SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
______________________
SCHEDULE 13D
Under the Securities Exchange Act of 1934
ELSINORE CORPORATION
(Name of Issuer)
COMMON STOCK, PAR VALUE $.001 PER SHARE
(Title of Class of Securities)
[Application Pending]
(CUSIP Number)
JOHN C. WATERFALL
10 EAST 50TH STREET
NEW YORK, NEW YORK 10022
(212) 705-0500
(Name, address and telephone number of person
authorized to receive notices and communications)
FEBRUARY 28, 1997
(Date of event which requires filing of this statement)
If the filing person has previously filed a statement on Schedule 13G to
report the acquisition which is the subject of this Schedule 13D, and is
filing this schedule because of Rule 13d-1(b)(3) or (4), check the following
box [ ].
Check the following box if a fee is being paid with the statement [ ].
(A fee is not required only if the reporting person: (1) has a previous
statement on file reporting beneficial ownership of more than five percent of
the class of securities described in Item 1; and (2) has filed no amendment
subsequent thereto reporting beneficial ownership of five percent or less of
such class.) (See Rule 13d-7.)
NOTE: Six copies of this statement, including all exhibits, should be
filed with the Commission. See Rule 13d-1(a) for other parties to whom copies
are to be sent.
* The remainder of this cover page shall be filled out for a reporting
person's initial filing on this form with respect to the subject class of
securities, and for any subsequent amendment containing information which
would alter the disclosures provided in a prior cover page.
The information required in the remainder of this cover page shall not
be deemed to be "filed" for purposes of Section 18 of the Securities Exchange
Act of 1934 ("Act") or otherwise subject to the liabilities of that section of
the Act but shall be subject to all other provisions of the Act (however, see
the Notes).
Page 1 of 58 Pages
<PAGE>
13D
CUSIP No. [Application Pending]
___________________________________________________________________________
(1) NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO.
OF ABOVE PERSON
Morgens Waterfall Income Partners, L.P.
_____________________________________________________________________________
(2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP **
(a) [x]
(b) [ ]
_____________________________________________________________________________
(3) SEC USE ONLY
_____________________________________________________________________________
(4) SOURCE OF FUNDS **
WC, 00
____________________________________________________________
(5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) [ ]
_____________________________________________________________________________
(6) CITIZENSHIP OR PLACE OF ORGANIZATION
New York
_____________________________________________________________________________
NUMBER OF (7) SOLE VOTING POWER
130,100 - See Response to Item 5
SHARES ______________________________________________________________
BENEFICIALLY (8) SHARED VOTING POWER
- 0 -
OWNED BY ______________________________________________________________
EACH (9) SOLE DISPOSITIVE POWER
130,100 - See Response to Item 5
REPORTING ______________________________________________________________
PERSON WITH (10) SHARED DISPOSITIVE POWER
- 0 -
_____________________________________________________________________________
(11) AGGREGATE AMOUNT BENEFICIALLY OWNED
BY EACH REPORTING PERSON
130,100
_____________________________________________________________________________
(12) CHECK BOX IF THE AGGREGATE AMOUNT
IN ROW (11) EXCLUDES CERTAIN SHARES ** [ ]
_____________________________________________________________________________
(13) PERCENT OF CLASS REPRESENTED
BY AMOUNT IN ROW (11)
2.6%
_____________________________________________________________________________
(14) TYPE OF REPORTING PERSON **
PN
_____________________________________________________________________________
** SEE INSTRUCTIONS BEFORE FILLING OUT!
Page 2 of 58 Pages
<PAGE>
13D
CUSIP No. [Application Pending]
____________________________________________________________________________
(1) NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO.
OF ABOVE PERSON
Restart Partners, L.P.
_____________________________________________________________________________
(2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP **
(a) [x]
(b) [ ]
_____________________________________________________________________________
(3) SEC USE ONLY
_____________________________________________________________________________
(4) SOURCE OF FUNDS **
WC, 00
____________________________________________________________
(5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) [ ]
_____________________________________________________________________________
(6) CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
_____________________________________________________________________________
NUMBER OF (7) SOLE VOTING POWER
813,127 - - See Response to Item 5
SHARES ______________________________________________________________
BENEFICIALLY (8) SHARED VOTING POWER
- 0 -
OWNED BY ______________________________________________________________
EACH (9) SOLE DISPOSITIVE POWER
813,127 - See Response to Item 5
REPORTING ______________________________________________________________
PERSON WITH (10) SHARED DISPOSITIVE POWER
- 0 -
_____________________________________________________________________________
(11) AGGREGATE AMOUNT BENEFICIALLY OWNED
BY EACH REPORTING PERSON
813,127
_____________________________________________________________________________
(12) CHECK BOX IF THE AGGREGATE AMOUNT
IN ROW (11) EXCLUDES CERTAIN SHARES ** [ ]
_____________________________________________________________________________
(13) PERCENT OF CLASS REPRESENTED
BY AMOUNT IN ROW (11)
16.5%
_____________________________________________________________________________
(14) TYPE OF REPORTING PERSON **
PN
_____________________________________________________________________________
** SEE INSTRUCTIONS BEFORE FILLING OUT!
Page 3 of 58 Pages
<PAGE>
13D
CUSIP No. [Application Pending]
_____________________________________________________________________________
(1) NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO.
OF ABOVE PERSON
Restart Partners II, L.P.
_____________________________________________________________________________
(2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP **
(a) [x]
(b) [ ]
_____________________________________________________________________________
(3) SEC USE ONLY
_____________________________________________________________________________
(4) SOURCE OF FUNDS **
WC, 00
____________________________________________________________
(5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) [ ]
_____________________________________________________________________________
(6) CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
_____________________________________________________________________________
NUMBER OF (7) SOLE VOTING POWER
1,156,964 - See Response to Item 5
SHARES ______________________________________________________________
BENEFICIALLY (8) SHARED VOTING POWER
- 0 -
OWNED BY ______________________________________________________________
EACH (9) SOLE DISPOSITIVE POWER
1,156,964 - See Response to Item 5
REPORTING ______________________________________________________________
PERSON WITH (10) SHARED DISPOSITIVE POWER
- 0 -
_____________________________________________________________________________
(11) AGGREGATE AMOUNT BENEFICIALLY OWNED
BY EACH REPORTING PERSON
1,156,964
_____________________________________________________________________________
(12) CHECK BOX IF THE AGGREGATE AMOUNT
IN ROW (11) EXCLUDES CERTAIN SHARES ** [ ]
_____________________________________________________________________________
(13) PERCENT OF CLASS REPRESENTED
BY AMOUNT IN ROW (11)
23.5%
_____________________________________________________________________________
(14) TYPE OF REPORTING PERSON **
PN
_____________________________________________________________________________
** SEE INSTRUCTIONS BEFORE FILLING OUT!
Page 4 of 58 Pages
<PAGE>
13D
CUSIP No. [Application Pending]
____________________________________________________________________________
(1) NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO.
OF ABOVE PERSON
Restart Partners III, L.P.
_____________________________________________________________________________
(2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP **
(a) [x]
(b) [ ]
_____________________________________________________________________________
(3) SEC USE ONLY
_____________________________________________________________________________
(4) SOURCE OF FUNDS **
WC, 00
____________________________________________________________
(5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) [ ]
_____________________________________________________________________________
(6) CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
_____________________________________________________________________________
NUMBER OF (7) SOLE VOTING POWER
803,834 - - See Response to Item 5
SHARES ______________________________________________________________
BENEFICIALLY (8) SHARED VOTING POWER
- 0 -
OWNED BY ______________________________________________________________
EACH (9) SOLE DISPOSITIVE POWER
803,834 - See Response to Item 5
REPORTING ______________________________________________________________
PERSON WITH (10) SHARED DISPOSITIVE POWER
- 0 -
_____________________________________________________________________________
(11) AGGREGATE AMOUNT BENEFICIALLY OWNED
BY EACH REPORTING PERSON
803,834
_____________________________________________________________________________
(12) CHECK BOX IF THE AGGREGATE AMOUNT
IN ROW (11) EXCLUDES CERTAIN SHARES ** [ ]
_____________________________________________________________________________
(13) PERCENT OF CLASS REPRESENTED
BY AMOUNT IN ROW (11)
16.3%
_____________________________________________________________________________
(14) TYPE OF REPORTING PERSON **
PN
_____________________________________________________________________________
** SEE INSTRUCTIONS BEFORE FILLING OUT!
Page 5 of 58 Pages
<PAGE>
13D
CUSIP No. [Application Pending]
____________________________________________________________________________
(1) NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO.
OF ABOVE PERSON
Restart Partners IV, L.P.
_____________________________________________________________________________
(2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP **
(a) [x]
(b) [ ]
_____________________________________________________________________________
(3) SEC USE ONLY
_____________________________________________________________________________
(4) SOURCE OF FUNDS **
WC, 00
____________________________________________________________
(5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) [ ]
_____________________________________________________________________________
(6) CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
_____________________________________________________________________________
NUMBER OF (7) SOLE VOTING POWER
506,462 - See Response to Item 5
SHARES ______________________________________________________________
BENEFICIALLY (8) SHARED VOTING POWER
- 0 -
OWNED BY ______________________________________________________________
EACH (9) SOLE DISPOSITIVE POWER
506, 462 - See Response to Item 5
REPORTING ______________________________________________________________
PERSON WITH (10) SHARED DISPOSITIVE POWER
- 0 -
_____________________________________________________________________________
(11) AGGREGATE AMOUNT BENEFICIALLY OWNED
BY EACH REPORTING PERSON
506,462
_____________________________________________________________________________
(12) CHECK BOX IF THE AGGREGATE AMOUNT
IN ROW (11) EXCLUDES CERTAIN SHARES ** [ ]
_____________________________________________________________________________
(13) PERCENT OF CLASS REPRESENTED
BY AMOUNT IN ROW (11)
10.3%
_____________________________________________________________________________
(14) TYPE OF REPORTING PERSON **
PN
_____________________________________________________________________________
** SEE INSTRUCTIONS BEFORE FILLING OUT!
Page 6 of 58 Pages
<PAGE>
13D
CUSIP No. [Application Pending]
____________________________________________________________________________
(1) NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO.
OF ABOVE PERSON
Restart Partners V, L.P.
_____________________________________________________________________________
(2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP **
(a) [x]
(b) [ ]
_____________________________________________________________________________
(3) SEC USE ONLY
_____________________________________________________________________________
(4) SOURCE OF FUNDS **
WC, 00
____________________________________________________________
(5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) [ ]
_____________________________________________________________________________
(6) CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
_____________________________________________________________________________
NUMBER OF (7) SOLE VOTING POWER
134,747 - See Response to Item 5
SHARES ______________________________________________________________
BENEFICIALLY (8) SHARED VOTING POWER
- 0 -
OWNED BY ______________________________________________________________
EACH (9) SOLE DISPOSITIVE POWER
134,747 - See Response to Item 5
REPORTING ______________________________________________________________
PERSON WITH (10) SHARED DISPOSITIVE POWER
- 0 -
_____________________________________________________________________________
(11) AGGREGATE AMOUNT BENEFICIALLY OWNED
BY EACH REPORTING PERSON
134,747
_____________________________________________________________________________
(12) CHECK BOX IF THE AGGREGATE AMOUNT
IN ROW (11) EXCLUDES CERTAIN SHARES ** [ ]
_____________________________________________________________________________
(13) PERCENT OF CLASS REPRESENTED
BY AMOUNT IN ROW (11)
2.7%
_____________________________________________________________________________
(14) TYPE OF REPORTING PERSON **
PN
_____________________________________________________________________________
** SEE INSTRUCTIONS BEFORE FILLING OUT!
Page 7 of 58 Pages
<PAGE>
13D
CUSIP No. [Application Pending]
____________________________________________________________________________
(1) NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO.
OF ABOVE PERSON
The Common Fund for Non-Profit Organizations
_____________________________________________________________________________
(2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP **
(a) [x]
(b) [ ]
_____________________________________________________________________________
(3) SEC USE ONLY
_____________________________________________________________________________
(4) SOURCE OF FUNDS **
WC, 00
____________________________________________________________
(5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) [ ]
_____________________________________________________________________________
(6) CITIZENSHIP OR PLACE OF ORGANIZATION
New York
_____________________________________________________________________________
NUMBER OF (7) SOLE VOTING POWER
232,322 - See Response to Item 5
SHARES ______________________________________________________________
BENEFICIALLY (8) SHARED VOTING POWER
- 0 -
OWNED BY ______________________________________________________________
EACH (9) SOLE DISPOSITIVE POWER
232, 322 - See Response to Item 5
REPORTING ______________________________________________________________
PERSON WITH (10) SHARED DISPOSITIVE POWER
- 0 -
_____________________________________________________________________________
(11) AGGREGATE AMOUNT BENEFICIALLY OWNED
BY EACH REPORTING PERSON
232,322
_____________________________________________________________________________
(12) CHECK BOX IF THE AGGREGATE AMOUNT
IN ROW (11) EXCLUDES CERTAIN SHARES ** [ ]
_____________________________________________________________________________
(13) PERCENT OF CLASS REPRESENTED
BY AMOUNT IN ROW (11)
4.7%
_____________________________________________________________________________
(14) TYPE OF REPORTING PERSON **
CO
_____________________________________________________________________________
** SEE INSTRUCTIONS BEFORE FILLING OUT!
Page 8 of 58 Pages
<PAGE>
13D
CUSIP No. [Application Pending]
____________________________________________________________________________
(1) NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO.
OF ABOVE PERSON
MWV Employee Retirement Plan Group Trust
_____________________________________________________________________________
(2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP **
(a) [x]
(b) [ ]
_____________________________________________________________________________
(3) SEC USE ONLY
_____________________________________________________________________________
(4) SOURCE OF FUNDS **
WC, 00
____________________________________________________________
(5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) [ ]
_____________________________________________________________________________
(6) CITIZENSHIP OR PLACE OF ORGANIZATION
New York
_____________________________________________________________________________
NUMBER OF (7) SOLE VOTING POWER
41,818 - See Response to Item 5
SHARES ______________________________________________________________
BENEFICIALLY (8) SHARED VOTING POWER
- 0 -
OWNED BY ______________________________________________________________
EACH (9) SOLE DISPOSITIVE POWER
41,818 - See Response to Item 5
REPORTING ______________________________________________________________
PERSON WITH (10) SHARED DISPOSITIVE POWER
- 0 -
_____________________________________________________________________________
(11) AGGREGATE AMOUNT BENEFICIALLY OWNED
BY EACH REPORTING PERSON
41,818
_____________________________________________________________________________
(12) CHECK BOX IF THE AGGREGATE AMOUNT
IN ROW (11) EXCLUDES CERTAIN SHARES ** [ ]
_____________________________________________________________________________
(13) PERCENT OF CLASS REPRESENTED
BY AMOUNT IN ROW (11)
0.8%
_____________________________________________________________________________
(14) TYPE OF REPORTING PERSON **
EP
_____________________________________________________________________________
** SEE INSTRUCTIONS BEFORE FILLING OUT!
Page 9 of 58 Pages
<PAGE>
13D
CUSIP No. [Application Pending]
____________________________________________________________________________
(1) NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO.
OF ABOVE PERSON
Betje Partners
_____________________________________________________________________________
(2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP **
(a) [x]
(b) [ ]
_____________________________________________________________________________
(3) SEC USE ONLY
_____________________________________________________________________________
(4) SOURCE OF FUNDS **
WC, 00
____________________________________________________________
(5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) [ ]
_____________________________________________________________________________
(6) CITIZENSHIP OR PLACE OF ORGANIZATION
New York
_____________________________________________________________________________
NUMBER OF (7) SOLE VOTING POWER
213,736 - See Response to Item 5
SHARES ______________________________________________________________
BENEFICIALLY (8) SHARED VOTING POWER
- 0 -
OWNED BY ______________________________________________________________
EACH (9) SOLE DISPOSITIVE POWER
213,736 - See Response to Item 5
REPORTING ______________________________________________________________
PERSON WITH (10) SHARED DISPOSITIVE POWER
- 0 -
_____________________________________________________________________________
(11) AGGREGATE AMOUNT BENEFICIALLY OWNED
BY EACH REPORTING PERSON
213,736
_____________________________________________________________________________
(12) CHECK BOX IF THE AGGREGATE AMOUNT
IN ROW (11) EXCLUDES CERTAIN SHARES ** [ ]
_____________________________________________________________________________
(13) PERCENT OF CLASS REPRESENTED
BY AMOUNT IN ROW (11)
4.3%
_____________________________________________________________________________
(14) TYPE OF REPORTING PERSON **
PN
_____________________________________________________________________________
** SEE INSTRUCTIONS BEFORE FILLING OUT!
Page 10 of 58 Pages
<PAGE>
13D
CUSIP No. [Application Pending]
____________________________________________________________________________
(1) NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO.
OF ABOVE PERSON
Phoenix Partners, L.P.
_____________________________________________________________________________
(2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP **
(a) [x]
(b) [ ]
_____________________________________________________________________________
(3) SEC USE ONLY
_____________________________________________________________________________
(4) SOURCE OF FUNDS **
WC, 00
____________________________________________________________
(5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) [ ]
_____________________________________________________________________________
(6) CITIZENSHIP OR PLACE OF ORGANIZATION
New York
_____________________________________________________________________________
NUMBER OF (7) SOLE VOTING POWER
613,330 - See Response to Item 5
SHARES ______________________________________________________________
BENEFICIALLY (8) SHARED VOTING POWER
- 0 -
OWNED BY ______________________________________________________________
EACH (9) SOLE DISPOSITIVE POWER
613,330 - See Response to Item 5
REPORTING ______________________________________________________________
PERSON WITH (10) SHARED DISPOSITIVE POWER
- 0 -
_____________________________________________________________________________
(11) AGGREGATE AMOUNT BENEFICIALLY OWNED
BY EACH REPORTING PERSON
613,330
_____________________________________________________________________________
(12) CHECK BOX IF THE AGGREGATE AMOUNT
IN ROW (11) EXCLUDES CERTAIN SHARES ** [ ]
_____________________________________________________________________________
(13) PERCENT OF CLASS REPRESENTED
BY AMOUNT IN ROW (11)
12.4%
_____________________________________________________________________________
(14) TYPE OF REPORTING PERSON **
PN
_____________________________________________________________________________
** SEE INSTRUCTIONS BEFORE FILLING OUT!
Page 11 of 58 Pages
<PAGE>
13D
CUSIP No. [Application Pending]
____________________________________________________________________________
(1) NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO.
OF ABOVE PERSON
Morgens, Waterfall, Vintiadis & Company, Inc.
_____________________________________________________________________________
(2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP **
(a) [x]
(b) [ ]
_____________________________________________________________________________
(3) SEC USE ONLY
_____________________________________________________________________________
(4) SOURCE OF FUNDS **
AF
____________________________________________________________
(5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) [ ]
_____________________________________________________________________________
(6) CITIZENSHIP OR PLACE OF ORGANIZATION
New York
_____________________________________________________________________________
NUMBER OF (7) SOLE VOTING POWER
446,058 - See Response to Item 5
SHARES ______________________________________________________________
BENEFICIALLY (8) SHARED VOTING POWER
- 0 -
OWNED BY ______________________________________________________________
EACH (9) SOLE DISPOSITIVE POWER
446,058 - See Response to Item 5
REPORTING ______________________________________________________________
PERSON WITH (10) SHARED DISPOSITIVE POWER
- 0 -
_____________________________________________________________________________
(11) AGGREGATE AMOUNT BENEFICIALLY OWNED
BY EACH REPORTING PERSON
446,058 - See Response to Item 5
_____________________________________________________________________________
(12) CHECK BOX IF THE AGGREGATE AMOUNT
IN ROW (11) EXCLUDES CERTAIN SHARES ** [ ]
_____________________________________________________________________________
(13) PERCENT OF CLASS REPRESENTED
BY AMOUNT IN ROW (11)
9.0%
_____________________________________________________________________________
(14) TYPE OF REPORTING PERSON **
CO
_____________________________________________________________________________
** SEE INSTRUCTIONS BEFORE FILLING OUT!
Page 12 of 58 Pages
<PAGE>
13D
CUSIP No. [Application Pending]
____________________________________________________________________________
(1) NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO.
OF ABOVE PERSON
MW Capital, L.L.C.
_____________________________________________________________________________
(2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP **
(a) [x]
(b) [ ]
_____________________________________________________________________________
(3) SEC USE ONLY
_____________________________________________________________________________
(4) SOURCE OF FUNDS **
AF
____________________________________________________________
(5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) [ ]
_____________________________________________________________________________
(6) CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
_____________________________________________________________________________
NUMBER OF (7) SOLE VOTING POWER
130,100 - See Response to Item 5
SHARES ______________________________________________________________
BENEFICIALLY (8) SHARED VOTING POWER
- 0 -
OWNED BY ______________________________________________________________
EACH (9) SOLE DISPOSITIVE POWER
130,100 - See Response to Item 5
REPORTING ______________________________________________________________
PERSON WITH (10) SHARED DISPOSITIVE POWER
- 0 -
_____________________________________________________________________________
(11) AGGREGATE AMOUNT BENEFICIALLY OWNED
BY EACH REPORTING PERSON
130,100 - See Response to Item 5
_____________________________________________________________________________
(12) CHECK BOX IF THE AGGREGATE AMOUNT
IN ROW (11) EXCLUDES CERTAIN SHARES ** [ ]
_____________________________________________________________________________
(13) PERCENT OF CLASS REPRESENTED
BY AMOUNT IN ROW (11)
2.6%
_____________________________________________________________________________
(14) TYPE OF REPORTING PERSON **
CO
_____________________________________________________________________________
** SEE INSTRUCTIONS BEFORE FILLING OUT!
Page 13 of 58 Pages
<PAGE>
13D
CUSIP No. [Application Pending]
____________________________________________________________________________
(1) NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO.
OF ABOVE PERSON
Prime Group, L.P.
_____________________________________________________________________________
(2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP **
(a) [x]
(b) [ ]
_____________________________________________________________________________
(3) SEC USE ONLY
_____________________________________________________________________________
(4) SOURCE OF FUNDS **
AF
____________________________________________________________
(5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) [ ]
_____________________________________________________________________________
(6) CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
_____________________________________________________________________________
NUMBER OF (7) SOLE VOTING POWER
813,127 - See Response to Item 5
SHARES ______________________________________________________________
BENEFICIALLY (8) SHARED VOTING POWER
- 0 -
OWNED BY ______________________________________________________________
EACH (9) SOLE DISPOSITIVE POWER
813,127 - See Response to Item 5
REPORTING ______________________________________________________________
PERSON WITH (10) SHARED DISPOSITIVE POWER
- 0 -
_____________________________________________________________________________
(11) AGGREGATE AMOUNT BENEFICIALLY OWNED
BY EACH REPORTING PERSON
813,127 - See Response to Item 5
_____________________________________________________________________________
(12) CHECK BOX IF THE AGGREGATE AMOUNT
IN ROW (11) EXCLUDES CERTAIN SHARES ** [ ]
_____________________________________________________________________________
(13) PERCENT OF CLASS REPRESENTED
BY AMOUNT IN ROW (11)
16.5%
_____________________________________________________________________________
(14) TYPE OF REPORTING PERSON **
PN
_____________________________________________________________________________
** SEE INSTRUCTIONS BEFORE FILLING OUT!
Page 14 of 58 Pages
<PAGE>
13D
CUSIP No. [Application Pending]
____________________________________________________________________________
(1) NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO.
OF ABOVE PERSON
Prime Group II, L.P.
_____________________________________________________________________________
(2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP **
(a) [x]
(b) [ ]
_____________________________________________________________________________
(3) SEC USE ONLY
_____________________________________________________________________________
(4) SOURCE OF FUNDS **
AF
____________________________________________________________
(5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) [ ]
_____________________________________________________________________________
(6) CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
_____________________________________________________________________________
NUMBER OF (7) SOLE VOTING POWER
1,156,964 - See Response to Item 5
SHARES ______________________________________________________________
BENEFICIALLY (8) SHARED VOTING POWER
- 0 -
OWNED BY ______________________________________________________________
EACH (9) SOLE DISPOSITIVE POWER
1,156,964 - See Response to Item 5
REPORTING ______________________________________________________________
PERSON WITH (10) SHARED DISPOSITIVE POWER
- 0 -
_____________________________________________________________________________
(11) AGGREGATE AMOUNT BENEFICIALLY OWNED
BY EACH REPORTING PERSON
1,156,964 - See Response to Item 5
_____________________________________________________________________________
(12) CHECK BOX IF THE AGGREGATE AMOUNT
IN ROW (11) EXCLUDES CERTAIN SHARES ** [ ]
_____________________________________________________________________________
(13) PERCENT OF CLASS REPRESENTED
BY AMOUNT IN ROW (11)
23.5%
_____________________________________________________________________________
(14) TYPE OF REPORTING PERSON **
PN
_____________________________________________________________________________
** SEE INSTRUCTIONS BEFORE FILLING OUT!
Page 15 of 58 Pages
<PAGE>
13D
CUSIP No. [Application Pending]
____________________________________________________________________________
(1) NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO.
OF ABOVE PERSON
Prime Group III, L.P.
_____________________________________________________________________________
(2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP **
(a) [x]
(b) [ ]
_____________________________________________________________________________
(3) SEC USE ONLY
_____________________________________________________________________________
(4) SOURCE OF FUNDS **
AF
____________________________________________________________
(5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) [ ]
_____________________________________________________________________________
(6) CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
_____________________________________________________________________________
NUMBER OF (7) SOLE VOTING POWER
803,834 See Response to Item 5
SHARES ______________________________________________________________
BENEFICIALLY (8) SHARED VOTING POWER
- 0 -
OWNED BY ______________________________________________________________
EACH (9) SOLE DISPOSITIVE POWER
803,834 - See Response to Item 5
REPORTING ______________________________________________________________
PERSON WITH (10) SHARED DISPOSITIVE POWER
- 0 -
_____________________________________________________________________________
(11) AGGREGATE AMOUNT BENEFICIALLY OWNED
BY EACH REPORTING PERSON
803,834
_____________________________________________________________________________
(12) CHECK BOX IF THE AGGREGATE AMOUNT
IN ROW (11) EXCLUDES CERTAIN SHARES ** [ ]
_____________________________________________________________________________
(13) PERCENT OF CLASS REPRESENTED
BY AMOUNT IN ROW (11)
16.3%
_____________________________________________________________________________
(14) TYPE OF REPORTING PERSON **
PN
_____________________________________________________________________________
** SEE INSTRUCTIONS BEFORE FILLING OUT!
Page 16 of 58 Pages
<PAGE>
13D
CUSIP No. [Application Pending]
____________________________________________________________________________
(1) NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO.
OF ABOVE PERSON
Prime Group IV, L.P.
_____________________________________________________________________________
(2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP **
(a) [x]
(b) [ ]
_____________________________________________________________________________
(3) SEC USE ONLY
_____________________________________________________________________________
(4) SOURCE OF FUNDS **
AF
____________________________________________________________
(5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) [ ]
_____________________________________________________________________________
(6) CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
_____________________________________________________________________________
NUMBER OF (7) SOLE VOTING POWER
506,462 - See Response to Item 5
SHARES ______________________________________________________________
BENEFICIALLY (8) SHARED VOTING POWER
- 0 -
OWNED BY ______________________________________________________________
EACH (9) SOLE DISPOSITIVE POWER
506,462 - See Response to Item 5
REPORTING ______________________________________________________________
PERSON WITH (10) SHARED DISPOSITIVE POWER
- 0 -
_____________________________________________________________________________
(11) AGGREGATE AMOUNT BENEFICIALLY OWNED
BY EACH REPORTING PERSON
506,462 - See Response to Item 5
_____________________________________________________________________________
(12) CHECK BOX IF THE AGGREGATE AMOUNT
IN ROW (11) EXCLUDES CERTAIN SHARES ** [ ]
_____________________________________________________________________________
(13) PERCENT OF CLASS REPRESENTED
BY AMOUNT IN ROW (11)
10.3%
_____________________________________________________________________________
(14) TYPE OF REPORTING PERSON **
PN
_____________________________________________________________________________
** SEE INSTRUCTIONS BEFORE FILLING OUT!
Page 17 of 58 Pages
<PAGE>
13D
CUSIP No. [Application Pending]
____________________________________________________________________________
(1) NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO.
OF ABOVE PERSON
Prime Group V, L.P.
_____________________________________________________________________________
(2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP **
(a) [x]
(b) [ ]
_____________________________________________________________________________
(3) SEC USE ONLY
_____________________________________________________________________________
(4) SOURCE OF FUNDS **
AF
____________________________________________________________
(5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) [ ]
_____________________________________________________________________________
(6) CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
_____________________________________________________________________________
NUMBER OF (7) SOLE VOTING POWER
134,747 - See Response to Item 5
SHARES ______________________________________________________________
BENEFICIALLY (8) SHARED VOTING POWER
- 0 -
OWNED BY ______________________________________________________________
EACH (9) SOLE DISPOSITIVE POWER
134,747 - See Response to Item 5
REPORTING ______________________________________________________________
PERSON WITH (10) SHARED DISPOSITIVE POWER
- 0 -
_____________________________________________________________________________
(11) AGGREGATE AMOUNT BENEFICIALLY OWNED
BY EACH REPORTING PERSON
134,747 - See Response to Item 5
_____________________________________________________________________________
(12) CHECK BOX IF THE AGGREGATE AMOUNT
IN ROW (11) EXCLUDES CERTAIN SHARES ** [ ]
_____________________________________________________________________________
(13) PERCENT OF CLASS REPRESENTED
BY AMOUNT IN ROW (11)
2.7%
_____________________________________________________________________________
(14) TYPE OF REPORTING PERSON **
PN
_____________________________________________________________________________
** SEE INSTRUCTIONS BEFORE FILLING OUT!
Page 18 of 58 Pages
<PAGE>
13D
CUSIP No. [Application Pending]
____________________________________________________________________________
(1) NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO.
OF ABOVE PERSON
Prime, Inc.
_____________________________________________________________________________
(2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP **
(a) [x]
(b) [ ]
_____________________________________________________________________________
(3) SEC USE ONLY
_____________________________________________________________________________
(4) SOURCE OF FUNDS **
AF
____________________________________________________________
(5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) [ ]
_____________________________________________________________________________
(6) CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
_____________________________________________________________________________
NUMBER OF (7) SOLE VOTING POWER
3,415,134 - See Response to Item 5
SHARES ______________________________________________________________
BENEFICIALLY (8) SHARED VOTING POWER
- 0 -
OWNED BY ______________________________________________________________
EACH (9) SOLE DISPOSITIVE POWER
3,415,134 - See Response to Item 5
REPORTING ______________________________________________________________
PERSON WITH (10) SHARED DISPOSITIVE POWER
- 0 -
_____________________________________________________________________________
(11) AGGREGATE AMOUNT BENEFICIALLY OWNED
BY EACH REPORTING PERSON
3,415,134 - See Response to Item 5
_____________________________________________________________________________
(12) CHECK BOX IF THE AGGREGATE AMOUNT
IN ROW (11) EXCLUDES CERTAIN SHARES ** [ ]
_____________________________________________________________________________
(13) PERCENT OF CLASS REPRESENTED
BY AMOUNT IN ROW (11)
69.3%
_____________________________________________________________________________
(14) TYPE OF REPORTING PERSON **
CO
_____________________________________________________________________________
** SEE INSTRUCTIONS BEFORE FILLING OUT!
Page 19 of 58 Pages
<PAGE>
13D
CUSIP No. [Application Pending]
____________________________________________________________________________
(1) NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO.
OF ABOVE PERSON
MW Management, L.L.C.
_____________________________________________________________________________
(2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP **
(a) [x]
(b) [ ]
_____________________________________________________________________________
(3) SEC USE ONLY
_____________________________________________________________________________
(4) SOURCE OF FUNDS **
AF
____________________________________________________________
(5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) [ ]
_____________________________________________________________________________
(6) CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
_____________________________________________________________________________
NUMBER OF (7) SOLE VOTING POWER
613,330 - See Response to Item 5
SHARES ______________________________________________________________
BENEFICIALLY (8) SHARED VOTING POWER
- 0 -
OWNED BY ______________________________________________________________
EACH (9) SOLE DISPOSITIVE POWER
613,330 - See Response to Item 5
REPORTING ______________________________________________________________
PERSON WITH (10) SHARED DISPOSITIVE POWER
- 0 -
_____________________________________________________________________________
(11) AGGREGATE AMOUNT BENEFICIALLY OWNED
BY EACH REPORTING PERSON
613,330 - See Response to Item 5
_____________________________________________________________________________
(12) CHECK BOX IF THE AGGREGATE AMOUNT
IN ROW (11) EXCLUDES CERTAIN SHARES ** [ ]
_____________________________________________________________________________
(13) PERCENT OF CLASS REPRESENTED
BY AMOUNT IN ROW (11)
12.4%
_____________________________________________________________________________
(14) TYPE OF REPORTING PERSON **
CO
_____________________________________________________________________________
** SEE INSTRUCTIONS BEFORE FILLING OUT!
Page 20 of 58 Pages
<PAGE>
13D
CUSIP No. [Application Pending]
____________________________________________________________________________
(1) NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO.
OF ABOVE PERSON
John C. "Bruce" Waterfall
_____________________________________________________________________________
(2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP **
(a) [x]
(b) [ ]
_____________________________________________________________________________
(3) SEC USE ONLY
_____________________________________________________________________________
(4) SOURCE OF FUNDS **
AF
____________________________________________________________
(5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) [ ]
_____________________________________________________________________________
(6) CITIZENSHIP OR PLACE OF ORGANIZATION
United States
_____________________________________________________________________________
NUMBER OF (7) SOLE VOTING POWER
- 0- See Response to Item 5
SHARES ______________________________________________________________
BENEFICIALLY (8) SHARED VOTING POWER
- 0 -
OWNED BY ______________________________________________________________
EACH (9) SOLE DISPOSITIVE POWER
- 0- See Response to Item 5
REPORTING ______________________________________________________________
PERSON WITH (10) SHARED DISPOSITIVE POWER
- 0 -
_____________________________________________________________________________
(11) AGGREGATE AMOUNT BENEFICIALLY OWNED
BY EACH REPORTING PERSON
4,646,440 - See Response to Item 5
_____________________________________________________________________________
(12) CHECK BOX IF THE AGGREGATE AMOUNT
IN ROW (11) EXCLUDES CERTAIN SHARES ** [ ]
_____________________________________________________________________________
(13) PERCENT OF CLASS REPRESENTED
BY AMOUNT IN ROW (11)
94.3%
_____________________________________________________________________________
(14) TYPE OF REPORTING PERSON **
IN
_____________________________________________________________________________
** SEE INSTRUCTIONS BEFORE FILLING OUT!
Page 21 of 58 Pages
<PAGE>
13D
CUSIP No. [Application Pending]
____________________________________________________________________________
(1) NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO.
OF ABOVE PERSON
Edwin H. Morgens
_____________________________________________________________________________
(2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP **
(a) [x]
(b) [ ]
_____________________________________________________________________________
(3) SEC USE ONLY
_____________________________________________________________________________
(4) SOURCE OF FUNDS **
AF
____________________________________________________________
(5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) [ ]
_____________________________________________________________________________
(6) CITIZENSHIP OR PLACE OF ORGANIZATION
United States
_____________________________________________________________________________
NUMBER OF (7) SOLE VOTING POWER
- 0 -See Response to Item 5
SHARES ______________________________________________________________
BENEFICIALLY (8) SHARED VOTING POWER
- 0 -See Response to Item 5
OWNED BY ______________________________________________________________
EACH (9) SOLE DISPOSITIVE POWER
- 0 -See Response to Item 5
REPORTING ______________________________________________________________
PERSON WITH (10) SHARED DISPOSITIVE POWER
- 0 -See Response to Item 5
_____________________________________________________________________________
(11) AGGREGATE AMOUNT BENEFICIALLY OWNED
BY EACH REPORTING PERSON
- 0 -See Response to Item 5
_____________________________________________________________________________
(12) CHECK BOX IF THE AGGREGATE AMOUNT
IN ROW (11) EXCLUDES CERTAIN SHARES ** [x]
_____________________________________________________________________________
(13) PERCENT OF CLASS REPRESENTED
BY AMOUNT IN ROW (11)
0.0%
_____________________________________________________________________________
(14) TYPE OF REPORTING PERSON **
IN
_____________________________________________________________________________
** SEE INSTRUCTIONS BEFORE FILLING OUT!
Page 22 of 58 Pages
<PAGE>
ITEM 1. SECURITY AND ISSUER.
This statement on Schedule 13D ("Statement") relates to the common
stock, par value $0.001 per share ("Common Stock"), of Elsinore Corporation,
a Nevada corporation (the "Issuer"). The principal executive offices of the
Issuer are located at 202 Fremont Street, Las Vegas, Nevada 89101.
ITEM 2. IDENTITY AND BACKGROUND.
This Statement is filed jointly by (a) Morgens Waterfall Income
Partners, L.P. ("MWIP"); (b) Restart Partners, L.P. ("Restart"); (c) Restart
Partners II, L.P. ("Restart II"); (d) Restart Partners III, L.P. ("Restart
III"); (e) Restart Partners IV, L.P. ("Restart IV"); (f) Restart Partners V,
L.P. ("Restart V"); (g) The Common Fund for Non-Profit Organizations (the
"Common Fund"); (h) MWV Employee Retirement Plan Group Trust ("MWV Plan"); (i)
Betje Partners ("Betje"); (j) Phoenix Partners, L.P. ("Phoenix"); (k) Morgens,
Waterfall, Vintiadis & Company, Inc. ("Morgens Waterfall"); (l) John C.
"Bruce" Waterfall ("Waterfall"); and (m) Edwin H. Morgens ("Morgens" and
together with the persons listed in clauses (a) through (l) above, the
"Reporting Persons").
MWIP is a New York limited partnership having its principal address at
10 East 50th Street, New York, New York 10022. The principal business of MWIP
is to invest in securities of United States issuers. MW Capital, L.L.C., a
Delaware limited liability company ("MW Capital"), is the general partner of
MWIP. Morgens and Waterfall are the managing members of MW Capital. All of
the information concerning Morgens and Waterfall is set forth below.
Restart, Restart II, Restart III, Restart IV and Restart V are Delaware
limited partnerships having their principal address at 10 East 50th Street,
New York, New York 10022. The principal business of Restart, Restart II,
Restart III, Restart IV and Restart V is to invest in securities of
financially troubled companies.
The general partner of Restart is Prime Group, L.P. ("Prime"), a
Delaware limited partnership, having its principal address at 10 East 50th
Street, New York, New York 10022. The principal business of Prime is to act
as the general partner of Restart. The general partner of Prime is Prime,
Inc., a Delaware corporation ("Prime, Inc."), having its principal office at
10 East 50th Street, New York, New York 10022. The principal business of
Prime, Inc. is to act as general partner of Prime, Prime II, Prime III, Prime
IV and Prime V (as discussed below). Waterfall is the President and a
Director of Prime, Inc. Morgens is the Chairman of the Board of Directors and
the Secretary of Prime, Inc. All of the information concerning Morgens and
Waterfall is set forth below.
The general partner of Restart II is Prime Group II, L.P. ("Prime II"),
a Delaware limited partnership, having its principal address at 10 East 50th
Street, New York, New York, 10022. The principal business of Prime II is to
act as the general partner of Restart II. The general partner of Prime II is
Prime, Inc. All of the information concerning Prime, Inc. is set forth above.
Page 23 of 58 Pages
<PAGE>
The general partner of Restart III is Prime Group III, L.P. ("Prime
III"), a Delaware limited partnership, having its principal address at 10 East
50th Street, New York, New York 10022. The principal business of Prime III
is to act as the general partner of Restart III. The general partner of Prime
III is Prime, Inc. All of the information concerning Prime, Inc. is set forth
above.
The general partner of Restart IV is Prime Group IV, L.P. ("Prime IV"),
a Delaware limited partnership, having its principal address at 10 East 50th
Street, New York, New York 10022. The principal business of Prime IV is to
act as the general partner of Restart IV. The general partner of Prime IV is
Prime, Inc. All of the information concerning Prime, Inc. is set forth above.
The general partner of Restart V is Prime Group V, L.P. ("Prime V"), a
Delaware limited partnership, having its principal address at 10 East 50th
Street, New York, New York 10022. The principal business of Prime V is to
act as the general partner of Restart V. The general partner of Prime V is
Prime, Inc. All of the information concerning Prime, Inc. is set forth above.
MWV Plan is a trust established in 1994 for the benefit of the employees
of Morgens Waterfall. The trustees of MWV Plan are David Ericson, Dan
Levinson, John Raphael, Joann McNiff and Stephanie Catlett, all of whom are
employees of Morgens Waterfall. MWV Plan's principal address is 10 East 50th
Street, New York, New York 10022.
Phoenix and Betje are New York limited partnerships having their
principal address at 10 East 50th Street, New York, New York 10022. The
principal business of both Phoenix and Betje is to invest in securities of
U.S. issuers. Morgens and Waterfall are the managing members of MW Management
L.L.C., a Delaware limited liability company ("MW Management"), which is the
general partner of Phoenix. All of the information concerning Morgens and
Waterfall is set forth below. Mr. Zanvyl Krieger ("Krieger") is the general
partner of Betje. The business address of Krieger is c/o Weinberg and Green,
100 South Charles Street, Baltimore, Maryland 21201. Krieger is a U.S.
citizen whose principal occupation is a private investor.
Morgens Waterfall is a New York corporation having its principal address
at 10 East 50th Street, New York, New York 10022. The business of Morgens
Waterfall is the rendering of financial services. Pursuant to an investment
advisory agreement, Krieger, as the general partner of Betje, has authorized
Morgens Waterfall to make investment decisions and to act on behalf of Betje
in carrying out Betje's investment objectives. In addition, Morgens
Waterfall provides discretionary investment advisory services to the Common
Fund and in that capacity has been granted investment authority over the
Common Fund to vote securities registered in the name of the Common Fund.
Under rules promulgated by the Securities and Exchange Commission, Morgens
Waterfall may be considered a "beneficial owner" of securities acquired by
Betje or the Common Fund as a result of its relationships with Betje and the
Common Fund.
Waterfall is the President, Assistant Secretary and a Director of
Morgens Waterfall. Morgens is the Chairman of the Board of Directors and the
Secretary of Morgens Waterfall. The primary occupations of Morgens and
Waterfall are to act as the principals in the business of Morgens Waterfall.
The business address of Morgens and Waterfall, each of whom is a United
States citizen, is at the office of Morgens Waterfall at 10 East 50th Street,
New York, New York 10022. Morgens Waterfall has no other officers or
directors.
Page 24 of 58 Pages
<PAGE>
During the past five years, none of the persons described in this Item 2
have been convicted in a criminal proceeding (excluding traffic violations or
similar misdemeanors). During the last five years, none of such persons has
been a party to a civil proceeding of a judicial or administrative body of
competent jurisdiction and as a result of such proceeding was or is subject
to a judgment, decree or final order enjoining future violations of, or
prohibiting or mandating activities subject to, federal or state securities
laws, or finding any violations with respect to such laws.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
Under a plan of reorganization of the Issuer pursuant to Chapter 11 of
the Bankruptcy Code (the "Plan"), which became effective at 11:59 p.m.,
Pacific Time, on February 28, 1997 (the "Effective Date"), each Reporting
Person (other than Morgens Waterfall, Morgens and Waterfall), as a creditor
of the Issuer and as a subscriber under the Issuer's Subscription Rights
Agreement dated October 10, 1996 ("Rights Agreement") which was called for by
the Plan, became entitled to receive as of the Effective Date the shares of
Common Stock.
Of the shares of Common Stock acquired by each Reporting Person under
the Plan, the following is the amount of Common Stock which each Reporting
Person purchased under the Rights Agreement and the price paid for such
Common Stock. The source of funds used for each purchase was the working
capital of the respective Reporting Person.
Shares of Common Stock
Purchased Under the
Reporting Person Rights Agreement Purchase Price
MWIP 27,868 $ 139,340
Restart 174,173 870,865
Restart II 247,825 1,239,125
Restart III 172,183 860,915
Restart IV 108,486 542,430
Restart V 28,863 144,315
Common Fund 49,764 248,820
MWV Plan 8,958 44,790
Betje 45,783 228,915
Phoenix 131,377 656,885
Total 995,280 $4,976,400
The other shares of Common Stock acquired by the Reporting Persons
listed above were issued under the Plan (i) in partial satisfaction of the
Reporting Persons' respective allowed claims relating to the Issuer's 12.5%
First Mortgage Notes due 2000 issued in October 1993 and (ii) as a premium
for the Reporting Persons' purchase of Common Stock under the Rights
Agreement which was not subscribed for by other persons entitled to
participate under the Rights Agreement.
Page 25 of 58 Pages
<PAGE>
ITEM 4. PURPOSE OF TRANSACTION.
MWIP, Restart, Restart II, Restart III, Restart IV, Restart V, the
Common Fund, MWV Plan, Betje and Phoenix acquired the Common Stock pursuant
to the Plan as an investment. The Reporting Persons have no present plans or
proposals that relate to or would result in any of the actions enumerated in
Item 4 of Schedule 13D, subject to the following:
(i) The Reporting Persons reserve the right to buy additional
securities of the Issuer or sell securities of the Issuer from time to time.
(ii) The Reporting Persons are aware of the following: (1) trading in
the Common Stock has been halted by the American Stock Exchange ("Amex") and
the Pacific Stock Exchange; (2) Amex has notified the Issuer of its
intention to file an application with the Securities and Exchange Commission
to strike the Common Stock from listing and registration on Amex; (3) in its
notification to the Issuer, Amex stated that the Issuer has fallen below
Amex's continued listing guidelines; and (4) Amex has given the Issuer until
March 14, 1997 to request an appeal of Amex's decision. The Reporting Persons
have no plans to cause the Issuer to request an appeal. The Reporting persons
also have no plans to cause the Issuer to take any actions necessary to
maintain the listing of the Common Stock on the Pacific Stock Exchange.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER.
(a) and (b) The following is the aggregate amount of Common Stock that
is beneficially owned by each Reporting Person:
Aggregate Percentage
Name # of Shares of Class
MWIP 130,100 2.6
Restart 813,127 16.5
Restart II 1,156,964 23.5
Restart III 803,834 16.3
Restart IV 506,462 10.3
Restart V 134,747 2.7
Common Fund 232,322 4.7
MWV Plan 41,818 0.8
Betje 213,736 4.3
Phoenix 613,330 12.4
Total 4,646,440 94.3
Morgens Waterfall does not directly own any of the Common Stock.
Morgens Waterfall may be deemed an indirect beneficial owner of 446,058
shares of Common Stock by virtue of contracts with Betje (213,736 shares) and
the Common Fund (232,322 shares) pursuant to which Morgens Waterfall provides
discretionary investment advisory services. As explained below, Waterfall is
the individual who, on behalf of Morgens Waterfall, exercises voting and
investment authority with respect to the Common Stock of all Reporting
Persons.
Page 26 of 58 Pages
<PAGE>
Prime does not directly own any of the Common Stock. Prime may be
deemed an indirect beneficial owner of 813,127 shares of Common Stock by
virtue of its position as general partner of Restart. Prime II does not
directly own any of the Common Stock. Prime II may be deemed an indirect
beneficial owner of 1,156,964 shares of Common Stock by virtue of its
position as general partner of Restart II. Prime III does not directly own
any of the Common Stock. Prime III may be deemed an indirect beneficial
owner of 803,834 shares of Common Stock by virtue of its position as general
partner of Restart III. Prime IV does not directly own any of the Common
Stock. Prime IV may be deemed an indirect beneficial owner of 506,462 shares
of Common Stock by virtue of its position as general partner of Restart IV.
Prime V does not directly own any of the Common Stock. Prime V may be deemed
an indirect beneficial owner of 134,747 shares of Common Stock by virtue of
its position as general partner of Restart V. Prime Inc. does not directly
own any of the Common Stock. Prime Inc. may be deemed an indirect beneficial
owner of 3,415,134 shares of Common Stock by virtue of its position as
general partner of Prime, Prime II, Prime III, Prime IV and Prime V.
MW Capital does not directly own any of the Common Stock. MW Capital
may be deemed an indirect beneficial owner of 130,100 shares of Common Stock
by virtue of its position as general partner of MWIP.
MW Management does not directly own any of the Common Stock. MW
Management may be deemed an indirect beneficial owner of 613,330 shares of
Common Stock by virtue of its position as general partner of Phoenix.
Krieger does not directly own any of the Common Stock. Krieger may be
deemed an indirect beneficial owner of 213,736 shares of Common Stock by
virtue of his position as general partner of Betje.
Waterfall does not directly own any of the Common Stock. Waterfall may
be deemed an indirect beneficial owner of 4,646,440 shares of Common Stock by
virtue of his positions as President, Assistant Secretary and a Director of
Morgens Waterfall (446,058 shares); as a managing member of MW Capital, as
general partner of MWIP (130,100 shares); as President and a Director of
Prime, Inc., as general partner of each of Prime, Prime II, Prime III, Prime
IV and Prime V, as general partners of Restart (813,127 shares), Restart II
(1,156,964 shares), Restart III (803,834 shares), Restart IV (506,462 shares)
and Restart V (134,747 shares), respectively; as a managing member of MW
Management, as general partner of Phoenix (613,330 shares); and by virtue of
an agreement with the MWV Plan (41,818 shares), as described below.
As a condition to the approvals by the Nevada State Gaming Control Board
and the Nevada Gaming Commission (collectively, the "Gaming Authorities")
which were required for the Plan to become effective, Waterfall and Morgens
issued certifications to the Gaming Authorities and entered into agreements
with the other Reporting Persons concerning, among other things, the exercise
of voting and investment power (including dispositive power) with respect to
Common Stock owned by any of the Reporting Persons (collectively, the
"Decision-Making Authority"). Pursuant to those certifications and
agreements, Waterfall is the only individual who exercises Decision-Making
Authority on behalf of any of the Reporting Persons.
Page 27 of 58 Pages
<PAGE>
Morgens does not directly own any of the Common Stock. Morgens has been
included as a Reporting Person by virtue of his positions as Chairman of the
Board of Directors and Secretary of Morgens Waterfall; as a managing member
of MW Capital, as general partner of MWIP; as Chairman of the Board of
Directors and Secretary of Prime, Inc., as general partner of each of Prime,
Prime II, Prime III, Prime IV and Prime V, as general partners of Restart,
Restart II, Restart III, Restart IV and Restart V, respectively; and as a
managing member of MW Management, as general partner of Phoenix. As
explained above, Morgens has agreed with the other Reporting Persons and has
certified to the Gaming Authorities that he will not exercise Decision-Making
Authority on behalf of any of the Reporting Persons. Accordingly, Morgens
disclaims beneficial ownership of the Common Stock.
Each Reporting Person hereby disclaims that it has any beneficial
ownership of the securities owned, directly or indirectly, by any other
entity.
(c) Except as set forth in Item 3 above, there have been no other
transactions involving the Common Stock by the Reporting Persons.
(d) Except as set forth in this Item and Item 2 above, no other person
is known to have the right to receive or the power to direct the receipt of
dividends from, or the proceeds from the sale of, the Common Stock.
(e) Not applicable.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT
TO THE SECURITIES OF THE ISSUER.
None of the persons identified in Item 2 is a party to any contract,
arrangement, understanding or relationship with respect to any securities of
the Issuer, except (a) to the extent described in Items 2 and 5 above and (b)
the Common Stock Registration Rights Agreement attached as an Exhibit to this
Statement ("Registration Rights Agreement"), which was provided for under the
Plan. The Registration Rights Agreement, under certain circumstances and
conditions specified therein, entitles Reporting Persons to have their shares
of Common Stock registered with the Securities and Exchange Commission under
the Securities Act of 1933, as amended.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS.
EXHIBIT A Joint Acquisition Statement among the Reporting Persons herein
dated March 10, 1997 filed Pursuant to Rule 13d-1(f)(1) of the Act.
EXHIBIT B Common Stock Registration Rights Agreement, dated as of February
28, 1997, among the Issuer, the Reporting Persons and BEA Associates.
Page 28 of 58 Pages
<PAGE>
EXHIBIT C INCORPORATED BY REFERENCE Power of Attorney, dated December 15,
1993, granted to Messrs. Morgens and Waterfall by the following parties: Mr.
Bruce Waterfall; Phoenix Partners; Morgens Waterfall Income Partners; Betje
Partners; Phaeton International N.V.; Morgens, Waterfall, Vintiadis
Investments N.V.; The Common Fund for Non-Profit Organizations; Morgens
Waterfall Vintiadis & Company, Inc.; Restart Partners, L.P.; Restart Partners
II, L.P.; Restart Partners III, L.P.; Restart Partners IV, L.P.; Morgens
Waterfall, Vintiadis & Co.,Inc. Employees' Profit Sharing Plan; and Mr. Edwin
Morgens, for the specific purpose of executing on their behalf any Schedule
13Ds and amendments thereto for filing with the Securities and Exchange
Commission pursuant to the requirements of Rule 13d-1(f) (incorporated by
reference to Exhibit A of Amendment No. 2 to Schedule 13D filed on December
22, 1993 by Phoenix Partners; Betje Partners; Phaeton International N.V.;
Morgens, Waterfall, Vintiadis Investments N.V.; Morgens Waterfall Vintiadis &
Company, Inc.; Edwin H. Morgens; and Bruce Waterfall with respect to the
common stock, par value $.01 per share, of Sudbury, Inc.).
EXHIBIT D Power of Attorney, dated September 18, 1996, granted to Messrs.
Morgens and Waterfall by Restart V, L.P.
Page 29 of 58 Pages
<PAGE>
SIGNATURES
After reasonable inquiry and to the best knowledge and belief of each of
the Reporting Persons, each such person or entity certifies that the
information set forth in this statement is true, complete and correct and
agrees that this statement is filed on behalf of each of them.
The Reporting Persons listed herein
Dated: March 10, 1997 By: /s/ Bruce Waterfall
_____________________________________
John C. "Bruce" Waterfall, on his own
behalf and as attorney-in-fact for
each of the other Reporting Persons
Page 30 of 58 Pages
<PAGE>
EXHIBIT A
JOINT ACQUISITION STATEMENT
PURSUANT TO RULE 13d-1(f)(1)
The undersigned acknowledge and agree that the foregoing statement on
Schedule 13D is filed on behalf of each of the undersigned and that all
subsequent amendments to this statement on Schedule 13D shall be filed on
behalf of each of the undersigned without the necessity of filing additional
joint acquisition statements. The undersigned acknowledge that each shall be
responsible for the timely filing of such amendments, and for the
completeness and accuracy of the information concerning it contained therein,
but shall not be responsible for the completeness and accuracy of the
information concerning the others, except to the extent that it knows or has
reason to believe that such information is inaccurate.
The Reporting Persons listed herein
Dated: March 10, 1997 By: /s/ Bruce Waterfall
_____________________________________
John C. "Bruce" Waterfall, on his own
behalf and as attorney-in-fact for
each of the other Reporting Persons
Page 31 of 58 Pages
<PAGE>
EXHIBIT B
COMMON STOCK REGISTRATION RIGHTS AGREEMENT
dated as of February 28, 1997
among
ELSINORE CORPORATION
and
THE HOLDERS OF REGISTRABLE SHARES REFERRED TO HEREIN
Page 32 of 58
<PAGE>
TABLE OF CONTENTS
Page
Section 1. Definitions and Usage 1
1.1. Definitions 1
1.2. Usage 3
Section 2 Demand Registration 4
2.1. Right of Holders of Registrable Shares to Demand Registration 4
2.2. Rights of Substantial Holders to Demand Shelf Registrations 5
2.3. Filing Registration Statement; Registration Period 5
2.4. Number of Registrations 5
2.5. Piggy-Back Rights of Eligible Holders of Registrable Shares 6
2.6. Selection of Registration Form 6
2.7. Selection of Underwriters and Placement Agents 6
Section 3 Company Registration 7
Section 4 Obligations of the Company 7
4.1. Registration Statement 7
4.2. Amendments to Registration Statement 7
4.3. Copies to Selling Holders 8
4.4. Blue Sky Qualifications 8
4.5. Underwriting or Agency Agreement 8
4.6. Stop Order 8
4.7. Periodic Reports 9
4.8. Information Available for Due Diligence 9
4.9. Comfort Letter; Legal Opinion 9
4.10. Transfer Agent and Registrar 9
4.11. Securities Exchange Listing or Quotation System 9
4.12. CUSIP Number 10
4.13. Other Actions 10
Section 5 Information from Selling of Registrable Shares 10
Section 6 Expenses of Registration 10
6.1. Demand and Shelf Registrations 10
6.2. Company Registration 10
6.3. Company Not Relieved of Obligations 11
Section 7 Underwriting Requirements 11
Section 8 Indemnification; Contribution 11
8.1. Indemnification by the Company 11
8.2. Indemnification by the Selling Holders of Registrable Shares 12
8.3. Notification; Legal Representation 12
8.4. Contribution in Lieu of Indemnification 13
8.5. Full Indemnification Regardless of Relative Fault 13
8.6. Continuing Obligations 14
Section 9 Transfer of Registration Rights 14
Section 10 Restrictions on Public Sale by Holders of Registrable Shares 14
Section 11 Covenants of the Company 14
11.1. Current Public Information 14
11.2. Restrictions on other Registrations and Sales by the Company 15
11.3. Mergers, Consolidations, Reorganizations and Transfers of
Assets 15
11.4. Limitations on Subsequent Registration Rights 16
Section 12 Amendment, Modification and Waivers; Further Assurances 16
Section 13 Assignment 16
Section 14 Governing Law 17
Page 33 of 58
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Section 15 Notices 17
Section 16 Entire Agreement; Integration 17
Section 17 Injunctive Relief 17
Section 18 Term of Agreement 17
Section 19 Section Headings 17
Section 20 Counterparts 18
Section 21 Severability 18
SCHEDULES AND EXHIBITS
SCHEDULE 1 Names and Addresses for Delivery of Notices S-1
EXHIBIT AA Agreement to be Bound A-1
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<PAGE>
COMMON STOCK REGISTRATION RIGHTS AGREEMENT
This Common Stock Registration Rights Agreement (this "Agreement") is
entered into as of February 28, 1997 by and among Elsinore Corporation, a
Nevada corporation (the "Company"), and the Persons named at the end of this
Agreement and in Schedule 1 as Holders of Registrable Shares (each a "Holder
of Registrable Shares" and collectively, the "Holders of Registrable Shares").
Reference is made to the Order Confirming First Amendment Plan Of
Reorganization Proposed Jointly By The Debtors And The Unofficial Bondholders
Committee, entered on August 9, 1996 (the "Order"), by the United States
Bankruptcy Court for the District of Nevada (the "Court"), in connection with
the proceedings for reorganization under Chapter 11 of Elsinore Corporation,
et al., Case Nos. 95-24685 RCJ, 95-24686 RCJ, 95-24687 RCJ, 95-24688 RCJ, 95-
24689 RCJ, and 95-24839 RCJ.
WHEREAS, upon the effectiveness of the Plan of Reorganization Proposed
Jointly By Debtors And The Unofficial Bondholders Committee ("Plan"), each of
the Holders of Registrable Shares shall own shares of common stock, par value
$0.001 per share, of the Company in the respective amounts indicated in
Schedule 1; and
WHEREAS, the Court, through the Order, authorized and directed the
Company and the Holders of Registrable Shares to enter into an agreement in
the form hereof;
NOW THEREFORE, in compliance with the Order and in consideration of the
premises, covenants and agreements contained herein, the sufficiency and
adequacy of which are hereby acknowledged, and for other good and valuable
consideration the sufficiency and adequacy of which are hereby acknowledged,
and intending to be legally bound hereby, the parties hereto agree as follows:
Section 1. Definitions and Usage.
1.1.Definitions.
As used in this Agreement:
Commission. "Commission" shall mean the Securities and Exchange
Commission.
Common Stock. "Common Stock" shall mean (i) the common stock, par
value $0.001 per share, of the Company, and (ii) shares of capital stock of
the Company issued by the Company in respect of or in exchange for shares of
such common stock in connection with any stock dividend or distribution,
stock split-up, recapitalization recombination or exchange by the Company
generally of shares of such common stock.
Continuously Effective. "Continuously Effective," with respect to
a specified registration statement, shall mean that it shall not cease to be
effective and available for Transfers of Registrable Shares thereunder for
longer than either (i) any ten consecutive business days, or (ii) an
aggregate of 15 business days during the period specified in the relevant
provision of this Agreement.
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<PAGE>
Demand Registration. "Demand Registration" shall have the meaning
set forth in Section 2.1(i).
Demanding Holders. "Demanding Holders" shall have the meaning set
forth in Section 2.1(i).
Eligible Holders of Registrable Shares. "Eligible Holders of
Registrable Shares" shall have the meaning set forth in Section 2.5(i).
Exchange Act. "Exchange Act" shall mean the Securities Exchange
Act of 1934, as amended.
Holder of Registrable Shares. "Holder of Registrable Shares"
shall mean the Persons named in Schedule 1 as Holders of Registrable Shares
and Transferees of such Persons' Registrable Shares with respect to the
rights that such Transferees shall have acquired in accordance with Section 9,
at such times as such Persons shall own Registrable Shares.
Initiating Substantial Holder. "Initiating Substantial Holder"
shall have the meaning set forth in Section 2.2.
Inspectors. "Inspectors" shall have the meaning set forth in
Section 4.8.
Person. "Person" shall mean any individual, corporation,
partnership, joint venture, association, joint-stock company, limited
liability company, trust, unincorporated organization or government or other
agency or political subdivision thereof.
Register, Registered and Registration. "Register," "registered,"
and "registration" shall refer to a registration effected by preparing and
filing a registration statement or similar document in compliance with the
Securities Act, and the declaration or ordering by the Commission of
effectiveness of such registration statement or document.
Registrable Shares. "Registrable Shares" shall mean, subject to
Section 9 and Section 11.3: (i) the shares of Common Stock owned by Persons
that were Holders of Registrable Shares on the date hereof, and (ii) any
shares of Common Stock or other securities issued as (or issuable upon the
conversion or exercise of any warrant, right or other security which is
issued as) a dividend or other distribution with respect to, or in exchange
by the Company generally for, or in replacement by the Company generally of,
such shares of Common Stock.
Registrable Shares then outstanding. "Registrable Shares then
outstanding" shall mean, with respect to a specified determination date,
Registrable Shares owned by Holders of Registrable Shares on such date.
Registration Expenses. "Registration Expenses" shall have the
meaning set forth in Section 6.1.
Registration Period. "Registration Period" shall have the meaning
set forth in Section 2.3(ii).
Page 36 of 58
<PAGE>
Securities Act. "Securities Act" shall mean the Securities Act of
1933, as amended.
Selling Holders of Registrable Shares. "Selling Holders of
Registrable Shares" shall mean, with respect to a specified registration
pursuant to this Agreement, Holders of Registrable Shares whose Registrable
Shares are included in such registration.
Shelf Registration. "Shelf Registration" shall have the meaning
set forth in Section 2.2.
Substantial Holder. "Substantial Holder" shall mean any Holder of
Registrable Shares that owned on the date of this Agreement 10% or more of
the Registrable Shares then outstanding and such Transferee, if any, to whom
such Person Transfers Registrable Shares and assigns such Substantial
Holder's rights as a Substantial Holder as permitted by Section 9.
Transfer. "Transfer" shall mean and include the act of selling,
giving, transferring, creating a trust (voting or otherwise), assigning or
otherwise disposing of (other than pledging, hypothecating or otherwise
transferring as security) (and correlative words shall have correlative
meanings); provided however, that any transfer or other disposition upon
foreclosure or other exercise of remedies of a secured creditor after an
event of default under or with respect to a pledge, hypothecation or other
transfer as security shall constitute a "Transfer."
Violation. "Violation" shall have the meaning set forth in Section
8.1.
1.2. Usage.
(i) References to a Person are also references to its assigns
and successors in interest (by means of merger, consolidation or sale of all
or substantially all the assets of such Person or otherwise, as the case may
be).
(ii) References to Registrable Shares "owned" by a Holder of
Registrable Shares shall include Registrable Shares beneficially owned by
such Person but which are held of record in the name of a nominee, trustee,
custodian, or other agent, but shall exclude shares of Common Stock held by a
Holder of Registrable Shares in a fiduciary capacity for customers of such
Person.
(iii) References to a document are to it as amended, waived and
otherwise modified from time to time and references to a statute or other
governmental rule are to it as amended and otherwise modified from time to
time (and references to any provision thereof shall include references to any
successor provision).
(iv) References to Sections or to Schedules or Exhibits are to
sections hereof or schedules or exhibits hereto, unless the context otherwise
requires.
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<PAGE>
(v) The definitions set forth herein are equally applicable both
to the singular and plural forms and the feminine, masculine and neuter forms
of the terms defined.
(vi) The term "including" and correlative terms shall be deemed to
be followed by "without limitation" whether or not followed by such words or
words of like import.
(vii) The term "hereof" and similar terms refer to this Agreement
as a whole.
(viii) The "date of" any notice or request given pursuant to this
Agreement shall be determined in accordance with Section 15.
Section 2. Demand Registration.
2.1. Right of Holders of Registrable Shares to Demand
Registration.
(i) If any Holder of 10% or more of the Registrable Shares then
outstanding or if one or more Holders of Registrable Shares that own an
aggregate of 51% or more of the Registrable Shares then outstanding shall
make a written request to the Company (the "Demanding Holders"), each
Demanding Holder shall be entitled to have all or any number of such
Demanding Holder's Registrable Shares included (subject to Section 7. (i)) in
a registration with the Commission in accordance with the provisions of the
Securities Act (a "Demand Registration"); provided, however, that (A) if
prior to the date of such request a Demand Registration statement pursuant to
this Section 2.1 shall have been declared effective by the Commission, six
months or more shall have elapsed following the date of the written request
for the most recent such prior Demand Registration, and (B) Holders of
Registrable Shares shall not be entitled to a Demand Registration during the
effective period of a "Shelf Registration," as defined in Section 2.2. Any
request made pursuant to this Section 2.1 shall be addressed to the attention
of the Secretary of the Company, and shall specify the number of Registrable
Shares to be registered, the intended methods of disposition thereof and that
the request is for a Demand Registration pursuant to this Section 2.1(i).
(ii) The Company shall be entitled to postpone for up to six
months the filing of any Demand Registration statement otherwise required to
be prepared and filed pursuant to this Section 2.1, if the Company determines
in its reasonable judgment (with the concurrence of the managing underwriter,
if any), that such registration and the Transfer of Registrable Shares
contemplated thereby would materially interfere with any financing involving
the Company or any of its wholly owned subsidiaries and the Company promptly
gives the Demanding Holders notice of such determination; provided, however,
that the Company shall not have postponed pursuant to this Section 2.1(ii)
the filing of any other Demand Registration statement otherwise required to
be prepared and filed pursuant to this Section 2.1 during the 12-month period
ended on the date of the relevant request pursuant to Section 2.1(i).
Page 38 of 58
<PAGE>
2.2. Rights of Substantial Holders to Demand Shelf Registrations.
On or after the date of this Agreement, each Substantial Holder that shall
make a written request to the Company (the "Initiating Substantial Holder"),
shall be entitled to have all or any number of such Initiating Substantial
Holder's Registrable Shares included in a registration with the Commission in
accordance with the Securities Act for an offering on a delayed or continuous
basis pursuant to Rule 415 under the Securities Act (a "Shelf Registration").
Any request made pursuant to this Section 2.2 shall be addressed to the
attention of the Secretary of the Company, and shall specify the number of
Registrable Shares to be registered, the intended methods of disposition
thereof and that the request is for a Shelf Registration pursuant to this
Section 2.2.
2.3. Filing Registration Statement; Registration Period.
Following receipt of a request for a Demand Registration or a Shelf
Registration, the Company shall:
(i) File the registration statement with the Commission as
promptly as practicable, and shall use the Company's best efforts to have the
registration statement declared effective under the Securities Act as soon as
reasonably practicable, in each instance giving due regard to the need to
prepare current financial statements, conduct due diligence, comply with any
applicable requirements of a securities exchange on which the Common Stock is
listed or nationally recognized automated quotation system in which the
Common Stock is included, and complete any other actions that are reasonably
necessary to effect a registered public offering.
(ii) Use the Company's best efforts to keep the relevant
registration statement Continuously Effective (x) if a Demand Registration,
for up to 150 days or until such earlier date as of which all the Registrable
Shares under the Demand Registration statement shall have been Transferred,
and (y) if a Shelf Registration, for three years (a "Registration Period").
Notwithstanding the foregoing, if for any reason the effectiveness or
availability for Transfers of Registrable Shares under a registration
pursuant to this Section 2 is suspended or, in the case of a Demand
Registration, postponed as permitted by Section 2. 1 (ii), the Registration
Period shall be extended by the aggregate number of days of such suspension
or postponement.
2.4. Number of Registrations. The Company shall be obligated to
effect up to two Demand Registrations and such number of Shelf Registrations
as may be necessary to provide each and every Substantial Holder with the
right to request a Shelf Registration. If the Company shall have complied
with its obligations under this Agreement, a right to demand a registration
pursuant to this Section 2 shall be deemed to have been satisfied (i) if a
Demand Registration, upon the earlier of (x) the date as of which all of the
Registrable Shares included therein shall have been Transferred and (y) the
date as of which such Demand Registration shall have been Continuously
Effective for a period of 150 days, and (ii) if a Shelf Registration, upon
the effective date of a Shelf Registration, provided no stop order or similar
order or proceedings for such an order, is thereafter entered or initiated.
2.5. Piggy-Back Rights of Eligible Holders of Registrable Shares.
Page 39 of 58
<PAGE>
(i) Subject to Section 9, each Holder of Registrable Shares
(other than the Demanding Holders or the Initiating Substantial Holder, as
the case may be) that owns Registrable Shares possessing voting power and
other characteristics identical to those of the Registrable Shares specified
in the relevant request for a Demand Registration or Shelf Registration,
respectively (the "Eligible Holders of Registrable Shares"), shall be entitled
to have such Registrable Shares owned by it included in a Demand Registration
statement or Shelf Registration statement, as the case may be, prepared
pursuant to Section 2.1 or Section 2.2, respectively.
(ii) Within seven days following the date of a request pursuant to
Section 2. 1 (i) or Section 2.2 the Company shall deliver to each Eligible
Holder of Registrable Shares written notice of such Demand Registration or
Shelf Registration, respectively. Upon the written request of each Eligible
Holder of Registrable Shares given within seven days following the date of
such notice, the Company shall (1) deliver to the Demanding Holders or the
Initiating Substantial Holder, as the case may be, copies of such written
requests from such Eligible Holders of Registrable Shares, and (2) cause to
be included in the registration statement and use its best efforts to be
registered under the Securities Act (subject, in the case of a Demand
Registration, to Section 7(i)) all the Registrable Shares possessing the
characteristics referred to in Section 2.5(i) that each such Eligible Holder
of Registrable Shares shall have requested to be registered.
(iii) Each Eligible Holder of Registrable Shares shall be entitled
to have its Registrable Shares possessing the characteristics referred to in
Section 2.5(i) included pursuant to this Section 2.5 in any Demand
Registrations and Shelf Registrations.
2.6. Selection of Registration Form. A registration pursuant to
this Section 2 shall be on such appropriate registration form of the
Commission as shall (i) be selected by the Company and be reasonably
acceptable to the Demanding Holders owning a majority of the Registrable
Shares owned by Demanding Holders to be included in such Demand Registration
or the Initiating Substantial Holder, as the case may be, and (ii) permit the
disposition of the Registrable Shares in accordance with the intended method
or methods of disposition specified in the request pursuant to Section 2.1(i)
or Section 2.2, respectively.
2.7. Selection of Underwriters and Placement Agents. If any
registration pursuant to Section 2 involves an underwritten offering (whether
on a "firm," "best efforts" or "all reasonable efforts" basis or otherwise),
or an agented offering, Demanding Holders owning a majority of the
Registrable Shares owned by Demanding Holders to be included in such Demand
Registration or the Initiating Substantial Holder, as the case may be, shall
have the right to select the investment banker or bankers and manager or
managers to administer such underwritten offering or the placement agent or
agents for such agented offering; provided, however, that each Person so
selected shall be reasonably acceptable to the Company.
Section 3. Company Registration. If the Company proposes to
register (including for this purpose a registration effected by the Company
for shareholders of the Company other than the Holders of Registrable Shares)
Common Stock under the Securities Act in connection with a public offering.
Page 40 of 58
<PAGE>
solely for cash (other than a registration on Form S-8 or equivalent
successor form), the Company shall promptly give each Holder of Registrable
Shares written notice of such registration. Upon the written request of each
Holder of Registrable Shares given within 20 days following the date of such
notice, the Company shall cause to be included in such registration statement
and use its best efforts to be registered under the Securities Act (subject
to Section 7(ii) ) all the Registrable Shares that each such Holder of
Registrable Shares shall have requested to be registered. Each Holder of
Registrable Shares shall be entitled to have its Registrable Shares included in
an unlimited number of registrations pursuant to this Section 3.
Section 4. Obligations of the Company. Whenever required under Section
2 or Section 3 to effect the registration of any Registrable Shares, the
Company shall, as expeditiously as practicable:
4.1. Registration Statement. Prepare and file with the
Commission a registration statement with respect to such Registrable Shares
and use the Company's best efforts to cause such registration statement to
become effective; provided, however, that before filing a registration
statement or prospectus or any amendments or supplements thereto, including
documents incorporated by reference after the initial filing of the
registration statement and prior to effectiveness thereof, the Company shall
furnish to one firm of counsel for the Selling Holders of Registrable Shares
(selected by Selling Holders of Registrable Shares owning a majority of the
Registrable Shares included in such registration statement or the Initiating
Substantial Holder, as the case may be) copies of all such documents in the
form substantially as proposed to be filed with the Commission at least four
business days prior to filing for review and comment by such counsel, which
opportunity to comment shall include an absolute right to control or contest
disclosure if the applicable Selling Holder of Registrable Shares reasonably
believes that it may be subject to controlling person liability under
applicable securities laws with respect thereto.
4.2. Amendments to Registration Statement. Prepare and file with
the Commission such amendments and supplements to such registration statement
and the prospectus used in connection with such registration statement as may
be necessary to comply with the provisions of the Securities Act and rules
thereunder with respect to the disposition of all securities covered by such
registration statement. If the registration is for an underwritten offering,
the Company shall amend the registration statement or supplement the
prospectus whenever required by the terms of the underwriting agreement
entered into pursuant to Section 4.5. Subject to Rule 415 under the
Securities Act, if the registration statement is a Shelf Registration, the
Company shall amend the registration statement or supplement the prospectus
so that it will remain current and in compliance with the requirements of the
Securities Act for three years after its effective date, and if during such
period any event or development occurs as a result of which the registration
statement or prospectus contains a misstatement of a material fact or omits
to state a material fact required to be stated therein or necessary to make
the statements therein not misleading, the Company shall promptly notify each
Selling Holder of Registrable Shares, amend the registration statement or
supplement the prospectus so that each will thereafter comply with the
Securities Act and furnish to each Selling Holder of Registrable Shares such
amended or supplemented prospectus, which each such Holder shall thereafter.
Page 41 of 58
<PAGE>
statement. Pending such amendment or supplement each such Holder shall cease
making offers or Transfers of Registrable Shares pursuant to the prior
prospectus.
4.3. Copies to Selling Holders. Furnish to each Selling Holder
of Registrable Shares, without charge, such numbers of copies of the
registration statement, any pre-effective or post-effective amendment
thereto, the prospectus, including each preliminary prospectus and any
amendments or supplements thereto, in each case in conformity with the
requirements of the Securities Act and the rules thereunder, and such other
related documents as any such Selling Holder may reasonably request in order
to facilitate the disposition of Registrable Shares owned by such Selling
Holder.
4.4. Blue Sky Qualifications. Use the Company's best efforts (i)
to register and qualify the securities covered by such registration statement
under such other securities or Blue Sky laws of such states or jurisdictions
as shall be reasonably requested by the Selling Holders of Registrable
Shares, and (ii) to obtain the withdrawal of any order suspending the
effectiveness of a registration statement, or the lifting of any suspension
of the qualification (or exemption from qualification) of the offer and
transfer of any of the Registrable Shares in any jurisdiction, at the
earliest possible moment; provided, however, that the Company shall not be
required in connection therewith or as a condition thereto to qualify to do
business or to file a general consent to service of process in any such
states or jurisdictions.
4.5. Underwriting or Agency Agreement. In the event of any
underwritten or agented offering, enter into and perform the Company's
obligations under an underwriting or agency agreement (including
indemnification and contribution obligations of underwriters or agents), in
usual and customary form, with the managing underwriter or underwriters of or
agents for such offering. Each Selling Holder of Registrable Shares
participating in such underwritten or agented offering shall also enter into
and perform its obligations under each such agreement. The Company shall also
cooperate with Demanding Holders or Initiating Substantial Holder, as the
case may be, and the managing underwriter or agent for such offering in the
marketing of the Registrable Shares, including making available the Company's
officers, accountants, counsel, premises, books and records for such purpose,
but the Company shall not be required to incur any out-of-pocket expense
pursuant to this sentence.
4.6. Stop Order. Promptly notify each Selling Holder of
Registrable Shares included in such registration statement of any stop order
issued or threatened to be issued by the Commission in connection therewith
(and take all reasonable actions required to prevent the entry of such stop
order or to remove it if entered.
4.7. Periodic Reports. Make generally available to the Company's
security holders copies of all periodic reports, proxy statements, and other
information referred to in Section 11.1 and an earnings statement satisfying
the provisions of Section 11(a) of the Securities Act no later than 90 days
following the end of the 12-month period beginning with the first month of the
Page 42 of 58
<PAGE>
Company's first fiscal quarter commencing after the effective date of each
registration statement filed pursuant to this Agreement.
4.8. Information Available for Due Diligence. Make available for
inspection by any Selling Holder of Registrable Shares whose Registrable
Shares are included in such registration statement, any underwriter
participating in such offering and the representatives (but not more than one
firm of counsel to such Selling Holders)(collectively, the "Inspectors"), all
financial and other information as shall be reasonably necessary to enable
them to exercise their due diligence responsibility under the Securities Act;
provided, however, that information that the Company determines, in good
faith, to be confidential and which the Company notifies the Inspectors is
confidential shall not be disclosed to any Inspector unless such Inspector
signs a confidentiality agreement reasonably satisfactory to the Company or
the related Selling Holder of Registrable Shares agrees to be responsible for
such Inspector's breach of confidentiality on terms reasonably satisfactory
to the Company.
4.9. Comfort Letter; Legal Opinion. Use the Company's best
efforts to obtain a so-called "comfort letter" from its independent public
accountants, and legal opinions of counsel to the Company addressed to the
Selling Holders of Registrable Shares, in customary form and covering such
matters of the type customarily covered by such letters, and in a form that
shall be reasonably satisfactory to Selling Holders of Registrable Shares
owning a majority of the Registrable Shares included in the registration
statement or the Initiating Substantial Holder, as the case be. The Company
shall furnish to each Selling Holder of Registrable Shares a signed
counterpart of any such comfort letter or legal opinion.
4.10. Transfer Agent and Registrar. Provide and cause to be
maintained a transfer agent and registrar for all Registrable Shares covered
by such registration statement from and after a date not later than the
effective date of such registration statement.
4.11. Securities Exchange Listing or Quotation System. Use all
reasonable efforts to cause the Registrable Shares covered by such
registration statement (i) if the Common Stock is then listed on a securities
exchange or included for quotation in a recognized trading market, to
continue to be so listed or included for a reasonable period of time after
the offering, and (ii) to be registered with or approved by such other United
States or state governmental agencies or authorities as may be necessary by
virtue of the business and operations of the Company to enable the Selling
Holders of Registrable Shares to consummate the disposition of such
Registrable Shares.
4.12. CUSIP Number. Use the Company's reasonable efforts to
provide a CUSIP number for the Registrable Shares prior to the effective date
of the first registration statement including Registrable Shares.
4.13. Other Actions. Take such other actions as are reasonably
required in order to expedite or facilitate the disposition of Registrable
Shares included in each such registration.
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<PAGE>
Section 5. Information from Selling of Registrable Shares. It shall be
a condition precedent to the obligations of the Company to take any action
pursuant to this Agreement with respect to the Registrable Shares of any
Selling Holder of Registrable Shares that such Selling Holder shall furnish to
the Company such information regarding such Selling Holder, the number of the
Registrable Shares owned by it, and the intended method of disposition of
such securities as shall be required to effect the registration of such
Selling Holder's Registrable Shares.
Section 6. Expenses of Registration. Expenses in connection with
registrations pursuant to this Agreement shall be allocated and paid as
follows:
6.1. Demand and Shelf Registrations. With respect to each Demand
Registration and Shelf Registration, the Company shall bear and pay all
expenses incurred in connection with any registration, filing, or
qualification of Registrable Shares with respect to such Demand Registrations
for each Selling Holder of Registrable Shares (which right may be assigned to
any Person to whom Registrable Shares are Transferred as permitted by Section
9), including all registration, filing and National Association of Securities
Dealers, Inc. fees, all fees and expenses of complying with securities or Blue
Sky laws, all word processing, duplicating and printing expenses, messenger
and delivery expenses, the reasonable fees and disbursements of counsel for
the Company, and of the Company's independent public accountants, including
the expenses of "cold comfort" letters required by or incident to such
performance and compliance, and the reasonable fees and disbursements of one
firm of counsel for the Selling Holders of Registrable Shares (selected by
Demanding Holders owning a majority of the Registrable Shares owned by
Demanding Holders to be included in a Demand Registration or by the Initiating
Substantial Holder, as the case may be) (the "Registration Expenses"), but
excluding underwriting discounts and commissions relating to Registrable
Shares (which shall be paid on a pro rata basis by the Selling Holders of
Registrable Shares).
6.2. Company Registration. The Company shall bear and pay all
Registration Expenses incurred in connection with any registrations pursuant
to Section 3 for each Selling Holder of Registrable Shares (which right may be
Transferred to any Person to whom Registrable Shares are Transferred as
permitted by Section 9), but excluding underwriting discounts and commissions
relating to Registrable Shares (which shall be paid on a pro rata basis by the
Selling Holders of Registrable Shares).
6.3. Company Not Relieved of Obligations. Any failure of the
Company to pay any Registration Expenses as required by this Section 6 shall
not relieve the Company of its obligations under this Agreement.
Section 7. Underwriting Requirements. If the total amount of
securities, including Registrable Shares, to be included in a registration
pursuant to this Agreement exceeds the amount of securities that the managing
underwriter or underwriters reasonably believe compatible with the success of
the offering:
(i) If such registration is pursuant to Section 2.1, the Company
shall be required to include in the registration only that number of
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<PAGE>
Registrable Shares which the managing underwriter or underwriters believe will
not jeopardize the success of the offering, allocated as follows: (x) first,
up to the full number of Registrable Shares owned by the Demanding Holders
that in the opinion of the managing underwriter or underwriters can be so
Transferred (allocated among the Demanding Holders pro rata), and (y) second,
the number of Registrable Shares owned by Selling Holders of Registrable
Shares (other than Demanding Holders) that in the opinion of the managing
underwriter or underwriters can be Transferred (allocated among such Selling
Holders pro rata).
(ii) If such registration is pursuant to Section 3, the Company
shall be entitled to register (1) any number of shares of Common Stock for
Transfer by it in such registration, and (2) only that number of Registrable
Shares, if any, that the Company determines to include. Each Selling Holder
of Registrable Shares shall be required to reduce by the same percentage the
number of Registrable Shares to be registered for Transfer by it to give
effect to the foregoing.
Section 8. Indemnification; Contribution. If any Registrable Shares
are included in a registration statement under this Agreement:
8.1. Indemnification by the Company. The Company shall indemnify
and hold harmless each Selling Holder of Registrable Shares, each Person, if
any, who controls such Selling Holder within the meaning of the Securities
Act, and each officer, director, partner, and employee of such Selling Holder
and such controlling Person, against any and all losses, claims, damages,
liabilities and expenses (joint or several), including attorneys' fees and
disbursements and expenses of investigation, incurred by such party pursuant
to any actual or threatened action, suit, proceeding or investigation, or to
which any of the foregoing Persons may become subject under the Securities
Act, the Exchange Act or other federal or state laws, insofar as such losses,
claims, damages, liabilities and expenses arise out of or are based upon any
of the following statements, omissions or violations (collectively a
"Violation"):
(i) Any untrue statement or alleged untrue statement of a
material fact contained in such registration statement, including any
preliminary prospectus or final prospectus contained therein, or any
amendments or supplements thereto;
(ii) The omission or alleged omission to state therein a material
fact required to be stated therein, or necessary to make the statements
therein not misleading; or
(iii) Any violation or alleged violation by the Company of the
Securities Act, the Exchange Act, any applicable state securities law or any
rule or regulation promulgated under the Securities Act, the Exchange Act or
any applicable state securities law;
provided, however, that the indemnification required by this Section 8.1 shall
not apply to amounts paid in settlement of any such loss, claim, damage,
liability or expense if such settlement is effected without the consent of the
Company (which consent shall not be unreasonably withheld), nor shall the
Company be liable in any such case for any such loss, claim, damage, liability
Page 45 of 58
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or expense to the extent that it arises out of or is based upon a Violation
which occurs in reliance upon and in conformity with written information
furnished to the Company by the indemnified party expressly for use in
connection with such registration.
8.2. Indemnification by the Selling Holders of Registrable
Shares. To the extent permitted by applicable law, each Selling Holder of
Registrable Shares shall indemnify and hold harmless the Company, each of its
directors, each of its officers who shall have signed the registration
statement, each Person, if any, who controls the Company within the meaning of
the Securities Act, any other Selling Holder of Registrable Shares, any
controlling Person of any such other Selling Holder and each officer,
director, partner, and employee of such other Selling Holder and such
controlling Person, against any and all losses, claims, damages, liabilities
and expenses (joint and several), including attorneys' fees and disbursements
and expenses of investigation, incurred by such party pursuant to any actual
or threatened action, suit, proceeding or investigation, or to which any of
the foregoing Persons may otherwise become subject under the Securities Act,
the Exchange Act or other federal or state laws, insofar as such losses,
claims, damages, liabilities and expenses arise out of or are based upon any
Violation, in each case to the extent (and only to the extent) that such
Violation occurs in reliance upon and in conformity with written information
furnished by such Selling Holder of Registrable Shares expressly for use in
connection with such registration; provided, however, that (x) the
indemnification required by this Section 8.2 shall not apply to amounts paid
in settlement of any such loss, claim, damage, liability or expense if
settlement is effected without the consent of the relevant Selling Holder of
Registrable Shares, which consent shall not be unreasonably withheld, and (y)
in no event shall the amount of any indemnity under this Section 8.2 exceed
the gross proceeds from the applicable offering received by such Selling
Holder.
8.3. Notification; Legal Representation. Promptly after receipt
by an indemnified party under this Section 8 of notice of the commencement of
any action, suit, proceeding, investigation or threat thereof made in writing
for which such indemnified party may make a claim under this Section 8, such
indemnified party shall deliver to the indemnifying party a written notice of
the commencement thereof and the indemnifying party shall have the right to
participate in, and, to the extent the indemnifying party so desires, jointly
with any other indemnifying party similarly noticed, to assume the defense
thereof with counsel mutually satisfactory to the parties; provided, however,
that an indemnified party shall have the right to retain its own counsel, with
the fees and disbursements and expenses to be paid by the indemnifying party,
if representation of such indemnified party by the counsel retained by the
indemnifying party would be inappropriate due to actual or potential differing
interests between such indemnified party and any other party represented by
such counsel in such proceeding. The failure to deliver written notice to the
indemnifying party within a reasonable time following the commencement of any
such action, if prejudicial to its ability to defend such action, shall
relieve such indemnifying party of any liability to the indemnified party
under this Section 8 but shall not relieve the indemnifying party of any
liability that it may have to any indemnified party otherwise than pursuant to
this Section 8.
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<PAGE>
8.4. Contribution in Lieu of Indemnification. If the
indemnification required by this Section 8 from the indemnifying party is
unavailable to an indemnified party hereunder in respect of any losses,
claims, damages, liabilities or expenses referred to in this Section 8:
(i) The indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages, liabilities or
expenses in such proportion as is appropriate to reflect the relative fault of
the indemnifying party and indemnified parties in connection with the actions
which resulted in such losses, claims, damages, liabilities or expenses, as
well as any other relevant equitable considerations. The relative fault of
such indemnifying party and indemnified parties shall be determined by
reference to, among other things, whether any Violation has been committed by,
or relates to information supplied by, such indemnifying party or indemnified
parties, and the parties, relative intent, knowledge, access to information
and opportunity to correct or prevent such Violation. The amount paid or
payable by a party as a result of the losses, claims, damages, liabilities and
expenses referred to above shall be deemed to include, subject to the
limitations set forth in Section 8.1 and Section 8.2, any legal or other fees
or expenses reasonably incurred by such party in connection with any
investigation or proceeding.
(ii) The parties hereto agree that it would not be just and
equitable if contribution pursuant to this Section 8.4 were determined by pro
rata allocation or by any other method of allocation which does not take into
account the equitable considerations referred to in Section 8.4(i). No Person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any Person who was
not guilty of such fraudulent misrepresentation.
8.5. Full Indemnification Regardless of Relative Fault. If
indemnification is available under this Section 8, the indemnifying parties
shall indemnify each indemnified party to the full extent provided in this
Section 8 without regard to the relative fault of such indemnifying party or
indemnified party or any other equitable consideration referred to in Section
8.4.
8.6. Continuing Obligations. The obligations of the Company and
the Selling Holders of Registrable Shares under this Section 8 shall survive
the completion of any offering of Registrable Shares pursuant to a
registration statement under this Agreement, and otherwise.
Section 9. Transfer of Registration Rights. Rights under this Agreement
with respect to Registrable Shares may only be Transferred to a Person in
connection with the Transfer to such Person by a Holder of Registrable Shares
of such number of Registrable Shares which is not less than 15% of the number
of Registrable Shares outstanding on the date of this Agreement, provided that
(i) any such Transferee that is not a party to this Agreement shall have
executed and delivered to the Secretary of the Company a properly completed
agreement substantially in the form of Exhibit A, and (ii) the Transferor
shall have delivered to the Secretary of the Company, no later than 15 days
following the date of the Transfer, written notification of such Transfer
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setting forth the name of the Transferor, name and address of the Transferee,
and the number of Registrable Shares which shall have been so Transferred.
Section 10. Restrictions on Public Sale by Holders of Registrable
Shares. Each Holder of Registrable Shares entitled pursuant to this Agreement
to have Registrable Shares included in a registration statement prepared
pursuant to this Agreement, if so requested by the managing underwriter or
underwriters in an underwritten offering or agent for an agented offering of
any Registrable Shares, shall not effect any public sale or distribution of
shares of Common Stock or any securities convertible into or exchangeable or
exercisable for shares of Common Stock, including a sale pursuant to Rule 144
under the Securities Act (except as part of such underwritten or agented
registration), during the ten-day period prior to, and during the 90-day
period beginning on, the date such registration statement is declared
effective under the Securities Act by the Commission, provided that such
Selling Holder of Registrable Shares is timely notified of such effective date
in writing by the Company or such managing underwriter or underwriters or
agent. In order to enforce the foregoing covenant, the Company shall be
entitled to impose stop-transfer instructions with respect to the Registrable
Shares of each Selling Holder of Registrable Shares until the end of such
period.
Section 11. Covenants of the Company. The Company hereby agrees and
covenants as follows:
11.1. Current Public Information. The Company shall file on a
timely basis all reports required to be filed by it under the Exchange Act.
If the Company is not required to file reports pursuant to the Exchange Act,
upon the request of any Holder of Registrable Shares, the Company shall make
publicly available the information specified in subparagraph (c)(2) of Rule
144 of the Securities Act, and take such further action as may be reasonably
required from time to time and as may be within the reasonable control of the
Company, to enable the Holders of Registrable Shares to Transfer Registrable
Shares without registration under the Securities Act within the limitation of
the exemptions provided by Rule 144 under the Securities Act or any similar
rule or regulation hereafter adopted by the Commission.
11.2. Restrictions on other Registrations and Sales by the
Company.
(i) The Company shall not, and shall cause its majority owned
subsidiaries not to, effect any public sale or distribution of any shares of
Common Stock or any securities convertible into or exchangeable or exercisable
for shares of Common Stock, during the ten-day period prior to, and during the
90-day period beginning on, the commencement of a public distribution of the
Registrable Shares pursuant to any registration statement that was prepared
pursuant to Section 2 at the request of Holders of Registrable Shares owning
an aggregate of 51% or more of the Registrable Shares then outstanding (other
than Transfers by the Company pursuant to such registration if the
registration is pursuant to Section 3). The Company shall not effect any
registration of its securities (other than on Form S-4, Form S-8, or any
successor forms to such forms), or effect any public or private sale or
distribution of any of its securities, including a sale pursuant to Regulation
D under the Securities Act, whether on its own behalf or at the request of any
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holder or holders of such securities from the date of a request for a Demand
Registration pursuant to Section 2.1 by Holders of Registrable Shares owning
an aggregate of 51% or more of the Registrable Shares then outstanding until
the earlier of (x) 90 days following the date as of which all securities
covered by such Demand Registration statement shall have been Transferred, and
(y) 180 days following the effective date of such Demand Registration
statement, unless the Company shall have previously notified in writing all
Selling Holders of Registrable Shares of the Company's desire to do so, and
Selling Holders of Registrable Shares owning a majority of the Registrable
Shares then outstanding or the managing underwriter, if any, shall have
consented thereto in writing.
(ii) Any agreement entered into after the date of this Agreement
pursuant to which the Company or any of its majority owned subsidiaries issues
or agrees to issue any privately placed securities similar to any issue of the
Registrable Shares (other than (x) shares of Common Stock pursuant to a stock
incentive, stock option, stock bonus, stock purchase or other employee benefit
plan of the Company approved by its Board of Directors, and (y) securities
issued to Persons in exchange for ownership interests in any Person in
connection with a business combination in which the Company or any of its
majority owned subsidiaries is a party) shall contain a provision whereby
holders of such securities agree not to effect any public sale or distribution
of any such securities during the periods described in the first sentence of
Section 11.2(i), in each case including a sale pursuant to Rule 144 under the
Securities Act (unless such Person is prevented by applicable statute or
regulation from entering into such an agreement).
11.3. Mergers, Consolidations, Reorganizations and Transfers of
Assets. The Company shall not, directly or indirectly, (x) enter into any
merger, consolidation or reorganization in which the Company shall not be the
surviving corporation or (y) Transfer or agree to Transfer all or
substantially all the Company' s assets unless prior to such merger,
consolidation, reorganization or asset Transfer, the surviving corporation or
the Transferee, respectively, shall have agreed in writing to assume the
obligations of the Company under this Agreement, and for that purpose
references hereunder to "Registrable Shares" shall be deemed to include the
securities which the Holders of Registrable Shares would be entitled to
receive in exchange for Registrable Shares pursuant to any such merger,
consolidation or reorganization.
11.4. Limitations on Subsequent Registration Rights. The Company
shall not, without the prior written consent of Holders of Registrable Shares
that own an aggregate of 51% or more of the Registrable Shares then
outstanding, enter into any agreement (other than this Agreement) with any
holder or prospective holder of any securities of the Company which would
allow such holder or prospective holder to include securities of the Company
in any Demand Registration or Shelf Registration, unless under the terms of
such agreement, such holder or prospective holder may include such securities
in any such registration only to the extent that the inclusion of his, her or
its securities will not diminish the amount of Registrable Shares which may be
included.
Section 12. Amendment, Modification and Waivers; Further Assurances.
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(i) This Agreement may be amended with the consent of the Company
and the Company may take any action herein prohibited, or omit to perform any
act herein required to be performed by it, only if the Company shall have
obtained the written consent of Holders of Registrable Shares owning
Registrable Shares possessing a majority of the combined voting power of the
Registrable Shares then outstanding (voting together as a single class) to
such amendment, action or omission to act.
(ii) No waiver of any terms or conditions of this Agreement shall
operate as a waiver of any other breach of such terms and conditions or any
other term or condition, nor shall any failure to enforce any provision hereof
operate as a waiver of such provision or of any other provision hereof. No
written waiver hereunder, unless it by its own terms explicitly provides to
the contrary, shall be construed to effect a continuing waiver of the
provisions being waived and no such waiver in any instance shall constitute a
waiver in any other instance or for any other purpose or impair the right of
the party against whom such waiver is claimed in all other instances or for
all other purposes to require full compliance with such provision.
(iii) Each of the parties hereto shall execute all such further
instruments and documents and take all such further action as any other party
hereto may reasonably require in order to effectuate the terms and purposes of
this Agreement.
Section 13. Assignment. This Agreement and all of the provisions
hereof shall be binding upon and shall inure to the benefit of the parties
hereto and their respective heirs, assigns, executors, administrators or
successors; provided, however, that except as specifically provided herein
with respect to certain matters, neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned or delegated by the
Company without the prior written consent of Holders of Registrable Shares
owning Registrable Shares possessing a majority of the combined voting power
of the Registrable Shares outstanding (voting together as a single class) on
the date as of which such delegation or assignment is to become effective. A
Holder of Registrable Shares may Transfer its rights hereunder to a successor
in interest to the Registrable Shares owned by such assignor only as permitted
by Section 9. This Agreement is not intended to confer any rights or remedies
upon any Person other than the parties hereto and their permitted successors
and assigns.
Section 14. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Nevada, without regard
to the conflict of laws principles thereof.
Section 15. Notices. All notices and requests given pursuant to this
Agreement shall be in writing and shall be made by hand delivery, first class
mail (registered or certified, return receipt requested), telecopier, or
overnight courier guaranteeing next business day delivery to the relevant
address specified in Schedule 1 to this Agreement or the relevant agreement in
the form of Exhibit A whereby such party became bound by the provisions of
this Agreement. Except as otherwise provided in this Agreement, the date of
each such notice and request shall be deemed, and the date on which each such
notice and request shall be deemed given shall be: at the time delivered, if
personally delivered or mailed; when transmission is confirmed, if telecopied;
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and the next business day after timely delivery to the courier, if sent by
overnight courier guaranteeing next business day delivery.
Section 16. Entire Agreement; Integration. This Agreement supersedes
all prior agreements between or among any of the parties hereto with respect
to the subject matter contained herein, and this Agreement embodies the entire
understanding among the parties relating to such subject matter.
Section 17. Injunctive Relief. Each of the parties hereto acknowledges
that in the event of a breach by any of them of any material provision of this
Agreement, the aggrieved party may be without an adequate remedy at law. Each
of the parties therefore agrees that in the event of such a breach hereof the
aggrieved party may elect to institute and prosecute proceedings in any court
of competent jurisdiction to enforce specific performance or to enjoin the
continuing breach hereof. By seeking or obtaining any such relief, the
aggrieved party shall not be precluded from seeking or obtaining any other
relief to which it may be entitled.
Section 18. Term of Agreement. This Agreement may be terminated at any
time by a written instrument signed by the parties hereto. Unless sooner
terminated in accordance with the preceding sentence, this Agreement shall
terminate in its entirety on such date as there shall be no Registrable Shares
outstanding, provided that any shares of Common Stock previously subject to
this Agreement shall not be Registrable Shares following the sale of any such
shares in an offering registered pursuant to this Agreement.
Section 19. Section Headings. Section headings are for convenience of
reference only and shall not affect the meaning of any provision of this
Agreement.
Section 20. Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be an original, and all of which shall
together constitute one and the same instrument. All signatures need not be
on the same counterpart.
Section 21. Severability. If any provision of this Agreement shall be
invalid or unenforceable, such invalidity or unenforceability shall not affect
the validity and enforceability of the remaining provisions of this Agreement,
unless the result thereof would be unreasonable, in which case the parties
hereto shall negotiate in good faith as to appropriate amendments hereto.
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IN WITNESS WHEREOF, this Agreement has been duly entered into by
the parties hereto as of the date first written above.
ELSINORE CORPORATION
/s/Jeffrey T. Leeds
By:_________________________________
Name: Jeffrey T. Leeds
Title: President
HOLDERS OF REGISTRABLE SHARES:
MORGENS WATERFALL INCOME PARTNERS,
a New York limited partnership
By: MW Capital, L.L.C.,
a Delaware limited liability
company
Title: General Partner
/s/ Bruce Waterfall
By: ___________________________________
Name: Bruce Waterfall
Title: Managing Member
RESTART PARTNERS, L.P.,
a Delaware limited partnership
By: Prime Group, L.P.,
a Delaware limited partnership
Title: General Partner
By: Prime, Inc.,
a Delaware corporation
Title: General Partner
/s/ Bruce Waterfall
By: ________________________
Name: Bruce Waterfall
Title: President
Page 52 of 58
<PAGE>
RESTART PARTNERS II, L.P.,
a Delaware limited partnership
By: Prime Group II, L.P.,
a Delaware limited partnership
Title: General Partner
By: Prime, Inc.,
a Delaware corporation
Title: General Partner
/s/ Bruce Waterfall
By: ________________________
Name: Bruce Waterfall
Title: President
RESTART PARTNERS III, L.P.,
a Delaware limited partnership
By: Prime Group III, L.P.,
a Delaware limited partnership
Title: General Partner
By: Prime, Inc.,
a Delaware corporation
Title: General Partner
/s/ Bruce Waterfall
By: _______________________
Name: Bruce Waterfall
Title: President
RESTART PARTNERS IV, L.P.,
a Delaware limited partnership
By: Prime Group IV, L.P.,
a Delaware limited partnership
Title: General Partner
By: Prime, Inc.,
a Delaware corporation
Title: General Partner
/s/ Bruce Waterfall
By: _______________________
Name: Bruce Waterfall
Title: President
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RESTART PARTNERS V, L.P.,
a Delaware limited partnership
By: Prime Group V, L.P.,
a Delaware limited partnership
Title: General Partner
By: Prime, Inc.,
a Delaware corporation
Title: General Partner
/s/ Bruce Waterfall
By: _______________________
Name: Bruce Waterfall
Title: President
THE COMMON FUND FOR NON-PROFIT
ORGANIZATIONS,
a New York non-profit corporation
By: Morgens, Waterfall, Vintiadis &
Company, Inc.,
a New York corporation
/s/ Bruce Waterfall
By: _________________________________
Name: Bruce Waterfall
Title: President
MWV EMPLOYMENT RETIREMENT PLAN GROUP TRUST
/s/ David Ericson
By: _____________________________________
Name: David Ericson
Title: Trustee
/s/ Dan Levinson
By: _________________________________
Name: Dan Levinson
Title: Trustee
/s/ John Raphael
By: _________________________________
Name: John Raphael
Title: Trustee
/s/ Joann McNiff
By: _________________________________
Name: Joann McNiff
Title: Trustee
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/s/ Stephanie Catlett
By: ________________________________
Name: Stephanie Catlett
Title: Trustee
PHOENIX PARTNERS,
a New York limited partnership
By: MW Management, L.L.C.,
a Delaware limited liability
company
Title: General Partner
/s/ Bruce Waterfall
By: _________________________________
Name: Bruce Waterfall
Title: Managing Member
BETJE PARTNERS,
a New York limited Partnership
By: Morgens, Waterfall, Vintiadis
& Company, Inc.
its investment advisor
/s/Bruce Waterfall
By: ______________________________________
Name: Bruce Waterfall
Title: President
BEA ASSOCIATES
/s/ Misia K. Dudley
By: ______________________________________
Name: Misia K. Dudley
Title: Senior Vice President
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SCHEDULE 1
to Common Stock Registration
Rights Agreement
NAMES AND ADDRESSES FOR DELIVERY OF
NOTICES UNDER THE AGREEMENT
COMPANY
Elsinore Corporation
202 Fremont Street
Las Vegas, NV 89101
Attention: President
Telecopy number: (702) 387-5103
HOLDERS OF REGISTRABLE SECURITIES
Morgens Waterfall Income Partners
10 East 50th Street
New York, New York 10022
Attention: Bruce Waterfall
Telecopy number: (702) 838-5540
Restart Partners, L.P.
10 East 50th Street
New York, New York 10022
Attention: Bruce Waterfall
Telecopy number: (702) 838-5540
Restart Partners II, L.P.
10 East 50th Street
New York, New York 10022
Attention: Bruce Waterfall
Telecopy number: (702) 838-5540
Restart Partners III, L.P.
10 East 50th Street
New York, New York 10022
Attention: Bruce Waterfall
Telecopy number: (702) 838-5540
Restart Partners IV, L.P.
10 East 50th Street
New York, New York 10022
Attention: Bruce Waterfall
Telecopy number: (702) 838-5540
Restart Partners V, L.P.
10 East 50th Street
New York, New York 10022
Attention: Bruce Waterfall
Telecopy number: (702) 838-5540
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<PAGE>
The Common Fund for Non-Profit Organizations
c/o Morgens, Waterfall, Vintiadis & Company, Inc.
10 East 50th Street
New York, New York 10022
Attention: Bruce Waterfall
Telecopy number: (702) 838-5540
MWV Employee Retirement Plan Group Trust
10 East 50th Street
New York, New York 10022
Attention: Bruce Waterfall
Telecopy number: (702) 838-5540
Betje Partners
10 East 50th Street
New York, New York 10022
Attention: Bruce Waterfall
Telecopy number: (702) 838-5540
Phoenix Partners
10 East 50th Street
New York, New York 10022
Attention: Bruce Waterfall
Telecopy number: (702) 838-5540
BEA Associates
1 Citicorp
153 East 53rd Street, 57th Floor
New York, New York 10022
Attention: Misia Dudley
Telecopy number: (212) 759-3772 or
(212) 355-1545
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EXHIBIT A
to Common Stock Registration
Rights Agreement
AGREEMENT TO BE BOUND
BY THE COMMON STOCK REGISTRATION RIGHTS AGREEMENT
The undersigned, being the transferee of shares of the common
stock, $0.001 par value per share [or describe other capital stock received in
exchange for such common stock] (the "Registrable Shares"), of Elsinore
Corporation, a Nevada corporation (the "Company"), as a condition to the
receipt of such Registrable Shares, acknowledges that matters pertaining to
the registration of such Registrable Shares are governed by the Common Stock
Registration Rights Agreement dated as of , 1997 initially by and among the
Company and the Holders of Registrable Shares referred to therein (the
"Agreement"), and the undersigned hereby (1) acknowledges receipt of a copy of
the Agreement, and (2) agrees to be bound as a Holder of Registrable Shares by
the terms of the Agreement, as the same has been or may be amended from time
to time.
Agreed to this day of , .
*
*
* Include address for notices
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