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EXHIBIT A
April 27, 2001
Gameco, Inc.
0000 Xxxxx X.X. Xxxxxxx Xxx, #000
Xxxxxxx, Xxxxxxx 00000
Re: Voting Agreement
Gentlemen:
The undersigned (the "Shareholder") understands that Gameco, Inc., a
Delaware corporation ("Parent"), BH Acquisition, Inc., a Colorado corporation
("Merger Subsidiary"), and Black Hawk Gaming & Development Company, Inc., a
Colorado corporation ("Company"), are entering into an Agreement and Plan of
Merger to be dated on or about the date hereof, in the form thereof provided to
the Shareholder's counsel on the date hereof (the "Agreement"), providing for,
among other things, the merger of Merger Subsidiary into the Company (the
"Merger"). Consummation of the Merger will require the approval of the
shareholders of the Company.
The Shareholder is a shareholder of the Company and is entering into
this letter agreement at your request, in exchange for good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, to
induce you to enter into the Agreement and to consummate the transactions
contemplated thereby.
The Shareholder confirms its agreement with you as follows:
1. The Shareholder represents and warrants that Schedule I annexed
hereto sets forth the shares of the Company of which the Shareholder or any
affiliate (as defined under the Securities Exchange Act of 1934, as amended) of
the Shareholder (an "Affiliate") is the beneficial owner (the "Shares") and that
the Shareholder and the Affiliates are on the date hereof the lawful owners of
the number of Shares set forth in Schedule I, free and clear of all liens,
charges, encumbrances, voting agreements and commitments of any kind, except as
disclosed in Schedule I. Except for the Shares set forth in Schedule I, neither
the Shareholder nor any Affiliate owns or holds any rights to acquire any
additional shares of the Company (other than pursuant to options or conversion
rights with regard to any of the Shares, in each case as disclosed in Schedule
I) or any interest therein or any voting rights with respect to any such
additional shares.
2. Until the earliest date referred to in Section 11, the Shareholder
agrees that he will not, and will not permit any Affiliate to, contract to sell,
sell or otherwise transfer or dispose of any of the Shares or any interest
therein or securities convertible into shares of the Company, or any voting
rights with respect thereto, without your prior written consent, except that the
Shareholder may transfer to Iowa State University or a foundation or trust
related thereto (the "Transferee") up to 100,000 Shares (as appropriately
adjusted for any stock split, recapitalization or similar event after the date
hereof), subject to the Transferee's execution and
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delivery to Parent at or prior to the time of that transfer of (i) an instrument
in form and substance reasonably acceptable to Parent under which the Transferee
becomes bound by this letter agreement with the same effect as if it were
Shareholder hereunder, or (ii) a separate agreement containing similar
undertakings on terms no less favorable to, and in form and substance reasonably
acceptable to, Parent.
3. The Shareholder agrees that, during the term of this letter
agreement, neither he nor any Affiliate will take any action that the Company
would at that time be prohibited from taking under Section 5.03 of the
Agreement.
4. The Shareholder agrees that during the term of this letter agreement
(a) all of the shares of the Company beneficially owned by the Shareholder or
any Affiliate, or over which the Shareholder or any Affiliate has voting power
or control, directly or indirectly (including any such shares acquired after the
date hereof), at the record date for any meeting of shareholders of the Company
called to consider and vote on the Merger and the Agreement and the transactions
contemplated thereby or any Acquisition Proposal (as such term is defined in the
Agreement) will be voted by the Shareholder or such Affiliates, or any
representative or proxy thereof, as applicable, in favor of the approval of the
Merger and the Agreement and the transactions contemplated thereby and (b)
neither the Shareholder nor any Affiliate nor any such representative or proxy
will vote any such Shares in favor of, or participate in, support or make any
recommendation in favor of, any Acquisition Proposal.
5. The Shareholder hereby appoints Xxxxxxx X. Xxxxxx to attend the
special meeting of the shareholders of the Company held to consider and vote on
the Merger and to vote the shares referred to in Section 4 above, with all the
power the Shareholder would possess if personally present, for the limited
purpose of voting in favor of the approval of the Merger, the Agreement and the
transactions contemplated thereby. The Shareholder agrees to execute, and to
cause each Affiliate to execute, such proxies and other instruments, and to take
and to cause each Affiliate to take, such actions as may be necessary to cause
all of those shares to be so voted.
6. The Shareholder hereby waives and releases and agrees not to pursue,
and will cause each Affiliate to waive and release and agree not to pursue, any
claim that the Shareholder or that Affiliate now or hereafter has or may have
against the Company or Gameco or any affiliate of the Company or of Gameco,
arising out of or with respect to or in connection with the Merger or the
Agreement (including but not limited to any claim asserting dissenters' rights),
or any action taken or omitted to be taken by the Company, Gameco or any such
affiliate pursuant to or in connection with the Merger or the Agreement and not
in violation of the Agreement. The Shareholder further agrees that he will not
accept or retain, and will not permit any Affiliate to accept or retain, any
payment, award or other benefit of any kind arising out of or with respect to or
in connection with any claim or action initiated or asserted by any shareholder
or class or other group of shareholders of the Company arising out of or with
respect to or in connection with the Merger or the Agreement (including but not
limited to any claim asserting dissenters' rights), or any action taken or
omitted to be taken by the Company, Gameco or any such affiliate pursuant to or
in connection with the Merger or the Agreement and not in violation of the
Agreement. Notwithstanding the foregoing, the Shareholder and its Affiliates are
not waiving, releasing or agreeing not to pursue any claim arising from any
breach by Parent or Diversified Opportunities Group Ltd., an Ohio limited
liability company ("Diversified"), of this letter agreement.
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Subject to the accuracy of Shareholder's representations and
warranties, and Shareholder's compliance with his covenants, set forth in
Section 7 hereof, Gameco shall indemnify Shareholder and hold Shareholder
harmless from and against any action brought against Shareholder based on
Shareholder's execution of, or performance of his obligations under and in
accordance with, this letter agreement.
This Section 6 will survive the termination of this letter agreement
until the latest date permissible under applicable law.
7. Each party hereto has all necessary power and authority to enter
into this letter agreement and Shareholder has all necessary power and authority
to give the waiver and release and enter into the agreements set forth in
Section 6 with respect to the Shares. This letter agreement is the legal, valid
and binding agreement of each party hereto, and is enforceable against that
party in accordance with its terms, subject to applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and similar laws
affecting creditors' rights and remedies generally and to general principles of
equity. Neither party's execution, delivery or performance of this Agreement
violates or conflicts with or will violate or conflict with any law or
governmental order applicable to that party or any agreement or instrument to
which that party is a party or by which that party is bound, and neither party
hereto will enter into or become bound by any agreement or instrument that would
conflict with or be violated by the parties' execution, delivery or performance
of this Agreement. This letter agreement shall inure to the benefit of the
parties hereto and the successors and assigns of Gameco.
8. The Shareholder agrees that damages are an inadequate remedy for the
breach by Shareholder of any term or condition of this letter agreement and that
Gameco shall be entitled to a temporary restraining order and preliminary and
permanent injunctive relief in order to enforce our agreements herein.
9. Except to the extent that the laws of the jurisdiction of
organization of any party hereto, or any other jurisdiction, are of mandatory
application to matters arising under or in connection with this letter
agreement, this letter agreement shall be governed by the laws of the State of
Colorado, without application of choice of law principles.
10. This letter agreement constitutes the entire agreement between the
parties hereto with respect to the matters covered hereby and supersedes all
prior agreements, understandings or representations between the parties, written
or oral, with respect to the subject matter hereof.
11. This letter agreement and the proxy granted pursuant to Section 5
hereof shall become effective upon the execution and delivery of the Agreement
by the parties thereto. Parent hereby confirms that the Merger Consideration
payable under the Agreement is $12.00 in cash per share of Company common stock.
Except as otherwise provided herein, this letter agreement and the proxy granted
pursuant to Section 5 hereof shall terminate automatically, without the need for
any notice or other action by either party upon the earliest of (i) the date on
which any amendment or modification is made to the Agreement that reduces the
Merger Consideration to less than $12.00 in cash per share of Company common
Stock, (ii) the date on which the Agreement is terminated, (iii) the Closing
Date, as defined in the Agreement, and (iv) February 11, 2002.
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Effective automatically, without the need for any notice or other
action by any party hereto, on any termination of this letter agreement each of
the Shareholder and Diversified, for himself and itself (as applicable) and his
and its (as applicable) affiliates, irrevocably waives his and its (as
applicable) rights under Sections 4, 5 and 6 of the Shareholders Agreement made
as of November 12, 1996 by and among the Company, Diversified, the Shareholder
and Xxxxx X. Day (the "Shareholders Agreement"). Each of the Shareholder and
Diversified represents and warrants that he or it (as applicable) has not
assigned to any other person or entity any of his or its (as applicable) rights
under the Shareholders Agreement. Diversified confirms its consent to the
transfer described in Section 2 hereof and consents to the Shareholder's
disposition of his shares of the Company in the Merger notwithstanding any
termination of this letter agreement.
12. Each of the parties hereto intends that the Company be a third
party beneficiary of this letter agreement, and is entitled to the benefits
thereof and has the ability to exercise the rights granted to Gameco herein as
fully as if it were a full signatory of this letter agreement, but the parties
hereto may amend or terminate this letter agreement without the Company's
consent.
13. Notwithstanding anything to the contrary contained herein, the
Company does not constitute an Affiliate.
14. The proxy granted pursuant to Section 5 hereof is granted in
accordance with Colorado Revised Statutes Section 0-000-000.
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Please confirm that the foregoing correctly states the understanding
between us by signing and returning to me a counterpart hereof.
/s/ XXXXXX X. XXXXXXXX
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Xxxxxx X. Xxxxxxxx
Gameco, Inc.
By: /s/ XXXXXXX X. XXXXXX
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The undersigned hereby executes this Agreement solely for purposes of
joining as a party with respect to Section 7 and the second paragraph of Section
11 hereof.
Diversified Opportunities Group Ltd.
By: Xxxxxx Entertainment Ltd., its manager
By: /s/ XXXXXXX X. XXXXXX
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SCHEDULE I
OWNERSHIP OF SHARES
486,113 shares which are subject to the terms of the Shareholders Agreement (as
defined herein).
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