Exhibit 4.12
MIKOHN GAMING CORPORATION
$105,000,000 11.875% Senior Secured Notes due 2008
REGISTRATION RIGHTS AGREEMENT
August 22, 2001
▇▇▇▇▇▇▇▇▇ & COMPANY, INC.
CIBC WORLD MARKETS CORP.
c/▇ ▇▇▇▇▇▇▇▇▇ & Company, Inc.
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Mikohn Gaming Corporation, a Nevada corporation (the "Company"), is issuing
and selling to ▇▇▇▇▇▇▇▇▇ & Company, Inc. and CIBC World Markets Corp. (the
"Initial Purchasers"), upon the terms set forth in a purchase agreement, dated
as of August 15, 2001 (the "Purchase Agreement"), 105,000 units (the "Units"),
each consisting of (i) $1,000 aggregate principal amount at maturity of the
Company's 11.875% Senior Secured Notes due 2008, Series A, including the
Guarantees (as defined below) endorsed thereon (the "Notes"), and (ii) one
warrant (each, a "Warrant" and, collectively, the "Warrants") initially
exercisable to purchase four shares of the Company's common stock, par value
$.10 per share (the "Common Stock"), subject to the terms and conditions set
forth therein. As an inducement to the Initial Purchasers to enter into the
Purchase Agreement, the Company and each of the guarantors (the "Guarantors")
signatory to the Purchase Agreement agree with the Initial Purchasers, for the
benefit of the holders of the Securities (defined below) (including, without
limitation, the Initial Purchasers), as follows:
1. Definitions.
Capitalized terms used herein without definition shall have their respective
meanings set forth in the Purchase Agreement. As used in this Agreement, the
following terms shall have the following meanings:
Advice: See Section 6.
Agreement: This Registration Rights Agreement.
Applicable Period: See Section 2(f).
Business Day: Any day, excluding Saturday, Sunday and any day which is
in the City of New York a legal holiday or a day upon which banking
institutions in the City of New York are required or authorized by law or
other governmental action to close.
Closing Date: August 22, 2001.
DTC: See Section 6(i).
Effectiveness Date: The 120th day following the Closing Date.
Effectiveness Period: See Section 3(a).
Event: See Section 4(a).
Event Date: See Section 4(a).
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Exchange Act: The Securities Exchange Act of 1934, as amended, and the
rules and regulations of the SEC promulgated thereunder.
Exchange Offer: See Section 2(a).
Exchange Offer Registration Statement: See Section 2(a).
Exchange Securities: 11.875% Senior Secured Notes due 2008, Series B, of
the Company, including the Guarantees endorsed thereon, identical in all
respects to the Notes, except for references to series and restrictive
legends.
Filing Date: The 60th day following the Closing Date.
Guarantees: The full and unconditional guarantee, on a senior secured
basis by the Guarantors, as to payment of principal, interest, premium, if
any, and Liquidated Damages, if any, with respect to the Notes.
Holder: Each holder of Registrable Securities.
Indenture: The Indenture, dated as of the date hereof, by and among the
Company, the Guarantors and Firstar Bank, N.A., as trustee, pursuant to
which the Notes and Guarantees are being issued, as amended or supplemented
from time to time, in accordance with the terms thereof.
Initial Shelf Registration: See Section 3(a).
Liquidated Damages: See Section 4(a).
Losses: See Section 8(a).
NASD: The National Association of Securities Dealers, Inc.
Participating Broker-Dealer: See Section 2(f).
Person: Any corporation, individual, limited liability company, joint
stock company, joint venture, partnership, limited liability partnership,
unincorporated association, governmental regulatory entity, country, state
or political subdivision thereof, trust, municipality or other entity.
Private Exchange: See Section 2(g).
Private Exchange Securities: See Section 2(g).
Prospectus: The prospectus included in any Registration Statement
(including, without limitation, a prospectus that discloses information
previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A promulgated under the
Securities Act), as amended or supplemented by any prospectus supplement,
with respect to the terms of the offering of any portion of the Securities
covered by such Registration Statement, and all other amendments and
supplements to the Prospectus, including post-effective amendments, and all
material incorporated by reference or deemed to be incorporated by
reference in such Prospectus.
Registrable Securities: (i) Notes, (ii) Private Exchange Securities and
(iii) Exchange Securities that may not be sold without restriction under
federal or state securities law.
Registration Statement: Any registration statement of the Company and
the Guarantors that covers any of the Securities pursuant to the provisions
of this Agreement, including the Prospectus, amendments and supplements to
such registration statement, including post-effective amendments, all
exhibits, and all material incorporated by reference or deemed to be
incorporated by reference in such registration statement.
Rule 144: Rule 144 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 SEC.
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Rule 144A: Rule 144A 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 SEC.
Rule 415: Rule 415 under the Securities Act, as such rule may be amended
from time to time, or any similar rule or regulation hereafter adopted by
the SEC.
SEC: The Securities and Exchange Commission.
Securities: The Notes, the Guarantees, the Private Exchange Securities
and the Exchange Securities, collectively.
Securities Act: The Securities Act of 1933, as amended, and the rules
and regulations of the SEC promulgated thereunder.
Shelf Notice: See Section 2(i).
Shelf Registration: The Initial Shelf Registration and any Subsequent
Shelf Registration.
Special Counsel: Counsel chosen by the holders of a majority in
aggregate principal amount of Securities.
Subsequent Shelf Registration: See Section 3(b).
TIA: The Trust Indenture Act of 1939, as amended.
Trustee: The trustee under the Indenture and, if any, the trustee under
any indenture governing the Exchange Securities or the Private Exchange
Securities.
Underwritten Registration or Underwritten Offering: A registration in
which securities of the Company are sold to an underwriter for reoffering
to the public.
2. Exchange Offer.
(a) The Company and the Guarantors shall:
(i) prepare and file with the SEC promptly after the date hereof,
but in no event later than the Filing Date, a registration statement
(the "Exchange Offer Registration Statement") on an appropriate form
under the Securities Act with respect to a proposed offer (the
"Exchange Offer") to the Holders to issue and deliver to such Holders,
in exchange for the Notes, a like aggregate principal amount of
Exchange Securities,
(ii) use their respective reasonable best efforts to cause the
Exchange Offer Registration Statement to become effective as promptly
as practicable after the filing thereof, but in no event later than the
Effectiveness Date,
(iii) keep the Exchange Offer Registration Statement effective until
the consummation of the Exchange Offer pursuant to its terms, and
(iv) unless the Exchange Offer would not be permitted by a policy of
the SEC, commence the Exchange Offer and use their respective
reasonable best efforts to, on the earliest practicable date after the
Exchange Offer Registration Statement is declared effective, but in no
event later than 30 days thereafter, consummate the Exchange Offer and
issue Exchange Securities in exchange for all Notes tendered prior
thereto in the Exchange Offer.
The Exchange Offer shall not be subject to any conditions, other than
that the Exchange Offer does not violate applicable law or any applicable
interpretation of the staff of the SEC.
(b) The Exchange Securities shall be issued under, and entitled to the
benefits of, the Indenture or a trust indenture that is identical to the
Indenture (other than such changes as are necessary to comply with any
requirements of the SEC to effect or maintain the qualification thereof
under the TIA).
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(c) In connection with the Exchange Offer, the Company and the
Guarantors shall:
(i) mail to each Holder a copy of the Prospectus forming part of the
Exchange Offer Registration Statement, together with an appropriate
letter of transmittal that is an exhibit to the Exchange Offer
Registration Statement, and any related documents;
(ii) keep the Exchange Offer open for not less than 20 Business Days
after the date notice thereof is mailed to the Holders (or longer if
required by applicable law);
(iii) utilize the services of a depositary for the Exchange Offer
with an address in the Borough of Manhattan, The City of New York;
(iv) permit Holders to withdraw tendered Notes at any time prior to
the close of business, New York time, on the last Business Day on which
the Exchange Offer shall remain open; and
(v) otherwise comply with all laws applicable to the Exchange Offer.
(d) As soon as practicable after the close of the Exchange Offer, the
Company and the Guarantors shall:
(i) accept for exchange all Notes validly tendered and not validly
withdrawn pursuant to the Exchange Offer;
(ii) deliver to the Trustee for cancellation all Notes so accepted
for exchange; and
(iii) cause the Trustee promptly to authenticate and deliver to each
Holder of Notes, Exchange Securities equal in aggregate principal
amount to the Notes of such Holder so accepted for exchange.
(e) Interest on each Exchange Security and Private Exchange Security
will accrue from the last interest payment date on which interest was paid
on the Notes surrendered in exchange therefor or, if no interest has been
paid on the Notes, from the date of original issue of the Notes. Each
Exchange Security and Private Exchange Security shall bear interest at the
rate set forth thereon; provided, that interest with respect to the period
prior to the issuance thereof shall accrue at the rate or rates borne by
the Notes surrendered in exchange therefor from time to time during such
period.
(f) The Company and the Guarantors shall include within the Prospectus
contained in the Exchange Offer Registration Statement a section entitled
"Plan of Distribution," containing a summary statement of the positions
taken or policies made by the staff of the SEC with respect to the
potential "underwriter" status of any broker-dealer that is the beneficial
owner (as defined in Rule 13d-3 under the Exchange Act) of Exchange
Securities received by such broker-dealer in the Exchange Offer (a
"Participating Broker-Dealer"). Such "Plan of Distribution" section shall
also allow the use of the Prospectus by all Persons subject to the
prospectus delivery requirements of the Securities Act, including (without
limitation) all Participating Brokers-Dealers, and include a statement
describing the means by which Participating Broker-Dealers may resell the
Exchange Securities. The Company and the Guarantors shall use their
respective reasonable best efforts to keep the Exchange Offer Registration
Statement effective and to amend and supplement the Prospectus to be
lawfully delivered by all Persons subject to the prospectus delivery
requirement of the Securities Act for such period of time as such Persons
must comply with such requirements in order to resell the Exchange
Securities (the "Applicable Period").
(g) If, prior to consummation of the Exchange Offer, any of the Initial
Purchasers hold any Notes acquired by it and having the status as an unsold
allotment in the initial distribution of the Notes, the Company and the
Guarantors shall, upon the request of such Initial Purchaser,
simultaneously with the delivery of the Exchange Securities in the Exchange
Offer, issue (pursuant to the same indenture as the Exchange Securities)
and deliver to such Initial Purchaser, in exchange for the Notes held by
such Initial Purchaser (the "Private Exchange"), a like principal amount of
debt securities of the Company, including guarantees endorsed thereon, that
are identical to the Exchange Securities (the "Private Exchange
Securities"). The Private Exchange Securities shall bear the same CUSIP
number as the Exchange Securities.
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(h) As a condition to its participation in the Exchange Offer, each
Holder of Registrable Securities (including, without limitation, any Holder
who is a broker-dealer) shall furnish, upon the request of the Company,
prior to the consummation of the Exchange Offer, a written representation
to the Company and the Guarantors (which may be contained in the letter of
transmittal contemplated by the Exchange Offer Registration Statement) to
the effect that, at the time of the consummation of the Exchange Offer: (i)
it is not an affiliate of the Company, (ii) it is not engaged in, and does
not intend to engage in, and has no arrangement or understanding with any
person to participate in, a distribution of the Exchange Securities and
(iii) it is acquiring the Exchange Securities in its ordinary course of
business. As a condition to its participation in the Exchange Offer, each
Holder using the Exchange Offer to participate in a distribution of the
Exchange Securities shall acknowledge and agree that, if the resales are of
Exchange Securities obtained by such Holder in exchange for Notes acquired
directly from the Company or an affiliate thereof, it must comply with the
registration and prospectus delivery requirements of the Securities Act in
connection with a secondary resale transaction and that such a secondary
resale transaction must be covered by an effective registration statement
containing the selling security holder information required by Item 507 or
508, as applicable, of Regulation S-K.
(i) If (i) the Exchange Offer is not permitted by applicable law or SEC
policy, (ii) subsequent to the consummation of the Private Exchange, the
Initial Purchasers so request or (iii) if any Holder of Registrable
Securities shall notify the Company within 20 Business Days following the
consummation of the Exchange Offer that (A) such Holder was prohibited by
law or SEC policy from participating in the Exchange Offer or (B) such
Holder may not resell the Exchange Securities acquired by it in the
Exchange Offer to the public without delivering a prospectus and the
Prospectus contained in the Exchange Offer Registration Statement is not
appropriate or available for such resales by such Holder or (C) such Holder
is a broker-dealer and holds Notes acquired directly from the Company or
any of its affiliates, then the Company and the Guarantors shall promptly
deliver to the Holders (or in the case of an occurrence of any event
described in clause (iii) hereof, to any such Holder) and the Trustee
notice thereof (the "Shelf Notice") and shall as promptly as possible
thereafter file an Initial Shelf Registration pursuant to Section 3.
3. Shelf Registration.
If a Shelf Notice is required to be delivered pursuant to Section 2(i)(i) or
2(i)(ii), then this Section 3 shall apply to all Registrable Securities. If a
Shelf Notice is required to be delivered pursuant to Section 2(i)(iii), then
this Section 3 shall apply solely with respect to the Holders described in any
of clauses (A) through (C) of Section 2(i)(iii).
(a) Initial Shelf Registration. The Company and the Guarantors shall
prepare and file with the SEC a Registration Statement for an offering to
be made on a continuous basis pursuant to Rule 415 covering all of the
Registrable Securities (the "Initial Shelf Registration"). If the Company
and the Guarantors have not yet filed an Exchange Offer Registration
Statement, the Company and the Guarantors shall file with the SEC the
Initial Shelf Registration on or prior to the Filing Date. Otherwise, the
Company and the Guarantors shall use their respective best efforts to file
the Initial Shelf Registration within 30 days of the delivery of the Shelf
Notice or as promptly as possible following the request of the Initial
Purchasers. The Initial Shelf Registration shall be on Form S-1 or another
appropriate form permitting registration of such Registrable Securities for
resale by such Holders in the manner or manners designated by them
(including, without limitation, one or more underwritten offerings);
provided, that no Holder (other than the Initial Purchasers) shall be
entitled to have Notes held by it covered by the Initial Shelf Registration
unless such Holder agrees to be bound by all of the provisions of this
Agreement applicable to such Holder. The Company and the Guarantors shall
(i) not permit any securities other than the Registrable Securities to be
included in any Shelf Registration, and (ii) use their respective
reasonable best efforts to cause the Initial Shelf Registration to be
declared effective under the Securities Act as promptly as practicable
after the filing thereof (but in no event later than 60 days after the
filing thereof) and to keep the Initial Shelf Registration continuously
effective under the Securities Act until the date that is 24 months after
the
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Effectiveness Date (subject to extension pursuant to the last paragraph of
Section 6 hereof) (the "Effectiveness Period"), or such shorter period
ending when (i) all Registrable Securities covered by the Initial Shelf
Registration have been sold or (ii) a Subsequent Shelf Registration
covering all of the Registrable Securities has been declared effective
under the Securities Act.
(b) Subsequent Shelf Registrations. If any Shelf Registration ceases to
be effective for any reason at any time during the Effectiveness Period
(other than because of the sale of all of the Registrable Securities
registered thereunder), the Company and the Guarantors shall use their
respective reasonable best efforts to obtain the prompt withdrawal of any
order suspending the effectiveness thereof, and in any event shall within
30 days of such cessation of effectiveness amend the Shelf Registration in
a manner reasonably expected to obtain the withdrawal of the order
suspending the effectiveness thereof, or file an additional "shelf"
Registration Statement pursuant to Rule 415 covering all of the Registrable
Securities (a "Subsequent Shelf Registration"). If a Subsequent Shelf
Registration is filed, the Company and the Guarantors shall use their
respective reasonable best efforts to cause the Subsequent Shelf
Registration to be declared effective as soon as practicable after such
filing and to keep such Subsequent Shelf Registration continuously
effective for a period equal to the number of days in the Effectiveness
Period less the aggregate number of days during which the Initial Shelf
Registration, and any previously filed Subsequent Shelf Registration, was
previously effective.
4. Liquidated Damages.
(a) The Company and the Guarantors acknowledge and agree that the
Holders will suffer damages, and that it would not be feasible to ascertain
the extent of such damages with precision, if the Company and the
Guarantors fail to fulfill their respective obligations hereunder.
Accordingly, in the event of such failure, the Company and the Guarantors
jointly and severally agree to pay liquidated damages to each Holder under
the circumstances and to the extent set forth below:
(i) if the Exchange Offer Registration Statement has not been filed
with the SEC on or prior to the Filing Date;
(ii) if the Exchange Offer Registration Statement is not declared
effective by the SEC on or prior to the Effectiveness Date;
(iii) if the Exchange Offer is not consummated on or before the 30th
day after the Exchange Offer Registration Statement is declared
effective by the SEC;
(iv) if obligated to file a Shelf Registration and the Company and
the Guarantors fail to file such Shelf Registration with the SEC on or
prior to the 60th day after such filing obligation arises;
(v) if obligated to file a Shelf Registration and such Shelf
Registration is not declared effective on or prior to the 60th day
after such filing obligation arises; or
(vi) if the Exchange Offer Registration Statement or the Shelf
Registration, as the case may be, is filed and declared effective by
the SEC but thereafter ceases to be effective or useable in connection
with resales of Registrable Securities, for such time of non-
effectiveness or non-usability;
(each of the foregoing an "Event," and the date on which the Event occurs
being referred to herein as an "Event Date").
Upon the occurrence of any Event, the Company and the Guarantors shall
pay, or cause to be paid, in addition to amounts otherwise due under the
Indenture and the Registrable Securities, to each Holder of Registrable
Securities affected thereby as liquidated damages ("Liquidated Damages"),
and not as a penalty, an amount equal to $0.05 per week per $1,000 in
principal amount of Registrable Securities held by such Holder for each
week or portion thereof that the Event continues for the first 90-day
period immediately following the Event Date. The amount of Liquidated
Damages shall increase by an additional $0.05 per week per $1,000 in
principal amount of Registrable Securities with respect to each subsequent
90-day period until all Events have been cured, up to a maximum amount of
$0.50 per week per $1,000 in
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principal amount of Registrable Securities. The Company and the Guarantors
shall not be required to pay Liquidated Damages for more than one Event at
any given time. Liquidated Damages will, in each case, cease to accrue
(subject to the occurrence of another Event) on the date on which all
Events have been cured. An Event under clause (i) above shall be cured on
the date that either the Exchange Offer Registration Statement or the
Initial Shelf Registration is filed with the SEC; an Event under clause
(ii) above shall be cured on the date that either the Exchange Offer
Registration Statement or the Initial Shelf Registration is declared
effective by the SEC; an Event under clause (iii) above shall be cured on
the date the Exchange Offer is consummated with respect to all Notes
validly tendered; an Event under clause (iv) above shall be cured on the
date that such Shelf Registration is filed with the SEC; an Event under
clause (v) above shall be cured on the date that such Shelf Registration is
declared effective by the SEC; and an Event under clause (vi) above shall
be cured upon the filing of a post-effective amendment to such Registration
Statement or an additional Registration Statement that causes the Exchange
Offer Registration Statement or the Shelf Registration, as applicable, to
again be declared effective or made usable.
(b) The Company and the Guarantors shall notify the Trustee within five
Business Days after each Event Date. The Company and the Guarantors shall
pay the Liquidated Damages due on the Registrable Securities by depositing
with the Trustee, in trust, for the benefit of the Holders thereof, by
12:00 noon, New York City time, on or before the applicable semi-annual
interest payment date for the Registrable Securities, immediately available
funds in sums sufficient to pay the Liquidated Damages then due. The
Liquidated Damages amount due shall be payable on each interest payment
date to the record Holder entitled to receive the interest payment to be
made on such date as set forth in the Indenture. Notwithstanding the fact
that any securities for which Liquidated Damages are due cease to be
Registrable Securities, all obligations of the Company and the Guarantors
to pay Liquidated Damages with respect to such securities shall survive
until such time as such obligations with respect to such securities shall
have been satisfied in full.
5. Gaming Consents.
Prior to consummating the Exchange Offer or filing the Initial Shelf
Registration, as the case may be, the Company and the Guarantors shall make or
obtain all Permits necessary or desirable for the consummation of the
transactions contemplated hereby, including without limitation, the required
approvals of the Nevada Gaming Commission, the Nevada State Gaming Control
Board, or the ▇▇▇▇▇ County Liquor and Gaming Licensing Board, or any other
applicable gaming authorities, for the pledge of, or any negative pledge on,
the stock of Casino Excitement, Inc., Games of Nevada, Inc., MGC, Inc., Mikohn
International, Inc., Mikohn Nevada, or Progressive Games, Inc.
6. Registration Procedures.
In connection with the registration of any Securities pursuant to Sections 2
or 3 hereof, the Company and the Guarantors shall effect such registrations to
permit the sale of such Securities in accordance with the intended method or
methods of disposition thereof, and pursuant thereto the Company and the
Guarantors shall:
(a) Prepare and file with the SEC, as soon as practicable after the date
hereof but in any event on or prior to the Filing Date, a Registration
Statement or Registration Statements as prescribed by Section 2 or 3, and
use their respective reasonable best efforts to cause each such
Registration Statement to become effective and remain effective as provided
in this Agreement; provided, that, if (i) such filing is pursuant to
Section 3 or (ii) a Prospectus contained in an Exchange Offer Registration
Statement filed pursuant to Section 2 is required tobe delivered under the
Securities Act by any Participating Broker-Dealer who seeks to sell
Exchange Securities during the Applicable Period, before filing any
Registration Statement or Prospectus or any amendments or supplements
thereto, the Company and the Guarantors shall (A) notify the Holders of the
Registrable Securities covered by such Registration Statement, their
Special Counsel, each Participating Broker-Dealer, the managing
underwriters, if any, and their counsel of such filing at least 5 Business
Days prior to making such filing and (B) if requested, furnish to and
afford the Holders of
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the Registrable Securities covered by such Registration Statement, their
Special Counsel, each Participating Broker-Dealer, the managing
underwriters, if any, and their counsel a reasonable opportunity to review,
and shall make available for inspection by such Persons, copies of all such
documents (including copies of any documents to be incorporated by
reference therein and all exhibits thereto) proposed to be filed, such
financial and other information and books and records of the Company and
the Guarantors, and cause the officers, directors and employees of the
Company and each of the Guarantors, Company counsel and independent
certified public accountants of the Company and each of the Guarantors, to
respond to such inquiries, as shall be necessary, in the opinion of the
respective counsel to such Holders, Participating Broker-Dealer and
underwriters, to conduct a reasonable investigation within the meaning of
the Securities Act. The Company and the Guarantors may require each Holder
to agree to keep confidential any non-public information relating to the
Company and the Guarantors received by such Holder and not disclose such
information (other than to an affiliate or prospective purchaser who agrees
to respect the confidentiality provisions of this Section 6(a)) until such
information has been made generally available to the public unless the
release of such information is required by law or necessary to respond to
inquiries of regulatory authorities (including the National Association of
Insurance Commissioners, or similar organizations or their successors). The
Company and the Guarantors shall not file any Registration Statement or
Prospectus or any amendments or supplements thereto in respect of which the
Holders must be afforded an opportunity to review prior to the filing of
such document, if the Holders of a majority in aggregate principal amount
of the Registrable Securities covered by such Registration Statement, their
Special Counsel, any Participating Broker-Dealer or the managing
underwriters, if any, or their counsel shall reasonably object to such
filing within 5 Business Days after receipt of the Company's notice of
filing described above in this Section 6(a).
(b) Provide an indenture trustee for the Registrable Securities or the
Exchange Securities, as the case may be, and cause the Indenture (or other
indenture relating to the Registrable Securities) to be qualified under the
TIA not later than the effective date of the first Registration Statement;
in connection therewith, to effect such changes to such indenture as may be
required for such indenture to be so qualified in accordance with the terms
of the TIA; and execute, and use their respective reasonable best efforts
to cause such trustee to execute, all documents as may be required to
effect such changes, and all other forms and documents required to be filed
with the SEC to enable such indenture to be so qualified in a timely
manner.
(c) Prepare and file with the SEC such pre-effective amendments and
post-effective amendments to the Registration Statement as may be necessary
in order to cause the Registration Statement to become effective and to
keep such Registration Statement continuously effective for the time
periods required hereby; cause the related Prospectus to be supplemented by
any Prospectus supplement required by Applicable Law, and as so
supplemented to be filed pursuant to Rule 424 (or any similar provisions
then in force) under the Securities Act; and comply in all material
respects with the provisions of the Securities Act and the Exchange Act
applicable thereto with respect to the disposition of all securities
covered by such Registration Statement, as so amended, or in such
Prospectus, as so supplemented, in accordance with the intended methods of
distribution set forth in such Registration Statement or Prospectus as so
amended.
(d) Furnish to such selling Holders and Participating Broker-Dealers who
so request (i) upon the Company's and the Guarantors' receipt, a copy of
the order of the SEC declaring such Registration Statement and any post-
effective amendment thereto effective, (ii) such reasonable number of
copies of such Registration Statement and of each amendment and supplement
thereto (in each case including any documents incorporated therein by
reference and all exhibits), (iii) such reasonable number of copies of the
Prospectus included in such Registration Statement (including each
preliminary Prospectus), and such reasonable number of copies of the final
Prospectus as filed by the Company and the Guarantors pursuant to Rule
424(b) under the Securities Act, in conformity with the requirements of the
Securities Act, and (iv) such other documents (including any amendments
required to be filed pursuant to Section 6(c)), as any such Person may
reasonably request. The Company and the Guarantors hereby consent to the
use (in
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accordance with applicable law) of the Prospectus by each of the selling
Holders of Registrable Securities and by each such Participating Broker-
Dealer, as the case may be, and the underwriters or agents, if any, and
dealers (if any), in connection with the offering and sale of the
Registrable Securities covered by, or the sale by Participating Broker-
Dealers of the Exchange Securities pursuant to, such Prospectus and any
amendment thereto.
(e) If (A) a Shelf Registration is filed pursuant to Section 3 or (B) a
Prospectus contained in an Exchange Offer Registration Statement filed
pursuant to Section 2 is required to be delivered under the Securities Act
by any Participating Broker-Dealer who seeks to sell Exchange Securities
during the Applicable Period, notify the selling Holders of Registrable
Securities, their Special Counsel, each Participating Broker-Dealer and the
managing underwriters, if any, promptly (but in any event within two
Business Days), and confirm such notice in writing, (i) when a Prospectus
has been filed, and, with respect to a Registration Statement or any post-
effective amendment, when the same has become effective under the
Securities Act, (ii) of the issuance by the SEC of any stop order
suspending the effectiveness of a Registration Statement or of any order
preventing or suspending the use of any Prospectus or the initiation of any
proceedings for that purpose, (iii) if, at any time when a Prospectus is
required by the Securities Act to be delivered in connection with sales of
the Registrable Securities, the representations and warranties of the
Company and the Guarantors contained in any agreement (including any
underwriting agreement) contemplated by Section 6(m) below cease to be true
and correct in any material respect, (iv) of the receipt by the Company or
any of the Guarantors of any notification with respect to the suspension of
the qualification or exemption from qualification of a Registration
Statement or any of the Registrable Securities or the Exchange Securities
to be sold by any Participating Broker-Dealer for offer or sale in any
jurisdiction, or the contemplation, initiation or threatening of any
proceeding for such purpose, (v) of the happening of any event that would
cause any statement made in such Registration Statement or related
Prospectus or any document incorporated or deemed to be incorporated
therein by reference to be untrue in any material respect or that requires
the making of any changes in such Registration Statement, Prospectus or
documents so that it will not contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances
under which such statements were made, not misleading, and (vi) of the
Company's and the Guarantors' reasonable determination that a post-
effective amendment to a Registration Statement would be appropriate.
(f) Use their respective reasonable best efforts to register or qualify,
and, if applicable, to cooperate with the selling Holders of Registrable
Securities, the underwriters, if any, and their respective counsel in
connection with the registration or qualification (or exemption from such
registration or qualification) of, Securities to be included in a
Registration Statement for offer and sale under the securities or Blue Sky
laws of such jurisdictions within the United States as any selling Holder,
Participating Broker-Dealer or the managing underwriters reasonably request
in writing; and, if Securities are offered other than through an
Underwritten Offering, the Company and the Guarantors shall cause their
respective counsel to perform Blue Sky investigations and file
registrations and qualifications required to be filed pursuant to this
Section 6(f) at the expense of the Company and the Guarantors; keep each
such registration or qualification (or exemption therefrom) effective
during the period such Registration Statement is required to be kept
effective and do any and all other acts or things necessary or advisable to
enable the disposition in such jurisdictions of the Securities covered by
the applicable Registration Statement, provided, however, that the Company
and any Guarantor shall not be required to (i) qualify generally to do
business in any jurisdiction where it is not then so qualified, (ii) take
action that would subject it to general service of process in any
jurisdiction where it is not so subject or (iii) take action that would
subject it to taxation in respect of doing business in any such
jurisdiction where it is not then subject.
(g) Use their respective reasonable best efforts to prevent the issuance
of any order suspending the effectiveness of a Registration Statement or of
any order preventing or suspending the use of a Prospectus or suspending
the qualification (or exemption from qualification) of any of the
Securities for sale in any jurisdiction, and, if any such order is issued,
to use their respective reasonable best efforts to obtain the withdrawal of
any such order at the earliest possible time.
9
(h) If (A) a Shelf Registration is filed pursuant to Section 3 or (B) a
Prospectus contained in an Exchange Offer Registration Statement filed
pursuant to Section 2 is required to be delivered under the Securities Act
by any Participating Broker-Dealer who seeks to sell Exchange Securities
during the Applicable Period, and if requested by the managing
underwriters, if any, such Participating Broker-Dealer or the Holders of a
majority in aggregate principal amount of the Registrable Securities, (i)
promptly incorporate in a Prospectus or post-effective amendment such
information as the managing underwriters, if any, or such Holders
reasonably request to be included therein as required to comply with any
Applicable Law and (ii) make all required filings of such Prospectus or
such post-effective amendment as soon as practicable after the Company and
the Guarantors have received notification of such matters required by
Applicable Law to be incorporated in such Prospectus or post-effective
amendment.
(i) If (A) a Shelf Registration is filed pursuant to Section 3 or (B) a
Prospectus contained in an Exchange Offer Registration Statement filed
pursuant to Section 2 is required to be delivered under the Securities Act
by any Participating Broker-Dealer who seeks to sell Exchange Securities
during the Applicable Period, cooperate with the selling Holders, such
Participating Broker-Dealer and the managing underwriters, if any, to
facilitate the timely preparation and delivery of certificates representing
Registrable Securities to be sold, which certificates shall not bear any
restrictive legends and shall be in a form eligible for deposit with The
Depository Trust Company ("DTC"); and enable such Registrable Securities to
be in such denominations and registered in such names as the managing
underwriters, if any, such Participating Broker-Dealer or the Holders may
request.
(j) If (i) a Shelf Registration is filed pursuant to Section 3 or (ii) a
Prospectus contained in an Exchange Offer Registration Statement filed
pursuant to Section 2 is required to be delivered under the Securities Act
by any Participating Broker-Dealer who seeks to sell Exchange Securities
during the Applicable Period, upon the occurrence of any event contemplated
by paragraph 6(e)(v) or 6(e)(vi) above, as promptly as practicable prepare
a supplement or post-effective amendment to the Registration Statement or a
supplement to the related Prospectus or any document incorporated or deemed
to be incorporated therein by reference, or file any other required
document so that, as thereafter delivered to the purchasers of the
Registrable Securities being sold thereunder or to the purchasers of the
Exchange Securities to whom such Prospectus will be delivered by a
Participating Broker-Dealer, 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, and, if SEC
review is required, use their respective reasonable best efforts to cause
such amendment to be declared effective as soon as practicable.
(k) Use their respective reasonable best efforts to cause the Securities
covered by a Registration Statement to be rated with the appropriate rating
agencies, if appropriate, if so requested by the Holders of a majority in
aggregate principal amount of Securities covered by such Registration
Statement or the managing underwriters, if any.
(l) Prior to the effective date of the first Registration Statement
relating to the Securities, (i) provide the applicable trustee with printed
certificates for the Securities in a form eligible for deposit with DTC and
(ii) provide a CUSIP number for each of the Securities.
(m) If a Shelf Registration is filed pursuant to Section 3, enter into
such agreements (including, if requested, an underwriting agreement in
form, scope and substance as is customary in Underwritten Offerings) and
take all such other actions in connection therewith (including those
reasonably requested by the managing underwriters, if any, or the Holders
of a majority in aggregate principal amount of Registrable Securities being
sold) in order to expedite or facilitate the registration or the
disposition of such Registrable Securities, and in such connection, whether
or not an underwriting agreement is entered into and whether or not the
registration is an Underwritten Registration, (i) make such representations
and warranties to the Holders and the underwriters, if any, with respect to
the business of the Company and its subsidiaries, and the Registration
Statement, Prospectus and documents, if any, incorporated or deemed to be
incorporated by reference therein, in each case, in form, substance and
scope as are customarily made
10
by issuers to underwriters in Underwritten Offerings, and confirm the same
if and when reasonably requested; (ii) obtain opinions of counsel to the
Company and the Guarantors and updates thereof (which counsel and opinions
(in form, scope and substance) shall be reasonably satisfactory to the
managing underwriters, if any, and the Holders of a majority in aggregate
principal amount of the Registrable Securities being sold), addressed to
each selling Holder and each of the underwriters, if any, covering the
matters customarily covered in opinions requested in Underwritten
Offerings; (iii) obtain "cold comfort" letters and updates thereof (which
letters and updates (in form, scope and substance) shall be reasonably
satisfactory to the managing underwriters) from the independent certified
public accountants of the Company and each of the Guarantors (and, if
necessary, any other independent certified public accountants of any
subsidiary of the Company or of any business acquired by the Company for
which financial statements and financial data are, or are required to be,
included in the Registration Statement), addressed to each of the
underwriters and each selling Holder, such letters to be in customary form
and covering matters of the type customarily covered in "cold comfort"
letters in connection with Underwritten Offerings and such other matters as
reasonably requested by underwriters; and (iv) deliver such documents and
certificates as may be reasonably requested by the Holders of a majority in
principal amount of the Registrable Securities being sold and the managing
underwriters, if any, to evidence the continued validity of the
representations and warranties of the Company and the Guarantors and their
respective subsidiaries made pursuant to clause (i) above and to evidence
compliance with any conditions contained in the underwriting agreement or
other similar agreement entered into by the Company and the Guarantors.
(n) Comply with all applicable rules and regulations of the SEC and make
generally available to its security holders a consolidated earnings
statement (which need not be audited) satisfying the provisions of Section
11(a) of the Securities Act and Rule 158 thereunder (or any similar rule
promulgated under the Securities Act) no later than 45 days after the end
of any 12-month period (or 90 days after the end of any 12-month period if
such period is a fiscal year) (i) commencing on the first day of the fiscal
quarter following each fiscal quarter in which Registrable Securities are
sold to underwriters in a firm commitment or best efforts underwritten
offering and (ii) if not sold to underwriters in such an offering,
commencing on the first day of the first fiscal quarter of the Company
after the effective date of a Registration Statement, which statement shall
cover said 12-month periods.
(o) Upon consummation of an Exchange Offer or Private Exchange, obtain
an opinion of counsel to the Company and the Guarantors (in form, scope and
substance reasonably satisfactory to the Initial Purchasers), addressed to
all Holders participating in the Exchange Offer or Private Exchange, as the
case may be, to the effect that (i) the Company and the Guarantors have
duly authorized, executed and delivered the Exchange Securities or the
Private Exchange Securities, as the case may be, and the Indenture, (ii)
the Exchange Securities or the Private Exchange Securities, as the case may
be, and the Indenture constitute legal, valid and binding obligations of
the Company and the Guarantors, enforceable against the Company and the
Guarantors in accordance with their respective terms, except as such
enforcement may be subject to (x) applicable bankruptcy, insolvency,
reorganization, moratorium and similar laws affecting creditors' rights and
remedies generally and (y) general principles of equity (regardless of
whether such enforcement is sought in a proceeding in equity or at law),
and (iii) all obligations of the Company and the Guarantors under the
Exchange Securities or the Private Exchange Securities, as the case may be,
and the Indenture are secured by Liens (as defined in the Indenture) on the
assets securing the obligations of the Company and the Guarantors under the
Notes and the Indenture immediately prior to the consummation of such
Exchange Offer or Private Exchange, as the case may be.
(p) If an Exchange Offer or Private Exchange is to be consummated, upon
delivery of the Registrable Securities by such Holders to the Company and
the Guarantors (or to such other Person as directed by the Company and the
Guarantors) in exchange for the Exchange Securities or the Private Exchange
Securities, as the case may be, the Company and the Guarantors shall mark,
or caused to be marked, on such Registrable Securities that such
Registrable Securities are being cancelled in exchange for the Exchange
Securities or the Private Exchange Securities, as the case may be, and in
no event shall such Registrable Securities be marked as paid or otherwise
satisfied.
11
(q) Cooperate with each seller of Registrable Securities covered by any
Registration Statement and each underwriter, if any, participating in the
disposition of such Registrable Securities and their respective counsel in
connection with any filings required to be made with the NASD.
(r) Use their respective reasonable best efforts to take all other steps
necessary to effect the registration of the Registrable Securities covered
by a Registration Statement contemplated hereby.
The Company and the Guarantors may require each seller of Registrable
Securities or Participating Broker-Dealer as to which any registration is being
effected to furnish to the Company and the Guarantors such information
regarding such seller or Participating Broker-Dealer and the distribution of
such Registrable Securities or Exchange Securities as the Company and the
Guarantors may, from time to time, reasonably request in writing. The Company
and the Guarantors may exclude from such registration the Registrable
Securities of any seller or Exchange Securities of any Participating Broker-
Dealer who unreasonably fails to furnish such information.
Each Holder and each Participating Broker-Dealer agrees by acquisition of
such Registrable Securities or Exchange Securities of any Participating Broker-
Dealer that, upon receipt of written notice from the Company and the Guarantors
of the happening of any event of the kind described in Section 6(e)(ii),
6(e)(iv), 6(e)(v) or 6(e)(vi), such Holder will forthwith discontinue
disposition (in the jurisdictions specified in a notice of a 6(e)(iv) event,
and elsewhere in a notice of a 6(e)(ii), 6(e)(v) or 6(e)(vi) event) of such
Securities covered by such Registration Statement or Prospectus until the
earlier of (i) such Holder's receipt of the copies of the supplemented or
amended Prospectus contemplated by Section 6(j); or (ii) the time such Holder
is advised in writing (the "Advice") by the Company and the Guarantors that
offers or sales in a particular jurisdiction may be resumed, or that the use of
the applicable Prospectus may be resumed, as the case may be, and has received
copies of any amendments or supplements thereto. If the Company and the
Guarantors shall give such notice, each of the Effectiveness Period and the
Applicable Period shall be extended by the number of days during such periods
from and including the date of the giving of such notice to and including the
date when each seller of such Securities covered by such Registration Statement
shall have received (x) the copies of the supplemented or amended Prospectus
contemplated by Section 6(j) or (y) the Advice.
7. Registration Expenses.
(a) All fees and expenses incident to the performance of or compliance
with this Agreement by the Company and the Guarantors shall be borne by the
Company and the Guarantors shall be borne by the Company and the Guarantors
whether or not the Exchange Offer or a Shelf Registration is filed or
becomes effective, including, without limitation:
(i) all registration and filing fees (including, without limitation,
(A) fees with respect to filings required to be made with the NASD and
(B) fees and expenses of compliance with state securities or Blue Sky
laws (including, without limitation, reasonable fees and disbursements
of counsel in connection with Blue Sky qualifications of the
Registrable Securities or Exchange Securities and determination of the
eligibility of the Registrable Securities or Exchange Securities for
investment under the laws of such jurisdictions (x) where the Holders
are located, in the case of the Exchange Securities, or (y) as provided
in Section 6(f), in the case of Registrable Securities or Exchange
Securities to be sold by a Participating Broker-Dealer during the
Applicable Period));
(ii) printing expenses (including, without limitation, expenses of
printing certificates for Registrable Securities or Exchange Securities
in a form eligible for deposit with DTC and of printing prospectuses if
the printing of prospectuses is requested by the managing underwriters,
if any, or, in respect of Registrable Securities or Exchange Securities
to be sold by a Participating Broker-Dealer during the Applicable
Period, by the Holders of a majority in aggregate principal amount of
the Registrable Securities included in any Registration Statement or of
such Exchange Securities, as the case may be);
12
(iii) messenger, telephone, duplication, word processing and
delivery expenses incurred by the Company and the Guarantors in the
performance of their obligations hereunder;
(iv) fees and disbursements of counsel for the Company, the
Guarantors and, subject to Section 7(b), the Holders;
(v) fees and disbursements of all independent certified public
accountants referred to in Section 6(m)(iii) (including, without
limitation, the expenses of any special audit and "cold comfort"
letters required by or incident to such performance);
(vi) fees and expenses of any "qualified independent underwriter" or
other independent appraiser participating in an offering pursuant to
Section 3 of Schedule E to the By-laws of the NASD, but only where the
need for such a "qualified independent underwriter" arises due to a
relationship with the Company and the Guarantors; and
(vii) internal expenses of the Company and the Guarantors
(including, without limitation, all salaries and expenses of their
respective officers and employees performing legal or accounting
duties), the expenses of any annual audit and the fees and expenses of
any Person, including special experts, retained by the Company or the
Guarantors.
(b) The Company and the Guarantors shall reimburse the Holders for the
reasonable fees and disbursements of not more than one counsel (in addition
to appropriate local counsel) chosen by the Holders of a majority in
aggregate principal amount of the Registrable Securities to be included in
any Registration Statement and other reasonable and necessary out-of-pocket
expenses of the Holders incurred in connection with the registration of the
Registrable Securities.
8. Indemnification.
(a) Indemnification by the Company and the Guarantors. The Company and
the Guarantors, jointly and severally, shall, without limitation as to
time, indemnify and hold harmless each Holder and each Participating
Broker-Dealer, each Person who controls (within the meaning of Section 15
of the Securities Act or Section 20(a) of the Exchange Act (any of such
persons being hereinafter referred to as a "controlling person")) each such
Holder and each such Participating Broker-Dealer and the officers,
directors, partners, employees, representatives and agents of each such
Holder, Participating Broker-Dealer and controlling person (collectively,
the "Holder Indemnified Parties"), to the fullest extent lawful, from and
against any and all losses, claims, damages, liabilities, costs (including,
without limitation, costs of preparation and reasonable attorneys' fees)
and expenses (including, without limitation, costs and expenses incurred in
connection with investigating, preparing, pursuing or defending against any
of the foregoing) (collectively, "Losses"), as incurred, directly or
indirectly caused by, related to, based upon, arising out of or in
connection with any untrue or alleged untrue statement of a material fact
contained in any Registration Statement, Prospectus or form of prospectus,
or in any amendment or supplement thereto, or in any preliminary
prospectus, or any omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, except insofar as such Losses are based upon information
relating to such Holder or Participating Broker-Dealer and furnished in
writing to the Company and the Guarantors by such Holder or Participating
Broker-Dealer expressly for use therein. The Company and each of the
Guarantors shall also indemnify underwriters, selling brokers, dealer
managers and similar securities industry professionals participating in the
distribution, their officers, directors, agents and employees and each of
their respective controlling persons to the same extent as provided above
with respect to the indemnification of the Holder Indemnified Parties.
(b) Indemnification by Holders of Registrable Securities. In connection
with any Registration Statement, Prospectus or form of prospectus, any
amendment or supplement thereto, or any preliminary prospectus in which a
Holder is participating, such Holder shall furnish to the Company and the
Guarantors in writing such information as the Company and the Guarantors
reasonably request for use in
13
connection with any Registration Statement, Prospectus or form of
prospectus, any amendment or supplement thereto, or any preliminary
prospectus and shall, severally and not jointly, without limitation as to
time, indemnify and hold harmless the Company and the Guarantors, their
respective directors, officers, agents and employees, each controlling
person of the Company or any of the Guarantors and the directors, officers,
agents or employees of such controlling persons, to the fullest extent
lawful, from and against all Losses arising out of or based upon any untrue
or alleged untrue statement of a material fact contained in any
Registration Statement, Prospectus or form of prospectus or in any
amendment or supplement thereto or in any preliminary prospectus, or any
omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading to the
extent, but only to the extent, that such untrue statement or alleged
untrue statement of a material fact or omission or alleged omission of a
material fact is contained in or omitted from any information so furnished
in writing by such Holder to the Company and the Guarantors expressly for
use therein. In no event shall the liability of any selling Holder be
greater in amount than the dollar amount of the proceeds (net of payment of
all expenses) received by such Holder upon the sale of the Registrable
Securities giving rise to such indemnification obligation.
(c) Conduct of Indemnification Proceedings. If any Proceeding shall be
brought or asserted against any Person entitled to indemnification
hereunder (an "indemnified party"), such indemnified party shall promptly
notify the party or parties from which such indemnification is sought (the
"indemnifying parties") in writing; provided, that the failure to so notify
the indemnifying parties shall not relieve the indemnifying parties from
any obligation or liability except to the extent (but only to the extent)
that it shall be finally determined by a court of competent jurisdiction
(which determination is not subject to appeal) that the indemnifying
parties have been prejudiced materially by such failure.
The indemnifying party shall have the right, exercisable by giving written
notice to an indemnified party, within 20 Business Days after receipt of
written notice from such indemnified party of such Proceeding, to assume, at
its expense, the defense of any such Proceeding, provided, that an indemnified
party shall have the right to employ separate counsel in any such Proceeding
and to participate in the defense thereof, but the fees and expenses of such
counsel shall be at the expense of such indemnified party or parties unless:
(1) the indemnifying party has agreed to pay such fees and expenses; (2) the
indemnifying party shall have failed promptly to assume the defense of such
Proceeding or shall have failed to employ counsel reasonably satisfactory to
such indemnified party; or (3) the named parties to any such Proceeding
(including any impleaded parties) include both such indemnified party and the
indemnifying party or any of its affiliates or controlling persons, and such
indemnified party shall have been advised by such counsel that there may be one
or more defenses available to such indemnified party that are in addition to,
or in conflict with, those defenses available to the indemnifying party or such
affiliate or controlling person (in which case, if such indemnified party
notifies the indemnifying parties in writing that it elects to employ separate
counsel at the expense of the indemnifying parties, the indemnifying parties
shall not have the right to assume the defense thereof and the reasonable fees
and expenses of such counsel shall be at the expense of the indemnifying party;
it being understood, however, that, the indemnifying party shall not, in
connection with any one such Proceeding or separate but substantially similar
or related Proceedings in the same jurisdiction, arising out of the same
general allegations or circumstances, be liable for the fees and expenses of
more than one separate firm of attorneys (together with appropriate local
counsel) at any time for such indemnified party).
No indemnifying party shall be liable for any settlement of any such
Proceeding effected without its written consent, but if settled with its
written consent, or if there be a final judgment for the plaintiff in any such
Proceeding, each indemnifying party jointly and severally agrees, subject to
the exceptions and limitations set forth above, to indemnify and hold harmless
each indemnified party from and against any and all Losses by reason of such
settlement or judgment. The indemnifying party shall not consent to the entry
of any judgment or enter into any settlement that does not include as an
unconditional term thereof the giving by the claimant or plaintiff to each
indemnified party of a release, in form and substance reasonably satisfactory
to the indemnified party, from all liability in respect of such Proceeding for
which such indemnified party would be entitled to indemnification hereunder
(whether or not any indemnified party is a party thereto).
14
(d) Contribution. If the indemnification provided for in this Section 8
is unavailable to an indemnified party or is insufficient to hold such
indemnified party harmless for any Losses in respect of which this Section
8 would otherwise apply by its terms (other than by reason of exceptions
provided in this Section 8), then each applicable indemnifying party, in
lieu of indemnifying such indemnified party, shall have a joint and several
obligation to contribute to the amount paid or payable by such indemnified
party as a result of such Losses, (i) in such proportion as is appropriate
to reflect the relative benefits received by the indemnifying party, on the
one hand, and such indemnified party, on the other hand, from the offering
of the Notes, or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of the indemnifying party, on the one hand, and
such indemnified party, on the other hand, in connection with the actions,
statements or omissions that resulted in such Losses as well as any other
relevant equitable considerations. The relative fault of such indemnifying
party, on the one hand, and indemnified party, on the other hand, shall be
determined by reference to, among other things, whether any untrue or
alleged untrue statement of a material fact or omission or alleged omission
to state a material fact relates to information supplied by such
indemnifying party or indemnified party, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent any
such statement or omission. The amount paid or payable by an indemnified
party as a result of any Losses shall be deemed to include any legal or
other fees or expenses incurred by such party in connection with any
Proceeding, to the extent such party would have been indemnified for such
fees or expenses if the indemnification provided for in Section 8(a) or
8(b) was available to such party.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 8(d) 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(d), an indemnifying
party that is a selling Holder shall not be required to contribute, in the
aggregate, any amount in excess of such Holder's Maximum Contribution Amount. A
selling Holder's "Maximum Contribution Amount" shall equal the excess, if any,
of (i) the aggregate proceeds received by such Holder pursuant to the sale of
such Registrable Securities over (ii) the aggregate amount of damages that such
Holder has otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any Person who was not
guilty of such fraudulent misrepresentation.
The indemnification and contribution agreements contained in this Section 8
are in addition to any liability that the indemnifying parties may have to the
indemnified parties.
9. Rule 144 and Rule 144A.
The Company covenants that it shall (a) file the reports required to be
filed by it (if so required) under the Securities Act and the Exchange Act in a
timely manner and, if at any time any such Person is not required to file such
reports, it will, upon the request of any Holder, make publicly available other
information necessary to permit sales pursuant to Rule 144 and Rule 144A and
(b) take such further action as any Holder may reasonably request, all to the
extent required from time to time to enable such Holder to sell Registrable
Securities without registration under the Securities Act pursuant to the
exemptions provided by Rule 144 and Rule 144A. Upon the request of any Holder,
the Company and the Guarantors shall deliver to such Holder a written statement
as to whether they have complied with such information requirements.
10. Underwritten Registrations.
If any of the Registrable Securities covered by any Shelf Registration are
to be sold in an Underwritten Offering, the investment banker or investment
bankers and manager or managers that will manage the offering will be selected
by the Holders of a majority in aggregate principal amount of such Registrable
Securities included in such offering.
15
No Holder may participate in any Underwritten Registration hereunder unless
such ▇▇▇▇▇▇ (a) agrees to sell such ▇▇▇▇▇▇'s Registrable 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, underwriting agreements and other
documents reasonably required under the terms of such underwriting
arrangements.
11. Miscellaneous.
(a) Remedies. In the event of a breach by the Company or any of the
Guarantors of any of their respective obligations under this Agreement,
each Holder, in addition to being entitled to exercise all rights provided
herein, in the Indenture or, in the case of the Initial Purchasers, in the
Purchase Agreement, or granted by law, including recovery of damages, will
be entitled to specific performance of its rights under this Agreement. The
Company and the Guarantors agree that monetary damages would not be
adequate compensation for any loss incurred by reason of a breach by the
Company or any of the Guarantors of any of the provisions of this Agreement
and hereby further agree that, in the event of any action for specific
performance in respect of such breach, the Company and the Guarantors shall
waive the defense that a remedy at law would be adequate.
(b) No Inconsistent Agreements. The Company and the Guarantors have not
entered into, as of the date hereof, and shall not enter into, after the
date of this Agreement, any agreement with respect to any of their
respective securities that is inconsistent with the rights granted to the
Holders in this Agreement or otherwise conflicts with the provisions
hereof.
(c) Amendments and Waivers. The provisions of this Agreement, including
the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions
hereof may not be given, unless the Company and the Guarantors have
obtained the written consent of Holders of at least a majority of the then
outstanding aggregate principal amount of Registrable Securities; provided,
that Section 8 shall not be amended, modified or supplemented, and waivers
or consents to departures from this proviso may not be given, unless the
Company and the Guarantors have obtained the written consent of each
Holder. Notwithstanding the foregoing, a waiver or consent to depart from
the provisions hereof with respect to a matter that relates exclusively to
the rights of Holders whose securities are being sold pursuant to a
Registration Statement and that does not directly or indirectly affect the
rights of other Holders may be given by Holders of at least a majority in
aggregate principal amount of the Registrable Securities being sold by such
Holders pursuant to such Registration Statement, provided that the
provisions of this sentence may not be amended, modified or supplemented
except in accordance with the provisions of the immediately preceding
sentence.
(d) Notices. All notices and other communications (including, without
limitation, any notices or other communications to the Trustee) provided
for or permitted hereunder shall be made in writing by hand-delivery,
certified first-class mail, return receipt requested, next-day air courier
or facsimile:
(i) if to a Holder, at the most current address given by such Holder
to the Company and the Guarantors in accordance with the provisions of
this Section 11(d), which address initially is, with respect to each
Holder, the address of such Holder maintained by the Registrar (as
defined in the Indenture), with a copy to Skadden, Arps, Slate, ▇▇▇▇▇▇▇
& ▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
telecopy number (▇▇▇) ▇▇▇-▇▇▇▇, Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.;
and
(ii) if to the Company or any of the Guarantors, initially at ▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: General Counsel, telecopy
number (▇▇▇) ▇▇▇-▇▇▇▇, with a copy to ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, LLP, ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq., and thereafter at such other address, notice
of which is given in accordance with the provisions of this Section
11(d).
16
All such notices and communications shall be deemed to have been duly given:
when delivered by hand, if personally delivered; five Business Days after being
deposited in the mail, postage prepaid, if mailed; one Business Day after being
timely delivered to a next-day air courier; and when receipt is acknowledged by
the addressee, if telecopied.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee under the
Indenture at the address specified in such Indenture.
(e) Successors and Assigns. This Agreement shall inure to the benefit of
and be binding upon the successors and assigns of each of the parties,
including, without limitation and without the need for an express
assignment, subsequent Holders.
(f) 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.
(g) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(h) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, INCLUDING, WITHOUT
LIMITATION, SECTION 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS
LAW AND NEW YORK CIVIL PRACTICE LAWS AND RULES 329(b). THE COMPANY AND EACH
OF THE GUARANTORS HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY
NEW YORK STATE COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW
YORK OR ANY FEDERAL COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY
OF NEW YORK IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THIS AGREEMENT, AND IRREVOCABLY ACCEPTS FOR ITSELF AND IN
RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, JURISDICTION OF THE
AFORESAID COURTS. THE COMPANY AND EACH OF THE GUARANTORS IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO UNDER APPLICABLE
LAW, TRIAL BY JURY AND ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO
THE LAYING OF THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN
ANY SUCH COURT AND ANY CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING
BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. THE
COMPANY AND EACH OF THE GUARANTORS IRREVOCABLY CONSENTS, TO THE FULLEST
EXTENT IT MAY EFFECTIVELY DO SO UNDER APPLICABLE LAW, TO THE SERVICE OF
PROCESS OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR
PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED
MAIL, POSTAGE PREPAID, TO THE COMPANY AND THE GUARANTORS AT ITS SAID
ADDRESS, SUCH SERVICE TO BECOME EFFECTIVE 30 DAYS AFTER SUCH MAILING.
NOTHING HEREIN SHALL AFFECT THE RIGHT OF ANY HOLDER TO SERVE PROCESS IN ANY
OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE
PROCEED AGAINST THE COMPANY OR ANY GUARANTOR IN ANY OTHER JURISDICTION.
(i) Severability. If any term, provision, covenant or restriction of
this Agreement is held by a court of competent jurisdiction to be invalid,
illegal, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full force and
effect and shall in no way be affected, impaired or invalidated, and the
parties hereto shall use their best efforts to find and employ an
alternative means to achieve the same or substantially the same result as
that contemplated by such term, provision, covenant or restriction. It is
hereby stipulated and declared to be the intention of the parties that they
would have executed the remaining terms, provisions, covenants and
restrictions without including any of such that may be hereafter declared
invalid, illegal, void or unenforceable.
17
(j) Entire Agreement. This Agreement is intended by the parties as a
final expression of their agreement, and is intended to be a complete and
exclusive statement of the agreement and understanding of the parties
hereto in respect of the subject matter contained herein. There are no
restrictions, promises, warranties or undertakings, other than those set
forth or referred to herein, with respect to the registration rights
granted by the Company and the Guarantors in respect of securities sold
pursuant to the Purchase Agreement. This Agreement supersedes all prior
agreements and understandings between the parties with respect to such
subject matter.
(k) Attorneys' Fees. In any Proceeding brought to enforce any provision
of this Agreement, or where any provision hereof is validly asserted as a
defense, the prevailing party, as determined by the courts, shall be
entitled to recover reasonable attorneys' fees in addition to its costs and
expenses and any other available remedy.
(l) Securities Held by the Company or its Affiliates. Whenever the
consent or approval of Holders of a specified percentage of Registrable
Securities is required hereunder, Registrable Securities held by the
Company or its affiliates (as such term is defined in Rule 405 under the
Securities Act) (other than Holders deemed to be such affiliates solely by
reason of their holdings of such Registrable Securities) shall not be
counted in determining whether such consent or approval was given by the
Holders of such required percentage.
(m) Gaming Laws. Each of the provisions of this Agreement is subject to
and shall be enforced in compliance with applicable gaming laws.
[Signature pages follow this page].
18
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
MIKOHN GAMING CORPORATION
By: /s/
__________________________________
Name:
Title:
CASINO EXCITEMENT, INC.
By: /s/
__________________________________
Name:
Title:
GAMES OF NEVADA, INC.
By: /s/
__________________________________
Name:
Title:
MGC, INC.
By: /s/
__________________________________
Name:
Title:
MIKOHN INTERNATIONAL, INC.
By: /s/
__________________________________
Name:
Title:
MIKOHN NEVADA
By: /s/
__________________________________
Name:
Title:
19
PROGRESSIVE GAMES, INC.
By: /s/
___________________________________
Name:
Title:
ACCEPTED AND AGREED TO:
▇▇▇▇▇▇▇▇▇ & COMPANY, INC.
By: /s/
___________________________________
Name:
Title:
CIBC WORLD MARKETS CORP.
By: /s/
___________________________________
Name:
Title:
20