REGISTRATION RIGHTS AGREEMENT
by and between
Atlantic Coast Entertainment Holdings, Inc.
And
The Other Signatories Hereto
Dated as of ________, 2004
TABLE OF CONTENTS
This Table of Contents is not part of the Agreement to which it is attached
but is inserted for convenience only.
Page
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ARTICLE I SALE OF SHARES AND CLOSING............................................................................1
Section 1.1 PURCHASE AND SALE...........................................................................1
ARTICLE II REPRESENTATIONS AND WARRANTIES OF THE COMPANY.........................................................2
Section 2.1 CORPORATE EXISTENCE OF THE COMPANY..........................................................2
Section 2.2 AUTHORITY...................................................................................2
Section 2.3 CAPITAL AND DEBT STRUCTURE..................................................................2
Section 2.4 NO CONFLICTS................................................................................2
ARTICLE III REPRESENTATIONS AND WARRANTIES OF PURCHASER...........................................................3
Section 3.1 ORGANIZATION OF PURCHASER...................................................................3
Section 3.2 AUTHORITY...................................................................................3
Section 3.3 NO CONFLICTS................................................................................3
Section 3.4 CASINO AUTHORIZATION........................................................................4
ARTICLE IV COVENANTS OF THE COMPANY..............................................................................4
Section 4.1 PIGGY-BACK REGISTRATION.....................................................................4
Section 4.2 DEMAND REGISTRATION.........................................................................5
Section 4.3 REGISTRATIONS ON FORM S-3...................................................................5
Section 4.4 EFFECTIVENESS...............................................................................5
Section 4.5 INDEMNIFICATION BY THE COMPANY..............................................................6
Section 4.6 INDEMNIFICATION BY HOLDERS OF REGISTRABLE SHARES............................................8
Section 4.7 EXCHANGE ACT REGISTRATION...................................................................9
Section 4.8 DAMAGES....................................................................................10
Section 4.9 FURTHER OBLIGATIONS OF THE COMPANY.........................................................10
Section 4.10 EXPENSES..................................................................................12
Section 4.11 TRANSFERABILITY...........................................................................12
Section 4.12 MERGERS, ETC..............................................................................12
ARTICLE V DEFINITIONS..........................................................................................12
Section 5.1 DEFINITIONS................................................................................13
ARTICLE VI MISCELLANEOUS........................................................................................15
Section 6.1 ENTIRE AGREEMENT...........................................................................15
Section 6.2 WAIVER.....................................................................................15
Section 6.3 AMENDMENT..................................................................................15
Section 6.4 NO THIRD PARTY BENEFICIARY.................................................................15
Section 6.5 ASSIGNMENT; BINDING EFFECT.................................................................15
Section 6.6 HEADINGS...................................................................................15
Section 6.7 INVALID PROVISIONS.........................................................................16
Section 6.8 GOVERNING LAW..............................................................................16
Section 6.9 COUNTERPARTS...............................................................................16
This REGISTRATION RIGHTS AGREEMENT (the "Agreement") dated as of _______,
2004 is made and entered into by and between Atlantic Coast Entertainment
Holdings, Inc., a Delaware corporation (the "Company"), and the other
signatories listed hereto (collectively the "Holders"). Capitalized terms used
herein, but not otherwise defined shall have the meaning set forth in the
Registration Statement filed on Form S-4, dated as of _______, 2004, with
Registration No. 333-110484 and the Registration Statement on Form S-4, dated as
of _______, 2004, with the Registration number 333-110485, as amended.
WHEREAS, pursuant to the Transaction, the Company shall distribute (the
"Distribution"), pro rata to the stockholders of GB Holdings, Inc. ("Parent")
(i) warrants (the "Warrants") to purchase an aggregate of 2,750,000 shares (the
"Warrant Shares") of common stock, par value $.01 per share (the "Common
Stock"), of the Company; or (ii) 2,750,000 shares (the "Shares") of Common
Stock;
WHEREAS, pursuant to the Transaction, the Company shall distribute New
Notes to holders of Existing Notes that elect to tender such Notes for exchange
and following the election of the holders of a majority of principal amount of
the New Notes outstanding, the New Notes will be payable in or convertible into
up to 7,250,000 shares of Common Stock;
WHEREAS, the Holders are stockholders of Parent and will receive Warrants
or Common Stock as part of the Distribution;
WHEREAS, the Holders own Existing Notes and if they tender for exchange
they will receive New Notes which will be payable in or convertible into up to
4,250,000 shares (the "Note Conversion Shares") of Common Stock;
WHEREAS, the Holders desire, and the Company agrees to grant to the
Holders, certain registration rights with respect to the Warrants, the Warrant
Shares, the Shares, and the Note Conversion Shares that they receive in the
Transaction.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set
forth in this Agreement, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
ARTICLE I
DISTRIBUTION OF SHARES AND WARRANTS
Section 1.1 RIGHTS GRANTED. The Company agrees that, upon consummation of
the Transaction, the Holders shall be entitled to the registration rights
described in Article IV herein.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to The Holders as follows:
Section 2.1 CORPORATE EXISTENCE OF THE COMPANY. The Company is a
corporation duly incorporated, validly existing and in good standing under the
Laws of the State of Delaware. The Company has full corporate power and
authority to execute and deliver this Agreement and to perform the Company's
obligations hereunder and to consummate the transactions contemplated hereby.
Section 2.2 AUTHORITY. The execution and delivery by the Company of this
Agreement, and the performance by such party of its obligations hereunder, have
been duly and validly authorized by the Board of Directors of the Company, no
other corporate action on the part of the Company or its stockholders being
necessary. This Agreement has been duly and validly executed and delivered by
the Company and constitutes a legal, valid and binding obligation of the Company
enforceable against the Company in accordance with its terms.
Section 2.3 CAPITAL STRUCTURE. The Shares, upon issuance as contemplated
herein, the Warrant Shares, when issued upon exercise of the Warrants in
accordance with their terms, and the Note Conversion Shares, when issued upon
payment or conversion of the New Notes, will be duly authorized, validly issued,
fully paid and nonassessable.
Section 2.4 NO CONFLICTS. The execution and delivery by the Company of this
Agreement do not, and the performance by the Company of its obligations under
this Agreement and the consummation of the transactions contemplated hereby will
not:
(a) conflict with or result in a violation or breach of any of the
terms, conditions or provisions of the certificate of incorporation or by-laws
(or other comparable corporate charter documents) of the Company;
(b) conflict with or result in a violation or breach of any term or
provision of any Law or Order applicable to the Company or any of its Assets and
Properties (other than such conflicts, violations or breaches (i) which will not
in the aggregate adversely affect the validity or enforceability of this
Agreement or have a material adverse effect on the Business or Condition of the
Company or (ii) as would occur solely as a result of the identity or the legal
or regulatory status of the Holders or any of its Affiliates); or
(c)(i) conflict with or result in a violation or breach of, (ii)
constitute (with or without notice or lapse of time or both) a default under,
(iii) require the Company to obtain
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any consent, approval or action of, make any filing with or give any notice to
any Person as a result or under the terms of, (iv) result in or give to any
Person any right of termination, cancellation, acceleration or modification in
or with respect to, or (v) result in the creation or imposition of any Lien upon
the Company or any of its Assets and Properties under, any Contract or License
to which the Company is a party or by which any of its Assets and Properties is
bound.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE HOLDERS
Each of the Holders severally represents and warrants to the Company as
follows:
Section 3.1 ORGANIZATION OF THE HOLDERS. Such Holder is duly organized,
validly existing and in good standing under the Laws of the state of its
organization. Such Holder is duly authorized to execute and deliver this
Agreement and to perform such Holder's obligations hereunder and to consummate
the transactions contemplated hereby.
Section 3.2 AUTHORITY. The execution and delivery by such Holder of this
Agreement, and the performance by such Holder of its obligations hereunder, have
been duly and validly authorized, no other action on the part of such Holder
being necessary. This Agreement has been duly and validly executed and delivered
by such Holder and constitutes a legal, valid and binding obligation of the
Holder enforceable against the Holder in accordance with its terms.
Section 3.3 NO CONFLICTS. The execution and delivery by such Holder of this
Agreement does not, the performance by such Holder of its obligations under this
Agreement and the consummation of the transactions contemplated hereby will not:
(a) conflict with or result in a violation or breach of any of the
terms, conditions or provisions of its operating agreement (or other comparable
organizational documents) of such Holder;
(b) conflict with or result in a violation or breach of any term or
provision of any Law or Order applicable to such Holder or any of its Assets and
Properties (other than such conflicts, violations or breaches (i) which will not
in the aggregate adversely affect the validity or enforceability of this
Agreement or have a material adverse effect on the Business or Condition of such
Holder or (ii) as would occur solely as a result of the identity or the legal or
regulatory status of the Company or any of its Affiliates); or
(c) (i) conflict with or result in a violation or breach of, (ii)
constitute (with or without notice or lapse of time or both) a default under,
(iii) require such Holder to obtain any consent, approval or action of, make any
filing with or give any notice to any Person as a result or under the terms of,
(iv) result in or give to any Person any right of termination, cancellation,
acceleration or modification in or with respect to, or (v) result in the
creation or imposition of
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any Lien upon such Holder or any of its Assets and Properties under, any
Contract or License to which such Holder is a party or by which any of its
Assets and Properties is bound.
Section 3.4 CASINO AUTHORIZATION. To the extent required, each of the
Holders has obtained Plenary Qualification from the New Jersey Casino Control
Commission.
ARTICLE IV
COVENANTS OF THE COMPANY
The Company covenants and agrees with the Holders that the Company will
comply with the covenants and provisions of this ARTICLE IV, except to the
extent the Holders may otherwise consent in writing:
Section 4.1 PIGGY-BACK REGISTRATION. If at any time the Company shall
determine to register for its own account or the account of others under the
Securities Act (including pursuant to a demand for registration made by any
stockholder of the Company) any of its equity securities, or warrants to
purchase equity securities, other than on Form S-4 or Form S-8 or their then
equivalents relating to shares of Common Stock to be issued solely in connection
with any acquisition of any entity or business or shares of Common Stock
issuable in connection with stock option or other employee benefit plans, it
shall send to each holder of Registrable Securities as reflected on the books
and records of or maintained on behalf of the Company (each a "holder"),
including each holder who has the right to acquire, who is entitled to
registration rights under this SECTION 4.1 written notice of such determination
and, if within fifteen (15) days after receipt of such notice, such holder shall
so request in writing, the Company shall use its reasonable efforts to include
in such registration statement all or any part of the Registrable Securities
such holder requests to be registered, except that if, in connection with any
underwritten public offering of the Company the managing underwriter shall
impose a limitation on the number of shares of such Common Stock which may be
included in the registration statement because, in its judgment, such limitation
is necessary to effect an orderly public distribution, then the Company shall be
obligated to include in such registration statement only such limited portion of
the Registrable Securities with respect to which such holder has requested
inclusion hereunder. Any exclusion of Registrable Securities shall be made pro
rata among the holders seeking to include Registrable Securities, in proportion
to the number of Registrable Securities sought to be included by such holders;
provided, however, that the Company shall not exclude any Registrable Securities
unless the Company has first excluded all outstanding securities which are not
entitled by right to inclusion of securities in such registration statement
pursuant to this ARTICLE IV. No incidental right under this SECTION 4.1 shall be
construed to limit any registration required under SECTION 4.2. The obligations
of the Company to a holder under this SECTION 4.1 may be waived only by such
Holder. Anything herein to the contrary notwithstanding, no other registration
rights (demand or piggy-back) with respect to any debt or equity securities
shall be granted to any Person without the consent of the Holders.
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Section 4.2 DEMAND REGISTRATION. If at any time and from time to time after
the date hereof holders of a majority of Registrable Securities shall notify the
Company in writing that it or they intend to offer or cause to be offered for
public sale Registrable Securities held by such holders, which shares constitute
at least twenty percent (20%) of the Registrable Securities of any class, type
or series, then the Company will so notify all holders of Registrable
Securities, including all holders who have a right to acquire Registrable
Securities. Upon written request of any holder given within fifteen (15) days
after the receipt by such holder from the Company of such notification, the
Company will use its best efforts to cause such of the Registrable Securities as
may be requested by any holder thereof (including the holder or holders giving
the initial notice of intent to offer) to be registered under the Securities Act
as expeditiously as possible. In connection with any request by any holder of
Registrable Securities for registration thereof pursuant to this SECTION 4.2,
the Company shall have the right (to be exercised not more than one time in any
365 day period) to defer the filing of a registration statement with the
Commission for up to 30 days after such filing would otherwise be required
hereunder if the Company shall furnish to the holders requesting such
registration a certificate approved by the Board of Directors stating that, in
the good faith judgment of the Company, it would be materially detrimental to
the interests of the Company for such registration statement to be filed at such
time.
Section 4.3 REGISTRATIONS ON FORM S-3. In addition to the rights provided
the holders of Registrable Securities in SECTIONS 4.1 and 4.2, if the
registration of Registrable Securities under the Securities Act can be effected
on Form S-3 (or any similar form promulgated by the Commission), then upon the
written request of one or more holders of Registrable Securities for the
registration of Registrable Securities held by such holders, the Company will so
notify each holder of Registrable Securities, including each holder who has a
right to acquire Registrable Securities, and then will, as expeditiously as
possible, use its best efforts to effect qualification and registration under
the Securities Act on Form S-3 of all or such portion of the Registrable
Securities as the holder or holders shall specify in the initial request to the
Company or upon written request of a holder to the Company given within fifteen
(15) days after the receipt by the holder from the Company of such notification.
Section 4.4 EFFECTIVENESS. The Company will use its best efforts to
maintain the effectiveness for up to 90 days (or such shorter period of time as
the underwriters need to complete the distribution of the registered offering,
or one year in the case of a "shelf" registration statement on Form S-3) of any
registration statement pursuant to which any of the Registrable Securities are
being offered, and from time to time will use reasonable efforts to amend or
supplement such registration statement and the prospectus contained therein to
the extent necessary to comply with the Securities Act and any applicable state
securities statute or regulation. The Company will also provide each holder of
Registrable Securities with as many copies of the prospectus contained in any
such registration statement as it may reasonably request.
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Section 4.5 INDEMNIFICATION BY THE COMPANY. (a) In the event that the
Company registers any of the Registrable Securities under the Securities Act,
the Company will indemnify and hold harmless each holder and each underwriter of
the Registrable Securities (including their officers, directors, affiliates and
partners) so registered (including any broker or dealer through whom such shares
may be sold) and each Person, if any, who controls such holder or any such
underwriter within the meaning of Section 15 of the Securities Act from and
against any and all losses, claims, damages, expenses or liabilities, joint or
several, to which they or any of them become subject under the Securities Act,
applicable state securities laws or under any other statute or at common law or
otherwise, as incurred, and, except as hereinafter provided, will reimburse each
such holder, each such underwriter and each such controlling Person, if any, for
any legal or other expenses reasonably incurred by them or any of them in
connection with investigating or defending any actions whether or not resulting
in any liability, as incurred, insofar as such losses, claims, damages,
expenses, liabilities or actions arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in the
registration statement, in any preliminary or amended preliminary prospectus or
in the final prospectus (or the registration statement or prospectus as from
time to time amended or supplemented by the Company) or arise out of or are
based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary in order to make the statements
therein not misleading, or any violation by the Company of any rule or
regulation promulgated under the Securities Act or any state securities laws
applicable to the Company and relating to action or inaction required of the
Company in connection with such registration, unless (i) such untrue statement
or alleged untrue statement or omission or alleged omission was made in such
registration statement, preliminary or amended preliminary prospectus or final
prospectus in reliance upon and in conformity with information furnished in
writing to the Company in connection therewith by any such holder of Registrable
Securities (in the case of indemnification of such holder), any such underwriter
(in the case of indemnification of such underwriter) or any such controlling
Person (in the case of indemnification of such controlling Person) expressly for
use therein, or unless (ii) in the case of a sale directly by such holder of
Registrable Securities (including a sale of such Registrable Securities through
any underwriter retained by such holder of Registrable Securities to engage in a
distribution solely on behalf of such holder of Registrable Securities), such
untrue statement or alleged untrue statement or omission or alleged omission was
contained in a preliminary prospectus and corrected in a final or amended
prospectus copies of which were delivered to such holder of Registrable
Securities or such underwriter on a timely basis, and such holder of Registrable
Securities failed to deliver a copy of the final or amended prospectus at or
prior to the confirmation for the sale of the Registerable Shares to the person
asserting any such loss, claim, damage or liability in any case where such
delivery is required by the Securities Act.
(b) Promptly after receipt by any holder of Registrable Securities, any
underwriter or any controlling Person, of notice of the commencement of any
action in respect of which indemnity may be sought against the Company, such
holder of Registrable Securities, or such underwriter or such controlling
person, as the case may be, will notify the Company in writing of the
commencement thereof (provided, that failure by any such person to so notify the
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Company shall not relieve the Company from any liability it may have hereunder
to any other Person entitled to claim indemnity or contribution hereunder) and,
subject to the provisions hereinafter stated, the Company shall be entitled to
assume the defense of such action (including the employment of counsel, who
shall be counsel reasonably satisfactory to such holder of Registrable
Securities, such underwriter or such controlling Person, as the case may be),
and the payment of expenses insofar as such action shall relate to any alleged
liability in respect of which indemnity may be sought against the Company.
(c) Such holder of Registrable Securities, any such underwriter or any
such controlling Person shall have the right to employ separate counsel in any
such action and to participate in the defense thereof but the fees and expenses
of such counsel subsequent to any assumption of the defense by the Company shall
not be at the expense of the Company unless the employment of such counsel has
been specifically authorized in writing by the Company. The Company shall not be
liable to indemnify any Person for any settlement of any such loss, claim,
damage, expense, liability or action effected without the Company's written
consent. The Company shall not, except with the approval of each party being
indemnified under this SECTION 4.5, 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 the parties being so indemnified of a
release from all liability in respect to such claim or litigation.
(d) In order to provide for just and equitable contribution to joint
liability under the Securities Act in any case in which any holder of
Registrable Securities exercising rights under this ARTICLE IV, or any
controlling Person of any such holder, makes a claim for indemnification
pursuant to this SECTION 4.5 but it is judicially determined (by the entry of a
final judgment or decree by a court of competent jurisdiction and the expiration
of time to appeal or the denial of the last right of appeal) that such
indemnification may not be enforced in such case notwithstanding the fact that
this SECTION 4.5 provides for indemnification in such case, then, the Company
and such holder will contribute to the aggregate losses, claims, damages or
liabilities to which they may be subject (after contribution from others) in
such proportion as is appropriate to reflect the relative fault of the Company
on the one hand and of the holder of Registrable Securities on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative fault of the Company on the one hand and of the
holder of Registrable Securities on the other shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact relates
to information supplied by the Company on the one hand or by the holder of
Registrable Securities on the other, and each party's relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission; provided, however, that, in any such case, (A) no such
holder will be required to contribute any amount in excess of the public
offering price of all such Registrable Securities offered by it pursuant to such
registration statement, net of any underwriting discounts or commissions paid by
such holder; and (B) no person or entity guilty of fraudulent misrepresentation
(within the meaning of Section
7
11(f) of the Securities Act) will be entitled to contribution from any person or
entity who was not guilty of such fraudulent misrepresentation.
Section 4.6 INDEMNIFICATION BY HOLDERS OF REGISTRABLE SECURITIES. (a) In
the event that the Company registers any of the Registrable Securities under the
Securities Act, each holder of the Registrable Securities so registered will
indemnify and hold harmless the Company, each of its directors, each of its
officers who have signed or otherwise participated in the preparation of the
registration statement, each underwriter of the Registrable Securities so
registered (including any broker or dealer through whom such of the shares may
be sold) and each Person, if any, who controls the Company within the meaning of
Section 15 of the Securities Act from and against any and all losses, claims,
damages, expenses or liabilities, joint or several, to which they or any of them
may become subject under the Securities Act, applicable state securities laws or
under any other statute or at common law or otherwise, and, except as
hereinafter provided, will reimburse the Company and each such director,
officer, underwriter or controlling Person for any legal or other expenses
reasonably incurred by them or any of them in connection with investigating or
defending any actions whether or not resulting in any liability, insofar as such
losses, claims, damages, expenses, liabilities or actions arise out of or are
based upon any untrue statement or alleged untrue statement of a material fact
contained in the registration statement, in any preliminary or amended
preliminary prospectus or in the final prospectus (or in the registration
statement or prospectus as from time to time amended or supplemented) or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary in order to make the
statements therein not misleading, but only insofar as (i) any such statement or
omission was made in reliance upon and in conformity with information furnished
in writing to the Company in connection therewith by such holder of Registrable
Securities expressly for use therein and (ii) in the case of a sale directly by
such holder of Registrable Securities (including a sale of such Registrable
Securities through any underwriter retained by such holder of Registrable
Securities to engage in a distribution solely on behalf of such holder of
Registrable Securities), such untrue statement or alleged untrue statement or
omission or alleged omission was contained in a preliminary prospectus and
corrected in a final or amended prospectus copies of which were delivered to
such holder of Registrable Securities or such underwriter on a timely basis, and
such holder of Registrable Securities failed to deliver a copy of the final or
amended prospectus at or prior to the confirmation for the sale of the
Registerable Shares to the person asserting any such loss, claim, damage or
liability in any case where such delivery is required by the Securities Act;
provided, however, that such holder's obligations hereunder shall be limited to
an amount equal to the aggregate public offering price of the Registrable
Securities sold by such holder in such registration, net of any underwriting
discounts or commissions paid by such holder.
(b) Promptly after receipt of notice of the commencement of any action
in respect of which indemnity may be sought against such holder of Registrable
Securities hereunder, the Company will notify such holder of Registrable
Securities in writing of the commencement thereof (provided, that failure by the
Company to so notify such holder shall not
8
relieve such holder from any liability it may have hereunder to any other Person
entitled to claim indemnity or contribution hereunder), and such holder of
Registrable Securities shall, subject to the provisions hereinafter stated, be
entitled to assume the defense of such action (including the employment of
counsel, who shall be counsel reasonably satisfactory to the Company) and the
payment of expenses insofar as such action shall relate to the alleged liability
in respect of which indemnity may be sought against such holder of Registrable
Securities. The Company and each such director, officer, underwriter or
controlling Person shall have the right to employ separate counsel in any such
action and to participate in the defense thereof, but the fees and expenses of
such counsel subsequent to any assumption of the defense by such holder of
Registrable Securities shall not be at the expense of such holder of Registrable
Securities unless employment of such counsel has been specifically authorized in
writing by such holder of Registrable Securities. Such holder of Registrable
Securities shall not be liable to indemnify any Person for any settlement of any
such loss, claim, damage, expense, or liability or action effected without such
holder's written consent.
(c) In order to provide for just and equitable contribution to joint
liability under the Securities Act in any case in which the Company or another
Person entitled to indemnification pursuant to this SECTION 4.6 makes a claim
for indemnification pursuant to this SECTION 4.6, but it is judicially
determined (by the entry of a final judgment or decree by a court of competent
jurisdiction and the expiration of time to appeal or the denial of the last
right of appeal) that such indemnification may not be enforced in such case
notwithstanding that this SECTION 4.6 provides for indemnification, in such
case, then, the Company and such holder will contribute to the aggregate losses,
claims, damages or liabilities to which they may be subject (after contribution
from others) in such proportion as is appropriate to reflect the relative fault
of the Company on the one hand and of the holder of Registrable Securities on
the other in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative fault of the Company on the one hand and of the
holder of Registrable Securities on the other shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact relates
to information supplied by the Company on the one hand or by the holder of
Registrable Securities on the other, and each party's relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission; provided, however, that, in any such case, (A) no such
holder will be required to contribute any amount in excess of the public
offering price of all such Registrable Securities offered by it pursuant to such
registration statement, net of any underwriting discounts or commissions paid by
such holder; and (B) no person or entity guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) will be entitled to
contribution from any person or entity who was not guilty of such fraudulent
misrepresentation.
Section 4.7 EXCHANGE ACT REGISTRATION. If the Company at any time shall
list any class of equity securities on any national securities exchange or
obtain authorization for shares of such class to be quoted on an automated
quotation system and shall register such
9
class of equity securities under the Exchange Act, the Company will, at its
expense, simultaneously list on such exchange or qualify for trading on such
automated quotation system and maintain such listing or authorization of, the
Registrable Securities of such class. If the Company becomes subject to the
reporting requirements of either Section 13 or Section 15(d) of the Exchange
Act, the Company will use its best efforts to timely file with the Commission
such information as the Commission may require under either of said Sections;
and in such event, the Company shall use its best efforts to take all action as
may be required as a condition to the availability of Rule 144 or Rule 144A
under the Securities Act (or any successor exemptive rule hereafter in effect)
with respect to such equity securities. The Company shall furnish to any holder
of Registrable Securities forthwith upon request (i) a written statement by the
Company as to its compliance with the reporting requirements of Rule 144, (ii) a
copy of the most recent annual or quarterly report of the Company as filed with
the Commission, and (iii) such other reports and documents as a holder may
reasonably request in availing itself of any rule or regulation of the
Commission allowing a holder to sell any such Registrable Securities without
registration. After the occurrence of the initial public offering, the Company
agrees to use its best efforts to facilitate and expedite transfers of the
Shares pursuant to Rule 144 under the Securities Act, which efforts shall
include timely notice to its transfer agent to expedite such transfers of
Shares.
Section 4.8 DAMAGES. The Company recognizes and agrees that the holder of
Registrable Securities will not have an adequate remedy if the Company fails to
comply with this ARTICLE IV and that damages may not be readily ascertainable,
and the Company expressly agrees that, in the event of such failure, it shall
not oppose an application by the holder of Registrable Securities or any other
Person entitled to the benefits of this ARTICLE IV requiring specific
performance of any and all provisions hereof or enjoining the Company from
continuing to commit any such breach of this ARTICLE.
Section 4.9 FURTHER OBLIGATIONS OF THE COMPANY. Whenever under the
preceding SECTIONS of this ARTICLE IV, the Company is required hereunder to
register Registrable Securities, it agrees that it shall also do the following:
(i) Furnish to each selling holder such copies of each preliminary and
final prospectus and such other documents as said holder may reasonably request
to facilitate the public offering of its Registrable Securities;
(ii) Use its best efforts to register or qualify the Registrable
Securities covered by said registration statement under the applicable
securities or "blue sky" laws of such jurisdictions as any selling holder may
reasonably request; provided, however, that the Company shall not be obligated
to qualify to do business in any jurisdictions where it is not then so qualified
or to take any action which would subject it to the service of process in suits
other than those arising out of the offer or sale of the securities covered by
the registration statement in any jurisdiction where it is not then so subject;
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(iii) Furnish to each selling holder a signed counterpart, addressed to
the selling holders and any underwriter, of "comfort" letters signed by the
Company's independent public accountants who have examined and reported on the
Company's financial statements included in the registration statement, to the
extent permitted by the standards of the American Institute of Certified Public
Accountants, covering substantially the same matters with respect to the
registration statement (and the prospectus included therein) and (in the case of
the accountants' "comfort" letters) with respect to events subsequent to the
date of the financial statements, as are customarily covered in opinions of
issuer's counsel and in accountants' "comfort" letters delivered to the
underwriters in underwritten public offerings of securities, to the extent that
the Company is required to deliver or cause the delivery of such opinion or
"comfort" letters to the underwriters in an underwritten public offering of
securities;
(iv) Permit each selling holder of Registrable Securities or such
holder's counsel or other representatives to inspect and copy such
non-confidential corporate documents and records as may reasonably be requested
by them;
(v) Furnish to each selling holder of Registrable Securities a copy of
all documents filed with and all correspondence from or to the Commission in
connection with any such offering of securities;
(vi) Use its best efforts to insure the obtaining of all necessary
approvals from the NASD or other applicable regulatory authority, if applicable;
(vii) Use its best efforts to cause all Registrable Securities so
registered pursuant hereto to be listed on any securities exchange or authorized
for quotation in any automated quotation system on or in which outstanding
shares of such class are listed or authorized for quotation at the time such
registration is declared effective by the Commission;
(viii) Designate a transfer agent and registrar for the class or
classes of shares which include such Registrable Securities and obtain a CUSIP
number for such class or classes of shares, in each case not later than the date
such registration is declared effective by the Commission; and
(ix) Otherwise use its best efforts to comply with all applicable rules
and regulations of the Commission, and make available to its security holders,
as soon as reasonably practicable, an earning statement covering the period of
at least twelve months, but not more than eighteen months, beginning with the
first month after the effective date of the registration statement covering the
initial public offering, which earning statement shall satisfy the provisions of
Section 11(a) of the Securities Act and Rule 158 thereunder.
Whenever under the preceding SECTIONS of this ARTICLE IV the holders of
Registrable Securities are registering such securities pursuant to any
registration statement, each such holder agrees to timely provide to the
Company, at its request, such information and
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materials as it may reasonably request in order to effect the registration of
such Registrable Securities.
Section 4.10 EXPENSES. In the case of each registration effected under this
Article IV, the Company shall bear all reasonable costs and expenses of each
such registration on behalf of the selling holders of Registrable Securities,
including, but not limited to, the Company's printing, legal and accounting fees
and expenses, Commission and NASD filing fees and "Blue Sky" fees; provided,
however, that the Company shall have no obligation to pay or otherwise bear any
portion of the underwriters' commissions or discounts attributable to the
Registrable Securities being offered and sold by the holders of the Registrable
Securities, or the fees and expenses of counsel for the selling holders of
Registrable Securities in connection with the registration of the Registrable
Securities. The Company shall also pay all expenses of the holders of the
Registrable Securities in connection with any registration initiated pursuant to
this ARTICLE IV which is withdrawn or abandoned at the request of the Company.
Section 4.11 TRANSFERABILITY. (a) For all purposes of ARTICLE IV of this
Agreement, a Holder or assignee thereof who becomes a party to this Agreement in
accordance with SECTION 4.11(b) hereof shall be deemed at any particular time to
be the holder of all Registrable Securities of which such Person shall at such
time be the "beneficial owner," determined in accordance with Rule 13d-3 under
the Exchange Act.
(b) For all purposes of ARTICLE IV of this Agreement, the holder of
Registrable Securities shall include not only the Holder, but also any assignee
or transferee of the Registrable Securities; provided, however, that such
assignee or transferee agrees in writing to be bound by all of the provisions of
this Agreement.
Section 4.12 MERGERS, ETC. The Company shall not, directly or indirectly,
enter into any merger, consolidation or reorganization in which the Company
shall not be the surviving corporation unless the proposed surviving corporation
shall, prior to such merger, consolidation or reorganization, agree in writing
to assume the obligations of the Company under this Agreement, and for that
purpose references hereunder to Registrable Securities shall be deemed to be
references to the securities which the Holders would be entitled to receive in
exchange for Registrable Securities under any such merger, consolidation or
reorganization; provided, however, that the provisions of this SECTION 4.12
shall not apply in the event of any merger, consolidation, or reorganization in
which the Company is not the surviving corporation if all stockholders are
entitled to receive in exchange for their Registrable Securities consideration
consisting solely of (i) cash, or (ii) securities of the acquiring corporation
which may be immediately sold to the public without registration under the
Securities Act.
ARTICLE V
DEFINITIONS
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Section 5.1 DEFINITIONS. As used in this Agreement, the following defined
terms have the meanings indicated below:
"ACTIONS OR PROCEEDINGS" means any action, suit, proceeding, arbitration or
Governmental or Regulatory Authority investigation.
"AFFILIATE" means any Person that directly, or indirectly through one of
more intermediaries, controls or is controlled by or is under common control
with the Person specified. For purposes of this definition, control of a Person
means the power, direct or indirect, to direct or cause the direction of the
management and policies of such Person whether by Contract or otherwise.
"ASSETS AND PROPERTIES" of any Person means all assets and properties of
every kind, nature, character and description (whether real, personal or mixed,
whether tangible or intangible, and wherever situated), including the goodwill
related thereto, operated, owned or leased by such Person.
"BOARD OF DIRECTORS" or "Board" means the board of directors of the Company
as constituted from time to time.
"BUSINESS OR CONDITION OF THE COMPANY" means the business, financial
condition or results of operations of the Company and the Subsidiaries taken as
a whole.
"CODE" means the Internal Revenue Code of 1986, as amended.
"COMMISSION" shall mean the United States Securities and Exchange
Commission or any other federal agency at the time administering the Securities
Act or the Exchange Act.
"COMPANY" has the meaning ascribed to it in the forepart of this Agreement.
"CONTRACT" means any agreement, lease, license, evidence of indebtedness,
mortgage, indenture, security agreement or other contract.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended, or
any similar federal statute, and the rules and regulations of the Commission (or
of any other Federal agency then administering the Exchange Act) thereunder, all
as the same shall be in effect at the time.
"GOVERNMENTAL OR REGULATORY AUTHORITY" means any court, tribunal,
arbitrator, authority, agency, commission, official or other instrumentality of
the United States or any state, county, city or other political subdivision.
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"HOLDERS" has the meaning ascribed to it in the forepart of this Agreement.
"LAWS" means all laws, statutes, rules, regulations, ordinances and other
pronouncements having the effect of law of the United States or any state,
county, city or other political subdivision or of any Governmental or Regulatory
Authority.
"LICENSE" means all licenses, permits, certificates of authority,
authorizations, approvals, registrations, franchises and similar consents
granted or issued by any Governmental or Regulatory Authority.
"LIENS" means any mortgage, pledge, assessment, security interest, lease,
lien, adverse claim, levy, charge or other encumbrance of any kind, or any
conditional sale Contract, title retention Contract or other Contract to give
any of the foregoing.
"NASD" means the National Association of Securities Dealers, Inc.
"NOTE CONVERSION SHARES" shall have the meaning ascribed in the Recitals of
this Agreement.
"ORDER" means any writ, judgment, decree, injunction or similar order of
any Governmental or Regulatory Authority (in each such case whether preliminary
or final).
"PERSON" means any natural person, corporation, limited liability company,
general partnership, limited partnership, proprietorship, other business
organization, trust, union, association or Governmental or Regulatory Authority.
"REGISTRABLE SECURITIES" shall mean and include the Shares, the Warrants
the Warrant Shares, and the Note Conversion Shares issued, in the aggregate, to
the Holders; provided, however, that shares of Common Stock or other securities
which are Registrable Securities shall cease to be Registrable Securities upon
the consummation of any sale pursuant to a registration statement or Rule 144
under the Securities Act.
"SECURITIES ACT" means the Securities Act of 1933, as amended, or any
similar federal statute, and the rules and regulations of the Commission (or of
any other federal agency then administering the Securities Act) thereunder, all
as the same shall be in effect at the time.
"SEC" means Commission.
"SHARES" has the meaning ascribed to it in the Recitals of this Agreement.
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"SUBSIDIARY" means any Person in which the Company, directly or indirectly
through Subsidiaries or otherwise, beneficially owns more than 50% of either the
equity interests in, or the voting control of, such Person.
"WARRANTS" has the meaning ascribed to it in the Recitals of this
Agreement.
"WARRANT SHARES" has the meaning ascribed to it in the Recitals of this
Agreement.
ARTICLE VI
MISCELLANEOUS
Section 6.1 ENTIRE AGREEMENT. This Agreement supersedes all prior
discussions and agreements between the parties with respect to the subject
matter hereof and contains the sole and entire agreement between the parties
hereto with respect to the subject matter hereof.
Section 6.2 WAIVER. Any term or condition of this Agreement may be waived
at any time by the party that is entitled to the benefit thereof, but no such
waiver shall be effective unless set forth in a written instrument duly executed
by or on behalf of the party waiving such term or condition. No waiver by any
party of any term or condition of this Agreement, in any one or more instances,
shall be deemed to be or construed as a waiver of the same or any other term or
condition of this Agreement on any future occasion. All remedies, either under
this Agreement or by Law or otherwise afforded, will be cumulative and not
alternative.
Section 6.3 AMENDMENT. This Agreement may be amended, supplemented or
modified only by a written instrument duly executed by or on behalf of each
party hereto.
Section 6.4 NO THIRD PARTY BENEFICIARY. The terms and provisions of this
Agreement are intended solely for the benefit of each party hereto and their
respective successors or permitted assigns, and it is not the intention of the
parties to confer third-party beneficiary rights upon any other Person.
Section 6.5 ASSIGNMENT; BINDING EFFECT. This Agreement and any right,
interest or obligation hereunder may be assigned by Holder without the prior
written consent of the Company. This Agreement is binding upon, inures to the
benefit of and is enforceable by the parties hereto and their respective
successors and assigns.
Section 6.6 HEADINGS. The headings used in this Agreement have been
inserted for convenience of reference only and do not define or limit the
provisions hereof.
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Section 6.7 INVALID PROVISIONS. If any provision of this Agreement is held
to be illegal, invalid or unenforceable under any present or future Law, and if
the rights or obligations of any party hereto under this Agreement will not be
materially and adversely affected thereby, (a) such provision will be fully
severable, (b) this Agreement will be construed and enforced as if such illegal,
invalid or unenforceable provision had never comprised a part hereof, and (c)
the remaining provisions of this Agreement will remain in full force and effect
and will not be affected by the illegal, invalid or unenforceable provision or
by its severance here from.
Section 6.8 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the Laws of the State of New York applicable to a
Contract executed and performed in such State, without giving effect to the
conflicts of laws principles thereof.
Section 6.9 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which will be deemed an original, but all of which
together will constitute one and the same instrument.
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IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by
the duly authorized officer of each party hereto as of the date first above
written.
ATLANTIC COAST ENTERTAINMENT HOLDINGS, INC.
By: ___________________________
Name:
Title:
CYPRUS, LLC
By: BARBERRY CORP.
Title: Managing Member
By: ___________________________
Name:
Title: Authorized Signatory
STARFIRE HOLDING CORPORATION
By: ___________________________
Name:
Title: Authorized Signatory
BARBERRY CORP.
By: ___________________________
Name:
Title: Authorized Signatory
AMERICAN REAL ESTATE HOLDINGS
LIMITED PARTNERSHIP
By: American Property Investors, Inc., its
general partner
By: ___________________________
Name:
Title: Executive Vice President
AMERICAN REAL ESTATE PARTNERS L.P.
By: American Property Investors, Inc., its
general partner
By: ___________________________
Name:
Title: Executive Vice President
AMERICAN PROPERTY INVESTORS, INC.
By: ___________________________
Name:
Title: Executive Vice President
BECKTON CORP.
By: ___________________________
Name:
Title: Authorized Signatory
