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EXHIBIT 2.4
SUBSCRIPTION AND REORGANIZATION AGREEMENT
This SUBSCRIPTION AND REORGANIZATION AGREEMENT (this "Agreement") is made
as of April 29, 1999, by and among (i) Horseshoe Gaming Holding Corp., a
Delaware corporation (the "Corporation"), (ii) Horseshoe Gaming, L.L.C., a
Delaware limited liability company ("HG L.L.C."), (iii) Xxxxxxxx Property Group,
Inc., a Nevada corporation ("RPGI"), (iv) each of the individuals and trusts
listed on Annex A hereto, which are all of the members of HG L.L.C. that are
eligible to be stockholders of a corporation that elects to be treated as an "S
corporation" for federal income tax purposes (each, a "Subscriber" and
collectively, the "Subscribers"), (v) each of the individuals listed on Annex B
hereto, who are all of the stockholders of Horseshoe Gaming, Inc. (the "HGI
Stockholders"), (vi) Peri Xxxx Xxxxxx, in her capacity as the sole stockholder
of RPGI (in such capacity, the "RPGI Stockholder"), (vii) Horseshoe Gaming,
Inc., a Nevada corporation ("HGI"), and (viii) each successor or assignee of a
member of HG L.L.C. that is not currently eligible to be a stockholder of an S
corporation but who subsequently becomes eligible to be a stockholder of an S
corporation.
R E C I T A L S :
A. The authorized capital stock of the Corporation consists of 50,000
shares of common stock, par value $0.01 per share (the "Common
Stock"), which is divided into two classes as follows: (a) 40,000
shares of Common Stock designated as Class A Common (the "Class A
Common"); and (b) 10,000 shares of Common Stock designated as Class
B Common (the "Class B Common").
B. Except with respect to matters provided for in that certain
Stockholders Agreement for Horseshoe Gaming Holding Corp. dated as
of even date herewith by and among the Corporation and the
signatories thereto, a copy of which is attached as Exhibit 3C
hereto (the "Stockholders Agreement") (as to which matters holders
of Class A Common and Class B Common shall each be entitled to one
vote per share), holders of Class A Common shall be entitled to one
vote per share on all matters to be voted on by the stockholders of
the Corporation, and holders of Class B Common shall be entitled to
five (5) votes per share on all matters to be voted on by the
stockholders of the Corporation. The rights of holders of Class A
Common and Class B Common are set forth in the Corporation's
Certificate of Incorporation, a copy of which is attached hereto as
Exhibit A (the "Certificate of Incorporation"). A copy of the Bylaws
of the Corporation is attached hereto as Exhibit B (the "Bylaws").
C. HG L.L.C. is governed by that certain Limited Liability Company
Agreement of Horseshoe Gaming, L.L.C. dated as of October 1, 1995,
as amended, among the Members thereof (the "LLC Agreement").
Capitalized terms used herein without definition shall have the
respective meanings given to such terms in the LLC Agreement.
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D. Each Subscriber owns the number of Units of HG L.L.C. set forth next
to its name on Annex A attached hereto (with respect to each
Subscriber, such Subscriber's "Contribution Units").
E. Each Subscriber desires to contribute all of its Contribution Units
to the Corporation, and the Corporation desires to accept the
contribution of all such Contribution Units from each such
Subscriber, solely in consideration of the issuance to such
Subscriber of the number and class of shares of Common Stock set
forth next to its name on Annex A attached hereto (with respect to
each Subscriber, such Subscriber's "Subscribed Shares") and on the
terms and subject to the conditions set forth herein.
F. Each HGI Stockholder owns, beneficially and of record, the number of
shares of common stock of HGI ("HGI Stock") set forth next to its
name on Annex B attached hereto (with respect to each HGI
Stockholder, such HGI Stockholder's "HGI Shares").
G. Each HGI Stockholder desires to transfer all of its HGI Shares to
the Corporation, and the Corporation desires to acquire all such HGI
Shares from each such HGI Stockholder, solely in consideration of
the number and class of shares of Common Stock set forth next to its
name on Annex B attached hereto (with respect to each HGI
Stockholder, such HGI Stockholder's "Subscribed Shares") and on the
terms and subject to the conditions set forth herein.
H. The Corporation intends to elect to be treated as an "S corporation"
for federal income tax purposes and requires the consent of all of
its stockholders to make such election.
I. RPGI and the Corporation have deemed it advisable and in the best
interests of each of them and their respective stockholders to
effect the tax-free merger of RPGI with and into the Corporation
pursuant to this Agreement and the applicable provisions of the laws
of the State of Delaware and the State of Nevada (the "Merger"), and
in furtherance thereof, have approved the Merger;
J. At the effective time of the Merger, the RPGI Stockholder will
deliver to the Corporation all of her shares of RPGI common stock
("RPGI Stock") solely in exchange for the number and class of shares
of Common Stock set forth next to the RPGI Stockholder's name on
Annex A attached hereto (RPGI's "Subscribed Shares"), on the terms
and subject to the conditions set forth herein.
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NOW, THEREFORE, in consideration of the mutual promises made herein and
intending to be legally bound, and for good and valuable consideration, the
receipt and adequacy of which is hereby acknowledged, the parties hereto hereby
agree as follows:
1. Recitals. The Recitals set forth above are hereby incorporated herein.
2. Authorization and Closing of Contribution of Contribution Units;
Transfer of Common Stock; Amendment of Limited Liability Company Agreement of HG
L.L.C.; Effect of Merger.
2A. Authorization of the Issuance of the Common Stock. The
Corporation has authorized the issuance and transfer to each Subscriber of the
number of Subscribed Shares set forth opposite the name of such Subscriber on
Annex A (including the Subscribed Shares issuable to the RPGI Stockholder
pursuant to the Merger), and to each HGI Stockholder of the number of Subscribed
Shares set forth opposite the name of such HGI Stockholder on Annex B. Such
Subscribed Shares shall have the rights and preferences set forth in the
Certificate of Incorporation.
2B. The Merger.
(a) Constituent Corporations. The name, address and jurisdiction of
organization of each of the corporations that are a party to the Merger are as
follows:
Name Address Jurisdiction
---- ------- ------------
Horseshoe Gaming Holding Corp. 0000 Xxxxx Xxxxxxxxxx Xxxx Xxxxxxxx
Xxx Xxxxx, XX 00000
Xxxxxxxx Property Group, Inc. 0000 Xxxxx Xxxxxxxxxx Xxxx Xxxxxx
Xxx Xxxxx, XX 00000
(b) Delivery and Filing of Certificate of Merger and Articles of
Merger. RPGI and the Corporation will cause a Certificate of Merger to be
signed, verified and filed with the Secretary of State of the State of Delaware
and will cause Articles of Merger to be signed, verified and filed with the
Secretary of State of the State of Nevada (collectively with the Certificate of
Merger to be filed with the Secretary of State of the State of Delaware, the
"Certificates of Merger") and stamped receipt copies of each such filing to be
delivered to the Corporation on the Closing Date (as defined herein).
(c) Effective Time of the Merger. At the time as of which the Merger
becomes effective, which RPGI and the Corporation contemplate shall occur on the
Closing Date (the "Effective Time of the Merger"), and subject to the terms and
conditions of this Agreement and the
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applicable provisions of the Delaware General Corporation Law (the "DGCL") and
the laws of the State of Nevada, RPGI shall be merged with and into the
Corporation in accordance with the Certificates of Merger, the separate
existence of RPGI shall cease and the Corporation shall be the surviving party
in the Merger (the "Surviving Corporation"). At the Effective Time of the
Merger, the effect of the Merger otherwise shall be as provided in the
applicable provisions of the DGCL and the laws of the State of Nevada. Without
limiting the generality of the foregoing, and subject thereto, at the Effective
Time of the Merger, all the property, rights, privileges, powers and franchises
of RPGI shall vest in the Surviving Corporation, and all debts, liabilities and
duties of RPGI shall become the debts, liabilities and duties of the Surviving
Corporation. The Merger will be effected in a single transaction.
(d) Certificate of Incorporation, Bylaws and Board of Directors of
Surviving Corporation. At the Effective Time of the Merger:
(i) the Certificate of Incorporation of the Corporation then in
effect shall be the Certificate of Incorporation of the
Surviving Corporation until amended as provided by law;
(ii) the Bylaws of the Corporation then in effect shall be the
Bylaws of the Surviving Corporation until amended as provided
by law;
(iii) the directors of the Corporation shall be the directors of the
Surviving Corporation until their respective successors are
elected or appointed and qualified in accordance with the
terms of the Certificate of Incorporation and Bylaws of the
Surviving Corporation; and
(iv) the officers of the Corporation immediately prior to the
Effective Time of the Merger shall continue as the officers of
the Surviving Corporation in the same capacity or capacities
until their respective successors are appointed and qualified
in accordance with the terms of the Certificate of
Incorporation and Bylaws of the Surviving Corporation.
(e) Manner of Conversion. The manner of converting the shares of
RPGI Stock, issued and outstanding immediately prior to the Effective Time of
the Merger, into shares of Common Stock of the Surviving Corporation shall be as
follows:
As of the Effective Time of the Merger:
(i) all of the shares of RPGI Stock issued and outstanding
immediately prior to the Effective Time of the Merger will be
canceled and extinguished and, by virtue of the Merger and
without any action on the part of the RPGI Stockholder,
automatically shall be deemed to represent, with respect to
the RPGI Stockholder, the right to receive solely the number
of Subscribed
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Shares set forth opposite the name of the RPGI Stockholder on
Annex A; and
(ii) all shares of RPGI Stock that are held by RPGI as treasury
stock shall be canceled and retired and no shares of Common
Stock or other consideration shall be delivered or paid in
exchange therefor.
(f) Delivery of Certificates Evidencing Shares of RPGI Stock. The
RPGI Stockholder shall deliver to the Corporation at the Closing the
certificates representing RPGI Stock, duly endorsed in blank by the RPGI
Stockholder, or accompanied by stock powers duly endorsed in blank, with
signatures notarized, and with all necessary transfer tax and other revenue
stamps, acquired at the RPGI Stockholder's expense, affixed and canceled. The
RPGI Stockholder agrees promptly to cure any deficiencies with respect to the
endorsement of the stock certificates or other documents of conveyance with
respect to such RPGI Stock or with respect to the stock powers accompanying any
RPGI Stock.
2C. Contribution of Contribution Units and HGI Shares and Transfer
of Common Stock. At the Closing (as defined below), subject to the terms and
conditions set forth herein, the Corporation shall issue to each of the
Subscribers such Subscriber's Subscribed Shares solely in exchange for the
contribution to the Corporation by the Subscriber of the number of Contribution
Units set forth opposite the name of the Subscriber on Annex A. At the Closing,
subject to the terms and conditions set forth herein, the Corporation shall
issue to each of the HGI Stockholders such HGI Stockholder's Subscribed Shares
solely in exchange for the contribution to the Corporation by the HGI
Stockholder of the number of HGI Shares set forth opposite the name of the HGI
Stockholder on Annex B.
2D. The Closing. The closing of the Merger pursuant to Section 2B,
and the issuance of the Common Stock and the contribution and transfer of the
Contribution Units and the HGI Shares pursuant to Section 2C (the "Closing"),
shall take place at the offices of Xxxxxxx Berlin Shereff Xxxxxxxx, LLP, 919
Third Avenue, 20th Floor, New York, New York, on the date hereof, or at such
other place or on such other date as may be mutually agreeable to the
Corporation, the Subscribers, the RPGI Stockholder and the HGI Stockholders;
provided the following actions have occurred or occur as of such date: (i) the
Certificates of Merger shall have been filed with the appropriate state
authorities and certificates shall have been issued by such authorities
certifying as to the effectiveness of the Merger and (ii) all transactions
contemplated by this Agreement, including the exchange of the Contribution Units
and HGI Shares for Subscribed Shares, shall be completed. The exchange of the
Contribution Units and HGI Shares, respectively, for Subscribed Shares shall be
deemed to be effective upon delivery by the Corporation to each Subscriber and
to each HGI Stockholder, respectively, of stock certificates evidencing the
Subscribed Shares to be issued at the Closing to such Subscriber or to such HGI
Stockholder, as the case may be, and registered in the name of such Subscriber
or HGI Stockholder. The date on which the actions described in the preceding
clauses (i) and (ii) occur shall be referred to as the "Closing Date." Time is
of the essence.
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2E. Waivers of LLC Agreement; Amendment of LLC Agreement.
(a) HGI, in its capacity as Manager of HG L.L.C., (i) waives
compliance by the Corporation with the obligations and conditions to Transfer
set forth in Section 11.5 of the LLC Agreement for purposes of the transactions
contemplated by this Agreement, (ii) acknowledges that the Corporation's
execution of this Agreement shall be of the same force and effect as if the
Corporation (as Assignee) had executed a copy of the LLC Agreement and (iii)
waives its right of first refusal pursuant to Section 12.1 of the LLC Agreement
for purposes of the transactions contemplated by this Agreement.
(b) Each of Xxxx X. Xxxxxx, Peri Xxxx Xxxxxx, Xxxxxx Xxxxxx and
RPGI, in their capacities as Affiliates of HGI, waives its right of first
refusal pursuant to Section 12.1 of the LLC Agreement for purposes of the
transactions contemplated by this Agreement.
(c) Effective as of the Closing, (i) HGI shall cease to be the
Manager of HG L.L.C., (ii) the Corporation shall be admitted to HG L.L.C. as a
Member (and by its execution of this Agreement the Corporation agrees to be
bound by the terms and conditions of the LLC Agreement), (iii) the Corporation
shall be elected, pursuant to Section 6.1 of the LLC Agreement, as the successor
Manager to replace HGI as the Manager of HG L.L.C. and (iv) the Corporation
shall be the holder of all of the Contribution Units for all purposes of the LLC
Agreement.
(d) Effective as of immediately prior to the Closing, pursuant to
Section 7.1 of the LLC Agreement, the LLC Agreement shall be amended as follows:
(i) by deleting Section 11.2 of the LLC Agreement in its entirety and inserting
in its place the words "INTENTIONALLY OMITTED", and such Section 11.2 shall be
of no force and effect with respect to the transfer by the HGI Stockholders of
all of their HGI Shares pursuant to this Agreement; (ii) by changing each
reference to "HGI" in Section 6.9(a) and Section 15.1 of the LLC Agreement to
"Horseshoe Gaming Holding Corp.", and such Section 6.9(a) shall be of no force
and effect with respect to the transfer by the HGI Stockholders of all of their
HGI Shares pursuant to this Agreement; (iii) by changing the Tax Matters Member,
as designated in Section 10.1 of the LLC Agreement, from HGI to Horseshoe Gaming
Holding Corp.; and (iv) by changing each reference to "HGI" in Section 14 of the
LLC Agreement to "the Manager".
(e) Each of Section 11.1 and Section 11.3 of the LLC Agreement shall
be of no force and effect with respect to the transactions contemplated by this
Agreement, and each party hereto consents to any and all Transfers of Membership
Interests or Units pursuant to this Agreement, including without limitation (i)
the contribution by the Subscribers of their Contribution Units to the
Corporation in exchange for Subscribed Shares, (ii) the contribution by the HGI
Stockholders of their HGI Shares to the Corporation in exchange for Subscribed
Shares and (iii) the merger of RPGI with and into the Corporation (and the
cancellation of all shares of RPGI Stock in consideration for Subscribed
Shares).
(f) Except as expressly provided herein, the terms and conditions of
the LLC
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Agreement shall remain in full force and effect.
2F. Further Action. Each Subscriber agrees to take any additional
action and to execute any additional documents that the Corporation determines
are necessary or appropriate to assign and transfer to the Corporation all
right, title and interest of such Subscriber as of the Closing in and to all of
such Subscriber's Contribution Units. Each HGI Stockholder agrees to take any
additional action and to execute any additional documents that the Corporation
determines are necessary or appropriate to assign and transfer to the
Corporation all right, title and interest of such HGI Stockholder as of the
Closing in and to all of such HGI Stockholder's HGI Shares. Each of RPGI and the
RPGI Stockholder agrees to take any additional action and to execute any
additional documents that the Corporation determines are necessary or
appropriate to consummate the Merger.
2G. Tax Status of Contribution and Merger. Each of the parties to
this Agreement intends that:
(a) the transfer of the Contribution Units and the HGI Shares to the
Corporation solely in exchange for Subscribed Shares is a transaction described
in Section 351(a) of the Internal Revenue Code of 1986, as amended ("Code"), and
(b) the Merger constitutes a "reorganization" within the meaning of
Section 368(a)(1)(A) of the Code.
Each of the parties hereto agrees to take such actions and prepare and file all
of his, her or its income tax returns on a basis consistent with the foregoing
intent.
3. Conditions to each Subscriber's Obligation at the Closing. The
obligation of each Subscriber to effect the Closing is subject to the
satisfaction (or written waiver by each such Subscriber) as of the Closing of
the following conditions:
3A. Representations and Warranties; Covenants. The representations
and warranties contained in Section 7 hereof shall be true and correct at and as
of the Closing, and the Corporation shall have performed in all material
respects all of the covenants required to be performed by it hereunder prior to
or at the Closing.
3B. Compliance with Applicable Laws. The contribution of the
Contribution Units by such Subscriber and the transfer of the Common Stock to
such Subscriber hereunder shall not be prohibited by any applicable law or
governmental regulation and shall not subject such Subscriber to any penalty or
liability under or pursuant to any applicable law or governmental regulation.
3C. Execution of Stockholders Agreement. The Stockholders Agreement,
substantially in the form attached hereto as Exhibit 3C, shall have been
executed by the Corporation, each HGI Stockholder, the RPGI Stockholder and each
other Subscriber.
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4. Conditions to each HGI Stockholder's Obligation at the Closing. The
obligation of each HGI Stockholder to effect the Closing is subject to the
satisfaction (or written waiver by each such HGI Stockholder) as of the Closing
of the following conditions:
4A. Representations and Warranties; Covenants. The representations
and warranties contained in Section 7 hereof shall be true and correct at and as
of the Closing, and the Corporation shall have performed in all material
respects all of the covenants required to be performed by it hereunder prior to
or at the Closing.
4B. Compliance with Applicable Laws. The contribution of the HGI
Shares by such HGI Stockholder and the transfer of the Common Stock to such HGI
Stockholder hereunder shall not be prohibited by any applicable law or
governmental regulation and shall not subject such HGI Stockholder to any
penalty or liability under or pursuant to any applicable law or governmental
regulation.
4C. Execution of Stockholders Agreement. The Stockholders Agreement
shall have been executed by the Corporation, each other HGI Stockholder, the
RPGI Stockholder and each Subscriber.
5. Conditions of the Corporation's Obligation at the Closing. The
obligation of the Corporation to effect the Closing is subject to the
satisfaction (or written waiver by the Corporation) as of the Closing of the
following conditions:
5A. Representations and Warranties; Covenants. The representations
and warranties contained in Sections 8, 9 and 10 hereof shall be true and
correct at and as of the Closing, and each Subscriber, each HGI Stockholder,
RPGI and the RPGI Stockholder shall have performed in all material respects all
of the covenants required to be performed by it hereunder prior to or at the
Closing.
5B. Compliance with Applicable Laws. The issuance and transfer of
the Common Stock by the Corporation shall (i) not be prohibited by any
applicable law or governmental regulation, (ii) not subject the Corporation to
any penalty or liability under or pursuant to any applicable law or governmental
regulation and (iii) not preclude the Corporation from being a "small business
corporation" as described in Section 1361(b) of the Code.
5C. Execution of Stockholders Agreement. The Stockholders Agreement
shall have been executed by each Subscriber, the RPGI Stockholder and each HGI
Stockholder.
5D. Certificates of Merger. RPGI shall have filed with the
appropriate state authorities the Certificates of Merger and all documents
necessary to effect the Merger certificates shall have been issued by such
authorities certifying as to the effectiveness of the Merger.
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5E. S Corporation Elections. In consideration of the Corporation's
agreement to make the Permitted Tax Distributions (as defined in the
Stockholders Agreement) at the times and in the amounts provided in the
Stockholders Agreement:
(a) The RPGI Stockholder, each Subscriber and each HGI Stockholder
(and the spouse of any Subscriber, RPGI Stockholder or HGI Stockholder having a
community property interest in the Common Stock or in the income therefrom)
shall have executed and delivered to the Corporation for filing with the
Internal Revenue Service IRS Form 2553 and such other documents and other
certificates as the Corporation shall have requested.
(b) There shall have been delivered to the Corporation for filing
with the Internal Revenue Service a Qualified Subchapter S Trust Election
satisfying the requirements of Section 1361(d)(2) of the Code and Treasury
Regulation Section 1.1361-1(j)(6)(ii) signed by the current income beneficiary
of each Subscriber, the RPGI Stockholder and each HGI Stockholder that is a
qualified subchapter S trust ("QSST") (and, if the spouse of the current income
beneficiary is also a current income beneficiary satisfying the requirements of
Treas. Reg. Section 1.1361-1(j)(2)(i), then jointly signed by such spouse).
(c) The Corporation shall have received from each Subscriber, the
RPGI Stockholder or each HGI Stockholder that is a QSST, an opinion of counsel,
which counsel and such opinion is satisfactory to the Corporation, that under
applicable state law and the terms of such trust, the trust as of the Closing
Date satisfies all of the requirements of Section 1361(d) of the Code and Treas.
Reg. Section 1.1361-1(j).
(d) In the case of any Subscriber, RPGI Stockholder or HGI
Stockholder that is a QSST and which has any potential successive income
beneficiary, an agreement (in form and substance satisfactory to the
Corporation) of each such potential successive income beneficiary agreeing that
if such person becomes a current income beneficiary of the QSST, such person
shall not make the affirmative refusal to consent permitted to be made by Treas.
Reg. Section 1.1361- 1(j)(10).
(e) In the case of each Subscriber, the RPGI Stockholder and each
HGI Stockholder that is an electing small business trust ("ESBT"), the trustee
of such ESBT shall have executed and delivered to the Corporation for filing
with the Internal Revenue Service the election described in Section 1361(e)(3)
of the Code, satisfying the requirements set forth in IRS Notice 97- 12 (or any
successor requirements established by the Internal Revenue Service).
5F. Further Assurances. The Corporation shall have received and been
satisfied with such other certificates and documents as shall have been
requested by the Corporation in order for the Corporation to confirm the
satisfaction of the conditions set forth in this Agreement.
6. Conditions to RPGI's and the RPGI Stockholder's Obligation at the
Closing. The obligation of RPGI and the RPGI Stockholder to effect the Closing
is subject to the satisfaction (or
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written waiver by RPGI and the RPGI Stockholder) as of the Closing of the
following conditions:
6A. Representations and Warranties; Covenants. The representations
and warranties contained in Section 7 hereof shall be true and correct at and as
of the Closing, and the Corporation shall have performed in all material
respects all of the covenants required to be performed by it hereunder prior to
or at the Closing.
6B. Compliance with Applicable Laws. The Merger of RPGI with and
into the Corporation shall not be prohibited by any applicable law or
governmental regulation and shall not subject RPGI or the RPGI Stockholder to
any penalty or liability under or pursuant to any applicable law or governmental
regulation and shall not subject the RPGI Stockholder or RPGI to any penalty or
liability under or pursuant to any applicable law or governmental regulation.
6C. Execution of Stockholders Agreement. The Stockholders Agreement
shall have been executed by the Corporation, each HGI Stockholder and each
Subscriber.
7. Representations and Warranties of the Corporation. As a material
inducement to each Subscriber, each HGI Stockholder, RPGI and the RPGI
Stockholder to enter into this Agreement and consummate the transactions
contemplated hereby, the Corporation hereby represents and warrants to each
Subscriber, each HGI Stockholder, RPGI and the RPGI Stockholder as follows:
7A. Organization and Corporate Power. The Corporation is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware. The Corporation has all requisite corporate power and
authority and all material licenses, permits and authorizations necessary to own
and operate its properties, to carry on its businesses as now conducted and
presently proposed to be conducted and to carry out the transactions
contemplated by this Agreement.
7B. Authorization; No Breach. The execution, delivery and
performance of this Agreement and all other agreements contemplated hereby to
which the Corporation is a party have been duly authorized by all necessary
action on the part of the Corporation. This Agreement and all other agreements
contemplated hereby to which the Corporation is a party each constitutes a valid
and binding obligation of the Corporation, enforceable against the Corporation
in accordance with its terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, receivership, moratorium or
assignment for the benefit of creditors laws and other laws affecting the rights
and remedies of creditors generally, including without limitation laws regarding
fraudulent transfers, fraudulent conveyances, preferences, avoidance and
automatic stay.
7C. Investment Representations.
(a) The Corporation understands that neither the Units nor the HGI
Shares have been registered under the Securities Act of 1933, as amended
("Securities Act"), or the securities or similar laws of any state or other
jurisdiction, and are offered in reliance on exemptions therefrom.
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The Corporation understands that neither the U.S. Securities and Exchange
Commission nor any other federal or state agency or governmental or regulatory
authority of any other foreign jurisdiction has recommended, approved or
endorsed the contribution of the Units or the HGI Shares provided for herein.
(b) The Corporation is accepting the contribution of the Units and
HGI Shares hereunder or accepted pursuant hereto for the Corporation's own
account with the present intention of holding such securities for purposes of
investment only, and has no intention of selling such securities in a public
distribution in violation of the federal securities laws or any applicable state
securities laws.
8. Representations and Warranties of the Subscribers. As a material
inducement to the Corporation, each other Subscriber, each HGI Stockholder, RPGI
and the RPGI Stockholder to enter into this Agreement and consummate the
transactions contemplated hereby, each Subscriber hereby represents and
warrants, severally as to itself only, to the Corporation (with the
understanding that the Corporation and its agents and attorneys are relying on
the accuracy and completeness of such representations and warranties) and to
each other Subscriber, each HGI Stockholder, RPGI and the RPGI Stockholder as
follows:
8A. Organization and Power. Such Subscriber has all requisite power
and authority to execute this Agreement and to carry out the transactions
contemplated hereby. For any Subscriber that is a corporation or a limited
partnership, such Subscriber is duly organized, validly existing and in good
standing under the laws of the state of its formation, and such Subscriber is
duly authorized and qualified to do business and is in good standing under the
laws of each jurisdiction where such qualification is required.
8B. Authorization; No Breach. The execution, delivery and
performance of this Agreement and all other agreements contemplated hereby to
which such Subscriber is a party have been duly authorized by all necessary
action on the part of such Subscriber. Each of this Agreement and each other
agreement contemplated hereby to which such Subscriber is a party constitutes a
valid and binding obligation of such Subscriber, enforceable against such
Subscriber in accordance with its terms, except as such enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, receivership,
moratorium or assignment for the benefit of creditors laws and other laws
affecting the rights and remedies of creditors generally, including without
limitation laws regarding fraudulent transfers, fraudulent conveyances,
preferences, avoidance and automatic stay. The execution, delivery and
performance by such Subscriber of this Agreement and any other document or
instrument executed by such Subscriber in connection herewith, and the
consummation of the transactions contemplated hereby and thereby, and compliance
with the requirements hereof and thereof, will not violate any law, rule,
regulation, order, writ, judgment, injunction, decree or award binding on such
Subscriber, or the provisions of any indenture, instrument or agreement to which
such Subscriber is a party or is subject, or by which such Subscriber or any of
its assets is bound, or conflict with or constitute a default thereunder, or
result in the creation or imposition of any lien pursuant to the terms of any
such indenture, instrument or agreement, or constitute a breach
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of any fiduciary duty owed by such Subscriber to any third party, or require the
approval of any third-party (which has not been obtained) pursuant to any
contract, agreement, instrument, relationship or legal obligation to which such
Subscriber is subject or to which any of its assets, operations or management
may be subject.
8C. Ownership of Contribution Units. Such Subscriber owns,
beneficially and of record, the Contribution Units set forth opposite its name
on Annex A hereto, free and clear of all liens, charges and encumbrances and no
other person has any interests in any such Contribution Units other than the
beneficiaries for any Subscribers which are trusts.
8D. Investment Representations.
(a) Such Subscriber understands that the Common Stock has not been
registered under the Securities Act, or the securities or similar laws of any
state or other jurisdiction, and are offered in reliance on exemptions from the
applicable registration requirements thereof.
(b) Such Subscriber confirms that: (i) it is receiving the Common
Stock to be issued to such Subscriber hereunder or pursuant hereto for such
Subscriber's own account with the present intention of holding such securities
for purposes of investment only; (ii) it has no intention of selling such
securities in a public distribution in violation of the federal securities laws
or any applicable state securities laws; (iii) the Common Stock must be held
indefinitely and such Subscriber must bear the economic risk of the investment
in the Common Stock unless the offer and sale of such Common Stock is
subsequently registered under the Securities Act and all applicable state
securities laws or an exemption from such registration is available; (iv) there
is no established market for the Common Stock and it is not anticipated that
there will be any public market for the Common Stock in the foreseeable future;
and (v) a restrictive legend will be placed on the certificates representing the
Common Stock in the form set forth in Section 12B.
8E. Tax Representations.
(a) Such Subscriber (and the spouse of any such Subscriber having a
community interest in the Subscribed Shares or Contribution Units or in the
income therefrom) is described in Section 1361(b)(1)(B) of the Code because such
Subscriber (and such spouse) is either:
(i) an individual who is not a nonresident alien (within the
meaning of Section 7701(b)(1)(B) of the Code);
(ii) a grantor trust described in Section 1361(c)(2)(A)(i) of the
Code (other than by virtue of Section 1361(d) of the Code);
(iii) an ESBT which is described in Sections 1361(c)(2)(A)(v) and
1361(e) of the Code; or
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(iv) a QSST treated as a trust described in Section
1361(c)(2)(A)(i) of the Code by reason of Section 1361(d) of
the Code and, except as permitted by Treas. Reg. Section
1.1361-1(j)(2)(i), there is currently only one income
beneficiary and such beneficiary is a citizen or resident of
the United States.
(b) Upon the issuance of the Subscribed Shares at the Closing:
(i) such Subscriber will be the owner of the entire interest in
such Subscribed Shares to be received by such Subscriber;
(ii) such Subscriber will not hold such Subscribed Shares as agent
for any other person (whether an individual, partnership,
corporation (including a business trust), joint stock company,
trust, unincorporated association, joint venture or other
entity);
(iii) no person other than such Subscriber will have a claim in or
to such Subscribed Shares; and
(iv) except as identified on Exhibit 8E(b) hereto, such Subscriber
is not a resident, or subject to the laws, of any state or
other jurisdiction having laws governing community property.
(c) In the case of a Subscriber which is an ESBT, Exhibit 8E(c)
hereto sets forth each of the potential current beneficiaries (within the
meaning of Section 1361(e)(2) of the Code) of the ESBT.
9. Representations and Warranties of the HGI Stockholders. As a material
inducement to the Corporation, each Subscriber, each other HGI Stockholder, RPGI
and the RPGI Stockholder to enter into this Agreement and consummate the
transactions contemplated hereby, each HGI Stockholder hereby represents and
warrants, severally as to itself only, to the Corporation (with the
understanding that the Corporation and its agents and attorneys are relying on
the accuracy and completeness of such representations and warranties) and to
each Subscriber, each other HGI Stockholder, RPGI and the RPGI Stockholder that:
9A. Power. Such HGI Stockholder has all requisite power and
authority to execute this Agreement and to carry out the transactions
contemplated hereby.
9B. Authorization; No Breach. The execution, delivery and
performance of this Agreement and all other agreements contemplated hereby to
which such HGI Stockholder is a party have been duly authorized by such HGI
Stockholder. Each of this Agreement and each other agreement contemplated hereby
to which such HGI Stockholder is a party constitutes a valid and binding
obligation of such HGI Stockholder, enforceable against such HGI Stockholder in
accordance with its terms, except as such enforceability may be limited by
applicable bankruptcy,
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insolvency, reorganization, receivership, moratorium or assignment for the
benefit of creditors laws and other laws affecting the rights and remedies of
creditors generally, including without limitation laws regarding fraudulent
transfers, fraudulent conveyances, preferences, avoidance and automatic stay.
The execution, delivery and performance by such HGI Stockholder of this
Agreement and any other document or instrument executed by such HGI Stockholder
in connection herewith, and the consummation of the transactions contemplated
hereby and thereby, and compliance with the requirements hereof and thereof,
will not violate any law, rule, regulation, order, writ, judgment, injunction,
decree or award binding on such HGI Stockholder, or the provisions of any
indenture, instrument or agreement to which such HGI Stockholder is a party or
is subject, or by which such HGI Stockholder or any of its assets is bound, or
conflict with or constitute a default thereunder, or result in the creation or
imposition of any lien pursuant to the terms of any such indenture, instrument
or agreement, or constitute a breach of any fiduciary duty owed by such HGI
Stockholder to any third party, or require the approval of any third-party
(which has not been obtained) pursuant to any contract, agreement, instrument,
relationship or legal obligation to which such HGI Stockholder is subject or to
which any of its assets, operations or management may be subject.
9C. Ownership of Contribution Units. Such HGI Stockholder owns,
beneficially and of record, the HGI Shares set forth opposite its name on Annex
B hereto, free and clear of all liens, charges and encumbrances and no other
person has any interests in any such HGI Shares. No HGI Stockholder will retain
any right after the Closing in any HGI Stock but, to the extent that such right
may exist upon the consummation of the Closing, such right shall be deemed to
have been released and extinguished.
9D. Investment Representations.
(a) Such HGI Stockholder understands that the Common Stock has not
been registered under the Securities Act, or the securities or similar laws of
any state or other jurisdiction, and are offered in reliance on exemptions from
the applicable registration requirements thereof.
(b) Such HGI Stockholder confirms that: (i) it is an "accredited
investor" within the meaning of Rule 501 of Regulation D of the Securities Act,
and that such HGI Stockholder has made such inquiry and has had access to and
has received and considered such information as such HGI Stockholder has deemed
appropriate in making the decision to exchange the HGI Shares for the Common
Stock to be issued hereunder; (ii) it is receiving the Common Stock to be
received by it hereunder or pursuant hereto for such HGI Stockholder's own
account with the present intention of holding such securities for purposes of
investment only; (iii) it has no intention of selling such securities in a
public distribution in violation of the federal securities laws or any
applicable state securities laws; (iv) the Common Stock must be held
indefinitely and such HGI Stockholder must bear the economic risk of the
investment in the Common Stock unless the offer and sale of such Common Stock is
subsequently registered under the Securities Act and all applicable state
securities laws or an exemption from such registration is available; (v) there
is no established market for the Common Stock and it is not anticipated that
there will be any public market for the Common Stock in the foreseeable future;
and (vi) a restrictive legend will be placed on the certificates representing
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the Common Stock in the form set forth in Section 12B.
9E. Tax Representations.
(a) Such HGI Stockholder (and the spouse of any such HGI Stockholder
having a community interest in the Subscribed Shares or HGI Shares or in the
income therefrom) is described in Section 1361(b)(1)(B) of the Code because such
HGI Stockholder (and such spouse) is either:
(i) an individual who is not a nonresident alien (within the
meaning of Section 7701(b)(1)(B) of the Code);
(ii) a grantor trust described in Section 1361(c)(2)(A)(i) of the
Code (other than by virtue of Section 1361(d) of the Code);
(iii) an ESBT which is described in Sections 1361(c)(2)(A)(v) and
1361(e) of the Code; or
(iv) a QSST treated as a trust described in Section
1361(c)(2)(A)(i) of the Code by reason of Section 1361(d) of
the Code and, except as permitted by Treas. Reg. Section
1.1361-1(j)(2)(i), there is currently only one income
beneficiary and such beneficiary is a citizen or resident of
the United States.
(b) Upon the issuance of the Subscribed Shares:
(i) such HGI Stockholder will be the owner of the entire interest
in such Subscribed Shares to be received by such HGI
Stockholder;
(ii) such HGI Stockholder will not hold such Subscribed Shares as
agent for any other person (whether an individual,
partnership, corporation (including a business trust), joint
stock company, trust, unincorporated association, joint
venture, or other entity);
(iii) no person other than such HGI Stockholder will have a claim in
or to such Subscribed Shares; and
(iv) except as identified on Exhibit 9E(b) hereto, such HGI
Stockholder is not a resident or subject to the laws of any
state or other jurisdiction having laws governing community
property.
(c) In the case of a HGI Stockholder that is an ESBT, Exhibit 9E(c)
hereto sets forth each of the potential current beneficiaries (within the
meaning of Section 1361(e)(2) of the Code) of the ESBT.
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9F. Preemptive Rights. Each HGI Stockholder does not have, or hereby
waives, any preemptive or other right to acquire shares of HGI Stock that such
HGI Stockholder has or may have had. No HGI Stockholder will retain any right
after the Closing in any shares of HGI Stock but, to the extent that such right
may exist upon the consummation of the Closing, such right shall be deemed to
have been released and extinguished.
9G. Representations Relating to HGI.
(a) HGI is a corporation duly organized, validly existing and in
good standing under the laws of the state of its incorporation, and is duly
authorized and qualified to do business and is in good standing under the laws
of each jurisdiction where such qualification is required.
(b) The authorized capital stock of HGI is as set forth on Exhibit
9G. All of the issued and outstanding shares of the capital stock of HGI are
owned by the HGI Stockholders in the amounts set forth on Annex B. All of the
issued and outstanding shares of the capital stock of HGI (i) have been duly
authorized and validly issued, (ii) are fully paid and nonassessable, (iii) are
owned of record and beneficially by the HGI Stockholders and (iv) were offered,
issued, sold and delivered by HGI in compliance with all applicable state and
federal laws concerning the issuance of securities. Further, none of such shares
were issued in violation of the preemptive rights of any past or present
stockholder of HGI.
(c) (i) No option, warrant, call, conversion right or commitment of
any kind exists which obligates HGI to issue or sell any of its capital stock or
other securities, (ii) HGI has no obligation (contingent or otherwise) to
purchase, redeem or otherwise acquire any of its securities or any interests
therein or to pay any dividend or make any distribution in respect thereof, and
(iii) neither the voting stock structure of HGI nor the relative ownership of
shares among any of its respective stockholders has been altered or changed in
contemplation of the transactions contemplated by this Agreement.
(d) Since its organization, HGI has been, and until Closing will
remain, an S corporation, as such term is defined in Section 1361(a) of the
Code.
(e) HGI owns, beneficially and of record, 23,697,909 Contribution
Units free and clear of all liens, charges and encumbrances and no other person
has any interests in any such Contribution Units other than the HGI
Stockholders.
10. Representations and Warranties of the RPGI Stockholder. As a material
inducement to the Corporation, each Subscriber, RPGI and each HGI Stockholder to
enter into this Agreement and consummate the transactions contemplated hereby,
the RPGI Stockholder hereby represents and warrants to the Corporation (with the
understanding that the Corporation and its agents and attorneys are relying on
the accuracy and completeness of such representations and warranties) and to
each Subscriber and each HGI Stockholder as follows:
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10A. Organization and Power. The RPGI Stockholder has all requisite
power and authority to execute this Agreement and to carry out the transactions
contemplated hereby.
10B. Authorization; No Breach. The execution, delivery and
performance of this Agreement and all other agreements contemplated hereby to
which the RPGI Stockholder is a party have been duly authorized by the RPGI
Stockholder. Each of this Agreement and each other agreement contemplated hereby
to which the RPGI Stockholder is a party constitutes a valid and binding
obligation of the RPGI Stockholder, enforceable against the RPGI Stockholder in
accordance with its terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, receivership, moratorium or
assignment for the benefit of creditors laws and other laws affecting the rights
and remedies of creditors generally, including without limitation laws regarding
fraudulent transfers, fraudulent conveyances, preferences, avoidance and
automatic stay. The execution, delivery and performance by the RPGI Stockholder
of this Agreement and any other document or instrument executed by the RPGI
Stockholder in connection herewith, and the consummation of the transactions
contemplated hereby and thereby, and compliance with the requirements hereof and
thereof, will not violate any law, rule, regulation, order, writ, judgment,
injunction, decree or award binding on the RPGI Stockholder, or the provisions
of any indenture, instrument or agreement to which the RPGI Stockholder is a
party or is subject, or by which the RPGI Stockholder or any of its assets is
bound, or conflict with or constitute a default thereunder, or result in the
creation or imposition of any lien pursuant to the terms of any such indenture,
instrument or agreement, or constitute a breach of any fiduciary duty owed by
the RPGI Stockholder to any third party, or require the approval of any
third-party (which has not been obtained) pursuant to any contract, agreement,
instrument, relationship or legal obligation to which the RPGI Stockholder is
subject or to which any of its assets, operations or management may be subject.
10C. Ownership of Shares of RPGI Capital Stock. The RPGI Stockholder
owns, beneficially and of record, all issued and outstanding shares of capital
stock of RPGI, free and clear of all liens, charges and encumbrances and no
other person has any interests in any such shares of capital stock. The RPGI
Stockholder will not retain any right after the Closing in any RPGI Stock but,
to the extent that such right may exist upon the consummation of the Closing,
such right shall be deemed to have been released and extinguished.
10D. Investment Representations.
(a) The RPGI Stockholder understands that the Common Stock has not
been registered under the Securities Act, or the securities or similar laws of
any state or other jurisdiction, and are offered in reliance on exemptions from
the applicable registration requirements thereof.
(b) The RPGI Stockholder confirms that: (i) she is an "accredited
investor" within the meaning of Rule 501 of Regulation D of the Securities Act,
and that she has made such inquiry and has had access to and has received and
considered such information as she has deemed appropriate in making the decision
to exchange her shares of RPGI Stock for the Subscribed Shares
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to be issued hereunder; (ii) she is receiving the Common Stock to be issued to
her hereunder or pursuant hereto for the RPGI Stockholder's own account with the
present intention of holding such securities for purposes of investment only;
(iii) she has no intention of selling such securities in a public distribution
in violation of the federal securities laws or any applicable state securities
laws; (iv) the Common Stock must be held indefinitely and the RPGI Stockholder
must bear the economic risk of the investment in the Common Stock unless the
offer and sale of such Common Stock is subsequently registered under the
Securities Act and all applicable state securities laws or an exemption from
such registration is available; (v) there is no established market for the
Common Stock and it is not anticipated that there will be any public market for
the Common Stock in the foreseeable future; and (vi) a restrictive legend will
be placed on the certificates representing the Common Stock in the form set
forth in Section 12B.
10E. Tax Representations.
(a) The RPGI Stockholder is described in Section 1361(b)(1)(B) of
the Code because she is an individual who is not a nonresident alien (within the
meaning of Section 7701(b)(1)(B) of the Code).
(b) Upon the issuance of the Subscribed Shares to the RPGI
Stockholder:
(i) the RPGI Stockholder will be the owner of the entire interest
in such Subscribed Shares to be received by her;
(ii) the RPGI Stockholder will not hold such Subscribed Shares as
agent for any other person (whether an individual,
partnership, corporation (including a business trust), joint
stock company, trust, unincorporated association, joint
venture, or other entity);
(iii) no person other than the RPGI Stockholder will have a claim in
or to such Subscribed Shares; and
(iv) is not married.
10F. Representations Relating to RPGI.
(a) RPGI is a corporation duly organized, validly existing and in
good standing under the laws of the state of its incorporation, and is duly
authorized and qualified to do business and is in good standing under the laws
of each jurisdiction where such qualification is required. RPGI has all
requisite corporate power and authority to execute this Agreement and to perform
its obligations hereunder.
(b) The execution, delivery and performance of this Agreement and
all other agreements contemplated hereby to which RPGI is a party have been duly
authorized by RPGI.
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Each of this Agreement and each other agreement contemplated hereby to which
RPGI is a party constitutes a valid and binding obligation of RPGI, enforceable
against RPGI in accordance with its terms, except as such enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, receivership,
moratorium or assignment for the benefit of creditors laws and other laws
affecting the rights and remedies of creditors generally, including without
limitation laws regarding fraudulent transfers, fraudulent conveyances,
preferences, avoidance and automatic stay. The execution, delivery and
performance by RPGI of this Agreement and any other document or instrument
executed by RPGI in connection herewith, and the consummation of the
transactions contemplated hereby and thereby, and compliance with the
requirements hereof and thereof, will not violate any law, rule, regulation,
order, writ, judgment, injunction, decree or award binding on RPGI, or the
provisions of any indenture, instrument or agreement to which RPGI is a party or
is subject, or by which RPGI or any of its assets is bound, or conflict with or
constitute a default thereunder, or result in the creation or imposition of any
lien pursuant to the terms of any such indenture, instrument or agreement, or
constitute a breach of any fiduciary duty owed by RPGI to any third party, or
require the approval of any third-party (which has not been obtained) pursuant
to any contract, agreement, instrument, relationship or legal obligation to
which RPGI is subject or to which any of its assets, operations or management
may be subject.
(c) The authorized capital stock of RPGI is as set forth on Exhibit
10F. All of the issued and outstanding shares of the capital stock of RPGI are
owned by the RPGI Stockholder free and clear of all mortgages, liens, security
interests, pledges, voting trusts, restrictions, encumbrances and claims of
every kind. All of the issued and outstanding shares of the capital stock of
RPGI (i) have been duly authorized and validly issued, (ii) are fully paid and
nonassessable, (iii) are owned of record and beneficially by the RPGI
Stockholder and (iv) were offered, issued, sold and delivered by RPGI in
compliance with all applicable state and federal laws concerning the issuance of
securities. Further, none of such shares were issued in violation of the
preemptive rights of any past stockholder of RPGI.
(d) (i) No option, warrant, call, conversion right or commitment of
any kind exists which obligates RPGI to issue or sell any of its capital stock
or other securities, (ii) RPGI has no obligation (contingent or otherwise) to
purchase, redeem or otherwise acquire any of its securities or any interests
therein or to pay any dividend or make any distribution in respect thereof, and
(iii) neither the voting stock structure of RPGI or the relative ownership of
shares among any of its respective stockholders has been altered or changed in
contemplation of the transactions contemplated by this Agreement.
(e) Since its organization, RPGI has been, and until Closing will
remain, an S corporation, as such term is defined in Section 1361(a) of the
Code.
(f) RPGI owns, beneficially and of record, 2,500 shares of RPGI
Stock free and clear of all liens, charges and encumbrances and no other person
has any interests in any such RPGI Stock other than the RPGI Stockholder.
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11. Other Covenants.
11A. Further Assurances. At or prior to the Closing, each
Subscriber, each HGI Stockholder, RPGI and the RPGI Stockholder, agrees and
covenants that it will execute all consents, waivers, acknowledgments,
agreements or other documents that the Corporation deems necessary or
appropriate to effect the transactions contemplated by this Agreement.
11B. Approval of Merger Agreement. The RPGI Stockholder agrees to
vote all of its shares of RPGI Stock in favor of the Merger and all other
transactions contemplated by this Agreement.
12. Miscellaneous.
12A. Remedies. Any person or entity having any rights under any
provision of this Agreement shall be entitled to recover damages by reason of
any breach of any representation, warranty or covenant contained in this
Agreement, to exercise all other rights granted by law and to enforce such
rights specifically (without posting a bond or other security).
12B. Legend. Each certificate for Common Stock received hereunder
shall be imprinted with a legend in substantially the following form:
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), AND MAY NOT BE OFFERED OR
SOLD UNLESS AN EXEMPTION FROM REGISTRATION IS AVAILABLE (AND, IN
SUCH CASE, AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE
COMPANY SHALL HAVE BEEN DELIVERED TO THE COMPANY TO THE EFFECT THAT
SUCH OFFER OR SALE IS NOT REQUIRED TO BE REGISTERED UNDER THE
SECURITIES ACT)."
The Corporation shall imprint such legend on certificates evidencing a share or
shares of the Common Stock. The legend set forth above shall, at the request of
the holder of such certificate, be removed from the certificates evidencing any
shares which have become registered under the Securities Act or which have been
sold to the public through a broker, dealer or market maker pursuant to the
provisions of Rule 144 adopted under the Securities Act.
12C. Consent to Amendments. Except as otherwise expressly provided
herein, no amendment, modification or waiver of any of the provisions of this
Agreement shall be effective against (i) a Subscriber unless Subscribers holding
at least a majority of the Contribution Units have consented to such amendment,
modification or waiver in writing, (ii) a HGI Stockholder unless HGI
Stockholders holding at least a majority of the HGI Shares have consented to
such amendment, modification or waiver in writing and (iii) against the
Corporation, RPGI or the RPGI Stockholder
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unless the Corporation, RPGI or the RPGI Stockholder, respectively, has
consented to such amendment, modification or waiver in writing. No other course
of dealing among the parties or any delay in exercising any rights hereunder
shall operate as a waiver of any rights.
12D. Survival of Representations and Warranties. All representations
and warranties contained herein or made in writing by any party in connection
herewith shall survive the execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby, regardless of any
investigation made by or on behalf of any other party hereto.
12E. Successors and Assigns. Except as otherwise expressly provided
herein, all covenants and agreements contained in this Agreement by or on behalf
of any of the parties hereto shall bind and inure to the benefit of the
respective successors and permitted assigns of the parties hereto; provided that
each of HGI and RPGI, respectively, may assign any of its respective rights
under this Agreement to any stockholder of HGI or RPGI, respectively, without
the prior written consent of the Corporation or any other party; and, provided
further, that nothing contained in this Section 12E shall limit or otherwise
alter the ability of a Subscriber to transfer its Common Stock in accordance
with the Stockholders Agreement.
12F. Severability. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be prohibited
by or invalid under applicable law, such provision shall be ineffective only to
the extent of such prohibition or invalidity, without invalidating the remainder
of this Agreement.
12G. Counterparts. This Agreement may be executed in separate
counterparts, any one of which need not contain the signatures of more than one
party, but all such counterparts taken together shall constitute one and the
same Agreement.
12H. Descriptive Headings; Interpretation. The descriptive headings
of this Agreement are inserted for convenience only and do not constitute a part
of this Agreement. The use of the word "including" in this Agreement shall be by
way of example rather than by limitation. As used in this Agreement, the
singular shall include the plural, the plural shall include the singular and the
use of any gender shall include the other gender or be neutral. No provision of
this Agreement will be interpreted in favor of, or against, any of the parties
hereto by reason of the extent to which such party or its counsel participated
in the drafting thereof or by reason of the extent to which any such provision
is inconsistent with any prior draft hereof.
12I. Governing Law. This Agreement shall be governed by and
construed and enforced in accordance with the internal, substantive laws of the
State of New York without giving effect to the conflict of laws rules thereof.
12J. Integration. This Agreement and the Stockholders Agreement
contain the full understanding of the parties with respect to the subject matter
hereof and thereof and supersede all
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prior understandings and writings relating hereto and thereto.
12K. Notices. All notices, demands or other communications to be
given or delivered under or by reason of the provisions of this Agreement shall
be made as set forth in the Stockholders Agreement.
[END OF PAGE]
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties hereunto have caused this
Subscription and Reorganization Agreement to be executed personally or by their
duly authorized officers on the day and year first above written.
HORSESHOE GAMING HOLDING CORP.
By: /s/ Xxxx X. Xxxxxx
----------------------------------
Name:
Title:
Horseshoe Gaming, L.L.C.
By its Manager, Horseshoe Gaming, Inc.
By: /s/ Xxxx X. Xxxxxx
----------------------------------
Name:
Title:
Xxxxxxxx Property Group, Inc.
By: /s/ Xxxx X. Xxxxxx
----------------------------------
Name:
Title:
Horseshoe Gaming, Inc.
By: /s/ Xxxx X. Xxxxxx
----------------------------------
Name:
Title:
/s/ Xxxx X. Xxxxxx
------------------------------
Xxxx X. Xxxxxx, in his capacity as a member of Horseshoe Gaming, L.L.C. and as a
stockholder of Horseshoe Gaming, Inc.
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/s/ Xxxxx Xxxxxxx
------------------------------
Xxxxx Xxxxxxx,
as Trustee of the Xxxxx X'Xxxxx Trust
/s/ Xxxxx Xxxxxxx
------------------------------
Xxxxx Xxxxxxx,
as Trustee of the Xxxxxx X'Xxxxx Trust
/s/ Peri Xxxx Xxxxxx
------------------------------
Peri Xxxx Xxxxxx, in her capacity as a stockholder of Horseshoe Gaming, Inc., as
a member of Horseshoe Gaming, L.L.C. and as a stockholder of Xxxxxxxx Property
Group, Inc.
/s/ Peri Xxxx Xxxxxx
------------------------------
Peri Xxxx Xxxxxx,
as Trustee of the Xxx X. Xxxxxxx Trust
/s/ Peri Xxxx Xxxxxx
------------------------------
Peri Xxxx Xxxxxx,
as Trustee of the Fancy Xxx Xxxxxxx Trust
/s/ Peri Xxxx Xxxxxx
------------------------------
Peri Xxxx Xxxxxx,
as Trustee of the Xxxxx Xxxxxxxxxxx Xxxxxxx Trust
/s/ Peri Xxxx Xxxxxx
------------------------------
Peri Xxxx Xxxxxx,
as Trustee of the Xxxxxx Xxxxxx Xxxxxxx Trust
/s/ Peri Xxxx Xxxxxx
------------------------------
Peri Xxxx Xxxxxx,
as Trustee of the Xxxxx X'Xxxxx Trust
/s/ Peri Xxxx Xxxxxx
------------------------------
Peri Xxxx Xxxxxx,
as Trustee of the Xxxxxx X'Xxxxx Trust
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25
/s/ Peri Xxxx Xxxxxx
------------------------------
Peri Xxxx Xxxxxx,
is Trustee of the Ben Xxxx Xxxxxxx Trust
/s/ Peri Xxxx Xxxxxx
------------------------------
Peri Xxxx Xxxxxx,
as Trustee of the Xxxxxx Xxxxxxx Trust
/s/ Peri Xxxx Xxxxxx
------------------------------
Peri Xxxx Xxxxxx,
as Trustee of the Xxxxxx Xxxxxx Trust
/s/ Peri Xxxx Xxxxxx
------------------------------
Peri Xxxx Xxxxxx,
as Trustee of the Xxxxx Xxxxxx Trust
/s/ Peri Xxxx Xxxxxx
------------------------------
Peri Xxxx Xxxxxx,
as Trustee of the Xxxx Xxxxxx Trust
/s/ Key Fechser
------------------------------
Key Fechser
/s/ Xxxxx Xxxxxxx
------------------------------
Xxxxx Xxxxxxx
/s/ Xxxxx Xxxxxxx
------------------------------
Xxxxx Xxxxxxx
/s/ Xxxxxx Xxxxx
------------------------------
Xxxxxx Xxxxx, in her capacity as a member of Horseshoe Gaming, L.L.C. and as a
stockholder of Horseshoe Gaming, Inc.
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26
/s/ Xxxxxxx Xxxx
------------------------------
Xxxxxxx Xxxx,
as Trustee of the Xxx X. Xxxxxxx Trust
/s/ Xxxxxxx Xxxx
------------------------------
Xxxxxxx Xxxx,
as Trustee of the Fancy Fechser Trust
/s/ Xxxxx Xxxxxxxx
------------------------------
Xxxxx Xxxxxxxx,
as Trustee of the Xxxxx X. Xxxxxxx Trust
/s/ Xxxxxxx Xxxxxxxx
------------------------------
Xxxxxxx Xxxxxxxx,
as Trustee of the Xxxxxx X. Xxxxxxx Trust
/s/ Xxxxx Xxxxxxxx
------------------------------
Xxxxx Xxxxxxxx,
as Trustee of the Xxxxxx Xxxxxxx Trust
/s/ Xxxx Xxxxxx
------------------------------
Xxxx Xxxxxx,
as Trustee of the Xxx X. Xxxxxxx Trust
/s/ Xxxx Xxxxxx
------------------------------
Xxxx Xxxxxx,
as Trustee of the Xxxxx Xxx Xxxxxxx Trust
/s/ Xxxxx Xxxxxxx
------------------------------
Xxxxx Xxxxxxx
/s/ Xxxxx Xxxxxxx
------------------------------
Xxxxxx Xxxxxxx
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/s/ Xxxx Xxxxxxx
------------------------------
Xxxx Xxxxxxx
/s/ Xxx Xxxxxxx
------------------------------
Xxx Xxxxxxx
/s/ Xxxxx Xxxxx
------------------------------
Xxxxx Xxxxx
/s/ Xxxxxxxx Xxxx
------------------------------
Xxxxxxxx Xxxx
/s/ Xxxx Xxxxxxxx
------------------------------
Xxxx Xxxxxxxx
/s/ Xxxx Xxxx
------------------------------
Xxxx Xxxx
/s/ Xxxxx Xxxxxx
------------------------------
Xxxxx Xxxxxx
/s/ Xxxxxx XxXxxxx
------------------------------
Xxxxxx XxXxxxx
/s/ G.A. Xxxxxxxx, III
------------------------------
G.A. Xxxxxxxx, III
/s/ Xxxxxx Xxxxx
------------------------------
Xxxxxx Xxxxx
/s/ Xxxxx X.. Xxxxx
------------------------------
Xxxxx X Xxxxx
27
28
/s/ Xxxxxx Xxxx
------------------------------
Xxxxxx Xxxx
/s/ Xxxxx Xxxxxx
------------------------------
Xxxxx Xxxxxx
/s/ Xxxxxx Xxxxxxxxx
------------------------------
Xxxxxx Xxxxxxxxx
/s/ Xxxxx Xxxxxxxxx
------------------------------
Xxxxxx Xxxxxxxxx
/s/ Xxxxxx Xxxxxxx
------------------------------
Xxxxxx Xxxxxxx
/s/ Xxxxxx X. Xxxxxxx
------------------------------
Xxxxxx X. Xxxxxxx
/s/ Xxxx Border
------------------------------
Xxxx Border
/s/ Xxxxxxx Xxxxx
------------------------------
Xxxxxxx Xxxxx
Xxxx X. Xxxxxx, the duly elected Secretary of Horseshoe Gaming Holding
Corp., hereby certifies that this Subscription and Reorganization Agreement has
been adopted by Horseshoe Gaming Holding Corp. pursuant to subsection (f) of
Section 251 of the Delaware General Corporation Law and that no shares of stock
of Horseshoe Gaming Holding Corp. were issued prior to the adoption by the Board
of Directors of Horseshoe Gaming Holding Corp. of the resolution approving this
Subscription and Reorganization Agreement.
Date: Xxxx X. Xxxxxx
------------------------- -----------------------------
Name:
Title: Secretary
28
29
Annex A
I. Class A Shares
Subscribers Contribution Units Subscribed Shares
--------------------------------------------------------------------------------
Peri Xxxx Xxxxxx, as the sole
stockholder of Xxxxxxxx
Property Group, Inc. 231,779.0 67.737818
Peri Xxxx Xxxxxx 378,025.0 110.478467
Xxxxx Xxxxxxx, as Trustee
of the Xxxxx X'Xxxxx Trust 3,277,941.0 957.98
Xxxxx Xxxxxxx, as Trustee
of the Xxxxxx X'Xxxxx Trust 3,277,941.0 957.98
Peri Xxxx Xxxxxx,
as Trustee of the Xxx X. Xxxxxxx
Trust 945,059.0 276.20
Peri Xxxx Xxxxxx,
as Trustee of the Fancy Xxx Xxxxxxx
Trust 945,059.0 276.20
Peri Xxxx Xxxxxx,
as Trustee of the
Xxxxx Xxxxxxxxxxx Xxxxxxx Trust 945,059.0 276.20
Peri Xxxx Xxxxxx,
as Trustee of the
Xxxxxx Xxxxxx Xxxxxxx Trust 945,059.0 276.20
Peri Xxxx Xxxxxx,
as Trustee of the Xxxxx X'Xxxxx Trust 945,059.0 276.20
Peri Xxxx Xxxxxx,
as Trustee of the Xxxxxx X'Xxxxx Trust 945,059.0 276.20
Peri Xxxx Xxxxxx,
as Trustee of the Ben Xxxx Xxxxxxx Trust 945,059.0 276.20
29
30
Peri Xxxx Xxxxxx,
as Trustee of the Xxxxxx Xxxxxxx Trust 945,059 276.20
Peri Xxxx Xxxxxx,
as Trustee of the Xxxxxx Xxxxxx Trust 189,013.0 55.24
Peri Xxxx Xxxxxx,
as Trustee of the Xxxxx Xxxxxx Trust 189,013.0 55.24
Peri Xxxx Xxxxxx,
as Trustee of the Xxxx Xxxxxx Trust 189,013.0 55.24
Key Fechser 189,013.0 55.24
Xxxxx Xxxxxxx 189,013.0 55.24
Xxxxx Xxxxxxx 189,013.0 55.24
Xxxxxx Xxxxx 378,025.0 110.48
Xxxxxxx Xxxx,
as Trustee of the Xxx X. Xxxxxxx Trust 3,277,941.0 957.98
Xxxxxxx Xxxx,
as Trustee of the Fancy Fechser Trust 3,277,941.0 957.98
Xxxxx Xxxxxxxx,
as Trustee of the Xxxxx X. Xxxxxxx Trust 2,185,294.0 638.66
Xxxxxxx Xxxxxxxx,
as Trustee of the Xxxxxx X. Xxxxxxx Trust 2,185,294.0 638.66
Xxxxx Xxxxxxxx,
as Trustee of the Xxxxxx Xxxxxxx Trust 2,185,294.0 638.66
Xxxx Xxxxxx,
as Trustee of the Xxx X. Xxxxxxx Trust 1,638,970.5 478.99
Xxxx Xxxxxx,
as Trustee of the Xxxxx Xxx Xxxxxxx Trust 1,638,970.5 478.99
Xxxxx Xxxxxxx 525,989.0 153.72
30
31
Xxxxxx Xxxxxxx 525,989.0 153.72
Xxxx Xxxxxxx 525,989.0 153.72
Xxx Xxxxxxx 525,989.0 153.72
Xxxxx Xxxxx 2,103,957.0 614.89
Xxxxxxxx Xxxx 631,986.0 184.70
Xxxx Xxxxxxxx 434,586.0 127.01
Xxxx Xxxx 131,497.0 38.43
Xxxxx Xxxxxx 289,724.0 84.67
Xxxxxx XxXxxxx 144,862.0 42.34
G.A. Xxxxxxxx, III 1,158,897.0 338.69
Xxxxxx Xxxxx 19,492.20 5.70
Xxxxx X. Xxxxx 19,492.20 5.70
Xxxxxx Xxxx 2,923.83 0.85
Xxxxx Xxxxxx 2,923.83 0.85
Xxxxxx Xxxxxxxxx 2,923.83 0.85
Xxxxxx Xxxxxxxxx 2,514,067.61 734.74
Xxxxxx Xxxxxxx 1,285,784.0 375.77
Xxxxxx X. Xxxxxxx 500,489.0 146.27
Xxxx Border 503,004.0 147.00
Xxxxxxx Xxxxx 389,846.0 113.93
31
32
II. Class B Shares
Subscribers Contribution Units Subscribed Shares
--------------------------------------------------------------------------------
Xxxx X. Xxxxxx 17,366,247.0 5,075.32
32
33
Annex B
I. Class A Shares
HGI Stockholders HGI Shares Contribution Units Subscribed Shares
--------------------------------------------------------------------------------
Peri Xxxx Xxxxxx 200 3,725,007 1,088.64
Xxxxxx Xxxxx 200 3,725,007 1,088.64
II. Class B Shares
HGI Stockholder HGI Shares Contribution Units Subscribed Shares
--------------------------------------------------------------------------------
Xxxx X. Xxxxxx 872.38856 16,247,895 4,748.475724
33
34
Exhibit A
CERTIFICATE OF INCORPORATION
OF HORSESHOE GAMING HOLDING CORP.
35
Exhibit B
BYLAWS OF HORSESHOE GAMING HOLDING CORP.
Bylaws of
HORSESHOE GAMING HOLDING CORP.
(A Delaware Corporation)
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of the Corporation
shall be located at Corporation Trust Center, 0000 Xxxxxx Xxxxxx in the City of
Wilmington, County of New Castle, State of Delaware.
Section 2. Other Offices. The Corporation may also have offices at such
other places both within and without the State of Delaware as the Board of
Directors of the Corporation (the "Board") may from time to time determine or
the business of the Corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Time and Place of Meetings. All meetings of the stockholders
for the election of directors or for any other purpose shall be held at such
time and place, within or without the State of Delaware, as shall be stated in
the notice of the meeting or in a duly executed waiver of notice thereof.
Section 2. Annual Meetings. Annual meetings of stockholders shall be held
at such time and on such day, other than a legal holiday, as the Board in each
such year shall determine, at which meeting the stockholders entitled to vote
for the election of directors shall elect, by a plurality vote, a Board of
Directors and transact such other business as may properly be brought before the
meeting.
Section 3. Notice of Annual Meetings. Written notice of the annual meeting
stating the place, date and hour of the meeting shall be given to each
stockholder entitled to vote at such meeting not less than ten nor more than
sixty days before the date of the meeting. When a meeting is adjourned to
another place, date or time, written notice need not be given of the adjourned
meeting if the place, date and time thereof are announced at the meeting at
which the adjournment is taken; provided, however, that if the date of any
adjourned meeting is more than thirty days after the date for which the meeting
was originally noticed, or if a new record date is fixed for the adjourned
meeting, written notice of the place, date, and time of the adjourned meeting,
shall be given in
36
conformity herewith. At any adjourned meeting, any business may be transacted
which might have been transacted at the original meeting.
Section 4. Special Meetings. Special meetings of the stockholders, for any
purpose or purposes, unless otherwise prescribed by the General Corporation Law
of the State of Delaware or by the Certificate of Incorporation, may be called
by the President and shall be called by the President or Secretary at the
request in writing of a majority of the Board, or at the request in writing of
stockholders holding shares of stock that represent more than fifty percent of
the votes entitled to be cast at a meeting of the stockholders of the
Corporation. Such request shall state the purpose or purposes of the proposed
meeting.
Section 5. Notice of Special Meetings. Written notice of a special meeting
stating the place, date and hour of the meeting and the purpose or purposes for
which the meeting is called shall be given not less than ten nor more than sixty
days before the date of the meeting, to each stockholder entitled to vote at
such meeting. When a meeting is adjourned to another place, date or time,
written notice need not be given of the adjourned meeting if the place, date and
time thereof are announced at the meeting at which the adjournment is taken;
provided, however, that if the date of any adjourned meeting is more than thirty
days after the date for which the meeting was originally noticed, or if a new
record date is fixed for the adjourned meeting, written notice of the place,
date, and time of the adjourned meeting, shall be given in conformity herewith.
At any adjourned meeting, any business may be transacted which might have been
transacted at the original meeting.
Section 6. Quorum. Stockholders holding shares of stock that represent
more than fifty percent of the votes entitled to be cast at a meeting of the
stockholders of the Corporation, present in person or represented by proxy,
shall constitute a quorum at all meetings of the stockholders for the
transaction of business except as otherwise provided by the General Corporation
Law of the State of Delaware or by the Certificate of Incorporation. If,
however, such quorum shall not be present or represented at any meeting of the
stockholders, the stockholders entitled to vote thereat, present in person or
represented by proxy, shall have the power to adjourn the meeting from time to
time to another place, date or time. If a notice of any adjourned special
meeting of stockholders is sent to all stockholders entitled to vote thereat,
stating that it will be held with those present constituting a quorum, then
except as otherwise required by the General Corporation Law of the State of
Delaware, those present at such adjourned meeting shall constitute a quorum, and
all matters shall be determined by a majority of the votes cast at such meeting.
Section 7. Organization. Such person as the Board may have designated or,
such person as may be chosen by the holders of a majority of the votes entitled
to be cast who are present, in person or by proxy, shall call to order any
meeting of the stockholders and act as chairman of the meeting. In the absence
of the Secretary of the Corporation, the secretary of the meeting shall be such
person as the chairman of the meeting appoints.
Section 8. Action by Stockholders. When a quorum is present at any
meeting, a majority of the votes cast at such meeting, whether by stockholders
who are present in person or represented
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37
by proxy, shall decide any question brought before such meeting, unless the
question is one upon which, by express provision of the General Corporation Law
of the State of Delaware or of the Certificate of Incorporation, a different
vote is required in which case such express provision shall govern and control
the decision of such question.
Section 9. Proxies and Voting. At any meeting of the stockholders, every
stockholder entitled to vote may vote in person or by proxy authorized by an
instrument in writing filed in accordance with the procedure established for the
meeting. Except as otherwise provided in the Certificate of Incorporation of the
Corporation or in these Bylaws, or except as otherwise required by the General
Corporation Law of the State of Delaware, each stockholder shall have one vote
for every share of stock entitled to vote which is registered in his or her name
on the record date for the meeting. All voting, including on the election of
directors but excepting where otherwise required by the General Corporation Law
of the State of Delaware, may be by a voice vote.
Section 10. Stock List. A complete list of stockholders entitled to vote
at any meeting of stockholders, arranged in alphabetical order for each class of
stock and showing the address of each such stockholder and the number of shares
registered in his or her name, shall be open to the examination of any such
stockholder, for any purpose germane to the meeting, during ordinary business
hours for a period of at least ten days prior to the meeting, either at a place
within the city where the meeting is to be held, which place shall be specified,
or at the place where the meeting is to be held. The stock list shall also be
kept at the place of the meeting during the whole time thereof and shall be open
to the examination of any such stockholder who is present. This list shall
presumptively determine the identity of the stockholders entitled to vote at the
meeting and the number of shares held by each of them.
Section 11. Written Action. Any action required to be taken at any annual
or special meeting of stockholders of the Corporation, or any action which may
be taken at any annual or special meeting of such stockholders, may be taken
without a meeting, without prior notice and without a vote, if a consent in
writing, setting forth the action so taken, shall be signed by the holders of
outstanding stock having not less than the minimum number of votes that would be
necessary to authorize or take such action at a meeting at which all shares
entitled to vote thereon were present and voted.
ARTICLE III
DIRECTORS
Section 1. Number and Term. The Board shall consist of three or more
members. The first Board shall consist of three directors. Thereafter, within
the limits above specified, the number of directors shall be determined in
accordance with the Certificate of Incorporation, by resolution of the Board or
by the stockholders at the annual meeting or a special meeting. The directors
shall be elected at the annual meeting of the stockholders, except as provided
in Section 2 of this Article, and each director elected shall hold office until
his or her successor is elected and qualified.
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Directors need not be stockholders. Whenever the authorized number of directors
is increased between annual meetings of the stockholders, a majority of the
directors then in office shall have the power to elect such new directors for
the balance of a term and until their successors are elected and qualified. Any
decrease in the authorized number of directors shall not become effective until
the expiration of the term of the directors then in office unless, at the time
of such decrease there shall be vacancies on the Board that are being eliminated
by the decrease.
Section 2. Resignation and Removal. Any director may resign at any time
upon notice of resignation to the Corporation. Any director may be removed at
any time by vote of the stockholders then entitled to vote for the election of
directors at a special meeting called for that purpose, either with or without
cause.
Section 3. Vacancies. If the office of any director becomes vacant by
reason of death, resignation, disqualification, removal or other cause, a
majority of the directors remaining in office, although less than a quorum, may
elect a successor for the unexpired term and until his or her successor is
elected and qualified.
Section 4. Powers and Duties. Subject to the applicable provisions of law,
these ByLaws or the Certificate of Incorporation, but in furtherance and not in
limitation of any rights therein conferred, the Board shall have the control and
management of the business and affairs of the Corporation and shall exercise all
such powers of the Corporation and do all such lawful acts and things as may be
exercised by the Corporation, including, without limiting the generality of the
foregoing, the unqualified power:
(1) To declare dividends from time to time in accordance with law;
(2) To purchase or otherwise acquire any property, rights or
privileges on such terms as it shall determine;
(3) To authorize the creation, making and issuance, in such form as
it may determine, of written obligations of every kind, negotiable or
non-negotiable, secured or unsecured, and to do all things necessary in
connection therewith;
(4) To remove any officer of the Corporation with or without cause,
and from time to time to devolve the powers and duties of any officer upon any
other person for the time being;
(5) To confer upon any officer of the Corporation the power to
appoint, remove and suspend subordinate officers, employees and agents;
(6) To adopt from time to time such stock, option, stock purchase,
bonus or other compensation plans for directors, officers, employees and agents
of the Corporation and its subsidiaries as it may determine;
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39
(7) To adopt from time to time such insurance, retirement, and other
benefit plans for directors, officers, employees and agents of the Corporation
and its subsidiaries as it may determine; and,
(8) To adopt from time to time regulations, not inconsistent with
these Bylaws, for the management of the Corporation's business and affairs.
Section 4. Compensation of Directors. Directors, as such, may receive,
pursuant to resolution of the Board, fixed fees and other compensation for their
services as directors, including, fees for attendance at meetings of the Board.
Section 5. Place of Meetings. The Board of the Corporation may hold
meetings, both regular and special, either within or without the State of
Delaware.
Section 6. Regular Meetings. Regular meetings of the Board may be held
upon such notice or without notice at such time and at such place as shall from
time to time be determined by the Board.
Section 7. Special Meetings. Special meetings of the Board may be called
by the President or Secretary on one day's notice to each director, either
personally or by mail or by telegram; special meetings of the Board shall be
called by the President or Secretary in like manner and on like notice on the
written request of a majority of the Board.
Section 8. Quorum. At all meetings of the Board, a majority of the
directors then in office shall constitute a quorum for transaction of business,
and the act of a majority of the directors present at any meeting at which there
is a quorum shall be the act of the Board, except as may be otherwise
specifically provided by the General Corporation Law of the State of Delaware or
by the Certificate of Incorporation. If a quorum shall not be present at any
meeting of the Board, the directors present thereat may adjourn the meeting from
time to time, without notice other than announcement at the meeting, until a
quorum shall be present.
Section 9. Written Action. Unless otherwise restricted by the Certificate
of Incorporation or these By-laws, any action required or permitted to be taken
at any meeting of the Board or of any committee thereof may be taken without a
meeting, if all members of the Board or committee, as the case may be, consent
thereto in writing, and the writing or writings are filed with the minutes or
proceedings of the Board or committee.
Section 10. Participation in Meetings by Conference Telephone. Unless
otherwise restricted by the Certificate of Incorporation or these By-laws,
members of the Board, or any committee designated by the Board, may participate
in a meeting of the Board, or any committee, by means of conference telephone or
similar communications equipment by means of which all persons participating in
the meeting can hear each other, and such participation in a meeting shall
constitute presence in person at the meeting.
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ARTICLE IV
COMMITTEES
Section 1. Generally. The Board may designate one or more committees, each
committee to consist of one or more of the directors of the Corporation. Any
such committee shall have and may exercise all the powers and authority of the
Board in the management of the business and affairs of the Corporation, and may
authorize the seal of the Corporation to be affixed to all papers which may
require it; but no such committee shall have the power or authority in reference
to amending the Certificate of Incorporation, adopting an agreement of merger or
consolidation, recommending to the stockholders the sale, lease or exchange of
all or substantially all of the Corporation's property and assets, recommending
to the stockholders a dissolution, or amending the By-laws of the Corporation;
and unless the resolution or By-laws expressly so provide, no such committee
shall have the power or authority to declare a dividend or to authorize the
issuance of stock.
Section 2. Committee Procedure. Each committee may determine the
procedural rules for meeting and conducting its business and shall act in
accordance therewith, except as otherwise provided herein or required by law.
Adequate provision shall be made for notice to members of all meetings;
one-third of the members shall constitute a quorum unless the committee shall
consist of one or two members, in which event one member shall constitute a
quorum; and all matters shall be determined by a majority vote of the members
present. Action may be taken by any committee without a meeting if all members
thereof consent thereto in writing, and the writing or writings are filed with
the minutes of the proceedings of such committee. In the absence or
disqualification of a member of a committee, the member or members thereof
present at any meeting and not disqualified from voting, whether or not he or
they constitute a quorum, may unanimously appoint another member of the Board to
act at the meeting in the place of any such absent or disqualified member.
ARTICLE V
NOTICES
Section 1. Generally. Whenever, under the provisions of the General
Corporation Law of the State of Delaware or of the Certificate of Incorporation
or of these By-laws, notice is required to be given to any director,
stockholder, employee or agent, it shall not be construed to mean personal
notice, but such notice may be given in writing, by mail, addressed to such
director or stockholder, at his or her last known address as the same appears on
the books of the Corporation, with postage thereon prepaid, and such notice
shall be deemed to be given at the time when the same shall be deposited in the
United States mail. Notice to directors may also be given by telegram or
telephone.
Section 2. Waiver. Whenever any notice is required to be given under the
provisions of
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the General Corporation Law of the State of Delaware or of the Certificate of
Incorporation or of these By-laws, a waiver thereof in writing, signed by the
person or persons entitled to said notice, whether before or after the time
stated therein shall be deemed equivalent thereto.
ARTICLE VI
OFFICERS
Section 1. Number and Designation. The officers of the Corporation shall
be a Chief Executive Officer, a President, a Secretary and such other officers
(e.g., one or more Vice Presidents, a Chief Financial Officer, a Treasurer and
one or more Assistant Secretaries or Assistant Treasurers) as the Board from
time to time considers necessary for the proper conduct of the business of the
Corporation. Any two or more offices may be held by the same person. Vacancies
may be filled or new offices created and filled at any meeting of the Board.
Each officer shall hold office until his or her successor shall have been duly
elected and shall have qualified or until his or her earlier death, resignation,
or removal.
Section 2. Chief Executive Officer. The Chief Executive Officer ("CEO") of
the Corporation shall generally supervise and control all of the business and
affairs of the Corporation. The CEO may sign, alone or with the Secretary or any
other proper officer of the Corporation thereunto authorized by the Board of
Directors, any deeds, mortgages, bonds, contracts, or other instruments that the
Board of Directors has authorized to be executed, except in cases where the
signing and execution thereof shall be expressly delegated by the Board of
Directors or by these By-Laws to some other officer or agent of the Corporation,
or shall be required by law to be otherwise signed or executed, and in general
he shall perform all duties incident to the office of the chief executive
officer and such other duties as from time to time may be prescribed by the
Board of Directors. When present, he shall preside at all meetings of the
stockholders and of the Board of Directors.
Section 3. President. The President shall be the principal operating
officer of the Corporation. In the event the office of the CEO is vacant or in
the event of the inability of the CEO to act as such or upon the refusal by the
CEO to perform the duties of the CEO, the President shall perform the duties and
exercise the authority of the CEO and, when so acting, shall have all the powers
of, and be subject to all the restrictions placed upon the CEO. He may sign,
alone or with the Secretary or any other proper officer of the Corporation
thereunto authorized by the Board of Directors, any deeds, mortgages, bonds,
contracts or other instruments that the Board of Directors has authorized to be
executed, except in cases where the signing and execution thereof shall be
expressly delegated by the Board of Directors or by these By-Laws to some other
officer or agent of the Corporation, or shall be required by law to be otherwise
signed or executed, and in general he shall perform all duties incident to the
office of President and such other duties as from time to time may be prescribed
by the Board of Directors or the CEO, subject, however, to the control of the
Board and the CEO.
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Section 4. The Secretary. The Secretary shall (a) keep the minutes of the
stockholders' and of the Board meetings and committees of the Board in one or
more books provided for that purpose; (b) see that all notices are duly given in
accordance with the provisions of these By-Laws or as required by law; (c) be
custodian of the corporate records; (d) keep a register of the post office
address of each stockholder, director or committee member, which shall be
furnished to the Secretary by such stockholder, director or member; (e) have
general charge of the stock transfer books of the Corporation; and (f) in
general perform all duties incident to the office of Secretary and such other
duties as from time to time may be assigned to him by the CEO or the Board.
Section 5. The Treasurer. The Treasurer or such other officer of the
Corporation as may be named by the Board or appointed by the CEO of the
Corporation to perform such function, shall have charge and custody of and be
responsible for all funds and securities of the Corporation, receive and give
receipts for moneys due and payable to the Corporation from any source
whatsoever, deposit all such moneys in the name of the Corporation in such
banks, trust companies or other depositories as shall be selected by the Board
or the CEO of the Corporation, disburse the funds of the Corporation as ordered
by the Board or the CEO of the Corporation or as otherwise required in the
conduct of the business of the Corporation, and render to the CEO of the
Corporation or the Board, upon request, an account of all his transactions as
Treasurer and on the financial condition of the Corporation. The Treasurer,
unless another officer of the Corporation is named by the Board to perform such
functions, shall have the duties and responsibilities and shall exercise the
authority and powers of the chief financial officer of the Corporation, and
shall in general perform all the duties incident to the office of Treasurer and
such other duties as from time to time may be assigned to him by the President
or by the Board. If required by the Board, the Treasurer shall give a bond
(which shall be renewed regularly), in such sum and with such surety or sureties
as the Board shall determine for the faithful discharge of his duties and for
the restoration to the Corporation, in case of his death, resignation,
retirement or removal from office, of all books, papers, vouchers, money and
other property of whatever kind in his possession or under his control belonging
to the Corporation.
Section 6. Assistant Treasurers and Assistant Secretaries. Assistant
Treasurers and Assistant Secretaries shall perform such duties as shall be
assigned to them by the Treasurer or by the Secretary, respectively, or by the
Board or the President. The Assistant Treasurers shall, respectively, if
required by the Board, give bonds (which shall be renewed regularly) for the
faithful discharge of their duties in such sums and with such sureties as the
Board shall determine.
Section 7. Compensation. The salaries of the officers shall be fixed from
time to time by the Board or such officer as the Board shall designate for such
purpose or as it shall otherwise direct. No officer shall be prevented from
receiving such salary by reason of the fact that he is also a director of the
Corporation.
Section 8. Tenure and Removal. The officers of the Corporation shall be
elected or appointed to hold office until their respective successors are
elected or appointed. All officers shall hold office at the pleasure of the
Board, and any officer elected or appointed may be removed at any
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time, with or without cause, by the Board.
ARTICLE VII
CERTIFICATES OF STOCK
Section 1. Certificates. Each stockholder shall be entitled to a
certificate signed by, or in the name of the Corporation by, the President or a
Vice President, and by the Secretary or an Assistant Secretary, or the Treasurer
or an Assistant Treasurer, certifying the number of shares owned by him or her.
Any or all of the signatures on the certificate may be facsimile.
Section 2. Uncertificated Shares. Subject to any conditions imposed by the
General Corporation Law of the State of Delaware or by the Certificate of
Incorporation, the Board may provide by resolution or resolutions that some or
all of any or all classes or series of the stock of the corporation shall be
uncertificated shares. Within a reasonable time after the issuance or transfer
of any uncertificated shares, the corporation shall send to the registered owner
thereof any written notice prescribed by the General Corporation Law.
Section 3. Lost Certificates. The corporation may issue a new certificate
of stock or uncertificated shares in place of any certificate theretofore issued
by it, alleged to have been lost, stolen, or destroyed, upon the satisfaction of
such conditions as the Board may require including, but not limited to,
requiring the owner of the lost, stolen, or destroyed certificate, or his legal
representative to give the corporation a bond sufficient to indemnify the
corporation against any claim that may be made against it on account of the
alleged loss, theft, or destruction of any such certificate or the issuance of
any such new certificate or uncertificated shares, and the Board may delegate to
an officer of the corporation the power to determine whether such conditions
have been satisfied and to cause such replacement certificates or uncertificated
shares to be issued.
Section 4. Stock Transfers. The Board shall have the power and authority
to make all such rules and regulations as it may deem expedient concerning the
issue, transfer and registration of certificates of stock. The Board may appoint
transfer agents and registrars thereof.
Section 5. Record Date. The Board may fix in advance a date as a record
date for the determination of the stockholders entitled to notice of or to vote
at any meeting of stockholders or to express consent (or dissent) to corporate
action in writing without a meeting, or entitled to receive payment of any
dividend or other distribution or allotment of any rights in respect of any
change, conversion or exchange of stock, or for the purpose of any other lawful
action. Such record date shall not be more than sixty nor less than ten days
before the date of such meeting, nor more than sixty days prior to any other
action to which such record date relates.
If no record date is fixed, the record date for determining stockholders
entitled to notice of or to vote at a meeting of stockholders shall be at the
close of business on the day before the day on which notice is given, or, if
notice is waived, at the close of business on the day before the day on
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which the meeting is held. The record date for determining stockholders entitled
to express consent to corporate action in writing without a meeting, when no
prior action by the Board is necessary, shall be the day on which the first
written consent is expressed. The record date for determining stockholders for
any other purpose shall be at the close of business on the day on which the
Board adopts the resolution relating to such purpose.
A determination of stockholders of record entitled to notice of or to vote
at a meeting of stockholders shall apply to any adjournment of the meeting;
provided, however, that the Board may fix a new record date for the adjourned
meeting.
6. Fractional Shares. The corporation may issue fractional shares, and
holders of fractional shares shall be entitled to all of the rights of a
stockholder thereof.
ARTICLE VIII
INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Corporation shall protect and indemnify, and advance related expenses
to, directors and officers and former directors and officers of the Corporation
and their heirs, executors and administrators, to the full extent that the
Corporation shall have power to do so under the General Corporation Law of the
State of Delaware as it exists on the effective date of the Certificate of
Incorporation and as it may thereafter be amended or supplemented by law.
Employees and agents of the Corporation other than such directors or officers
shall be so indemnified to the extent required by the General Corporation Law of
the State of Delaware and to such further extent permitted by any other laws, if
any, and as shall be provided pursuant to resolution of the Board. Whether or
not and to what extent the Corporation shall purchase and maintain insurance on
behalf of any such directors, officers, employees or agents, to the extent it
shall have power to do so under the General Corporation Law of the State of
Delaware as so existing or as it may hereafter be amended or supplemented, shall
be in the full discretion of the Board.
ARTICLE IX
GENERAL PROVISIONS
Section 1. Dividends upon the capital stock of the Corporation, subject to
the provisions of the Certificate of Incorporation, if any, may be declared by
the Board at any regular or special meeting, pursuant to law. Dividends may be
paid in cash, in property, or in shares of the capital stock, subject to the
provisions of the Certificate of Incorporation.
Section 2. Before payment of any dividend, there may be set aside out of
any funds of the Corporation available for dividends such sum or sums as the
directors from time to time, in their absolute discretion, think proper as a
reserve or reserves to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the Corporation, or for such other
purpose
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as the directors shall think conducive to the interest of the Corporation, and
the directors may modify or abolish any such reserve in the manner in which it
was created.
Section 3. All checks or demands for money and notes of the Corporation
shall be signed by such officer or officers or such other person or persons as
the Board may from time to time designate.
Section 4. The fiscal year of the Corporation shall be fixed by resolution
of the Board.
Section 5. The Board may adopt a corporate seal and use the same by
causing it or a facsimile thereof to be impressed or affixed or reproduced or
otherwise.
Section 6. The Corporation shall keep correct and complete books and
records of its accounts and transactions and minutes of the proceedings of its
stockholders and Board. The books of the Corporation may be kept (subject to any
provisions contained in the General Corporation Law of the State of Delaware)
outside the State of Delaware at such place or places as may be designated from
time to time by the Board.
Section 7. In addition to the provisions for use of facsimile signatures
elsewhere specifically authorized in these By-laws, facsimile signatures of any
officer or officers of the Corporation may be used whenever and as authorized by
the Board or a committee thereof
ARTICLE X
ADOPTION AND AMENDMENTS
These By-laws may be altered, amended or repealed or new By-laws may be
adopted by the Board; provided, however, that these By-Laws and any other
By-laws amended or adopted by the Board may be amended, may be repealed, and new
By-laws may be adopted, by the stockholders of the Corporation entitled to vote
at the time for the election of directors.
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Exhibit 3C
FORM OF STOCKHOLDERS AGREEMENT
47
Exhibit 8E(b)
LIST OF JURISDICTIONS
48
Exhibit 8E(c)
CURRENT BENEFICIARIES
The people in the parenthesis are the potential income beneficiaries:
(1) Xxxxxxx Xxxx, as Trustee for Trust Agreement between Key X. Xxxxxxx and
Xxxxxxx Xxx Xxxx- (Xxx X. Xxxxxxx, Beneficiary);
(2) Xxxxxxx Xxxx, as Trustee for Trust Agreement between Key X. Xxxxxxx and
Xxxxxxx Xxx Xxxx- (Fancy Xxx Xxxxxxx, Beneficiary);
(3) Xxxxxxx Xxxxxxxx, as Trustee for Trust Agreement between Xxxxxx X. Xxxxxxx
and Xxxxxxx Xxx Xxxx- (Xxxxxx X Xxxxxxx, Beneficiary);
(4) Xxxxx Xxxxxxxx, as Trustee for Trust Agreement between Xxxxxx X. Xxxxxxx
and Xxxxx Xxxxxxxx- (K. Xxxxxx Xxxxxxx, Beneficiary);
(5) Xxxxx Xxxxxxxx, as Trustee for Trust Agreement between Xxxxxx X. Xxxxxxx
and Xxxxxxx Xxx Xxxx- (Xxxxx X. Xxxxxxx, Beneficiary);
(6) Xxxxx Xxxxxxx, as Trustee for Trust Agreement between Xxxxxx X. Xxxxx and
Xxxxx Xxxxxxxxx Xxxxxxx- (Xxxxx X'Xxxxx, Beneficiary);
(7) Xxxxx Xxxxxxx, as Trustee for Trust Agreement between Xxxxxx X. Xxxxx and
Xxxxx Xxxxxxxxx Xxxxxxx- (Xxxxxx X'Xxxxx, Beneficiary);
(8) Xxxx Xxxxxx, as Trustee for Trust Agreement between Xxxxx X. Xxxxxxx and
Xxxxxxx Xxx Xxxx- (Xxxxx Xxxx Xxxxxxx, Beneficiary);
(9) Xxxx Xxxxxx, as Trustee for Trust Agreement between Xxxxx X. Xxxxxxx and
Xxxxxxx Xxx Xxxx- (Xxx X. Xxxxxxx, Beneficiary).
49
Exhibit 9E(b)
LIST OF JURISDICTIONS
50
Exhibit 9E(c)
CURRENT BENEFICIARIES
00
Xxxxxxx 0X
XXXXXXX XXXXX XX XXX
Stockholders Shares Owned
--------------------------------------------------------------------------------
Xxxx X. Xxxxxx 872.389
Peri Xxxx Xxxxxx 200.000
Xxxxxx Xxxxx 200.000
52
Exhibit 10F
CAPITAL STOCK OF RPGI
Shareholder Shares Owned
----------- ------------
Peri Xxxx Xxxxxx 2,500
