Contract
EXHIBIT
10.1
EXECUTION
COPY
AGREEMENT
(this “Agreement”)
dated
as of January 10,
2006,
by and among XX XXXXXXXX S.P.A., an Italian corporation (“DeA”),
and
GTECH HOLDINGS CORPORATION, a Delaware corporation (the “Company”).
WHEREAS
pursuant to the Agreement and Plan of Merger, dated as of the date hereof (the
“Merger
Agreement”),
by
and among Lottomatica S.p.A., an Italian corporation (“Guarantor”),
Gold
Holding Co., a Delaware corporation and direct, wholly owned subsidiary of
Guarantor (“Parent”),
Gold
Acquisition Corp., a Delaware corporation and direct, wholly owned subsidiary
of
Parent (“Acquisition
Co”),
and
the Company, Acquisition Co will merge with and into the Company and the Company
will become a wholly owned subsidiary of Parent (the “Merger”).
WHEREAS
Guarantor proposes to effectuate the Rights Offering to finance a portion of
the
consideration payable in the Merger.
WHEREAS
DeA is a shareholder of Guarantor.
WHEREAS
in connection with the Merger and the Rights Offering, DeA desires to make
certain agreements and representations for the benefit of the
Company.
WHEREAS
capitalized terms used but not defined herein have the meaning assigned to
such
terms in the Merger Agreement.
NOW,
THEREFORE, the parties hereto agree as follows:
Section
1.01 DeA
agrees for the benefit of the Company that DeA will vote, and will cause Nuova
Tirrena S.p.A., an indirect subsidiary of DeA (“NT”),
to
vote, all of the equity interests in Guarantor held by DeA, directly or
indirectly (excluding the 6,198,773 shares the subject of the swap agreement
dated May 9, 2005, entered into between DeA and Mediobanca - Banca di Credito
Finanziario S.p.A., as such swap arrangement may be extended), as of the date
of
this Agreement or subsequently acquired (the “Subject
Shares”)
in
favor of the Rights Offering and any other matters to be voted upon at the
Guarantor Stockholders Meeting in connection with the Merger, the Acquisition
Financing or the transactions contemplated thereby and against any matters
to be
voted upon at such Guarantor Stockholders Meeting that would prevent or
materially delay consummation of the transaction contemplated by the Merger
Agreement or the Acquisition Financing.
Section
1.02 DeA
agrees for the benefit of the Company that, pursuant to the Rights Offering,
DeA
(a) will, and will cause NT to, exercise the subscription rights that pertain
to
the Subject Shares, and accordingly shall subscribe for and purchase (directly
or indirectly through NT) all equity interests in Guarantor as will be issuable
pursuant to such subscription rights and (b) will not withdraw, and will cause
NT not to withdraw, such exercises, subscriptions or purchases.
Section
1.03 DeA
will
not, directly or indirectly, (a) grant any proxies or powers of attorney with
respect to the Subject Shares that would prevent or materially delay DeA from
complying with its obligations under this Agreement or (b) during the time
period from the date hereof until the consummation of the Rights Offering,
sell,
pledge or otherwise dispose of, or subject to any Lien, any Subject
Shares.
Section
1.04 DeA
represents and warrants to the Company that:
(a) DeA
has
all requisite corporate power and authority to execute and deliver this
Agreement and to perform its obligations under the Agreement. The execution
and
delivery by DeA of this Agreement and the performance by it of its obligations
under the Agreement have been duly and validly authorized by all necessary
corporate action on the part of DeA. DeA has duly executed and delivered this
Agreement and this Agreement constitutes a legal, valid and binding obligation
of DeA, enforceable against DeA in accordance with its terms.
(b) DeA
has
or will have at the time of the Guarantor Shareholder Meeting the sole right
to
vote the Subject Shares. None of the Subject Shares will be subject to any
voting trust or other agreement, arrangement or restriction with respect to
the
voting of the Subject Shares at the Guarantor Shareholders Meeting, except
pursuant to this Agreement and as contemplated by the Pre-Underwriting
Agreement.
Section
1.05 Sections
10.05, 10.06, 10.08, 10.10 and 10.11 of the Merger Agreement are hereby
incorporated by reference and shall apply hereto, mutatis mutandis, as if set
forth herein except that the term “Agreement” therein shall be deemed to refer
to this Agreement and the term “Guarantor” therein shall be deemed to refer to
DeA.
Section
1.06 It
is a
condition to the effectiveness of this Agreement that the Merger Agreement
shall
have been executed and delivered by each of the parties thereto and be in full
force and effect. In the event the Merger Agreement is terminated in accordance
with its terms, this Agreement shall automatically terminate and be of no
further force or effect. Upon such termination, except for rights any party
may
have in respect of any breach by any other party of its obligations hereunder,
none of the parties hereto shall have any further obligation or liability
hereunder.
Section
1.07 DeA
(a)
hereby appoints The Corporation Trust Company, Corporation Trust Center, 1209
Orange Street, Wilmington, Delaware, as its authorized agent (the “Authorized
Agent”)
upon
whom process may be served in any suit, action or proceeding arising out of
or
based upon this Agreement or the transactions contemplated hereby which may
be
instituted in any Delaware court and (b) agrees that service of process upon
such Authorized Agent shall be deemed in every respect effective service of
process upon DeA in any such suit or proceeding. DeA hereby represents and
warrants that the Authorized Agent has accepted such appointment and has agreed
to act as such agent for service of process, and DeA agrees to take any and
all
action, including the
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filing
of
any and all documents that may be necessary to continue such appointment in
full
force and effect as aforesaid.
Section
1.08 Neither
this Agreement nor any of the rights, interests or obligations under this
Agreement shall be assigned, in whole or in part, by operation of law or
otherwise by any of the parties without the prior written consent of the other
parties, except that DeA may assign, in its sole discretion, any of or all
its
rights, interests and obligations under this Agreement to any affiliate of
DeA,
but no such assignment shall relieve DeA of any of its obligations under this
Agreement. Any purported assignment without such consent shall be void. Subject
to the preceding sentences, this Agreement will be binding upon, inure to the
benefit of, and be enforceable by the parties and their respective successors
and assigns.
Section
1.09 Notwithstanding
any other provision of this Agreement other than the last sentence of this
Section 1.09, DeA agrees that irreparable damage would occur, damages would
be
difficult to determine and would be an insufficient remedy and no other adequate
remedy would exist at law or in equity, in each case in the event that any
of
the provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached (or DeA threatens such a breach).
It
is accordingly agreed that in the event of a breach or threatened breach of
this
Agreement, the Company shall be entitled to an injunction or injunctions to
prevent breaches of this Agreement and to enforce specifically the terms and
provisions of this Agreement, in addition to any other remedy to which the
Company is entitled at law or in equity. DeA irrevocably waives any defenses
based on adequacy of any other remedy, whether at law or in equity, that might
be asserted as a bar to the remedy of specific performance of any of the terms
or provisions hereof or injunctive relief in any action brought therefor by
the
Company. The Company acknowledges that if, and only if, Parent pays to the
Company the Parent Termination Fee after a demand therefor by the Company,
then
such amount shall constitute the Company’s sole and exclusive remedy for the
termination of this Agreement regardless of the circumstances giving rise to
such termination, the Company shall have no further rights, directly or
indirectly, against DeA or any of its affiliates, whether at law or equity,
in
contract, in tort or otherwise
in
respect of this Agreement and the Company shall not be able to assert any claim
against DeA or its affiliates in respect of this Agreement.
Section
1.10 All
notices, requests, claims, demands and other communications under this Agreement
shall be in writing and shall be deemed given upon receipt by the parties at
the
following addresses (or at such other address for a party as shall be specified
by like notice):
(a) if
to
DeA, to
Xx
Xxxxxxxx S.p.A.
Xxx
Xxxxxxxx xx Xxxxxxxxx 00
00000
Xxxxxx, Xxxxx
3
Attention:
General Counsel
Facsimile
No: x00 000 000000
with
copies to:
Xxxxx
Xxxxxxxxxx LLP
0000
Xxxxxx xx xxx Xxxxxxxx
Xxx
Xxxx,
XX 00000
Attention:
Xxxxxx X. Xxxxxx, Esq.
Xxxx X. Xxxxxx, Esq.
Facsimile
No:
(000) 000-0000
(b) if
to the
Company, to the addresses set forth in Section 10.02(b) of the Merger
Agreement.
[SIGNATURE
PAGE FOLLOWS]
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IN
WITNESS WHEREOF, DeA and the Company have duly executed this Agreement, each
as
of the date first written above.
| XX XXXXXXXX S.P.A. | ||
| |
|
|
| by | /s/ Xxxxx Xxxxxxx | |
|
Name: Xxxxx Xxxxxxx |
||
| Title: General Manager | ||
| GTECH HOLDINGS CORPORATION | ||
| |
|
|
| by | /s/ Xxxxxx X. Xxxxx, Xx. | |
|
Name: Xxxxxx X. Xxxxx, Xx. |
||
| Title: Chairman of the Board | ||
