Exhibit 10.4
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement"), dated as of
December 16, 2005, by and among WPT Enterprises, Inc., a Delaware corporation
(the "Company"), Lakes Entertainment, Inc., a Minnesota corporation ("Lakes")
and Lakes Poker Tour, LLC, a Minnesota limited liability company ("LPT") (each a
"Stockholder" and collectively, the "Stockholders").
WHEREAS, the Stockholders beneficially own 12,480,000 shares (the
"Shares" or the "Registrable Securities") of the Company's Common Stock, par
value $0.001 per share (the "Common Stock"), representing [62]% of the
outstanding Common Stock; and
WHEREAS, the Stockholders have expressed an intention to sell,
pledge or otherwise transfer some or all of the Shares and have requested that
transfers of the Shares by the Stockholders and their pledgees be registered
under the Securities Act of 1933, as amended (the "Securities Act"); and
WHEREAS, the Company is willing to grant certain registration rights
to the Stockholders under the terms set forth herein, in order to facilitate the
orderly transfer of the Shares and in consideration of the Stockholders'
covenants as set forth herein, which the Company has determined will be in the
best interests of the Company and its stockholders.
NOW, THEREFORE, in consideration of the mutual representations,
warranties, covenants and agreements contained herein, and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Company and the Stockholders agree as follows:
1. Registration of Shares.
(a) Registration Statement. Subject to the terms, conditions and
limitations set forth in this Agreement, the Company agrees to use
commercially reasonable efforts to (i) file a registration statement with
the Securities and Exchange Commission (the "SEC") on the appropriate form
covering sales, pledges and other transfers of the Shares as reasonably
requested by the Stockholders (the "Registration Statement") or before
April 15, 2006 (the date such Registration Statement is filed, the "Filing
Date"), (ii) cause such Registration Statement to be declared effective by
the SEC prior to the date which is 90 days after the Filing Date (the
"Registration Effective Date"); and (iii) cause such Registration
Statement to remain effective (the "Registration Period") until the
earliest of (A) the second anniversary of the Filing Date; (B) the date on
which all Shares may be sold by the holder thereof pursuant to Rule 144(k)
of the Securities Act; and (C) such time as all Registrable Securities
registered under the Registration Statement have been sold (1) pursuant to
a registration statement; (2) to or through a broker, dealer or
underwriter in a public distribution or a public securities transaction;
and/or (3) in a transaction exempt from the registration and prospectus
delivery requirements of the Securities Act under Section 4(1) thereof so
that all transfer restrictions and restrictive
legends with respect thereto, if any, are removed upon the consummation of
such sale. To the extent permissible, such Registration Statement also
shall include, or subsequently be amended to include, to the extent
allowable under the Securities Act and the rules promulgated thereunder
(including Rule 416 under the Securities Act), such indeterminate number
of additional shares of Common Stock resulting from stock splits, stock
dividends or similar transactions with respect to the Registrable
Securities.
The Company shall cause the Registration Statement to cover any
sales of the Shares by the pledgees under the Loan Agreement (the "Loan
Agreement"), dated December 15, 2005, by and between LE, LPT and the ▇▇▇▇
▇▇▇▇▇▇ Family Partnership, a Minnesota general partnership (the "Lender"),
pursuant to which the Lender has agreed to provide loans of up to Twenty
Million Dollars ($20,000,000.00) to the Stockholders and LPT has agreed to
pledge all of the Shares.
(b) Expenses. All expenses incurred by the Stockholders and WPT in
the preparation and filing of the Registration Statement, including,
without limitation, all registration, qualification and filing fees,
printing expenses, escrow fees, fees and expenses of counsel for the
Stockholders and WPT, blue sky fees and expenses and the expense of any
audits incident to or required by any such registration (any such audit,
an "Audit"), shall be borne by the Stockholders; provided, however, that
in the event the Company utilizes an Audit for any purpose other than the
Registration Statement, its regular reporting obligations under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), or a
registration statement on Form S-8 or a similar form, the Company shall
bear the expenses incurred in connection with such Audit. All underwriting
discounts and selling commissions applicable to the sale of Registrable
Securities, if any, and all fees and expenses of legal counsel for any
holder of Registrable Securities shall be borne by such holder.
(c) Actions by the Company. The Company shall, upon the
Stockholders' reasonable request, inform each holder of Registrable
Securities as to the status of any such registration, qualification,
exemption and compliance contemplated by this Agreement. At the expense of
the Stockholders, the Company shall use commercially reasonable efforts
to:
(i) keep such registration, and any qualification, exemption
or compliance under state or federal securities laws which the
Company determines to obtain, continuously effective until the
termination of the Registration Period;
(ii) advise the holders of Registrable Securities as soon as
practicable:
(A) when the Registration Statement or any amendment
thereto has been filed with the SEC and when the Registration
Statement or any post-effective amendment thereto has become
effective;
-2-
(B) of the issuance by the SEC of any stop order
suspending the effectiveness of the Registration Statement or
the initiation of any proceedings for such purpose;
(C) of the receipt by either the Stockholders or the
Company of any notification with respect to the suspension of
the qualification of the Registrable Securities included
therein for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose; and
(D) of the happening of any event that requires the
making of any changes in the Registration Statement or the
prospectus so that, as of such date, the statements therein
are not misleading and do not omit to state a material fact
required to be stated therein or necessary to make the
statements therein (in the case of the prospectus, in the
light of the circumstances under which they were made) not
misleading (which notice will be accompanied by an instruction
to suspend the use of the prospectus until such changes have
been made);
(iii) obtain the withdrawal of any order suspending the
effectiveness of any Registration Statement at the earliest possible
time;
(iv) furnish to each holder of Registrable Securities, without
charge, at least one copy of such Registration Statement and any
post-effective amendment thereto, including financial statements and
schedules, and, if such holders so request in writing, all exhibits
(including those incorporated by reference) in the form filed with
the SEC;
(v) during the Registration Period, deliver to each holder of
Registrable Securities, without charge, as many copies of the
prospectus included in such Registration Statement and any amendment
or supplement thereto as such holder may reasonably request; and the
Company consents to the use, consistent with the provisions hereof,
of the prospectus or any amendment or supplement thereto by each of
the holder of Registrable Securities in connection with the offering
and sale of the Registrable Securities covered by the prospectus or
any amendment or supplement thereto;
(vi) prior to any public offering of Registrable Securities
pursuant to the Registration Statement, register or qualify or
obtain an exemption for offer and sale under the securities or blue
sky laws of such jurisdictions as any holders of Registrable
Securities reasonably request in writing, provided that the Company
shall not for any such purpose be required to qualify generally to
transact business as a foreign corporation in any jurisdiction where
it is not so qualified or to consent to general service of process
in any such jurisdiction, and do any and all other acts or things
reasonably necessary or advisable to enable the offer and sale in
such jurisdictions of the Registrable Securities covered by such
Registration Statement in the sole discretion of the Company;
-3-
(vii) to the extent permitted under applicable rules and
regulations promulgated under the Securities Act, cooperate with the
holders of Registrable Securities to facilitate the timely
preparation and delivery of certificates representing Registrable
Securities to be sold pursuant to any Registration Statement free of
any restrictive legends to the extent not required at such time and
in such denominations and registered in such names as holders of
Registrable Securities may request at least five (5) business days
prior to sales of Registrable Securities pursuant to such
Registration Statement;
(viii) upon the occurrence of any event contemplated by
Section 1(c)(ii)(D) above, promptly prepare a post-effective
amendment to the Registration Statement or a supplement to the
related prospectus, or file any other required document so that, as
thereafter promptly delivered to purchasers of the Registrable
Securities included therein, the prospectus will not include any
untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and
(ix) comply with all applicable rules and regulations of the
SEC, and make generally available to the Company's security holders
not later than 45 days (or 90 days if the fiscal quarter is the
fourth fiscal quarter) after the end of its fiscal quarter in which
the first anniversary date of the Effective Date occurs, an earnings
statement satisfying the provisions of Section 11(a) of the
Securities Act.
Notwithstanding the foregoing, it shall be a condition precedent to the
obligations of the Company to take any action pursuant to paragraphs
(c)(i) through (c)(ix) of this Section 1, that each holder of Registrable
Securities shall furnish to the Company such information regarding itself,
the Registrable Securities to be sold by such holder and the intended
method of disposition of such Registrable Securities as shall be required
to effect the registration of the Registrable Securities, all of which
information shall be furnished to the Company in writing specifically for
use in the Registration Statement.
(d) Holders. The holders of Registrable Securities (each, a
"Holder"), shall have no right to take any action to restrain, enjoin or
otherwise delay any registration pursuant to Section 1(a) hereof as a
result of any controversy that may arise with respect to the
interpretation or implementation of this Agreement.
-4-
(e) Indemnification.
(i) The Company shall indemnify the Stockholders against all
claims, losses, damages and liabilities (or actions in respect
thereof), including any of the foregoing incurred in settlement of
any litigation, commenced or threatened (subject to Section
1(e)(iii) below), arising out of or based on (a) any untrue
statement (or alleged untrue statement) of a material fact contained
in the Registration Statement, any Prospectus or form of prospectus,
or any amendment or supplement thereof, or based on 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
case of any Prospectus or form of prospectus or supplement thereto,
in light of the circumstances under which they were made) not
misleading, in light of the circumstances in which they were made,
or (b) any violation or alleged violation by WPT of the Securities
Act, the Exchange Act, or any rule or regulation promulgated under
the Securities Act, or the Exchange Act, and will reimburse the
Stockholders for reasonable legal and other expenses reasonably
incurred in connection with investigating or defending any such
claim, loss, damage, liability or action as incurred; provided,
however, that the Company will not be liable in any such case to the
extent that any such claim, loss, damage, liability or action arises
out of, relates to or is based upon any untrue statement or omission
or allegation thereof is made in reliance upon and in conformity
with written information furnished to the Company by or on behalf of
the Stockholders and stated to be specifically for use in
preparation of such Registration Statement or Prospectus, or
information about the Stockholders or their proposed method of
distribution of Registrable Securities that was reviewed and
approved by the Stockholder for use in the Registration Statement or
Prospectus.
(ii) The Stockholders will jointly and severally indemnify the
Company, its directors and officers, each underwriter of the
Registrable Securities and each person who controls the Company
within the meaning of Section 15 of the Securities Act, against all
claims, losses, damages and liabilities (or actions in respect
thereof), including any of the foregoing incurred in settlement of
any litigation, commenced or threatened (subject to Section
1(e)(iii) below), arising out of or based on any untrue statement
(or alleged untrue statement) of a material fact contained in the
Registration Statement or Prospectus, or any amendment or supplement
thereof, incident to any such registration, qualification or
compliance, or based on 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 case of any Prospectus or
form of prospectus or supplement thereto, in light of the
circumstances under which they were made) not misleading, and will
reimburse the Company, such directors and officers, each underwriter
of the Registrable Securities and each person controlling the
Company for reasonable legal and any other expenses reasonably
incurred in connection with investigating or defending any such
claim, loss, damage, liability or action as incurred, in each case
to the extent, but only to the extent, that such untrue statement or
omission or allegation
-5-
thereof is made in reliance upon and in conformity with written
information furnished to the Company by or on behalf of the
Stockholders and stated to be specifically for use in preparation of
such Registration Statement or Prospectus, or information about the
Stockholders or their proposed method of distribution of Registrable
Securities that was reviewed and approved by the Stockholder for use
in the Registration Statement or Prospectus.
(iii) Each party entitled to indemnification under this
Section 1(e) (the "Indemnified Party") shall give notice to the
party required to provide indemnification (the "Indemnifying Party")
promptly after such Indemnified Party has actual knowledge of any
claim as to which indemnity may be sought, and shall permit the
Indemnifying Party to assume the defense of any such claim or any
litigation resulting therefrom, provided that counsel for the
Indemnifying Party, who shall conduct the defense of such claim or
litigation, shall be approved by the Indemnified Party (whose
approval shall not unreasonably be withheld), and the Indemnified
Party may participate in such defense at such Indemnified Party's
expense, and provided further that the failure of any Indemnified
Party to give notice as provided herein shall not relieve the
Indemnifying Party of its obligations under this Agreement, unless
such failure is materially prejudicial to the Indemnifying Party in
defending such claim or litigation. An Indemnifying Party shall not
be liable for any settlement of an action or claim effected without
its written consent (which consent will not be unreasonably
withheld).
(iv) If the indemnification provided for in this Section 1(e)
is held by a court of competent jurisdiction to be unavailable to an
Indemnified Party with respect to any loss, liability, claim, damage
or expense referred to therein, then the Indemnifying Party, in lieu
of indemnifying such Indemnified Party thereunder, shall contribute
to the amount paid or payable by such Indemnified Party as a result
of such loss, liability, claim, damage or expense in such proportion
as is appropriate to reflect the relative fault of the Indemnifying
Party on the one hand and of the Indemnified Party on the other in
connection with the statements or omissions which resulted in such
loss, liability, claim, damage or expense as well as any other
relevant equitable considerations. The relative fault of the
Indemnifying Party and of the Indemnified Party shall be determined
by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission to state a
material fact relates to information supplied by the Indemnifying
Party or by the Indemnified Party and the parties' relative intent,
knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Stockholders and the Company
agree that it would not be just and equitable if contribution
pursuant to this Section 1(e)(iv) was based solely upon the number
of entities from whom contribution was requested or by any other
method of allocation which does not take account of the equitable
considerations referred to above in this Section 1(e)(iv). The
amount paid or payable by an Indemnified Party as a result of the
losses, claims, damages and liabilities (or actions in respect
thereof) referred to above in this Section 1(e)(iv) shall be deemed
to include any legal or other expenses reasonably
-6-
incurred by such Indemnified Party in connection with investigating
or defending any such action or claim, subject to the provisions of
Section 1(e)(iv) hereof. The parties agree that it would not be just
and equitable if contributions pursuant to this Section 1(e) were
determined by pro rata allocation or by any other method of
allocation which does not take account of the equitable
considerations as set forth in this Section 1(e). No Person guilty
of fraudulent misrepresentation (within the meaning of the
Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
(f) Holders of Registrable Securities.
(i) Each Stockholder shall agree that, upon receipt of any
notice from the Company (A) of the need for an amendment or
supplement to the Registration Statement or the prospectus forming a
part thereof, (B) that the board of directors of the Company has
determined in good faith that offers and sales pursuant to the
prospectus forming part of the Registration Statement should not be
made by reason of the presence of material undisclosed circumstances
or developments with respect to which the disclosure that would be
required in the Registration Statement would be premature or would
have a material adverse effect, or (C) in connection with a primary
underwritten offering of equity securities of the Company,
Stockholder will forthwith discontinue disposition of Registrable
Securities pursuant to the Registration Statement contemplated by
Section 1(a) until its receipt of copies of the supplemented or
amended prospectus from the Company or confirmation of the filing of
such report with the SEC by the Company, any such prospectus to be
forwarded promptly to the Stockholder by the Company, and, if so
directed by the Company, each Stockholder shall deliver to the
Company all copies, other than permanent file copies then in such
Stockholder's possession, of the prospectus covering such
Registrable Securities current at the time of receipt of such
notice; provided, however, that the Company, may suspend the
disposition of Registrable Securities pursuant to the Registration
Statement pursuant to clause (ii) above not more than one time (not
to exceed 30 days) during any three month period, nor more than
three times (not to exceed 30 days each) in any twelve-month period.
(ii) As a condition to the inclusion of its Registrable
Securities, each Stockholder shall furnish to the Company such
information regarding such Stockholder and the distribution proposed
by such Stockholder as the Company may reasonably request in writing
or as shall be required in connection with any registration,
qualification or compliance referred to in this Section 1.
(g) With a view to making available to the Stockholders the benefits
of certain rules and regulations of the SEC that at any time permit the
sale of the Registrable Securities to the public without registration, the
Company shall use commercially reasonable efforts to:
(i) make and keep public information available, as those terms
are understood and defined in Rule 144 under the Securities Act, at
all times;
-7-
(ii) file with the SEC in a timely manner all reports and
other documents required under the Exchange Act; and
(iii) so long as a Stockholder owns any unregistered
Registrable Securities, furnish to such Stockholder, upon any
reasonable request, a written statement by the Company as to its
compliance with Rule 144 under the Securities Act, and of the
Exchange Act, a copy of the most recent annual or quarterly report
of the Company, and such other reports and documents of the Company
as such holder may reasonably request in availing itself of any rule
or regulation of the SEC allowing such holder to sell any such
securities without registration.
(h) The Company shall use commercially reasonable efforts to cause
all Registrable Securities covered by the Registration Statement to be
listed on each securities exchange, interdealer quotation system or other
market on which similar securities issued by the Company are then listed.
2. Miscellaneous
(a) This Agreement is intended for the benefit of the parties hereto
and their respective permitted successors and assigns, and is not for the
benefit of, nor may any provision hereof be enforced by any other Person. Each
Holder may assign its rights and obligations in the manner permitted hereunder.
(b) All notices, requests and other communications under this
Agreement shall be in writing, and shall be sufficiently given if delivered to
the addressees in person or by recognized overnight courier, mailed by certified
or registered mail, return receipt requested, or by facsimile or e-mail delivery
followed by a copy sent by recognized overnight delivery, as follows:
If to the Company: WPT Enterprises, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: Chief Financial Officer
With a copy to: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & Brand, LLP
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
If to a Stockholder, at such address as such Stockholder shall have provided in
writing to the Company or such other address as such Stockholder furnishes by
notice given in accordance with this Section 2(b) or such other address as may
be designated in writing hereafter, in the same manner, by such Stockholder.
-8-
(c) This Agreement shall be governed by, and construed in accordance
with the laws of the State of California, without regard to the conflicts of law
rules of such state.
(d) Any action or proceeding seeking to enforce any provision of, or
based on any right arising out of, this Agreement must be brought against any of
the parties in the courts of the State of California, County of Los Angeles or,
if it has or can acquire jurisdiction, in the United States District Court,
Central District in the State of California, and each of the parties consents to
the jurisdiction of those courts (and of the appropriate appellate courts) in
any such action or proceeding and waives any objection to venue laid therein.
Process in any such action or proceeding may be served by sending or delivering
a copy of the process to the party to be served at the address and in the manner
provided for the giving of notices in Section 2(b). Nothing in this Section
2(d), however, affects the right of any party to serve legal process in any
other manner permitted by law.
(e) THE PARTIES HERETO WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY
ACTION, SUIT OR PROCEEDING BROUGHT TO ENFORCE OR DEFEND ANY RIGHTS OR REMEDIES
UNDER THIS AGREEMENT.
(f) This Agreement may be executed in one or more counterparts, each
of which shall be deemed an original but all of which together shall constitute
one and the same instrument.
(g) If any provision of this Agreement is held by a court of
competent jurisdiction or other authority to be invalid or unenforceable, such
invalidity or unenforceability shall not affect the validity or enforceability
of the remainder of this Agreement, and the parties shall negotiate in good
faith to modify this Agreement and to preserve each party's anticipated benefits
under this Agreement.
(h) The headings in this Agreement are for convenience of reference
only and shall not limit or otherwise affect the meaning hereof.
(i) This Agreement shall be null and void and given no effect if the
Loan Agreement is terminated and the transactions contemplated thereby are not
consummated.
(j) This Agreement may not be amended or modified, and no provision
hereof may be waived, without the written consent of the Company and holders of
at least a majority of the outstanding shares of Registrable Securities at the
time of such amendment, modification or waiver; provided, however, that if the
holders of at least a majority of the outstanding shares of Registrable
Securities so consent, such amendment, modification or waiver shall be effective
upon the holders of all outstanding shares of Registrable Securities then
outstanding.
(k) The failure of any party hereto to exercise any right or remedy
under this Agreement or otherwise, or delay by any party hereto in exercising
such right or remedy, shall not operate as a waiver thereof.
(l) Each party agrees to execute such other documents, instruments,
agreements and consents, and take such other actions as may be reasonable
requested by the other parties hereto to effectuate the purposes of this
Agreement.
-9-
(m) This Agreement contains the entire understanding of the parties
with respect to the subject matter hereof and supersedes all prior agreements
and understandings, oral or written, with respect to such matters.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE PAGES TO FOLLOW]
-10-
IN WITNESS WHEREOF, the parties have executed this Registration
Rights Agreement as of the date first written above.
Company: WPT ENTERPRISES, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Founder, President and Chief
Executive Officer
LE: LAKES ENTERTAINMENT, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇
Title: Chief Financial Officer
LPT: LAKES POKER TOUR, LLC
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇
Title: Chief Financial Officer
