EXHIBIT (d)(2)
April 25, 2001
Black Hawk Gaming & Development Company, Inc.
000 Xxxx Xxxxxx
Xxxxx Xxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx, President
Re: Voting Agreement
Gentlemen:
The undersigned (the "Shareholder") understands that Gameco, Inc., a
Delaware corporation ("Parent"), BH Acquisition, Inc., a Colorado corporation
("Merger Subsidiary"), and Black Hawk Gaming & Development Company, Inc., a
Colorado corporation ("Company"), have entered into an Agreement and Plan of
Merger dated as of April 25, 2001 (the "Agreement"), providing for, among other
things, the merger of Merger Subsidiary into the Company (the "Merger").
Consummation of the Merger will require the approval of the shareholders of the
Company.
The Shareholder is a shareholder of the Company and is entering into
this letter agreement at your request, in exchange for good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged.
The Shareholder confirms its agreement with you as follows:
1. Until the earliest date referred to in Section 7, the Shareholder
agrees that it will not, and will not permit any of its affiliates to, contract
to sell, sell or otherwise transfer or dispose of any of its shares of the
Company or any interest therein or securities convertible into shares of the
Company, or any voting rights with respect thereto, without your prior written
consent, with any such consent to be conditioned on the transferee's execution
and delivery to you at or prior to the time of that transfer of (i) an
instrument in form and substance reasonably acceptable to you under which the
transferee becomes bound by this letter agreement with the same effect as if it
were Shareholder hereunder, or (ii) a separate agreement containing similar
undertakings on terms no less favorable to, and in form and substance reasonably
acceptable to, you.
2. The Shareholder agrees that during the term of this letter
agreement (a) all of the shares of the Company beneficially owned by the
Shareholder or any of its affiliates, or over which the Shareholder or any such
affiliate has voting power or control, directly or indirectly (including any
such shares acquired after the date hereof), at the record date for any meeting
of shareholders of the Company called to consider and vote on the Merger and the
Agreement and the transactions contemplated thereby or any Acquisition Proposal
(as such term is defined in the Agreement) will be voted by the Shareholder or
such affiliate, or any representative or proxy thereof, as applicable, in favor
of the approval of the Merger and the Agreement and the transactions
contemplated thereby and (b) neither the Shareholder nor any such affiliate nor
any such representative or proxy will vote any such shares in favor of, or
participate in, support or make any recommendation in favor of, any Acquisition
Proposal.
3. Each party hereto has all necessary power and authority to enter
into this letter agreement. This letter agreement is the legal, valid and
binding agreement of each party hereto, and is enforceable against that party in
accordance with its terms, subject to applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and similar laws affecting
creditors' rights and remedies generally and to general principles of equity.
Neither party's execution, delivery or performance of this Agreement violates or
conflicts with or will violate or conflict with any law or governmental order
applicable to that party or any agreement or instrument to which that party is a
party or by which that party is bound, and neither party hereto will enter into
or become bound by any agreement or instrument that would conflict with or be
violated by the parties' execution, delivery or performance of this Agreement.
The Shareholder represents and warrants that the Company's Annual Report on Form
10-K for the Year Ended December 31, 2000 sets forth the shares of the Company
of which the Shareholder or any affiliate (as defined under the Securities
Exchange Act of 1934, as amended) of the Shareholder is the beneficial owner.
This letter agreement shall inure to the benefit of the parties hereto and their
respective successors and assigns.
4. The Shareholder agrees that damages are an inadequate remedy for
the breach by Shareholder of any term or condition of this letter agreement and
that you shall be entitled to a temporary restraining order and preliminary and
permanent injunctive relief in order to enforce our agreements herein.
5. Except to the extent that the laws of the jurisdiction of
organization of any party hereto, or any other jurisdiction, are of mandatory
application to matters arising under or in connection with this letter
agreement, this letter agreement shall be governed by the laws of the State of
Colorado, without application of choice of law principles.
6. This letter agreement constitutes the entire agreement between
the parties hereto with respect to the matters covered hereby and supersedes all
prior agreements, understandings or representations between the parties, written
or oral, with respect to the subject matter hereof.
7. Except as otherwise provided herein, this letter agreement shall
terminate automatically, without the need for any notice or other action by
either party upon the earlier of (i) the date on which the Agreement is
terminated, and (ii) the Closing Date, as defined in the Agreement.
Please confirm that the foregoing correctly states the understanding
between us by signing and returning to me a counterpart hereof.
Diversified Opportunities Group Ltd.
By: Xxxxxx Entertainment Ltd., its manager
By: /s/ Xxxxxxx X. Xxxxxx
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Accepted and agreed to as of April 25, 2001.
Black Hawk Gaming & Development
Company, Inc.
By: /s/ Xxxxxxx X. Xxxxx
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