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EXHIBIT 10.4
SECURITIES PURCHASE AGREEMENT
THIS SECURITIES PURCHASE AGREEMENT, dated as of December 1,
2000, between Innovative Gaming Corporation of America, a Minnesota corporation
with principal executive offices located at 0000 Xxxxxxxxx Xxxxxx, Xxxx, Xxxxxx
00000 (the "COMPANY"), the buyer indicated on Schedule A ("BUYER").
WHEREAS, Buyer desires to purchase from the Company, and the
Company desires to issue and sell to Buyer, upon the terms and subject to the
conditions of this Agreement, (i) the amount of shares of the Company's Series F
6% Convertible Preferred Stock, par value $0.01 per share (collectively, the
"PREFERRED SHARES"), indicated on Schedule A; and (ii) Common Stock Purchase
Warrants, in the form attached hereto as Exhibit A, to purchase the amount of
Common Stock indicated on Schedule A (collectively, the "WARRANTS");
WHEREAS, upon the terms and subject to the designations,
preferences and rights set forth in the Company's Certificate of Designation of
Series F 6% Convertible Preferred Stock in the form attached hereto as Exhibit B
(the "CERTIFICATE OF DESIGNATION"), the Preferred Shares are convertible into
shares of the Company's common stock, par value $0.01 per share (the "COMMON
STOCK"); and
WHEREAS, the Warrants, upon the terms and subject to the
conditions in the Warrants, will be exercisable for a period of five years;
NOW, THEREFORE, in consideration of the premises and the
mutual covenants contained herein, the parties hereto, intending to be legally
bound, hereby agree as follows:
I. PURCHASE AND SALE OF PREFERRED SHARES AND WARRANTS
A. TRANSACTION. Buyer hereby agrees to purchase from the
Company, and the Company has offered and hereby agrees to issue and sell to
Buyer in a transaction exempt from the registration and prospectus delivery
requirements of the Securities Act of 1933, as amended (the "SECURITIES ACT"),
the Preferred Shares and the Warrants to purchase the amount of shares of Common
Stock indicated on Schedule A.
B. PURCHASE PRICE; FORM OF PAYMENT. The purchase price for the
Preferred Shares and the Warrants to be purchased by Buyer hereunder shall be
the amount indicated on Schedule A (the "PURCHASE PRICE").
II. BUYER'S REPRESENTATIONS AND WARRANTIES
Buyer represents and warrants to and covenants and agrees with
the Company as follows:
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A. Buyer is purchasing the Preferred Shares, the Warrants, the
Common Stock issuable upon exercise of the Warrants (the "WARRANT SHARES"), the
Common Stock, if any, issuable in payment of dividends on the Preferred Shares
(the "DIVIDEND SHARES"), and the Common Stock issuable upon conversion or
redemption of the Preferred Shares (the "CONVERSION SHARES" and, collectively
with the Preferred Shares, the Warrants, the Warrant Shares and the Dividend
Shares, the "SECURITIES") for its own account, for investment purposes only and
not with a view towards or in connection with the public sale or distribution
thereof in violation of the Securities Act.
B. Buyer is (i) an "ACCREDITED INVESTOR" within the meaning of
Rule 501 of Regulation D under the Securities Act, (ii) experienced in making
investments of the kind contemplated by this Agreement, (iii) capable, by reason
of its business and financial experience, of evaluating the relative merits and
risks of an investment in the Securities, and (iv) able to afford the loss of
its investment in the Securities.
C. Buyer understands that the Securities are being offered and
sold by the Company in reliance on an exemption from the registration
requirements of the Securities Act and equivalent state securities and "blue
sky" laws, and that the Company is relying upon the accuracy of, and Buyer's
compliance with, Buyer's representations, warranties and covenants set forth in
this Agreement to determine the availability of such exemption and the
eligibility of Buyer to purchase the Securities;
D. Buyer understands that the Securities have not been
approved or disapproved by the Securities and Exchange Commission (the
"COMMISSION") or any state securities commission.
E. This Agreement has been duly and validly authorized,
executed and delivered by Buyer and is a valid and binding agreement of Buyer
enforceable against it in accordance with its terms, subject to applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and
similar laws affecting creditors' rights and remedies generally and except as
rights to indemnity and contribution may be limited by federal or state
securities laws or the public policy underlying such laws.
F. Neither Buyer nor its affiliates nor any person acting on
its or their behalf has the intention of entering, or will enter into, prior to
the closing, any put option, short position or other similar instrument or
position with respect to the Common Stock and neither Buyer nor any of its
affiliates nor any person acting on its or their behalf will use at any time
shares of Common Stock acquired pursuant to this Agreement to settle any put
option, short position or other similar instrument or position that may have
been entered into prior to the execution of this Agreement.
G. Buyer understands that there will be no market for the
Preferred Shares, that there are significant restrictions on the transferability
of the Preferred Shares and that, for these and other reasons, Buyer may not be
able to liquidate an investment in the Preferred Shares for an indefinite
period.
H. Buyer acknowledges that the Company's Articles of
Incorporation provide that no person or entity may become the beneficial owner
of 5% or more of the Company's
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shares of capital stock of every series and class unless such person or entity
agrees to provide personal background and financial information to gaming
authorities, consent to a background investigation and respond to questions from
gaming authorities. Buyer further acknowledges that the Company may, pursuant to
the terms of its Articles of Incorporation and Section 6.5 of the Certificate of
Designation, repurchase shares held by any person or entity whose status as a
shareholder jeopardizes the approval, continued existence or renewal by any
gaming authority of a tribal, federal or state license or franchise held by the
Company or any of its Subsidiaries. The foregoing restrictions will be contained
in a legend on each certificate of Common Stock.
III. THE COMPANY'S REPRESENTATIONS
The Company represents and warrants to Buyer that:
A. CAPITALIZATION.
1. The authorized capital stock of the
Company consists solely of 100,000,000 shares of capital
stock, of which (i) 10,362,296 shares of common stock are
issued and outstanding on the date hereof (ii) 4,000 shares
have been designated Series B Convertible Preferred Stock, par
value $0.01 per share, of which 30 shares are issued and
outstanding on the date hereof, (iii) 2,000 shares have been
designated Series C Cumulative Convertible Preferred Stock,
par value $0.01 per share, of which 900 shares are issued and
outstanding on the date hereof, (iv) 3,000 shares have been
designated Series D Convertible Preferred Stock, par value
$0.01 per share, of which 1250 shares are issued and
outstanding on the date hereof, and (v) 400,000 shares have
been designated Series E 6% Convertible Preferred Stock, par
value $0.01 per share, of which 310,000 are issued and
outstanding on the date hereof. All of the issued and
outstanding shares of Common Stock and preferred stock, if
any, have been duly authorized and validly issued and are
fully paid and nonassessable.
2. The Conversion Shares, the Dividend
Shares and the Warrant Shares have been duly and validly
authorized and reserved for issuance by the Company, and when
issued by the Company upon conversion of, or in lieu of cash
dividends on, the Preferred Shares and on exercise of the
Warrants will be duly and validly issued, fully paid and
nonassessable and will not subject the holder thereof to
personal liability by reason of being such holder.
3. Except as disclosed on Schedule III.A.3.
hereto, there are no preemptive, subscription, "call," right
of first refusal or other similar rights to acquire any
capital stock of the Company or any of its Subsidiaries or
other voting securities of the Company that have been issued
or granted to any person and no other obligations of the
Company or any of its Subsidiaries to issue, grant, extend or
enter into any security, option, warrant, "call," right,
commitment, agreement, arrangement or undertaking with respect
to any of their respective capital stock.
4. Schedule III.A.4. hereto lists all the
subsidiaries of the Company (the "SUBSIDIARIES"). Except as
disclosed on Schedule III.A.4. hereto, the Company does not
own or control, directly or indirectly, any interest in any
other corporation, partnership,
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limited liability company, unincorporated business
organization, association, trust or other business entity.
5. The Company has delivered to Buyer
complete and correct copies of the Certificate of
Incorporation and the By-Laws of each of the Company and the
Subsidiaries, in each case as amended to the date of this
Agreement. Except as set forth on Schedule III.A.5. hereto,
the Company has delivered to Buyer true and complete copies of
all minutes of the Board of Directors of the Company (the
"BOARD OF DIRECTORS") since September 1, 1997
B. ORGANIZATION; REPORTING COMPANY STATUS.
1. Each of the Company and the Subsidiaries
is a corporation duly organized, validly existing and in good
standing under the laws of the state of jurisdiction in which
it is incorporated and is duly qualified as a foreign
corporation in all jurisdictions in which the failure to so
qualify would reasonably be expected to have a material
adverse effect on the business, properties, prospects,
condition (financial or otherwise) or results of operations of
the Company and the Subsidiaries taken as a whole or on the
consummation of any of the transactions contemplated by this
Agreement (a "MATERIAL ADVERSE EFFECT").
2. The Company has registered the Common
Stock pursuant to Section 12 of the Securities Exchange Act of
1934, as amended (the "EXCHANGE ACT"). The Common Stock is
listed and traded on the Nasdaq National Market ("NASDAQ")
and, except as set forth on Schedule III.B.2. hereto, the
Company has not received any notice regarding, and to its
knowledge there is no threat of, the termination or
discontinuance of the eligibility of the Common Stock for such
listing.
C. AUTHORIZED SHARES. The Company (i) has duly and validly
authorized and reserved for issuance 2,072,459 shares of Common Stock, which is
a number sufficient for the conversion of and the payment of dividends (in lieu
of cash payments) on the 400,000 Preferred Shares in accordance with the
Certificate of Designation and the exercise of the Warrants in full, and (ii) at
all times from and after the date hereof shall have a sufficient number of
shares of Common Stock duly and validly authorized and reserved for issuance to
satisfy the conversion of Preferred Shares, the payment of dividends (in lieu of
cash payments) on the Preferred Shares and the exercise of the Warrants and
(iii) at all times from and after the date hereof shall have a sufficient number
of shares of Common Stock duly and validly authorized and reserved for issuance
to satisfy the conversion of Preferred Shares, the payment of dividends (in lieu
of cash payments) on the Preferred Shares and the exercise of the Warrants. The
Company understands and acknowledges the potentially dilutive effect on the
Common Stock of the issuance of the Preferred Shares, the Conversion Shares, the
Dividend Shares and the Warrant Shares upon the conversion of, and payment of
dividends on, the Preferred Shares and the exercise of the Warrants,
respectively. The Company further acknowledges that its obligation to issue
Conversion Shares upon conversion of the Preferred Shares and Warrant Shares
upon exercise of the Warrants in accordance with this Agreement, the Certificate
of Designation and the Warrants is absolute and unconditional regardless of the
dilutive effect that such issuance may have on the ownership interests of other
stockholders of the Company and notwithstanding the
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commencement of any case under 11 U.S.C. Section 101 et seq. (the "BANKRUPTCY
CODE"). In the event the Company is a debtor under the Bankruptcy Code, the
Company hereby waives to the fullest extent permitted any rights to relief it
may have under 11 U.S.C. Section 362 in respect of the conversion of the
Preferred Shares and the exercise of the Warrants. The Company agrees, without
cost or expense to Buyer, to take or consent to any and all action necessary to
effectuate relief under 11 U.S.C. Section 362. Schedule III.C. hereto sets forth
(a) all issuances and sales by the Company since December 31, 1999 of its
capital stock, and other securities convertible, exercisable or exchangeable for
capital stock of the Company, except for shares issued upon exercise of options
granted pursuant to the Company's 1992 Stock Option and Compensation Plan, the
Company's 1998 Non-Executive Stock Option Plan or the Company 1997 Director's
Stock Option Plan, (b) the amount of such securities sold, including any
underlying shares of capital stock, (c) the purchaser thereof, (d) the amount
paid therefor, and (e) the material terms of all outstanding capital stock of
the Company (other than the Common Stock).
D. AUTHORITY; VALIDITY AND ENFORCEABILITY. The Company has the
requisite corporate power and authority to file and perform its obligations
under the Certificate of Designation and to enter into the Documents (as
hereinafter defined), and to perform all of its obligations hereunder and
thereunder (including the issuance, sale and delivery to Buyer of the
Securities). The execution, delivery and performance by the Company of the
Documents, and the consummation by the Company of the transactions contemplated
hereby and thereby (including, without limitation, the filing of the Certificate
of Designation with the Minnesota Secretary of State's office, the issuance of
the Preferred Shares, the Warrants and the issuance and reservation for issuance
of the Conversion Shares, the Dividend Shares and the Warrant Shares), have been
duly authorized by all necessary corporate action on the part of the Company.
Each of the Documents has been duly and validly executed and delivered by the
Company and the Certificate of Designation has been duly filed with the
Minnesota Secretary of State's office by the Company and each Document
constitutes a valid and binding obligation of the Company enforceable against it
in accordance with its terms, subject to applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and similar laws affecting
creditors' rights and remedies generally and except as rights to indemnity and
contribution may be limited by federal or state securities laws or the public
policy underlying such laws. The Securities have been duly and validly
authorized for issuance by the Company and, when executed and delivered by the
Company, will be valid and binding obligations of the Company enforceable
against it in accordance with their terms, subject to applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and similar laws
affecting creditors' rights and remedies generally. For purposes of this
Agreement, the term "DOCUMENTS" means (i) this Agreement; (ii) the Registration
Rights Agreement of even date herewith between the Company and Buyer, a copy of
which is annexed hereto as Exhibit D (the "REGISTRATION RIGHTS AGREEMENT");
(iii) the Certificate of Designation; and (iv) the Warrants.
E. VALIDITY OF ISSUANCE OF THE SECURITIES. As of the Closing
Date, the Preferred Shares and the Warrants, and the Conversion Shares, the
Dividend Shares and the Warrant Shares upon their issuance in accordance with
the Certificate of Designation, respectively, will be validly issued and
outstanding, fully paid and nonassessable, and not subject to any preemptive
rights, rights of first refusal, tag-along rights, drag-along rights or other
similar rights.
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F. NON-CONTRAVENTION. Except as set forth on Schedule III.F.
hereto, the execution and delivery by the Company of the Documents, the issuance
of the Securities, and the consummation by the Company of the other transactions
contemplated hereby and thereby, including, without limitation, the filing of
the Certificate of Designation with the Minnesota Secretary of State's office,
do not, and compliance with the provisions of this Agreement and other Documents
will not, conflict with, or result in any violation of, or default (with or
without notice or lapse of time, or both) under, or give rise to a right of
termination, cancellation or acceleration of any obligation or loss of a
material benefit under, or result in the creation of any Lien (as defined below)
upon any of the properties or assets of the Company or any of its Subsidiaries
under, or result in the termination of, or require that any consent be obtained
or any notice be given with respect to, (i) the Articles of Incorporation or
By-Laws of the Company or the comparable charter or organizational documents of
any of its Subsidiaries, (ii) any loan or credit agreement, note, bond,
mortgage, indenture, lease, contract or other agreement, instrument or permit
applicable to the Company or any of its Subsidiaries or their respective
properties or assets, or (iii) any Law (as defined below) applicable to the
Company or any of its Subsidiaries or their respective properties or assets.
G. APPROVALS. Except as set forth on Schedule III.G. hereto,
no authorization, approval or consent of any court or public or governmental
authority is required to be obtained by the Company for the issuance and sale of
the Preferred Shares or the Warrants (and the Conversion Shares, the Dividend
Shares and the Warrant Shares) to Buyer as contemplated by this Agreement,
except such authorizations, approvals and consents that have been obtained by
the Company prior to the date hereof.
H. COMMISSION FILINGS. The Company has properly and timely
filed with the Commission all reports, proxy statements, forms and other
documents required to be filed with the Commission under the Securities Act and
the Exchange Act since September 1, 1997 (the "COMMISSION FILINGS"). As of their
respective dates, (i) the Commission Filings complied in all material respects
with the requirements of the Securities Act, or the Exchange Act, as the case
may be, and the rules and regulations of the Commission promulgated thereunder
applicable to such Commission Filings, and (ii) none of the Commission Filings
contained at the time of its filing any untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary in
order to make the statements therein, in light of the circumstances under which
they were made, not misleading. The financial statements of the Company included
in the Commission Filings, as of the dates of such documents, were true and
complete in all material respects and complied with applicable accounting
requirements and the published rules and regulations of the Commission with
respect thereto, were prepared in accordance with generally accepted accounting
principles in the United States ("GAAP") (except in the case of unaudited
statements, as permitted by Form 10-Q under the Exchange Act) applied on a
consistent basis during the periods involved (except as may be indicated in the
notes thereto) and fairly presented the consolidated financial position of the
Company and its Subsidiaries as of the dates thereof and the consolidated
results of their operations and cash flows for the periods then ended (subject,
in the case of unaudited statements, to normal year-end audit adjustments that
in the aggregate are not material and to any other adjustment described
therein).
I. ABSENCE OF CERTAIN CHANGES. Except as set forth on Schedule
III.I. hereto, since the Balance Sheet Date (as defined in Section III.M.),
there has not occurred any change,
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event or development in the business, financial condition, prospects or results
of operations of the Company or any of the Subsidiaries, there has not existed
any condition having or reasonably likely to have a Material Adverse Effect, and
the Company and the Subsidiaries have conducted there respective businesses only
in the ordinary course.
J. FULL DISCLOSURE. Except as set forth in Schedule III.J,
there is no fact known to the Company (other than general economic or industry
conditions known to the public generally) that has not been fully disclosed in
writing to Buyer that (i) reasonably could be expected to have a Material
Adverse Effect or (ii) reasonably could be expected to materially and adversely
affect the ability of the Company to perform its obligations pursuant to the
Documents.
K. ABSENCE OF LITIGATION. Except as set forth on Schedule
III.K., there are (i) no suits, actions or proceedings pending or, to the
knowledge of the Company, threatened against the Company or any of its
Subsidiaries, (ii) no complaints, lawsuits, charges or other proceedings pending
or, to the knowledge of the Company, threatened in any forum by or on behalf of
any present or former employee of the Company or any of its Subsidiaries, any
applicant for employment or classes of the foregoing alleging breach of any
express or implied contract of employment, any applicable law governing
employment or the termination thereof or other discriminatory, wrongful or
tortious conduct in connection with the employment relationship, and (iii) no
judgments, decrees, injunctions or orders of any governmental entity or
arbitrator outstanding against the Company or any Subsidiary.
L. ABSENCE OF EVENTS OF DEFAULT. Except as set forth on
Schedule III.L., no "EVENT OF DEFAULT" (as defined in any agreement or
instrument to which the Company is a party) and no event which, with notice,
lapse of time or both, would constitute an Event of Default (as so defined), has
occurred and is continuing.
M. FINANCIAL STATEMENTS; NO UNDISCLOSED LIABILITIES. The
Company has delivered to Buyer true and complete copies of the (i) audited
balance sheet of the Company and the Subsidiaries as at December 31, 1999, 1998,
and 1997, respectively, and the related audited statements of income, changes in
stockholders' equity and cash flows for the three fiscal years ended December
31, 1999, including the related notes and schedules thereto and (ii) unaudited
balance sheets of the Company and the Subsidiaries and the statements of income,
changes in stockholders' equity and cash flows for each fiscal quarter ended
since December 31, 1999, including the related notes and schedules, all
certified by the chief financial officer of the Company (collectively, the
"FINANCIAL STATEMENTS"), and all management letters, if any, from the Company's
independent auditors relating to the dates and periods covered by the Financial
Statements. Each of the Financial Statements is complete and correct in all
material respects, has been prepared in accordance with GAAP (subject, in the
case of the interim Financial Statements, to normal year end adjustments and the
absence of footnotes), and fairly presents the financial position, results of
operations and cash flows of the Company as at the dates and for the periods
indicated. For purposes hereof, the audited balance sheet of the Company as at
December 31, 1999 is hereinafter referred to as the "BALANCE SHEET" and December
31, 1999 is hereinafter referred to as the "BALANCE SHEET DATE". The Company has
no indebtedness, obligations or liabilities of any kind (whether accrued,
absolute, contingent or otherwise, and whether due or to become due), which was
not fully reflected in, reserved against or otherwise
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described in the Balance Sheet or the notes thereto or incurred in the ordinary
course of business consistent with the Company's past practices since the
Balance Sheet Date.
N. COMPLIANCE WITH LAWS; PERMITS. Except as set forth in
Schedule III.N, each of the Company and its Subsidiaries is in compliance with
all laws, rules, regulations, codes, ordinances and statutes (collectively,
"LAWS") applicable to IT or to the conduct of its business. Each of the Company
and its Subsidiaries possesses all material permits, approvals, authorizations,
licenses, certificates and consents from all public and governmental authorities
which are necessary to conduct its business.
O. RELATED PARTY TRANSACTIONS. Except as set forth on Schedule
III.O. hereto, neither the Company nor any of its officers, directors or
"AFFILIATES" (as such term is defined in Rule 12b-2 under the Exchange Act) nor
any family member of any officer, director or Affiliate of the Company has
borrowed any moneys from or has outstanding any indebtedness or other similar
obligations to the Company or any of the Subsidiaries. Except as set forth on
Schedule III.O. hereto, neither the Company nor any of its officers, directors
or Affiliates nor any family member of any officer, director or Affiliate of the
Company (i) owns any direct or indirect interest constituting more than a 1%
equity (or similar profit participation) interest in, or controls or is a
director, officer, partner, member or employee of, or consultant to or lender to
or borrower from, or has the right to participate in the profits of, any person
or entity which is (x) a competitor, supplier, customer, landlord, tenant,
creditor or debtor of the Company or any Subsidiary, (y) engaged in a business
related to the business of the Company or any Subsidiary, or (z) a participant
in any transaction to which the Company or any Subsidiary is a party or (ii) is
a party to any contract, agreement, commitment or other arrangement with the
Company or any Subsidiary.
P. INSURANCE. Each of the Company and the Subsidiaries
maintains property and casualty, general liability, workers' compensation,
environmental hazard, personal injury and other similar types of insurance with
financially sound and reputable insurers that is adequate, and, consistent with
industry standards and the Company's historical claims experience. Except as set
forth on Schedule III.P. hereto, none of the Company and the Subsidiaries has
received notice from, and none of them has knowledge of any threat by, any
insurer (that has issued any insurance policy to the Company or any Subsidiary)
that such insurer intends to deny coverage under or cancel, discontinue or not
renew any insurance policy presently in force.
Q. SECURITIES LAW MATTERS. Assuming the accuracy of the
representations and warranties of Buyer set forth in Article II hereof, the
offer and sale by the Company of the Securities is exempt from (i) the
registration and prospectus delivery requirements of the Securities Act and the
rules and regulations of the Commission thereunder and (ii) the registration
and/or qualification provisions of all applicable state securities and "blue
sky" laws. Other than pursuant to an effective registration statement under the
Securities Act, the Company has not issued, offered or sold the Preferred Shares
or any shares of Common Stock (including for this purpose any securities of the
same or a similar class as the Preferred Shares or Common Stock, or any
securities convertible into or exchangeable or exercisable for the Preferred
Shares or Common Stock or any such other securities) within the one-year period
next preceding the date hereof, except as disclosed on Schedule III.Q. hereto or
otherwise previously disclosed in writing to Buyer, and the Company shall not
directly or indirectly take, and shall not permit any
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of its directors, officers or Affiliates directly or indirectly to take, any
action (including, without limitation, any offering or sale to any person or
entity of the Preferred Shares or shares of Common Stock), which will make
unavailable the exemption from Securities Act registration being relied upon by
the Company for the offer and sale to Buyer of the Preferred Shares and the
Warrants (and the Conversion Shares, the Dividend Shares and the Warrant Shares)
as contemplated by this Agreement. No form of general solicitation or
advertising has been used or authorized by the Company or any of its officers,
directors or Affiliates in connection with the offer or sale of the Preferred
Shares and the Warrants (and the Conversion Shares, the Dividend Shares and the
Warrant Shares) as contemplated by this Agreement or any other agreement to
which the Company is a party.
R. ENVIRONMENTAL MATTERS.
Except as set forth on Schedule III.R. hereto:
1. The Company, the Subsidiaries and their
respective operations are in compliance with all applicable
Environmental Laws and all permits (including terms,
conditions, and limitations therein) issued pursuant to
Environmental Laws or otherwise;
2. Each of the Company and the Subsidiaries
has all permits, licenses, waivers, exceptions, and exemptions
required under all applicable Environmental Laws necessary to
operate its business;
3. None of the Company or the Subsidiaries
is the subject of any outstanding written order of or
agreement with any governmental authority or person respecting
(i) Environmental Laws or permits, (ii) Remedial Action or
(iii) any Release or threatened Release of Hazardous
Materials;
4. None of the Company or the Subsidiaries
has received any written communication alleging that it may be
in violation of any Environmental Law or any permit issued
pursuant to any Environmental Law, or may have any liability
under any Environmental Law;
5. None of the Company or the Subsidiaries
has any liability, contingent or otherwise, in connection with
any presence, treatment, storage, disposal or Release of any
Hazardous Materials whether on property owned or operated by
the Company or any Subsidiary or property of third parties,
and none of the Company or the Subsidiaries has transported,
or arranged for transportation of, any Hazardous Materials for
treatment or disposal on any property;
6. There are no investigations of the
business, operations, or currently or previously owned,
operated or leased property of the Company or any Subsidiary
pending or threatened which could lead to the imposition of
any case or liability pursuant to any Environmental Law;
7. There is not located at any of the
properties owned or operated by the Company or any Subsidiary
any (A) underground storage tanks, (B) asbestos-containing
material or (C) equipment containing polychlorinated
biphenyls;
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8. Each of the Company and the Subsidiaries
has provided to Buyer all environmentally related assessments,
audits, studies, reports, analyses, and results of
investigations that have been performed with respect to the
currently or previously owned, leased or operated properties
or activities of the Company and such Subsidiaries;
9. There are no liens arising under or
pursuant to any Environmental Law on any real property owned,
operated, or leased by the Company or any Subsidiary, and no
action of any governmental authority has been taken or, to the
knowledge of the Company, is in process of being taken which
could subject any of such properties to such liens, and none
of the Company or the Subsidiaries has been or is expected to
be required to place any notice or restriction relating to the
presence of Hazardous Material at any real property owned,
operated, or leased by it in any deed to such property;
10. Neither the Company nor any of the
Subsidiaries owns, operates, or leases any hazardous waste
generation, treatment, storage, or disposal facility, as such
terms are used pursuant to the RCRA and related or analogous
state, local, or foreign law. None of the properties owned,
operated, or leased by the Company, any of the Subsidiaries or
any predecessor thereof are now, or were in the past, used in
any part as a dump, landfill, or disposal site, and neither
the Company, any of the Subsidiaries nor any predecessor of
any of them has filled any wetlands;
11. The purchase that is the subject of this
Agreement will not require any governmental approvals under
Environmental Laws, including those that are triggered by
sales or transfers of businesses or real property, including,
as examples and without limitation, the New Jersey Industrial
Site Recovery Act, N.J. Stat. 13:1K-7 et seq., and the
Connecticut Transfer of Establishments Act, Conn. Gen.
Xxxx.xx. 22a-134 et seq.;
12. There is no currently existing
requirement or requirement to be imposed in the future by any
Environmental Law or Environmental Permit which could result
in the incurrence of a cost that could be reasonably expected
to have a Material Adverse Effect; and
13. Each of the Company and each of the
Subsidiaries has disclosed to Buyer all other acts or
conditions that could result in any costs or liabilities under
Environmental Laws.
For purposes of this Section III.R.:
"ENVIRONMENTAL LAW" means any foreign, federal, state or local
statute, regulation, ordinance, or common law as now or hereafter in effect in
any way relating to the protection of human health, safety or welfare, or the
environment including, without limitation, the Comprehensive Environmental
Response, Compensation and Liability Act, the Hazardous Materials Transportation
Act, the Resource Conservation and Recovery Act ("RCRA"), the Clean Water Act,
the Clean Air Act, the Toxic Substances Control Act, the Federal Insecticide,
Fungicide, and Rodenticide Act, and the Occupational Safety and Health Act, and
the regulations promulgated pursuant to any of them.
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"HAZARDOUS MATERIAL" means any substance that is listed,
classified or regulated pursuant to any Environmental Law, including petroleum,
gasoline, and any other petroleum product, by-product, fraction or derivative,
asbestos or asbestos-containing material, lead-containing paint, water, or
plumbing, polychlorinated biphenyls, radioactive materials and radon;
"RELEASE" means any placement, release, spill, filtration,
emission, leaking, pumping, injection, deposit, disposal, discharge, dispersal,
migration, or leaching to, through, or under the indoor or outdoor environment,
or into, through, under, or out of any property; and
"REMEDIAL ACTION" means any action to (x) clean up, remove,
remediate, treat or in any other way address any Hazardous Material; (y) prevent
or contain the Release of any Hazardous Material; or (z) perform studies and
investigations or post-remedial monitoring and care in relation to (x) or (y)
above.
S. LABOR MATTERS. Neither the Company nor any of the
Subsidiaries is party to any labor or collective bargaining agreement, and there
are no labor or collective bargaining agreements which pertain to any employees
of the Company or any Subsidiary. No employees of the Company or any of the
Subsidiaries are represented by any labor organization and none of such
employees has made a pending demand for recognition, and there are no
representation proceedings or petitions seeking a representation proceeding
presently pending or, to the Company's knowledge, threatened to be brought or
filed, with the National Labor Relations Board or other labor relations
tribunal. There is no organizing activity involving the Company or any
Subsidiary pending or to the Company's knowledge, threatened by any labor
organization or group of employees of the Company or any of the Subsidiaries.
There are no (i) strikes, work stoppages, slowdowns, lockouts or arbitrations or
(ii) material grievances or other labor disputes pending or, to the knowledge of
the Company, threatened against or involving the Company or any of the
Subsidiaries. There are no unfair labor practice charges, grievances or
complaints pending or, to the knowledge of the Company, threatened by or on
behalf of any employee or group of employees of the Company or any of the
Subsidiaries.
T. ERISA MATTERS. All Plans maintained by the Company or any
of its Subsidiaries and ERISA Affiliates are listed in Schedule III.T. and
copies of all documentation relating to such Plans (including, but not limited
to, copies of written Plans, written descriptions of oral Plans, summary plan
descriptions, trust agreements, the three most recent annual returns, employee
communications and IRS determination letters) have been delivered to or made
available for review by the Buyer. Each Plan has at all times been maintained
and administered in all material respects in accordance with its terms and the
requirements of applicable law, including ERISA and the Code, and each Plan
intended to qualify under section 401(a) of the Code has at all times since its
adoption been so qualified, and each trust which forms a part of any such plan
has at all times since its adoption been tax-exempt under section 501(a) of the
Code. The Company and each of its Subsidiaries and ERISA Affiliates are in
compliance in all material respects with all provisions of ERISA applicable to
it. No Reportable Event has occurred, been waived or exists as to which the
Company or any of its Subsidiaries and ERISA Affiliates was required to file a
report with the PBGC, and the present value of all liabilities under each
Pension Plan (based on those assumptions used to fund such Plans) listed in
Schedule III.T. did not, as of the most recent annual valuation date applicable
thereto, exceed the value of
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the assets of such Pension Plan. None of the Company, its Subsidiaries and ERISA
Affiliates has incurred, or reasonably expects to incur, any Withdrawal
Liability with respect to any Multi-employer Plan that could result in a
Material Adverse Effect. None of the Company, its Subsidiaries and ERISA
Affiliates has received any notification that any Multi-employer Plan is in
reorganization or has been terminated within the meaning of Title IV of ERISA,
and no Multi-employer Plan is reasonably expected to be in reorganization or
termination where such reorganization or termination has resulted or could
reasonably be expected to result in increases to the contributions required to
be made to such Plan or otherwise. No direct, contingent or secondary liability
has been incurred or is expected to be incurred by the Company or any of its
Subsidiaries under Title IV of ERISA to any party with respect to any Plan, or
with respect to any other Plan presently or heretofore maintained or contributed
to by any ERISA Affiliate. Neither the Company nor any of its Subsidiaries and
ERISA Affiliates has incurred any liability for any tax imposed under sections
4971 through 4980B of the Code or civil liability under section 502(i) or (l) of
ERISA. No suit, action or other litigation or any other claim which could
reasonably be expected to result in a material liability or expense to the
Company or any of its Subsidiaries or ERISA Affiliates (excluding claims for
benefits incurred in the ordinary course of plan activities) has been brought
or, to the knowledge of the Company, threatened against or with respect to any
Plan and there are no facts or circumstances known to the Company or any of its
Subsidiaries or ERISA Affiliates that could reasonably be expected to give rise
to any such suit, action or other litigation. All contributions to Plans that
were required to be made under such Plans have been made, and all benefits
accrued under any unfunded Plan have been paid, accrued or otherwise adequately
reserved in accordance with GAAP, all of which accruals under unfunded Plans are
as disclosed in Schedule III.T., and the Company, its Subsidiaries and ERISA
Affiliates have each performed all material obligations required to be performed
under all Plans. The execution, delivery and performance of this Agreement and
the other Documents and the consummation of the transactions contemplated hereby
and thereby (including, without limitation, the offer, issue and sale by the
Company, and the purchase by the Buyer, of the Preferred Shares, the Conversion
Shares, the Warrants, the Warrant Shares and Dividend Shares) will not involve
any "prohibited transaction" within the meaning of ERISA or the Code with
respect to any Plan.
As used in this Agreement:
"CODE" means the Internal Revenue Code of 1986, as amended.
"ERISA" means the Employee Retirement Income Security Act of
1974, or any successor statute, together with the regulations thereunder, as the
same may be amended from time to time.
"ERISA AFFILIATE" means any trade or business (whether or not
incorporated) that was, is or hereafter may become, a member of a group of which
the Company is a member and which is treated as a single employer under section
414 of the Code.
"MULTI-EMPLOYER PLAN" means a multi-employer plan as defined
in section 4001(a)(3) of ERISA to which the Company or any ERISA Affiliate
(other than one considered an ERISA Affiliate only pursuant to subsection (m) or
(o) of section 414 of the Code) is making
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or accruing an obligation to make contributions, or has within any of the
preceding six plan years made or accrued an obligation to make contributions.
"PBGC" means the Pension Benefit Guaranty Corporation referred
to and defined in ERISA or any successor thereto.
"PENSION PLAN" means any pension plan (other than a
Multi-employer Plan) subject to the provision of Title IV of ERISA or section
412 of the Code that is maintained for employees of the Company or any of its
Subsidiaries, or any ERISA Affiliate.
"PLAN" means any bonus, incentive compensation, deferred
compensation, pension, profit sharing, retirement, stock purchase, stock option,
stock ownership, stock appreciation rights, phantom stock, leave of absence,
layoff, vacation, day or dependent care, legal services, cafeteria, life,
health, accident, disability, workmen's compensation or other insurance,
severance, separation or other employee benefit plan, practice, policy or
arrangement of any kind, whether written or oral, or whether for the benefit of
a single individual or more than one individual including, but not limited to,
any "employee benefit plan" within the meaning of section 3(3) of ERISA,
including any Pension Plan.
"REPORTABLE EVENT" means any reportable event as defined in
section 4043(b) of ERISA or the regulations issued thereunder with respect to a
Plan.
"WITHDRAWAL LIABILITY" means liability to a Multi-employer
Plan as a result of a complete or partial withdrawal from such Multi-employer
Plan, as such terms are defined in Part I of Subtitle E of Title IV of ERISA.
U. TAX MATTERS.
1. The Company has filed all material Tax
Returns which it is required to file under applicable Laws;
all such Tax Returns are true and accurate in all material
respects and have been prepared in compliance with all
applicable Laws; the Company has paid all Taxes due and owing
by it (whether or not such Taxes are required to be shown on a
Tax Return) and has withheld and paid over to the appropriate
taxing authorities all Taxes which it is required to withhold
from amounts paid or owing to any employee, stockholder,
creditor or other third parties; and since the Balance Sheet
Date, the charges, accruals and reserves for Taxes with
respect to the Company (including any provisions for deferred
income taxes) reflected on the books of the Company are
adequate to cover any Tax liabilities of the Company if its
current tax year were treated as ending on the date hereof.
2. No claim has been made by a taxing
authority in a jurisdiction where the Company does not file
tax returns that the Company is or may be subject to taxation
by such jurisdiction. There are no foreign, federal, state or
local tax audits or administrative or judicial proceedings
pending or being conducted with respect to the Company; no
information related to Tax matters has been requested by any
foreign, federal, state or local taxing authority; and, except
as disclosed above, no written notice indicating an intent to
open an audit or other review has been received by the Company
from any foreign, federal, state or local taxing authority.
There are no material
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unresolved questions or claims concerning the Company's Tax
liability. The Company (A) has not executed or entered into a
closing agreement pursuant to section 7121 of the Code or any
predecessor provision thereof or any similar provision of
state, local or foreign law; or (B) has not agreed to or is
required to make any adjustments pursuant to section 481(a) of
the Code or any similar provision of state, local or foreign
law by reason of a change in accounting method initiated by
the Company or any of its subsidiaries or has any knowledge
that the IRS has proposed any such adjustment or change in
accounting method, or has any application pending with any
taxing authority requesting permission for any changes in
accounting methods that relate to the business or operations
of the Company. The Company has not been a United States real
property holding corporation within the meaning of section
897(c)(2) of the Code during the applicable period specified
in section 897(c)(1)(A)(ii) of the Code.
3. The Company has not made an election
under section 341(f) of the Code. The Company is not liable
for the Taxes of another person that is not a subsidiary of
the Company under (A) Treas. Reg. Section 1.1502-6 (or
comparable provisions of state, local or foreign law), (B) as
a transferee or successor, (C) by contract or indemnity or (D)
otherwise. The Company is not a party to any tax sharing
agreement. The Company has not made any payments, is not
obligated to make payments and is not a party to an agreement
that could obligate it to make any payments that would not be
deductible under section 280G of the Code.
For purposes of this Section III.U.:
"IRS" means the United States Internal Revenue Service.
"TAX" or "TAXES" means federal, state, county, local, foreign,
or other income, gross receipts, ad valorem, franchise, profits, sales or use,
transfer, registration, excise, utility, environmental, communications, real or
personal property, capital stock, license, payroll, wage or other withholding,
employment, social security, severance, stamp, occupation, alternative or add-on
minimum, estimated and other taxes of any kind whatsoever (including, without
limitation, deficiencies, penalties, additions to tax, and interest attributable
thereto) whether disputed or not.
"TAX RETURN" means any return, information report or filing
with respect to Taxes, including any schedules attached thereto and including
any amendment thereof.
V. PROPERTY. Except as set forth on Schedule III.V., each
of the Company and the Subsidiaries has good and marketable title to all of its
assets and properties material to the conduct of its business, free and clear of
any liens, pledges, security interests, claims, encumbrances or other
restrictions of any kind (collectively, "LIENS"). With respect to any assets or
properties it leases, each of the Company and its Subsidiaries holds a valid and
subsisting leasehold interest therein, free and clear of any Liens, is in
compliance, in all material respects, with the terms of the applicable lease,
and enjoys peaceful and undisturbed possession under such lease. All of the
assets and properties of the Company and its Subsidiaries that are material to
the conduct of business as presently conducted or as proposed to be conducted by
it are in good operating condition and repair. Except as reserved for, the
inventory of the
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Company and its Subsidiaries is in good and marketable condition, does not
include any material quantity of items which are obsolete, damaged or slow
moving, and is salable (or may be leased) in the normal course of business as
currently conducted by it.
W. INTELLECTUAL PROPERTY. The Company owns or possesses
adequate and enforceable rights to use all patents, patent applications,
trademarks, trademark applications, trade names, service marks, copyrights,
copyright applications, licenses, know-how (including trade secrets and other
unpatented and/or unpatentable proprietary or confidential information, systems
or procedures) and other similar rights and proprietary knowledge (collectively,
"INTANGIBLES") necessary for the conduct of its business as now being conducted
including, but not limited to, those described on Schedule III.W. hereto. Except
as set forth on Schedule III.W, the Company has all right, title and interest in
all of the Intangibles, free and clear of any and all Liens. The Company is not
infringing upon or in conflict with any right of any other person with respect
to any Intangibles. Except as disclosed on Schedule III.W. hereto, (i) no claims
have been asserted by any individual, partnership, corporation, unincorporated
organization or association, limited liability company, trust or other entity
(collectively, a "PERSON") contesting the validity, enforceability, use or
ownership of any Intangibles, and the Company has no knowledge of any basis for
such claim, and (ii) neither the Company nor the Subsidiaries has any knowledge
of infringement or misappropriation of the Intangibles by any third party.
X. CONTRACTS. All contracts, agreements, notes, instruments,
franchises, leases, licenses, commitments, arrangements or understandings,
written or oral (collectively, "CONTRACTS") which are material to the business
and operations of the Company and the Subsidiaries are in full force and effect
and constitute legal, valid and binding obligations of the Company and the
Subsidiaries and, to the best knowledge of the Company, the other parties
thereto; the Company and the Subsidiaries and, to the best knowledge of the
Company, each other party thereto, have performed in all material respects all
obligations required to be performed by them under the Contracts, and no
material violation or default exists in respect thereof, nor any event that with
notice or lapse of time, or both, would constitute a default thereof, on the
part of the Company and the Subsidiaries or, to the best knowledge of the
Company, any other party thereto; none of the Contracts is currently being
renegotiated; and the validity, effectiveness and continuation of all Contracts
will not be materially adversely affected by the transactions contemplated by
this Agreement.
Y. REGISTRATION RIGHTS. Except as set forth on Schedule
III.Y., no Person has, and as of the Closing (as defined below), no Person shall
have, demand, "piggy-back" or other rights to cause the Company to file any
registration statement under the Securities Act, relating to any of its
securities or to participate in any such registration statement.
Z. DIVIDENDS. The timely payment of dividends on the Preferred
Shares as specified in the Certificate of Designation is not prohibited by the
Certificate of Incorporation or By-Laws of the Company or any agreement,
contract, document or other undertaking to which the Company or any of the
Subsidiaries is a party.
AA. INVESTMENT COMPANY ACT. Neither the Company nor any of the
Subsidiaries is an "investment company" within the meaning of the Investment
Company Act of 1940, as amended (the "INVESTMENT COMPANY ACT"), nor is the
Company nor any of the
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Subsidiaries directly or indirectly controlled by or acting on behalf of any
Person which is an "investment company" within the meaning of the Investment
Company Act.
BB. BUSINESS PLAN. Any business information of the Company
previously submitted to Buyer in any form, including the projections contained
therein, was prepared by the senior management of the Company in good faith and
is based on assumptions that the Company believes are reasonable. The Company is
not aware of any fact or condition that could reasonably be expected to result
in the Company not achieving the results described in such business plan.
CC. INTERNAL CONTROLS AND PROCEDURES. The Company maintains
accurate books and records and internal accounting controls that provide
reasonable assurance that (i) all transactions to which the Company or each of
the Subsidiaries is a party or by which its properties are bound are executed
with management's authorization; (ii) the reported accountability of the
Company's and the Subsidiaries' assets is compared with existing assets at
regular intervals; (iii) access to the Company's and the Subsidiaries' assets is
permitted only in accordance with management's authorization; and (iv) all
transactions to which any of the Company and the Subsidiaries is a party or by
which its properties are bound are recorded as necessary to permit preparation
of the financial statements of the Company in accordance with GAAP.
DD. PAYMENTS AND CONTRIBUTIONS. Neither the Company nor any of
its Subsidiaries nor any of their respective directors, officers or, to their
respective knowledge, other employees has (i) used any company funds for any
unlawful contribution, endorsement, gift, entertainment or other unlawful
expense relating to political activity; (ii) made any direct or indirect
unlawful payment of company funds to any foreign or domestic government official
or employee, (iii) violated or is in violation of any provision of the Foreign
Corrupt Practices Act of 1977, as amended; or (iv) made any bribe, rebate,
payoff, influence payment, kickback or other similar payment to any person with
respect to Company matters.
EE. NO MISREPRESENTATION. No representation or warranty of the
Company contained in this Agreement or any of the other Documents, any schedule,
annex or exhibit hereto or thereto or any agreement, instrument or certificate
furnished by the Company to Buyer pursuant to this Agreement, contains any
untrue statement of a material fact or omits to state a material fact required
to be stated therein or necessary to make the statements therein, not
misleading.
FF. FINDER'S FEE. Except as set forth on Schedule III.FF.,
there is no finder's fee, brokerage commission or like payment in connection
with the transactions contemplated by this Agreement for which Buyer is liable
or responsible.
IV. CERTAIN COVENANTS AND ACKNOWLEDGMENTS
A. RESTRICTIVE LEGEND. Buyer acknowledges and agrees that,
upon issuance pursuant to this Agreement, the Securities (including without
limitation any Dividend Shares, Conversion Shares or Warrant Shares) shall have
endorsed thereon legends in substantially the following form (and a
stop-transfer order may be placed against transfer of the Preferred Shares, the
Warrant Shares and the Conversion Shares until such legend has been removed):
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"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 OR THE SECURITIES
LAW OF ANY STATE. THE SHARES HAVE BEEN ACQUIRED FOR INVESTMENT
AND WITHOUT A VIEW TO THEIR DISTRIBUTION AND MAY NOT BE SOLD
OR OTHERWISE DISPOSED OF IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT FOR THE SHARES UNDER THE SECURITIES ACT
OF 1933 OR UNLESS, IN THE OPINION OF COUNSEL SATISFACTORY TO
THIS CORPORATION, AN EXEMPTION FROM REGISTRATION IS AVAILABLE
UNDER THE SECURITIES LAWS.
THE ARTICLES OF INCORPORATION OF THE CORPORATION IMPOSE
CERTAIN RESTRICTIONS ON THE OWNERSHIP OF FIVE PERCENT OR MORE
OF THE CAPITAL STOCK OF THE CORPORATION AND EMPOWER THE BOARD
OF DIRECTORS TO REDEEM CAPITAL STOCK UNDER CERTAIN
CIRCUMSTANCES. THE CORPORATION WILL FURNISH ANY SHAREHOLDER
UPON REQUEST AND WITHOUT CHARGE, A COPY OF THE ARTICLES OF
INCORPORATION AND A FULL STATEMENT OF THE DESIGNATIONS,
PREFERENCES, LIMITATIONS, AND RELATIVE RIGHTS OF THE SHARES OF
EACH CLASS OR SERIES AUTHORIZED TO BE ISSUED, SO FAR AS THEY
HAVE BEEN DETERMINED, AND THE AUTHORITY OF THE BOARD TO
DETERMINE THE RELATIVE RIGHTS AND PREFERENCES OF SUBSEQUENT
CLASSES OR SERIES.
THESE SECURITIES ARE SUBJECT TO THE MISSISSIPPI GAMING CONTROL
ACT AND THE REGULATIONS OF THE MISSISSIPPI GAMING COMMISSION.
THESE SECURITIES ARE SUBJECT TO THE NEVADA GAMING CONTROL ACT
AND THE REGULATIONS OF THE NEVADA GAMING COMMISSION."
B. FILINGS. The Company shall make all necessary Commission
Filings and "blue sky" filings required to be made by the Company in connection
with the sale of the Securities to Buyer as required by all applicable Laws, and
shall provide a copy thereof to Buyer promptly after such filing.
C. REPORTING STATUS. So long as Buyer beneficially owns any of
the Securities, the Company shall timely file all reports required to be filed
by it with the Commission pursuant to Section 13 or 15(d) of the Exchange Act.
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D. USE OF PROCEEDS. The Company shall use the net proceeds
from the sale of the Securities (excluding amounts paid by the Company for
Buyer's out-of-pocket costs and expenses, whether or not accounted for or
incurred, in connection with the transactions contemplated by this Agreement
(including the fees and disbursements of Buyer's legal counsel) and excluding
finder's fees in connection with such sale) solely for general corporate and
working capital purposes.
E. LISTING. Except to the extent the Company lists its Common
Stock on the New York Stock Exchange, the Company shall use its best efforts to
maintain its listing of the Common Stock on Nasdaq. If the Common Stock is
delisted from Nasdaq, the Company will use its best efforts to list the Common
Stock on the most liquid national securities exchange or quotation system that
the Common Stock is qualified to be listed on.
F. RESERVED CONVERSION SHARES. The Company at all times from
and after the date hereof shall have such number of shares of Common Stock duly
and validly authorized and reserved for issuance as shall be sufficient for the
conversion, in full of, and the payment of dividends on the Preferred Shares and
the exercise in full of the Warrants.
G. INFORMATION. Each of the parties hereto acknowledges and
agrees that Buyer shall not be provided with, nor be given access to, any
material non-public information relating to the Company or any of the
Subsidiaries.
H. EXEMPTION FROM INVESTMENT COMPANY ACT. The Company shall
conduct its business, and shall cause the Subsidiaries to conduct their
businesses, in such a manner that neither the Company nor any Subsidiary shall
become an "investment company" within the meaning of the Investment Company Act.
I. ACCOUNTING AND RESERVES. The Company shall maintain a
standard and uniform system of accounting and shall keep proper books and
records and accounts in which full, true and correct entries shall be made of
its transactions, all in accordance with GAAP applied on a consistent basis
through all periods, and shall set aside on such books for each fiscal year all
such proper reserves for depreciation, obsolescence, amortization, bad debts and
other purposes in connection with its operations as are required by such
principles so applied.
J. TRANSACTIONS WITH AFFILIATES. Neither the Company nor any
of its Subsidiaries shall, directly or indirectly, enter into any transaction or
agreement with any stockholder, officer director or Affiliate of the Company or
family member of any officer, director or Affiliate of the Company, unless the
transaction or agreement is (i) reviewed and approved by a majority of
Disinterested Directors (as defined below) and (ii) on terms no less favorable
to the Company or the applicable Subsidiary than those obtainable from a
non-affiliated person. A "DISINTERESTED DIRECTOR" shall mean a director of the
Company who is not and has not been an officer or employee of the Company and
who is not a member of the family of, controlled by or under common control
with, any such officer or employee.
K. CERTAIN RESTRICTIONS. So long as any Preferred Shares are
outstanding, no dividends shall be declared or paid or set apart for payment nor
shall any other distribution be declared or made upon Junior Securities (as
defined in the Certificate of Designation), nor shall
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any Junior Securities be redeemed, purchased or otherwise acquired (other than a
redemption, purchase or other acquisition of shares of Common Stock made for
purposes of an employee incentive or benefit plan (including a stock option
plan) of the Company or any Subsidiary, for any consideration by the Company,
directly or indirectly, nor shall any moneys be paid to or made available for a
sinking fund for the redemption of any shares of any such stock.
V. TRANSFER AGENT INSTRUCTIONS
A. The Company undertakes and agrees that no instruction other
than the instructions referred to in this Article V and customary stop transfer
instructions prior to the registration and sale of the Common Stock pursuant to
an effective Securities Act registration statement shall be given to its
transfer agent for the Common Stock and that the Conversion Shares, the Dividend
Shares and the Warrant Shares shall otherwise be freely transferable on the
books and records of the Company as and to the extent provided in this
Agreement, the Registration Rights Agreement and applicable law. Nothing
contained in this Section V.A. shall affect in any way Buyer's obligations and
agreement to comply with all applicable securities laws upon resale of such
Common Stock. If, at any time, Buyer provides the Company with an opinion of
counsel reasonably satisfactory to the Company that registration of the resale
by Buyer of such Common Stock is not required under the Securities Act and that
the removal of restrictive legends is permitted under applicable law, the
Company shall permit the transfer of such Common Stock and, promptly instruct
the Company's transfer agent to issue one or more certificates for Common Stock
without any restrictive legends endorsed thereon.
B. Buyer shall have the right to convert the Preferred Shares
by telecopying an executed and completed Notice of Conversion (as defined in the
Certificate of Designation) to the Company. Each date on which a Notice of
Conversion is telecopied to and received by the Company in accordance with the
provisions hereof shall be deemed a Conversion Date (as defined in the
Certificate of Designation). The Company shall transmit the certificates
evidencing the shares of Common Stock issuable upon conversion of any Preferred
Shares (together with certificates evidencing any Preferred Shares not being so
converted) to Buyer via express courier, by electronic transfer or otherwise,
within five business days after receipt by the Company of the Notice of
Conversion (the "DELIVERY DATE"). Within 15 days after Buyer delivers the Notice
of Conversion to the Company, Buyer shall deliver to the Company the Preferred
Shares being converted.
C. Buyer shall have the right to purchase shares of Common
Stock pursuant to exercise of the Warrants in accordance with its applicable
terms of the Warrants. The last date that the Company may deliver shares of
Common Stock issuable upon any exercise of Warrants is referred to herein as the
"WARRANT DELIVERY DATE."
D. The Company understands that a delay in the issuance of the
shares of Common Stock issuable in lieu of cash dividends on the Preferred
Shares, upon the conversion of the Preferred Shares or exercise of the Warrants
beyond the applicable Dividend Payment Due Date (as defined in the Certificate
of Designation), Delivery Date or Warrant Delivery Date could result in economic
loss to Buyer. As compensation to Buyer for such loss (and not as a penalty),
the Company agrees to pay to Buyer for late issuance of Common Stock issuable in
lieu of cash dividends on the Preferred Shares, upon conversion of the Preferred
Shares or exercise of
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the Warrants in accordance with the following schedule (where "NO. BUSINESS
DAYS" is defined as the number of business days beyond five business days from
the Dividend Payment Due Date, the Delivery Date or the Warrant Delivery Date,
as applicable):
COMPENSATION FOR EACH 10 SHARES
OF PREFERRED SHARES NOT CONVERTED
TIMELY OR 500 SHARES OF COMMON
STOCK ISSUABLE IN PAYMENT OF
DIVIDENDS OR UPON EXERCISE OF
NO. BUSINESS DAYS WARRANTS NOT ISSUED TIMELY
----------------- ----------------------------------
1 $ 25
2 50
3 75
4 100
5 125
6 150
7 175
8 200
9 225
10 250
more than 10
$250 + $100 for
each Business Day Late beyond 10 days
The Company shall pay to Buyer the compensation described above by the transfer
of immediately available funds upon Buyer's demand. Nothing herein shall limit
Buyer's right to pursue actual damages for the Company's failure to issue and
deliver Common Stock to Buyer. In addition to any other remedies which may be
available to Buyer, in the event the Company fails for any reason to deliver
such shares of Common Stock within five business days after the relevant
Dividend Payment Due Date, Delivery Date or Warrant Delivery Date, as
applicable, Buyer shall be entitled to rescind the relevant Notice of Conversion
or exercise of Warrants by delivering a notice to such effect to the Company
whereupon the Company and Buyer shall each be restored to their respective
original positions immediately prior to delivery of such Notice of Conversion on
delivery.
VI. DELIVERY INSTRUCTIONS
The Securities shall be delivered by the Company to the Buyer
pursuant to Section I.B. hereof on a "delivery-against-payment basis" at the
Closing.
VII. CLOSING DATE
The date and time (the "CLOSING DATE") of the issuance and
sale of the Preferred Shares and the Warrants shall be the date hereof or such
other date and time as shall be mutually agreed upon in writing. The issuance
and sale of the Securities shall occur on the Closing Date at the offices of
Xxxxxx Xxxxxxx Xxxxxx & Brand, LLP.
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VIII. CONDITIONS TO THE COMPANY'S OBLIGATIONS
Buyer understands that the Company's obligation to sell the
Securities on the Closing Date to Buyer pursuant to this Agreement is
conditioned upon:
A. Delivery by Buyer of the Purchase Price;
B. The accuracy in all material respects on the Closing Date
of the representations and warranties of Buyer contained in this Agreement as if
made on the Closing Date (except for representations and warranties which, by
their express terms, speak as of and relate to a specified date, in which case
such accuracy shall be measured as of such specified date) and the performance
by Buyer in all material respects on or before the Closing Date of all covenants
and agreements of Buyer required to be performed by it pursuant to this
Agreement on or before the Closing Date; and
C. There shall not be in effect any Law or order, ruling,
judgment or writ of any court or public or governmental authority restraining,
enjoining or otherwise prohibiting any of the transactions contemplated by this
Agreement.
IX. CONDITIONS TO BUYER'S OBLIGATIONS
The Company understands that Buyer's obligation to purchase
the Securities on the Closing Date pursuant to this Agreement is conditioned
upon:
A. Delivery by the Company to Buyer of evidence that the
Certificate of Designation has been filed and is effective.
B. The accuracy in all material respects on the Closing Date
of the representations and warranties of the Company contained in this Agreement
as if made on the Closing Date (except for representations and warranties which,
by their express terms, speak as of and relate to a specified date, in which
case such accuracy shall be measured as of such specified date) and the
performance by the Company in all respects on or before the Closing Date of all
covenants and agreements of the Company required to be performed by it pursuant
to this Agreement on or before the Closing Date, all of which shall be confirmed
to Buyer by delivery of the certificate of the chief executive officer of the
Company to that effect;
C. There not having occurred (i) any general suspension of
trading in, or limitation on prices listed for, the Common Stock on Nasdaq, (ii)
the declaration of a banking moratorium or any suspension of payments in respect
of banks in the United States, (iii) the commencement of a war, armed
hostilities or other international or national calamity directly or indirectly
involving the United States or any of its territories, protectorates or
possessions, or (iv) in the case of the foregoing existing at the date of this
Agreement, a material acceleration or worsening thereof;
D. There not having occurred any event or development, and
there being in existence no condition, having or which reasonably and
foreseeably could have a Material Adverse Effect;
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E. There shall not be in effect any Law or order, ruling,
judgment or writ of any court or public or governmental authority restraining,
enjoining or otherwise prohibiting any of the transactions contemplated by this
Agreement;
F. Except as set forth on Schedule III.F. hereof, the Company
shall have obtained all consents, approvals or waivers from governmental
authorities and third persons necessary for the execution, delivery and
performance of this Agreement and the other Documents and the transactions
contemplated hereby and thereby, all without material cost to the Company; and
G. Buyer shall have received such additional documents,
certificates, payment, assignments, transfers and other delivers, as it or its
legal counsel may reasonably request and as are customary to effect a closing of
the matters herein contemplated.
X. TERMINATION
A. TERMINATION BY MUTUAL WRITTEN CONSENT. This Agreement may
be terminated and the transactions contemplated hereby may be abandoned, for any
reason and at any time prior to the Closing Date, by the mutual written consent
of the Company and Buyer.
B. TERMINATION BY THE COMPANY OR BUYER. This Agreement may be
terminated and the transactions contemplated hereby may be abandoned by action
of the Company or Buyer if (i) the Closing shall not have occurred at or prior
to 5:00 p.m., New York City time, on January 31, 2001 (the "LATEST CLOSING
DATE"); provided, however, that the right to terminate this Agreement pursuant
to this Section X.B. shall not be available to any party whose failure to
fulfill any of its obligations under this Agreement has been the cause of or
resulted in the failure of the Closing to occur at or before such time and date;
provided, further, however, that if the Closing shall not have occurred on or
prior to the Latest Closing Date, the Closing may only occur after the Latest
Closing Date with the written consent of Buyer.
C. TERMINATION BY BUYER. This Agreement may be terminated and
the transactions contemplated hereby may be abandoned by Buyer at any time prior
to the Closing Date, if (i) the Company shall have failed to comply with any of
its covenants or agreements contained in this Agreement, (ii) there shall have
been a breach by the Company of any representation or warranty made by it in
this Agreement, (iii) there shall have occurred any event or development, or
there shall be in existence any condition, having or reasonably likely to have a
Material Adverse Effect or (iv) the Company shall have failed to satisfy the
conditions provided in Article IX hereof.
D. TERMINATION BY THE COMPANY. This Agreement may be
terminated and the transactions contemplated hereby may be abandoned by the
Company at any time prior to the Closing Date, if (i) Buyer shall have failed to
comply with any of its covenants or agreements contained in this Agreement or
(ii) there shall have been a breach by Buyer of any representation or warranty
made by it in this Agreement.
E. EFFECT OF TERMINATION. In the event of the termination of
this Agreement pursuant to this Article X, this Agreement shall thereafter
become void and have no effect, and
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no party hereto shall have any liability or obligation to any other party hereto
in respect of this Agreement, except that the provisions of Article XI, this
Section X.E. and Section X.F. shall survive any such termination; provided,
however, that no party shall be released from any liability hereunder if this
Agreement is terminated and the transactions contemplated hereby abandoned by
reason of (i) willful failure of such party to perform its obligations hereunder
or (ii) any misrepresentation made by such party of any matter set forth herein.
F. FEES AND EXPENSES OF TERMINATION. If this Agreement is
terminated for any reason, the Company shall promptly reimburse Buyer for all of
Buyer's out-of-pocket costs and expenses incurred in connection with the
transactions contemplated by this Agreement and the other Documents (including,
without limitation, the fees and disbursements of Buyer's legal counsel).
XI. SURVIVAL; INDEMNIFICATION
A. The representations, warranties and covenants made by each
of the Company and Buyer in this Agreement, the annexes, schedules and exhibits
hereto and in each instrument, agreement and certificate entered into and
delivered by them pursuant to this Agreement, shall survive the Closing and the
consummation of the transactions contemplated hereby. In the event of a breach
or violation of any of such representations, warranties or covenants, the party
to whom such representations, warranties or covenants have been made shall have
all rights and remedies for such breach or violation available to it under the
provisions of this Agreement or otherwise, whether at law or in equity,
irrespective of any investigation made by or on behalf of such party on or prior
to the Closing Date.
B. The Company hereby agrees to indemnify and hold harmless
Buyer, its Affiliates and their respective officers, directors, partners and
members (collectively, the "BUYER INDEMNITEES"), from and against any and all
losses, claims, damages, judgments, penalties, liabilities and deficiencies
(collectively, "LOSSES"), and agrees to reimburse Buyer Indemnitees for all out
of-pocket expenses (including the fees and expenses of legal counsel), in each
case promptly as incurred by Buyer Indemnitees and to the extent arising out of
or in connection with:
1. any misrepresentation, omission of fact
or breach of any of the Company's representations or
warranties contained in this Agreement or the other Documents,
or the annexes, schedules or exhibits hereto or thereto or any
instrument, agreement or certificate entered into or delivered
by the Company pursuant to this Agreement or the other
Documents;
2. any failure by the Company to perform in
any material respect any of its covenants, agreements,
undertakings or obligations set forth in this Agreement or the
other Documents or any instrument, certificate or agreement
entered into or delivered by the Company pursuant to this
Agreement or the other Documents;
3. the purchase of the Preferred Shares and
the Warrants, the conversion of the Preferred Shares and the
exercise of the Warrants and the consummation of the
transactions contemplated by this Agreement and the other
Documents, the use of any of the proceeds of the Purchase
Price by the Company, the purchase or ownership of any or
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all of the Securities, the performance by the parties hereto
of their respective obligations hereunder and under the
Documents or any claim, litigation, investigation, proceedings
or governmental action relating to any of the foregoing,
whether or not Buyer is a party thereto; or
4. resales of the Common Shares by Buyer in
the manner and as contemplated by this Agreement and the
Registration Rights Agreement.
C. Buyer hereby agrees to indemnify and hold harmless the
Company, its Affiliates and their respective officers, directors, partners and
members (collectively, the "COMPANY INDEMNITEES"), from and against any and all
Losses, and agrees to reimburse the Company Indemnitees for all out-of-pocket
expenses (including the fees and expenses of legal counsel), in each case
promptly as incurred by the Company Indemnitees and to the extent arising out of
or in connection with:
1. any misrepresentation, omission of fact,
or breach of any of Buyer's representations or warranties
contained in this Agreement or the other Documents, or the
annexes, schedules or exhibits hereto or thereto or any
instrument, agreement or certificate entered into or delivered
by Buyer pursuant to this Agreement or the other Documents; or
2. any failure by Buyer to perform in any
material respect any of its covenants, agreements,
undertakings or obligations set forth in this Agreement or the
other Documents or any instrument, certificate or agreement
entered into or delivered by Buyer pursuant to this Agreement
or the other Documents.
D. Promptly after receipt by either party hereto seeking
indemnification pursuant to this Article XI (an "INDEMNIFIED PARTY") of written
notice of any investigation, claim, proceeding or other action in respect of
which indemnification is being sought (each, a "CLAIM"), the Indemnified Party
promptly shall notify the party against whom indemnification pursuant to this
Article XI is being sought (the "INDEMNIFYING PARTY") of the commencement
thereof; but the omission to so notify the Indemnifying Party shall not relieve
it from any liability that it otherwise may have to the Indemnified Party except
to the extent that the Indemnifying Party is materially prejudiced and forfeits
substantive rights or defenses by reason of such failure. In connection with any
Claim as to which both the Indemnifying Party and the Indemnified Party are
parties, the Indemnifying Party shall be entitled to assume the defense thereof.
Notwithstanding the assumption of the defense of any Claim by the Indemnifying
Party, the Indemnified Party shall have the right to employ separate legal
counsel and to participate in the defense of such Claim, and the Indemnifying
Party shall bear the reasonable fees, out-of-pocket costs and expenses of such
separate legal counsel to the Indemnified Party if (and only if): (x) the
Indemnifying Party shall have agreed to pay such fees, out-of-pocket costs and
expenses, (y) the Indemnified Party and the Indemnifying Party reasonably shall
have concluded that representation of the Indemnified Party and the Indemnifying
Party by the same legal counsel would not be appropriate due to actual or, as
reasonably determined by legal counsel to the Indemnified Party, potentially
differing interests between such parties in the conduct of the defense of such
Claim, or if there may be legal defenses available to the Indemnified Party that
are in addition to or disparate from those available to the Indemnifying Party,
or (z) the
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Indemnifying Party shall have failed to employ legal counsel reasonably
satisfactory to the Indemnified Party within a reasonable period of time after
notice of the commencement of such Claim. If the Indemnified Party employs
separate legal counsel in circumstances other than as described in clauses (x),
(y) or (z) above, the fees, costs and expenses of such legal counsel shall be
borne exclusively by the Indemnified Party. Except as provided above, the
Indemnifying Party shall not, in connection with any Claim in the same
jurisdiction, be liable for the fees and expenses of more than one firm of legal
counsel for the Indemnified Party (together with appropriate local counsel). The
Indemnifying Party shall not, without the prior written consent of the
Indemnified Party (which consent shall not unreasonably be withheld), settle or
compromise any Claim or consent to the entry of any judgment that does not
include an unconditional release of the Indemnified Party from all liabilities
with respect to such Claim or judgment.
E. In the event one party hereunder should have a claim for
indemnification that does not involve a claim or demand being asserted by a
third party, the Indemnified Party promptly shall deliver notice of such claim
to the Indemnifying Party. If the Indemnified Party disputes the claim, such
dispute shall be resolved by mutual agreement of the Indemnified Party and the
Indemnifying Party or by binding arbitration conducted in accordance with the
procedures and rules of the American Arbitration Association. Judgment upon any
award rendered by any arbitrators may be entered in any court having competent
jurisdiction thereof.
XII. GOVERNING LAW
This Agreement shall be governed by and interpreted in
accordance with the laws of the State of New York, without regard to the
conflicts of law principles of such state.
XIII. SUBMISSION TO JURISDICTION
Each of the parties hereto consents to the exclusive
jurisdiction of the federal courts whose districts encompass any part of the
City of New York or the state courts of the State of New York sitting in the
City of New York in connection with any dispute arising under this Agreement and
the other Documents. Each party hereto hereby irrevocably and unconditionally
waives, to the fullest extent it may effectively do so, any defense of an
inconvenient forum or improper venue to the maintenance of such action or
proceeding in any such court and any right of jurisdiction on account of its
place of residence or domicile. Each party hereto irrevocably and
unconditionally consents to the service of any and all process in any such
action or proceeding in such courts by the mailing of copies of such process by
certified or registered airmail at its address specified in Article XIX. Each
party hereto agrees that a final judgment in any such action or proceeding shall
be conclusive and may be enforced in other jurisdictions by suit on the judgment
or in any other manner provided by law.
XIV. WAIVER OF JURY TRIAL
TO THE FULLEST EXTENT PERMITTED BY LAW, EACH OF THE PARTIES
HERETO HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ITS RESPECTIVE
RIGHTS TO A JURY TRIAL OF ANY
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CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT OR ANY
OTHER DOCUMENT OR ANY DEALINGS BETWEEN THEM RELATING TO THE SUBJECT MATTER OF
THIS AGREEMENT AND OTHER DOCUMENTS. EACH PARTY HERETO (I) CERTIFIES THAT NEITHER
OF THEIR RESPECTIVE REPRESENTATIVES, AGENTS OR ATTORNEYS HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH PARTY WOULD NOT, IN THE EVENT OF LITIGATION,
SEEK TO ENFORCE THE FOREGOING WAIVERS AND (II) ACKNOWLEDGES THAT IT HAS BEEN
INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS
AND CERTIFICATIONS HEREIN.
XV. COUNTERPARTS; EXECUTION
This Agreement may be executed in any number of counterparts
and by the different parties hereto on separate counterparts, each of which when
so executed and delivered shall be an original, but all the counterparts shall
together constitute one and the same instrument. A facsimile transmission of
this signed Agreement shall be legal and binding on all parties hereto.
XVI. HEADINGS
The headings of this Agreement are for convenience of
reference and shall not form part of, or affect the interpretation of, this
Agreement.
XVII. SEVERABILITY
In the event any one or more of the provisions contained in
this Agreement or in the other Documents should be held invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein or therein shall not in any way be
affected or impaired thereby. The parties shall endeavor in good-faith
negotiations to replace the invalid, illegal or unenforceable provisions with
valid provisions the economic effect of which comes as close as possible to that
of the invalid, illegal or unenforceable provisions.
XVIII. ENTIRE AGREEMENT; REMEDIES, AMENDMENTS AND WAIVERS
This Agreement and the Documents constitute the entire
agreement among the parties pertaining to the subject matter hereof and
supersede all prior agreements, understandings, negotiations and discussions,
whether oral or written, of the parties. No supplement, modification or waiver
of this Agreement shall be binding unless executed in writing by all parties. No
waiver of any of the provisions of this Agreement shall be deemed or shall
constitute a waiver of any other provision hereof (whether or not similar), nor
shall such waiver constitute a continuing waiver unless otherwise expressly
provided.
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XIX. NOTICES
Except as may be otherwise provided herein, any notice or
other communication or delivery required or permitted hereunder shall be in
writing and shall be delivered personally or sent by certified mail, postage
prepaid, or by a nationally recognized overnight courier service, and shall be
deemed given when so delivered personally or by overnight courier service, or,
if mailed, three (3) days after the date of deposit in the United States mails,
as follows:
A. to the Company, to:
Innovative Gaming Corporation of America
0000 Xxxxxxxxx Xxxxxx
Xxxx, Xxxxxx 00000
Attention: Xxxxxx X. Xxxxxx, CEO
(000) 000-0000
(000) 000-0000 (Fax)
with a copy to:
Xxxxxx Xxxxxxx Xxxxxx & Brand, LLP
3300 Norwest Center
00 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx, Esq.
(000) 000-0000
(000) 000-0000 (Fax)
B. if to Buyer, to:
The address of Buyer as indicated on Schedule A.
The Company or Buyer may change the foregoing address by notice given pursuant
to this Article XIX.
XX. CONFIDENTIALITY
Each of the Company and Buyer agrees to keep confidential and
not to disclose to or use for the benefit of any third party the terms of this
Agreement or any other information which at any time is communicated by the
other party as being confidential without the prior written approval of the
other party; provided, however, that this provision shall not apply to
information which, at the time of disclosure, is already part of the public
domain (except by breach of this Agreement) and information which is required to
be disclosed by law (including, without limitation, pursuant to Item 601(b)(10)
of Regulation S-K under the Securities Act and the Exchange Act).
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XXI. ASSIGNMENT
This Agreement shall not be assignable by either of the
parties hereto prior to the Closing without the prior written consent of the
other party, and any attempted assignment contrary to the provisions hereby
shall be null and void; provided, however, that Buyer may assign its rights and
obligations hereunder, in whole or in part, to any Affiliate of Buyer.
[SIGNATURE PAGE FOLLOWS]
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In Witness Whereof, the parties hereto have duly executed and
delivered this Agreement on the date first above written.
INNOVATIVE GAMING CORPORATION OF AMERICA
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Chief Executive Officer
BUYER:
/s/ Xxxxx X. Xxxxx
-------------------------------------
Name: Xxxxx X. Xxxxx
Signature Page - Securities Purchase Agreement
30
A-1
SCHEDULE A
BUYER AND PURCHASE AMOUNTS
----------------------------------------------------------------------------------------------------------------------
NAME ADDRESS NO. OF PREFERRED SHARES PURCHASE PRICE NO. OF WARRANTS
----------------------------------------------------------------------------------------------------------------------
Xxxxx X. Xxxxx 0000 Xxxxx Xxxx Xxxxx 306,250 $3,062,500 (1) 200,000
Xxxxx, Xxxxxxxxx 00000
----------------------------------------------------------------------------------------------------------------------
(1) Purchase Price delivered (i) $1,000,000 in cash, and (ii) $2,062,500 by
conversion of 206,250 shares of the Series E 6% Convertible Preferred
Stock.
A-1
