EXHIBIT 5
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VOTING
AGREEMENT
by and among
CIRMATICA GAMING, S.A.
a Spanish corporation
THE OAK FUND,
a Cayman Islands exempted company
PECONIC FUND LTD.,
a Cayman Islands exempted company
and
OLIVETTI INTERNATIONAL S.A.,
a Luxembourg corporation
Dated: September 6, 2000
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VOTING AGREEMENT
This Voting Agreement (this "AGREEMENT") is entered into as of September
6, 2000 by and among Cirmatica Gaming, S.A., a Spanish corporation
("CIRMATICA"), Olivetti International S.A., a Luxembourg company ("OLIVETTI"),
The Oak Fund, a Cayman Islands company ("OAK") and Peconic Fund Ltd., a Cayman
Island company ("PECONIC").
RECITALS
A. Each of the Stockholders (as defined below) will own shares of
Preferred Stock (as defined below) upon the consummation of the transactions
contemplated by that certain Preferred Stock Purchase Agreement, dated as of the
date hereof, by and among the Stockholders, Ramius Securities, LLC and Autotote
Corporation, a Delaware corporation (the "COMPANY").
B. Each of Cirmatica, Olivetti, Oak and Peconic desire to enter into
this Agreement to, among other things, (i) impose certain restrictions and
obligations on the disposition of the Preferred Stock and shares of Common Stock
(as defined below) issuable upon the conversion of the Preferred Stock and (ii)
establish the voting arrangements set forth herein.
NOW, THEREFORE, in consideration of the mutual agreements contained herein
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties agree as follows:
1. CERTAIN DEFINITIONS. In addition to the terms defined elsewhere
herein, the following terms have the following meanings when used herein with
initial capital letters:
"AFFILIATE" means, with respect to any Person or entity (the "REFERENT
PERSON"), any Person or entity that controls the referent Person, any Person or
entity that the referent Person controls, or any Person or entity that is under
common control with the referent Person. For purposes of the preceding sentence,
the term "control" shall mean the power, direct or indirect, to direct or cause
the direction of the management and policies of a Person or entity through
voting securities, by contract or otherwise.
"AGREEMENT" means this Agreement, as the same may be modified,
supplemented or amended from time to time in accordance with its terms.
"BENEFICIALLY OWN" or "BENEFICIAL OWNERSHIP" means, with respect to any
securities, having "beneficial ownership" of such securities (as determined
pursuant to Rule 13d-3 under the Exchange Act), including pursuant to any
agreement, arrangement or understanding, whether or not in writing. Without
duplicative counting of the same securities by the same holder, securities
beneficially owned by a Person shall include securities beneficially owned by
all other Persons with whom such Person would constitute a "group" as described
in Section 13(d)(3) of the Exchange Act.
"BOARD" means the Board of Directors of the Company.
"CERTIFICATE OF DESIGNATIONS" means the Certificate of Designations of the
Company relating to the Preferred Stock.
"CIRMATICA" has the meaning set forth in the preamble to this Agreement.
"COMMON STOCK" means the common stock, par value $0.01 per share, of the
Company.
"COMPANY" has the meaning set forth in the preamble to this Agreement.
"COVERED SECURITIES" means (i) any and all shares (or other units) of
capital stock of the Company, including, without limitation Preferred Stock and
Common Stock, however denominated, of any class, series, issue or other type
("CLASS"), including shares of capital stock into which any such Class may be
changed, and (ii) any and all Rights with respect to any such shares of capital
stock of the Company of any Class. If, at any time, any Covered Securities of
any Class are changed into shares of capital stock of any other Class or other
securities of any Class, whether by reason of a reclassification,
reorganization, recapitalization, consolidation, merger, exchange or any other
event or transaction of any nature whatsoever, then such shares of capital stock
or other securities into which such Covered Securities are changed shall also be
"Covered Securities", and this sentence shall apply successively on each and
every occasion on which any event or transaction of any kind referred to shall
occur. If, in connection with any consolidation, merger, binding share exchange
or reorganization to which the Company is a party and in which the Company is
not the surviving or continuing corporation or any sales, conveyance, transfer
or lease to another Person of the properties and assets of the Company as an
entirety or substantially as an entirety, capital stock or other securities of
any Class of the successor or acquiring Person are issued or issuable in respect
of any Covered Securities on any Class, then such shares of capital stock or
other securities of such successor or acquiring Person shall also be "Covered
Securities." The term "Covered Securities" also includes all shares or other
appropriate units of capital stock or other securities of any Class issued as a
dividend or distribution on any other shares or other units of Covered
Securities.
"EXCHANGE ACT" means the Securities Exchange Act of 1834, as amended.
"OAK" has the meaning set forth in the preamble to this Agreement.
"OFFER" has the meaning set forth in Section 3(a) hereof.
"OFFER NOTICE" has the meaning set forth in Section 3(a) hereof.
"OFFER PRICE" has the meaning set forth in Section 3(a) hereof.
"OFFERED SECURITIES" has the meaning set forth in Section 3(a) hereof.
"OLIVETTI" has the meaning set forth in the preamble to this Agreement.
"PECONIC" has the meaning set forth in the preamble to this Agreement.
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"PERSON" means an individual, corporation, partnership, limited liability
company, association, trust and any other entity or organization.
"PREFERRED STOCK" means the Series A Convertible Preferred Stock, par
value $0.01 per share, of the Company.
"RIGHTS" means options, warrants, convertible or exchangeable securities
or other rights, however denominated, to subscribe for, purchase or otherwise
acquire any equity interest or other security of any Class, with or without
payment of additional consideration in cash or property, either immediately or
upon the occurrence of a specified date or a specified event or the satisfaction
or happening of any other condition or contingency.
"STOCKHOLDERS" means Olivetti, Cirmatica, Oak, Peconic and any Person that
becomes a party to this Agreement pursuant to Section 6 hereof.
"STOCKHOLDERS' AGREEMENT" means that certain Stockholders' Agreement,
dated as of the date hereof, by and among the Company, the Stockholders and
Ramius Securities, LLC, as the same may be modified, supplemented or amended
from time to time in accordance with its terms.
"STOCKHOLDERS' DESIGNEES" has the meaning set forth in Section 2.
"SUBSIDIARY" means, with respect to any Person, any other Person, whether
or not incorporated, of which at least 50% of the securities or interests
having, by their terms, ordinary voting power to elect members of the board of
directors, or other persons performing similar functions with respect to such
other Person, are held, directly or indirectly, by such first Person.
2. VOTING ARRANGEMENTS.
(a) BOARD OF DIRECTORS. Olivetti, Oak, and Peconic agree that Cirmatica
shall have the right to designate the Persons who will serve as the director
designees of the Stockholders pursuant to the Stockholders' Agreement and the
Certificate of Designations (the "STOCKHOLDERS' DESIGNEES"); PROVIDED that Xxxxx
Xxxxx shall be one of the Stockholders' Designees so long as the Stockholders
are entitled to designate or elect, as the case may be, two or more directors of
the Company pursuant to the Stockholders' Agreement or the Certificate of
Designations, unless (i) Oak, Peconic and their permitted assigns and Affiliates
no longer hold or beneficially own any shares of Preferred Stock or shares of
Covered Securities that were issued pursuant to the conversion or exchange of
Preferred Stock, (ii) Xxxxx Xxxxx ceases to be an associate of Peconic and their
Affiliates or (iii) Xxxxx Xxxxx is unable to serve as a director as a result of
his permanent disability or death. Cirmatica, Olivetti, Oak and Peconic agree to
vote, and cause their respective Affiliates to vote, all shares of Covered
Securities of the Company held of record or beneficially owned by them in favor
of the Stockholders' Designees for members of the Board at any meeting of
stockholders (whether annual or special and whether or not an adjourned meeting)
of the Company, or consent in lieu of any such meeting, or otherwise.
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(b) COMMITTEE DESIGNEES. Olivetti, Oak and Peconic agree that Cirmatica
shall have the right to designate the Stockholders' Designees who shall serve as
members of the committees of the Board, including the Stockholders' Designee who
shall serve as a member of the Board's nominating committee.
(c) OLIVETTI VOTING ARRANGEMENTS. For so long as Cirmatica beneficially
owns Covered Securities, Olivetti hereby agrees to vote or act by written
consent with respect to (i) the Covered Securities held of record or
beneficially owned by Olivetti at the time of such vote or action by written
consent and (ii) all Covered Securities as to which Olivetti at the time of such
vote or action by written consent has voting control, in each case, as directed
by Cirmatica in its sole and absolute discretion, including, without limitation,
all matters requiring or permitting the voting of any Covered Securities or the
granting of a consent, proxy or approval in respect of any Covered Securities,
including ordinary or extraordinary corporate actions and all matters submitted
to a stockholder vote at general or special stockholder meetings of the Company.
Olivetti further agrees not to enter into any other agreement or transaction
that is intended, or could reasonably be expected, to impede, interfere with,
delay, postpone, discourage or adversely affect Olivetti's obligations to vote
the Covered Securities as provided in this Agreement, and agrees not to enter
into any other voting agreement or voting trust or grant any proxy, consent or
approval or otherwise transfer, directly or indirectly, voting power with
respect to any Covered Securities, in each case except as provided herein.
3. RIGHT OF FIRST REFUSAL.
(a) OFFER NOTICE. Each of Olivetti, Oak and Peconic will not, and will
not permit any of their Affiliates (other than Cirmatica and its Subsidiaries)
to, sell, pledge, encumber or otherwise transfer any of the shares of Preferred
Stock, Common Stock or other Covered Securities held of record or beneficially
owned by them in accordance with Section 3 without first giving Cirmatica prior
written notice thereof, which notice shall set forth in reasonable detail the
material terms of such proposed transfer (an "OFFER NOTICE"), and the
opportunity (as hereinafter provided) to purchase such Preferred Stock and/or
Common Stock or other Covered Securities (the "OFFERED SECURITIES") at a cash
price equal to the sum of the amount of any cash plus the fair market value of
any other consideration offered by the prospective purchaser or other transferee
(the "OFFER PRICE"); PROVIDED, HOWEVER, that the rights of first refusal set
forth in this Section 3(a) shall not apply to Peconic or its Affiliates with
respect to any sales of Preferred Stock, Common Stock or other Covered
Securities made by them to PEI N.V or its designees. The Offer Notice shall
constitute an offer (the "OFFER") by Olivetti, Oak and Peconic and their
Affiliates (as applicable) to sell all, but not less than all, of the Offered
Securities at the Offer Price to Cirmatica.
(b) OFFER ACCEPTANCE. Cirmatica may accept an Offer within 15 days of
receipt of an Offer Notice. If accepted, the Offered Securities shall be
purchased within 5 days after the date of such acceptance or within five days
following the satisfaction of any governmental authority consents, or other
applicable governmental conditions, to the consummation of the purchase. If the
Offer is not accepted or the Offered Securities are not purchased as
contemplated above, Olivetti, Oak, Peconic or their Affiliates, as the case may
be, may sell the Offered Securities to
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such prospective purchaser or transferee at a price not less than the Offer
Price. If the sale to such prospective purchaser or transferee is not
consummated as contemplated above within 40 days after the expiration of the
15-day offer period or earlier irrevocable rejection of such Offer or failure to
purchase the Offered Securities after acceptance of the Offer, no sale may be
made by Olivetti, Oak, Peconic or their Affiliates, as the case may be, without
again complying with this Section 3.
(c) VALUATION. If the consideration offered by the prospective purchaser
or transferee includes non-cash consideration, Cirmatica and the other party
hereto proposing to transfer Covered Securities shall in good faith seek to
agree upon the value of such non-cash consideration. If Cirmatica and such other
party hereto fail to agree on the value of such non-cash consideration within 10
days following receipt by any party of an Offer Notice, then the items in
dispute shall be referred to a nationally recognized investment banking firm
selected jointly by Cirmatica and such other party hereto. Cirmatica and such
other party hereto shall share all expenses of such investment banking firm. The
value of any securities offered as consideration shall be the fair market value
of such securities determined on a fully distributed basis, and the value of any
property other than securities shall be the fair market value of such property.
If a determination under this Section 3(c) is required, any date for acceptance
of an Offer provided for in Section 3(b) hereof shall be postponed until the
second business day after the date of such determination. All determinations
made pursuant to this Section 3(c) shall be final and binding on the parties
hereto.
4. REPRESENTATIVES AND WARRANTIES. Each of Cirmatica, Olivetti, Oak and
Peconic represents and warrants to the other parties hereto as follows:
(a) AUTHORITY. Such party has all requisite power and authority to
execute and deliver this Agreement, to perform such party's obligations
hereunder and to consummate the transactions contemplated hereby.
(b) BINDING AGREEMENT. The execution, delivery and performance by such
party of this Agreement and the consummation of the transactions contemplated
hereby have been duly authorized by all necessary action on the part of such
party. This Agreement has been duly executed and delivered by such party and is
a legal, valid and binding obligation of such party, enforceable against it in
accordance with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and
other similar laws and equitable principles now or hereafter in effect and
affecting the rights and remedies of creditors generally.
5. FURTHER ASSURANCES.
From time to time, at the other party's request and without further
consideration, each party hereto shall execute and deliver such additional
documents and take all such further action as may be necessary or desirable to
consummate and make effective, in the most expeditious manner practicable, the
transactions contemplated by this Agreement.
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6. BINDING EFFECT; SUCCESSOR AND ASSIGNS.
The provisions of this Agreement shall be binding upon and accrue to the
benefit of the parties hereto and their respective heirs, legal representatives,
successors and, assigns. Each of the parties hereto may transfer or assign, in
whole or in part, any of its rights and obligations hereunder to any Person;
PROVIDED that such transferee executes and delivers a counterpart copy of this
Agreement thereby agreeing to be bound by the terms and provisions set forth
herein.
7. AMENDMENT.
This Agreement may be amended only by a written instrument signed by the
parties hereto.
8. APPLICABLE LAW.
The laws of the State of New York shall govern the interpretation,
validity and performance of the terms of this Agreement.
9. NOTICES.
All notices, requests, demands and other communications which are required
or may be given under this Agreement shall be in writing and shall be deemed to
have been duly given when received, if personally delivered; when transmitted,
if transmitted by telecopy, upon receipt of telephonic or electronic
confirmation; the day after it is sent, if sent for next day delivery to a
domestic address by recognized overnight delivery service (E.G., Federal
Express); and upon receipt, if sent by certified or registered mail, return
receipt requested. In each case notice shall be sent to:
(a) If to Cirmatica, addressed to:
Cirmatica Gaming, S.A.
Xxxxxx Xx Xxxxxxxxx 00, 0(0), 0x
Xxxxxxxxx, Xxxxx
Attention: Xxxxx Xxxxxxxxx Guillem
Telecopy: (00000) 00 000 0000
With a copy to:
Lottomatica S.p.A.
xxx xx Xxxxx Xxxxxx, 0
00000 Xxxx, Xxxxx
Attention: Xxxxxxx Xxxxxxxx
Telecopy: (00000) 0000000000
0
Xxxxxx & Xxxxxxx
00 Xxxxxxxxxxx
Xxxxxx XX0X 0XX
Attention: Xxxxxxx X. Xxxxxxxxx, Esq.
Telecopy: (00000) 0000000000
Xxxxxx & Xxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
Xxxxx X. Xxxxxxxx, Esq.
Telecopy: (000) 000-0000
(b) If to Olivetti, addressed to
Olivetti International S.A.
125 Avenue du X Septembre
Luxemborg
Attention: Xxxxxxx Xx Xxxx
With a copy to:
Olivetti S.p.A.
X.xxx Xxxxxxx 0
00000 Xxxxx, Xxxxx
Attention: Xxxxxx Xx Xxxx
Telecopy: (00000) 000000000
Xxxxxx & Xxxxxxx
00 Xxxxxxxxxxx
Xxxxxx XX0X 0XX
Attention: Xxxxxxx X. Xxxxxxxxx, Esq.
Telecopy: (00000) 0000000000
Xxxxxx & Xxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
Xxxxx X. Xxxxxxxx, Esq.
Telecopy: (000) 000-0000
(c) If to Oak, addressed to
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The Oak Fund
PO Box 31106 SMB, Corporate Center
West Bay Road
Grand Cayman, Cayman Islands
Attention: Xxxxx Xxxx
Telecopy: (0000) 000-0000
(d) If to Peconic, addressed to
Peconic Fund Ltd.
c/o Ramius Capital Group, LLC
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxx
Telecopy: (000) 000-0000
or at such other address as the party shall have specified by notice in writing
to the other parties in accordance with this Section 9.
10. HEADINGS.
The headings in this Agreement are for convenience of reference only and
will not control or affect the meaning or construction of any provisions hereof.
11. ENTIRE AGREEMENT.
This Agreement constitutes the entire agreement among the parties with
respect to the subject matter hereof, and supersedes all prior agreements and
understandings, both oral and written, among the parties with respect to the
subject matter hereof. This Agreement is not intended to confer upon any Person
other than the parties hereto and any permitted assigns any rights or remedies
hereunder.
12. SEVERABILITY.
The invalidity or unenforceability of any provisions of this Agreement in
any jurisdiction will not affect the validity, legality or enforceability of the
remainder of this Agreement in such jurisdiction or the validity, legality or
enforceability of this Agreement, including any such provision, in any other
jurisdiction, it being intended that all rights and obligations of the parties
hereunder will be enforceable to the fullest extent permitted by law.
13. COUNTERPARTS.
This Agreement may be executed in any number of counterparts, each of
which will be an original with the same effect as if the signatures thereto and
hereto were upon the same instrument.
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14. REMEDIES.
The parties hereby acknowledge and agree that money damages would not be
adequate compensation for the damages that a party would suffer by reason of a
breach of this Agreement or a failure of any other party to perform any of its
obligations under this Agreement. Therefore, each party hereto agrees that in
addition to and without limiting any other remedy or right it may have, the
non-breaching part will have the right to an injunction, temporary restraining
order or other equitable relief in any court of competent jurisdiction enjoining
any such breach and enforcing specifically the terms and provisions hereof.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties have executed this Voting Agreement as of
the date first above written.
OLIVETTI INTERNATIONAL S.A.
By: /s/ Xxxxx X. Xxxxxxxx
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Name: Xxxxx X. Xxxxxxxx
Title: Attorney-in-Fact
CIRMATICA GAMING, S.A.
By: /s/ Xxxxxxx Siambati
-------------------------------------
Name: Xxxxxxx Siambati
Title: Chairman
THE OAK FUND
By: /s/ Xxxxx Xxxx
-------------------------------------
Name: Xxxxx Xxxx
Title: Director
PECONIC FUND LTD.
By: /s/ Xxxxx X. Xxxxx
-------------------------------------
Name: Xxxxx X. Xxxxx
Title: Principal
