Exhibit 10.10
EXECUTION VERSION
VOTING AGREEMENT
VOTING AGREEMENT, dated as of May
20, 2005 (this “ Agreement ”), by and among
Trump Entertainment Resorts, Inc., a Delaware corporation formerly
known as Trump Hotels & Casino Resorts, Inc. (the “
Company ”), and the Stockholders (as hereinafter
defined).
R E C I T A
L S :
WHEREAS, on November 21, 2004, the
Company and certain of its subsidiaries (collectively, the “
Debtors ”) filed voluntary petitions under Chapter 11
of Title 11 of the United States Code, 11 U.S.C. §§
101-1330, in the United States Bankruptcy Court for the District of
New Jersey (the “ Bankruptcy Court ”), under
Case Nos. 04-46898 through 04-46925 (J.H.W);
WHEREAS, on April 5, 2005, by
written order, the Bankruptcy Court confirmed the Debtors’
Second Amended Joint Plan of Reorganization, dated as of March 30,
2005 (the “ Plan ”);
WHEREAS, the Plan contemplates a
reorganization of the Debtors involving, among other things, an
investment in the equity of the Company and Trump Entertainment
Resorts Holdings, L.P., a Delaware limited partnership formerly
known as Trump Hotels & Casino Resorts Holdings, L.P. (the
“ Partnership ”), pursuant to that certain
Amended and Restated Investment Agreement, dated as of May 20, 2005
(the “ Investment Agreement ”), by and among the
Company, the Partnership and Donald J. Trump (the “
Investor ”);
WHEREAS, pursuant to the Plan and
the Investment Agreement, the Stockholders received (i) Class A
Partnership Interests and/or Class B Partnership Interests (as each
such term is defined in the Investment Agreement), (ii) shares of
Common Stock (the “ Common Stock ”) and Class B
Common Stock (the “ Class B Common Stock ” and,
together with the Common Stock, the “ Capital Stock
”), each with a par value of $0.01 per share, of the Company
and (iii) a warrant to purchase shares of Common Stock;
WHEREAS, the Class A Partnership
Interests and the Class B Partnership Interests are exchangeable
for shares of Common Stock as provided in the Amended Exchange
Rights Agreement (as defined in the Investment
Agreement);
WHEREAS, pursuant to the Amended and
Restated Certificate of Incorporation (as defined in the Investment
Agreement), subject to certain conditions, the holders of Common
Stock and Class B Common Stock, voting together as a single class,
shall have the exclusive right to vote for, among other things, the
election of directors of the Company; and
WHEREAS, the Stockholders and the
Company desire to promote their mutual interests by agreeing to
certain matters relating to the operations of the Company and the
voting of shares of capital stock in the Company;
NOW, THEREFORE, in consideration of
the foregoing premises and the mutual covenants and agreements set
forth in this Agreement, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto, each intending to be legally
bound, hereby agree as follows:
ARTICLE I.
DEFINED TERMS
Section 1.1. Definitions . In
addition to the terms defined elsewhere in this Agreement, as used
herein, the following terms shall have the respective meanings
below:
“ Affiliate ”
shall mean, with respect to any specified Person, any other Person
that directly, or indirectly through one or more intermediaries,
controls, is controlled by, or is under common control with, such
specified Person. For the purposes of this definition, “
control ” of a Person shall mean the possession,
directly or indirectly, of the power to direct or cause the
direction of its management or policies, whether through the
ownership of voting securities, by contract or
otherwise.
“ Board ” shall
mean the Board of Directors of the Company.
“ CEO Nomination Period
” shall mean, at any time during the Class A Nomination
Period, any time that the then serving Chief Executive Officer of
the Company is not also then serving as a director of the
Company.
“ Class A Directors
” shall mean, (a) the five (5) initial members of the Board
designated as “Class A Directors” designated pursuant
to Section 5.04 of the Plan and (b) at any given time thereafter,
five (5) individuals designated by a majority of the Class A
Directors serving as directors of the Company at such
time.
“ Class A Nomination
Period ” shall mean the period commencing on the date
hereof and ending on the earlier of (a) the day immediately
following the date on which the sixth annual meeting of
stockholders of the Company following the date hereof shall be held
and (b) such time as the stockholders of the Company shall fail to
elect the Investor to the Board (provided that the Investor has
voted all shares of Capital Stock Owned by him to elect the
Investor to the Board).
“ Independent ”
shall mean, with respect to any director of the Company, an
individual who shall be independent from the Company under
applicable law and stock exchange and securities market
rules.
“ Investor Nomination
Period ” shall mean the period commencing on the date
hereof and ending on the date of any termination of the Services
Agreement by the Company and the Partnership pursuant to Section
2.1(b)(ii) thereof.
“ Owns ”, “
Own ”, “ Owned ” or “
Owning ” shall mean, with respect to the Capital
Stock, beneficial ownership, assuming the conversion of all
outstanding securities convertible into or exchangeable for shares
of Capital Stock and the exercise of all outstanding options,
warrants and other rights to acquire shares of Capital
Stock.
“ Person ” shall
mean any individual, partnership (general or limited), corporation,
limited liability company, association, joint stock company, trust,
joint venture, unincorporated organization or other
entity.
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“ Services Agreement
” shall mean that certain Services Agreement, dated as of the
date hereof, by and among the Investor, the Company and the
Partnership, as amended from time to time.
“ Stockholders ”
shall mean those stockholders of the Company set forth on
Exhibit A hereto, together with their respective successors
and assigns.
ARTICLE II.
BOARD OF DIRECTORS
Section 2.1. Nomination of
Directors .
(a) Subject to applicable law and
stock exchange and securities market rules, during the Class A
Nomination Period, the Company shall take all such action as may be
necessary to cause the nomination for election as directors of the
Company the Class A Directors. The initial Class A Directors shall
be Edward H. D’Alelio, Cezar M. Froelich, Morton H. Handel,
Michael Kramer and James B. Perry. Such initial Class A Directors
shall serve in, and be divided among, Class I, Class II and Class
III of the Board as provided in the Amended and Restated
Certificate of Incorporation.
(b) Subject to applicable law and
stock exchange and securities market rules, during the Investor
Nomination Period, so long as the Stockholders Own, in the
aggregate:
(i) not less than 7.5% of the
outstanding shares of Common Stock, the Company shall take all such
action as may be necessary to cause the nomination for election as
directors of the Company three (3) individuals designated by the
Investor one of whom shall be the Investor and one of whom shall be
Independent;
(ii) not less than 5% and less than
7.5% of the outstanding shares of Common Stock, the Company shall
take all such action as may be necessary to cause the nomination
for election as directors of the Company two (2) individuals
designated by the Investor one of whom shall be the Investor and
one of whom shall be Independent; or
(iii) less than 5% of the
outstanding shares of Common Stock and the Services Agreement shall
have not been terminated at such time, the Company shall take all
such action as may be necessary to cause the Investor to be
nominated for election as a director of the Company.
Each of such one, two or three nominees of the
Investor (including himself) designated pursuant to this Section
2.1(b) , as the case may be, shall hereinafter be referred to
as an “ Investor Board Member ”. The initial
Investor Board Members shall be the Investor, Wallace B. Askins and
Don M. Thomas. Such initial Investor Board Members shall serve in,
and be divided among, Class I, Class II and Class III of the Board
as provided in the Amended and Restated Certificate of
Incorporation.
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(c) Subject to applicable law and
stock exchange and securities market rules, during the Investor
Nomination Period, so long as the Stockholders Own, in the
aggregate, not less than 5% of the outstanding shares of Common
Stock, the Company shall take all such action as may be necessary
to cause the nomination for election as a director of the Company
one (1) individual (the “ Mutual Board Member ”)
who shall be acceptable to the Investor; provided ,
however , that, in the event that at any time during the
Class A Nomination Period the Stockholders shall Own, in the
aggregate, less than 5% of the outstanding shares of Common Stock,
the Mutual Board Member shall be acceptable to a majority of the
Class A Directo
