Exhibit 4.06
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REGISTRATION RIGHTS AGREEMENT
BY AND BETWEEN
JCC HOLDING COMPANY
and
XXXXXX'X CRESCENT CITY INVESTMENT COMPANY
Dated as of October 30, 1998
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TABLE OF CONTENTS
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SECTION 1. Definitions.....................................................................................1
SECTION 2. Securities Subject to this Agreement............................................................3
(a) Registrable Securities..........................................................................3
(b) Holders of Registrable Securities...............................................................3
SECTION 3. Shelf Registration..............................................................................3
(a) Shelf Registration..............................................................................3
(b) Registration Statement Form.....................................................................3
(c) Term............................................................................................3
(d) Selection of Underwriters.......................................................................4
SECTION 4. Hold-Back Agreements............................................................................4
(a) Restrictions on Public Sale by the Company and Others...........................................4
(b) Restrictions on Public Sale by Holder of Registrable Securities.................................4
SECTION 5. Registration Procedures.........................................................................4
SECTION 6. Registration Expenses...........................................................................9
SECTION 7. Indemnification................................................................................10
(a) Indemnification by Company.....................................................................10
(b) Indemnification by Holder of Registrable Securities............................................11
(c) Contribution...................................................................................12
SECTION 8. Rule 144.......................................................................................13
SECTION 9. Participation in Underwritten Registrations....................................................13
SECTION 10. Miscellaneous..................................................................................13
(a) Remedies.......................................................................................13
(b) No Inconsistent Agreements.....................................................................13
(c) Adjustments Affecting Registrable Securities...................................................13
(d) Amendments and Waivers.........................................................................14
(e) Notices........................................................................................14
(f) Successors and Assigns.........................................................................14
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(g) Counterparts...................................................................................14
(h) Headings.......................................................................................14
(i) Governing Law..................................................................................14
(j) Severability...................................................................................14
(k) Entire Agreement...............................................................................15
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THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is dated as of
October 30, 1998 and entered into by and between JCC HOLDING COMPANY, a Delaware
corporation (the "Company"), and XXXXXX'X CRESCENT CITY INVESTMENT COMPANY, a
Nevada corporation ("HCCIC").
This Agreement is made pursuant to the Third Amended Joint Plan of
Reorganization Under Chapter 11 of the Bankruptcy Code As Modified Through
October 13, 1998 of Xxxxxx'x Jazz Company ("HJC"), Xxxxxx'x New Orleans
Investment Company and Xxxxxx'x Jazz Finance Corp. (the "Plan of
Reorganization"). Pursuant to the Plan of Reorganization, the Company has agreed
to provide the registration rights set forth in this Agreement.
The parties hereby agree as follows:
SECTION 1. Definitions. As used in this Agreement, the following
capitalized terms shall have the following meanings:
AMEX: The American Stock Exchange.
Casino: The casino to be located at the site of the former Rivergate
Convention Center in New Orleans, Louisiana that is operated pursuant to the
Casino Operating Contract.
Casino Opening Date: The date upon which the Casino first opens to the
public and commences business.
Casino Operating Contract: 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 HJC and Jazz Casino
Company, L.L.C., as it may be amended or supplemented from time to time.
Common Stock: Prior to the Transition Date (as defined in the Company's
Restated Certificate of Incorporation, filed with the Secretary of State of
Delaware on October 27, 1998), the Class B Common Stock, $.01 par value, of the
Company, and on and after the Transition Date, the unclassified common stock,
$.01 par value, of the Company.
Exchange Act: The Securities Exchange Act of 1934, as amended from time
to time.
HET: Xxxxxx'x Entertainment, Inc., a Delaware corporation.
JCC: Jazz Casino Company, L.L.C., a single member Louisiana limited
liability company and wholly-owned subsidiary of the Company.
NASD: National Association of Securities Dealers, Inc.
Person: An individual, partnership, corporation, limited liability
company, trust or unincorporated organization, or a government or agency or
political subdivision thereof.
Prospectus: The prospectus included in any Registration Statement, as
amended or supplemented by any prospectus supplement with respect 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: (i) All Common Stock held by HET, HCCIC or any
other wholly-owned subsidiary of HET during the term of the Agreement, and (ii)
the Warrant Shares. 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, (iii) such Registrable Securities shall have been otherwise
transferred, new certificates for them not bearing a legend restricting further
transfer shall have been delivered by the Company and subsequent public
distribution of them shall not require registration of them under the Securities
Act, or (iv) 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: See Section 6 hereof.
Registration Statement: Any registration statement of the Company 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: The Securities Act of 1933, as amended from time to
time.
SEC: The Securities and Exchange Commission.
Suspension Date: The date on which the Company suspends the use of such
Registration Statement by the holders of the Registrable Securities covered
thereby if the Company reasonably and in good faith determines that there has
occurred any event of the type described in Section 5(c)(7) hereof.
Suspension Period: 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 the Company 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: A Registration
Statement pursuant to which securities of the Company are sold to an underwriter
for reoffering to the public.
Warrants: The warrants to purchase shares of Common Stock, issued
pursuant to the Plan of Reorganization and the Warrant Agreement of even date
herewith (the "Warrant Agreement"), by and between the Company and HCCIC.
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Warrant Shares: Any shares of Common Stock issued or issuable upon
exercise of the Warrants.
SECTION 2. Securities Subject to this Agreement.
(a) Registrable Securities. The securities entitled to the benefits of
this Agreement are the Registrable Securities.
(b) 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) Shelf Registration. Upon the written
request of HCCIC, which request shall not be made prior to the second
anniversary of the Casino Opening Date and shall only be made once, the Company
shall, as promptly as practicable, prepare and file with the SEC a Registration
Statement 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 the Registrable Securities (the "Shelf
Registration").
(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. The Company 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"). The Company 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 the Company 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 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 the Company.
SECTION 4. Hold-Back Agreements.
(a) Restrictions on Public Sale by the Company and Others. The Company
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
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
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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
(2) to cause each holder of its privately placed equity securities
issued by the Company 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).
(a) 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 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 the Company 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 5. Registration Procedures. In connection with the Company's
registration obligations pursuant to Section 3 hereof, the Company 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 the Company will as expeditiously as possible:
(a) 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 the Company 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 5(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;
(b) 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;
(c) 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,
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(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 the
Company contemplated by paragraph (n) below cease to be true and
correct,
(6) of the receipt by the Company 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 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 the Company that a post-effective
amendment to a Registration Statement would be appropriate,
(d) 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;
(e) 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;
(f) furnish to each selling holder of Registrable Securities 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;
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(g) 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 may reasonably request (it being understood that during the Term
the Company 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;
(h) 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 the Company 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;
(i) 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;
(j) 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;
(k) upon the occurrence of any event contemplated by paragraph (c)(7)
or (c)(8) 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 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;
(l) 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 the Company are then listed if requested by
the holders of a majority of such Registrable Securities or the managing
underwriters, if any;
(m) 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
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printed certificates for the Registrable Securities which are in a form eligible
for deposit with Depositary Trust Company;
(n) 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 of Reorganization;
(2) 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, 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 the
Company'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" 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 7 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 the Company.
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;
(o) make available for inspection by a representative of the holders of
a majority of the Registrable Securities, any underwriter participating in any
disposition pursuant to such Registration Statement, and any attorney or
accountant retained by the sellers or the underwriter, all financial and other
records, pertinent corporate documents and properties of the Company, and cause
the Company'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 the Company in writing as
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confidential shall be kept confidential by such Persons unless disclosure of
such records, information or documents is required by court or administrative
order; provided, further, that HCCIC may disclose any records, information or
documents that are designated by the Company in writing as confidential to HET
and any of its wholly-owned subsidiaries;
(p) 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 the Company's first fiscal quarter commencing
after the effective date of the Registration Statement, which statements shall
cover said 12-month periods;
(q) 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); and
(r) 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 the Company'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.
The Company may require each seller of Registrable Securities under a
Registration Statement to furnish to the Company such information regarding the
distribution of such securities as the Company may from time to time reasonably
request in writing and each holder in acquiring such Registrable Securities
agrees to supply such information to the Company promptly upon such request.
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 5(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 5(k) hereof, or until it is advised in writing by the
Company 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 the Company, such holder will deliver to
the Company (at the Company'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 the Company shall give any such notice, the time periods during 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 5(k) hereof or is
advised in writing by the Company that the use of the Prospectus may be resumed.
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SECTION 6. Registration Expenses.
(a) All expenses incident to the Company's performance of or compliance
with this Agreement will be paid by the Company, 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 Exchange);
(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 the (i) Company, (ii) the
underwriters, and (iii) the sellers of the Registrable Securities
(subject to the provisions of Section 6(b) hereof);
(5) fees and disbursements of all independent certified public
accountants of the Company (including, without limitation, the
expenses of any special audit and "cold comfort" letters required by
or incident to such performance);
(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 the Company, the underwriters and the selling
holders of Registrable Securities);
(7) securities acts liability insurance if the Company so desires
or if the underwriters or selling holders of a majority of the
Registrable Securities so require;
(8) fees and expenses of other Persons retained by the Company; and
(9) fees and expenses associated with any Exchange filing required
to be made in connection with the Registration Statement, 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 any Exchange (all such
expenses being herein called "Registration Expenses").
The Company 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
the Company are then listed, rating agency fees and the fees and expenses of any
Person, including special experts, retained by the Company.
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(b) In connection with the Registration Statement required hereunder,
the Company 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
agreement relating to an Underwritten Offering) chosen by the holders of a
majority of such Registrable Securities.
SECTION 7. Indemnification.
(a) Indemnification by Company. The Company 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 the Company by such holder expressly
for use therein; provided, however, that the Company 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, having previously been furnished by or on behalf of the
Company 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 the Company may otherwise have. The Company 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 Section 20 of the Exchange Act)
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 the Company, such Indemnified
Holder shall promptly notify the Company in writing, and the Company 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 the Company shall not relieve the Company from
any obligation or liability except to the extent that the Company 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) the Company has agreed to pay such
fees and expenses or (b) the Company shall have failed to assume the defense of
such action or proceeding and has failed to employ counsel reasonably
satisfactory to such
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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 the Company, 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 the Company (in which case, if such Indemnified Holder notifies the
Company in writing that it elects to employ separate counsel at the expense of
the Company, the Company 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 the Company 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). The Company 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, the Company agrees to indemnify and hold harmless
such Indemnified Holders from and against any loss or liability by reason of
such settlement or judgment.
(b) Indemnification by Holder of Registrable Securities. Each holder of
Registrable Securities agrees, severally not jointly, to indemnify and hold
harmless the Company, its directors and officers and each Person, if any, who
controls the Company 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 the Company 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 the Company 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
the Company and the Company 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.
The Company 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.
(c) Contribution. If the indemnification provided for in this Section 7
is unavailable to an indemnified party under Section 7(a) or Section 7(b) hereof
(other than by reason of exceptions provided in those Sections) 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 the Company 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 the Company on the one hand and of the Indemnified Holder
on the other shall be determined by reference to, among
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other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Company or 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, subject to the limitations set
forth in the second paragraph of Section 7(a), any legal or other fees or
expenses reasonably incurred by such party in connection with investigating or
defending any action or claim.
The Company and each holder of Registrable Securities agree that it
would not be just and equitable if contribution pursuant to this Section 7(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
7(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 8. Rule 144. 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 (or, if the Company
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, the Company will deliver to such holder a written
statement as to whether it has complied with such information and requirements.
SECTION 9. 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.
SECTION 10. Miscellaneous.
(a) Remedies. Each holder of Registrable Securities, in addition to
being entitled to exercise all rights provided herein, in the Plan of
Reorganization, the Warrant Agreement and 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 the provisions
of this Agreement and
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hereby agrees to waive the defense in any action for specific performance that a
remedy at law would be adequate.
(b) No Inconsistent Agreements. The Company 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.
(c) Adjustments Affecting Registrable Securities. The Company 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.
(d) Amendments and Waivers. The provisions of this Agreement, including
the provisions of this sentence, may not be amended, modified or supplemented,
and waivers or consents to departures from the provisions hereof may not be
given unless the Company has obtained the written consent of holders of a
majority of the outstanding Registrable Securities.
(e) 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:
(i) if to a holder of Registrable Securities, at the most current
address given by such holder to the Company in accordance with the provisions of
this Section 10(e), which address initially is, with respect to HET, HCCIC and
any other wholly-owned subsidiary of HET, 0000 Xxxxxx Xxxx, Xxxxxxx, Xxxxxxxxx
00000, Attention: Xxxxxxx X. Xxxxxxxx, with a copy to Xxxxxx & Xxxxxxx, 000 Xxxx
Xxxxx Xxxxxx, Xxx Xxxxxxx, Xxxxxxxxxx 00000, Attention: Xxxxx X. Xxxxxxxx, Esq.;
and
(ii) if to the Company, initially at 000 Xxxxx Xxxxxx Xxxxxx, 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 10(e), with a copy to Xxxxxx & Bird LLP, One Atlantic Center, 0000
Xxxx Xxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxx 00000-0000, Attention: Xxxxxxx X.
XxXxxxxx.
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.
(f) 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.
(g) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
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(i) Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware.
(j) 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.
(k) 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 the Company 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: /s/ Xxxxxxxxx X. Xxxxxxx
--------------------------------------------
Name: Xxxxxxxxx X. Xxxxxxx
Title: President
XXXXXX'X CRESCENT CITY INVESTMENT COMPANY
By: /s/ Xxxxxxx X. Xxxxxxxx
--------------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Authorized Representative
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