, the underwriters and the selling
holders of Registrable Securities);
(7) securities acts liability insurance if
JCC Holding so desires or if the underwriters or selling
holders of a majority of the Registrable Securities so
require;
(8) transfer agent fees and expenses;
(9) "road show" expenses;
(10) fees and expenses of other Persons
retained by JCC Holding; and
(11) fees and expenses associated with any
NASD filing required to be made in connection with the
Registration Statement and any underwriting agreement,
including, if applicable, the fees and expenses of any
"qualified independent underwriter" (and its counsel) that is
required to be retained in accordance with the rules and
regulations of the NASD (all such expenses being herein called
"Registration Expenses").
JCC Holding will, in any event, pay its internal expenses
(including, without limitation, all salaries and expenses of its 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
securities to be registered on each securities exchange on which similar
securities issued by JCC Holding are then listed, rating agency fees and the
fees and expenses of any Person, including special experts, retained by JCC
Holding.
(2) In connection with the Registration Statement required
hereunder, JCC Holding will reimburse the holders of Registrable Securities
being registered pursuant to such Registration Statement for the reasonable fees
and disbursements of not more than one counsel (or more than one counsel if a
legal opinion is required from more than one counsel by the terms of any
underwriting
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agreement relating to an Underwritten Offering) chosen the by Initiating Holder
or in cases where there is no Initiating Holder, by the Holders of a majority of
such Registrable Securities.
SECTION 8. Indemnification.
(1) Indemnification by JCC Holding. JCC Holding agrees to
indemnify and hold harmless each holder of Registrable Securities, its officers,
directors, employees and agents and each Person who controls such holder within
the meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act (each such person being sometimes hereinafter referred to as an
"Indemnified Holder") from and against all losses, claims, damages, liabilities
and expenses (including reasonable costs of investigation and legal expenses)
arising out of or based upon any untrue statement or alleged untrue statement of
a material fact contained in any Registration Statement or Prospectus or in any
amendment or supplement thereto or in any preliminary prospectus, or arising out
of or based upon any omission or alleged omission to state therein 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, except
insofar as such losses, claims, damages, liabilities or expenses arise out of or
are based upon any such untrue statement or omission or allegation thereof based
upon information furnished in writing to JCC Holding by such holder expressly
for use therein; provided, however, that JCC Holding shall not be liable in any
such case to the extent that any such loss, claim, damage, liability or expense
arises out of or is based upon an untrue statement or alleged untrue statement
or omission or alleged omission in any Prospectus or preliminary prospectus, if
such untrue statement or alleged untrue statement, omission or alleged omission
is corrected in an amendment or supplement to the Prospectus or preliminary
prospectus and if such holder has a separate prospectus delivery obligation
under applicable regulations and having previously been furnished by or on
behalf of JCC Holding with copies of the Prospectus or preliminary prospectus as
so amended or supplemented, such holder thereafter fails to deliver such
Prospectus or preliminary prospectus as so amended or supplemented, prior to or
concurrently with the sale of a Registrable Security to the person asserting
such loss, claim, damage, liability or expense who purchased such Registrable
Security which is the subject thereof from such holder. This indemnity will be
in addition to any liability which JCC Holding may otherwise have. JCC Holding
will also indemnify underwriters, selling brokers, dealer managers and similar
securities industry professionals participating in the distribution, their
officers and directors and each Person who controls such Persons (within the
meaning of Section 15 of the Securities Act or Xxxxxxx 00 xx xxx
00
00
Xxxxxxxx Xxx) to the same extent as provided above with respect to the
indemnification of the Indemnified Holders of Registrable Securities.
If any action or proceeding (including any governmental
investigation or inquiry) shall be brought or asserted against an Indemnified
Holder in respect of which indemnity may be sought from JCC Holding, such
Indemnified Holder shall promptly notify JCC Holding in writing, and JCC Holding
shall assume the defense thereof, including the employment of counsel
satisfactory to such Indemnified Holder and the payment of all expenses;
provided, however, that the delay or failure to so notify JCC Holding shall not
relieve JCC Holding from any obligation or liability except to the extent that
JCC Holding has been prejudiced by such failure or delay. Such Indemnified
Holder shall have the right to employ separate counsel in any such action and to
participate in the defense thereof, but the fees and expenses of such counsel
shall be at the expense of such Indemnified Holder unless (a) JCC Holding has
agreed to pay such fees and expenses or (b) JCC Holding shall have failed to
assume the defense of such action or proceeding and has failed to employ counsel
reasonably satisfactory to such Indemnified Holder in any such action or
proceeding or (c) the named parties to any such action or proceeding (including
any impleaded parties) include both such Indemnified Holder and JCC Holding, and
such Indemnified Holder shall have been advised by counsel that there may be one
or more legal defenses available to such Indemnified Holder which are different
from or additional to those available to JCC Holding (in which case, if such
Indemnified Holder notifies JCC Holding in writing that it elects to employ
separate counsel at the expense of JCC Holding, JCC Holding shall not have the
right to assume the defense of such action or proceeding on behalf of such
Indemnified Holder, it being understood, however, that JCC Holding shall not, in
connection with any one such action or proceeding or separate but substantially
similar or related actions or proceedings in the same jurisdiction arising out
of the same general allegations or circumstances, be liable for the reasonable
fees and expenses of more than one separate firm of attorneys at any time for
such Indemnified Holder and any other Indemnified Holders, which firm shall be
designated in writing by such Indemnified Holders). JCC Holding shall not be
liable for any settlement of any such action or proceeding effected without its
written consent, but if settled with its written consent, or if there be a final
judgment for the plaintiff in any such action or proceeding, JCC Holding agrees
to indemnify and hold harmless such Indemnified Holders from and against any
loss or liability by reason of such settlement or judgment.
(2) Indemnification by Holder of Registrable Securities. Each
holder of Registrable Securities agrees, severally not jointly, to indemnify and
hold harmless JCC Holding, its directors and officers and each Person, if any,
who controls
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JCC Holding within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act to the same extent as the foregoing indemnity
from JCC Holding to such holder, but only with respect to information relating
to such holder furnished in writing by such holder expressly for use in any
Registration Statement or Prospectus, or any amendment or supplement thereto, or
any preliminary prospectus. In case any action or proceeding shall be brought
against JCC Holding or its directors or officers or any such controlling person,
in respect of which indemnity may be sought against a holder of Registrable
Securities, such holder shall have the rights and duties given JCC Holding and
JCC Holding or its directors or officers or such controlling person shall have
the rights and duties given to each holder by the preceding paragraph. In no
event shall the liability of any selling holder of Registrable Securities
hereunder be greater in amount than the dollar amount of the proceeds received
by such holder upon the sale of the Registrable Securities giving rise to such
indemnification obligation.
JCC Holding shall be entitled to receive indemnities from
underwriters, selling brokers, dealer managers and similar securities industry
professionals participating in the distribution, to the same extent as provided
above with respect to information so furnished in writing by such Persons
specifically for inclusion in any Prospectus or Registration Statement or any
amendment or supplement thereto, or any preliminary prospectus.
(3) Contribution. If the indemnification provided for in this
Section 8 is unavailable to an indemnified party under Section 8(a) or Section
8(b) hereof (other than by reason of exceptions provided in those Sections) or
insufficient in respect of any losses, claims, damages, liabilities or expenses
referred to therein, then each applicable indemnifying party, in lieu of
indemnifying such indemnified party, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages,
liabilities or expenses in such proportion as is appropriate to reflect the
relative fault of JCC Holding on the one hand and of the Indemnified Holder on
the other in connection with the statements or omissions which resulted in such
losses, claims, damages, liabilities or expenses, as well as any other relevant
equitable considerations. The relative fault of JCC Holding on the one hand and
of the Indemnified Holder on the other shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by JCC Holding or by the Indemnified Holder and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The amount paid or payable by a
party as a result of the losses, claims, damages, liabilities and expenses
referred to above shall be deemed to include,
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subject to the limitations set forth in the second paragraph of Section 8(a),
any legal or other fees or expenses reasonably incurred by such party in
connection with investigating or defending any action or claim.
JCC Holding and each holder of Registrable Securities agree
that it would not be just and equitable if contribution pursuant to this Section
8(c) 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. Notwithstanding the provisions of this Section
8(c), an Indemnified Holder shall not be required to contribute any amount in
excess of the amount by which the total price at which the Registrable
Securities sold by such Indemnified Holder or its affiliated Indemnified Holders
and distributed to the public were offered to the public exceeds the amount of
any damages which such Indemnified Holder, or its affiliated Indemnified 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 Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
SECTION 9. Rule 144. JCC Holding 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 (or, if JCC
Holding is not required to file such reports, it will, upon the request of any
holder of Registrable Securities, make publicly available such information as
necessary to permit sales pursuant to Rule 144 under the Securities Act), and 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 under the
Securities Act, as such Rule may be amended from time to time, or (b) any
similar rule or regulation hereafter adopted by the SEC. Upon the request of any
holder of Registrable Securities, JCC Holding will deliver to such holder a
written statement as to whether it has complied with such information and
requirements.
SECTION 10. Participation in Underwritten Registrations. No
Person may participate in any Underwritten Registration hereunder unless such
Person (a) agrees to sell such Person's securities on the basis provided in any
underwriting arrangements approved by the Persons entitled hereunder to approve
such arrangements and (b) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents required
under the terms of such underwriting arrangements.
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SECTION 11. Preparation; Reasonable Inspection. In connection
with the preparation and filing of each registration statement under the
Securities Act pursuant to this Agreement, JCC Holding will give the holders of
Registrable Securities registered under such registration statement, their
underwriters, if any, each Requesting Holder and their respective counsel and
accountants, the opportunity to participate in the preparation of such
registration statement, each prospectus included therein or filed with the SEC,
and each amendment thereof or supplement thereto, and will give each of them
such access to its books and records and such opportunities to discuss the
business of JCC Holding with its officers and the independent public accountants
who have certified its financial statements as shall be necessary, in the
opinion of such holders' and such underwriters' respective counsel, to conduct a
reasonable investigation within the meaning of the Securities Act.
SECTION 12. Miscellaneous.
(1) Remedies. Each holder of Registrable Securities, in
addition to being entitled to exercise all rights provided herein, in the Plan
and granted by law, including recovery of damages, will be entitled to specific
performance of its rights under this Agreement. JCC Holding agrees that monetary
damages would not be adequate compensation for any loss incurred by reason of a
breach by it of the provisions of this Agreement and hereby agrees to waive the
defense in any action for specific performance that a remedy at law would be
adequate.
(2) No Inconsistent Agreements. JCC Holding will not on or
after the date of this Agreement enter into any agreement with respect to its
securities which is inconsistent with the rights granted to holders of
Registrable Securities in this Agreement or otherwise conflicts with the
provisions hereof.
(3) Adjustments Affecting Registrable Securities. JCC Holding
will not take any action, or permit any change to occur, with respect to the
Registrable Securities which would adversely affect the ability of holders of
Registrable Securities to include such Registrable Securities in a registration
undertaken pursuant to this Agreement.
(4) 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
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given unless JCC Holding has obtained the written consent of BTCo, HET and the
Holders of a majority of the outstanding Registrable Securities.
(5) Notices. All notices and other communications provided for
or permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, telex, telecopier, or air courier guaranteeing overnight
delivery:
(1) if to a holder of Registrable
Securities, at the most current address given by such holder
to JCC Holding in accordance with the provisions of this
Section 11(e); and
(2) if to JCC Holding, initially at One
Canal Place, 000 Xxxxx Xxxxxx, Xxxxx 000, Xxx Xxxxxxx,
Xxxxxxxxx 00000, Attention: Corporate Secretary and thereafter
at such other address, notice of which is given in accordance
with the provisions of this Section 11(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 acknowledged, if telecopied; and on
the next business day, if timely delivered to an air courier guaranteeing
overnight delivery.
(6) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the
parties, including without limitation and without the need for an express
assignment, subsequent holders of Registrable Securities.
(7) Counterparts. This Agreement may be executed in any number
of counterparts and by the parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(8) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(9) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware.
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(10) Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstance, is
held invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions contained herein shall not be affected or impaired thereby.
(11) Entire Agreement. This Agreement is intended by the
parties as a final expression of their agreement and 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. 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 JCC Holding with
respect to the Registrable Securities. This Agreement supersedes all prior
agreements and understandings between the parties with respect to such subject
matter.
(Signature Page to Follow)
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IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
JCC HOLDING COMPANY
By:
---------------------------------
Name:
-------------------------------
Title:
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BANKERS TRUST COMPANY
By:
---------------------------------
Name:
-------------------------------
Title:
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XXXXXX'X ENTERTAINMENT, INC.
By:
---------------------------------
Name:
-------------------------------
Title:
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