EXHIBIT 10.52.1
WF&G Draft 4/5/96
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AMENDED AND RESTATED EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
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AMENDED AND RESTATED EXCHANGE AND REGISTRATION RIGHTS AGREEMENT, dated as
of April __, 1996, by and among Trump Hotels & Casino Resorts, Inc., a Delaware
corporation (the "Company"), Donald J. Trump ("Trump") and Trump Taj Mahal,
Inc., a New Jersey corporation wholly owned by Trump ("TTMI").
WHEREAS, the Company and Trump are parties to that certain Exchange and
Registration Rights Agreement (the "Initial Agreement"), dated as of June 12,
1995, relating to the conversion of limited partnership interests in Trump
Hotels & Casino Resorts Holdings, L.P. (the "Partnership") into shares of Common
Stock (as defined below) of the Company and registration rights with respect
thereto;
WHEREAS, in connection with the acquisition by the Partnership of Trump Taj
Mahal Associates ("Taj Associates") and the other transactions related thereto
(the "Merger Transaction"), (i) Trump is contributing to Trump Atlantic City
Associates ("Trump AC") (on behalf, and at the direction, of the Partnership)
shares of capital stock of The Trump Taj Mahal Corporation, ("TTMC"), which
holds a .01% general partnership interest in Taj Associates, and (ii) TTMI is
contributing to Trump AC (on behalf, and at the direction, of the Partnership)
its 49.995 general partnership interest in Taj Associates;
WHEREAS, as consideration of such contributions by Trump and TTMI, the
Partnership is issuing limited partnership interests to each of Trump and TTMI;
WHEREAS, in connection with the issuance of, and with respect to, such
limited partnership interests, the Company has agreed to grant Trump and TTMI
the exchange rights and registration rights set forth below, and pursuant to the
Initial Agreement, Trump was issued certain exchange rights and registration
rights; and
WHEREAS, the Company and Trump have agreed to amend and restate the Initial
Agreement in its entirety and to add TTMI as a party;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
ARTICLE I.
Definitions
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Section 1.1. Reference to Partnership Agreement. Capitalized terms
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used herein and not otherwise defined herein shall have the meaning ascribed to
them in the Second Amended and Restated Agreement of Limited Partnership of the
Partnership (the "Partnership Agreement").
Section 1.2. Certain Definitions. Except as otherwise herein
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expressly provided, the following terms and phrases shall have the meanings as
set forth below:
"Agreement" means this Amended and Restated Exchange and Registration
Rights Agreement.
"Common Stock" means the common stock, par value $.01 per share of the
Company, and any securities into which the Common Stock has been converted or
exchanged whether pursuant to a Recapitalization Event, Merger or otherwise.
"Company" has the meaning ascribed thereto in the introduction hereto.
"Conversion Number" means the aggregate number of shares of Common
Stock issuable upon the exercise of an Optionee's entire Exchange Right, which
number shall initially be _______ with respect to Trump, and ______ with respect
to TTMI, and which numbers shall be adjusted as provided in Article II.
"Conversion Partner" means an Optionee other than (i) Trump, (ii) TTMI
and (iii) any Permitted Holder with respect to Trump.
"Conversion Right" has the meaning set forth in Section 2.2 hereof.
"Determination" has the meaning ascribed thereto in Section 2.7
hereof.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations of the SEC thereunder, all as the same shall be in
effect at the relevant time.
"Exchange Right" has the meaning set forth in Section 2.1 hereof.
"HSR" means the Hart-Scott-Rodino Antitrust Improvements Act of 1976,
as amended.
"Letter of Transmittal" means the form of letter attached hereto and
made a part hereof pursuant to which an
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Optionee may tender his Partnership Interests in exchange for shares of Common
Stock.
"Option" means, collectively, the Conversion Right and the Exchange
Right.
"Optionee" means (i) Trump, (ii) TTMI and (iii) each assignee of
Partnership Interests of Trump and TTMI and any subsequent assignee.
"Partnership" has the meaning ascribed thereto in the recitals hereto.
"Partnership Agreement" has the meaning ascribed thereto in the
recitals hereto.
"Recapitalization Event" has the meaning set forth in Section 2.4(b).
"Registrable Securities" shall mean, collectively, (i) the Common
Stock issued or issuable upon exercise of the Options and (ii) any securities
issued or issuable with respect to such shares of Common Stock by way of stock
dividend, stock split, in connection with a combination of shares,
recapitalization, merger, consolidation or other reorganization or otherwise.
"Registration Expenses" means all expenses required to be disclosed in
Item 13 of Part II of the Form S-1 registration statement, or in a comparable
section of any similar form permitting an underwritten public offering, as well
as expenses of underwriters customarily reimbursed by issuers for selling
stockholders and reasonable fees and expenses of one counsel for all selling
stockholders (in respect of a demand registration) and any underwriter (for both
a demand and piggyback registration), but not including underwriting discounts
and commissions and transfer taxes.
"Rights" means any rights, options, warrants or convertible securities
(or rights, options or warrants to purchase convertible securities) containing
the right to subscribe for or purchase shares of Common Stock.
"SEC" means the Securities and Exchange Commission and any successor
agency.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations of the SEC thereunder, all as the same shall be in effect
at the relevant time.
"Settlement Date" has the meaning ascribed thereto in Section 4.1(a)
hereof.
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"Special Dividend Record Date" has the meaning set forth in the
Company's Amended and Restated Certificate of Incorporation.
"Stop Order" means, with respect to any registration of the
Registrable Securities or any portion thereof effected pursuant to this
Agreement, any stop order, injunction or other order or requirement of the SEC
or any other governmental or administrative agency, or any act by any court
preventing or otherwise limiting the sale of any Registrable Securities pursuant
to such registration.
"Trump" has the meaning ascribed thereto in the introduction hereto.
"TTMI" has the meaning ascribed thereto in the introduction hereto.
Section 1.3. Rules of Construction. In this Agreement, whenever
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the context so indicates, the singular or plural number, and the masculine,
feminine or neuter gender shall each be deemed to include the other, and the
terms "he" and "him" shall refer to an Optionee. Words such as "herein,"
"hereinafter," and "hereunder" refer to this Agreement as a whole and not merely
to a subdivision in which such words appear unless the context otherwise
requires.
ARTICLE II.
The Option
Section 2.1. The Exchange Right. Each Optionee shall have the
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right (the "Exchange Right"), exercisable at any time, to require the Company to
exchange shares of Common Stock for all or any portion of the properly tendered
Partnership Interests owned by such Optionee.
Section 2.2. The Conversion Right. The Company (acting through a
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majority of the Special Committee) shall have the right (the "Conversion
Right"), exercisable at any time, to require a Conversion Partner to exchange
all or any portion of the Partnership Interests owned by such Conversion Partner
for shares of Common Stock.
Section 2.3. Shares Issuable Upon Exchange. The number of shares
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of Common Stock to be issued by the Company to an Optionee upon exercise of an
Option shall be equal to the product of (a) a fraction, (i) the numerator of
which is the Percentage Interest of the Partnership Interests with respect to
which the Option is exercised and (ii) the denominator of which is the aggregate
Percentage Interest of the outstanding Partnership Interests held by such
Optionee immediately prior to such exercise, multiplied by (b) such Optionee's
Conversion Number.
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Section 2.4. Adjustment of the Conversion Number. The Conversion
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Number shall be adjusted as provided in this Section 2.4 as follows:
(a) An Optionee's Conversion Number shall be reduced by the number of
shares of Common Stock issued upon any exercise its Option. Upon an
assignment of Partnership Interests by an Optionee in accordance with the
terms of the Partnership Agreement, such Optionee's Conversion Number shall
be reduced appropriately, and the Conversion Number of the assignee of such
Partnership Interests shall be equal to the amount of such reduction, or in
the case of an assignee who is also a holder of Partnership Interests, such
assignee's Conversion Number shall increase by the amount of such
reduction.
(b) Except in respect of transactions described in paragraph (c)
below, in case the Company shall (i) pay a dividend on the Common Stock in
additional shares of equity securities of the Company, (ii) subdivide or
reclassify its Common Stock, (iii) combine its outstanding shares of Common
Stock into a smaller number of shares of Common Stock, or (iv) issue by
reclassification of its Common Stock other securities of the Company (each
a "Recapitalization Event"), each Optionee's Conversion Number immediately
prior to the Recapitalization Event shall be adjusted such that the
Conversion Number after the Recapitalization Event shall equal, the kind
and amount of shares and other securities and property which the Optionees
would have owned or have been entitled to receive after the happening of
such Recapitalization Event had all of the Options been exercised
immediately prior to such Recapitalization Event (or any record date with
respect thereto). Any adjustment made pursuant to this paragraph (b) shall
become effective immediately after the effective date of such event and
such adjustment shall be retroactive to the record date, if any, for such
event.
(c) In case the Company shall issue Rights pro rata to all holders of
Common Stock, and the consideration payable upon exercise or conversion of
any such Right to acquire one share of Common Stock is less than the
Current Market Price on the date of and immediately prior to such issuance
of Rights, then upon the expiration of the period during which such Rights
may be exercised or converted (the "Rights Exercise Period") each
Optionee's Conversion Number immediately prior to such expiration shall be
adjusted to be that number of shares of Common Stock equal to the product
of (i) such Optionee's Conversion Number immediately prior to such
expiration and (ii) a fraction, (A) the numerator of which is equal to the
sum of the (I) number of shares of Common Stock outstanding immediately
prior to such issuance and the (II) number of shares issued upon exercise
or conversion of such Rights and (B) the denominator of which is equal to
the sum of (I) the total number of shares of Common Stock outstanding
immediately prior to such issuance and (II) the number of shares of Common
Stock which the aggregate consideration payable upon exercise or
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conversion of such Rights would purchase at the Current Market Price on the
date of issuance of the Rights; provided, however, in no event shall such
fraction be less than one. If an Option is exercised during the period
commencing on the record date for the issuance of the Rights and ending on
the expiration of Rights Exercise Period, then (r) the Conversion Number
upon such exercise shall be adjusted as provided in Section 2.4(c), as if
such exercise date were the end of the Rights Exercise Period, utilizing
for purposes of clause (ii)(A)(II) the number of shares of Common Stock
issued upon exercise or conversion of Rights as of such date; provided,
however, that in no event shall the fraction in clause (ii) be less than
one; and (s) at the end of the Rights Exercise Period, the Optionee shall
be issued an additional number of shares equal to the excess, if any, of
the number of shares of Common Stock which would have been issued had such
Option been exercised at the end of the Rights Exercise Period over the
number of shares actually issued upon exercise of the Option.
(d) In case the Percentage Interest of the Partnership Interests
held by an Optionee shall increase as the result of the contribution by
such Optionee of additional consideration or otherwise to the Partnership
(a "Contribution"), then the Conversion Number shall be adjusted such that
(i) such Optionee's Conversion Number immediately after the Contribution
divided by the sum of the number of outstanding shares of Common Stock plus
such new Conversion Number shall equal (ii) the product of (A) a fraction,
(I) the numerator of which is the aggregate Percentage Interest of such
Optionee immediately after the Contribution, and (II) the denominator of
which is the aggregate Percentage Interest of such Optionee immediately
prior to the Contribution, and (B) a fraction, (I) the numerator of which
is such Optionee's Conversion Number immediately prior to the Contribution,
and (II) the denominator of which is the sum of such Optionee's Conversion
Number immediately prior to the Contribution and the number of outstanding
shares of Common Stock. [For purposes of this Section 2.4(d), in the event
that more than one Optionee (or the Company and one or more Optionees)
makes a concurrent contribution to the Partnership, the calculation to
adjust the Conversion Number with respect to each contributing Optionee
shall be made with respect to each Optionee as if no other Optionee or the
Company, as applicable, was making a concurrent contribution.]
(e) In case of any consolidation or merger of the Company with or
into another entity as a result of which the
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holders of Common Stock become holders of other shares or securities of the
Company or of another entity or person, or such holders receive cash or
other assets, or in case of any sale or conveyance to another person of the
property, assets or business of the Company as an entirety or substantially
as an entirety, the Company or such successor or purchasing entity or
person, as the case may be, shall execute with the Optionees an agreement
that (i) the Optionees shall have the right thereafter to receive upon
exercise of their Options the kind and amount of shares and other
securities and property which it would have owned or have been entitled to
receive after the happening of such consolidation, merger, sale or
conveyance had its Option been exercised immediately prior to such action
and (ii) that this Agreement including the registration rights in Article V
hereof, shall continue in full force and effect notwithstanding the
consummation of such transaction and that such person or entity shall
assume the obligations of the Company hereunder. The agreements referred to
in this Section 2.4(e) shall provide for adjustments which shall be as
nearly equivalent as may be practicable to the adjustments provided for in
the other provisions in this Section 2.4. The provisions of this Section
2.4(e) shall similarly apply to successive consolidations, mergers, sales
or conveyances.
Section 2.5. Company's Covenant Regarding Certain Rights Offerings.
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The Company covenants and agrees that it shall not issue Rights pro rata to all
holders of Common Stock, unless such Rights are exercisable or convertible for a
period not in excess of sixty (60) days from their date of issuance.
Section 2.6. Reservation. The Company shall at all times reserve
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and keep available out of its authorized but unissued Common Stock the full
number of shares of Common Stock deliverable at such time upon the exercise of
the Options and shall take all such action and obtain all such permits or orders
as may be necessary to enable the Company lawfully to issue such Common Stock
upon the exercise of the Option and to cause such Common Stock to be fully paid
and nonassessable.
Section 2.7. Determination of Number of Shares. The Company shall
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calculate (each, a "Determination") the number of shares of Common Stock to be
issued upon the exercise of an Option pursuant to this Agreement in connection
with such exercise. After each exercise of an Option, the Company shall
promptly provide the Optionees a report, certified by the Chief Financial
Officer of the Company and its independent public accountants, setting forth the
Determination, and setting forth in reasonable detail the method of calculation
and the facts upon which such calculation is based. Each Determination will be
made by the Company in good faith and in accordance with the provisions hereof.
The Company shall, at any time upon the written request of an Optionee, furnish
to such Optionee a like report setting forth the number of shares of Common
Stock
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issuable upon the exercise of an Option and showing in reasonable detail the
derivation of such number of shares of Common Stock.
Section 2.8. Continuous Offer. This Agreement is a continuous
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offer and may not be withdrawn, changed or modified by the Company or a
Conversion Partner without the prior written consent of the Company and each
Optionee.
ARTICLE III.
Procedure for Exercising the Option
Section 3.1 The Exercise of the Exchange Right.
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(a) Each Optionee desiring to exercise his Exchange Right with
respect to all or a portion of his Partnership Interests may do so by
delivering to the Company, at The Boardwalk and Mississippi Avenue,
Atlantic City, New Jersey 08401, Attn: Corporate Secretary (or such other
address as the Company shall provide in writing to each Optionee) a
completed and duly executed Letter of Transmittal and any other documents
required by the Letter of Transmittal.
(b) The tender of Partnership Interests pursuant to this Section 3.1
shall constitute a binding agreement between the tendering Optionee and the
Company and will not be subject to withdrawal or change except with the
consent of the Company.
(c) All questions as to the validity and form of any tender of
Partnership Interests upon the exercise of the Option will be determined in
good faith by the Company.
Section 3.2. Representation of Optionee. Any exercise of an
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Exchange Right hereunder by an Optionee shall constitute a representation by
such Optionee that it is acquiring the Common Stock to be issued upon the
exercise of the Exchange Right for purposes of investment and not with a view to
distribution (without any limitation of any rights such Person may have under
Article V hereof) in violation of any federal or state securities laws.
Section 3.3. The Exercise of the Conversion Right.
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If the Company exercises the Conversion Right with respect to all or
a portion of the Partnership Interests of a Conversion Partner, the Company
may do so by delivering to the Conversion Partner at his address appearing
on the books of the Partnership, a notice setting forth (i) the Company's
election to exercise the Conversion Right, (ii) the portion of the
Partnership Interest with respect to which the Conversion Right is
exercised, and (iii) that delivery of shares of Common Stock as the
consideration for the Partnership Interest subject to the Conversion Right
shall
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not be made until the Conversion Partner has submitted a duly completed
Letter of Transmittal and any other documents required by the Letter of
Transmittal, which Letter of Transmittal and other documents shall be
completed and delivered promptly to the Company.
(b) All questions as to the validity and form of any tender of
Partnership Interests upon the exercise of the Conversion Right will be
determined in good faith by the Company.
ARTICLE IV
Settlement of the Option
Section 4.1. Settlement of the Option.
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(a) Upon the terms and subject to the conditions of this Agreement,
the Company will issue shares of Common Stock for Partnership Interests
properly tendered on that date (the "Settlement Date") which is the later
of: (i) the expiration of three (3) Business Days from the date that the
Company receives the tender of the Partnership Interests in proper form and
meeting all of the requirements of this Agreement, which requirements may
be waived by the Company in connection with a Conversion Right, (ii) the
earlier of (A) ten (10) Business Days after the exercise of the Exchange
Right, or (B) one day after the Special Dividend Record Date, and (iii) the
expiration or termination of the waiting period applicable to each tender,
if any, under HSR. The Optionee shall be deemed to be the record holder of
the Common Stock issuable upon exercise of the Option on the Settlement
Date, notwithstanding the fact that certificates with respect to such
shares of Common Stock may not have been issued on such date.
(b) Upon the exercise of an Option, the General Partner shall use its
reasonable best efforts (including, without limitation, forming and
properly capitalizing a subsidiary for the purpose of holding all or a
portion of the Partnership Interests being transferred upon exercise of the
Option) and cooperate with the remaining Optionees to the extent necessary
to preserve the treatment of the Partnership as a pass-through entity for
federal tax purposes.
(c) Each tender and the issuance of Common Stock with respect thereto
will be subject to any change in securities or other applicable law
imposing limits or conditions on such tender or the issuance of Common
Stock with respect thereto.
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(d) Payment for the Partnership Interests tendered pursuant to this
Agreement will be made only after timely receipt by the Company of (i)
Certificates of Interest with respect to such Partnership Interests, duly
completed and executed by the Partnership in the name of the Optionee and
duly endorsed by the Optionee for transfer to, or accompanied by stock
powers duly executed by the Optionee in favor of, the Company, (ii) a
properly completed and duly executed Letter of Transmittal and (iii) any
other documents required by the Letter of Transmittal.
Section 4.2. Tax Withholding. Unless an exception applies under
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applicable law and regulations, the Company will be required to withhold, and
will withhold, 31 percent (or such other amount as applicable law may require)
of the gross proceeds (including dollar equivalent of shares of Common Stock)
paid to a tendering Optionee unless the Optionee provides his tax identification
number (employer identification number or Social Security Number) and certifies
that such number is correct.
Section 4.3. Rights as Partner/Stockholder.
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(a) No Optionee shall, by virtue of this Agreement, have any rights as
a stockholder of the Company until such time as that person becomes a
holder of record of shares of Common Stock.
(b) The Company, effective as of the Settlement Date with respect to
any tendered Partnership Interest, assumes all obligations related to the
tendered Partnership Interest and will hold the Person tendering that
Partnership Interest harmless from any such obligations other than with
respect to any breach of any representation contained in the Letter of
Transmittal to be delivered in connection with the exercise of rights
pursuant to this Agreement.
(c) Until the Settlement Date, each tendering Optionee shall continue
to own his respective tendered Partnership Interests, and will continue to
be treated as the holder of such tendered Partnership Interests for all
purposes of the Partnership Agreement, including, without limitation, for
purposes of voting, consent, allocations and distributions (subject only to
reasonable accounting conventions adopted by the Partnership for purposes
of determining the partners' varying percentage interests in the
Partnership during the taxable year). Tendered Partnership Interests will
be transferred to the Company only upon receipt by the tendering Optionee
of Common Stock in payment in full therefor.
Section 4.4. HSR. If in connection with the exercise of an
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Option, such Optionee is required to file a notification form pursuant to the
HSR, then as promptly as practicable, and in any event within ten (10) Business
Days following the exercise of
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the Option, such Optionee and the Company shall each prepare and file, or shall
cause its "ultimate parent" (as defined in the HSR) to prepare and file, any
required notification and report form under the HSR, in connection with the
transactions contemplated hereby, the filing fees for which shall be borne by
the Company. Such Optionee and the Company shall, or shall cause their ultimate
parents to, request early termination of the waiting period with respect to such
filing and to respond with reasonable diligence to any request for additional
information made in response to such filings.
ARTICLE V.
Registration Rights
Section 5.1. Registration on Demand.
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(a) Upon written notice to the Company from holders of at least twenty
percent (20%) of the Registrable Securities, determined as if the Exchange
Right had been fully exercised, of their desire to cause a registration of
the Registrable Securities, the Company shall (i) inform the other holders
of Registrable Securities (at least 30 days prior to the proposed filing of
any registration statement), such notice to state the identity of the
holders requesting registration and the number of Registrable Securities
proposed to be sold thereby, and take appropriate action, on a reasonably
timely basis, to file with the SEC a registration statement on the
appropriate form covering all Registrable Securities specified in such
demand and by such other holders (by notice given to the Company within 15
days after the date the Company notified them of such demand), (ii) use
best efforts to cause such registration statement to become effective under
the Securities Act and (iii) use best efforts to qualify such resale under
those state securities laws reasonably requested by the holders of a
majority of Registrable Securities to be included in such registration;
provided, however, that such effort shall not require the Company to
qualify as a foreign corporation or subject itself to taxation in any
jurisdiction where it is not already so qualified or subject. The Company
shall be obligated to effect four (4) registrations pursuant to this
Section 5.1. The Company shall be obligated to effect any registration
pursuant to this Section 5.1 as promptly as practicable upon receipt from
the requisite number of holders of Registrable Securities of the notice
requesting such registration; provided, however, that the Company shall
have the right to delay any registration pursuant to this Section 5.1 for
one period of up to thirty (30) days if the Board of Directors of the
Company shall have determined (and passed a resolution to such effect) that
to effectuate such registration at such time would materially and adversely
affect the Company and be materially detrimental to the business and
operations thereof (a "Blackout
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Determination"), which period may be extended for an additional thirty (30)
days upon a second Blackout Determination upon the expiration of the first
thirty (30) day period.
(b) The Company will be obligated to pay all Registration Expenses
with respect to the registrations pursuant to this Section 5.1.
(c) Registrable Securities will cease to be such when (i) a
registration statement covering such Registrable Securities has been
declared effective and they have been disposed of pursuant to such
effective registration statement, (ii) such Registrable Securities shall
have been otherwise transferred, and the Company shall have delivered new
certificates or other evidences of ownership for them not subject to any
stop transfer order or other restriction on transfer and not bearing a
legend restricting transfer in the absence of an effective registration or
an exemption from the registration requirements of the Securities Act and
subsequent disposition of them shall not require registration or
qualification of them under the Securities Act or any similar state law
then in force, or (iii) such Registrable Securities shall have ceased to be
outstanding.
(d) A registration requested pursuant to this Section 5.1 will not be
deemed to have been effected unless it has been declared effective by the
SEC and the Company has complied with all of its obligations under this
Agreement with respect thereto (without regard to the use of best efforts
or the like); provided that such registration will be deemed not to have
been effected if after such registration has become effective, the offering
of the Registrable Securities (or any portion thereof) pursuant to such
registration is withdrawn or is or becomes the subject of any Stop Order.
If (i) a registration requested pursuant to this Section 5.1 is deemed not
to have been effected or (ii) the registration requested pursuant to this
Section 5.1 does not remain effective for a period of at least 360 days,
then (x) such requested registration shall not be deemed to be an effective
registration pursuant to this Section 5.1 and (y) such requested
registration shall not reduce the number of registrations the Company shall
be obligated to effect pursuant to this Section 5.1.
(e) Any offering of Registrable Securities contemplated by this
Section 5.1 shall, unless the holders of a majority of the Registrable
Securities to be included in such offering determine otherwise, be a firm
commitment underwritten offering and the managing underwriter for such
offering shall be chosen by the holders of a majority of the Registrable
Securities to be included therein, which managing underwriter shall be
reasonably acceptable to the Company.
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(f) The Company shall not, without the prior written consent of the
holders of a majority of the Registrable Securities to be included in any
registration requested pursuant to this Section 5.1, include in such
registration, any other securities of the Company; provided, however, that
the Company may include in any such registration any securities to the
extent that the inclusion of such securities does not have the effect
referred to in Section 5.1(g) hereof and so long as the sale of such
securities is included in the underwriting of the Registrable Securities
and the same underwriters are used.
(g) If the managing underwriter in a public offering to be effected
pursuant to the provisions of this Section 5.1 advises the Company and the
holders of the Registrable Securities in writing that in its opinion
inclusion in the registration of the total amount of securities requested
to be registered will materially and adversely affect the offering price of
such securities or will materially and adversely affect the market for such
securities, then, to the extent necessary, up to the entire amount of any
securities proposed to be included in such registration which are not
Registrable Securities shall be eliminated.
(h) The Company shall not be required to register Registrable
Securities which, together with any other securities to be included in such
registration, have a value, based on the proposed offering price, of less
than $2,000,000.
Section 5.2. Incidental Registration.
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(a) If the Company intends to file a registration statement on Form
S-1, S-2 or S-3 (or other appropriate form) for the registration of an
offering of equity securities with the SEC, the Company shall notify each
of the holders of record of Registrable Securities at least 30 days prior
to each such filing of the Company's intention to file such a registration
statement, such notice shall state the number of shares of equity
securities proposed to be registered thereby. If any holder of Registrable
Securities notifies the Company within ten days after receipt of such
notice from the Company of its desire to have included in such registration
statement any of its Registrable Securities, then the Company shall cause
the Company to include such shares in such registration statement. The
Company shall pay all the Registration Expenses of such registration.
(b) The Company may in its discretion withdraw any registration
statement filed pursuant to this Section 5.2 subsequent to its filing
without liability to the holders of Registrable Securities.
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(c) In the event that the managing underwriter for any such offering
described in this Section 5.2 notifies the Company that, in good faith, it
is able to proceed with the proposed offering only with respect to a
smaller number of securities (the "Maximum Number") than the total number
of Registrable Securities proposed to be offered by such holders and
securities proposed to be offered by the Company and all others entitled to
registration rights under such registration statement, then the Company
shall reduce the number of securities held by persons (the "Piggyback
Holders") other than the Company and persons exercising demand registration
rights to be included in such registration, to the extent necessary to
reduce the number of securities to be included in such registration to an
amount equal to the Maximum Number. Such amount will be allocated pro rata
in accordance with the number of securities proposed to be offered by each
Piggyback Holder (including the holders of Registrable Securities).
Section 5.3. Indemnity and Contribution.
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(a) In connection with a registration statement filed with the
Commission pursuant to this Article V, the Company shall provide each
holder of Registrable Securities included in such registration statement,
and each officer and director of any thereof, and each person who controls
such holder within the meaning of Section 15 of the Securities Act, and
Section 20 of the Exchange Act, with indemnification against any losses,
claims, damages or liabilities, reasonable attorneys fees, costs or
expenses and costs and expenses of investigating and defending any such
claims (collectively "Damages"), joint or several, to which any of them may
become subject under the federal securities laws, or otherwise, in form and
substance as is customarily given to underwriters in an underwritten
offering of securities. Each holder including Registrable Securities in
any such registration statement agrees that it shall indemnify the Company,
and each officer and director thereof, and each person who controls the
Company within the meaning of Section 15 of the Securities Act and Section
20 of the Exchange Act, against any Damages, in form and substance as is
customarily given by selling shareholders to publicly held corporation in
an underwritten public offering of securities, but only to the extent that
such Damages (or proceedings in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of any material fact
contained, on the effective date thereof, in any registration statement
under which such securities are registered under the Securities Act, in any
preliminary prospectus or final prospectus contained therein or in any
amendment or supplement thereto, 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
-14-
to make the statements therein not misleading, which, in each such case,
has been made in or omitted from such registration statement, said
preliminary or final prospectus or said amendment or supplement solely in
reliance upon, and in conformity with, written information furnished to the
Company by such holder of Registrable Securities.
(b) In order to provide for just and equitable contribution in
circumstances in which the indemnity agreement provided for in Section
5.3(a) is for any reason held to be unenforceable by the indemnified
parties although applicable in accordance with its terms, each of the
Company and the holders of the Registrable Securities included in such
registration shall contribute to the aggregate Damages contemplated by said
indemnity agreement incurred by each of the Company and such holders of the
Registrable Securities, as incurred, in such proportions as is appropriate
to reflect the relative fault of the Company and such holders of the
Registrable Securities in connection with the statements or omissions which
resulted in such Damages. The relative fault of the Company and such
holders of Registrable Securities shall be determined by reference to,
among other things, whether the untrue or alleged untrue statements of a
material fact or the omission or alleged omission to state a material fact
was supplied by the Company or one or more of the holders of Registrable
Securities, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission.
(c) In no event shall a holder of Registrable Securities be liable for
indemnification or contribution pursuant to this Article V in excess of the
net proceeds received upon the sale of such Registrable Securities.
Section 5.4. Certain Procedures. The Company shall provide each
------------------
holder of Registrable Securities included in any registration with a "cold
comfort" letter from the Company's independent public accountants, in customary
form covering those matters customarily covered by a "cold comfort" letter with
respect to any such registration statement and addressed to such holder, and the
Company shall use its best efforts to execute and deliver with underwriters for
the offering covered by any such registration statement, an underwriting
agreement in form and substance customarily executed for public offerings of
common stock. Any holder of Registrable Securities that includes shares in the
registration shall also be a party to such underwriting agreement.
Section 5.5. Rule 144 Reporting. With a view to making available
------------------
to the holders of Registrable Securities the benefits of certain rules and
regulations of the SEC which may permit the sale of the Registrable Securities
to the public without registration, the Company agrees to, at all times:
-15-
(1) make and keep available current public information concerning
the Company as those terms are understood and defined in Rule 144
under the Securities Act ("Rule 144");
(2) file with the SEC in a timely manner all reports and other
documents required of the Company under the Securities Act and the
Exchange Act; and
(3) furnish to each holder of Registrable Securities forthwith
upon such holder's request a written statement by the Company as to
its compliance with the reporting requirements of Rule 144 and of the
Securities Act and the Exchange Act, a copy of the most recent annual
or quarterly report of the Company, and such other reports and
documents so filed by the Company as such holder may reasonably
request in availing itself of any rule or regulation of the SEC
allowing it to sell any such securities without registration.
Section 5.6. Lock-Ups. After receipt of any notice pursuant to
--------
Section 5.1 or 5.2 hereof, each holder of Registrable Securities and the Company
shall not demand or request a registration of securities of the Company or
otherwise offer or sell securities until the later of (i) 90 days after the
effective date of the registration statement in respect of which such notice was
given, (ii) 150 days after the date such notice was given [or (iii) the date
such registration statement is withdrawn by the Company]. To the extent
requested by the managing underwriter in respect of an offering of securities of
the Company described in this Article V, each holder of Registrable Securities
and the Company shall agree to refrain from selling or offering to sell any
securities of the Company within 120 days after the effective date of any
registration statement described herein. Nothing in this Section 5.6 shall
preclude the Company from issuing shares of Registrable Securities upon exercise
of an Option.
Section 5.7. No Inconsistent Provisions. The Company shall not,
--------------------------
without the prior written consent of the holders of a majority of the
Registrable Securities include, or grant to any Person the right to request the
Company to include, in such registration, any other securities of the Company
that are inconsistent with the priorities, rights and privileges of the holders
of Registrable Securities contained in this Agreement.
ARTICLE VI.
Miscellaneous
Section 6.1. Waiver, Amendment. Neither this Agreement nor any
-----------------
provisions hereof shall be waived, modified,
-16-
changed, discharged or terminated except by an instrument in writing signed by
the party against whom any waiver, modification, change, discharge or
termination is sought.
Section 6.2. Assignability. Neither this Agreement nor any right,
-------------
remedy, obligation or liability arising hereunder or by reason hereof shall be
assignable by either an Optionee or the Company, without the prior written
consent of the other parties; provided, however, that the rights granted to an
Optionee hereunder shall automatically be assigned in connection with an
assignment of Partnership Interests or Registrable Securities; provided further,
however, the rights granted hereunder may be assigned to a secured creditor to
whom an Optionee has pledged Partnership Interests or Registrable Securities.
Section 6.3. Entire Agreement. This Agreement sets forth the
----------------
entire agreement and understanding of the parties hereto with respect to the
transactions contemplated hereby and supersedes any and all prior agreements and
understandings relating to the subject matter hereof. No representation,
promise or statement of intention has been made by any party hereto which is not
embodied in this Agreement or the written statements, certificates, exhibits or
other documents delivered pursuant hereto or in connection with the transactions
contemplated hereby, and no party hereto shall be bound by or liable for any
alleged representation, promise or statement of intention not set forth herein
or therein. The documents referred to in the immediately preceding sentence are
incorporated by reference herein and shall be deemed a part of this Agreement.
By executing and delivering this Agreement, the Company and Trump agree to the
termination of the Initial Agreement and to the amendment and restatement
thereof by this Agreement.
Section 6.4. Severability. If any provision of this Agreement or
------------
the application of any such provision to any person or circumstance shall be
held invalid, illegal or unenforceable in any respect by a court of competent
jurisdiction, this Agreement shall continue in full force and effect without
said provision; provided that no such severance of provision shall be effective
if it materially changes the economic benefit of this Agreement to any Person.
Section 6.5. Section and Other Headings. The section headings
--------------------------
contained in this Agreement are for reference purposes only and shall not affect
in any way the meaning or interpretation of this Agreement.
Section 6.6. Governing Law. This Agreement shall be governed by,
-------------
and construed in accordance with, the laws of the State of New York, regardless
of the law that might be applied under principles of conflicts of law.
-17-
Section 6.7. Counterparts. This Agreement may be executed in any
------------
number of counterparts, each of which when so executed and delivered shall be
deemed to be an original and all of which together shall be deemed to be one and
the same agreement.
Section 6.8. Specific Performance. Without limiting or waiving in
--------------------
any respect any rights or remedies of an Optionee under this Agreement, or now
or hereinafter existing at law or in equity or by statute, the Company agrees
that the Optionees shall be entitled to seek specific performance of the
obligations to be performed by the Company in accordance with the provisions of
this Agreement.
Section 6.9. Notice. Each notice, demand, request, request for
------
approval, consent, approval, disapproval, designation or other communication
(each of the foregoing being referred to herein as a "notice") required or
desired to be given or made under this Agreement shall be in writing (except as
otherwise provided in this Agreement), and shall be effective and deemed to have
been received (i) when delivered in person, (ii) when sent by facsimile
transmission with receipt acknowledged, (iii) three (3) days after having been
mailed by certified or registered United States mail, postage prepaid, return
receipt requested, or (iv) the next business day after having been sent by a
nationally recognized overnight mail or courier service, receipt requested (a)
if to any Optionee, at such address or to the telefax number as such Optionee
shall have furnished the Company in writing, or (b) if to the Company, at the
address of its principal executive offices and addressed to the attention of the
Corporate Secretary, or at such other address or to the telefax number as the
Company shall have furnished to each Optionee.
-18-
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the day and date first set forth above.
TRUMP HOTELS & CASINO RESORTS, INC.
By:
---------------------------------
Robert M. Pickus
Executive Vice President
TRUMP TAJ MAHAL, INC.
By:
---------------------------------
Donald J. Trump
President
---------------------------------
Donald J. Trump
LETTER OF TRANSMITTAL
To Tender Partnership Interests
Pursuant to the Amended and Restated Exchange and
Registration Rights Agreement
Dated as of April __, 1996
of
Trump Hotels & Casino Resorts, Inc.
TO: Trump Hotels & Casino Resorts, Inc.
Mississippi Avenue and The Boardwalk
Atlantic City, New Jersey 08401
Attn: Corporate Secretary
Description of Partnership Interests
_____________________________________________________________________________
Names(s) and Address(es) Partnership Interest Certificate(s)
of Registered Owners Enclosed (Attach additional list if
necessary)
Partnership Partnership Partnership
Interest Interests Interests
Certificate Represented Being
Number(s) by Tendered
Partnership
Interest
Certificate(s)
______________________________________
Total
Unless otherwise indicated, it will be assumed that all Partnership Interests
evidenced by any Partnership Interest Certificate(s) delivered to the Company
are being tendered. If, for any reason, Partnership Interest Certificates are
not being issued by Trump Hotels & Casino Resorts Holdings, L.P., all provisions
in this Letter of Transmittal referring thereto shall be of no effect. See
instruction 4.
NOTE: SIGNATURES MUST BE PROVIDED BELOW
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY
Gentlemen:
The undersigned hereby tenders to Trump Hotels & Casino Resorts, Inc., a
Delaware corporation (the "Company"), the above-described Partnership Interests
as defined in the Company's Amended and Restated Exchange and Registration
Rights Agreement dated as of April __, 1996 (the "Agreement") in accordance with
the terms and conditions of the Agreement and this Letter of Transmittal (which
together constitutes the "Tender"), receipt of which is hereby acknowledged.
All terms used herein but not defined herein are used as defined in the
Agreement.
Subject to, and effective upon, payment (i.e., issuance of shares of Common
----
Stock) for the Partnership Interests tendered herewith, the undersigned hereby
assigns and transfers to the Company all right, title and interest in and to all
the Partnership Interests that are being tendered hereby and irrevocably
constitutes and appoints the Company (the "Agent"), with full power of
substitution (such power of attorney being deemed to be an irrevocable power
coupled with an interest), to (a) present such Partnership Interests for
transfer on the Partnership's books and (b) receive all rights, privileges and
benefits, and any and all obligations and liabilities appertaining thereto and
otherwise exercise all rights of beneficial ownership of such Partnership
Interests, all in accordance with the terms of the Tender.
The undersigned hereby represents and warrants that the undersigned has
full power and authority to tender, sell, assign and transfer the tendered
Partnership Interests and that upon payment, the Company will acquire
unencumbered title thereto, free and clear of all liens, restrictions, charges
and encumbrances and the same will not be subject to any adverse claim. The
undersigned will, upon request, execute any additional documents deemed by the
Agent or the Company to be reasonably necessary or desirable to complete the
sale, assignment and transfer of the tendered Partnership Interests. If not
sold pursuant to an effective registration statement, the shares of Common Stock
issued will bear an appropriate legend indicating that such shares have not been
registered under the Securities Act and resale of such Common Stock is
restricted under applicable securities laws.
All authority conferred or agreed to be conferred in this Letter of
Transmittal shall not be affected by, and shall survive, the death or incapacity
of the undersigned, and any obligation of the undersigned hereunder shall be
binding upon the successors, assigns, heirs, executors, administrators and legal
representatives of the undersigned. Except as stated in the Agreement, this
Tender is irrevocable.
The undersigned understands that a tender of Partnership Interests pursuant
to the Agreement constitutes a binding agreement between the undersigned and the
Company upon the terms and subject to the conditions of the Agreement.
Unless otherwise indicated under "Special Delivery Instructions", please
mail the shares of Common Stock for the purchase price and/or return the
Partnership Interest Certificate for Partnership Interests not tendered (and
accompanying documents, as appropriate) to the address(es) of the registered
holder(s) appearing under "Description of Partnership Interests."
In the event that the Special Delivery Instructions are completed, please
issue the shares of Common Stock for the purchase price and any Certificate for
Partnership Interests not tendered in the name of the registered holder(s) and
transmit the same to the person or persons so indicated.
The Company, effective as of the Settlement Date (as defined in the
Agreement), will assume all obligations related to the tendered Partnership
Interests and will hold the undersigned harmless from such obligations,
including any liabilities, demands, claims, actions or causes of action,
assessments, losses, fines, penalties, costs, damages and expenses as a result
of or arising out of the ownership of such tendered Partnership Interests.
The Company and the undersigned agree that they will cooperate with each
other and will make, execute, acknowledge, deliver, record and file, or cause to
be made, executed, acknowledged, delivered, recorded and filed, at such times
and places as the other may reasonably deem necessary, all other and further
documents and instruments, and will take all other and further actions, as the
other may reasonably request from time to time in order to effectuate the
purposes and provisions of the tender made pursuant to this Letter of
Transmittal.
-2-
SPECIAL DELIVERY INSTRUCTIONS
(See Instructions 5 and 6)
To be completed ONLY if (a) the Certificate of Interests includes Partnership
Interests not tendered and/or (b) shares of Common Stock for the purchase price
of Partnership Interests purchased are to be sent (i) to someone other than the
undersigned or (ii) to the undersigned at an address other than that above.
Mail / / Certificate(s) for shares of Common Stock
/ / Certificate of Interests for Partnership
Interests not tendered
To:
Name _________________________________________________________
(please print)
Address ______________________________________________________
______________________________________________________________
(include Zip Code)
______________________________________________________________
______________________________________________________________
(Tax Identification or Social Security Number)
SIGN HERE
Complete Substitute Form W-9 included
_________________________________________________________________
_________________________________________________________________
(Signature(s) of holder of Partnership Interests)
(Must be signed by registered holder(s) as name(s) appear(s) on Partnership
Interest Certificate(s). If signature is by trustees, executors,
administrators, guardians, attorneys-in-fact, officers of corporations or others
acting in a fiduciary or representative capacity, please set forth full title
and see instruction 5.
Dated___________________________________________________________
Name(s)_________________________________________________________
(please print)
Capacity
(Full Title)____________________________________________________
Address_________________________________________________________
________________________________________________________________
(include Zip Code)
Area Code and Tel. No.__________________________________________
Tax Identification or
Social Security No._____________________________________________
(Complete Substitute Form W-9)
Guarantee of Signature(s)
(See Instruction 1)
Authorized
Signature_______________________________________________________
Name of
Firm____________________________________________________________
Dated___________________________________________________________
INSTRUCTIONS
Forming Part of the Terms and Conditions of the
Amended and Restated Exchange and Registration Rights Agreement
1. GUARANTEE OF SIGNATURE. No signature guarantee on this Letter of
Transmittal is required unless the registered holder of the Partnership
Interests has completed the box entitled "Special Delivery Instructions". In
such case all signatures on this Letter of Transmittal must be guaranteed by a
member firm of any registered national securities exchange in the United States
or of the National Association of Securities Dealers, Inc. or by a commercial
bank or trust company (not a savings bank or a savings and loan association)
having an office, branch or agency in the United States.
2. DELIVERY OF LETTER OF TRANSMITTAL AND PARTNERSHIP INTEREST
CERTIFICATE(S). This Letter of Transmittal is to be completed by the holder of
Partnership Interests. Partnership Interest Certificate(s) for all Partnership
Interests as well as a properly completed and duly executed Letter of
Transmittal, and any other documents required by this Letter of Transmittal,
must be received by the Agent.
No alternative, conditional or contingent tenders will be accepted.
3. INADEQUATE SPACE. If the space provided herein is inadequate, the
Partnership Interest Certificate numbers and/or other information required
should be listed on a separate schedule attached hereto.
4. PARTIAL TENDERS. If fewer than all the Partnership Interests evidenced
by any Certificate submitted are to be tendered, fill in the Percentage Interest
represented by the Partnership Interests which are to be tendered in the box
entitled "Units of Partnership Interests Being Tendered." In such case, a new
Partnership Interest Certificate for the remainder of the Partnership Interests
that was evidenced by old certificate(s) will be sent to the registered holder,
unless otherwise provided in the appropriate box on this Letter of Transmittal,
as soon as practicable. All Partnership Interests represented by Partnership
Interest Certificate(s) delivered to the Agent will be deemed to have been
tendered unless otherwise indicated.
5. SIGNATURES ON LETTER OF TRANSMITTAL. The signature must correspond
with the name as written on the face of the Partnership Interest Certificate(s)
without any change whatsoever.
If any of the Partnership Interests tendered hereby are owned of record by
two or more joint owners, all such owners must sign the Letter of Transmittal.
If any tendered Partnership Interests are registered in different names on
several Partnership Interest Certificates, it will be necessary to complete,
sign and submit as many separate Letters of Transmittal as there are different
registrations of Partnership Interest Certificates.
If this Letter of Transmittal is signed by trustees, executors,
administrators, guardians, attorneys-in-fact, officers of corporations or others
acting in a fiduciary or representative capacity, each person should so indicate
when signing, and proper evidence satisfactory to the Agent of their authority
so to act must be submitted.
6. SPECIAL DELIVERY INSTRUCTIONS. If Partnership Interest Certificate(s)
for unpurchased Partnership Interests are to be returned to a person other than
the signer of this Letter of Transmittal or if a certificate for shares of
Common Stock is to be sent to someone other than the signer of this Letter of
Transmittal or to an address other than that shown above, the appropriate boxes
on this letter of Transmittal should be completed.
7. WAIVER OF CONDITIONS. The Company reserves the right to waive any of
the specified conditions of the Tender in the case of the Partnership Interests
tendered.
8. BACK-UP WITHHOLDING. Under the Federal income tax law, a person
surrendering Partnership Interests must provide the Agent with his correct
taxpayer identification number ("TIN") on Substitute Form W-9 below unless an
exemption applies. If the correct TIN is not provided, a $50 penalty may be
imposed by the Internal Revenue Service and payments made in exchange for the
surrendered Partnership Interests may be subject to back-up withholding of that
rate provided by the Federal income tax law (such rate being at the date hereof,
31%).
The TIN that must be provided is that of the registered holder of the
Partnership Interests. The TIN for an individual is his social security number.
9. REQUESTS FOR ASSISTANCE OR ADDITIONAL COPIES. Questions and requests
for assistance or additional copies of the Agreement and the Letter of
Transmittal may be directed to the Agent at the address set forth above.
-2-
IMPORTANT TAX INFORMATION
Under Federal income tax laws, a holder whose tendered Partnership
interests are accepted for payment is required by law to provide the Agent (as
payer) with his correct taxpayer identification number on Substitute Form W-9
below. If such holder is an individual, the taxpayer identification number is
his social security number. If the Agent is not provided with the correct
taxpayer identification number, the holder may be subject to a $50 penalty
imposed by the Internal Revenue Service. In addition, payments that are made to
such holder with respect to Partnership Interests purchased pursuant to the
Tender may be subject to back-up withholding.
If back-up withholding applies, the Agent is required to withhold that rate
provided by the Federal income tax law (such rate being at the date hereof, 31%)
of any such payments made to the holder of Partnership Interests. Shares of
Common Stock otherwise deliverable hereunder may, at the expense (and with all
risk of loss for the account) of the undersigned, be sold to pay such amounts.
Back-up withholding is not an additional tax. Rather, the tax liability of
persons subject to back-up withholding will be reduced by the amount of tax
withheld. If withholding results in an overpayment of taxes, a refund may be
obtained.
PURPOSE OF SUBSTITUTE FORM W-9
To prevent back-up withholding on payments that are made to a holder of
Partnership Interests purchased pursuant to the Tender, the holder is required
to notify the Agent of his correct taxpayer identification number by completing
the form below certifying that the taxpayer identification number provided on
Substitute Form W-9 is correct.
WHAT NUMBER TO GIVE THE AGENT
The holder is required to give the Agent the social security number or
employer identification number of the record owner of the Partnership Interests.
PAYER'S NAME: Trump Hotels & Casino Resorts, Inc.
Substitute Part 1 - Please provide Social Security
Form W-9 your TIN in the box at Number/Employer
right and certify by Identification Number
signing and dating below ____________
- --------------------------------------------------------------------------------
Department of the Certification - Under the
Treasury/ Internal penalties of Perjury, (i)
Revenue Service I certify that the
information provided on
this form is true, correct
and complete and (ii) I am
not subject to backup
withholding because: (a) I
am exempt from backup
withholding, or (b) I have
not been notified by the
Internal Revenue Service
(IRS) that I am subject to
backup withholding as a
result of a failure to
report all interest or
dividends, or (c) the IRS
has notified me that I am
no longer subject to
backup withholding.
- --------------------------------------------------------------------------------
Signature Date __________
____________________
================================================================================
NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT IN BACK-UP WITHHOLDING
OF THAT RATE PROVIDED BY THE FEDERAL INCOME TAX LAW (SUCH RATE BEING AT
THE DATE HEREOF, 31%) OF ANY PAYMENTS MADE TO YOU UNDER THE AMENDED AND
RESTATED EXCHANGE AND REGISTRATION RIGHTS AGREEMENT OF TRUMP HOTELS &
CASINO RESORTS, INC.