BOARDWALK CASINO, INC.
REGISTRATION AGREEMENT
THIS AGREEMENT is made as of September __, 1996, between BOARDWALK
CASINO, INC., a Nevada Corporation (the "Company"), and DIVERSIFIED
OPPORTUNITIES GROUP LTD., an Ohio limited liability company, or its nominee as
described in Paragraph 8(e) ("Purchaser").
The parties to this Agreement are parties to a Purchase Agreement dated as
of ______________________, 1996 (the "Purchase Agreement"), pursuant to which
the Company shall issue to Purchaser unregistered Shares and a convertible
subordinated note (the "Note"), which Note is convertible into Shares. It is
contemplated pursuant to the Purchase Agreement that Purchaser and Xxxxxxx X.
Xxxxxx, individually and as trustee under an agreement dated July 14, 1993
("Xxxxxx"), shall have entered into an option and proxy agreement (the "Option
Agreement"), pursuant to which Purchaser shall have the obligation to acquire
500,000 Shares and the right to acquire up to an additional 1,000,000 Shares of
the Company owned by Xxxxxx. In order to induce Purchaser to enter into the
Purchase Agreement, the Company has agreed to provide the registration rights
set forth in this Agreement. The execution and delivery of this Agreement is a
condition to the Closing under the Purchase Agreement. Unless otherwise
provided in this Agreement, capitalized terms used herein shall have the
meanings set forth in Paragraph 7 hereof.
The parties hereto agree as follows:
DEMAND REGISTRATIONS.
(a) REQUESTS FOR REGISTRATION. For a period of five (5) years
following the Closing, Purchaser may request registration under the Securities
Act of 1933, as amended (the "Securities Act"), of all or any portion of its
Shares on Form S-1 or any similar long-form registration or on Form S-2 or S-3
or any similar short-form registration ("Short-Form Registrations") if
available. All registrations requested pursuant to this Paragraph 1(a) are
referred to herein as "Demand Registrations". Each request for a Demand
Registration shall specify the approximate number of Shares requested to be
registered and the anticipated per share price range for such offering.
(b) NUMBER OF DEMAND REGISTRATIONS. Purchaser shall be entitled to
request (i) two Demand Registrations in which the Company shall pay all
Registration Expenses (as defined in Paragraph 5) (the "Company-paid
Registrations") and (ii) one Demand Registration in which Purchaser shall pay
its share of the Registration Expenses as set forth in paragraph 5 hereof. A
registration shall not count as one of the permitted Demand Registrations until
it has become effective, and Purchaser is able to register at least 90% of the
Shares requested to be included in such registration by Purchaser; provided that
in any event the Company shall pay all Registration Expenses in connection with
any registration initiated as a Company-paid Registration whether or
not it has become effective. Demand Registrations shall be Short-Form
Registrations whenever the Company is permitted to use any applicable short
form; provided, however, Purchaser shall have the right to determine whether an
underwriter or underwriters will be retained and shall select any such
underwriter for the sale of Shares included in the Demand Registration, but the
selection shall be subject to the reasonable approval of the Company. The
Company shall use its reasonable best efforts to make Short-Form Registrations
on Form S-3 available for the sale of Shares.
(c) PRIORITY ON DEMAND REGISTRATIONS. Any Person other than
Purchaser who participates in Demand Registrations which are not at the
Company's expense must pay their share of the Registration Expenses as provided
in Paragraph 5 hereof.
(d) RESTRICTIONS ON DEMAND REGISTRATIONS. The Company shall not be
obligated to effect any Demand Registration within 180 days after the effective
date of a previous registration.
2. PIGGYBACK REGISTRATIONS.
(a) RIGHT TO PIGGYBACK. Whenever the Company proposes to register
any of its securities under the Securities Act (other than pursuant to a Demand
Registration or on Form S-8 or S-4) and the registration form to be used may be
used for the registration of Shares (a "Piggyback Registration"), the Company
shall give prompt written notice to Purchaser of its intention to effect such a
registration and shall include in such registration all Shares with respect to
which Purchaser requests for inclusion therein within 20 days after the receipt
of the Company's notice.
(b) PIGGYBACK EXPENSES. The Registration Expenses of Purchaser shall
be paid by the Company in all Piggyback Registrations.
(c) PRIORITY ON PRIMARY REGISTRATIONS. If a Piggyback Registration
is an underwritten primary registration on behalf of the Company, and the
managing underwriters advise the Company in writing that in their opinion the
number of securities requested to be included in such registration exceeds the
number which can be sold in such offering without adversely affecting the
marketability of the offering, the Company shall include in such registration
(i) first, the securities the Company proposes to sell, (ii) second, the Shares
requested to be included in such registration by Purchaser, and other securities
requested to be included in such registration relating to registration rights
existing on the date hereof, on a pro rata basis, and (iii) third, the other
securities requested to be included in such registration relating to
registration rights granted by the Company after the date hereof.
(d) PRIORITY ON SECONDARY REGISTRATIONS. If a Piggyback Registration
is an underwritten secondary registration on behalf of holders of the Company's
securities, and the managing underwriters advise the Company in writing that in
their opinion the number of securities requested to be included in such
registration exceeds the number which can be sold in such offering without
adversely affecting the marketability of the offering, the Company shall include
in such registration (i) first, the Shares and other securities requested to be
included therein by Purchaser and other securities requested to be included in
such registration relating to registration rights existing as the date hereof,
on a pro rata basis, and (ii) second, the other
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securities requested to be included in such registration relating to
registration rights granted by the Company after the date hereof.
3. HOLDBACK AGREEMENTS.
(a) Purchaser shall not effect any public sale or distribution
(including sales pursuant to Rule 144) of equity securities of the Company, or
any securities convertible into or exchangeable or exercisable for such
securities, during the seven days prior to and the 180-day period beginning on
the effective date of any underwritten Demand Registration (except as part of
such underwritten registration), unless the underwriters managing the registered
public offering otherwise agree.
(b) The Company (i) shall not effect any public sale or distribution
of its equity securities, or any securities convertible into or exchangeable or
exercisable for such securities, during the seven days prior to and during the
60-day period beginning on the effective date of any underwritten Demand
Registration or any underwritten Piggyback Registration (except as part of such
underwritten registration or pursuant to registrations on Form S-8 or any
successor form), unless the underwriters managing the registered public offering
otherwise agree, and (ii) shall cause each holder of at least 5% (on a
fully-diluted basis) of its Shares, or any securities convertible into or
exchangeable or exercisable for Shares, purchased from the Company at any time
after the date of this Agreement (other than in a registered public offering) to
agree not to effect any public sale or distribution (including sales pursuant to
Rule 144) of any such securities during such period (except as part of such
underwritten registration, if otherwise permitted), unless the underwriters
managing the registered public offering otherwise agree.
4. REGISTRATION PROCEDURES. Whenever Purchaser has requested that any
Shares be registered pursuant to this Agreement, the Company shall use its best
efforts to effect the registration and sale of such Shares in accordance with
the intended method of disposition thereof, and pursuant thereto the Company
shall as expeditiously as possible:
(a) prepare and file with the Securities and Exchange Commission
("SEC") a registration statement with respect to such Shares 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, the Company shall furnish to the counsel selected by
Purchaser copies of all such documents proposed to be filed, which documents
shall be subject to the review and comment of such counsel;
(b) notify Purchaser of the effectiveness of each registration
statement filed hereunder and prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in connection
therewith as may be necessary to keep such registration statement effective for
a period of not less than 180 days and comply with the provisions of the
Securities Act with respect to the disposition of all securities covered by such
registration statement during such period in accordance with the intended
methods of disposition by the sellers thereof set forth in such registration
statement;
(c) furnish to Purchaser such number of copies of such registration
statement, each amendment and supplement thereto, the prospectus included in
such registration statement
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(including each preliminary prospectus) and such other documents as Purchaser
may reasonably request in order to facilitate the disposition of the Shares
owned by Purchaser;
(d) use its best efforts to register or qualify such Shares under
such other securities or blue sky laws of such jurisdictions as Purchaser
reasonably requests and do any and all other acts and things which may be
reasonably necessary or advisable to enable Purchaser to consummate the
disposition in such jurisdictions of the Shares; PROVIDED that the Company shall
not be required to (i) qualify generally to do business in any jurisdiction
where it would not otherwise be required to qualify but for this subparagraph,
(ii) subject itself to taxation in any such jurisdiction or (iii) consent to
general service of process in any such jurisdiction;
(e) notify Purchaser, at any time when a prospectus is required to be
delivered under the Securities Act, of the happening of any event as a result of
which the prospectus included in such registration statement contains an untrue
statement of a material fact or omits any fact necessary to make the statements
therein not misleading, and, at the request of Purchaser, the Company shall
prepare a supplement or amendment to such prospectus so that, as thereafter
delivered to the purchasers of such Shares, such prospectus shall not contain an
untrue statement of a material fact or omit to state any fact necessary to make
the statements therein not misleading;
(f) cause all such Shares to be listed on each securities exchange on
which similar securities issued by the Company are then listed and, if not so
listed, to be listed on the NASD automated quotation system;
(g) provide a transfer agent and registrar for all such Shares not
later than the effective date of such registration statement;
(h) enter into such customary agreements (including underwriting
agreements in customary form) and take all such other actions as Purchaser may
reasonably request in order to expedite or facilitate the disposition of such
Shares;
(i) make available for inspection by Purchaser, any underwriter
participating in any disposition pursuant to such registration statement and any
attorney, accountant or other agent retained by Purchaser or underwriter, all
financial and other records, pertinent corporate documents and properties of the
Company, and cause the Company's officers, directors, employees and independent
accountants to supply all information reasonably requested by Purchaser,
underwriter, attorney, accountant or agent in connection with such registration
statement;
(j) otherwise use its best efforts to comply with all applicable
rules and regulations of the SEC, and make available to its security holders, as
soon as reasonably practicable, an earnings statement covering the period of at
least twelve months beginning with the first day of the Company's first full
calendar quarter after the effective date of the registration statement, which
earnings statement shall satisfy the provisions of Section 11(a) of the
Securities Act and Rule 158 thereunder;
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(k) permit Purchaser in its sole and exclusive judgment, to
participate in the preparation of such registration or comparable statement;
(l) in the event of the issuance of any stop order suspending the
effectiveness of a registration statement, or of any order suspending or
preventing the use of any related prospectus or suspending the qualification of
any Shares included in such registration statement for sale in any jurisdiction,
the Company shall use its best efforts promptly to obtain the withdrawal of such
order;
(m) use its best efforts to cause such Shares covered by such
registration statement to be registered with or approved by such other
governmental agencies or authorities as may be necessary to enable Purchaser to
consummate the disposition of such Shares; and
(n) obtain a cold comfort letter from the Company's independent
public accountants in customary form and covering such matters of the type
customarily covered by cold comfort letters as Purchaser may reasonably request.
5. REGISTRATION EXPENSES.
(a) All expenses incident to the Company's performance of or
compliance with this Agreement, including without limitation all registration
and filing fees, fees and expenses of compliance with securities or blue sky
laws, printing expenses, messenger and delivery expenses, fees and disbursements
of custodians, independent certified public accountants, underwriters (excluding
discounts and commissions) and other Persons retained by the Company and fees
and disbursements of counsel for the Company (all such expenses being herein
called "Registration Expenses"), shall be borne as provided in this Agreement,
except that the Company shall, in any event, pay its internal expenses
(including, without limitation, all salaries and expenses of its officers and
employees performing legal or accounting duties), the expense of any annual
audit or quarterly review, the expense of any liability insurance and the
expenses and fees for listing the securities to be registered on each securities
exchange on which similar securities issued by the Company are then listed or on
the NASD automated quotation system.
(b) To the extent Registration Expenses are not required to be paid
by the Company, each holder of securities included in any registration hereunder
shall pay those Registration Expenses allocable to the registration of such
holder's securities so included, and any Registration Expenses not so allocable
shall be borne by all sellers of securities included in such registration in
proportion to the aggregate selling price of the securities to be so registered.
6. INDEMNIFICATION.
(a) The Company agrees to indemnify, to the extent permitted by law,
Purchaser its, members, managers, officers, directors, shareholders, agents and
each Person who controls such holder (within the meaning of the Securities Act)
against all losses, claims, damages, liabilities and expenses caused by any
untrue or alleged untrue statement of material fact contained in any
registration statement, prospectus or preliminary prospectus or any amendment
thereof or supplement thereto or any omission or alleged omission of a material
fact required to be stated therein or necessary to make the statements therein
not misleading, except
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insofar as the same are caused by or contained in any information furnished
in writing to the Company by Purchaser expressly for use therein. In
connection with an underwritten offering, the Company shall indemnify such
underwriters, 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 Purchaser.
(b) In connection with any registration statement in which Purchaser
is participating, Purchaser shall furnish to the Company in writing such
information and affidavits as the Company reasonably requests for use in
connection with any such registration statement or prospectus and, to the extent
permitted by law, shall indemnify 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 or alleged untrue statement of material fact contained in the
registration statement, prospectus or preliminary prospectus or any amendment
thereof or supplement thereto or any omission or alleged omission of a material
fact required to be stated therein or necessary to make the statements therein
not misleading, but only to the extent that such untrue statement or omission is
contained in any information or affidavit so furnished in writing by Purchaser;
provided that Purchaser's obligation to indemnify shall be limited to the gross
amount of proceeds received by Purchaser pursuant to such registration
statement.
(c) Any Person entitled to indemnification hereunder shall (i) give
prompt written notice to the indemnifying party of any claim with respect to
which it seeks indemnification (provided that the failure to give prompt notice
shall not impair any Person's right to indemnification hereunder to the extent
such failure has not prejudiced the indemnifying party) and (ii) unless in such
indemnified party's reasonable judgment a conflict of interest between such
indemnified and indemnifying parties may exist with respect to such claim,
permit such indemnifying party to assume the defense of such claim with counsel
reasonably satisfactory to the indemnified party. If such defense is assumed,
the indemnifying party shall not be subject to any liability for any settlement
made by the indemnified party without its consent (but such consent shall not be
unreasonably withheld). An indemnifying party who is not entitled to, or elects
not to, assume the defense of a claim shall not be obligated to pay the fees and
expenses of more than one counsel for all parties indemnified by such
indemnifying party 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.
(d) The indemnification provided for under this Agreement shall
remain in full force and effect regardless of any investigation made by or on
behalf of the indemnified party or any officer, director or controlling person
of such indemnified party and shall survive the transfer of securities. The
Company also agrees to make such provisions, as are reasonably requested by any
indemnified party, for contribution to such party in the event the Company's
indemnification is unavailable for any reason.
7. DEFINITIONS.
(a) "AFFILIATES" of a Person means any other Person controlling,
controlled by or under common control with such first Person.
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(b) "CLOSING" has the meaning set forth in the Purchase Agreement.
(c) "PERSON" means an individual, a partnership, a corporation, a
limited liability company, an association, a joint stock company, a trust, a
joint venture, an unincorporated organization and/or a governmental entity or
any department, agency, or political subdivision thereof.
(d) "SHARES" means, collectively, any shares of the Company's common
stock $.001 par value acquired by Purchaser pursuant to the Purchase Agreement,
issued or issuable upon conversion of the Note or acquired pursuant to the
Option Agreement and any Shares issuable with respect to such shares by way of a
stock dividend or stock split or in connection with a combination of shares,
recapitalization, merger, consolidation or other reorganization.
8. MISCELLANEOUS.
(a) NO INCONSISTENT AGREEMENTS. The Company shall not hereafter enter
into any agreement with respect to its securities which is inconsistent with or
violates the rights granted to Purchaser in this Agreement.
(b) ADJUSTMENTS AFFECTING SHARES. The Company shall not take any
action, or permit any change to occur, with respect to its securities which
would adversely affect the ability of the Purchaser to include such Shares in a
registration undertaken pursuant to this Agreement.
(c) REMEDIES. Purchaser shall be entitled to enforce such rights
specifically to recover damages caused by reason of any breach of any provision
of this Agreement and to exercise all other rights granted by law. The parties
hereto agree and acknowledge that money damages may not be an adequate remedy
for any breach of the provisions of this Agreement and that any party may in its
sole discretion apply to any court of law or equity of competent jurisdiction
(without posting any bond or other security) for specific performance and for
other injunctive relief in order to enforce or prevent violation of the
provisions of this Agreement.
(d) AMENDMENTS AND WAIVERS. Except as otherwise provided herein, the
provisions of this Agreement may be amended or waived only upon the prior
written consent of the Company and Purchaser.
(e) SUCCESSORS AND ASSIGNS. All covenants and agreements in this
Agreement by or on behalf of any of the parties hereto shall bind and inure to
the benefit of the parties hereunder and may not be assigned; provided, however,
Purchaser may assign its rights and obligations hereunder, in whole or in part,
to one or more corporations, limited liability companies, partnerships, trusts
or other entities which are under common control with, or controlled, through
equity ownership and/or voting control by, Purchaser or Xxxxxxx X. Xxxxxx; it
being acknowledged that any entity in which Xxxxxxx X. Xxxxxx beneficially owns
15% or more of the equity securities and is Chairman of the Board and/or Chief
Executive Officer constitutes common control.
(f) SEVERABILITY. Whenever possible, each provision of this Agreement
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision
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of this Agreement is held to be prohibited by or invalid under applicable
law, such provision shall be ineffective only to the extent of such
prohibition or invalidity, without invalidating the remainder of this
Agreement.
(g) COUNTERPARTS. This Agreement may be executed simultaneously in
two or more counterparts, any one of which need not contain the signatures of
more than one party, but all such counterparts taken together shall constitute
one and the same Agreement.
(h) DESCRIPTIVE HEADINGS. The descriptive headings of this Agreement
are inserted for convenience only and do not constitute a part of this
Agreement.
(i) GOVERNING LAW. All issues and questions concerning the
construction, validity, interpretation and enforcement of this Agreement and the
exhibits and schedules hereto will be governed by the laws of the State of
Nevada, without giving effect to any choice of law or conflict of law rules or
provisions (whether of the State of Nevada or any other jurisdiction) that would
cause the application of the laws of any jurisdiction other than the State of
Nevada.
(j) NOTICES. All notices, demands or other communications to be given
or delivered under or by reason of the provisions of this Agreement shall be in
writing and shall be given in accordance with Section 19 of the Purchase
Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
BOARDWALK CASINO, INC.
By
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Its
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DIVERSIFIED OPPORTUNITIES
GROUP LTD.
By: Xxxxxx Entertainment Ltd.
its manager
By
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Xxxxxxx X. Xxxxxx,
President
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