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EXHIBIT 10.6
EXECUTION COPY
WARRANT SHARES REGISTRATION RIGHTS AGREEMENT
Dated as of December 5, 1997
by and between
CLUB XXXXXX RESORTS, INC.
and
XXXXXXXXX & COMPANY, INC.
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WARRANT SHARES REGISTRATION RIGHTS AGREEMENT
This Warrant Shares Registration Rights Agreement (the
"Agreement") is made and entered into as of December 5, 1997, by and between
Club Xxxxxx Resorts, Inc., a Nevada corporation (the "Company"), and Xxxxxxxxx
& Company, Inc. (the "Initial Purchaser") which has agreed to purchase an
aggregate of 100,000 Units (the "Units"), such Units consisting of an aggregate
of $100,000,000 in aggregate principal amount at maturity of the 13% Senior
Notes due 2004 issued by the Company and CR Resorts Capital S. de X. X. de C.
V. ("CR Mexico") and Warrants to purchase an aggregate of 1,869,962 shares of
the Company's Common Stock, $.001 par value, pursuant to the Purchase Agreement
(as defined below).
This Agreement is made pursuant to the Purchase Agreement (the
"Purchase Agreement"), dated as of November 26, 1997, by and among the Company,
CR Mexico and the Initial Purchaser. In order to induce the Initial Purchaser
to purchase the Units, the Company has agreed to provide the registration
rights set forth in this Agreement. The execution and delivery of this
Agreement is one of the conditions to the obligations of the Initial Purchaser
set forth in Section 9 of the Purchase Agreement. All defined terms used but
not defined herein shall have the meanings ascribed to them in the Indenture
(as defined below).
The parties hereby agree as follows:
SECTION 1. DEFINITIONS
As used in this Agreement, the following capitalized terms
shall have the following meanings:
Act: The Securities Act of 1933, as amended.
Business Day: Any day except a Saturday, Sunday or other day
in the City of New York, or in the city of the corporate trust office of the
Trustee, on which banks are authorized to close.
Closing Date: The date hereof.
Commission: The Securities and Exchange Commission.
Common Stock: The common stock, $.001 par value, of the
Company.
Exchange Act: The Securities Exchange Act of 1934, as amended
from time to time.
Exchange Offer: As defined in the A/B Exchange Registration
Rights Agreement, dated the Closing Date, among the Company, CR Mexico and the
Initial Purchaser.
Holders: As defined in Section 2 hereof.
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Indenture: The Indenture, dated the Closing Date, between the
Company, CR Mexico and IBJ Xxxxxxxx Bank & Trust Company, as trustee (the
"Trustee"), pursuant to which the Units are to be issued, as such Indenture is
amended or supplemented from time to time in accordance with the terms thereof.
NASD: National Association of Securities Dealers, Inc.
Offering Circular means the Offering Circular of the Company
and CR Mexico dated November 26, 1997, relating to the Offering of the Units.
Person: An individual, partnership, corporation, trust,
unincorporated organization, or a government or agency or political subdivision
thereof.
Prospectus: The prospectus included in a Registration
Statement at the time such Registration Statement is declared effective, as
amended or supplemented by any prospectus supplement and by all other
amendments thereto, including post-effective amendments, and all material
incorporated by reference into such Prospectus.
Registrable Securities: The Warrants, Warrant Shares and any
other securities issued or issuable with respect to the Warrants or the Warrant
Shares by way of a stock dividend or stock split or in connection with a
combination of shares, recapitalization, merger, consolidation or other
reorganization; provided that a security ceases to be a Registrable Security
when it is no longer a Transfer Restricted Security.
Registration Expenses: As defined in Section 6 hereof.
Registration Statement: Any registration statement of the
Company 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.
Selling Holder: Means a Holder who is selling Registrable
Securities pursuant to Section 3(a) or 3(b) hereof.
Senior Notes: The 13% Senior Notes of the Company and CR
Mexico due 2004, being sold and issued pursuant to the Purchase Agreement and
the Indenture, or any notes exchanged therefor as contemplated by the
Indenture.
Transfer Restricted Securities: A Warrant or Warrant Share,
until such Warrant or Warrant Share, as applicable, (i) has been effectively
registered under the Act and disposed of in accordance with the Registration
Statement covering it, (ii) is distributed to the public pursuant to Rule 144
or (iii) may be sold or transferred pursuant to Rule 144(k) (or any similar
provisions then in force) under the Act or otherwise.
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Warrants: The warrants of the Company issued and sold
pursuant to the Purchase Agreement (excluding the warrants referenced in
Section 2(b) of the Purchase Agreement) and the Warrant Agreement, together
with any warrants issued in substitution or replacement therefor.
Warrant Agreement: The Warrant Agreement dated the Closing
Date by and between the Company and IBJ Xxxxxxxx Bank & Trust Company, as
Warrant Agent.
Warrant Shares: The Common Stock or other securities which
any Holder may acquire upon exercise of a Warrant, together with any other
securities which such Holder may acquire on account of any such securities,
including, without limitation, as the result of any dividend or other
distribution on Common Stock or any split-up of such Common Stock as provided
for in the Warrant Agreement.
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,
whether or not such acquisition has actually been effected and disregarding any
legal restrictions upon the exercise of such right.
SECTION 3. REGISTRATION
(a) Shelf Registration
(1) The Company shall file and use its best
efforts to be declared effective on or prior to the Exercise Commencement Date
(as defined in the Warrant Agreement), a "shelf" registration with respect to
all Registrable Securities on any appropriate form pursuant to Rule 415 (or
similar rule that may be adopted by the Commission) under the Act (the "Shelf
Registration") covering the issuance of the Warrant Shares by the Company upon
exercise, or if such issuance is not then permitted to be registered by
applicable rule or policy of the Commission, covering resales of the Warrant
Shares. Notwithstanding the foregoing, the Company shall not be required to
file such Shelf Registration on or prior to the consummation of the Exchange
Offer; provided that, in the event the Exchange Offer is consummated later than
the filing time required by the preceding sentence for the Shelf Registration,
the Company shall file such Shelf Registration within 30 days after the date of
the consummation of the Exchange Offer.
(2) If the Holders of a majority of the
Registrable Securities to be registered in the Shelf Registration so elect, an
offering of Registrable Securities pursuant to the Shelf Registration may be
effected in the form of an underwritten offering of Warrant Shares. In such
event, and if the managing underwriters advise the Company and the Holders of
such
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Registrable Securities in writing that in their opinion the amount of Warrant
Shares proposed to be sold in such offering exceeds the amount of Warrant
Shares which can be sold in such offering, there shall be included in such
underwritten offering the amount of such Warrant Shares which in the opinion of
such underwriters can be sold, and such amount shall be allocated pro rata
among the Holders of such Warrant Shares on the basis of the number of Warrant
Shares requested to be included by such Holders. Registrable Securities not
sold in an underwritten offering contemplated by this Section 3(a)(2) shall
continue to be registered pursuant to the Shelf Registration for the 180-day
period provided for in Section 3(a)(4); provided that such 180-day period shall
be extended on a day-for-day basis for every day that the Holders of
Registrable Securities not sold in the underwritten offering are subject to the
holdback provided for in Section 3(a)(6) below. The Holders of the Warrant
Shares to be registered shall pay all underwriting discounts and commissions of
such underwriters.
(3) If any of the Registrable Securities covered
by the Shelf Registration are to be sold in an underwritten offering, the
investment banker or investment bankers and manager or managers that will
administer the offering will be selected by the Holders of a majority in
aggregate principal amount of such Registrable Securities included in such
offering; provided that such investment bank or manager shall be reasonably
satisfactory to the Company.
(4) The Company shall use its best efforts to
keep the Shelf Registration continuously effective for the 180-day period
following the Exercise Commencement Date, and, to the extent that the Shelf
Registration is kept not effective for one or more days during such period, the
Company shall be required to extend the effectiveness of the Shelf Registration
for a like number of days after the expiration of the 180-day period (it being
expressly acknowledged that such extension of the required period of
effectiveness is in addition to, and not in lieu of, the payment of liquidated
damages as provided in Section 4 hereof).
(5) The Company further agrees to use its best
efforts to prevent the happening of any event that would cause any Registration
Statement made pursuant to Section 3(a) hereof to contain a material
misstatement or omission or to be not effective and usable for resale of the
Registrable Securities during the period that such Registration Statement is
required to be effective and usable.
(6) Each Holder of Registrable Securities whose
Registrable Securities are covered by a Registration Statement filed pursuant
to this Section 3(a) agrees, if requested by the managing underwriters in an
underwritten offering of Common Stock the gross proceeds of which equal at
least $10.0 million, not to effect any public sale or distribution of
securities of the Company of the same class as any Securities included in such
Registration Statement, including a sale pursuant to Rule 144 under the Act
(except as part of such underwritten registration), during the 10-day period
prior to, and during the 90-day period beginning on, the closing date of the
underwritten offering made pursuant to such Registration Statement, to the
extent timely notified in writing by the Company or the managing underwriters;
provided that each Holder of
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Registrable Securities shall be subject to the hold-back restrictions of this
Section 3(a)(6) only once during the term of this Agreement.
The foregoing provisions shall not apply to any
Holder of Registrable Securities if such Holder is prevented by applicable
statute or regulation from entering into any such agreement; provided that any
such Holder shall undertake, in its request to participate in any such
underwritten offering, not to effect any public sale or distribution of any
applicable class of Registrable Securities commencing on the date of sale of
such applicable class of Registrable Securities unless it has provided 45 days
prior written notice of such sale or distribution to the underwriter or
underwriters.
(b) Piggyback Registrations
If at any time after the Exercise Commencement Date,
the Company proposes to file a Registration Statement under the Securities Act
with respect to an offering by the Company for its own account or for the
account of any of its security holders of any class of its common equity
securities (other than (i) a Registration Statement on Form S-4 or S-8 (or any
substitute form that may be adopted by the SEC or other form of limited
purpose), (ii) a Registration Statement filed in connection with an exchange
offer or offering of securities solely to the Company's existing security
holders or (iii) a Registration Statement filed in connection with an initial
public offering of the Common Stock of the Company), then the Company shall
give written notice of such proposed filing to the Holders of Registrable
Securities as soon as practicable (but in no event fewer than 15 days before
the anticipated filing date or 10 days if the Company is subject to filing
reports under the Exchange Act and able to use Form S-3 under the Securities
Act), and such notice shall offer such Holders the opportunity to register such
number of shares of Registrable Securities as each such Holder may request in
writing not later than 5 days prior to the anticipated filing date of the
Registration Statement after receipt of such written notice from the Company
(which request shall specify the Registrable Securities intended to be disposed
of by such Selling Holder and the intended method of distribution thereof) (a
"Piggy-Back Registration"). The Company shall use its best efforts to keep
such Piggy-Back Registration continuously effective under the Securities Act
until at least the earlier of (A) 90 days after the effective date thereof or
(B) the consummation of the distribution by the Holders of all of the
Registrable Securities covered thereby. The Company shall use its commercially
reasonable efforts to cause the managing underwriter or underwriters, if any,
of such proposed offering to permit the Registrable Securities requested to be
included in a Piggy-Back Registration to be included on the same terms and
conditions as any similar securities of the Company or any other security
holder included therein, subject to the restrictions set forth in this Section
3(b), and to permit the sale or other disposition of such Registrable
Securities in accordance with the intended method of distribution thereof. Any
Selling Holder shall have the right to withdraw its request for inclusion of
its Registrable Securities in any Registration Statement pursuant to this
Section 3(b) by giving timely written notice to the Company of its request to
withdraw. The Company may withdraw a Piggy-Back Registration at any time prior
to the time it becomes effective or the Company may elect to delay the
registration; provided, however, that the Company shall give prompt written
notice thereof to participating Selling Holders. The Company will pay all
Registration Expenses in connection with each registration
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of Registrable Securities requested pursuant to this Section 3(b), and each
Holder of Registrable Securities shall pay all underwriting discounts and
commissions and transfer taxes, if any, relating to the sale or disposition of
such Holder's Registrable Securities pursuant to a Registration Statement
effected pursuant to this Section 3(b).
No registration effected under this Section 3(b) and
no failure to effect a registration under this Section 3(b), shall relieve the
Company of its obligation to effect a registration pursuant to Section 3(a)
hereof, and no failure to effect a registration under this Section 3(b) and to
complete the sale of securities registered thereunder in connection therewith
shall relieve the Company of any other obligation under this Agreement.
In a registration pursuant to Section 3(b) hereof
involving an underwritten offering, if the managing underwriter or underwriters
of such underwritten offering have informed, in writing, the Company and the
Selling Holders requesting inclusion in such offering that in such
underwriter's or underwriters' opinion the total number of securities which the
Company, the Selling Holders and any other Persons desiring to participate in
such registration intend to include in such offering is such as to adversely
affect the success of such offering, including the price at which such
securities can be sold, then the Company will be required to include in such
registration only the amount of securities which it is so advised should be
included in such registration. In such event: (x) in cases only involving the
registration for sale of securities for the Company's own account (other than
pursuant to the exercise of piggyback rights herein and in other contractual
commitments of the Company), securities shall be registered in such offering in
the following order of priority: (i) first, the securities which the Company
proposes to register, and (ii) second, provided that no securities sought to be
included by the Company have been excluded from such registration, the
securities of the Holders and other Persons entitled to exercise "piggy-back"
registration rights pursuant to contractual commitments of the Company (pro
rata based on the amount of securities sought to be registered by such
Persons); and (y) in cases not involving the registration for sale of
securities for the Company's own account only, securities shall be registered
in such offering in the following order of priority: (i) first, the securities
of any Person whose exercise of a "demand" registration right pursuant to a
contractual commitment of the Company is the basis for the registration
(provided that if such Person is a Holder of Registrable Securities, as among
Holders of Registrable Securities there shall be no priority and Registrable
Securities sought to be included by Holders of Registrable Securities shall be
included pro rata based on the amount of securities held by such Persons), (ii)
second, provided that no securities of such Person referred to in the
immediately preceding clause (i) have been excluded from such registration,
securities of the Holders and other Persons entitled to exercise "piggy-back"
registration rights pursuant to contractual commitments (pro rata based on the
amount of securities sought to be registered by such Persons) and (iii) third,
provided that no securities of any other Person have been excluded from such
registration, the securities which the Company proposes to register.
If, as a result of the provisions of this Section
3(b), any Selling Holder shall not be entitled to include all Registrable
Securities in a Piggy-Back Registration that such Selling Holder has requested
to be included, such Selling Holder may elect to withdraw his request to
include Registrable Securities in such registration.
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(c) The Company covenants and agrees that it will not,
and the Company will not cause or permit any subsidiary of the Company to,
after the date hereof, enter into any agreement or contract that conflicts with
or limits or prohibits the full and timely exercise by the Holders of
Registrable Securities of the rights herein to request a Shelf Registration or
to join in any Piggy-Back Registration subject to the other terms and
provisions hereof.
SECTION 4. LIQUIDATED DAMAGES
If the Registration Statement required to be filed pursuant to
Section 3(a): (i) is not filed with, and declared effective by, the Commission
on or prior to the date Exercise Commencement Date; (ii) following the date
such Registration Statement is declared effective by the Commission, shall
cease to be effective or fail to be usable for its intended purpose during the
period required by this Agreement to remain effective without being succeeded
immediately by a post-effective amendment to such Registration Statement that
cures such failure and that is itself immediately declared effective (each such
event referred to in clauses (i) and (ii), a "Shelf Registration Default") to
the extent permitted by applicable law, the Company shall pay as liquidated
damages and not as a penalty to each Holder during the first 90-day period
immediately following the occurrence, and during the continuance of such Shelf
Registration Default, an amount equal to $.005 per week per Warrant Share then
issuable upon exercise of or in respect of Warrants held by such Holder for
each week or pro rata for a portion of each week thereof that the Shelf
Registration Default continues.
All accrued liquidated damages shall be paid to record Holders
by the Company by wire transfer of immediately available funds, or by mailing a
federal funds check, on each Interest Payment Date (as defined in the
Indenture). All obligations of the Company set forth in the preceding
paragraph that are outstanding with respect to any Registrable Security at the
time such security has been effectively registered under the Act shall survive
until such time as all such obligations with respect to such security have been
satisfied in full.
SECTION 5. REGISTRATION PROCEDURES
(a) General Provisions. In connection with the Company's
registration obligations pursuant to Section 3(a) and 3(b) 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:
(1) use its best efforts to keep such
Registration Statement continuously effective for the 180-day period following
the Exercise Commencement Date and provide or incorporate by reference all
requisite financial statements for such period. Upon the occurrence of any
event that would cause any such Registration Statement or the Prospectus
contained therein (A) to contain a material misstatement or omission or (B) not
to be effective and usable for resale of Registrable Securities during the
period required by this Agreement, the Company shall file promptly an
appropriate amendment to such Registration Statement or file
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appropriate documents that will be so incorporated by reference, (1) in the
case of clause (A), correcting any such misstatement or omission, and (2) in
the case of either clause (A) or (B), use its best efforts to cause such
amendment to be declared effective and such Registration Statement and the
related Prospectus to become usable for their intended purpose(s) as soon as
practicable thereafter;
(2) prepare and file with the Commission such
amendments and post-effective amendments to the Registration Statement as may
be necessary to keep the Registration Statement effective for the period set
forth in Section 3(a)(4) or 3(b), as applicable, cause the Prospectus to be
supplemented by any required Prospectus supplement, and as so supplemented to
be filed pursuant to Rule 424 under the Act; and comply in all material
respects with the provisions of the Act with respect to the disposition of all
securities covered by such Registration Statement during the applicable period
in accordance with the intended method or methods of distribution by the
sellers thereof set forth in such Registration Statement or supplement to the
Prospectus; the Company shall not be deemed to have used its best efforts to
keep a Registration Statement effective during the applicable period if it
voluntarily takes any action that would result in Holders of the Registrable
Securities covered thereby not being able to exercise their Warrants or sell
such Registrable Securities during that period unless such action is required
under applicable law, provided that the foregoing shall not apply to actions
taken by the Company in good faith and for valid business reasons, including
without limitation the acquisition or divestiture of assets, so long as the
Company promptly thereafter complies with the requirements of clause (14)
below, if applicable;
(3) advise the underwriter(s), if any, and
Holders promptly and, if requested by such Persons, confirm such advice in
writing, (A) when the Prospectus or any Prospectus supplement or post-effective
amendment has been filed, and, with respect to any Registration Statement or
any post-effective amendment thereto, when the same has become effective, (B)
of any request by the Commission for amendments to the Registration Statement
or amendments or supplements to the Prospectus or for additional information
relating thereto, (C) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement under the Act or of
the suspension by any state securities commission of the qualification of the
Registrable Securities for offering or sale in any jurisdiction, or the
initiation of any proceeding for any of the preceding purposes, (D) of the
existence of any fact or the happening of any event that makes any statement of
a material fact made in the Registration Statement, the Prospectus, any
amendment or supplement thereto or any document incorporated by reference
therein untrue, or that requires the making of any additions to or changes in
the Registration Statement in order to make the statements therein not
misleading, or that requires the making of any additions to or changes in the
Prospectus in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. If at any time the
Commission shall issue any stop order suspending the effectiveness of the
Registration Statement, or any state securities commission or other regulatory
authority shall issue an order suspending the qualification or exemption from
qualification of the Registrable Securities under state securities or Blue Sky
laws, the Company shall use its best efforts to obtain the withdrawal or
lifting of such order at the earliest possible time;
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(4) make available to each Selling Holder named
in any Registration Statement or Prospectus and each of the underwriter(s) in
connection with such sale, if any, before filing with the Commission, copies of
any Registration Statement or any Prospectus included therein or any amendments
or supplements to any such Registration Statement or Prospectus and the Company
will not file or will correct any such Registration Statement or Prospectus or
any amendment or supplement to any such Registration Statement or Prospectus
(including all such documents incorporated by reference) to which the Selling
Holders of the Registrable Securities covered by such Registration Statement or
the underwriter(s) in connection with such sale, if any, shall reasonably
object within five Business Days after the receipt thereof. A Selling Holder
or underwriter, if any, shall be deemed to have reasonably objected to such
filing if such Registration Statement, amendment, Prospectus or supplement, as
applicable, as proposed to be filed, contains a material misstatement or
omission or fails to comply with the applicable requirements of the Act;
(5) promptly upon the filing of any document that
is to be incorporated by reference into a Registration Statement or Prospectus,
make available copies of such document to the Selling Holders and to the
underwriter(s) in connection with such sale, if any, make the Company's
representatives available for discussion of such document and other customary
due diligence matters, and include such information in such document prior to
the filing thereof as such Selling Holders or underwriter(s), if any,
reasonably may request;
(6) make available for inspection by a
representative of the Holders of Registrable Securities being sold, any
underwriter participating in any such disposition of Registrable Securities, if
any, and any attorney or accountant retained by such representative of the
Holders or underwriter (collectively, the "Inspectors"), at the offices where
normally kept, during reasonable business hours, at the Inspector's expense,
all financial and other records, pertinent corporate documents and properties
of the Company and the subsidiaries of the Company, and cause the officers,
directors and employees of the Company and the subsidiaries of the Company to
supply all information in each case reasonably requested by any such Inspector
in connection with such Registration Statement; provided, however, that (i) in
connection with any such inspection, any such Inspectors shall cooperate to the
extent reasonably practicable to minimize any disruption to the operation by
the Company of its business and (ii) any records, information or documents
shall be kept confidential by such Inspectors, unless (A) such records,
information or documents are in the public domain or otherwise publicly
available or (B) disclosure of such records, information or documents is
required by a court or administrative order or by applicable law and notice of
such requirement is promptly given to the Company after being received;
(7) if requested by any Selling Holders or the
underwriter(s) in connection with such sale, if any, promptly include in any
Registration Statement or Prospectus, pursuant to a supplement or
post-effective amendment if necessary, such information as such Selling Holders
and underwriter(s), if any, may reasonably request to have included therein,
including, without limitation, information relating to the "Plan of
Distribution" of the Registrable Securities, information with respect to the
principal amount of Registrable Securities being sold to such underwriter(s),
the purchase price being paid therefor and any other terms of the offering
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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 practicable after the Company is notified of the matters to be included
in such Prospectus supplement or post-effective amendment;
(8) furnish to each Holder and each of the
underwriter(s) in connection with a sale of Warrant Shares, if any, without
charge, at least one copy of the Registration Statement, as first filed with
the Commission, and of each amendment thereto, and make available all documents
incorporated by reference therein and all exhibits (including exhibits
incorporated therein by reference);
(9) deliver to each Selling Holder and each of
the underwriter(s), if any, without charge, as many copies of the Prospectus
(including each preliminary prospectus) and any amendment or supplement thereto
as such Persons reasonably may request; the Company hereby consents to the use
of the Prospectus and any amendment or supplement thereto by each of the
Selling Holders and each of the underwriter(s), if any, in connection with the
offering and the sale of the Registrable Securities covered by the Prospectus
or any amendment or supplement thereto;
(10) enter into such agreements (including, unless
not required pursuant to Section 3(a) hereof, an underwriting agreement) and
make such representations and warranties and take all such other actions in
connection therewith that are reasonably necessary in order to expedite or
facilitate the disposition of the Registrable Securities pursuant to any
Registration Statement contemplated by this Agreement as may be reasonably
requested by any Holder of Registrable Securities or underwriter in connection
with any exercise, sale or resale pursuant to any Registration Statement
contemplated by this Agreement, and in such connection, whether or not an
underwriting agreement is entered into and whether or not the registration is
an underwritten registration, the Company shall:
(A) furnish to each Selling Holder and
each underwriter, if any, upon the effectiveness of the Registration Statement:
(i) a certificate, dated the date
of effectiveness of the Registration Statement, signed by (x) the President and
(y) any Vice President, the Secretary or an Assistant Secretary of the Company,
confirming, as of the date thereof, the matters of the types set forth in
paragraphs (a), (b), (c) and (d) of Section 9 of the Purchase Agreement and
such other matters as the Holders and/or underwriter(s) may reasonably request;
(ii) an opinion, dated the date of
effectiveness of the Registration Statement, of counsel for the Company,
covering (i) due authorization and enforceability of the Warrants, (ii) a
statement to the effect that such counsel has participated in conferences with
officers and other representatives of the Company and representatives of the
independent public accountants for the Company and have considered the matters
required to be stated therein and the statements contained therein, although
such counsel has not independently verified the accuracy, completeness or
fairness of such statements; and that such counsel advises
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that, on the basis of the foregoing (relying as to materiality to a large
extent upon facts provided to such counsel by officers and other
representatives of the Company and without independent check or verification),
no facts came to such counsel's attention that caused such counsel to believe
that the applicable Registration Statement, at the time such Registration
Statement or any post-effective amendment thereto became effective, and
contained an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading, or that the Prospectus contained in such Registration Statement
as of its date and, contained an untrue statement of a material fact or omitted
to state a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading and
(iii) such other matters of the type customarily covered in opinions of counsel
for an issuer in connection with similar securities offerings, as may
reasonably be requested by such parties. Without limiting the foregoing, such
counsel may state further that such counsel assumes no responsibility for, and
has not independently verified, the accuracy, completeness or fairness of the
financial statements, notes and schedules and other financial, statistical and
accounting data included in any Registration Statement contemplated by this
Agreement or the related Prospectus; and
(iii) a customary comfort letter,
dated as of the date of effectiveness of the Registration Statement, from the
Company's independent accountants, in the customary form and covering matters
of the type customarily covered in comfort letters to underwriters in
connection with primary underwritten offerings, and affirming the matters set
forth in the comfort letters delivered pursuant to Section 9(j) of the Purchase
Agreement, without exception;
(B) set forth in full or incorporate by
reference in the underwriting agreement, if any, in connection with any sale or
resale pursuant to any Registration Statement the indemnification provisions
and procedures of Section 7 hereof with respect to all parties to be
indemnified pursuant to said Section; and
(C) deliver such other documents and
certificates as may be reasonably requested by such parties to evidence
compliance with clause (A) above and with any customary conditions contained in
the underwriting agreement or other agreement entered into by the Company
pursuant to this clause (10), if any.
The above shall be done at each closing under such
underwriting or similar agreement, as and to the extent required thereunder,
and if at any time the representations and warranties of the Company
contemplated in (A)(i) above cease to be true and correct, the Company shall so
advise the underwriter(s), if any, and Selling Holders promptly and if
requested by such Persons, shall confirm such advice in writing;
(11) prior to any public offering of Registrable
Securities, cooperate with the Holders, the underwriter(s), if any, and their
respective counsel in connection with the registration and qualification of the
Registrable Securities under the securities or Blue Sky laws of such
jurisdictions as the Holders or underwriter(s), if any, may request and do any
and all other acts or things necessary or advisable to enable the disposition
in such jurisdictions of the
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Registrable Securities covered by the applicable Registration Statement;
provided, however, that where Registrable Securities are offered other than
through an underwritten offering, the Company agrees to cause its counsel to
perform Blue Sky investigations and file registrations and qualifications
required to be filed pursuant to this Section 5(a)(11), keep each such
registration or qualification (or exemption therefrom) effective during the
period that the applicable Registration Statement is required to remain
effective under the terms of this Agreement and do any and all other acts or
things necessary or advisable to enable the disposition in such jurisdictions
of the securities covered thereby; provided that the Company shall not be
required to register or qualify as a foreign corporation where it is not now so
qualified or to take any action that would subject it to the service of process
in suits or to taxation, other than as to matters and transactions relating to
the Registration Statement, in any jurisdiction where it is not now so subject;
(12) in connection with any sale or exercise of
Registrable Securities that will result in such securities no longer being
Transfer Restricted Securities, cooperate with the Holders and the
underwriter(s), if any, to facilitate the timely preparation and delivery of
certificates representing Registrable Securities to be sold and not bearing any
restrictive legends; and to register such Registrable Securities in such
denominations and such names as the Holders or the underwriter(s), if any, may
request at least two Business Days prior to such sale of Registrable
Securities;
(13) use its best efforts to cause the Registrable
Securities covered by the Registration Statement to be registered with or
approved by such other governmental agencies or authorities as may be necessary
to enable the Holder or Holders thereof or the underwriter(s), if any, to
consummate the exercise or disposition of such Registrable Securities, subject
to the proviso contained in clause (11) above;
(14) if any fact or event contemplated by clause
(3) above shall exist or have occurred, prepare a supplement or post-effective
amendment to the Registration Statement or related Prospectus or any document
incorporated therein by reference or file any other required document so that,
as thereafter delivered to the purchasers of Registrable Securities, the
Prospectus will not contain an untrue statement of a material fact or omit to
state any material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading;
(15) provide a CUSIP number for all Registrable
Securities not later than the effective date of a Registration Statement
covering such Registrable Securities and provide the Trustee under the
Indenture with printed certificates for the Registrable Securities which are in
a form eligible for deposit with the Depository Trust Company;
(16) 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 use its best efforts to cause such Registration
Statement to become effective and approved by such governmental agencies or
authorities as may be
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necessary to enable the Holders selling Registrable Securities to consummate
the disposition of such Registrable Securities;
(17) otherwise use its best efforts to comply
with all applicable rules and regulations of the Commission, and make generally
available to its security holders with regard to any applicable Registration
Statement, as soon as practicable, a consolidated earnings statement meeting
the requirements of Rule 158 (which need not be audited) covering a
twelve-month period beginning after the effective date of the Registration
Statement (as such term is defined in paragraph (c) of Rule 158 under the Act);
(18) cause all Registrable Securities covered by
the Registration Statement to be listed on each securities exchange on which
similar securities issued by the Company are then listed;
(19) provide promptly to each Holder upon written
request each document filed with the Commission pursuant to the requirements of
Section 13 or Section 15(d) of the Exchange Act;
(20) cooperate with the Holders of Registrable
Securities and the managing underwriter or underwriters, if any, to facilitate
the timely preparation and delivery of certificates representing Registrable
Securities to be sold, which certificates shall not bear any restrictive
legends whatsoever and shall be in a form eligible for deposit with The
Depository Trust Company ("DTC"); and enable such Registrable Securities to be
in such denominations and registered in such names as the managing underwriter
or underwriters, if any, or Holders may reasonably request at least two
business days prior to any sale of Registrable Securities in a firm commitment
underwritten public offering.;
(21) pay all Registration Expenses in connection
with the registrations requested pursuant to Sections 3(a) and 3(b) hereof.
Each Holder of Registrable Securities shall pay all underwriting discounts and
commissions and transfer taxes, if any, relating to the sale or disposition of
such Holder's Registrable Securities pursuant to a Registration Statement
requested pursuant to Section 3(a)(2);
(22) make appropriate officers of the Company
available to the Selling Holders for meetings with prospective purchasers of
the Registrable Securities and prepare and present to potential investors
customary "road show" material in a manner consistent with other new issuances
of other securities similar to the Registrable Securities, in connection with
any proposed sale of the Securities in an aggregate offering of at least $10
million; and
(23) cooperate with the Selling Holders of
Registrable Securities to facilitate the timely preparation and delivery of
certificates representing Registrable Securities to be sold and not bearing any
restrictive legends and registered in such names as the Selling Holders may
reasonably request at least two business days prior to the closing of any sale
of Registrable Securities.
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(b) Restrictions on Holders. Each Holder agrees by
acquisition of a Registrable Security that, upon receipt of any notice from the
Company of the existence of any fact of the kind described in Section
5(a)(3)(D) hereof, such Holder will forthwith discontinue disposition of
Registrable Securities pursuant to the applicable Registration Statement until
such Holder's receipt of the copies of the supplemented or amended Prospectus
contemplated by Section 5(a)(14) hereof, or until it is advised in writing (the
"Advice") by the Company that the use of the Prospectus may be resumed, and has
received copies of any additional or supplemental filings that are incorporated
by reference in the Prospectus. If so directed by the Company, each 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 that was current at the time of receipt of
such notice. In the event the Company shall give any such notice, the time
period regarding the effectiveness of such Registration Statement set forth in
Section 3(a) hereof, as applicable, shall be extended by the number of days
during the period from and including the date of the giving of such notice
pursuant to Section 5(a)(3)(D) hereof to and including the date when each
Selling Holder covered by such Registration Statement shall have received the
copies of the supplemented or amended Prospectus contemplated by Section
5(a)(14) hereof or shall have received the Advice.
SECTION 6. REGISTRATION EXPENSES
(a) All expenses incident to the Company's performance of
or compliance with this Agreement ("Registration Expenses") will be borne by
the Company, regardless of whether a Registration Statement becomes effective,
including without limitation: (i) all registration and filing fees and expenses
(including filings made by any Holder with the NASD (and, if applicable, the
reasonable fees and expenses of any "qualified independent underwriter") and
such Holder's counsel, as may be required by the rules and regulations of the
NASD); (ii) all fees and expenses of compliance with federal securities and
state Blue Sky or securities laws; (iii) all expenses of printing (including,
without limitation, expenses of printing or engraving certificates for the
Registrable Securities in a form eligible for deposit with the Depository Trust
Company and printing of Prospectuses), messenger and delivery services and
telephone; (iv) all fees and disbursements of counsel for the Company and,
subject to Section 7(b) below, the reasonable fees and disbursements of counsel
to the Holders of Transfer Restricted Securities; (v) all application and
filing fees in connection with listing the Registrable Securities on a national
exchange or automated quotation system pursuant to the requirements hereof; and
(vi) all fees and disbursements of independent certified public accountants of
the Company (including the expenses of any special audit and comfort letters
required by or incident to such performance).
The Company will, in any event, bear its internal expenses
(including, without limitation, all salaries and expenses of its officers and
employees performing legal or accounting duties), the expenses of any annual
audit and the fees and expenses of any Person, including special experts,
retained by the Company.
(b) In connection with each Registration Statement
required hereunder, the Company will reimburse the Holders of Registrable
Securities being registered pursuant to such
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Registration Statement for the reasonable fees and actual disbursements of not
more than one counsel chosen by the Holders of a majority of the principal
amount of such Registrable Securities, or more than one, if, in the reasonable
judgment of counsel for the Holders and counsel for the Company, a conflict
exists among such Holders. Notwithstanding the provisions of this Section 6,
each Holder of Registrable Securities shall pay all registration expenses to
the extent required by applicable law.
SECTION 7. INDEMNIFICATION
(a) The Company agrees to indemnify and hold harmless (i)
each Holder and (ii) each person, if any, who controls (within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act) any Holder (any of the
persons referred to in this clause (ii) being hereinafter referred to as a
"controlling person") and (iii) the respective officers, directors, partners,
employees, representatives and agents of any Holder or any controlling person
(any person referred to in clause (i), (ii) or (iii) may hereinafter be
referred to as an "Indemnified Holder"), from and against any and all losses,
claims, damages, liabilities, judgments, (including without limitation, any
legal or other expenses incurred in connection with investigating or defending
any matter, including any action that could give rise to any such losses,
claims, damages, liabilities or judgments) (collectively, "Losses") caused by
any untrue statement or alleged untrue statement of a material fact contained
in any Registration Statement, preliminary prospectus or Prospectus (or any
amendment or supplement thereto) provided by the Company to any holder or any
prospective purchaser of Warrants or Warrant Shares, or caused by any omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, except
insofar as such Losses are caused by an untrue statement or omission or alleged
untrue statement or omission that is based upon information relating to any of
the Holders furnished in writing to the Company by any of the Holders.
Notwithstanding the foregoing, the Company shall not be liable in any such case
to the extent that any such Loss arises out of, or is based upon, an untrue
statement or alleged untrue statement or omission or alleged omission made in
any preliminary prospectus if (i) the Selling Holder failed to send or deliver
a copy of the Prospectus with or prior to the delivery of written confirmation
of the sale of Warrant Shares to the person asserting such Loss or who
purchased such Warrant Shares which are the subject thereof and (ii) the
Prospectus would have corrected such untrue statement or omission or alleged
untrue statement or alleged omission; and the Company shall not be liable in
any such case to the extent that any such Loss arises out of, or is based upon,
an untrue statement or alleged untrue statement of material fact or omission or
alleged omission to state a material fact in the Prospectus, if such untrue
statement or alleged untrue statement or omission or alleged omission is
corrected in any amendment or supplement to the Prospectus and if, having been
furnished by or on behalf of the Company with copies of the Prospectus as so
amended or supplemented prior to the sale of Warrant Shares, the Selling Holder
thereafter fails to deliver such Prospectus as so amended or supplemented prior
to or concurrently with the sale of the Warrant Shares.
(b) Each Holder of Transfer Restricted Securities agrees,
severally and not jointly, to indemnify and hold harmless the Company, and its
directors and officers, and each person, if any, who controls (within the
meaning of Section 15 of the Act or Xxxxxxx 00 xx xxx
00
00
Xxxxxxxx Xxx) the Company to the same extent as the foregoing indemnity from
the Company to each of the Indemnified Holders, but only with reference to
information relating to such Indemnified Holder furnished in writing to the
Company by such Indemnified Holder expressly for use in any Registration
Statement. In no event shall any Indemnified Holder be liable or responsible
for any amount in excess of the amount by which the total amount received by
such Indemnified Holder with respect to its sale of Transfer Restricted
Securities pursuant to a Registration Statement exceeds (i) the amount paid by
such Indemnified Holder for such Transfer Restricted Securities and (ii) the
amount of any damages that such Indemnified Holder has otherwise been required
to pay by reason of such untrue or alleged untrue statement or omission or
alleged omission.
(c) In case any action shall be commenced involving any
person in respect of which indemnity may be sought pursuant to Section 7(a) or
7(b) (the "indemnified party"), the indemnified party shall promptly notify the
person against whom such indemnity may be sought (the "indemnifying person") in
writing and the indemnifying party shall assume the defense of such action,
including the employment of counsel reasonably satisfactory to the indemnified
party and the payment of all fees and expenses of such counsel, as incurred
(except that in the case of any action in respect of which indemnity may be
sought pursuant to both Sections 7(a) and 7(b), an Indemnified Holder shall not
be required to assume the defense of such action pursuant to this Section 7(c),
but may employ separate counsel and participate in the defense thereof, but the
fees and expenses of such counsel, except as provided below, shall be at the
expense of the Indemnified Holder). Any indemnified party shall have the right
to employ separate counsel in any such action and participate in the defense
thereof, but the fees and expenses of such counsel shall be at the expense of
the indemnified party unless (i) the employment of such counsel shall have been
specifically authorized in writing by the indemnifying party, (ii) the
indemnifying party shall have failed to assume the defense of such action or
employ counsel reasonably satisfactory to the indemnified party or (iii) the
named parties to any such action (including any impleaded parties) include both
the indemnified party and the indemnifying party, and the indemnified party
shall have been advised in writing by such counsel that there may be one or
more legal defenses available to it which are different from or additional to
those available to the indemnifying party (in which case the indemnifying party
shall not have the right to assume the defense of such action on behalf of the
indemnified party). In any such case, the indemnifying party shall not, in
connection with any one action or separate but substantially similar or related
actions in the same jurisdiction arising out of the same general allegations or
circumstances, be liable for the fees and expenses of more than one separate
firm of attorneys (in addition to any local counsel) for all indemnified
parties and all such fees and expenses shall be reimbursed as they are
incurred. Such firm shall be designated in writing by a majority of the
Indemnified Holders, in the case of the parties indemnified pursuant to Section
7(a), and by the Company, in the case of parties indemnified pursuant to
Section 7(b). The indemnifying party shall indemnify and hold harmless the
indemnified party from and against any and all losses, claims, damages,
liabilities and judgments by reason of any settlement of any action (i)
effected with its written consent or (ii) effected without its written consent
if the settlement is entered into more than twenty business days after the
indemnifying party shall have received a request from the indemnified party for
reimbursement for the fees and expenses of counsel (in any case where such fees
and expenses are at the expense of the indemnifying party)
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and, prior to the date of such settlement, the indemnifying party shall have
failed to comply with such reimbursement request. No indemnifying party
shall, without the prior written consent of the indemnified party, effect any
settlement or compromise of, or consent to the entry of judgment with respect
to, any pending or threatened action in respect of which the indemnified party
is or could have been a party and indemnity or contribution may be or could
have been sought hereunder by the indemnified party, unless such settlement,
compromise or judgment (i) includes an unconditional release of the indemnified
party from all liability on claims that are or could have been the subject
matter of such action and (ii) does not include a statement as to or an
admission of fault, culpability or a failure to act, by or on behalf of the
indemnified party.
(d) To the extent that the indemnification provided for
in this Section 7 is unavailable to an indemnified party in respect of any
losses, claims, damages, liabilities or judgments referred to therein, then
each indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages, liabilities or judgments (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company, on the one hand, and the Holders, on the other hand, from their sale
of Transfer Restricted Securities or (ii) if the allocation provided by clause
7(d)(i) is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause
7(d)(i) above but also the relative fault of the Company, on the one hand, and
of the Indemnified Holder, on the other hand, in connection with the statements
or omissions which resulted in such losses, claims, damages, liabilities or
judgments, as well as any other relevant equitable considerations. The
relative fault of the Company, on the one hand, and of the Indemnified Holder,
on the other hand, shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company, on the one hand, or by the Indemnified Holder, on the
other hand, 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 judgments 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 agree that it would not be just
and equitable if contribution pursuant to this Section 7(d) were determined by
pro rata allocation (even if the Holders were treated as one entity for such
purpose) or by any other method of allocation which does not take account of
the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an indemnified party as a result of
the losses, claims, damages, liabilities or judgments referred to in the
immediately preceding paragraph shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any
matter, including any action that could have given rise to such losses, claims,
damages, liabilities or judgments. Notwithstanding the provisions of this
Section 7, no Holder or its related Indemnified Holders shall be required to
contribute, in the aggregate, any amount in excess of the amount by which the
total received by such Holder with respect to the sale of its Transfer
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Restricted Securities pursuant to a Registration Statement exceeds the sum of
(A) the amount paid by such Holder for such Transfer Restricted Securities plus
(B) the amount of any damages which such Holder has otherwise been required to
pay by reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The Holders'
obligations to contribute pursuant to this Section 7(d) are several in
proportion to amount of Transfer Restricted Securities held by each of the
Holders hereunder and not joint.
SECTION 8. RULE 144A
The Company hereby agrees with each Holder, for so long as any
Registrable Securities remain outstanding, to make available, upon request of
any Holder of Registrable Securities, to any Holder or beneficial owner of
Registrable Securities in connection with any sale thereof and any prospective
purchaser of such Registrable Securities designated by such Holder or
beneficial owner, the information required by Rule 144A(d)(4) under the Act in
order to permit resales of such Registrable Securities pursuant to Rule 144A.
SECTION 9. MISCELLANEOUS
(a) Remedies. Each Holder of Registrable Securities, in
addition to being entitled to exercise all rights provided herein, and as
provided in the Purchase Agreement and 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, to the extent not prohibited by
applicable law, 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 that conflicts with the rights granted to the Holders of
Registrable Securities in this Agreement or otherwise conflicts with the
provisions hereof. Except as disclosed in the Offering Circular, the Company
has not previously entered into any agreement granting any registration rights
of its securities to any Person except the A/B Exchange Registration Rights
Agreement regarding the Senior Notes executed concurrently herewith. The
rights granted to the Holders of Registrable Securities hereunder do not in any
way conflict with and are not inconsistent with the rights granted to the
holders of the Company's securities under any other agreement in effect on the
date hereof, except where a waiver with respect thereto has been obtained prior
to the date of effectiveness of any Registration Statement required under this
Agreement.
(c) Adjustments Affecting the Registrable Securities.
The Company will not take any action, or permit any change to occur, with
respect to the Registrable Securities which would (i) adversely affect the
ability of any of the Holders of Registrable Securities to include such
Registrable Securities in a registration undertaken pursuant to this Agreement
or (ii)
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materially adversely affect the marketability of the Registrable
Securities in any such registration.
(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;
provided, however, that Section 7 and Section 9(d) may not be amended, modified
or supplemented without the written consent of each Holder (including any
Person who was a Holder of Registrable Securities disposed of pursuant to any
Registration Statement) affected by any such amendment, modification or
supplement. Notwithstanding the foregoing, a waiver or consent to departure
from the provisions hereof that relates exclusively to the rights of Holders of
Registrable Securities whose securities are being sold pursuant to a
Registration Statement and that does not directly or indirectly affect the
rights of other Holders of Registrable Securities may be given by the Holders
of at least a majority of the Registrable Securities being sold.
(e) Notices. All notices and other communications
provided for or permitted hereunder shall be made in writing by hand-delivery,
first-class mail (registered or certified, return receipt requested), telex,
telecopier, or air courier guaranteeing overnight delivery:
(1) if to a Holder, at the address set forth on
the records of the Warrant Agent under the Warrant Agreement, with a copy to
the Warrant Agent under the Warrant Agreement; and
(2) if to the Company:
Club Xxxxxx Resorts, Inc.
00000 Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Telecopier No.: (000) 000-0000
Attention: Secretary
With a copy to (which shall not constitute notice):
Akin, Gump, Strauss, Xxxxx & Xxxx, L.L.P.
Suite 1900 - South Pennzoil Place
000 Xxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxxx X. Xxxxxx, Esq.
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
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acknowledged, if telecopied; and on the next business day, if timely delivered
to an air courier guaranteeing overnight delivery.
Copies of all such notices, demands or other communications
shall be concurrently delivered by the Person giving the same to the Trustee at
the address specified in the Indenture.
(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.
(i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT
REGARD TO THE CONFLICT OF LAW RULES THEREOF. The Company hereby irrevocably
and unconditionally: (i) submits itself and its property in any legal action
or proceeding relating to this Warrant Registration Rights Agreement or for
recognition and enforcement of any judgment in respect thereof, to the non-
exclusive jurisdiction of the courts of the State of New York and the courts of
the United States of America for the Southern District of New York, and
appellate courts thereof, and consents and agrees to such action or proceeding
being brought in such courts; and (ii) waives any objection that it may now or
hereafter have to the venue of any such action or proceeding in any such court
or that such action or proceeding was brought in any inconvenient court and
agrees not to plead or claim the same.
(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 together with the
other Operative Documents (as defined in the Purchase 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 securities sold pursuant to the Purchase Agreement.
This Agreement supersedes all prior agreements and understandings between the
parties with respect to such subject matter.
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(l) Securities Held by the Company or Its Affiliates.
Whenever the consent or approval of Holders of a specified percentage of
Registrable Securities or Warrants is required thereunder, Registrable
Securities or Warrants held by the Company or by any of its affiliates (as such
term is defined in Rule 405 under the Securities Act) shall not be counted (in
either the numerator or the denominator) in determining whether such consent or
approval was given by the Holders of such required percentage.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
CLUB XXXXXX RESORTS, INC.
By:
------------------------
Name:
Title:
XXXXXXXXX & COMPANY, INC.
By:
------------------------
Name:
Title:
S-1
