REGISTRATION RIGHTS AGREEMENTS
This Registration Rights Agreement ("Agreement") is made and entered
into as of April 21, 1997 by and between WHG RESORTS & CASINOS INC., a Delaware
corporation (the "Company"), and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ("▇▇▇▇▇▇▇▇").
WHEREAS, ▇▇▇▇▇▇▇▇ and the Company have entered into a Put and Call
Agreement which provides under certain circumstances for ▇▇▇▇▇▇▇▇ to acquire,
from the Company, 300,000 shares of Series B Preferred Stock, par value $.01 per
share, of the Company (the "Preferred Stock"); and
WHEREAS, the Preferred Stock is convertible into shares of the
Company's voting common stock, par value $.01 per share (the "Common Stock");
and
WHEREAS, ▇▇▇▇▇▇▇▇ and the Company desire to enter into this Agreement
to set forth the terms pursuant to which the Company will file registration
statements under the Securities Act of 1933, as amended (the "Securities Act"),
to permit ▇▇▇▇▇▇▇▇ to offer and sell the shares of Common Stock issuable upon
conversion of the Preferred Stock.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
1. SECURITIES SUBJECT TO THIS AGREEMENT
For purposes of this Agreement, "Registrable Securities" shall
mean the shares of Common Stock which may be issued upon conversion of any
shares of Preferred Stock until such time as (i) a registration statement
covering such Registrable Securities has been declared effective and such
Registrable Securities have been disposed of pursuant to such effective
registration statement or (ii) such Registrable Securities are eligible for sale
without registration and without regard to volume limitations pursuant to Rule
144 (or any similar provision then in force) under the Securities Act, whichever
is earlier.
2. DEMAND REGISTRATION
2.1 REQUEST FOR REGISTRATION. At any time after the date
hereof, ▇▇▇▇▇▇▇▇ may make a written request for registration under the
Securities Act of all, but not less than all, of the Common Stock issued or
issuable upon conversion of Preferred Stock owned by ▇▇▇▇▇▇▇▇ (a "Demand
Registration"); provided that the Company need effect only one (1) Demand
Registration pursuant to this Section 2.1. Such request for a Demand
Registration shall specify the number of Registrable Securities proposed to be
sold and the intended method of disposition of the Registrable Securities.
2.2 EFFECTIVE REGISTRATION AND EXPENSES. ▇▇▇▇▇▇▇▇ may revoke
his request for a Demand Registration at any time prior to the effective date of
the registration statement relating to such Demand Registration. A registration
will not count as a Demand Registration until it has become effective. In any
registration initiated as a Demand Registration, the Company will pay or cause
to be paid all Registration Expenses (as defined in Section 6 below) in
connection therewith, whether or not the registration statement becomes
effective.
2.3 UNDERWRITING. If ▇▇▇▇▇▇▇▇ so elects, the offering of such
Registrable Securities pursuant to such Demand Registration shall be in the form
of an underwritten offering through the underwriter(s) ▇▇▇▇▇▇▇▇ designates;
provided, however, that such underwriter must be reasonably satisfactory to the
Company. If the underwriter does not limit the number of Registrable Securities
to be underwritten in a Demand Registration, the Company may include securities
for its own account or the account of others in such registration if the
underwriters so agree and if the number of Registrable Securities which would
otherwise have been included in such registration and underwriting will not
thereby be limited.
2.4 DELAY OF DEMAND REGISTRATION. Notwithstanding any other
provision of this Agreement, if underwriters for the Company determine that an
offering by the Company then being conducted or about to be conducted would be
adversely affected by a Demand Registration, the Company may delay such a Demand
Registration for a period of up to 180 days.
3. PIGGY-BACK REGISTRATION
3.1 If the Company proposes to file a registration statement
(other than a Demand Registration) under the Securities Act with respect to an
offering by the Company for its own account or for the account of others (other
than a registration statement on Forms S-4 or S-8 or filed in connection with an
exchange offer or an offering of securities solely to the Company's existing
stockholders) of any class of security of the Company, then the Company shall in
each case give written notice of such proposed filing to ▇▇▇▇▇▇▇▇ at least 10
days before the anticipated filing date, and such notice shall offer ▇▇▇▇▇▇▇▇
the opportunity to register such Registrable Securities as he may request (a
"Piggy-back Registration"). On request of ▇▇▇▇▇▇▇▇ received by the Company
within 10 days after the receipt by ▇▇▇▇▇▇▇▇ of the Company's notice of
intention to file the proposed registration statement, the Company shall include
in such registration and qualification for sale under the blue sky or securities
laws of the various states, and in any underwriting in connection therewith, the
number of shares of Registrable Securities held and requested to be registered
by ▇▇▇▇▇▇▇▇, which may be all or any part of the Registrable Securities,
provided that if such registration involves an underwritten offering, ▇▇▇▇▇▇▇▇
must sell any Registrable Securities to be included in such registration
statement to the underwriters selected by the Company on the same terms and
conditions as apply to the Company.
3.2 The Company shall use its best efforts to cause the
managing underwriter or underwriters of a proposed underwritten offering to
permit ▇▇▇▇▇▇▇▇ to include such Registrable Securities in such offering on the
same terms and conditions as any similar securities
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of the Company included therein. Notwithstanding the foregoing, if the managing
underwriter or underwriters of such offering delivers an opinion to ▇▇▇▇▇▇▇▇
that the number of shares which ▇▇▇▇▇▇▇▇ and the Company intend to include in
such offering is so large as to materially and adversely affect the success of
such offering (including the price at which such securities can be sold), then
the amount of securities to be offered for the account of ▇▇▇▇▇▇▇▇ shall be
reduced to the extent necessary to reduce the number of shares to be included in
such offering to the number recommended by such managing underwriter or
underwriters.
3.3 No registration effected under this Section 3 shall
relieve the Company of its obligation to effect the Demand Registration. The
Company may withdraw any registration statement referred to in this Section at
any time without incurring liability to ▇▇▇▇▇▇▇▇.
4. HOLDBACK AGREEMENTS
4.1 RESTRICTIONS ON PUBLIC SALE BY ▇▇▇▇▇▇▇▇. To the extent not
inconsistent with applicable law, ▇▇▇▇▇▇▇▇ agrees not to effect any public sale
or distribution of Common Stock which he beneficially owns by reason of
conversion of Preferred Stock during the 14 days prior to, and during the 90-day
period beginning on, the effective date of a registration statement that
includes Registrable Securities (except as part of such registration), but only
if and to the extent requested in writing (with reasonable prior notice) by the
managing underwriter or underwriters in the case of an underwritten public
offering by the Company of securities similar to the Registrable Securities or
by the Company in the case of such an offering that is not underwritten.
4.2 RESTRICTIONS ON PUBLIC SALE BY THE COMPANY. The Company
agrees not to effect any public sale or distribution of Common Stock during the
14 days prior to, and during the 90-day period beginning on, the effective date
of any registration statement which includes Registrable Securities (except as
part of such registration).
5. REGISTRATION PROCEDURES
Whenever any Registrable Securities are to be registered
pursuant to Section 2 or Section 3 of this Agreement, the Company will use its
best efforts to effect the registration and the sale of such Registrable
Securities in accordance with the intended method of disposition thereof
promptly, and in connection with any Demand Registration or with any Piggy-back
Registration, the Company will promptly;
5.1 prepare and file with the Securities and Exchange
Commission (the "Commission") a registration statement which includes the
Registrable Securities and use its best efforts to cause such registration
statement to become effective; provided that before filing a registration
statement or prospectus or any amendments or supplements thereto, including
documents incorporated by reference after the initial filing of the registration
statement, the Company will furnish to ▇▇▇▇▇▇▇▇ and to the underwriters, if any,
draft copies of all such documents proposed to be filed at least five (5)
business days prior thereto, which documents
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will be subject to the reasonable review of ▇▇▇▇▇▇▇▇ and such underwriters, and
the Company will not, unless required by law, file any registration statement or
amendment thereto or any prospectus or any supplement thereto (including such
documents incorporated by reference) to which ▇▇▇▇▇▇▇▇ shall reasonably object.
The Company will notify ▇▇▇▇▇▇▇▇ of any stop order issued or threatened by the
Commission in connection therewith and take all reasonable actions required to
prevent the entry of such stop order or to remove it if entered;
5.2 prepare and file with the Commission such amendments and
post-effective amendments to the registration statement as may be necessary to
keep the registration statement effective for a period of not less than 180 days
(or such shorter period which will terminate when all Registrable Securities
covered by such registration statement have been sold or withdrawn, but not
prior to the expiration of the applicable period referred to in Section 4(3) of
the Securities Act and Rule 174 thereunder; if applicable); cause the prospectus
to be supplemented by any required prospectus supplement, and as so supplemented
to be filed pursuant to Rule 424 under the Securities Act; and comply with the
provisions of the Securities Act applicable to it with respect to the
disposition of all securities covered by such registration statement during the
applicable period in accordance with the intended methods of disposition thereof
set forth in such registration statement or supplement to the prospectus;
5.3 furnish to ▇▇▇▇▇▇▇▇ and the underwriter or underwriters,
if any, without charge, such number of conformed copies of the registration
statement, or any amendment thereto, and any post-effective amendment thereto
and such number of copies of the prospectus (including each preliminary
prospectus) and any amendments or supplements thereto, and any documents
incorporated by reference therein, as ▇▇▇▇▇▇▇▇ or such underwriter may request
in order to facilitate the disposition of the Registrable Securities being sold
by such holder (it being understood that the Company consents to the use of the
prospectus and any amendment or supplement thereto by ▇▇▇▇▇▇▇▇ and the
underwriter or underwriters, if any, in connection with the offering and sale of
the Registrable Securities covered by the prospectus or any amendment or
supplement thereto);
5.4 use its best efforts to list the Registrable Securities
covered by such registration statement with the New York Stock Exchange and any
other securities exchange on which the Common Stock of the Company is then
listed;
5.5 notify ▇▇▇▇▇▇▇▇ at any time when a prospectus relating to
the Registrable Securities is required to be delivered under the Securities Act,
when the Company becomes aware of the happening of any event as a result of
which the prospectus included in such registration statement (as then in effect)
contains any untrue statement of a material fact or omits to state a material
fact necessary to make the statements therein in light of the circumstances
under which they were made, not misleading and, as promptly as practicable
thereafter, prepare and file with the Commission and furnish a supplement or
amendment to such prospectus so that, as thereafter delivered to the purchasers
of such Registrable Securities, such prospectus will not contain any untrue
statement of a material fact or omit to state a material fact necessary to make
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the statements therein, in light of the circumstances under which they were
made, not misleading;
5.6 make generally available to its security holders an
earnings statement satisfying the provisions of Section 11(a) of the Securities
Act no later than 60 days after the end of the 12-month period beginning with
the first day of the Company's first fiscal quarter commencing after the
effective date of the registration statement, which earnings statement shall
cover said 12-month period, and which requirement will be deemed to be satisfied
if the Company timely files complete and accurate information on forms 10-Q,
10-K and 8-K under the Securities Exchange Act of 1934, as amended (the
"Exchange Act") and otherwise complies with Rule 158 under the Securities Act as
soon as possible;
5.7 make reasonable efforts to obtain the withdrawal of any
order suspending the effectiveness of the registration statement at the earliest
possible moment;
5.8 if requested by the managing underwriter or underwriters
or ▇▇▇▇▇▇▇▇, promptly incorporate in a prospectus supplement or post-effective
amendment such information as the managing underwriter or underwriters requests,
or ▇▇▇▇▇▇▇▇ reasonably requests, to be included therein, including, without
limitation, with respect to the principal amount of Registrable Securities being
sold by ▇▇▇▇▇▇▇▇ to such underwriter or underwriters, the purchase price being
paid therefor by such underwriter or underwriters and with respect to any other
terms of the underwritten offering of the Registrable Securities to be sold in
such offering, and promptly make all required filings of such prospectus
supplement or post-effective amendment;
5.9 as promptly as practicable after filing with the
Commission of any document which is incorporated by reference into a
registration statement, deliver a copy of such document to ▇▇▇▇▇▇▇▇;
5.10 on or prior to the date on which the registration
statement is declared effective, use its best efforts to register or qualify,
and cooperate with ▇▇▇▇▇▇▇▇, the underwriter or underwriters, if any, and their
counsel, in connection with the registration or qualification of the Registrable
Securities covered by the registration statement for offer and sale under the
securities or blue sky laws of each state and other jurisdiction of the United
States as ▇▇▇▇▇▇▇▇ or any such underwriter requests in writing, to use its best
efforts to keep each such registration or qualification effective, including
through new filings, or amendments or renewals, during the period such
registration statement is required to be kept effective and to do any and all
other acts or things necessary or advisable to enable the disposition in all
such jurisdictions of the Registrable Securities covered by the applicable
registration statement; provided that the Company will not be required to
qualify generally to do business in any jurisdiction where it is not then so
qualified or to take any action which would subject it to general service of
process in any such jurisdiction where it is not then so subject;
5.11 cooperate with ▇▇▇▇▇▇▇▇ and the managing underwriter or
underwriters, if any, to facilitate the timely preparation and delivery of
certificates (not bearing any restrictive
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legends) representing securities sold under the registration statement, and
enable such securities to be in such denominations and registered in such names
as the managing underwriter or underwriters, if any, or ▇▇▇▇▇▇▇▇ may request;
5.12 use its best efforts to cause the Registrable Securities
covered by the registration statement to be registered with or approved by such
other governmental agencies or authorities within the United States including
the blue sky or securities administrators of such jurisdictions as may be
requested by ▇▇▇▇▇▇▇▇, as may be necessary to enable ▇▇▇▇▇▇▇▇ or the underwriter
or underwriters, if any, to consummate the disposition of such securities;
5.13 if applicable, enter into such customary agreements
(including an underwriting agreement in customary form) and take such other
actions as ▇▇▇▇▇▇▇▇ or the underwriters, if any, request in order to expedite or
facilitate the disposition of such registrable Securities;
5.14 make available for inspection by ▇▇▇▇▇▇▇▇, any
underwriter participating in any disposition pursuant to such registration
statement, and any attorney, accountant or other agent retained by ▇▇▇▇▇▇▇▇ or
any such underwriter (collectively, the "Inspectors"), all financial and other
records, pertinent corporate documents and properties of the Company
(collectively, the "Records"), as shall be reasonably necessary to enable them
to exercise their due diligence responsibility, and cause the Company's
officers, directors and employees to supply all information requested by any
such Inspector in connection with such registration statement; provided that the
Company shall not be required to provide any information under this Section 5.14
if to do so would cause the Company to forfeit an attorney-client privilege that
was applicable to such information; and provided, further, that Records which
the Company determines, in good faith, to be confidential and which it notifies
the Inspectors are confidential shall not be disclosed to the Inspectors unless
(i) the disclosure of such Records is necessary to avoid or correct a
misstatement or omission in the registration statement or (ii) the release of
such Records is ordered pursuant to a subpoena or other order from a court of
competent jurisdiction; provided that prior to furnishing such information, the
Company shall be entitled to require ▇▇▇▇▇▇▇▇ to enter into a confidentiality
agreement in customary form and subject to customary exceptions and provided,
further, that any decision not to disclose information pursuant to clause (i)
shall be made after consultation with counsel for the Company and counsel for
▇▇▇▇▇▇▇▇; and ▇▇▇▇▇▇▇▇ agrees that he will, upon learning that disclosure of
such Records is sought in a court of competent jurisdiction give notice to the
Company and allow the Company at its expense, to undertake appropriate action
and to prevent disclosure of the Records deemed confidential; and
5.15 use reasonable efforts to obtain a cold comfort letter
from the Company's independent certified public accountants in customary form
and covering such matters of the type customarily covered by cold comfort
letters as ▇▇▇▇▇▇▇▇ or the underwriters, if any, shall reasonably request.
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5.16 Upon receipt of any notice from the Company of the
happening of any event of the kind described in Section 5.5 hereof, ▇▇▇▇▇▇▇▇
will forthwith discontinue disposition of the Registrable Securities until
receipt of the copies of the supplemented or amended prospectus contemplated by
Section 5.5 hereof or until he is advised in writing (the "Advice") by the
Company that the use of the prospectus may be resumed, and has received copies
of any additional or supplemental filings which are incorporated by reference in
the prospectus and, if so directed by the Company, ▇▇▇▇▇▇▇▇ will, or will
request the managing underwriter or underwriters, if any, to deliver to the
Company (at the Company's expense) all copies, other than permanent file copies
then in his possession, of the prospectus covering such Registrable Securities
current at the time of receipt of such notice. In the event the Company shall
give any such notice, the time periods mentioned in Section 5.2 hereof shall be
extended by the number of days during the period from and including the date of
the giving of such notice to and including the date when ▇▇▇▇▇▇▇▇ shall have
received the copies of the supplemented or amended prospectus contemplated by
Section 5.5 hereof or the Advice.
6. REGISTRATION EXPENSES
All expenses incident to the Company's performance of or
compliance with this Agreement, including, without limitation, all Commission
and securities exchange or NASD registration and filing fees, fees and expenses
of compliance with securities or blue sky laws (including reasonable fees and
disbursements of counsel in connection with blue sky qualifications of the
Registrable Securities), rating agency fees, printing expenses, messenger and
delivery expenses, internal expenses (including without limitation, all salaries
and expenses of the Company's officers and employees performing legal or
accounting duties), the fees incurred in connection with the listing of the
securities to be registered, if any, on each securities exchange on which
similar securities issued by the Company are then listed and reasonable fees and
disbursement of counsel for the Company and its independent certified public
accountants (including the expenses of any special audit or "cold comfort"
letters required by or incident to such performance), securities act liability
insurance (if the Company elects to obtain such insurance), the reasonable fees
and expenses of any special experts retained by the Company in connection with
each registration hereunder (but not including any underwriting fees, discounts
or commissions attributable to the sale of Registrable Securities which shall be
paid by ▇▇▇▇▇▇▇▇) and any reasonable out-of-pocket expenses of ▇▇▇▇▇▇▇▇
excluding any travel costs and counsel fees except as set forth above (all such
expenses being herein called "Registration Expenses") will be borne by the
Company.
7. INDEMNIFICATION; CONTRIBUTION
7.1 INDEMNIFICATION BY THE COMPANY. The Company agrees to
indemnify and hold harmless ▇▇▇▇▇▇▇▇ and any agent or investment advisor he may
have engaged against all losses, claims, damages, liabilities and expenses
(including reasonable costs of investigation) arising out of or based upon any
untrue or alleged untrue statement of material fact contained in any
registration statement, any amendment or supplement thereto, any prospectus or
preliminary prospectus or any omission or alleged omission to state therein a
material fact
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required to be stated therein or necessary to make the statements therein not
misleading, except insofar as the same arise out of or are based upon any such
untrue statement or omission based upon information with respect to ▇▇▇▇▇▇▇▇
furnished in writing to the Company by or on behalf of ▇▇▇▇▇▇▇▇ expressly for
use therein; provided that, in the event that the prospectus shall have been
amended or supplemented and copies thereof, as so amended or supplemented shall
have been furnished to ▇▇▇▇▇▇▇▇ prior to the confirmation of any sale of
Registrable Securities, such indemnity with respect to the prospectus shall not
inure to the benefit of ▇▇▇▇▇▇▇▇ if the person asserting such loss, claim,
damage or liability did not, at or prior to the confirmation of the sale of the
Registrable Securities to such person, receive a copy of the prospectus as so
amended or supplemented and the untrue statement or omission of a material fact
contained in the prospectus was corrected in the prospectus as so amended or
supplemented. In connection with an underwritten offering, the Company will
indemnify the underwriters thereof, their officers and directors and each person
who controls such underwriters (within the meaning of the Securities Act) to the
same extent as provided above with respect to the indemnification of ▇▇▇▇▇▇▇▇
except with respect to information provided by the underwriter specifically for
inclusion therein.
7.2 INDEMNIFICATION BY ▇▇▇▇▇▇▇▇. In connection with any
registration statement in which ▇▇▇▇▇▇▇▇ participates, ▇▇▇▇▇▇▇▇ will furnish to
the Company in writing such information with respect to ▇▇▇▇▇▇▇▇ as the Company
reasonably requests for use in connection with any such registration statement
or prospectus and agrees to indemnify, to the extent permitted by law, the
Company, its directors and officers and each person who controls the Company
(within the meaning of the Securities Act) against any losses, claims, damages,
liabilities and expenses resulting from any untrue statement of a material fact
or any omission of a material fact required to be stated in the registration
statement or prospectus or any amendment thereof or supplement thereto or
necessary to make the statements therein not misleading, to the extent, but only
to the extent, that such untrue statement is contained in or such omission
relates to any information with respect to ▇▇▇▇▇▇▇▇ so furnished in writing by
him specifically for inclusion in any prospectus or registration statement. In
no event shall the liability of ▇▇▇▇▇▇▇▇ hereunder be greater in amount than the
dollar amount of the proceeds received by ▇▇▇▇▇▇▇▇ upon the sale of the
Registrable Securities giving rise to such indemnification obligation.
7.3 CONDUCT OF INDEMNIFICATION PROCEEDINGS. Any person
entitled to indemnification hereunder agrees to give prompt written notice to
the indemnifying party after the receipt by such person of any written notice of
the commencement of any action, suit, proceeding or investigation or threat
thereof made in writing for which such person will claim indemnification or
contribution pursuant to this Agreement and, unless in the reasonable judgment
of counsel of such indemnified party a conflict of interest may exist between
such indemnified party and the indemnifying party with respect to such claim,
permit the indemnifying party to assume defense of such claim. Whether or not
such defense is assumed by the indemnifying party, the indemnifying party will
not be subject to any liability for any settlement made without its consent (but
such consent will not be unreasonably withheld). No indemnifying party will
consent to entry of any judgment or enter into any settlement which does not
include as an unconditional term thereof the giving by the claimant or plaintiff
to such
8
indemnified party of a release from all liability in respect to such claim or
litigation. If the indemnifying party is not entitled to, or elects not to,
assume the defense of a claim, it will not be obliged to pay the fees and
expenses of more than one counsel with respect to such claim, unless in the
reasonable judgment of any indemnified party a conflict of interest may exist
between such indemnified party and any other of such indemnified parties with
respect to such claim, in which event the indemnifying party shall be obligated
to pay the fees and expenses of such additional counsel or counsels.
7.4 CONTRIBUTION. If the indemnification provided for in this
Section 7 from the indemnifying party is unavailable to an indemnified party
hereunder in respect of any losses, claims, damages, liabilities or expenses
referred to therein, then the indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages, liabilities or
expenses in such proportion as is appropriate to reflect the relative fault of
the indemnifying party and indemnified parties in connection with the actions
which resulted in such losses, claims, damages, liabilities or expenses, as well
as any other relevant equitable considerations. The relative fault of such
indemnifying party and indemnified parties shall be determined by reference to,
among other things, whether any action in question, including any untrue or
alleged untrue statement of a material fact, has been made by, or relates to
information supplied by the indemnifying party or indemnifying parties, and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such action. The amount paid or payable by a party as a
result of the losses, claims, damages, liabilities and expenses referred to
above shall be deemed to include, subject to the limitations set forth in
Section 7.3, any reasonable legal or other fees or expenses reasonably incurred
by such party in connection with any investigation or proceeding.
The parties hereto agree that it would not be just and
equitable if contribution pursuant to this Section 7.4 were determined by pro
rata allocation or by any other method of allocation which does not take account
of the equitable considerations referred to in the immediately preceding
paragraph. Notwithstanding the provisions of this Section 7.4, no underwriter
shall be required to contribute any amount in excess of the amount by which the
total price at which the Registrable Securities underwritten by it and
distributed to the public were offered to the public 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, and
▇▇▇▇▇▇▇▇ shall not be required to contribute any amount in excess of the amount
by which the total price at which the Registrable Securities of ▇▇▇▇▇▇▇▇ were
offered to the public exceeds the amount of any damages which ▇▇▇▇▇▇▇▇ has
otherwise been required to pay by reason of such untrue statement or 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.
If indemnification is available under this Section 7, the
indemnifying parties shall indemnify each indemnified party to the full extent
provided in Sections 7.1 and 7.2 without regard to the relative fault of said
indemnifying party or indemnified party or any other equitable consideration
provided for in this Section 7.4.
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8. TRANSFER OR ASSIGNMENT OF REGISTRATION RIGHTS
The rights to cause the Company to register Registrable Securities
granted pursuant to this Agreement may be transferred or assigned by ▇▇▇▇▇▇▇▇ to
a transferee or assignee of the Registrable Securities; provided, however, that
the transferee or assignee of such rights assumes the obligations of such
transferor or assignor, as the case may be, under this Agreement and provided
under no circumstances shall the right for one Demand Registration be exercised
more than once no matter how many owners there may be of the Registrable
Securities.
9. CHANGES IN COMMON STOCK
If, and as often as, there is any change in the Common Stock
by way of a stock split, stock dividend, combination or reclassification, or
through a merger, consolidation, reorganization or recapitalization, or by any
other means, appropriate adjustment shall be made in the provisions hereof so
that the rights and privileges granted hereby to ▇▇▇▇▇▇▇▇ shall continue with
respect to the Common Stock as so changed.
10. MISCELLANEOUS
10.1 REMEDIES. In addition to being entitled to exercise all
rights granted by law, including recovery of damages, ▇▇▇▇▇▇▇▇ will be entitled
to specific performance of his rights under this Agreement. The Company agrees
that monetary damages would not be adequate compensation for any loss incurred
by reason of a breach by it of the provisions of this Agreement and hereby
agrees to waive the defense in any action for specific performance that a remedy
at law would be adequate.
10.2 NOTICES. All notices and other communications provided
for or permitted hereunder shall be in writing and shall be deemed to have been
duly given if delivered personally or sent by telex or telecopies, registered or
certified mail (return receipt requested), postage prepaid or courier to the
parties at the following addresses (or at such other address for any party as
shall be specified by like notice, provided that notices of a change of address
shall be effective only upon receipt thereof). Notices sent by mail shall be
effective two days after mailing; notices sent by telex shall be effective when
answered back, notices sent by telecopier shall be effective when receipt is
acknowledged, and notices sent by courier guaranteeing next day delivery shall
be effective on the next business day after timely delivery to the courier:
(i) if to ▇▇▇▇▇▇▇▇, at the following address:
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
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(ii) if to the Company, at the following address:
WHG Resorts & Casinos Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: President
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
10.3 SUCCESSORS AND ASSIGNS. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the
parties.
10.4 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.
10.5 HEADINGS. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
10.6 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware applicable to
contracts made and to be performed wholly within that State.
10.7 SEVERABILITY. In the event that any one or more of the
provisions contained herein, or the application in any respect for any reason,
the validity, legality and enforceability of any such provision in every other
respect and of the remaining provisions contained herein shall not be in any way
impaired thereby.
10.8 ENTIRE AGREEMENT. This Agreement is intended by the
parties as a final expression of their agreement and is intended to be the
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. This Agreement supersedes all prior agreements and
understandings between the parties with respect to such subject matter.
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IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
WHG RESORTS & CASINOS INC.
By:
--------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President
-------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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