Exhibit 10.2
REGISTRATION RIGHTS AGREEMENT
_____________________________
This Registration Rights Agreement (this "Agreement") is made and
entered into as of June 2, 2004, by and among J Net Enterprises, Inc., a
Nevada corporation (the "Company"), and the holders listed on the signature
pages hereto and their successors and assigns (individually, a "Holder" and
collectively, the "Holders").
RECITALS
WHEREAS, the Company, Epoch Investment Partners, Inc., a Delaware
corporation ("Epoch"), and Epoch Acquisition Corp., a Delaware corporation
and a wholly-owned subsidiary of the Company ("Merger Sub"), have entered
into an Agreement and Plan of Merger, dated as of June 2, 2004 (the "Merger
Agreement"), which provides for the merger of Merger Sub with and into
Epoch (the "Merger");
WHEREAS, in connection with the Merger, each Holder is to receive
shares of common stock, par value $0.01 per share, of the Company (the
"Common Stock"), as further described in the Merger Agreement;
WHEREAS, the Company intends to issue the Common Stock to the Holders
in the Merger without registration under the Securities Act of 1933, as
amended (the "Securities Act"), in reliance upon the exemptions provided by
Section 4(2) of the Securities Act and applicable state securities laws;
and
WHEREAS, it is a condition precedent to the consummation of the Merger
that the Company provide the Holders with the registration rights set forth
herein.
NOW, THEREFORE, intending to be legally bound and for good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
1. Certain Definitions. As used in this Agreement, the following
capitalized terms shall have the following meanings:
"Closing Date" shall mean the date upon which the Merger is
consummated.
"NASD" shall mean the National Association of Securities Dealers, Inc.
"Nasdaq" shall mean the Nasdaq Stock Market Inc.
"Prospectus" shall mean the prospectus included in a Registration
Statement, including any preliminary prospectus, each as amended or
supplemented by any prospectus supplement relating to the terms of the
offering of any portion of the Registrable Shares covered by such
Registration Statement and by all other amendments and supplements to any
such prospectus, and in each case including all material incorporated by
reference therein.
"Registrable Shares" shall mean the Shares, excluding (i) Shares for
which a Registration Statement relating to the sale thereof shall have
become effective under the Securities Act and which have been disposed of
under such Registration Statement, (ii) Shares sold pursuant to Rule 144
under the Securities Act and (iii) Shares eligible for sale pursuant to
Rule 144(k) under the Securities Act.
"Registration Statement" shall mean any registration statement of the
Company on an appropriate form filed under the Securities Act with the SEC
for the offer and sale of any Registrable Shares, together with all
amendments and supplements to such registration statement, including any
pre- and post-effective amendments, in each case including the Prospectus
contained therein, all exhibits thereto and all materials incorporated by
reference therein.
"SEC" shall mean the Securities and Exchange Commission.
"Shares" shall mean the shares of Common Stock issued to any Holder in
connection with the Merger, as appropriately adjusted on account of any
stock dividend or stock split or in connection with a combination of
shares, recapitalization, merger, consolidation or other reorganization.
2. Registration.
(a) Demand Registrations. At any time after December 2, 2004,
each of Xxxxxxx X. Xxxxxx and Xxxxxxxx Epoch LLC (collectively, the "Lead
Holders") may each make up to two (2) written requests (provided in each
case such Lead Holder has not registered Registrable Shares pursuant to
this Section 2 within 120 days prior to such request) to the Company for
registration with the SEC under and in accordance with the provisions of
the Securities Act of the Registrable Shares (a "Demand Registration").
Within ten (10) days after receipt of such request, the Company shall give
written notice of such requested registration to all other Holders of
Registrable Shares and will include in such registration all Registrable
Shares with respect to which the Company has received written requests for
inclusion within thirty (30) days after the Company gives such notice.
Unless expressly agreed to by the participating Lead Holder, no securities
of the Company or of any other person other than Registrable Shares shall
be included in a Demand Registration except pursuant to the exercise of any
piggyback registration rights granted on or prior to the date hereof.
Except as otherwise provided herein, a registration will not count as a
Demand Registration until it has become effective and the Holders of the
Registrable Shares included in such registration are legally permitted to
sell all of their Registrable Shares that are requested to be so included
unless the participating Lead Holder fails to take such actions as are
required on his or its part to cause the registration to become effective,
in which case such registration shall count as a Demand Registration.
(b)"Piggy-Back" Registrations. If at any time after December 2,
2004, the Company shall file with the SEC a Registration Statement relating
to an offering for its own account or the account of others under the
Securities Act of any of its equity securities (other than on Form S-4 or
Form S-8 or their then equivalents relating to equity securities to be
issued solely in connection with an acquisition of any entity or business
or equity securities issuable in connection with stock option or other
employee benefit plans), then the Company shall send to each Holder who has
a right to have Registrable Shares covered by a Registration Statement
pursuant to this Agreement written notice of such determination and, if
within fifteen (15) days after the date of such notice, such Holder shall
so request in writing, the Company shall include in such Registration
Statement all or any part of the Registrable Shares such Holder requests to
be registered, except that if, in connection with any underwritten public
offering for the account of the Company the managing underwriter(s) thereof
shall impose a limitation on the number of shares of Common Stock which may
be included in the Registration Statement because, in such underwriter(s)'
judgment, marketing or other factors dictate such limitation is necessary
to facilitate public distribution, then the Company shall be obligated to
include in such Registration Statement only such limited portion of the
Registrable Shares with respect to which such Holder has requested
inclusion hereunder as the underwriter shall permit. Any exclusion of
Registrable Shares shall be made pro rata among Holders seeking to include
Registrable Shares, in proportion to the number of Registrable Shares
sought to be included by such Holders; provided, however, that the Company
shall not exclude any Registrable Shares unless the Company has first
excluded all outstanding securities, the holders of which are not entitled
to inclusion of such securities in such Registration Statement or are not
entitled to pro rata inclusion with the Registrable Shares; and provided,
further, however, that, after giving effect to the immediately preceding
proviso, any exclusion of Registrable Shares shall be made pro rata with
holders of other securities having the right to include such securities in
the Registration Statement. If an offering in connection with which a
Holder is entitled to registration under this Section 2 is an underwritten
offering, then each Holder whose Registrable Shares are included in such
Registration Statement shall, unless otherwise agreed by the Company, offer
and sell such Registrable Shares in an underwritten offering using the same
underwriter or underwriters and, subject to the provisions of this
Agreement, on the same terms and conditions as other shares of Common Stock
included in such underwritten offering.
(c) Registration Procedures. In connection with the foregoing
registration, the Company will as expeditiously as possible and at its
expense:
(i) cause the Registration Statement to become or be declared
effective as soon as practicable after such filing and to remain
effective until the earlier of two years or until all Registrable
Shares covered thereby have been sold;
(ii) prepare and file with the SEC such amendments and
supplements to such Registration Statement and the prospectus used in
connection therewith as may be necessary to keep such Registration
Statement effective, and otherwise as may be necessary to comply with
the provisions of the Securities Act with respect to the disposition
of all Registrable Shares covered by such Registration Statement in
accordance with the intended methods of disposition by the holders of
the Registrable Shares set forth in such Registration Statement;
(iii) furnish to a single designated representative of all of
the holders of Registrable Shares (the "Representative") and the
underwriters, if any, of the Registrable Shares such number of copies
of such Registration Statement, each amendment and supplement thereto,
the prospectus included in such Registration Statement (including each
preliminary prospectus) and such other documents as such
Representative or underwriters may reasonably request in order to
facilitate the disposition of the Registrable Shares of the holders or
the sale of such Registrable Shares by such underwriters;
(iv) cause all Registrable Shares to be listed on each
securities exchange on which similar securities issued by the Company
are then listed;
(v) provide a transfer agent and registrar for all Registrable
Shares;
(vi) notify the Representative, promptly after it shall receive
notice thereof, of the time when such Registration Statement has
become effective or a supplement to any prospectus forming a part of
such Registration Statement has been filed;
(vii) notify the Representative of any request by the SEC for
the amending or supplementing of such Registration Statement or
prospectus or for additional information;
(viii) prepare and promptly file with the SEC and immediately
notify the Representative of the filing of such amendment or
supplement to such Registration Statement or prospectus as may be
necessary to correct any statements or omissions if, at the time when
a prospectus relating to such securities is required to be delivered
under the Securities Act, any event shall have occurred as the result
of which any such prospectus or any other prospectus as then in effect
would include 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 in which they were made, not misleading;
and
(viii) prior to the filing of any Registration Statement or
prospectus or any amendment or supplement to such Registration
Statement or prospectus, furnish a copy thereof to a designated
counsel for the Representative and refrain from filing any such
Registration Statement, prospectus, amendment or supplement to which
such counsel to the Representative shall have reasonably objected in a
timely manner on the grounds that such amendment or supplement does
not comply in all material respects with the requirements of the
Securities Act or the rules and regulations thereunder, unless, in the
case of an amendment or supplement, in the opinion of counsel for the
Company the filing of such amendment or supplement is reasonably
necessary to protect the Company from any liabilities under any
applicable federal or state law and such filing will not violate
applicable laws.
3. State Securities Laws. Subject to the conditions set forth in
this Agreement, the Company shall, in connection with the filing of any
Registration Statement hereunder, file such documents as may be necessary
to register or qualify the Registrable Shares under the securities or blue
sky laws of such states as any Holder may reasonably request, and the
Company shall use reasonable efforts to cause such filings to become
effective; provided, however, that the Company shall not be obligated to
qualify as a foreign corporation to do business under the laws of any such
state in which it is not then qualified or to file any general consent to
service of process in any such state. Once effective, the Company shall
use reasonable efforts to keep such filings effective until the date on
which such Registration Statement ceases to be effective. The Company
shall notify counsel of the Holders of the receipt by the Company of any
notification with respect to the suspension of the qualification of the
Registrable Shares for sale under the securities or blue sky laws of any
jurisdiction or the initiation of any threat of any proceeding for such
purpose.
4. Registration Expenses. The Company shall bear all expenses
incurred by the Company or the Holders (except for brokerage commissions
and transfer taxes incurred by any such Holder) in connection with any
registration of the Registrable Shares pursuant to this Agreement,
including, without limitation: (a) all SEC and NASD registration and filing
fees; (b) all fees and expenses incurred in connection with compliance with
state securities or blue sky laws; (c) the fees and expenses incurred by
the Company in connection with the listing of the Common Stock (including
the Registrable Shares) on, and compliance with the rules of, a national
securities exchange or Nasdaq; (d) all expenses of any persons in
preparing, word processing, printing and distributing any Registration
Statement, Prospectus, certificates and other documents relating to the
performance of and compliance with this Agreement; and (e) the fees and
disbursements of counsel and the accountants of the Company.
5. Covenants of the Company. The Company hereby agrees, if and
whenever the Company is required by the provisions of this Agreement to
effect the registration of Registrable Shares under the Securities Act,
that it will:
(a) make available to each Holder, any underwriter participating in
any disposition pursuant to a Registration Statement, and any attorney,
accountant or other agent or representative retained by any such Holder or
underwriter (each an "Inspector"), all financial and other records,
pertinent corporate documents and properties of the Company, as shall be
reasonably necessary to enable them to exercise their due diligence
responsibility, and cause the Company's officers, directors, employees,
agents, accountants and auditors to supply all information reasonably
requested by any such Inspector in connection with such Registration
Statement;
(b) in connection with an underwritten offering, cause its counsel
to deliver an opinion to the underwriters in customary form and updates
thereof, its officers to execute and deliver all customary documents and
certificates and updates thereof requested by any underwriters, and its
independent public accountants to provide a comfort letter to the
underwriters in customary form and covering matters of the type customarily
covered in comfort letters in connection with primary underwritten
offerings and updates thereof;
(c) enter into any reasonable underwriting agreement required by
the proposed underwriter or underwriters for the Holders, if any, and take
all other actions as any Holder may reasonably request in order to
facilitate the disposition of the Registrable Shares pursuant to a
Registration Statement; and
(d) during the period when any Prospectus is required to be
delivered under the Securities Act, promptly file all documents required to
be filed with the SEC pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act").
6. Covenants of the Holders. Each Holder hereby agrees (i) to
cooperate with the Company and to furnish to the Company all such
information concerning its plan of distribution and its ownership interests
with respect to its Registrable Shares in connection with the preparation
of a Registration Statement and any filings with any state securities
commissions as the Company may reasonably request, and (ii) to deliver or
cause delivery of the Prospectus contained in such Registration Statement
to any purchaser of the Registrable Shares covered by such Registration
Statement from the Holder.
7. Indemnification.
(a) The Company hereby agrees to indemnify each Holder, each
underwriter (as defined in the Securities Act) and their respective
officers, directors, employees, agents, representatives and affiliates, and
each person or entity, if any, that controls such Holder or underwriter
within the meaning of the Securities Act (each an "Indemnitee"), against
any and all losses, claims, damages, actions, liabilities, costs and
expenses (including, without limitation, reasonable fees, expenses and
disbursements of attorneys), joint or several, arising out of or based
upon, (i) any violation by the Company of any rule or regulation
promulgated under the Securities Act applicable to the Company and relating
to any action or inaction required of the Company in connection with any
Registration Statement or Prospectus, (ii) any untrue or alleged untrue
statement of a material fact contained in any Registration Statement or any
Prospectus, or (iii) 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; provided, however, that the Company shall not be
liable to such Indemnitee or any other person to the extent that any such
loss, claim, damage, liability (or action or proceeding in respect
thereof), cost or expense arises out of or is based upon (A) an untrue
statement or alleged untrue statement of a material fact or an omission or
alleged omission to state a material fact made in such Registration
Statement or Prospectus in reliance upon and in conformity with written
information regarding such Indemnitee, its plan of distribution or its
ownership interests, which was furnished to the Company by or on behalf of
such Indemnitee expressly for use therein unless such statement or omission
was corrected in a writing delivered to the Company prior to the date of
the final Prospectus (as supplemented or amended, as the case may be), or
(B) the failure by such Indemnitee to deliver or cause to be delivered the
most current Prospectus furnished by the Company to such Indemnitee to any
purchaser of the Registrable Shares covered by such Registration Statement
through no fault of the Company.
(b) Each Holder hereby agrees, severally and not jointly, to
indemnify each other Holder (and the officers, directors, employees,
agents, representatives and affiliates of each such Holder), the Company,
its officers, directors, employees, agents, representatives and affiliates,
and each person or entity, if any, that controls the Company within the
meaning of the Securities Act, against any and all losses, claims, damages,
actions, liabilities, costs and expenses (including, without limitation,
reasonable fees, expenses and disbursements of attorneys), arising out of
or based upon (i) any untrue statement or alleged untrue statement of
material fact or an omission or alleged omission to state a material fact
made in such Registration Statement or Prospectus in reliance upon and in
conformity with written information regarding such Holder, its plan of
distribution or its ownership interests, which was furnished to the Company
by or on behalf of such Holder expressly for use therein unless such
statement or omission was corrected in a writing delivered to the Company
prior to the date of the final Prospectus (as supplemented or amended, as
the case may be), or (ii) the failure by such Holder to deliver or cause to
be delivered the most current Prospectus furnished by the Company to the
Holder to any purchaser of the Registrable Shares covered by such
Registration Statement through no fault of the Company.
(c) In the event the Company, any Holder or other person receives a
complaint, claim or other notice of any liability or action, giving rise to
a claim for indemnification under paragraph (a) or (b) above, the person
claiming indemnification under such paragraph shall promptly notify the
person against whom indemnification is sought of such complaint, claim,
notice or action, and the indemnifying party shall have the right to
investigate and defend any such loss, claim, damage, action or liability;
provided that the failure to promptly give notice shall not relieve the
indemnifying party from any liability except to the extent that it is
materially prejudiced by the failure or delay of the indemnified party in
giving such notice. If any such complaint, claim or other notice of any
liability or action is brought against any indemnified party and it
notifies the indemnifying party of its commencement, the indemnifying party
will be entitled to participate in and, to the extent that it elects by
delivering written notice to the indemnified party promptly after receiving
notice of the commencement of the action from the indemnified party,
jointly with any other indemnifying party similarly notified, to assume the
defense of the action, with counsel reasonably satisfactory to the
indemnified party, and after notice from the indemnifying party to the
indemnified party of its election to assume the defense, the indemnifying
party shall not be liable to the indemnified party for any legal or other
expenses except as provided below and except for the reasonable costs of
investigation subsequently incurred by the indemnified party in connection
with the defense. The indemnified party shall have the right to employ its
own counsel in any such action, but the fees, expenses and other charges of
such counsel shall be at the expense of the indemnified party unless (i)
the employment of counsel by the indemnified party has been authorized in
writing by the indemnifying party, (ii) the indemnified party has
reasonably concluded (based on advice of counsel) that there may be legal
defenses available to it or other indemnified parties different from or in
addition to those available to the indemnifying party or parties, (iii) a
conflict or potential conflict exists (based on advice of counsel to the
indemnified party) between the indemnified party and the indemnifying party
(in which case the indemnifying party shall not have the right to direct
the defense of such action on behalf of the indemnified party) or (iv) the
indemnifying party has not in fact employed counsel to assume the defense
of such action within a reasonable time after receiving notice of the
commencement of the action or has failed to employ counsel reasonably
satisfactory to such indemnified party, in each of which cases the
reasonable fees, disbursements and other charges of counsel will be at the
expense of the indemnifying party. The indemnifying party shall not,
unless there exists a conflict of interest among the indemnified parties,
in connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the reasonable fees, disbursements and other
charges of more than one separate firm admitted to practice in such
jurisdiction at any time for all such indemnified parties. All such fees,
disbursements and other charges shall be reimbursed by the indemnifying
party promptly as they are incurred. An indemnifying party shall not be
liable for any settlement of any action or claim effected without its
written consent (which consent will not be unreasonably withheld). No
indemnifying party shall, without the prior written consent of each
indemnified party, settle or compromise or consent to the entry of any
judgment in any pending or threatened claim, action or proceeding relating
to the matters contemplated by this Section 7 (whether or not any
indemnified party is a party thereto), unless such settlement, compromise
or consent (i) includes an unconditional release of each indemnified party
from all liability arising or that may arise out of such claim, action or
proceeding, (ii) does not include a statement as to or an admission of
fault, culpability or a failure to act by or on behalf of any indemnified
party and (iii) does not commit the indemnified party to take, or to
forbear to take, any action. If a settlement is reached with such consent
or if a final judgment is entered for the plaintiff, the indemnifying party
agrees to indemnify any indemnified party from and against any loss or
liability by reason of such settlement or judgment.
(d) The agreements contained in this Section 7 and Section 8 below
shall survive the sale of the Registrable Shares pursuant to a Registration
Statement and shall remain in full force and effect regardless of the
termination or cancellation of this Agreement or any investigation made by
or on behalf of any indemnified party.
8. Contribution. If the indemnification provided for in Section 7 is
unavailable to an indemnified party with respect to any losses, claims,
damages, actions, liabilities, costs or expenses referred to therein or is
insufficient to hold the indemnified party harmless as contemplated
therein, then the 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, actions,
liabilities, costs or expenses in such proportion as is appropriate to
reflect the relative fault of the Company, on the one hand, and the
Indemnitee, on the other hand, in connection with the statements or
omissions which resulted in such losses, claims, damages, actions,
liabilities, costs or expenses as well as any other relevant equitable
considerations. The relative fault of the Company, on the one hand, and of
the Indemnitee, on the other hand, shall be determined by reference to,
among other factors, whether the untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact
relates to information supplied by the Company or by the Indemnitee and the
parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission.
The Company and each of the Holders agrees that it would not be just
and equitable if contribution pursuant to this Section 8 were determined by
pro rata allocation or by any other method of allocation that does not take
account of the equitable considerations referred to in the immediately
preceding paragraph.
Notwithstanding the provisions of this Section 8, no Holder shall be
required to contribute any amount in excess of the amount by which the net
proceeds from the sale of Registrable Shares exceeds the amount of any
damages that the Holder has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission.
No indemnified party guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any indemnifying party who was not guilty of such
fraudulent misrepresentation.
9. Suspension of Registration Statement.
(a) The Company shall immediately notify counsel of the Holders of,
and confirm in writing, the issuance by the SEC of any stop order
suspending the effectiveness of a Registration Statement with respect to
such Holder's Registrable Shares or the initiation of any proceedings for
that purpose. The Company shall use its best efforts to obtain the
withdrawal of any order suspending the effectiveness of such Registration
Statement as soon as practicable.
(b) Notwithstanding anything to the contrary set forth in this
Agreement, the Company's obligation under this Agreement to cause a
Registration Statement and any filings with any state securities commission
to become effective or to amend or supplement a Registration Statement or
Prospectus included therein shall be suspended (i) in the event and during
such period as unforeseen circumstances exist that would require additional
disclosure of material information that would make it impractical or
unadvisable, in the determination of the Board of Directors of the Company,
to cause the Registration Statement or such filings to become effective or
to amend or supplement the Registration Statement or Prospectus included
therein, or (ii) the effectiveness of the Registration Statement or such
filings or an amendment of or supplement to the Registration Statement or
Prospectus included therein could, in the good faith determination of the
Board of Directors of the Company, interfere with a proposed financing,
acquisition or reorganization, the conduct or outcome of any litigation or
would require the disclosure of information that the Company has a bona
fide purpose for preserving as confidential (each, a "Suspension Event");
provided, however, that, unless otherwise required by applicable law, there
shall not be more than three (3) Suspension Events in any 12-month period;
and provided further that no Suspension Event shall exceed sixty (60) days.
The Company shall notify counsel to the Holders in writing of the existence
and, to the extent possible under applicable law, nature of any Suspension
Event.
(c) Each Holder agrees that, following the effectiveness of any
Registration Statement relating to the Registrable Shares of such Holder,
such Holder will not effect any sales of the Registrable Shares pursuant to
such Registration Statement or any filings with any state securities
commissions at any time after such Holder has received written notice from
the Company to suspend sales as a result of the occurrence or existence of
any Suspension Event or so that the Company may correct or update such
Registration Statement or filing in accordance with Section 2(f). Such
Holder may recommence effecting sales of the Registrable Shares pursuant to
such Registration Statement or filing upon further notice to such effect
from the Company which notice shall be given by the Company promptly after
the conclusion of any such Suspension Event.
10. Market Stand-Off. Each Holder whose Registrable Shares are
covered by a Registration Statement filed pursuant to Section 2 agrees, if
requested by the Company in the case of a Company-initiated nonunderwritten
offering, or if requested by the managing underwriter or underwriters in a
Company-initiated underwritten offering, not to effect any public sale or
distribution of any of the securities of the Company, including a sale
pursuant to Rule 144 under the Securities Act, (except as part of such
Company-initiated offering) during the 45-day period beginning on the date
of commencement of such Company-initiated offering (the "Holdback Period"),
to the extent timely notified in writing by the Company or the managing
underwriter or underwriters.
11. Compliance with Rule 144. The Company will use its best efforts
to file with the SEC such information as is required under the Exchange
Act, for so long as there are Holders of Registrable Shares and to take all
action as may be required as a condition to the availability of Rule 144
under the Securities Act. The Company shall use its best efforts to
facilitate and expedite transfers of Registrable Shares pursuant to Rule
144 under the Securities Act, which efforts shall include timely notice to
its transfer agent to expedite such transfers of Registrable Shares.
12. Rule 144A Information. The Company shall, upon written request
of any Holder, provide to such Holder in connection with a transfer of
Registrable Shares, such financial and other information as is available to
the Company or can be obtained by the Company without material expense and
as such Holder may reasonably determine is required to permit such transfer
to comply with the requirements of Rule 144A under the Securities Act.
13. Transferability. The registration rights set forth in this
Agreement are transferable to each transferee of Registrable Shares. Each
subsequent Holder of Registrable Shares must consent in writing to be bound
by the terms and conditions of this Agreement in order to acquire the
rights granted pursuant to this Agreement.
14. Representations and Warranties of the Company. The Company
hereby represents and warrants to the Holders as follows: (a) the Company
has full corporate power and authority to enter into this Agreement and
perform its obligations hereunder; (b) this Agreement has been duly
authorized, executed and delivered by the Company; and (c) the execution,
delivery and performance of this Agreement by the Company does not and the
performance is not expected to violate (i) the Company's charter or by-
laws, (ii) any laws, rules or regulations of the United States or any state
or other jurisdiction applicable to the Company or its assets or
properties, or (iii) except for the approvals, consents, waivers and
filings specifically described herein, require the Company to obtain any
approval, consent or waiver of, or to make any filing with, any person that
has not been obtained or made.
15. Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may be amended, modified or
supplemented, and waivers or consents to departures from the provisions
hereof, may be given at any time by mutual agreement in writing of the
Company and the Holders of at least a majority of the Registrable Shares
then outstanding. Notwithstanding the foregoing, any Holder may enter into
any written amendment, modification or supplement to this Agreement, and
waive or consent in writing to any departure from the provisions hereof, at
any time, whether or not any other Holder is a party to such amendment,
modification, supplement, waiver or consent, but any such action will be
effective only as against the parties to that written document.
16. Miscellaneous.
(a) Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and sufficient if delivered in
person, by cable, telegram or facsimile (with confirmation of receipt), or
sent by mail (registered or certified mail, postage prepaid, return receipt
requested) or overnight courier (prepaid) to the respective parties as
follows:
If to Parent: J Net Enterprises, Inc.
0000 Xxxx Xxxxx Xxxxx, #000
Xxxxxx, Xxxxxxx 00000
Attn: Xxxxx X. Xxxxxxx
Telecopy No.: (000) 000-0000
With a copy to: Xxxxxxxxx Xxxxxxx, LLP
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx X. Annex, Esq.
Telecopy No.: (000) 000-0000
If to the Holders: c/o Epoch Investment Partners, Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Secretary
With a copy to: Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
0 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attn: Xxxxxxx X. G'Oench, III
Telecopy No.: (000) 000-0000
or to such other address as any party may have furnished to the other in
writing in accordance herewith, except that notices of change of address
shall be effective upon receipt.
(b) Successors and Assigns. This Agreement shall be binding upon
and shall inure to the benefit of the parties hereto and their respective
successors and assigns, including, without limitation, subsequent Holders
of Registrable Shares. The Company may not assign its rights or
obligations hereunder without the prior written consent of at least a
majority of the Registrable Shares then outstanding, other than by
operation of law pursuant to a merger or consolidation to which the Company
is a party; provided that such successor to the Company by merger or
consolidation specifically agrees to be bound by the terms hereof.
(c) Counterparts. This Agreement may be executed in several
counterparts each of which shall be an original and all of which together
shall constitute one and the same agreement.
(d) Governing Law. This Agreement shall be governed by, and
construed in accordance with, the internal laws of the State of New York
without regard to its rules of conflict of laws.
(e) Severability. If any term or other provision of this Agreement
is determined to be invalid, illegal or incapable of being enforced by any
rule of law or public policy, all other conditions and provisions of this
Agreement shall nevertheless remain in full force and effect so long as the
economic or legal substance of the transactions contemplated hereby is not
affected in any manner materially adverse to any party. Upon such
determination that any term or other provision is invalid, illegal or
incapable of being enforced, the parties hereto shall negotiate in good
faith to modify this Agreement so as to effect the original intent of the
parties as closely as possible to the fullest extent permitted by
applicable law in an acceptable manner to the end that the transactions
contemplated hereby are fulfilled to the extent possible.
(f) Entire Agreement. This Agreement contains the entire
understanding of the parties in respect of the subject matter hereof, and
supersedes all prior negotiations and understandings between the parties
with respect to such subject matter.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed as of the date first above written by their respective officers
thereunto duly authorized.
COMPANY:
J NET ENTERPRISES, INC.
By: /s/ Xxxxx X. Xxxxxxx
____________________
Name: Xxxxx X. Xxxxxxx
Title: Chief Executive Officer
HOLDERS:
/s/ Xxxxxxx X. Xxxxxx
________________________________
Xxxxxxx X. Xxxxxx
/s/ Xxxxxxx X. Xxxxxxx
________________________________
Xxxxxxx X. Xxxxxxx
/s/ Xxxxx Xxxxx
________________________________
Xxxxx Xxxxx
BERENSON EPOCH LLC
By: /s/ Berenson & Company, Inc.,
its managing member
_____________________________
Name: Xxxxxx Xxxxx
Title: Secretary and Treasurer
J XXXXXX/XXXXXXX X XXXXX TRUST U/A
10/06/1994
By: /s/ J. Xxxxxx Xxxxx
_____________________________
Name: J. Xxxxxx Xxxxx
Title: Trustee
