EXHIBIT 99.2
AGREEMENT AS TO VOTING SHARES OF STOCK
OF EXBER, INC. AND UNION PLAZA HOTEL AND CASINO, INC.
This Agreement is made effective as of this 6th day of December, 2002
(the "Effective Date") by and between Barrick Corporation, its assignees and
designees, (hereinafter collectively "Barrick") and Xxxxxxx 1993 Marital Trust,
Xxxx X. Xxxxxxx, Trustee (hereinafter "Xxxxxxx") and Exber, Inc. (hereinafter
"Exber").
WHEREAS, Barrick and Exber and Union Plaza Hotel and Casino, Inc. and
Union Plaza Operating Company (hereinafter "UP") and others have entered into an
Agreement of Purchase and Sale dated December 6, 2002 which provides for the
sale of certain real properties and the businesses operated thereon, including
the Union Plaza Hotel and Casino (hereinafter "P&S Agreement"), which is owned
by UP to Barrick; and
WHEREAS, Exber is the record owner of 51.025% (386,475 shares) of the
capital stock of the UP (hereinafter the "Exber Shares") and Xxxxxxx is the
record owner of 14.047% (106,392 shares) of the capital stock of UP (hereinafter
the "Xxxxxxx Shares").
WHEREAS, the sale of all of the property and assets of UP pursuant to
the P&S Agreement must be approved by the affirmative vote of stockholders
holding stock entitling them to exercise at least a majority of the voting
power, but UP will not have obtained that shareholder approval until after the
deadline established for the signing of the P&S Agreement by the parties
thereto;
WHEREAS, Exber, UP and the other Sellers under the P&S Agreement have
requested Barrick execute the P&S Agreement prior to UP obtaining shareholder
approval of the P&S Agreement; and
WHEREAS, Barrick agrees to execute the P&S Agreement and to pay the
Deposit required of it upon the signing of the P&S Agreement on the condition
that Exber and Xxxxxxx execute this Agreement and in reliance on the accuracy of
all representations, warranties and covenants of Exber and Xxxxxxx contained
herein.
NOW THEREFORE, in consideration of the above recitals and the mutual
premises and promises contained herein, together with other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties hereto agree as follows.
1. Exber hereby agrees that (for as long as the P&S Agreement is in
effect and/or there is no Purchaser default thereunder), at such time as the
issue of approving the P&S Agreement and the transactions contemplated therein
comes before the shareholders of UP for a vote, Exber, as a shareholder of UP,
will vote (or cause to be voted) the Exber Shares to approve the sale of UP's
property and assets pursuant to the P&S Agreement.
2. Xxxxxxx hereby agrees that (for as long as the P&S Agreement is in
effect and/or there is no Purchaser default thereunder), at such time as the
issue of approving the P&S Agreement and the transactions contemplated therein
comes before the shareholders of UP for a vote, Xxxxxxx as a shareholder of UP
will vote (or cause to be voted) the Xxxxxxx Shares to approve the sale of UP's
property and assets pursuant to the P&S Agreement.
3. Subject to UP's compliance with UP's Articles of Incorporation and
Bylaws, Nevada General Corporation Law, and the rules and regulations of the
Securities and Exchange Commission, and Barrick providing the necessary advance
notice of the status and timing of its hearings to obtain the Gaming Approvals
the vote of the shareholders to approve the P&S Agreement and the consummation
of the transactions contemplated therein shall be properly noticed to be taken
and concluded not more than 10 days after Xxxxxxx'x receipt of all necessary
approvals, permits, licenses,
findings of suitability, registration and other authorizations (collectively,
"Gaming Approvals") by the Nevada Gaming Commission, the Nevada State Gaming
Control Board and the City of Las Vegas and/or Xxxxx County Liquor and Gaming
License Board (individually a "Nevada Gaming Authority," and collectively the
"Nevada Gaming Authorities") to consummate the transactions contemplated by the
P&S Agreement.
4. Exber hereby represents and warrants to Barrick that:
a) Exber is the record owner of the Exber Shares and to the best of
its knowledge and belief, UP has issued and outstanding a total of
757,419 shares of common stock and has authorized only one class of
common stock and no authorized class of preferred stock.
b) Exber has not, and at all times during the term hereof will not,
assign, transfer or encumber in any way the Exber Shares without
Xxxxxxx'x consent which may not be unreasonably withheld.
c) Exber possesses and controls all right and authority to vote the
Exber Shares.
d) The execution and delivery of this Agreement has been duly and
validly authorized and this Agreement and the performance of the
acts contemplated herein, constitute legal, valid and binding
obligations of Exber, enforceable in accordance with the terms set
forth herein.
e) The execution and delivery of this Agreement and the performance of
the acts contemplated herein do not and will not conflict with or
result in the breach or termination of or constitute a default
under or pursuant to any judgment, order, injunction, decree or
ruling of any court or governmental authority, or other agreement
or instrument by which Exber is bound or to which it is subject or
which
would prevent the consummation of the transactions and acts
contemplated by this Agreement or result in the creation of any
lien, charge or encumbrance upon the Exber Shares.
f) Subject to the receipt of any required Gaming Approvals, the
execution and delivery of this Agreement and the performance of the
acts contemplated herein do not and will not, to the best of
Exber's knowledge and belief, conflict with or result in the
violation or breach by Exber of any federal, state or local law or
regulation to which Exber is subject.
g) Exber shall not vote the Exber Shares to authorize the issuance or
sale of any additional stock or classes of stock of UP between the
Effective Date and the date of the vote of the shareholders of UP
regarding the approval of the P&S Agreement without Xxxxxxx'x
consent which may not be unreasonably withheld.
5. Xxxxxxx represents and warrants to Barrick that:
a) Xxxxxxx is the record owner of the Xxxxxxx Shares and to the best
of its knowledge and belief, UP has issued and outstanding a total
of 757,419 shares of common stock and has authorized only one class
of common stock and no authorized class of preferred stock.
b) Xxxxxxx has not, and at all times during the term hereof will not,
assign, transfer or encumber in any way the Xxxxxxx Shares except
for estate or tax planning purposes and in that case upon consent
of the transferee to be bound by the terms of this Agreement.
c) Xxxxxxx possesses and controls all right and authority to vote the
Xxxxxxx Shares.
d) The execution and delivery of this Agreement by Xxxxxxx has been
duly and validly authorized and this Agreement and the performance
of the acts contemplated herein, constitute legal, valid and
binding obligations enforceable in accordance with the terms set
forth herein.
e) The execution and delivery of this Agreement and the performance of
the acts contemplated herein do not and will not conflict with or
result in the breach or termination of or constitute a default
under or pursuant to any judgment, order, injunction, decree or
ruling of any court or governmental authority, or other agreement
or instrument by which Xxxxxxx is bound or to which Xxxxxxx is
subject or which would prevent the consummation of the transactions
and acts contemplated by this Agreement or result in the creation
of any lien, charge or encumbrance upon the Xxxxxxx Shares.
f) Subject to the receipt of any required Gaming Approvals, the
execution and delivery of this Agreement and the performance of the
acts contemplated herein do not and will not, to the best of
Xxxxxxx'x knowledge and belief, conflict with or result in the
violation or breach by Xxxxxxx of any federal, state or local law
or regulation to which Xxxxxxx is subject.
g) Xxxxxxx is unaware of any claim, interest, right or authority of
any person, firm or entity which would interfere with, prohibit or
limit Xxxxxxx'x ability to execute this Agreement or to perform the
acts described herein or contemplated hereby including but not
limited to any beneficiary of the Xxxxxxx 1993 Marital Trust.
6. This Agreement shall be fully binding on and enforceable against
and shall be to the benefit of the heirs, successors, beneficiaries, assigns and
legal representatives of the parties hereto.
7. Exber and Xxxxxxx hereby designate and appoint the President of
Barrick as their attorney in fact and proxy with full power of substitution
which designation and appointment is irrevocable and coupled with an interest to
vote the Exber Shares, and Xxxxxxx Shares, as the case may be, in regard to the
matters set forth in paragraphs 1 and 2 above. Provided that (i) neither
Barrick, nor the President of Barrick or his substitute, is determined by a
Nevada Gaming Authority to be unsuitable to be the attorney in fact and proxy of
Exber and/or Xxxxxxx or unsuitable to be connected or affiliated, with UP, Exber
and/or Xxxxxxx, (ii) UP does not lose and is not threatened with any penalty or
disciplinary action, including the loss of any gaming license as a result of
either Barrick, or the President of Barrick or his substitute, serving as the
attorney in fact and proxy of Exber and/or Xxxxxxx, and (iii) in the sole
discretion of the board of directors of UP, the designation and appointment of
Barrick or the President of Barrick or his substitute as the attorney in fact
and proxy of Exber and/or Xxxxxxx is not deemed likely to jeopardize any
application for, receipt of approval for, right to the use of, or entitlement
to, any gaming license by UP, the President may exercise the proxy granted to it
hereunder upon the occurrence of a default by Exber or Xxxxxxx in the
performance of the agreements and obligations set forth in this Agreement,
subject to the receipt of any necessary Gaming Approvals. This proxy shall exist
for as long as the P&S Agreement is in effect and/or there is no Purchaser
default thereunder.
8. Notwithstanding anything to the contrary contained in this
Agreement, Xxxx X. Xxxxxxx shall be free to act in his capacity as a member of
the Board of Directors of UP and Exber and to discharge his fiduciary duties as
such.
9. This Agreement shall be construed and governed in accordance with
the laws of the State of Nevada. All parties shall bear their own costs and
expenses in the negotiation, drafting, reporting and implementation of this
Agreement.
10. In the event any of the covenants, terms or provisions contained in
this Agreement are held unenforceable or declared invalid for any reason by a
court of competent jurisdiction, that unenforceability or invalidity will not
affect the enforceability or validity of the remaining provisions of this
Agreement, and the unenforceable or invalid portion will be severable from the
remainder of this Agreement which shall be fully enforceable to the maximum
extent of its meaning and intent.
11. The parties acknowledge and agree that in the event of a failure of
performance of the terms, provisions of this Agreement or the obligations or
duties created by this Agreement that there will be no adequate remedy at law
available to the aggrieved party and as a result thereof, such aggrieved party
shall be entitled to seek the specific performance by the defaulting party of
its obligations resulting from or contemplated by the terms of this Agreement.
Should any party be required to institute any proceeding or action for the
enforcement or protection of its rights or benefits under this Agreement, the
successful party shall be entitled to collect from the party(ies) against whom
such action was brought all reasonable costs related to such proceeding or
action incurred by the successful party, including reasonable attorneys' fees.
12. This Agreement is subject to all applicable gaming laws and any
compliance, reporting requirements, consents or approvals required under Nevada
law, by the Nevada Gaming Authorities, and under the Gaming Control Act and
rules, regulations or interpretations thereunder.
13. This Agreement shall terminate and shall have no further force or
effect as of the earlier to occur of (i) the date and time of the sale of UP's
property and assets pursuant to the P&S Agreement; (ii) the date and time that
the P&S Agreement shall terminate for any reason; (iii) the
finding by any Nevada Gaming Authority that Barrick, its directors, officers or
affiliates is unsuitable to have a relationship with respect to UP; and (iv)
October 6, 2003, unless Closing is extended as provided in the Purchase and Sale
Agreement in which case at the end of any such extensions.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
EXBER: Exber, Inc., a Nevada corporation
/s/ Xxxx X. Xxxxxxx
-------------------
By: Xxxx X. Xxxxxxx
Its: President
XXXXXXX: /s/ Xxxx X. Xxxxxxx
-------------------
Xxxx X. Xxxxxxx, Trustee of the Xxxxxxx
1993 Marital Trust
BARRICK: Barrick Corporation, a Nevada corporation
/s/ Xxxxxxx Xxxxxxx
-------------------
By: Xxxxxxx Xxxxxxx
Its: President and General Counsel
