Exhibit 4.3
INTERNATIONAL GAME TECHNOLOGY
ZERO-COUPON CONVERTIBLE DEBENTURES DUE 2033
REGISTRATION RIGHTS AGREEMENT
January 29, 2003
Xxxxxxx, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
International Game Technology, a Nevada corporation (the "Company"),
proposes to issue and sell to the Purchaser (as defined herein) upon the terms
set forth in the Purchase Agreement (as defined herein) its Zero-Coupon
Convertible Debentures due 2033 (the "Securities"). As an inducement to the
Purchaser to enter into the Purchase Agreement and in satisfaction of a
condition to the obligations of the Purchaser thereunder, the Company agrees
with the Purchaser for the benefit of Holders (as defined herein) from time to
time of the Registrable Securities (as defined herein) as follows:
1. Definitions.
(a) Capitalized terms used herein without definition shall have the
meanings ascribed to them in the Purchase Agreement. As used in this Agreement,
the following defined terms shall have the following meanings:
"Act" or "Securities Act" means the United States Securities Act of 1933,
as amended.
"Affiliate" of any specified person means any other person which, directly
or indirectly, is in control of, is controlled by, or is under common control
with such specified person. For purposes of this definition, control of a person
means the power, direct or indirect, to direct or cause the direction of the
management and policies of such person whether by contract or otherwise; and the
terms "controlling" and "controlled" have meanings correlative to the foregoing.
"Applicable Amount" means, with respect to each $1,000 principal amount at
maturity of Securities, the Accreted Value (as defined in the Indenture) plus
accrued and unpaid cash interest, if any, through the date of determination, or,
following a Tax
Event (as defined in the Indenture), the Restated Principal Amount (as defined
in the Indenture), or, with respect to Securities that have been converted to
Common Stock pursuant to the Indenture, such sum calculated as if such
Securities had not been so converted.
"Closing Date" means the First Time of Delivery as defined in the Purchase
Agreement.
"Commission" means the United States Securities and Exchange Commission, or
any other federal agency at the time administering the Exchange Act or the
Securities Act, whichever is the relevant statute for the particular purpose.
"Common Stock" means the Company's common stock, par value $.000625 per
share.
"DTC" means The Depository Trust Company.
"Effectiveness Period" has the meaning assigned thereto in Section 2(b)(i)
hereof.
"Effective Time" means the time at which the Commission declares the Shelf
Registration Statement effective or at which the Shelf Registration Statement
otherwise becomes effective.
"Electing Holder" has the meaning assigned thereto in Section 3(a)(iii)
hereof.
"Exchange Act" means the United States Securities Exchange Act of 1934, as
amended.
"Holder" means any person that is the record owner of Registrable
Securities (and includes any person that has a beneficial interest in any
Registrable Security in book-entry form).
"Indenture" means the Indenture, dated as of January 29, 2003, between the
Company and The Bank of New York, as amended and supplemented from time to time
in accordance with its terms.
"Liquidated Damages" has the meaning assigned thereto in Section 7(a)
hereof.
"Managing Underwriters" means the investment banker or investment bankers
and manager or managers that shall administer an underwritten offering, if any,
conducted pursuant to Section 6 hereof.
"NASD Rules" means the Rules of the National Association of Securities
Dealers, Inc., as amended from time to time.
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"Notice and Questionnaire" means a Notice of Registration Statement and
Selling Securityholder Questionnaire substantially in the form of Appendix A
hereto.
The term "person" means an individual, partnership, corporation, trust or
unincorporated organization, or a government or agency or political subdivision
thereof.
"Prospectus" means the prospectus (including, without limitation, any
preliminary prospectus, any final prospectus and any prospectus that discloses
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A under the Act) included in the
Shelf Registration Statement, as amended or supplemented by any prospectus
supplement with respect to the terms of the offering of any portion of the
Registrable Securities covered by the Shelf Registration Statement and by all
other amendments and supplements to such prospectus, including all material
incorporated by reference in such prospectus and all documents filed after the
date of such prospectus by the Company under the Exchange Act and incorporated
by reference therein.
"Purchase Agreement" means the purchase agreement, dated as of January 24,
2003, between the Purchaser and the Company relating to the Securities.
"Purchaser" means Xxxxxxx, Sachs & Co.
"Registrable Securities" means all or any portion of the Securities issued
from time to time under the Indenture in registered form and the shares of
Common Stock issuable upon conversion of such Securities; provided, however,
that a security ceases to be a Registrable Security when it is no longer a
Restricted Security.
"Registration Default" has the meaning assigned thereto in Section 7(a)
hereof.
"Restricted Security" means any Security or share of Common Stock issuable
upon conversion thereof except any such Security or share of Common Stock that
(i) has been effectively registered under the Securities Act and sold in a
manner contemplated by the Shelf Registration Statement, (ii) has been
transferred in compliance with Rule 144 under the Securities Act (or any
successor provision thereto) or is transferable pursuant to paragraph (k) of
such Rule 144 (or any successor provision thereto) or (iii) has otherwise been
transferred and a new Security or share of Common Stock not subject to transfer
restrictions under the Securities Act has been delivered by or on behalf of the
Company in accordance with Section 2.7(f) of the Indenture or (iv) ceases to be
outstanding.
"Rules and Regulations" means the published rules and regulations of the
Commission promulgated under the Securities Act or the Exchange Act, as in
effect at any relevant time.
"Shelf Registration" means a registration effected pursuant to Section 2
hereof.
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"Shelf Registration Statement" means a "shelf" registration statement filed
under the Securities Act providing for the registration of, and the sale on a
continuous or delayed basis by the Holders of, all of the Registrable Securities
pursuant to Rule 415 under the Securities Act and/or any similar rule that may
be adopted by the Commission, filed by the Company pursuant to the provisions of
Section 2 of this Agreement, including the Prospectus contained therein, any
amendments and supplements to such registration statement, including
post-effective amendments, and all exhibits and all material incorporated by
reference in such registration statement.
"Suspension Period" has the meaning specified in Section 2(c) hereof.
"Trust Indenture Act" means the Trust Indenture Act of 1939, or any
successor thereto, and the rules, regulations and forms promulgated thereunder,
as the same shall be amended from time to time.
The term "underwriter" means any underwriter of Registrable Securities in
connection with an offering thereof under a Shelf Registration Statement.
(b) Wherever there is a reference in this Agreement to a percentage of the
"principal amount at maturity" of Registrable Securities or to a percentage of
Registrable Securities, Common Stock shall be treated as representing the
principal amount at maturity of Securities that would have been surrendered for
conversion or exchange as of that date of determination in order to receive such
number of shares of Common Stock.
2. Shelf Registration.
(a) The Company shall, no later than 90 calendar days following the Closing
Date, file with the Commission a Shelf Registration Statement relating to the
offer and sale of the Registrable Securities by the Electing Holders from time
to time in accordance with the methods of distribution elected by such Holders
and, thereafter, shall use its reasonable best efforts to cause such Shelf
Registration Statement to be declared effective under the Act no later than 180
calendar days following the Closing Date; provided, however, that the Company
may, upon written notice to all Electing Holders, postpone having the Shelf
Registration Statement declared effective for a reasonable period not to exceed
90 days if the Company possesses material non-public information, the disclosure
of which would have a material adverse effect on the Company and its
subsidiaries taken as a whole or would impede the consummation of a proposed or
pending material business transaction; provided, further, however, that no
Holder shall be entitled to be named as a selling securityholder in the Shelf
Registration Statement or to use the Prospectus forming a part thereof for
resales of Registrable Securities unless such Holder is an Electing Holder.
(b) The Company shall use its reasonable best efforts:
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(i) to keep the Shelf Registration Statement continuously effective,
supplemented and amended as required by the provisions of Section 3(j)
hereto, in order to permit the Prospectus forming a part thereof to be
usable by Electing Holders until the earliest of (1) the sale of all
Registrable Securities of Electing Holders registered under the Shelf
Registration Statement; (2) the expiration of the period referred to in
Rule 144(k) of the Act with respect to all Registrable Securities held by
Persons that are not Affiliates of the Company; (3) two years from the last
date of original issuance of any Registrable Securities; and (4) the date
when there are no Registrable Securities outstanding (such period being
referred to herein as the "Effectiveness Period"); and
(ii) if at any time the Securities, pursuant to Article X of the
Indenture, are convertible into securities other than Common Stock, to
cause, or to cause any successor under the Indenture to cause, such
securities to be included in the Shelf Registration Statement no later than
the date on which the Securities may then be convertible into such
securities.
The Company shall be deemed not to have used its reasonable best efforts to keep
the Shelf Registration Statement effective during the Effectiveness Period if
the Company voluntarily takes any action that would result in Holders of
Registrable Securities covered thereby not being able to offer and sell any of
such Registrable Securities during that period, unless such action is (A)
required by applicable law and the Company thereafter promptly complies with the
requirements of paragraph 3(j) below or (B) permitted pursuant to Section 2(c)
below.
(c) The Company may suspend the use of the Prospectus for a period not to
exceed 45 days in any 90-day period or an aggregate of 90 days in any 12-month
period, during the period beginning on the issue date and ending on or prior to
the second anniversary of the last issue date of any Debentures (each, a
"Suspension Period") if the Board of Directors of the Company shall have
determined in good faith that because of valid business reasons (not including
avoidance of the Company's obligations hereunder), including the acquisition or
divestiture of assets, pending corporate developments and similar events, it is
in the best interests of the Company to suspend such use, and prior to
suspending such use the Company provides the Electing Holders with written
notice of such suspension, which notice need not specify the nature of the event
giving rise to such suspension.
3. Registration Procedures. In connection with the Shelf Registration
Statement, the following provisions shall apply:
(a)(i) Not less than 30 calendar days prior to the Effective Time of the
Shelf Registration Statement, the Company shall mail the Notice and
Questionnaire to the Holders of Registrable Securities. Holders of Registrable
Securities shall have at least 20 calendar days from the date on which the
Notice and Questionnaire is first mailed to such Holders to return a completed
and signed Notice and Questionnaire to the
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Company. The Company shall take action to name each Holder that is a
Electing Holder as of the date that is five business days prior to the
effectiveness of the Shelf Registration Statement as a selling
securityholder in the Shelf Registration Statement at the time of its
effectiveness so that such Holder is permitted to deliver the Prospectus
forming a part thereof as of such time to purchasers of such Holder's
Registrable Securities in accordance with applicable law. The Company shall
not be required to take any action to name any Holder as a selling
securityholder in the Shelf Registration Statement or to enable any Holder
to use the Prospectus forming a part thereof for resales of Registrable
Securities unless such Holder has returned a completed and signed Notice
and Questionnaire to the Company by the deadline set forth herein prior to
the Effective Time or after the Effective Time as specified below.
(ii) After the Effective Time of the Shelf Registration Statement, the
Company shall, upon the request of any Holder of Registrable Securities
that is not then an Electing Holder, promptly send a Notice and
Questionnaire to such Holder. From and after the Effective Time of the
Shelf Registration Statement, the Company shall (A) as promptly as is
practicable after the date a completed and signed Notice and Questionnaire
is delivered to the Company, and in any event within five Business Days
after such date, prepare and file with the Commission (x) a supplement to
the Prospectus or, if required by applicable law, a post-effective
amendment to the Shelf Registration Statement and (y) any other document
required by applicable law, so that the Holder delivering such Notice and
Questionnaire is named as a selling securityholder in the Shelf
Registration Statement and is permitted to deliver the Prospectus to
purchasers of such Holder's Registrable Securities in accordance with
applicable law, and (B) if the Company shall file a post-effective
amendment to the Shelf Registration Statement, use its reasonable best
efforts to cause such post-effective amendment to become effective under
the Securities Act as promptly as is practicable; provided, however, that
if a Notice and Questionnaire is delivered to the Company during a
Suspension Period, the Company shall not be obligated to take the actions
set forth in this clause (ii) until the termination of such suspension
period; and provided, further, that any supplements or amendments that
solely list an additional Electing Holder need not be submitted for prior
review of counsel to Electing Holders under Section 3(c) below.
(iii) The term "Electing Holder" shall mean any Holder of Registrable
Securities that has returned a completed and signed Notice and
Questionnaire to the Company in accordance with Section 3(a)(i) or 3(a)(ii)
hereof.
(b) The Company shall furnish to one counsel for the Electing Holders,
prior to the Effective Time, a copy of the Shelf Registration Statement
initially filed with the Commission, and shall furnish to Electing Holders upon
request, prior to the filing thereof with the Commission, copies of each
amendment thereto and each amendment or supplement, if any, to the Prospectus
included therein, and shall use its reasonable
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best efforts to reflect in each such document, at the Effective Time or when so
filed with the Commission, as the case may be, such comments as such Holders and
their counsel reasonably may propose.
(c) The Company shall promptly take such action as may be necessary so that
(i) each of the Shelf Registration Statement and any amendment thereto and the
Prospectus forming a part thereof and any amendment or supplement thereto (and
each report or other document incorporated therein by reference in each case)
complies in all material respects with the Securities Act and the Exchange Act
and the respective rules and regulations thereunder, (ii) each of the Shelf
Registration Statement and any amendment thereto does not, when it becomes
effective, contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein misleading and (iii) each of the Prospectus forming a part of the Shelf
Registration Statement, and any amendment or supplement to such Prospectus, does
not at any time during the Effectiveness Period include an untrue statement of a
material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
(d) The Company shall promptly advise each Electing Holder:
(i) when a Shelf Registration Statement and any amendment thereto has
been filed with the Commission and when a Shelf Registration Statement or
any post-effective amendment thereto has become effective, in each case
making a public announcement thereof by release made to Dow Xxxxx &
Company, Inc., Bloomberg Business News or PR Newswire;
(ii) of any request by the Commission for amendments or supplements to
the Shelf Registration Statement or the Prospectus included therein or for
additional information;
(iii) of the issuance by the Commission of any stop order suspending
the effectiveness of the Shelf Registration Statement or the initiation of
any proceedings for such purpose;
(iv) of the receipt by the Company of any notification with respect to
the suspension of the qualification of the securities included in the Shelf
Registration Statement for sale in any jurisdiction or the initiation of
any proceeding for such purpose; and
(v) of the happening of any event or the existence of any state of
facts that requires the making of any changes in the Shelf Registration
Statement or the Prospectus included therein so that, as of such date, such
Shelf Registration
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Statement and Prospectus do not contain an untrue statement of a material
fact and do not omit to state a material fact required to be stated therein
or necessary to make the statements therein (in the case of the Prospectus,
in light of the circumstances under which they were made) not misleading
(which advice shall be accompanied by an instruction to such Holders to
suspend the use of the Prospectus until the requisite changes have been
made which notice need not specify the nature of the event giving rise to
such suspension).
(e) The Company shall use its reasonable best efforts to prevent the
issuance, and if issued to obtain the withdrawal at the earliest possible time,
of any order suspending the effectiveness of the Shelf Registration Statement.
(f) The Company shall furnish to each Electing Holder, upon their request,
without charge, at least one copy of the Shelf Registration Statement and all
post-effective amendments thereto, including financial statements and schedules,
and, if such Electing Holder so requests in writing, all reports, other
documents and exhibits that are filed with or incorporated by reference in the
Shelf Registration Statement.
(g) The Company shall, during the Effectiveness Period, deliver to each
Electing Holder, without charge, as many copies of the Prospectus (including
each preliminary Prospectus) included in the Shelf Registration Statement and
any amendment or supplement thereto as such Electing Holder may reasonably
request; and the Company consents (except during a Suspension Period or during
the continuance of any event described in Section 3(d)(v) above) to the use of
the Prospectus and any amendment or supplement thereto by each of the Electing
Holders in connection with the offering and sale of the Registrable Securities
covered by the Prospectus and any amendment or supplement thereto during the
Effectiveness Period.
(h) Prior to any offering of Registrable Securities pursuant to the Shelf
Registration Statement, the Company shall (i) register or qualify or cooperate
with the Electing Holders and their counsel in connection with the registration
or qualification of such Registrable Securities for offer and sale under the
securities or "blue sky" laws of such jurisdictions within the United States as
any Electing Holder may reasonably request, (ii) keep such registrations or
qualifications in effect and comply with such laws so as to permit the
continuance of offers and sales in such jurisdictions for so long as may be
necessary to enable any Electing Holder or underwriter, if any, to complete its
distribution of Registrable Securities pursuant to the Shelf Registration
Statement, and (iii) take any and all other actions necessary or advisable to
enable the disposition in such jurisdictions of such Registrable Securities;
provided, however, that in no event shall the Company be obligated to (A)
qualify as a foreign corporation or as a dealer in securities in any
jurisdiction where it would not otherwise be required to so qualify but for this
Section 3(h) or (B) file any general consent to service of process or subject
itself to taxation in any jurisdiction where it is not as of the date hereof so
subject.
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(i) Unless any Registrable Securities shall be in book-entry only form, the
Company shall cooperate with the Electing Holders to facilitate the timely
preparation and delivery of certificates representing Registrable Securities to
be sold pursuant to the Shelf Registration Statement, which certificates, if so
required by any securities exchange upon which any Registrable Securities are
listed, shall be penned, lithographed or engraved, or produced by any
combination of such methods, on steel engraved borders, and which certificates
shall be free of any restrictive legends and in such permitted denominations and
registered in such names as Electing Holders may request in connection with the
sale of Registrable Securities pursuant to the Shelf Registration Statement.
(j) Upon the occurrence of any fact or event contemplated by paragraph
3(d)(v) above, subject to Section 2(c) hereof, the Company shall promptly
following such occurrence prepare, file (and have declared effective) a
post-effective amendment to any Shelf Registration Statement or an amendment or
supplement to the related Prospectus included therein or file any other document
with the Commission so that, as thereafter delivered to purchasers of the
Registrable Securities, the Prospectus will not include an untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading. If the Company notifies the Electing Holders of the
occurrence of any fact or event contemplated by paragraph 3(d)(v) above or of a
Suspension Period, the Electing Holder shall suspend the use of the Prospectus
until the requisite changes to the Prospectus have been made.
(k) Not later than the Effective Time of the Shelf Registration Statement,
the Company shall provide a CUSIP number for the Registrable Securities that are
debt securities.
(l) The Company shall use its reasonable best efforts to comply with all
applicable Rules and Regulations, and to make generally available to its
securityholders as soon as practicable, but in any event not later than eighteen
months after (i) the effective date (as defined in Rule 158(c) under the
Securities Act) of the Shelf Registration Statement, (ii) the effective date of
each post-effective amendment to the Shelf Registration Statement, and (iii) the
date of each filing by the Company with the Commission of an Annual Report on
Form 10-K that is incorporated by reference in the Shelf Registration Statement,
an earning statement of the Company and its subsidiaries complying with Section
11(a) of the Securities Act and the rules and regulations of the Commission
thereunder (including, at the option of the Company, Rule 158).
(m) Not later than the Effective Time of the Shelf Registration Statement,
the Company shall cause the Indenture to be qualified under the Trust Indenture
Act; in connection with such qualification, the Company shall cooperate with the
Trustee under the Indenture and the Holders (as defined in the Indenture) to
effect such changes to the Indenture as may be required for such Indenture to be
so qualified in accordance
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with the terms of the Trust Indenture Act; and the Company shall execute, and
shall use all reasonable efforts to cause the Trustee to execute, all documents
that may be required to effect such changes and all other forms and documents
required to be filed with the Commission to enable such Indenture to be so
qualified in a timely manner. In the event that any such amendment or
modification referred to in this Section 3(m) involves the appointment of a new
trustee under the Indenture, the Company shall appoint a new trustee thereunder
pursuant to the applicable provisions of the Indenture.
(n) In the event of an underwritten offering conducted pursuant to Section
6 hereof, the Company shall, if requested, promptly include or incorporate in a
Prospectus supplement or post-effective amendment to the Shelf Registration
Statement such information as the Managing Underwriters and the Company
reasonably agree should be included therein and shall make all required filings
of such Prospectus supplement or post-effective amendment as soon as practicable
after it is notified of the matters to be included or incorporated in such
Prospectus supplement or post-effective amendment.
(o) The Company shall enter into such customary agreements (including an
underwriting agreement in customary form in the event of an underwritten
offering conducted pursuant to Section 6 hereof (which will include lock-up
agreements only if the Company so agrees) and take all other appropriate action
in order to expedite and facilitate the registration and disposition of the
Registrable Securities, and in connection therewith, if an underwriting
agreement is entered into, cause the same to contain indemnification provisions
and procedures substantially identical to those set forth in Section 5 hereof
with respect to all parties to be indemnified pursuant to Section 5 hereof.
(p) The Company shall:
(i) (A) subject to the provisions of this paragraph, make reasonably
available for inspection during normal business hours by the Electing
Holders, any underwriter participating in any disposition pursuant to the
Shelf Registration Statement, and any attorney or accountant or other agent
retained by such Electing Holders or any such underwriter all relevant
financial and other records, pertinent corporate documents and properties
of the Company and its subsidiaries, and (B) cause the Company's officers,
directors and employees to supply all information reasonably requested by
such Electing Holders or any such underwriter, attorney or accountant or
agent in connection with the Shelf Registration Statement, in each case, as
is customary for similar due diligence examinations; provided, however,
that all records, information and documents that are designated by the
Company, in good faith, as confidential shall be kept confidential by such
Electing Holders and any such underwriter, attorney or accountant or agent,
unless such disclosure is made in connection with a court proceeding or
required by law, or such records, information or documents
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become available to the public generally or through a third party without
an accompanying obligation of confidentiality and the Company may request
that the Electing Holders agree in writing to maintain the confidentiality
of information obtained in such due diligence examination; and provided,
further, that, such inspection and information gathering shall be
coordinated on behalf of the Electing Holders and the other parties
entitled thereto by one counsel designated by and on behalf of the Electing
Holders and other parties;
(ii) in connection with any underwritten offering conducted pursuant
to Section 6 hereof, make such representations and warranties to the
Electing Holders participating in such underwritten offering and to the
Managing Underwriters, in form, substance and scope as are customarily made
by the Company to underwriters in primary underwritten offerings of equity
and convertible debt securities and covering matters including, but not
limited to, those set forth in the Purchase Agreement;
(iii) in connection with any underwritten offering conducted pursuant
to Section 6 hereof, obtain opinions of counsel to the Company (which
counsel and opinions (in form, scope and substance) shall be reasonably
satisfactory to the Managing Underwriters) addressed to each Electing
Holder participating in such underwritten offering and the underwriters,
covering such matters as are customarily covered in opinions requested in
primary underwritten offerings of equity and convertible debt securities
and such other matters as may be reasonably requested by such Electing
Holders and underwriters (it being agreed that the matters to be covered by
such opinions shall include, without limitation, as of the date of the
opinion and as of the Effective Time of the Shelf Registration Statement or
most recent post-effective amendment thereto, as the case may be, the
absence from the Shelf Registration Statement and the Prospectus, including
the documents incorporated by reference therein, of an untrue statement of
a material fact or the omission of a material fact required to be stated
therein or necessary to make the statements therein (in the case of the
Prospectus, in light of the circumstances under which they were made) not
misleading;
(iv) in connection with any underwritten offering conducted pursuant
to Section 6 hereof, obtain "cold comfort" letters and updates thereof from
the independent public accountants of the Company (and, if necessary, from
the independent public accountants of any subsidiary of the Company or of
any business acquired by the Company for which financial statements and
financial data are, or are required to be, included in the Shelf
Registration Statement), addressed to each Electing Holder participating in
such underwritten offering (if
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such Electing Holder has provided such letter, representations or
documentation, if any, required by the accountants for such "cold comfort"
letter to be so addressed) and the underwriters, in customary form and
covering matters of the type customarily covered in "cold comfort" letters
in connection with primary underwritten offerings;
(v) in connection with any underwritten offering conducted pursuant to
Section 6 hereof, deliver such documents and certificates as are customary
and may be reasonably requested by counsel to the Electing Holders
participating in such underwritten offering and the Managing Underwriters,
if any, including, without limitation, certificates to evidence compliance
with Section 3(j) hereof and with any conditions contained in the
underwriting agreement or other agreements entered into by the Company.
(q) The Company will use its best efforts to cause the Common Stock
issuable upon conversion of the Securities to be listed on the New York Stock
Exchange or other stock exchange or trading system on which the Common Stock
primarily trades on or prior to the Effective Time of the Shelf Registration
Statement hereunder.
(r) In the event that any broker-dealer registered under the Exchange Act
shall be an "affiliate" (as defined in Rule 2720(b)(1) of the NASD Rules (or any
successor provision thereto)) of the Company or has a "conflict of interest" (as
defined in Rule 2720(b)(7) of the NASD Rules (or any successor provision
thereto)) and such broker-dealer shall underwrite, participate as a member of an
underwriting syndicate or selling group or assist in the distribution of any
Registrable Securities covered by the Shelf Registration Statement, whether as a
Holder of such Registrable Securities or as an underwriter, a placement or sales
agent or a broker or dealer in respect thereof, or otherwise, the Company shall
assist such broker-dealer in complying with the requirements of the NASD Rules,
including, without limitation, by (A) engaging a "qualified independent
underwriter" (as defined in Rule 2720(b)(15) of the NASD Rules (or any successor
provision thereto)) to participate in the preparation of the registration
statement relating to such Registrable Securities, to exercise usual standards
of due diligence in respect thereto and to recommend the public offering price
of such Registrable Securities, (B) indemnifying such qualified independent
underwriter to the extent of the indemnification of underwriters provided in
Section 5 hereof, and (C) providing such information to such broker-dealer as
may be required in order for such broker-dealer to comply with the requirements
of the NASD Rules.
(s) The Company shall use its reasonable best efforts to take all other
steps necessary to effect the registration, offering and sale of the Registrable
Securities covered by the Shelf Registration Statement contemplated hereby.
4. Registration Expenses. Except as otherwise provided in Section 3, the
Company shall bear all fees and expenses incurred in connection with the
performance
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of its obligations under Sections 2, 3 and 6 hereof and shall bear or reimburse
the Electing Holders for the reasonable fees and disbursements of a single
counsel selected by a plurality of all Electing Holders who own an aggregate of
not less than 25% of the aggregate principal amount at maturity of the
Registrable Securities covered by the Shelf Registration Statement, or
designated by the Purchaser if Electing Holders have not so designated, to act
as counsel for all the Electing Holders in connection therewith. Each Electing
Holder shall pay all underwriting discounts and commissions and transfer taxes,
if any, relating to the sale or disposition of such Electing Holder's
Registrable Securities pursuant to the Shelf Registration Statement.
5. Indemnification and Contribution.
(a) Indemnification by the Company. Upon the registration of the
Registrable Securities pursuant to Section 2 hereof, the Company shall indemnify
and hold harmless each Electing Holder and each underwriter, if any, and each of
their respective officers and directors and each person who controls such
Electing Holder or underwriter within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act (each such person being
sometimes referred to as an "Indemnified Person") against any losses, claims,
damages or liabilities, joint or several, to which such Indemnified Person may
become subject under the Securities Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon an untrue statement or alleged untrue statement of a material
fact contained in any Shelf Registration Statement under which such Registrable
Securities are to be registered under the Securities Act, or any Prospectus
contained therein or furnished by the Company to any Indemnified Person, or any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, and the Company hereby
agrees to reimburse such Indemnified Person for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such action or claim as such expenses are incurred; provided, however, that the
Company shall not be liable to any such Indemnified Person in any such case to
the extent that any such loss, claim, damage or liability arises out of or is
based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in such Shelf Registration Statement or Prospectus, or
amendment or supplement, in reliance upon and in conformity with written
information furnished to the Company by such Indemnified Person expressly for
use therein; and provided, further, that the Company shall not be liable for
loss, claim, damage or expense (1) arising from any offer or sale of Registrable
Securities during a Suspension Period of which the Electing Holder has received
notice, or (2) if the Electing Holder fails to deliver, within the time required
by the Securities Act, a Prospectus that is amended or supplemented, and such
Prospectus, as amended or supplemented, would have corrected the untrue
statement or omission or alleged untrue statement or omission of a material fact
contained in the Prospectus delivered
13
by the Electing Holder, so long as the Prospectus, as amended or supplemented,
has been delivered to such Holder prior to such time.
(b) Indemnification by the Electing Holders and any Agents and
Underwriters. Each Electing Holder agrees, as a consequence of the inclusion of
any of such Electing Holder's Registrable Securities in such Shelf Registration
Statement, and each underwriter, selling agent or other securities professional,
if any, which facilitates the disposition of Registrable Securities shall agree,
as a consequence of facilitating such disposition of Registrable Securities,
severally and not jointly, to (i) indemnify and hold harmless the Company, its
directors, officers who sign any Shelf Registration Statement and each person,
if any, who controls the Company within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act, against any losses, claims,
damages or liabilities to which the Company or such other persons may become
subject, under the Securities Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon an untrue statement or alleged untrue statement of a material fact
contained in such Shelf Registration Statement or Prospectus, or any amendment
or supplement, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company by such Electing
Holder, underwriter, selling agent or other securities professional expressly
for use therein, and (ii) reimburse the Company for any legal or other expenses
reasonably incurred by the Company in connection with investigating or defending
any such action or claim as such expenses are incurred.
(c) Notices of Claims, Etc. Promptly after receipt by an indemnified party
under subsection (a) or (b) above of notice of the commencement of any action,
such indemnified party shall, if a claim in respect thereof is to be made
against an indemnifying party under this Section 5, notify such indemnifying
party in writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability under subsection (a)
or (b) above except to the extent it has been materially prejudiced by such
failure, or any liability, which it may have to any indemnified party otherwise
than under the indemnification provisions of or contemplated by subsection (a)
or (b) above. In no event shall the indemnifying party be liable for the fees
and expenses of more than one counsel (other than local counsel) for all
indemnified parties in connection with any one action or separate but similar
actions in the same jurisdiction arising out of the same general allegations or
circumstances. In case any such action shall be brought against Holders, such
counsel shall be designated by a plurality of all such Holders who own an
aggregate of not less than 25% of the aggregate principal amount at maturity of
Registrable Securities. In case any such action shall be brought against any
indemnified party and it shall notify an indemnifying party of the commencement
thereof, such indemnifying party shall be
14
entitled to participate therein and, to the extent that it shall wish,
jointly with any other indemnifying party similarly notified, to assume the
defense thereof, with counsel reasonably satisfactory to such indemnified party
(who shall not, except with the consent of the indemnified party, be counsel to
the indemnifying party), and, after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, such
indemnifying party shall not be liable to such indemnified party under this
Section 5 for any legal expenses of other counsel or any other expenses, in each
case subsequently incurred by such indemnified party, in connection with the
defense thereof other than reasonable costs of investigation. No indemnifying
party shall, without the written consent of the indemnified party, effect the
settlement or compromise of, or consent to the entry of any judgment with
respect to, any pending or threatened action or claim in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified party is an actual or potential party to such action or claim)
unless such settlement, compromise or judgment (i) includes an unconditional
release of the indemnified party from all liability arising out of such action
or claim and (ii) does not include a statement as to, or an admission of, fault,
culpability or a failure to act, by or on behalf of any indemnified party.
(d) Contribution. If the indemnification provided for in this Section 5 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative fault of the indemnifying party and the indemnified party in connection
with the statements or omissions which resulted in such losses, claims, damages
or liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative fault of such indemnifying party and
indemnified party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact relates to information supplied by
such indemnifying party or by such indemnified party, and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The parties hereto agree that it would not be just
and equitable if contribution pursuant to this Section 5(d) were determined by
pro rata allocation (even if the Electing Holders or any underwriters, selling
agents or other securities professionals or all of them were treated as one
entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to in this Section 5(d).
The amount paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred to above
shall be deemed to include any legal or other fees or expenses reasonably
incurred by such indemnified party in connection with investigating or defending
any such action or claim. 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
15
misrepresentation. The obligations of the Electing Holders and any underwriters,
selling agents or other securities professionals in this Section 5(d) to
contribute shall be several in proportion to the percentage of principal amount
at maturity of Registrable Securities registered or underwritten, as the case
may be, by them and not joint.
(e) Notwithstanding any other provision of this Section 5, in no event will
any (i) Electing Holder be required to undertake liability to any person under
this Section 5 for any amounts in excess of the dollar amount of the proceeds to
be received by such Holder from the sale of such Holder's Registrable Securities
(after deducting any fees, discounts and commissions applicable thereto)
pursuant to any Shelf Registration Statement under which such Registrable
Securities are to be registered under the Securities Act and (ii) underwriter,
selling agent or other securities professional be required to undertake
liability to any person hereunder for any amounts in excess of the discount,
commission or other compensation payable to such underwriter, selling agent or
other securities professional with respect to the Registrable Securities
underwritten by it and distributed to the public.
(f) The obligations of the Company under this Section 5 shall be in
addition to any liability which the Company may otherwise have to any
Indemnified Person and the obligations of any Indemnified Person under this
Section 5 shall be in addition to any liability which such Indemnified Person
may otherwise have to the Company. The remedies provided in this Section 5 are
not exclusive and shall not limit any rights or remedies which may otherwise be
available to an indemnified party at law or in equity.
6. Underwritten Offering. Any Holder of Registrable Securities who desires
to do so may sell Registrable Securities (in whole or in part) in an
underwritten offering; provided that (i) the Electing Holders of at least
33-1/3% in aggregate principal amount at maturity of the Registrable Securities
then covered by the Shelf Registration Statement shall request such an offering)
and (ii) at least $150 million aggregate principal amount at maturity of such
Registrable Securities shall be included in such offering; and provided,
further, that the Company shall not be obligated to cooperate with more than one
underwritten offering during the Effectiveness Period. Upon receipt of such a
request, the Company shall provide all Holders of Registrable Securities written
notice of the request, which notice shall inform such Holders that they have the
opportunity to participate in the offering. In any such underwritten offering,
the investment banker or bankers and manager or managers that will administer
the offering will be selected by, and the underwriting arrangements with respect
thereto (including the size of the offering) will be approved by, the holders of
a majority of the Registrable Securities to be included in such offering;
provided, however, that such investment bankers and managers and underwriting
arrangements must be reasonably satisfactory to the Company. No Holder may
participate in any underwritten offering contemplated hereby unless (a) such
Holder agrees to sell such Holder's Registrable Securities to be included in the
underwritten offering in accordance with any approved underwriting arrangements,
(b) such Holder completes and executes all reasonable
16
questionnaires, powers of attorney, indemnities, underwriting agreements,
lock-up letters and other documents required under the terms of such approved
underwriting arrangements, and (c) if such Holder is not then an Electing
Holder, such Holder returns a completed and signed Notice and Questionnaire to
the Company in accordance with Section 3(a)(ii) hereof within a reasonable
amount of time before such underwritten offering. The Holders participating in
any underwritten offering shall be responsible for any underwriting discounts
and commissions and fees and, subject to Section 4 hereof, expenses of their own
counsel. The Company shall pay all expenses customarily borne by issuers in an
underwritten offering, including but not limited to filing fees, the fees and
disbursements of its counsel and independent public accountants and any printing
expenses incurred in connection with such underwritten offering. Notwithstanding
the foregoing or the provisions of Section 3(n) hereof, upon receipt of a
request from the Managing Underwriter or a representative of holders of a
majority of the Registrable Securities to be included in an underwritten
offering to prepare and file an amendment or supplement to the Shelf
Registration Statement and Prospectus in connection with an underwritten
offering, the Company may delay the filing of any such amendment or supplement
for up to 90 days if the Board of Directors of the Company shall have determined
in good faith that the Company has a bona fide business reason for such delay.
7. Liquidated Damages.
(a) Notwithstanding any postponement of the effectiveness pursuant to
Section 2(a) hereof, if (i) on or prior to the 90th day following the Closing
Date, a Shelf Registration Statement has not been filed with the Commission,
(ii) on or prior to the 180th day following the Closing Date, such Shelf
Registration Statement is not declared effective by the Commission or (iii) if,
after the effectiveness date of the Shelf Registration Statement, (x) the Shelf
Registration Statement ceases to be effective or usable for the offer and sale
of Registrable Securities (other than due to a Suspension Period), and the
Company fails to file (and have declared effective), within 10 Business Days, a
post-effective amendment to the Shelf Registration Statement or amendment or
supplement to the Prospectus contained therein or such other document with the
Commission to make the Shelf Registration Statement effective or such Prospectus
usable, or (y) Suspension Periods exceed 45 days, whether or not consecutive, in
any 90-day period, or more than 90 days, whether or not consecutive, during any
12-month period during the Effectiveness Period (each, a "Registration
Default"), the Company shall be required to pay liquidated damages ("Liquidated
Damages"), from and including the day following such Registration Default until
such Registration Default is cured, at a rate per annum equal to one-quarter of
one percent (0.25%) of the Applicable Amount, to and including the 90th day
following such Registration Default and one-half of one percent (0.50%) of the
Applicable Amount from and after the 91st day following such Registration
Default.
17
(b) If a Holder has converted some or all of its Securities into Common
Stock, the Holder will be entitled to receive equivalent amounts of Liquidated
Damages based on the principal amount at maturity of the Securities converted. A
Holder will not be entitled to Liquidated Damages unless it has provided all
information requested by the Notice and Questionnaire prior to the date of the
Registration Default, if the date of the Registration Default is after the
deadline for the return of the Notice and Questionnaire.
(c) Any amounts to be paid as Liquidated Damages pursuant to paragraphs (a)
of this Section 7 shall be paid in cash semi-annually in arrears, with the first
semi-annual payment due on the first January 29 or July 29, as applicable,
following the date on which such Liquidated Damages begin to accrue.
(d) Except as provided in Section 8(b) hereof, the Liquidated Damages as
set forth in this Section 7 shall be the exclusive monetary remedy available to
the Holders of Registrable Securities for such Registration Default. In no event
shall the Company be required to pay Liquidated Damages in excess of the
applicable maximum amount of one-half of one percent (0.50%) set forth above,
regardless of whether one or multiple Registration Defaults exist.
8. Miscellaneous.
(a) Other Registration Rights. The Company may grant registration rights
that would permit any person that is a third party the right to piggy-back on
any shelf registration statement, provided that if the Managing Underwriter of
any underwritten offering conducted pursuant to Section 6 hereof notifies the
Company and the Electing Holders that the total amount of securities which the
Electing Holders and the holders of such piggy-back rights intend to include in
any Shelf Registration Statement is so large as to materially threaten the
success of such offering (including the price at which such securities can be
sold), then the amount, number or kind of securities to be offered for the
account of holders of such piggy-back rights will be reduced to the extent
necessary to reduce the total amount of securities to be included in such
offering to the amount, number and kind recommended by the Managing Underwriter
prior to any reduction in the amount of Registerable Securities to be included
in such Shelf Registration Statement.
(b) Specific Performance. The parties hereto acknowledge that there would
be no adequate remedy at law if the Company fails to perform any of its
obligations hereunder and that the Purchaser and the Holders from time to time
may be irreparably harmed by any such failure, and accordingly agree that the
Purchaser and such Holders, in addition to any other remedy to which they may be
entitled at law or in equity and without limiting the remedies available to the
Electing Holders under Section 7 hereof, shall, at any time the Securities are
convertible into Common Stock, be entitled to compel specific performance of the
obligations of the Company under this Registration Rights Agreement in
accordance with the terms and conditions of this
18
Registration Rights Agreement, in any court of the United States or any State
thereof having jurisdiction.
(c) Amendments and Waivers. This Agreement, including this Section 8(c),
may be amended, and waivers or consents to departures from the provisions hereof
may be given, only by a written instrument duly executed by the Company and the
holders of a majority in aggregate principal amount at maturity of Registrable
Securities then outstanding. Each Holder of Registrable Securities outstanding
at the time of any such amendment, waiver or consent or thereafter shall be
bound by any amendment, waiver or consent effected pursuant to this Section
8(c), whether or not any notice, writing or marking indicating such amendment,
waiver or consent appears on the Registrable Securities or is delivered to such
Holder.
(d) Notices. All notices and other communications provided for or permitted
hereunder shall be given as provided in the Indenture.
(e) Parties in Interest. The parties to this Agreement intend that all
Holders of Registrable Securities shall be entitled to receive the benefits of
this Agreement and that any Electing Holder shall be bound by the terms and
provisions of this Agreement by reason of such election with respect to the
Registrable Securities which are included in a Shelf Registration Statement. All
the terms and provisions of this Agreement shall be binding upon, shall inure to
the benefit of and shall be enforceable by the respective successors and assigns
of the parties hereto and any Holder from time to time of the Registrable
Securities to the aforesaid extent.
(f) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(g) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(h) Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
(i) Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstances, is held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and of
the remaining provisions hereof shall not be in any way impaired or affected
thereby, it being intended that all of the rights and privileges of the parties
hereto shall be enforceable to the fullest extent permitted by law.
19
(j) Survival. The respective indemnities, agreements, representations,
warranties and other provisions set forth in this Agreement or made pursuant
hereto shall remain in full force and effect, regardless of any investigation
(or any statement as to the results thereof) made by or on behalf of any
Electing Holder, any director, officer or partner of such Holder, any agent or
underwriter, any director, officer or partner of such agent or underwriter, or
any controlling person of any of the foregoing, and shall survive the transfer
and registration of the Registrable Securities of such Holder.
20
Please confirm that the foregoing correctly sets forth the agreement
between the Company and you.
Very truly yours,
International Game Technology
By: /s/ Xxxxxxx X. Xxxxxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Executive Vice President
and Chief Financial Officer
Accepted as of the date hereof:
/s/ Xxxxxxx, Xxxxx & Co.
-----------------------------------
(Xxxxxxx, Sachs & Co.)
21
APPENDIX A
INTERNATIONAL GAME TECHNOLOGY
INSTRUCTION TO DTC PARTICIPANTS
(Date of Mailing)
URGENT - IMMEDIATE ATTENTION REQUESTED
DEADLINE FOR RESPONSE: [DATE]
The Depository Trust Company ("DTC") has identified you as a DTC
Participant through which beneficial interests in Zero-Coupon Convertible
Debentures due 2033 (the "Securities") of International Game Technology (the
"Company") are held.
The Company is in the process of registering the Securities under the
Securities Act of 1933 for resale by the beneficial owners thereof. In order to
have their Securities included in the registration statement, beneficial owners
must complete and return the enclosed Notice of Registration Statement and
Selling Securityholder Questionnaire.
It is important that beneficial owners of the Securities receive a copy of
the enclosed materials as soon as possible as their rights to have the
Securities included in the registration statement depend upon their returning
the Notice and Questionnaire by [DEADLINE FOR RESPONSE]. Please forward a copy
of the enclosed documents to each beneficial owner that holds interests in the
Securities through you. If you require more copies of the enclosed materials or
have any questions pertaining to this matter, please contact [NAME, ADDRESS AND
TELEPHONE NUMBER OF CONTACT AT THE ISSUER].
INTERNATIONAL GAME TECHNOLOGY
Notice of Registration Statement
and
Selling Securityholder Questionnaire
[DATE]
International Game Technology (the "Company") has filed with the United
States Securities and Exchange Commission (the "Commission") a registration
statement on Form S-3 (the "Shelf Registration Statement") for the registration
and resale under Rule 415 of the United States Securities Act of 1933, as
amended (the "Securities Act"), of the Company's Zero-Coupon Convertible
Debentures due 2033 (the "Securities") and the shares of common stock, par value
$.000625 per share (the "Common Stock"), issuable upon conversion thereof, in
accordance with the Registration Rights Agreement, dated as of January 29, 2003
(the "Registration Rights Agreement"), between the Company and the purchasers
named therein. A copy of the Registration Rights Agreement is attached hereto.
All capitalized terms not otherwise defined herein shall have the meanings
ascribed thereto in the Registration Rights Agreement.
In order to have Registrable Securities included in the Shelf Registration
Statement (or a supplement or amendment thereto), this Notice of Registration
Statement and Selling Securityholder Questionnaire ("Notice and Questionnaire")
must be completed, executed and delivered to the Company at the address set
forth herein for receipt ON OR BEFORE [DEADLINE FOR RESPONSE]. Beneficial owners
of Registrable Securities who do not complete, execute and return this Notice
and Questionnaire by such date (i) will not be named as selling securityholders
in the Shelf Registration Statement and (ii) may not use the Prospectus forming
a part thereof for resales of Registrable Securities.
Certain legal consequences arise from being named as a selling
securityholder in the Shelf Registration Statement and related Prospectus.
Accordingly, holders and beneficial owners of Registrable Securities are advised
to consult their own securities law counsel regarding the consequences of being
named or not being named as a selling securityholder in the Shelf Registration
Statement and related Prospectus.
The term "Registrable Securities" is defined in the Registration Rights
Agreement to mean all or any portion of the Securities issued from time to time
under the Indenture in registered form and the shares of Common Stock issuable
upon conversion of such Securities; provided, however, that a security ceases to
be a Registrable Security when it is no longer a Restricted Security.
The term "Restricted Security" is defined in the Registration Rights
Agreement to mean any Security or share of Common Stock issuable upon conversion
thereof except any such Security or share of Common Stock which (i) has been
effectively registered under the Securities Act and sold in a manner
contemplated by the Shelf Registration Statement, or (ii) has been transferred
in compliance with Rule 144 under the Securities Act (or any successor provision
thereto) or is transferable pursuant to paragraph (k) of such Rule 144 (or any
successor provision thereto), (iii) has otherwise been transferred and a new
Security or share of Common Stock not subject to transfer restrictions under the
Securities Act has been delivered by or on behalf of the Company in accordance
with Section 2.7(f) of the Indenture, or (iv) ceases to be outstanding.
ELECTION
The undersigned holder (the "Selling Securityholder") of Registrable
Securities hereby elects to include in the Shelf Registration Statement the
Registrable Securities beneficially owned by it and listed below in Item (3).
The undersigned, by signing and returning this Notice and Questionnaire, agrees
to be bound with respect to such Registrable Securities by the terms and
conditions of this Notice and Questionnaire and the Registration Rights
Agreement, including, without limitation, Section 5 of the Registration Rights
Agreement, as if the undersigned Selling Securityholder were an original party
thereto.
Upon any sale of Registrable Securities pursuant to the Shelf Registration
Statement, the Selling Securityholder will be required to deliver to the Company
and the Trustee the Notice of Transfer (completed and signed) set forth in
Exhibit 1 to this Notice and Questionnaire.
The Selling Securityholder hereby provides the following information to the
Company and represents and warrants that such information is accurate and
complete:
QUESTIONNAIRE
(1) (a) Full Legal Name of Selling Securityholder:
-----------------------------------------------------------------------
(b) Full Legal Name of Registered Holder (if not the same as in (a) above)
of Registrable Securities Listed in Item (3) Below:
-----------------------------------------------------------------------
(c) Full Legal Name of DTC Participant (if applicable and if not the same
as (b) above) Through Which Registrable Securities Listed in Item (3)
Below are Held:
-----------------------------------------------------------------------
(2) Address for Notices to Selling Securityholder:
---------------------------------------
---------------------------------------
---------------------------------------
Telephone:
---------------------------------------
Fax:
---------------------------------------
Contact Person:
---------------------------------------
(3) Beneficial Ownership of Securities:
Except as set forth below in this Item (3), the undersigned Selling
Securityholder does not beneficially own any Securities or shares of
Common Stock issued upon conversion, repurchase or redemption of any
Securities.
(a) Principal amount at maturity of Registrable Securities (as defined in
the Registration Rights Agreement) beneficially owned:
----------------
CUSIP No(s). of such Registrable Securities:
--------------------------
Number of shares of Common Stock (if any) issued upon conversion,
repurchase or redemption of Registrable Securities:
-------------------
(b) Principal amount at maturity of Securities other than Registrable
Securities beneficially owned:
-----------------------------------------------------------------------
CUSIP No(s). of such other Securities:
--------------------------------
Number of shares of Common Stock (if any) issued upon conversion of
such other Securities:
------------------------------------------------
(c) Principal amount at maturity of Registrable Securities which the
undersigned wishes to be included in the Shelf Registration Statement:
-----------------------------------------------------------------------
CUSIP No(s). of such Registrable Securities to be included in the
Shelf Registration Statement:
-----------------------------------------
Number of shares of Common Stock (if any) issued upon conversion of
Registrable Securities which are to be included in the Shelf
Registration Statement:
-----------------------------------------------
(4) Beneficial Ownership of Other Securities of the Company:
Except as set forth below in this Item (4), the undersigned Selling
Securityholder is not the beneficial or registered owner of any shares
of Common Stock or any other securities of the Company, other than the
Securities and shares of Common Stock listed above in Item (3).
State any exceptions here:
(5) Relationships with the Company:
Except as set forth below, neither the Selling Securityholder nor any
of its affiliates, officers, directors or principal equity holders (5%
or more) has held any position or office or has had any other material
relationship with the Company (or its predecessors or affiliates)
during the past three years.
State any exceptions here:
(6) Nature of the Selling Securityholder:
(a) Is the Selling Securityholder a reporting company under the Securities
Exchange Act, a majority owned subsidiary of a reporting company under
the Securities Exchange Act, or a registered investment company under
the Investment Company Act, and if so, please state which one.
If the entity is a majority owned subsidiary of a reporting company,
identify the majority stockholder that is a reporting company.
If the entity is not any of the above, identify the natural person or
persons having voting and investment control over the Company's
securities that the entity owns.
(b) Is the Selling Securityholder is a registered broker-dealer. Yes ____
No ____
State whether the Selling Securityholder received the Registrable
Securities as compensation for underwriting activities and, if so,
provide a brief description of the transaction(s) involved.
State whether the Selling Securityholder is an affiliate of a
broker-dealer and if so, list the name(s) of the broker-dealer
affiliate(s).
Yes ____ No ____
IF THE ANSWER IS "YES," YOU MUST ANSWER THE FOLLOWING:
If the Selling Securityholder is an affiliate of a registered
broker-dealer, the Selling Securityholder purchased the Registrable
Securities (i) in the ordinary course of business and (ii) at the time
of the purchase of the Registrable Securities, had no agreements or
understandings, directly or indirectly, with any person to distribute
the Registrable Securities.
Yes ____ No ____
If the answer is "No", state any exceptions here:
IF THE ANSWER IS "NO," THIS MAY AFFECT YOUR ABILITY TO BE
INCLUDED IN THE REGISTRATION STATEMENT.
(7) Plan of Distribution:
Except as set forth below, the undersigned Selling Securityholder
intends to distribute the Registrable Securities listed above in Item
(3) only as follows (if
at all): Such Registrable Securities may be sold from time to time
directly by the undersigned Selling Securityholder or, alternatively,
through underwriters, broker-dealers or agents. Such Registrable
Securities may be sold in one or more transactions at fixed prices, at
prevailing market prices at the time of sale, at varying prices
determined at the time of sale, or at negotiated prices. Such sales
may be effected in transactions (which may involve crosses or block
transactions) (i) on any national securities exchange or quotation
service on which the Registrable Securities may be listed or quoted at
the time of sale, (ii) in the over-the-counter market, (iii) in
transactions otherwise than on such exchanges or services or in the
over-the-counter market, or (iv) through the writing of options. In
connection with sales of the Registrable Securities or otherwise, the
Selling Securityholder may enter into transactions with
broker-dealers, which may in turn engage in short sales of the
Registrable Securities in the course of hedging the positions they
assume. The Selling Securityholder may also sell Registrable
Securities short and deliver Registrable Securities to close out such
short positions, or loan or pledge Registrable Securities to
broker-dealers that in turn may sell such securities.
State any exceptions here:
Note: In no event may such method(s) of distribution take the form of an
underwritten offering of the Registrable Securities except as provided in the
Registration Rights Agreement or otherwise not commercially unreasonable.
By signing below, the Selling Securityholder acknowledges that it
understands its obligation to comply, and agrees that it will comply, with the
prospectus delivery and other provisions of the Securities Act and the Exchange
Act and the rules and regulations thereunder, particularly Regulation M.
In the event that the Selling Securityholder transfers all or any portion
of the Registrable Securities listed in Item (3) above after the date on which
such information is provided to the Company, the Selling Securityholder agrees
to notify the transferee(s) at the time of the transfer of its rights and
obligations under this Notice and Questionnaire and the Registration Rights
Agreement.
By signing below, the Selling Securityholder consents to the disclosure of
the information contained herein in its answers to Items (1) through (6) above
and the inclusion of such information in the Shelf Registration Statement and
related Prospectus. The Selling Securityholder understands that such information
will be relied upon by the Company in connection with the preparation of the
Shelf Registration Statement and related Prospectus.
In accordance with the Selling Securityholder's obligation under Section
3(a) of the Registration Rights Agreement to provide such information as may be
required by law for inclusion in the Shelf Registration Statement, the Selling
Securityholder agrees to promptly notify the Company of any inaccuracies or
changes in the information provided herein which may occur subsequent to the
date hereof at any time while the Shelf Registration Statement remains in
effect. All notices hereunder and pursuant to the Registration Rights Agreement
shall be made in writing, by hand-delivery, first-class mail, or air courier
guaranteeing overnight delivery as follows:
(i) To the Company:
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(ii) With a copy to:
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Once this Notice and Questionnaire is executed by the Selling
Securityholder and received by the Company, the terms of this Notice and
Questionnaire, and the representations and warranties contained herein, shall be
binding on, shall inure to the benefit of and shall be enforceable by the
respective successors, heirs, personal representatives, and assigns of the
Company and the Selling Securityholder (with respect to the Registrable
Securities beneficially owned by such Selling Securityholder and listed in Item
(3) above). This Agreement shall be governed in all respects by the laws of the
State of New York.
IN WITNESS WHEREOF, the undersigned, by authority duly given, has caused
this Notice and Questionnaire to be executed and delivered either in person or
by its duly authorized agent.
Dated:
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Selling Securityholder
(Print/type full legal name of beneficial owner of Registrable Securities)
By:
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Name:
Title:
PLEASE RETURN THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE FOR RECEIPT ON
OR BEFORE [DEADLINE FOR RESPONSE] TO THE COMPANY AT:
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EXHIBIT 1
TO APPENDIX A
NOTICE OF TRANSFER PURSUANT TO REGISTRATION STATEMENT
International Game Technology
[address]
Attention: [GENERAL COUNSEL]
[NAME OF TRUSTEE]
[ADDRESS OF TRUSTEE]
Attention: [CORPORATE TRUST SERVICES]
Re: International Game Technology (the "Company")
Zero-Coupon Convertible Debentures due 2033 (the "Securities")
Dear Sirs:
Please be advised that _____________________ has transferred $___________
aggregate principal amount at maturity of the above-referenced Securities or
shares of the Company's common stock, issued upon conversion of Securities,
pursuant to an effective Registration Statement on Form S-3 (File No. 333-____)
filed by the Company.
We hereby certify that the prospectus delivery requirements, if any, of the
Securities Act of 1933, as amended, have been satisfied with respect to the
transfer described above and that the above-named beneficial owner of the
Securities or common stock is named as a selling securityholder in the
Prospectus dated [DATE], or in amendments or supplements thereto, and that the
aggregate principal amount at maturity of the Securities or number of shares of
common stock transferred are a portion of the Securities or shares of common
stock listed in such Prospectus as amended or supplemented opposite such owner's
name.
Dated:
Very truly yours,
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(Name)
By: ________________________
(Authorized Signature)
