________________________________________
Warrant Registration Rights Agreement
Dated As of February 26, 1998
among
Aladdin Gaming Enterprises, Inc.,
and
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated,
Credit Suisse First Boston Corporation,
CIBC Xxxxxxxxxxx Corp.
and
Scotia Capital Markets (USA) Inc.
________________________________________
WARRANT REGISTRATION RIGHTS AGREEMENT
This Warrant Registration Rights Agreement (the "Agreement")
is made and entered into this 26th day of February, 1998, among Aladdin Gaming
Enterprises, Inc., a Nevada corporation ("Enterprises"), and Xxxxxxx Lynch,
Pierce, Xxxxxx & Xxxxx Incorporated, Credit Suisse First Boston Corporation,
CIBC Xxxxxxxxxxx Corp. and Scotia Capital Markets (USA) Inc. (collectively, the
"Initial Purchasers").
This Agreement is made pursuant to the Purchase Agreement
dated February 18, 1998, among Aladdin Gaming Holdings, LLC ("Holdings"), a
Nevada limited-liability company, Aladdin Capital Corp., a Nevada corporation,
Enterprises, Aladdin Holdings, LLC, a Delaware limited liability company, the
Trust Under Article Sixth u/w/o Xxxxxxx Xxxxxx, London Clubs International, plc,
a United Kingdom public limited company, and the Initial Purchasers (the
"Purchase Agreement"), which provides for, among other things, the sale by
Enterprises to the Initial Purchasers of 2,215,000 Warrants (the "Warrants") to
purchase 2,215,000 shares of Class B non-voting Common Stock, no par value (the
"Common Stock"), of Enterprises. The Warrants have been issued pursuant to the
Warrant Agreement dated as of February 26, 1998, among Enterprises, Holdings and
State Street Bank and Trust Company, as warrant agent. In order to induce the
Initial Purchasers to enter into the Purchase Agreement, Enterprises has agreed
to provide to the Initial Purchasers and their direct and indirect transferees
the registration rights set forth in this Agreement. The execution of this
Agreement is a condition to the closing under the Purchase Agreement.
In consideration of the foregoing, the parties hereto agree as follows:
1. Definitions.
As used in this Agreement, the following capitalized defined
terms shall have the following meanings:
"Agreement" shall have the meaning set forth in the preamble.
"Black Out Period" shall have the meaning set forth in Section
2.2(b).
"Commission" shall mean the Securities and Exchange Commission
or any successor agency or government body performing the functions
currently performed by the United States Securities and Exchange
Commission.
"Common Stock" shall have the meaning set forth in the
preamble.
"Company" shall mean Aladdin Gaming, LLC, a Nevada
limited-liability company.
"Depositary" shall mean The Depository Trust Company, or any
other depositary appointed by Enterprises, provided, however, that such
depositary must have an address in the Borough of Manhattan, in the
City of New York.
"Enterprises" shall have the meaning set forth in the preamble.
"Exchange Act" shall mean the Securities Exchange Act of 19
34, as amended.
"Holder" shall mean a Person who owns Transfer Restricted
Securities or has the right to acquire such Transfer Restricted
Securities, whether or not such acquisition has actually been effected
and disregarding any legal restrictions upon the exercise of such
right.
"Holdings" shall have the meaning set forth in the preamble.
"Initial Purchasers" shall have the meaning set forth in the
preamble.
"IPO Entity" shall mean Enterprises, Holdings or another
entity which controls the Company.
"Issue Date" shall mean February 26, 1998.
"Majority Holders" shall mean the Holders of a majority of the
outstanding Transfer Restricted Securities; provided that whenever the
consent or approval of Holders of a specified percentage of Transfer
Restricted Securities is required hereunder, Transfer Restricted
Securities held by Enterprises or any Affiliate (as defined in the
Warrant Agreement) of Enterprises shall be disregarded in determining
whether such consent or approval was given by the Holders of such
required percentage amount.
"Participating Broker-Dealer" shall mean any of Xxxxxxx Lynch,
Pierce, Xxxxxx & Xxxxx Incorporated, Credit Suisse First Boston
Corporation, CIBC Xxxxxxxxxxx Corp. and Scotia Capital Markets (USA)
Inc. and any other broker-dealer which makes a market in the Securities
or the Warrant Shares.
"Person" shall mean an individual, partnership (general or
limited), corporation, limited liability company, trust or
unincorporated organization, or a governmental agency or body or
political subdivision thereof.
"Prospectus" shall mean the prospectus included in the Warrant
Shelf Registration Statement, including any preliminary prospectus, and
any such prospectus as amended or supplemented by any prospectus
supplement, including any such prospectus supplement with respect to
the terms of the offering of any portion of the Transfer Restricted
Securities covered by the Warrant Shelf Registration Statement, and by
all other amendments and supplements to a prospectus, including
post-effective amendments, and in each case including all material
incorporated by reference therein.
"Purchase Agreement" shall have the meaning set forth in the
preamble.
"Qualified Public Offering" shall have the meaning set forth
in Section 2.1(c).
2
"Registration Expenses" shall mean any and all expenses
incident to performance of or compliance by Enterprises with this
Agreement, including without limitation: (i) all Commission, stock
exchange or National Association of Securities Dealers, Inc. (the
"NASD") registration and filing fees, including, if applicable, the
fees and expenses of any "qualified independent underwriter" (and its
counsel) that is required to be retained by any holder of Transfer
Restricted Securities in accordance with the rules and regulations of
the NASD, (ii) all fees and expenses incurred in connection with
compliance with state securities or blue sky laws and compliance with
the rules of the NASD (including reasonable fees and disbursements of
counsel for any underwriters or Holders in connection with blue sky
qualification of any of the Transfer Restricted Securities and any
filings with the NASD), (iii) all expenses of any Persons in preparing
or assisting in preparing, word processing, printing and distributing
the Warrant Shelf Registration Statement, any Prospectus, any
amendments or supplements thereto, any underwriting agreements,
securities sales agreements and other documents relating to the
performance of and compliance with this Agreement, except for such
expenses incurred by Holders, underwriters or their respective counsel,
(iv) all fees and expenses incurred in connection with the listing if
any, of any of the Transfer Restricted Securities on any securities
exchange or exchanges, (v) the fees and disbursements of counsel for
Enterprises and of the independent public accountants of Enterprises,
including the expenses of any special audits or "cold comfort" letters
required by or incident to such performance and compliance, (vi) the
fees and expenses of the Warrant Agent, but excluding, except as
otherwise expressly provided in clauses (i) through (vi) above, (a) the
fees and expenses of the Initial Purchasers in connection with the
Warrant Shelf Registration, including fees and expenses of counsel of
the Initial Purchasers in connection therewith and (b) underwriting
discounts and commissions and transfer taxes, if any, relating to the
sale or disposition of Transfer Restricted Securities by a Holder.
"Rule 144" shall mean Rule 144 promulgated under the
Securities Act, as such Rule may be amended from time to time, or any
similar rule (other than Rule 144A) or regulation hereafter adopted by
the Commission providing for offers and sales of securities made in
compliance therewith resulting in offers and sales by subsequent
holders that are not affiliates of an issuer of such securities being
free of the registration and prospectus delivery requirements of the
Securities Act.
"Rule 144A" shall mean Rule 144A promulgated under the
Securities Act, as such Rule may be amended from time to time, or any
similar rule (other than Rule 144) or regulation hereafter adopted by
the Commission.
"Securities" shall mean the Warrants and the Warrant Shares,
collectively.
"Securities Act" shall mean the Securities Act of 1933, as
amended.
"Transfer Restricted Securities" shall mean the Warrants,
Warrant Shares, any securities issued to a holder of Warrants or
Warrant Shares pursuant to the provisions of Section 11(m) of the
Warrant Agreement (the "New Securities") and any other securities
3
issued or issuable with respect to the Warrants, Warrant Shares or New
Securities 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 shall cease to be a
Transfer Restricted Security when it, as applicable, (i) has been
effectively registered under the Securities Act and disposed of in
accordance with the Warrant Shelf Registration Statement, (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.
"Warrant Agent" shall mean the warrant agent with respect to
the Securities under the Warrant Agreement.
"Warrant Agreement" shall mean the Warrant Agreement relating
to the Securities dated as of February 26, 1998, between Enterprises,
Holdings and State Street Bank and Trust Company, as warrant agent, as
the same may be amended, supplemented, waived or otherwise modified
from time to time in accordance with the terms thereof.
"Warrant Expiration Date" shall mean March 1, 2010.
"Warrant Shares" shall mean the shares of Common Stock
delivered or deliverable upon exercise of the Warrants.
"Warrant Shelf Registration" shall mean a registration
effected pursuant to Section 2.1 hereof.
"Warrant Shelf Registration Statement" shall mean a "shelf"
registration statement of Enterprises pursuant to the provisions of
Section 2.1 of this Agreement which covers all of the Transfer
Restricted Securities on an appropriate form under Rule 415 under the
Securities Act, or any similar rule that may be adopted by the
Commission, and all amendments and supplements to such registration
statement, including post-effective amendments, in each case including
the Prospectus contained therein, all exhibits thereto and all material
incorporated by reference therein.
"Warrants" shall have the meaning set forth in the preamble.
2. Registration Under the Securities Act.
2.1. Warrant Shelf Registration. Enterprises shall, at its
cost:
(a) use its reasonable best efforts to file no later
than 45 days after the Issue Date with the Commission the Warrant Shelf
Registration Statement covering (i) the offer and sale of the Warrants and
the Warrant Shares and (ii) the issuance of Warrant Shares upon the exercise
of Warrants that were sold pursuant to the Warrant Shelf Registration
Statement;
4
(b) use its reasonable best efforts to cause such
Warrant Shelf Registration Statement to be declared effective by the
Commission on or prior to 150 days after the Issue Date; and
(c) subject to Section 2.2 hereof, use its reasonable
best efforts to continuously maintain the effectiveness of the Warrant Shelf
Registration Statement under the Securities Act in order to permit the
Prospectus included therein to be lawfully delivered by Enterprises to the
Holders offering and selling Warrants or Warrant Shares or exercising the
Warrants until the earlier of (i) the date on which (x) there are no Warrants
outstanding and (y) all Warrant Shares have been sold pursuant to the Warrant
Shelf Registration Statement or pursuant to Rule 144 under the Securities Act
and (ii) the consummation of a public offering of common stock registered
under the Securities Act and resulting in proceeds of at least $50.0 million
(a "Qualified Public Offering") of an IPO Entity other than Enterprises.
2.2 Limitations, Conditions and Qualifications to Obligations Under
Registration Covenants
The obligations of Enterprises set forth in Section 2.1 hereof are
subject to each of the following limitations, conditions and qualifications:
(a) Subject to the next proviso of this paragraph,
Enterprises shall be entitled to postpone, for a reasonable period of time,
the filing or effectiveness of, or suspend the rights of any Holders to,
directly or indirectly, sell, offer to sell, pledge, contract to sell, sell
any option or contract to purchase any option or contract to sell or grant
any option, right or warrant for the sale of the Warrants or the Warrant
Shares pursuant to, the Warrant Shelf Registration Statement otherwise
required to be prepared, filed and made and kept effective pursuant to
Section 2.1 of this Agreement or otherwise; provided, however, that the
duration of such postponement or suspension may not exceed 180 days after the
date of the good faith determination of the Board of Directors of Enterprises
that the filing or effectiveness of, or sales pursuant to, the Warrant Shelf
Registration Statement would materially impede, delay or interfere with or
affect the marketing of any material financing, offer or sale of securities,
acquisition, corporate reorganization or other significant transaction
involving Enterprises which material financing, offer or sale of securities,
acquisition, corporate reorganization or other significant transaction is
under active consideration at the time of such postponement or suspension;
provided, however, that Enterprises shall not be entitled to such
postponement or suspension more than twice in any 12-month period;
(b) Enterprises shall not be required to amend or
supplement the Warrant Shelf Registration Statement filed pursuant to Section
2.1 of this Agreement, any related prospectus or any document incorporated
therein by reference, for a period (a "Black Out Period") not to exceed, for
so long as this Agreement is in effect, an aggregate of 120 days in any
calendar year, in the event that (i) the Board of Directors of Enterprises
determines in good faith that sales pursuant to the Warrant Shelf
Registration Statement would materially impede, delay or interfere with or
affect the marketing of any material financing, offer or sale of securities,
acquisition, corporate reorganization or other significant transaction
involving Enterprises which
5
material financing, offer or sale of securities, acquisition, corporate
reorganization or other significant transaction is under active consideration at
the time of such postponement or suspension, (ii) an event occurs and is
continuing as a result of which the Warrant Shelf Registration Statement, any
related prospectus or any document incorporated therein by reference as then
amended or supplemented would, in the good faith judgment of the Board of
Directors of Enterprises, contain an untrue statement of a material fact or omit
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 or
(iii) the disclosure otherwise relates to a material business transaction which
has not yet been publicly disclosed; provided that no Black Out Period may be in
effect during the 60 days prior to the Warrant Expiration Date; and
(c) Enterprises' obligations shall be subject to the
obligations of the Holders, which the Holders acknowledge, to furnish all
information and materials required of such Holders and to take any and all
actions required of such Holders as may be required under applicable federal
and state securities laws and regulations to permit Enterprises to comply
with all applicable requirements of the Commission and to obtain any
acceleration of the effective date of the Warrant Shelf Registration
Statement.
2.3. Rule 144 and Rule 144A
Enterprises covenants that it will file the reports required to be
filed by it under the Securities Act and the Exchange Act and the rules and
regulations adopted by the Commission thereunder in a timely manner and, if at
any time Enterprises is not required to file such reports, it will, upon the
request of any Holder or beneficial owner of Transfer Restricted Securities,
make available such information necessary to permit sales pursuant to Rule 144A
under the Securities Act. Enterprises further covenants that it will take such
further reasonable action as any Holder of Transfer Restricted Securities may
reasonably request, to the extent required from time to time to enable such
Holder to sell Transfer Restricted Securities without registration under the
Securities Act within the limitation of the exemptions provided by (a) Rule
144(k) and Rule 144A under the Securities Act, as such Rules may be amended from
time to time, or (b) any similar rule or regulation hereafter adopted by the
Commission (it being expressly understood that the foregoing shall not create
any obligation on the part of Enterprises to file periodic reports or other
reports under the Exchange Act at any time that it is not then required to file
such reports pursuant to the Exchange Act). Upon the written request of any
Holder of Transfer Restricted Securities, Enterprises will in a timely manner
deliver to such Holder a written statement as to whether it has complied with
such information requirements.
3. "Market Stand-Off" Agreement
(a) Each Holder hereby agrees that it shall not, to the extent
requested by a managing underwriter of common stock or common equivalents of
Enterprises, sell or otherwise transfer or dispose of any Transfer Restricted
Securities of Enterprises then owned by such Holder (other than to donees or
partners of the Holder who agree to be similarly bound) for up to 180 days
following the date of the final Prospectus in connection with the Warrant
Shelf Registration Statement filed under the Securities Act; provided,
however, that such agreement (i)
6
shall not be applicable to Transfer Restricted Securities sold pursuant to such
registration as part of that offering and (ii) shall only be applicable if the
managing underwriters request such agreement from each Holder.
(b) In order to enforce the foregoing covenant, Enterprises shall
have the right to impose stop transfer instructions with respect to the
Transfer Restricted Securities until the end of such period. The provisions
of this Section 3 shall be binding upon any transferee of any Transfer
Restricted Securities.
4. Registration Procedures. In connection with the obligations of
Enterprises with respect to the Warrant Shelf Registration Statement pursuant to
Sections 2.1 hereof, Enterprises shall, except as otherwise provided:
(a) Use its reasonable best efforts to prepare and file with the
Commission no later than 45 days after the Issue Date the Warrant Shelf
Registration Statement as provided herein, on the appropriate form under the
Securities Act, which form (i) shall be selected by Enterprises, (ii) shall
be available for the sale of the Transfer Restricted Securities by the
selling Holders thereof, (iii) shall comply as to form in all material
respects with the requirements of the applicable form and include or
incorporate by reference all financial statements required by the Commission
to be filed therewith or incorporated by reference therein and (iv) shall
comply in all material respects with the requirements of Regulation S-T under
the Securities Act;
(b) Use its reasonable best efforts to (i) prepare and file with
the Commission such amendments and post-effective amendments to the Warrant
Shelf Registration Statement as may be necessary to keep the Warrant Shelf
Registration Statement continuously effective for the time period prescribed
hereby; and (ii) cause the related Prospectus to be supplemented by any
required prospectus supplement, and as so supplemented to be filed pursuant
to Rule 424 (or any similar provisions then in force) promulgated under the
Securities Act; and (iii) materially comply with the provisions of the
Securities Act, the Exchange Act and the rules and regulations of the
Commission promulgated thereunder applicable to it with respect to the
Warrant Shelf Registration Statement as so amended or in such prospectus as
so supplemented;
(c) Upon receiving notice of any of the following events, notify
promptly each Holder of Transfer Restricted Securities and the managing
underwriter or underwriters, if any, and, if requested by such Holder,
managing underwriter or underwriters, confirm such notice in writing promptly
(i) when the Warrant Shelf Registration Statement or any post-effective
amendment has become effective (including in such notice a written statement
that any Holder may, upon request, obtain, without charge, one conformed copy
of the Warrant Shelf Registration Statement or post-effective amendment
including financial statements and schedules and exhibits), (ii) of any
request by the Commission or any state securities authority for
post-effective amendments and supplements to the Warrant Shelf Registration
Statement and Prospectus or for additional information after the Warrant
Shelf Registration Statement has become effective, (iii) of the issuance by
the Commission or any state securities authority of any
7
stop order suspending the effectiveness of the Warrant Shelf Registration
Statement or the initiation of any proceedings for that purpose, (iv) if at any
time when a prospectus is required by the Securities Act to be delivered in
connection with sales of the Transfer Restricted Securities, the representations
and warranties of Enterprises contained in any underwriting agreement,
securities sales agreement or other similar agreement, if any, relating to the
offering cease to be true and correct in all material respects, (v) of the
happening of any event or the discovery of any facts during the period the
Warrant Shelf Registration Statement is effective which makes any statement made
in such Warrant Shelf Registration Statement or the related Prospectus untrue in
any material respect or which requires the making of any changes in such Warrant
Shelf Registration Statement or Prospectus in order to make the statements
therein not misleading in any material respect, (vi) of the receipt by
Enterprises of any notification with respect to the suspension of the
qualification of the Transfer Restricted Securities for sale in any jurisdiction
or the initiation of any proceeding for such purpose and (vii) of any
determination by Enterprises that a post-effective amendment to such Warrant
Shelf Registration Statement would be appropriate;
(d) Make commercially reasonable efforts to obtain the withdrawal
of any order suspending the effectiveness of the Warrant Shelf Registration
Statement as soon as reasonably practicable;
(e) A reasonable time prior to filing the Warrant Shelf
Registration Statement, any Prospectus forming a part thereof, any amendment
to such Warrant Shelf Registration Statement or amendment or supplement to
such Prospectus, make such changes in any such document prior to the filing
thereof as the Initial Purchasers, the counsel to the Holders or the
underwriter or underwriters reasonably request if Enterprises, acting
reasonably and in good faith, deems such changes to be reasonable, and not
file any such document in a form to which the Majority Holders, the Initial
Purchasers on behalf of the Holders of Transfer Restricted Securities,
counsel for the Holders of Transfer Restricted Securities or any underwriter
shall not have previously been advised and furnished a copy of or to which
the Majority Holders, the Initial Purchasers on behalf of the Holders of
Transfer Restricted Securities, counsel to the Holders of Transfer Restricted
Securities or any underwriter shall reasonably object if Enterprises, acting
reasonably and in good faith, deems such objection to be reasonable, and make
the representatives of Enterprises available for discussion of such document
as shall be reasonably requested by the Holders of Transfer Restricted
Securities, the Initial Purchasers on behalf of such Holders, counsel for the
Holders of Transfer Restricted Securities or any underwriter;
(f) Furnish to each Holder of Transfer Restricted Securities who
so requests and to counsel for the Holders of Transfer Restricted Securities
and each managing underwriter, if any, without charge, upon written request,
one conformed copy of the Warrant Shelf Registration Statement and each
post-effective amendment thereto, including financial statements and
schedules, and, if requested, of all documents incorporated or deemed to be
incorporated therein by reference and all exhibits (including exhibits
incorporated by reference);
8
(g) Deliver to each Holder of Transfer Restricted Securities,
their counsel and each underwriter, if any, without charge, a reasonable
number of copies of each Prospectus (including each form of prospectus) and
each amendment or supplement thereto as such Persons may reasonably request;
and, subject to the last paragraph of this Section 4, Enterprises consents to
the use of such Prospectus and each amendment or supplement thereto by each
of the Holders of Transfer Restricted Securities and the underwriter or
underwriters or agents, if any, in connection with the offering and sale of
the Transfer Restricted Securities covered by such Prospectus and any
amendment or supplement thereto.
(h) Use its reasonable best efforts to register or qualify the
Transfer Restricted Securities under all applicable state securities or "blue
sky" laws of such jurisdictions within the United States as any Holder of
Transfer Restricted Securities covered by the Warrant Shelf Registration and,
each underwriter of an underwritten offering of Transfer Restricted
Securities shall reasonably request in writing a reasonable period of time
prior to the time the Warrant Shelf Registration Statement is declared
effective by the Commission, and do any and all other acts and things which
may be reasonably necessary or advisable to enable any such Holder or
underwriter to consummate the disposition in each such jurisdiction of such
Transfer Restricted Securities during the period the Warrant Shelf
Registration Statement is required to remain effective pursuant to Section
2.1 hereof; provided, however, that Enterprises shall not be required to (i)
qualify as a foreign corporation or as a dealer in securities in any
jurisdiction where they would not otherwise be required to qualify but for
this Section 4(h), or (ii) take any action which would subject them to
general service of process or taxation in any such jurisdiction where it is
not then so subject;
(i) Cooperate with the Holders of Transfer Restricted Securities
and the managing underwriter or underwriters, if any, to facilitate the
timely preparation and delivery of certificates representing Transfer
Restricted 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 Transfer
Restricted 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 three business days prior to any sale of Transfer
Restricted Securities in a firm commitment underwritten public offering;
(j) Pay all Registration Expenses in connection with the
registration requested pursuant to Section 2.1 hereof. Each Holder of
Transfer Restricted Securities shall pay all underwriting discounts and
commissions and transfer taxes, if any, relating to, and all fees and other
costs of counsel in connection with, the sale or disposition of such Holder's
Transfer Restricted Securities pursuant to the Warrant Shelf Registration
Statement;
(k) Upon the occurrence of any event contemplated by Section
4(c)(v) or 4(c)(vi) above, as promptly as practicable, use its reasonable
best efforts to prepare a supplement or post-effective amendment to the
Warrant Shelf Registration Statement or a supplement to the related
Prospectus or any document incorporated or deemed to be incorporated therein
by reference, and, subject to Section 4(a) hereof, file such with the
Commission so that, as thereafter delivered to the purchasers of Transfer
Restricted Securities being sold thereunder,
9
such Prospectus will not contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading;
(l) Not later than the effective date of the Warrant Shelf
Registration Statement, (i) provide the registrar for the Transfer Restricted
Securities with certificates for such securities in a form eligible for
deposit with DTC and (ii) provide a CUSIP number for such securities;
(m) Enter into an underwriting agreement in form, scope and
substance as is customary in underwritten offerings and take all such other
actions as are reasonably requested by the managing underwriter or
underwriters in order to expedite or facilitate the registration or
disposition of such Transfer Restricted Securities in any underwritten
offering to be made of the Transfer Restricted Securities in accordance with
this Agreement, and in such connection, if requested by any Holder of
Transfer Restricted Securities or underwriter, (i) make such representations
and warranties to the Holders of such Transfer Restricted Securities and the
underwriters, if any, in form, substance and scope as are customarily made by
issuers to underwriters in similar underwritten offerings and as may be
reasonably requested by them; (ii) obtain opinions of counsel reasonably
satisfactory to the managing underwriters, if any, and the Majority Holders,
covering (x) the matters and subject to the qualifications and exceptions
customarily received by such managing underwriters requested in connection
with a warrant shelf registration statement and (y) such other matters as may
be reasonably requested by the managing underwriters, if any, or the Majority
Holders; (iii) obtain "cold comfort" letters and updates thereof from
Enterprises' independent certified public accountants (and, if necessary,
independent certified public accountants of London Clubs, the Trust, any
subsidiary of the Enterprises, London Clubs or the Trust or of any business
acquired by Enterprises for which financial statements are, or are required
to be, included in the Warrant Shelf Registration Statement) addressed to the
underwriters, if any, and use reasonable efforts to have such letter
addressed to the selling Holders of Transfer Restricted Securities (to the
extent consistent with Statement on Auditing Standards No. 72 of the American
Institute of Certified Public Accounts), such letters to be in customary form
and covering matters of the type customarily covered in "cold comfort"
letters to underwriters in connection with similar underwritten offerings;
(iv) enter into a securities sales agreement with the Holders and an agent of
the Holders providing for, among other things, the appointment of such agent
for the selling Holders for the purpose of soliciting purchases of Transfer
Restricted Securities, which agreement shall be in form, substance and scope
customary for similar offerings; (v) if an underwriting agreement is entered
into, cause it to set forth indemnification provisions and procedures
substantially equivalent to the indemnification provisions and procedures set
forth in Section 5 hereof with respect to the underwriters and all other
parties to be indemnified pursuant to said Section or, at the request of any
underwriters, in the form customarily provided to such underwriters in
similar types of transactions; and (vi) deliver such documents and
certificates as may be reasonably requested and as are customarily delivered
in similar offerings to the Holders of a majority in number of the Transfer
Restricted Securities being sold and the managing underwriters, if any.
10
The obligations of Enterprises under this paragraph (m) are subject to the
Holders and underwriters providing representations, warranties and
indemnifications customarily provided by such persons under such agreements, and
the Holders entering into custody agreements and powers of attorney containing
the representations, warranties and indemnifications customarily provided by
such persons in connection with secondary offerings of securities.
(n) Make available for inspection by representatives of the
Holders of Transfer Restricted Securities, any underwriters participating in
any such disposition pursuant to the Warrant Shelf Registration Statement,
any Participating Broker-Dealer and any counsel or accountant retained by any
of the foregoing (collectively, the "Inspectors"), all financial and other
records, pertinent corporate documents and properties of Enterprises
reasonably necessary to the Inspectors to enable them to conduct any due
diligence as is customary, and cause the officers, directors and employees of
Enterprises to supply all information in each case reasonably requested by
the Inspectors in connection therewith, and make such representatives of
Enterprises available for discussion of such documents as shall be reasonably
requested by the Initial Purchasers in connection therewith; provided, that
records which Enterprises determines, in good faith, to be confidential and
which Enterprises notifies the Inspectors are confidential shall not be
disclosed by the Inspector unless (i) the disclosure of such records shall be
necessary to avoid or correct a material misstatement or omission in the
Warrant Shelf Registration Statement, (ii) the release of such records is
ordered pursuant to a subpoena or other order from a court of competent
jurisdiction or is otherwise required by law or (iii) the information
contained in such records has been made generally available to the public
(other than by a breach of these provisions by the Inspectors or any of their
officers, employees or agents). Each Holder and each such Participating
Broker-Dealer will be required to agree in writing that any such confidential
information shall not be disclosed other than pursuant to clauses (i), (ii)
or (iii) of the previous sentence;
(o) otherwise materially comply with all material applicable
rules and regulations of the Commission and make available to their security
holders, as soon as reasonably practicable, an earnings statement covering at
least 12 months which shall satisfy the provisions of Section 11(a) of the
1933 Act and Rule 158 thereunder (i) commencing at the end of any fiscal
quarter in which Transfer Restricted Securities are sold to an underwriter or
to underwriters in a firm commitment or best efforts underwritten offering
and (ii) if not sold to an underwriter or to underwriters in such an
offering, commencing on the first day of the first fiscal quarter of
Enterprises after the effective date of the Warrant Shelf Registration
Statement, which statements shall cover such 12-month periods;
(p) Use commercially reasonable efforts to cause all Transfer
Restricted Securities to be listed on any securities exchange on which
similar equity securities issued by Enterprises are then listed if requested
by the Majority Holders, or if requested by the underwriter or underwriters
of an underwritten offering of Transfer Restricted Securities, if any, on
which similar securities issued by Enterprises as applicable, are then listed;
(q) Cooperate with the Holders of Transfer Restricted Securities
to facilitate the timely preparation and delivery of certificates
representing Transfer Restricted
11
Securities to be sold and not bearing any restrictive legends and registered in
such names as the Holders may reasonably request at least two business days
prior to the closing of any sale of Transfer Restricted Securities.
Enterprises may require each seller of Transfer Restricted Securities
as to which a registration is being effected to furnish to Enterprises such
information regarding such seller as may be required by the staff of the
Commission to be included in the Warrant Shelf Registration Statement and
Enterprises may exclude from such registration the Transfer Restricted
Securities of any seller who fails to furnish such information within a
reasonable time (which amount of reasonable time shall be reasonably determined
by Enterprises); provided, that Enterprises shall provide written notice to any
such seller of any such request.
Each Holder agrees that, upon receipt of any notice from Enterprises of
the happening of any event or the discovery of any facts, each of the kind
described in Section 4(c)(ii), 4(c)(iv), 4(c)(v), or 4(c)(vi) hereof, such
Holder will forthwith discontinue disposition of such Transfer Restricted
Securities pursuant to the Warrant Shelf Registration Statement or Prospectus
until such Holder's receipt of the copies of the supplemented or amended
Prospectus contemplated by Section 4(k) hereof), and, if so directed by
Enterprises, such Holder will deliver to Enterprises (at its expense) all copies
in such Holder's possession, other than permanent file copies, then in such
Holder's possession of the Prospectus covering such Transfer Restricted
Securities current at the time of receipt of such notice.
No Holder may participate in any underwritten registration hereunder
unless such Holder (a) agrees to sell such Holder's Transfer Restricted
Securities on the basis provided in any underwriting arrangements approved by
the Persons entitled hereunder to approve such arrangements and (b) completes
and executes all questionnaires, powers of attorney, indemnities, underwriting
agreements, custody agreements and other documents required under the terms of
such underwriting agreements.
5. Indemnification; Contribution
(a) Enterprises agrees to indemnify and hold harmless
each Initial Purchaser, each Holder, each Participating Broker-Dealer, each
Person who participates as an underwriter (any such Person being an
"Underwriter") and each Person, if any, who controls any Holder or
Underwriter within the meaning of Section 15 of the Securities Act or Section
15 of the Exchange Act as follows:
(i) against any and all loss, liability, claim,
damage and expense whatsoever, as incurred, arising out of any
untrue statement or alleged untrue statement of a material
fact contained in any Warrant Shelf Registration Statement (or
any amendment or supplement thereto) pursuant to which
Transfer Restricted Securities were registered under the
Securities Act, including all documents incorporated therein
by reference, or the omission or alleged omission therefrom of
a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances
under which they were made, not
12
misleading, or arising out of any untrue statement or alleged
untrue statement of a material fact contained in any
Prospectus (or any amendment or supplement thereto) or the
omission or alleged omission therefrom of a material fact
necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading;
(ii) against any and all loss, liability, claim,
damage and expense whatsoever, as incurred, to the extent of
the aggregate amount paid in settlement of any litigation, or
any investigation or proceeding by any governmental agency or
body, commenced or threatened, or of any claim whatsoever
based upon any such untrue statement or omission, or any such
alleged untrue statement or omission; provided that (subject
to Section 5(d) below) any such settlement is effected with
the written consent of Enterprises; and
(iii) against any and all expense whatsoever, as
incurred (including the fees and disbursements of counsel
chosen by any indemnified party), reasonably incurred in
investigating, preparing or defending against any litigation,
or any investigation or proceeding by any governmental agency
or body, commenced or threatened, or any claim whatsoever
based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, to the extent that any
such expense is not paid under subparagraph (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any
loss, liability, claim, damage or expense to the extent arising out of any
untrue statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with written information furnished to
Enterprises by the Holders, Initial Purchaser, Participating Broker-Dealer or
Underwriter expressly for use in the Warrant Shelf Registration Statement (or
any amendment thereto) or any Prospectus (or any amendment or supplement
thereto). The foregoing indemnity with respect to any untrue statement contained
in or any omission from any preliminary Prospectus shall not inure to the
benefit to any Holder, Initial Purchaser, Participating Broker-Dealer or
Underwriter (or any person controlling any such person) from whom the person
asserting such loss, liability, claim, damage or expense purchased Securities
that are the subject thereof if (i) the untrue statement or omission contained
in such preliminary Prospectus (excluding documents incorporated by reference)
was corrected; (ii) such person was not sent or given a copy of the final
Prospectus (excluding documents incorporated by reference) which corrected the
untrue statement or omission at or prior to the written confirmation of the sale
of such Securities to such person; and (iii) Enterprises satisfied its
obligation pursuant to Section 4 of this Agreement to provide a sufficient
number of copies of the final Prospectus to the Holder, Initial Purchaser,
Participating Broker-Dealer or Underwriter.
(b) Each Holder, Initial Purchaser, Participating
Broker-Dealer and Underwriter severally, but not jointly, agrees to indemnify
and hold harmless Enterprises, the Initial Purchasers, the Participating
Broker-Dealers, each Underwriter and the other selling Holders, and each of
their respective directors and officers, and each Person, if any, who
controls Enterprises, the Initial Purchasers, the Participating
Broker-Dealers, any Underwriter or any
13
other selling Holder within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act, against any and all loss, liability, claim,
damage and expense described in the indemnity contained in Section 5(a) hereof,
as incurred, but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made in the Warrant Shelf Registration Statement
(or any amendment thereto) or any Prospectus included therein (or any amendment
or supplement thereto) in reliance upon and in conformity with written
information with respect to such Holder, Initial Purchaser, Participating
Broker-Dealer or Underwriter furnished to Enterprises by such Holder, Initial
Purchaser, Participating Broker-Dealer or Underwriter expressly for use in the
Warrant Shelf Registration Statement (or any amendment thereto) or such
Prospectus (or any amendment or supplement thereto); provided, however, that no
such Holder, Initial Purchaser, Participating Broker-Dealer or Underwriter shall
be liable for any claims hereunder in excess of the amount of net proceeds
received by such Holder, Initial Purchaser, Participating Broker-Dealer or
Underwriter from the sale of Transfer Restricted Securities pursuant to such
Warrant Shelf Registration Statement.
(c) Each indemnified party shall give notice as
promptly as reasonably practicable to each indemnifying party of any action
or proceeding commenced against it in respect of which indemnity may be
sought hereunder, but failure so to notify an indemnifying party shall not
relieve such indemnifying party from any liability hereunder to the extent it
is not materially prejudiced as a result thereof and in any event shall not
relieve it from any liability which it may have otherwise than on account of
this indemnity agreement. An indemnifying party may participate at its own
expense in the defense of such action; provided, however, that counsel to the
indemnifying party shall not (except with the consent of the indemnified
party) also be counsel to the indemnified party. In no event shall the
indemnifying party or parties be liable for the fees and expenses of more
than one counsel (in addition to any local counsel) separate from their own
counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out
of the same general allegations or circumstances. No indemnifying party
shall, without the prior written consent of the indemnified parties, settle
or compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 5 (whether
or not the indemnified parties are actual or potential parties thereto),
unless such settlement, compromise or consent (i) includes an unconditional
release of each indemnified party from all liability arising out of such
litigation, investigation, proceeding or claim 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 any indemnified party.
(d) If at any time an indemnified party shall have
requested an indemnifying party to reimburse the indemnified party for fees
and expenses of counsel, such indemnifying party agrees that it shall be
liable for any settlement of the nature contemplated by Section 5(a)(ii)
effected without its written consent if (i) such settlement is entered into
more than 45 days after receipt by such indemnifying party of the aforesaid
request, (ii) such indemnifying party shall have received notice of the terms
of such settlement at least 30 days prior to such settlement being entered
into and (iii) such indemnifying party shall not have
14
reimbursed such indemnified party in accordance with such request prior to the
date of such settlement. Notwithstanding the immediately preceding sentence, if
at any time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel, an
indemnifying party shall not liable for any settlement of the nature
contemplated by Section 5 (a) (ii) effected without its consent if such
indemnifying party (i) reimburses such indemnified party in accordance with such
request to the extent that it considers such request to be reasonable and (ii)
provides written notice to the indemnified party substantiating the unpaid
balance as unreasonable, in each case prior to date of such settlement.
(e) If the indemnification provided for in this
Section 5 is for any reason unavailable to or insufficient to hold harmless
an indemnified party in respect of any losses, liabilities, claims, damages
or expenses referred to therein, then each indemnifying party shall
contribute to the aggregate amount of such losses, liabilities, claims,
damages and expenses incurred by such indemnified party, as incurred, in such
proportion as is appropriate to reflect the relative fault of Enterprises on
the one hand and the Holders and the Underwriters on the other hand in
connection with the statements or omissions which resulted in such losses,
liabilities, claims, damages or expenses, as well as any other relevant
equitable considerations.
The relative fault of Enterprises on the one hand and the Holders and
the Underwriters on the other hand shall be determined by reference to, among
other things, whether any such untrue or alleged untrue statement of a material
fact or omission or alleged omission to state a material fact relates to
information supplied by Enterprises, the Holders or the Underwriters and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
Enterprises and the Initial Purchasers agree that it would not be
just and equitable if contribution pursuant to this Section 5 were determined
by pro rata allocation (even if the Initial Purchasers 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 above in this
Section 5. The aggregate amount of losses, liabilities, claims, damages and
expenses incurred by an indemnified party and referred to above in this
Section 5 shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in investigating, preparing or defending
against any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever
based upon any such untrue or alleged untrue statement or omission or alleged
omission.
Notwithstanding the provisions of this Section 5, no Underwriter
shall be required to contribute any amount in excess of the amount by which
the total price at which the Securities sold by it were offered exceeds the
amount of any damages which such Underwriter has otherwise been required to
pay by reason of such untrue or alleged untrue statement or omission or
alleged omission.
No Person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution
from any Person who was not guilty of such fraudulent misrepresentation.
15
For purposes of this Section 5, each Person, if any, who controls an
Initial Purchaser or Holder within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act shall have the same rights to contribution
as such Initial Purchaser or Holder, and each manager or director of
Enterprises, and each Person, if any, who controls Enterprises within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act
shall have the same rights to contribution as Enterprises. The Initial
Purchasers' respective obligations to contribute pursuant to this Section 5 are
several in proportion to the principal amount of Securities set forth opposite
their respective names in Schedule A to the Purchase Agreement and not joint.
6. Assumption of Obligations. Enterprises hereby covenants to cause (i)
any entity that enters into a supplemental Warrant Agreement pursuant to the
terms of Section 11(m) of the Warrant Agreement to enter into a supplemental
Warrant Registration Rights Agreement providing that such entity shall, with
respect to any securities issued to holders of the Warrants or the Warrant
Shares pursuant to such supplemental Warrant Agreement, assume all of the rights
and obligations of Enterprises with respect to the Warrants and Warrant Shares
under this Agreement and (ii) any other entity that issues any securities to the
holders of the Warrants or the Warrant Shares pursuant to the terms of the
Equity Participation Agreement to, with respect to all such securities, assume
all of the rights and obligations of Enterprises with respect to the Warrants
and Warrant Shares under this Agreement; provided that Enterprises shall cause
any such entity to (i) cause to become effective under the Securities Act, to
the extent legally possible, immediately prior to the execution of such
supplemental Warrant Agreement or the consummation of the issuance of the
securities described in clause (ii) above, a shelf registration statement
covering (a) the offer and sale of the securities issued to holders of the
Warrants and the Warrant Shares pursuant to such supplemental Warrant Agreement,
(b) the offer and sale of the securities issued to holders of the Warrants and
the Warrant Shares pursuant to clause (ii) above and (c) the issuance of any
securities issuable upon the exercise thereof that were sold pursuant to any
such shelf registration statement and (ii) maintain, on the same terms and
conditions as Enterprises is required to under this Agreement, the effectiveness
of any such shelf registration statement under the Securities Act in order to
permit the Prospectus included therein to be lawfully delivered by the relevant
entity to the Holders offering and selling Warrants or Warrant Shares or
exercising the Warrants until the earlier of (i) the date on which (x) there are
no Warrants outstanding and (y) all Warrant Shares have been sold pursuant to
the Warrant Shelf Registration Statement or pursuant to Rule 144 under the
Securities Act and (ii) the consummation of a Qualified Public Offering of an
IPO Entity other than Enterprises. Upon the execution of a supplemental Warrant
Registration Rights Agreement, the successor company shall mail to holders of
Warrants a notice describing the supplemental Warrant Registration Rights
Agreement.
7. Miscellaneous
7.1. No Inconsistent Agreements. Enterprises has not entered into and,
after the date of this Agreement, will not enter into any agreement which is
inconsistent with the rights
16
granted to the Holders of Transfer Restricted Securities in this Agreement or
otherwise conflicts with the provisions hereof. The rights granted to the
Holders hereunder do not and will not for the term of this Agreement in any way
conflict with the rights granted to the holders of other issued and outstanding
securities of Enterprises under any such agreements.
7.2. 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 Enterprises has obtained the written consent of Holders of at least
a majority in aggregate principal amount of the outstanding Transfer Restricted
Securities affected by such amendment, modification, supplement, waiver or
departure.
7.3. Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand delivery, registered
first-class mail, telex, telecopier, or any courier guaranteeing overnight
delivery (a) if to a Holder, at the most current address given by such Holder to
Enterprises by means of a notice given in accordance with the provisions of this
Section 7.3, which address initially is the address set forth in the Purchase
Agreement with respect to the Initial Purchasers, with a copy to Xxxxxx &
Xxxxxxx, 000 Xxxx Xxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000,
Attention: Xxxxxx X. Xxxxx, Esq.; and (b) if to Enterprises, initially at
Enterprises' address set forth in the Purchase Agreement, and thereafter at such
other address of which notice is given in accordance with the provisions of this
Section 7.3, with a copy to Skadden, Arps, Slate, Xxxxxxx & Xxxx L.L.P., 000
Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, Attention: Xxxxxxx X. Xxxxxxxx, Esq.
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; two business days
after being deposited in the mail, postage prepaid, if mailed; when answered
back, if telexed; when receipt is acknowledged, if telecopied; and on the next
business day if timely delivered to an air courier guaranteeing overnight
delivery.
Copies of all such notices, demands, or other communications shall be
concurrently delivered by the person giving the same to the Warrant Agent under
the Warrant Agreement, at the address specified in such Warrant Agreement.
7.4. Successor and Assigns. This Agreement shall inure to the benefit
of and be binding upon the successors, assigns and transferees of each of the
parties, including, without limitation and without the need for an express
assignment, subsequent Holders; provided, however, that nothing herein shall be
deemed to permit any assignment, transfer or other disposition of Transfer
Restricted Securities in violation of the terms of the Purchase Agreement or the
Warrant Agreement. If any transferee of any Holder shall acquire Transfer
Restricted Securities, in any manner, whether by operation of law or otherwise,
such Transfer Restricted Securities shall be held subject to all of the terms of
this Agreement, and by taking and holding such Transfer Restricted Securities
such person shall be conclusively deemed to have agreed to be bound by and to
perform all of the terms and provisions of this Agreement, including the
17
restrictions on resale set forth in this Agreement and, if applicable, the
Purchase Agreement, and such person shall be entitled to receive the benefits
hereof.
7.5. Third Party Beneficiaries. The Initial Purchasers (even if the
Initial Purchasers are not Holders of Transfer Restricted Securities) shall be
third party beneficiaries to the agreements made hereunder between Enterprises,
on the one hand, and the Holders, on the other hand, and shall have the right to
enforce such agreements directly to the extent they deem such enforcement
necessary or advisable to protect their rights or the rights of Holders
hereunder. Each Holder of Transfer Restricted Securities shall be a third party
beneficiary to the agreements made hereunder between Enterprises, on the one
hand, and the Initial Purchasers, on the other hand, and shall have the right to
enforce such agreements directly to the extent it deems such enforcement
necessary or advisable to protect its rights hereunder.
7.6. Specific Enforcement. Without limiting the remedies available to
the Initial Purchasers and the Holders, Enterprises acknowledges that any
failure by Enterprises to comply with its obligations under Section 2.1 hereof
may result in material irreparable injury to the Initial Purchasers or the
Holders for which monetary damages would not be adequate, that it would not be
possible to measure damages for such injuries precisely and that, in the event
of any such failure, the Initial Purchasers or any Holder may obtain such relief
as may be required to specifically enforce Enterprises' obligations under
Section 2.1.
7.7. Restriction on Resales. Until the expiration of two years after
the original issuance of the Securities, Enterprises will not, and will cause
its "affiliates" (as such term is defined in Rule 144(a)(1) under the Securities
Act) to not, resell any Securities which are "restricted securities" (as such
term is defined under Rule 144(a)(3) under the Securities Act) that have been
reacquired by any of them and shall immediately upon any purchase of any such
Securities submit such Securities to the Warrant Agent for cancellation.
7.8. 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.
7.9. Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
7.10. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK WITHOUT REGARD TO THE
PRINCIPLES OF CONFLICT OF LAWS THEREOF.
7.11. 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.
18
7.12. Entire Agreement. This Agreement is intended by the parties as a
final expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein. There are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein
with respect to the registration rights granted by Enterprises 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.
19
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
ALADDIN GAMING ENTERPRISES, INC.
By: /s/ Xxxx Xxxxxx
------------------------
Name: Xxxx Xxxxxx
Title: President
Confirmed and accepted as
of the date first above
written:
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
CREDIT SUISSE FIRST BOSTON CORPORATION
CIBC XXXXXXXXXXX CORP.
SCOTIA CAPITAL MARKETS (USA) INC.
BY: XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By: /s/ Xxxxxxx Xxxxxxxxx
----------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Authorized Signatory
As representative of the several Initial Purchasers.
