EXHIBIT 5
LOCK-UP AGREEMENT
December 11, 2001
BEAR, XXXXXXX & CO. INC.
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX
& XXXXX INCORPORATED
CIBC WORLD MARKETS CORP.
as Representatives of the several Underwriters
c/o Bear, Xxxxxxx & Co. Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
and
x/x Xxxxxxx Xxxxx & Xx.
Xxxxxxx Lynch, Pierce, Xxxxxx
& Xxxxx Incorporated
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Re: Ameristar Casinos, Inc.
Ladies and Gentlemen:
In consideration of the agreement of the several Underwriters, for which
Bear, Xxxxxxx & Co. Inc. ("BEAR"), Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx Incorporated ("MERRILL") and CIBC World Markets Corp. intend to
act as Representatives, to underwrite a proposed public offering (the
"OFFERING") of shares of common stock (the "COMMON STOCK") of Ameristar Casinos,
Inc., a corporation organized under the laws of the State of Nevada (the
"COMPANY"), as contemplated by a registration statement filed with the
Securities and Exchange Commission on Form S-2 (File No. 333-73178), except as
otherwise provided herein, the undersigned hereby (i) agrees that the
undersigned will not, directly or indirectly, during a period of ninety (90)
days from the date of the final prospectus for the Offering (the "LOCK-UP
PERIOD"), without the prior written consent of both Bear and Merrill, (a) offer
to sell, contract to sell, or otherwise sell, dispose of, loan, pledge or grant
any rights with respect to any shares of Common Stock or any options or warrants
to purchase any shares of the Common Stock, or any securities convertible into,
exercisable for or exchangeable for shares of Common Stock owned as of the
beginning of the Lock-Up Period or thereafter acquired directly by the
undersigned or with respect to which the undersigned has the power of
disposition; or (b) enter into any swap or other arrangement that transfers all
or a portion of the economic consequences associated with the ownership of any
Common Stock (regardless of whether any of these transactions are to be settled
by the delivery of Common Stock, or such other securities,
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in cash or otherwise) and (ii) authorizes the Company during the Lock-Up Period
to cause the transfer agent to decline to transfer and/or to note stop transfer
restrictions on the transfer books and records of the Company with respect to
any shares of Common Stock and any securities convertible into, exercisable for
or exchangeable for Common Stock for which the undersigned is the record holder
and, in the case of any such share or securities for which the undersigned is
the beneficial but not the record holder, agrees to cause the record holder to
cause the transfer agent to decline to transfer and/or to note stop transfer
restrictions on such books and records with respect to such shares or
securities.
The undersigned further agrees, from the date hereof until the
end of the Lock-Up Period, that the undersigned will not exercise and will waive
his, her or its rights, if any, to require the Company to register its Common
Stock and to receive notice thereof.
Notwithstanding the foregoing, the undersigned may transfer
shares of Common Stock or common stock equivalents by gift, will or intestate
succession to the undersigned's family or to a trust the beneficiaries of which
are exclusively the undersigned and/or a member or members of the undersigned's
immediate family (for purposes of this paragraph, "immediate family" shall mean
spouse, lineal descendent, father, mother, brother or sister of the transferor);
provided, however, that in any such case it shall be a condition to the transfer
that (i) each transferee execute an agreement stating that the transferee is
receiving and holding the shares of Common Stock or common stock equivalents
subject to the provisions of this agreement and there shall be no further
transfer of such shares of Common Stock or common stock equivalents except in
accordance with this agreement and (ii) each transferee certifies in writing to
Bear and Merrill that such transferee is in compliance with the terms of this
agreement as if such transferee had been bound by this agreement from the
original date of this agreement.
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The undersigned hereby represents and warrants that the
undersigned has full power and authority to enter into the agreements set forth
herein, and that, upon request, the undersigned will execute any additional
documents necessary in connection with enforcement hereof. Any obligations of
the undersigned shall be binding upon the successors and assigns of the
undersigned.
Very truly yours,
/s/ XXXXX X. XXXXXXX
------------------------------------
Name: Xxxxx X. Xxxxxxx
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On this 11th of December, 2001, Xxxxx X. Xxxxxxx directed Xxxxxx Xxxxxx,
in his presence as well as our own, to sign the foregoing document as "Xxxxx X.
Xxxxxxx." Upon viewing the signatures as signed by Xxxxxx Xxxxxx and in our
presence, Xxxxx X. Xxxxxxx declared to us that he adopted them as his own
signatures.
/S/ XXXXXXXX X. XXX
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Witness
/S/ XXXXXX X. XXXXX
------------------------------------
Witness
STATE OF NEVADA )
) :ss.
COUNTY OF XXXXX )
I, Xxxxx Xxxxxx, Notary Public in and for said county and state, do
hereby certify that Xxxxx X. Xxxxxxx personally appeared before me and is known
or identified to me to be the President, Chief Executive Officer and Chairman of
the Board of Directors of Ameristar Casinos, Inc., the person who executed the
within instrument. Xxxxx X. Xxxxxxx, who being unable due to physical incapacity
to sign his name or offer his xxxx, did direct Xxxxxx Xxxxxx, in his presence,
as well as my own, to sign his name to the foregoing document. Xxxxx X. Xxxxxxx,
after viewing his name as signed by Xxxxxx Xxxxxx, thereupon adopted the
signatures as his own by acknowledging to me his intention to so adopt them as
if he had personally executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal this
11th day of December, 2001.
/S/ XXXXX XXXXXX
------------------------------------
Notary Public
Residing at: Las Vegas, NV
My Commission Expires: 5/9/2005
