STOCKHOLDERS AGREEMENT
Exhibit
7
AMENDED
AND RESTATED
This
Amended and Restated Stockholders Agreement (the "Agreement"),
is made as of the 6th day
of January, 2010, by and among Xxxxxxx
X. Xxxx ("SAW"),
an individual, Xxxxxx X. Xxxx (“EW”),
an individual, and Aruze
USA, Inc., a Nevada corporation ("Aruze").
W I T N E
S S E T H:
WHEREAS,
SAW, Baron Asset Fund (“Baron”) and Aruze entered into that certain Stockholders
Agreement as of April 2002, which Stockholders Agreement was amended by that
certain Amendment to Stockholders Agreement dated as of November 8, 2006, Waiver
and Consent dated as of July 31, 2009, and Waiver and Consent dated as of August
13, 2009 (the “Existing Agreement”);
WHEREAS,
SAW has agreed to transfer to EW, 11,076,709 (the “EW Shares”) shares of common
stock of Xxxx Resorts, Limited (“Xxxx”) as permitted by the Existing
Agreement;
WHEREAS,
pursuant to the terms of the Existing Agreement, EW is to become a party to the
Existing Agreement in connection with her ownership of the EW Shares;
and
WHEREAS,
the parties have agreed to further amend the terms of the Existing Agreement and
have agreed to amend and restate the terms and provisions of the Existing
Agreement as provided herein.
NOW,
THEREFORE, in consideration of the foregoing and the agreements set forth below,
the parties hereto agree as follows:
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1.
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Definitions. For
purposes of this Agreement:
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(a)
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"Affiliate"
of any Person means another Person that directly or indirectly, through
one or more intermediaries, controls, is controlled by, or is under common
control with, such first Person.
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(b)
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"Aruze
Parent" means Universal
Entertainment Corporation (formerly known as Aruze Corp.), a Japanese
public corporation, of which Xxxxx Xxxxx is Chairman of the Board and,
together with his family members, a 67.5%
shareholder.
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(c)
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"Bankruptcy"
means,
and a Stockholder shall be referred to as a "Bankrupt Stockholder" upon,
(a) the entry of a decree or order for relief against such Stockholder, by
a court of competent jurisdiction in any voluntary or involuntary case
brought against the Stockholder under any bankruptcy, insolvency or
similar law (collectively, "Debtor
Relief Laws")
generally affecting the right of creditors and relief of debtors now or
hereafter in effect; (b) the appointment of a receiver, liquidator,
assignee, custodian,
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trustee,
sequestrator or other similar agent under applicable Debtor Relief Laws
for such Stockholder or for any substantial part of such Stockholder's
assets or property; (c) the ordering of the winding up or liquidation of
such Stockholder's affairs; (d) the filing of a voluntary petition in
bankruptcy by such Stockholder or the filing of an involuntary petition
against such Stockholder, which petition is not dismissed within a period
of 180 days; (e) the consent by such Stockholder to the entry of an order
for relief in a voluntary or involuntary case under any Debtor Relief Laws
or to the appointment of, or the taking of any possession by, a receiver,
liquidator, assignee, trustee, custodian, sequestrator or other similar
agent under any applicable Debtor Relief Laws for such Stockholder or for
any substantial part of such Stockholder's assets or property; or (f) the
making by such Stockholder of any general assignment for the benefit of
such Stockholder's
creditors.
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(d)
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"Beneficially
Own" or "Beneficial Ownership" with respect to any securities shall mean
having "beneficial ownership" of such securities (as determined pursuant
to Rule 13d-3 under the Securities Exchange Act of 1934, as amended (the
"Exchange
Act")) including pursuant to any agreement, arrangement or
understanding, whether or not in writing. Without duplicative
counting of the same securities by the same holder, securities
Beneficially Owned by a Person shall include securities Beneficially Owned
by all other Persons who together with such Person would constitute a
"group" within the meaning of Section 13(d)(3) of the Exchange
Act.
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(e)
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"Designated
Stockholders" means SAW, EW,
Aruze, any additional Persons made a party to this Agreement and Permitted
Transferees of any such Person and their Permitted
Transferees.
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(f)
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"Fair
Market Value" means, with respect to each Share of any class or series for
any day, (i) the closing price on the principal national securities
exchange on which such Shares are listed or admitted for trading, in
either case as reported by Bloomberg Financial Markets ("Bloomberg")
or The Wall Street Journal if Bloomberg is no longer reporting such
information, or a similar service if Bloomberg and The Wall Street Journal
are no longer reporting such information or (ii) if such Shares are
not listed or admitted for trading on any national securities exchange,
the last reported sale price or, in case no such sale takes place on such
day, the average of the highest reported bid and the lowest reported asked
quotation for such class or series of Shares, in either case as reported
by Bloomberg or The Wall Street Journal if Bloomberg is no longer
reporting such information, or a similar service if Bloomberg and The Wall
Street Journal are no longer reporting such
information.
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(g)
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Gaming
Commission, the Nevada State Gaming Control Board, and the Xxxxx County
Liquor and Gaming Licensing
Board.
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(h)
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"Gaming
Laws" means
those laws pursuant to which any Gaming Authority possesses regulatory,
licensing or permit authority over gaming within any jurisdiction and,
within the State of Nevada, specifically, the Nevada Gaming Control Act,
as codified in NRS Chapter 463, as amended from time to time, and the
regulations of the Nevada Gaming Commission promulgated thereunder, as
amended from time to time, and the Xxxxx County Code, as amended from time
to time.
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(i)
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"Gaming
Licenses"
means all licenses, permits, approvals, authorizations, registrations,
findings of suitability, franchises and entitlements issued by any Gaming
Authority necessary for or relating to the conduct of activities under the
Gaming Laws.
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(j)
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"Gaming
Problem" means any circumstances that are deemed likely, in the sole and
absolute discretion of SAW, based on verifiable information or information
received from any Gaming Authority or otherwise, to preclude or materially
delay, impede or impair the ability of Xxxx or any subsidiary of Xxxx to
obtain or retain any Gaming Licenses, or to result in any disciplinary
action, including without limitation the imposition of materially
burdensome terms and conditions on any such Gaming
License.
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(k)
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"Independent
Qualified Appraiser" means an independent outside qualified appraiser
appointed by Xxxx to determine the fair market value of certain Shares or
Xxxx itself, in all cases considering Xxxx as a going
concern. Any determination by an Independent Qualified
Appraiser as to fair market value shall be binding upon all
parties.
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(l)
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“Non-Compete
Termination Date” means the date upon which SAW and EW have sold
substantially all of their respective
Shares.
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(m)
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"NRS"
means
the Nevada Revised Statutes, as amended from time to
time.
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(n)
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"Percentage
Interest" means, with respect to a specified Stockholder, the percentage
computed by dividing the number of Shares held by such Stockholder by the
Total Shares.
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(o)
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"Permitted
Transferee" means (a) Xxxxx Xxxxx; (b) an immediate family member of Xxxxx
Xxxxx, EW or SAW; (c) a revocable, inter vivos trust of which Xxxxx Xxxxx,
EW or SAW, or a family member of Xxxxx Xxxxx, EW or SAW is a beneficiary;
(d) another Stockholder or an entity wholly owned by such
Stockholder; or (e) if the Transfer is being made by Aruze, then in
addition to the Permitted Transfers described in (a) through (d), any
wholly-owned subsidiary of Aruze Parent where the Transfer has the effect
of substituting a foreign corporation for Aruze with respect to all of
Aruze’s Shares.
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(p)
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"Person"
means an individual, corporation, limited liability company, partnership,
joint venture, association, trust, unincorporated organization or other
entity.
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(q)
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"Prohibited
Transferee" means (a) any owner, operator, or manager of, or Person
primarily engaged in the business of owning or operating, a hotel, casino,
or an internet or interactive gaming site, (b) any "non-profit" or
"not-for-profit" corporation, association, trust, fund, foundation or
other similar entity organized and operated exclusively for charitable
purposes that qualifies as a tax-exempt entity under federal and state tax
law or corresponding foreign law, (c) any federal, state, local or foreign
governmental agency, instrumentality or similar entity, (d) any Person
that has been convicted of a felony, (e) any Person regularly engaged in
or affiliated with the production or distribution of alcoholic beverages,
or (f) any Unsuitable
Person.
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(r)
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"Shares"
means the shares of common stock of
Xxxx.
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(s)
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"Specified
Affiliate" means with respect to a specified Person, any other Person who
or which is (a) directly or indirectly controlling, controlled by or under
common control with the specified Person, or (b) any member, stockholder,
director, officer, manager, or comparable principal of, or relative or
spouse of, the specified Person. For purposes of this
definition, "control", "controlling", "controlled" mean the right to
exercise, directly or indirectly, more than fifty percent of the voting
power of the stockholders, members or owners and, with respect to any
individual, partnership, trust or other entity or association, the
possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of the controlled
entity.
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(t)
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"Stockholder"
means any one of SAW, EW, Aruze, or any Permitted Transferee of any
Shares and any additional Persons made a party to this
Agreement. “Stockholders” means all of the foregoing,
collectively.
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(u)
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"Stockholder's
Shares" means all Shares held of record or Beneficially Owned by such
Stockholder, whenever acquired.
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(v)
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"Termination
Date" means the earlier of the date of SAW’s death or the date upon which
SAW sells substantially all of his Shares in
Xxxx.
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(w)
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"Total
Shares" means the total number of Shares held by the Stockholders,
whenever
acquired.
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(x)
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"Transfer"
means any transfer, sale, conveyance, distribution, hypothecation, pledge,
encumbrance, assignment, exchange or other disposition, either voluntary
or involuntary, or by reason of death, or change in ownership by reason of
merger or other transformation in the identity or form of business
organization of the owner, regardless of whether such change
or
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transformation
is characterized by state law as not changing the identity of the
owner.
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(y)
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"Unsuitable
Person" means any Person (i) who is denied a Gaming License by any Gaming
Authority, (ii) who is disqualified from eligibility for a Gaming License,
(iii) who is determined to be unsuitable to own or control Shares or to be
connected or affiliated with a Person engaged in gaming activities in any
jurisdiction by a Gaming Authority, (iv) who has withdrawn an application
to be found suitable by any Gaming Authority, or (v) whose continued
involvement in the business of Xxxx as a stockholder, manager, officer,
employee or otherwise has caused or may cause a Gaming
Problem.
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(z)
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"Voting
Stock" means capital stock of Xxxx of any class or classes, the holders of
which are entitled to vote on any matter required or permitted to be voted
upon (either in writing or by resolution) by the stockholders of
Xxxx.
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2.
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Covenants
of Designated Stockholders. Each Designated Stockholder
hereby covenants to each other Designated Stockholder as
follows.
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(a)
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Voting
Agreement. On any and all matters relating to the
election of directors of Xxxx (including the filling of any vacancies),
the Designated Stockholders each agree to vote all Shares held by them and
subject to the terms of this Agreement (or the holders thereof shall
consent pursuant to an action by written consent of the holders of capital
stock of Xxxx) in a manner so as to elect to Xxxx’x Board of Directors
each of the nominees contained on each and every slate of directors
endorsed by SAW.
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SAW
agrees to include EW as one of his endorsed nominees so long as she is not
“unable to serve” or “unfit to serve.” As used herein, “unable
to serve” shall mean medically incapacitated so as to be unable to serve
as a director, and “unfit to serve” shall mean a violation of rules and
laws so as to prohibit one from serving as a director of a public company
engaged in the gaming business. In the event of a disagreement
between SAW and EW regarding these matters, determination of either of the
preceding conditions shall be made and confirmed by an independent third
party to be jointly selected by SAW and
EW.
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SAW also
agrees to endorse a slate of directors that includes nominees approved by
Aruze and to vote SAW’s and EW’s Shares in favor of such directors so long
as such slate results in a majority of all directors at all times being
director candidates endorsed by
SAW.
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(b)
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Restrictions
on Sale or Transfer. Other
than as expressly set forth in Section 11 and the last sentence of this
Section 2(b), none of EW, SAW or Aruze (nor any of their respective
Permitted Transferees) shall Transfer, or permit any of their respective
Affiliates to Transfer, any Shares Beneficially Owned by such Person
without the prior written consent of each of the
others.
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Notwithstanding anything to the contrary set forth in this
Agreement, SAW and Aruze confirm that on August 13, 2009, each agreed that
the other could sell up to two million Shares (the “Released
Shares”). As of the date hereof, SAW has sold two million
shares under this waiver. Accordingly, Aruze shall have the
right to sell up to two million Shares free and clear of the requirements
of this Agreement.
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(c)
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Restriction
on Proxies and Non-Interference. From and after the date
of this Agreement and ending as of the Termination Date, the Designated
Stockholders shall not, and shall cause each of their Affiliates who
Beneficially Own any of the Designated Stockholder's Shares not to,
directly or indirectly without the consent of the other Designated
Stockholder: (A) grant any proxies or powers of attorney,
deposit such Designated Stockholder's Shares into a voting trust or enter
into a voting agreement with respect to any of such Designated
Stockholder's Shares, (B) enter into any agreement or arrangement
providing for any of the actions described in clause (A) above, or (C)
take any action that could reasonably be expected to have the effect of
preventing or disabling such Designated Stockholder from performing such
Designated Stockholder's obligations under this
Agreement.
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3.
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Representations
and Warranties of the Stockholders. Each Stockholder
hereby represents and warrants and covenants to each other Stockholder as
follows:
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(a)
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Ownership. The
Stockholder shall be the record and Beneficial Owner of all of the
Shares. The Stockholder shall have the sole power of
disposition, sole power of conversion, sole power to demand appraisal
rights and sole power to agree to all of the matters set forth in this
Agreement, in each case with respect to all of the Shares, with no
material limitations, qualifications or restrictions on such rights,
subject to applicable securities laws and the terms of this
Agreement.
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(b)
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No
Encumbrances. All of the Stockholder’s Shares will be
held by such Stockholder, or by a nominee or custodian for the benefit of
such Stockholder, free and clear of all liens, claims, security interests,
proxies, voting trusts or agreements, understandings or arrangements or
any other encumbrances whatsoever, except for any liens, claims,
understandings or arrangements that do not limit or impair the
Stockholder’s ability to perform its obligations under this
Agreement.
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(c)
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Execution,
Delivery and Performance by the Stockholder. The
execution, delivery and performance of this Agreement and the consummation
of the transactions contemplated hereby have been duly authorized by the
Board of Directors of Aruze, as applicable, and Aruze has taken all other
actions required by law, its Articles of Incorporation and its Bylaws or
other organizational documents, as applicable, to consummate the
transactions contemplated by this Agreement. This Agreement
constitutes the valid and binding obligations of the Stockholder and is
enforceable in accordance with its terms, except as enforceability may be
subject to bankruptcy, insolvency,
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reorganization,
moratorium or other similar laws relating to or affecting creditors'
rights
generally.
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(d)
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No
Conflicts. No filing with, and no permit, authorization,
consent or approval of, any state or federal public body or authority is
necessary for the execution of this Agreement by the Stockholder and the
consummation by the Stockholder of the transactions contemplated hereby,
except where the failure to obtain such consent, permit, authorization,
approval or filing would not interfere with the Stockholder's ability to
perform its obligations hereunder, and none of the execution and delivery
of this Agreement by the Stockholder, the consummation by the Stockholder
of the transactions contemplated hereby or compliance by the Stockholder
with any of the provisions hereof shall violate any order, writ,
injunction, decree, judgment, statute, rule or regulation applicable to
the Stockholder or any of its properties or assets, in each such case
except to the extent that any conflict, breach, default or violation would
not interfere with the ability of the Stockholder to perform the
obligations hereunder.
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(e)
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Preemptive
Rights. If a Stockholder purchases Shares from Xxxx (the
“Purchasing
Stockholder”) in a private placement (the “Purchase”)
and another Stockholder who is not a Permitted Transferee of the
Purchasing Stockholder is not extended the same offer by Xxxx on the same
terms and conditions, the Purchasing Stockholder shall allow such other
Stockholder to purchase the number of Shares in the Purchasing
Stockholder’s allotment of Shares from Xxxx that is necessary to maintain
their Shares in the same proportion to each other as that which existed
prior to the Purchase.
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4.
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Transferee
Bound by Agreement. Notwithstanding anything to the
contrary in this Agreement, Shares may not be transferred or sold by the
Designated Stockholder unless the transferee (including a Permitted
Transferee) both executes and agrees to be bound by both this Agreement
and the Proxy, including, without limitation, in a sale or transfer made
pursuant to Rule 144 under the Securities Act (“Rule 144”); provided,
however, that this Section 4 shall not apply to any sale or transfer and
all other sales and transfers made by such Stockholder pursuant to Rule
144 during the term of this Agreement which do not exceed, in the
aggregate, ten percent of the Shares held by such Stockholder, but the
provisions of Section 2(b) shall continue to
apply.
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5.
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Stop
Transfer. From and after the date of this Agreement and
ending as of the Termination Date,
each Stockholder acknowledges that SAW may instruct Xxxx to not
register the transfer (book-entry or otherwise) of any certificate or
uncertificated interest representing any of such Stockholder's Shares that
are transferred in violation of this
Agreement.
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6.
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Aruze
Non-Compete. Aruze covenants to EW and SAW that until
the Non-Compete Termination Date and so long as Aruze is a stockholder of
Xxxx (or of a successor entity to Xxxx), Aruze, Aruze Parent, and Xxxxx
Xxxxx agree that (other than through Xxxx) Aruze, Aruze Parent, and Xxxxx
Xxxxx shall not without SAW’s
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consent,
directly or indirectly, engage in the development of or own, operate,
lease, manage, control or invest in, act as consultant or advisor to or
otherwise assist any Person that engages in (a) casino operations in Xxxxx
County, Nevada, or Macau or (b) Internet gaming anywhere in the world;
provided, however, that either Aruze Parent or Xxxxx Xxxxx may operate a
business offering Internet gaming if the forms of gaming offered by such
business are restricted to games derived from pachinko or pachi-slot
machines or other games not authorized for manufacture or distribution in
the State of Nevada or Macau and any of Aruze, Aruze Parent, Xxxxx Xxxxx
or an entity which is at least 80% owned by Xxxxx Xxxxx or Aruze Parent
(“Okada Entity”) may license content from any gaming device manufactured
by Aruze, Aruze Parent or Okada Entity to a business offering Internet
gaming. Nothing herein shall preclude Aruze, Aruze Parent, an
Okada Entity and/or Xxxxx Xxxxx from engaging in the sale of gaming
devices in the aforementioned
jurisdictions.
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7.
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Stockholders' Option
to Purchase Bankrupt Stockholder's
Shares.
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(a)
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Upon
the institution of a Bankruptcy by or against a Stockholder (a "Bankrupt
Stockholder"), the Stockholders, not including the Bankrupt
Stockholder, shall have the option (the "Purchase
Option") to purchase the Bankrupt Stockholder's Shares in Xxxx for
a price agreed upon by the Stockholders, not including the Bankrupt
Stockholder, on the one hand, and the Bankrupt Stockholder, on the other
hand, or if no price can be agreed upon, the Fair Market Value of such
Shares at the time of such Bankruptcy. If information is not
available to determine the Fair Market Value of such Shares at the time of
such Bankruptcy, the price shall be the fair market value as determined by
an Independent Qualified Appraiser. The Stockholders wishing to
purchase all or a part of the Shares of the Bankrupt Stockholder (the
"Purchasing
Stockholders") shall pay the agreed price, the Fair Market Value or
the fair market value as determined by an Independent Qualified Appraiser,
as applicable, of such Shares to the Bankrupt Stockholder, in cash or its
equivalent, by one hundred and twenty (120) days after the date the
Bankruptcy petition is filed by or against the Bankrupt
Stockholder. Each Purchasing Stockholder must notify the other
Stockholders of such Purchasing Stockholder's desire to purchase all or a
portion of the Bankrupt Stockholder's Shares in writing by twenty (20)
days after the date the Bankruptcy petition is filed by or against the
Bankrupt Stockholder. Unless they agree otherwise, if there is
more than one Purchasing Stockholder, each Purchasing Stockholder may
purchase the proportion of the Bankrupt Stockholder's Shares that such
Purchasing Stockholder's Percentage Interest bears to the aggregate
Percentage Interests of all Purchasing Stockholders. If neither
any remaining Stockholder wishes to purchase the Bankrupt Stockholder's
Shares, or the Purchasing Stockholders do not purchase the Bankrupt
Stockholder's Shares within the earlier of the time periods set forth
above, then all rights to purchase the Bankrupt Stockholder's Shares
pursuant to this Section shall
terminate.
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(b)
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Any Stockholder that
exercises its right under this Section 7 to purchase
the Bankrupt Stockholder's Shares may, in its sole and absolute
discretion, assign such rights to
Xxxx.
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8.
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Restrictions on
Transfer of Ownership Interests in
Stockholders.
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(a)
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Except
for a Transfer to a Permitted Transferee, any Transfer or issuance of an
ownership interest in Aruze or in any entity that directly or indirectly
owns a majority ownership interest in a Stockholder an
"Upstream Ownership Interest") shall be prohibited unless in
compliance with the procedures and requirements set forth in this Section
8.
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(b)
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The
Shares that would be indirectly transferred by the transfer of the
Upstream Ownership Interest shall be referred to as the "Indirect
Transfer Shares". If any holder of an Upstream Ownership
Interest (an "Upstream
Transferor") intends to Transfer all or any part of its Upstream
Ownership Interest pursuant to a bona fide offer received from any Person
(the "Upstream
Offeror"), prior to accepting such offer the Upstream Transferor
shall provide written notice to each Stockholder, other than the
Stockholder holding the Indirect Transfer Shares, which notice shall set
forth the terms and conditions of the offer so received, including the
purchase price and the identity of the Upstream Offeror. If the
Upstream Transferor does not provide such notice, the Stockholder holding
the Indirect Transfer Shares shall provide such notice to each other
Stockholder promptly upon learning that such transaction will occur or has
occurred. Within 15 days following receipt of such notice by
the Stockholders other than the Stockholder holding the Indirect Transfer
Shares, or if later, within 30 days of such other Stockholders learning
that the Transfer of the Upstream Ownership Interest has occurred, such
other Stockholders (i) if information is available to determine the Fair
Market Value of such Indirect Transfer Shares, may elect to purchase the
percentage of the Indirect Transfer Shares available for purchase equal to
such holder's Percentage Interest (determined for this purpose by
excluding the Indirect Transfer Shares) at the Fair Market Value of such
Shares, or (ii) if information is not available to determine the Fair
Market Value of such Indirect Transfer Shares, may, by notice to the
Stockholder holding the Indirect Transfer Shares, elect to obtain an
appraisal by an Independent Qualified Appraiser of the fair market value
of the Indirect Transfer Shares. Within 15 days following
receipt by the Stockholders other than the Stockholder holding the
Indirect Transfer Shares of the results of the appraisal, each such other
Stockholder may elect to purchase the percentage of the Indirect Transfer
Shares available for purchase equal to such holder's Percentage Interest
(determined for this purpose by excluding the Indirect Transfer Shares) at
the appraisal price of such Shares. To the extent a Stockholder
shall determine not to purchase all the Indirect Transfer Shares available
to that Stockholder, the other Stockholders exercising the right to
purchase the Indirect Transfer Shares may purchase additional Indirect
Transfer Shares on a pro rata basis in proportion to their Percentage
Interests (and the foregoing procedure shall be repeated in respect of any
Indirect
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Transfer
Shares not purchased until such other Stockholders have had an opportunity
to purchase any remaining Indirect Transfer
Shares).
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Notwithstanding
anything to the contrary in this Section 8, any Transfer or issuance of
shares in Aruze Parent shall not constitute an Upstream Transfer if
immediately following such Transfer or issuance Xxxxx Xxxxx has the right
to directly or indirectly exercise more than fifty percent of the voting
power of the shareholders of Aruze
Parent.
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(c)
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The
closing of a purchase of Indirect Transfer Shares by a Stockholder under
this Section 8 shall occur within 10 days following the expiration of the
last period during which a Stockholder might elect to purchase any of the
Indirect Transfer Shares, or at such later date when all approvals
required by the Gaming Laws are obtained (such approvals to be obtained as
soon as is reasonably practicable).
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(d)
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Any Stockholder that
exercises its right under this Section 8 to purchase
the Indirect Transfer Shares may, in its sole and absolute discretion,
assign such rights to
Xxxx.
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9.
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Right of First
Refusal.
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(a)
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Any
Stockholder (a "Transferor")
who wishes to Transfer any or all of its Shares (the "Offered
Shares") to any Person other than a Permitted Transferee and who
receives a bona fide offer from any Person (the "Offeror")
who is not a Prohibited Transferee for the purchase of all or any portion
of such Stockholder's Shares shall, prior to accepting such offer, provide
written notice (the "Notice
of Offer") thereof to each other Stockholder holding Shares, which
notice shall set forth the terms and conditions of the offer so received,
including the purchase price and the identity of the
Offeror. Following the delivery to the other Stockholders of
the Notice of Offer, each other Stockholder may elect to purchase that
percentage of the Offered Shares which is equal to the Total Shares
(excluding the Offered Shares) owned by each such Stockholder divided by
the Total Shares (excluding the Offered Shares) owned by all such
Stockholders ("Applicable
Percentage") during a fifteen-day refusal period (the "Refusal
Period") on the terms set forth in the Notice of
Offer. To the extent any Stockholder shall determine not to
purchase its Applicable Percentage prior to the expiration of the Refusal
Period, the accepting Stockholders (the "Accepting
Purchasers") may purchase such Shares on a pro rata basis in
proportion to the number of Shares owned by each of them (and the
foregoing procedure shall be repeated in respect of any Shares not
purchased until all Accepting Purchasers have had an opportunity to
purchase any remaining Shares).
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(b)
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Subject
to the requirements of Section 4, including but not limited to the
requirement that a transferee execute this Agreement and a Proxy, if all
or any of the Offered Shares shall remain unsold after completion of the
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procedures
set forth in Section 9(a), the Transferor may sell such remaining Offered
Shares to the Offeror within six months of the completion of such
procedures on terms no more favorable than those set forth in the Notice
of Offer; provided
that the Offeror is not a Prohibited Transferee. To the extent
any of the Offered Shares are not sold in accordance with the foregoing,
the Stockholders shall continue to have a right of first refusal under
this Section 9 with respect to any Transfers to any Person which are
subsequently proposed by such
Transferor.
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(c)
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The
closing of a purchase by a Stockholder under this Section 9 shall occur
within ten days after the end of the Refusal Period or at such later date
when all approvals required by the Gaming Laws are obtained (such
approvals to be obtained as soon as is reasonably
practicable). At such closing the Transferor and the relevant
Accepting Purchaser (and any or all other Stockholders as may be required)
shall execute an assignment and assumption agreement and any other
instruments and documents as may be reasonably required by such
Stockholder to effectuate the transfer of such Shares free and clear of
any liens, claims or encumbrances, other than as specifically permitted
hereunder. Any Transfer to any Person that does not comply with
the provisions of this Section 9, other than a Transfer expressly provided
for in the other provisions of this Agreement, shall be null and void of
no effect whatsoever.
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(d)
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Any
Stockholder may, in its sole and absolute discretion, assign its right of
first refusal under this Section 9 to purchase the Offered Shares to Xxxx
with respect to any incident in which its right of first refusal is
triggered under this Section 9.
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(e)
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Except
for Shares transferred pursuant to Sections 2(b), 4, 7, 8, 10 and 11, no
Shares may be Transferred until the provisions of this Section 9 have been
complied with.
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10.
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Tag-Along
Rights.
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If
any party is the Transferor required to provide the Notice of Offer under
Section 9(a), then each of the other two non-selling parties to this
Agreement shall each have a right (in addition to its rights under Section
9) to participate in such Transfer pursuant to the provisions of this
Section 10. During the fifteen-day Refusal Period described in
Section 9(a), each of non-selling parties may, by written notice to the
Transferor, elect to participate in such Transfer and to sell that
percentage of the Total Shares owned by each non-selling party as the case
may be, which is equal to the Total Shares that will be sold by the
Transferor in such Transfer divided by the Total Shares owned by the
Transferor. The terms and conditions of such Transfer
(including the purchase price per Share sold in such Transfer, the
identity of the buyer(s), and the consequences resulting from the other
Stockholder’s exercise of any rights of first refusal) shall be no less
favorable to the non selling parties than to the Transferor; provided,
however, that in the event that SAW or Aruze is the Transferor, he or
Aruze may enter into service, noncompetition, or similar
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agreements
with the buyer and receive appropriate consideration thereunder in which
other Stockholders do not
share.
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11.
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Release
of Shares. Each of SAW and Aruze agree that commencing
on January 6, 2010, and continuing on each January 6 for a total of ten
events, a number of Shares owned by EW equal to $10,000,000 divided by the
closing price of Wynn shares on January 5, 2010 (or if January 5 is not a
trading day, the trading day immediately preceding January 5) shall be
released from the restrictions set forth in this Agreement (once released,
the “EW Released Shares”). If EW desires to sell any EW
Released Shares, she shall provide written notice of such desire to SAW
and, for a period of 48 hours from SAW’s receipt of such notice, SAW shall
have the right to purchase any or all of such Shares for a price equal to
the closing price of the Shares on the trading day immediately preceding
the date of notice. SAW shall notify EW of his election to
purchase or not within 48 hours from the date of receipt of the original
notice. If SAW elects to purchase hereunder, the purchase price
shall be payable in cash no later than 3 business days after the date of
election. Notices to SAW under this Section 11 shall be
transmitted by fax and email to SAW at his last known business address and
residence address (currently c/o xxxxx.xxxxxxx@xxxxxxxxxxx.xxx
and 000.000.0000), with copies to the General Counsel of Wynn (currently
Xxx Xxxxxxx (xxx.xxxxxxx@xxxxxxxxxxx.xxx
and 702.770.1349)) and to Xxxxx X. Xxxxxxxxx, Esq., Xxxxxxxxx
Xxxxxx, P.C., 000 X. Xxxxx Xxxxxx, Xxxxx 000, Xxx Xxxxx, XX 00000
(xxx@xxxxxxxxxxxxxxx.xxx
and 702.387.1167) and notices to EW under this Section 11 shall be
transmitted by fax and email to EW at her last known business address and
residence address (currently c/o Xxxxxx.Xxxx@xxxxxxxxxxx.xxx,
and 000.000.0000), with copies to Xxxxxx Xxxxxxxx, Esq., Schiller, DuCanto
& Xxxxx, LLP, 000 Xxxxx XxXxxxx Xxxxxx, 00xx Xxxxx, Xxxxxxx,
XX 00000 (xxxxxxxxx@xxxxxx.xxx,
and 312.641.6361) and Xxxx X. Xxxxxxxxx, Esq., Xxxxxxxxx, XxXxxxx &
Xxxxxxxxx, Chtd., 000 Xxxxxx Xxxxxx, Xxxxx 000, Xxxx, XX 00000
(xxxxxxxxx@xxxxxxxxx-xxxxxxx.xxx and 775.322.3649). If SAW does
not elect to purchase hereunder, the EW Released Shares will thereafter be
held by EW free and clear of any further restrictions on sale under this
Agreement.
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12.
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Recapitalization. In
the event of a stock dividend or distribution, or any change in the Shares
(or any class thereof) by reason of any split-up, recapitalization,
merger, combination, exchange of shares or the like, the term "Shares"
shall include, without limitation, all such stock dividends and
distributions and any shares into which or for which any or all of the
Shares (or any class thereof) may be changed or exchanged as may be
appropriate to reflect such
event.
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13.
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Stockholder
Capacity. Notwithstanding any provisions to the contrary
contained herein, no Stockholder or any of its Affiliates shall be deemed
to make any agreement or understanding herein in a capacity other than
that as stockholder of Wynn.
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14.
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Miscellaneous.
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(a)
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Entire
Agreement. This Agreement constitutes the entire
agreement between the parties with respect to the subject matter hereof
and supersedes all other prior agreements and understandings, both written
and oral, between the parties with respect to the subject matter hereof,
including without limitation, the Existing
Agreement.
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(b)
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Legend. Certificates
and all electronic records evidencing Shares subject to this
Agreement shall each bear the following restrictive legend (the "Legend")
(in addition to any other legend required by applicable gaming
laws):
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"THE
SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE TERMS AND
CONDITIONS OF AN AMENDED AND RESTATED STOCKHOLDERS
AGREEMENT DATED AS OF JANUARY 6, 2010, WHICH PLACES CERTAIN RESTRICTIONS
ON THE VOTING AND TRANSFER OF
THE SHARES REPRESENTED HEREBY. ANY PERSON ACCEPTING ANY
INTEREST IN SUCH SHARES SHALL BE DEEMED TO HAVE AGREED TO
AND SHALL BECOME BOUND BY ALL THE PROVISIONS OF SUCH STOCKHOLDERS
AGREEMENT. A COPY OF SUCH STOCKHOLDERS AGREEMENT
WILL BE FURNISHED TO THE RECORD HOLDER OF THIS CERTIFICATE WITHOUT CHARGE
UPON WRITTEN REQUEST TO THE COMPANY
AT ITS PRINCIPAL PLACE OF BUSINESS."
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(i)
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Each
Stockholder agrees that, from and after the date of this Agreement and
ending as of the Termination Date, it shall not, and shall cause each of
its Affiliates who Beneficially Own any of the Designated Stockholder's
Shares not to, allow Wynn to remove, and shall not permit to be removed
(upon registration of transfer, reissuance or otherwise), the Legend from
any such certificate and shall place or cause to be placed the Legend on
any new certificate issued to represent Shares it or any of its Affiliates
shall Beneficially Own.
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(c)
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Transfers
in Violation Void. Any
transfer or sale of any Shares in violation of this Agreement shall be
null and void ab
initio.
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(d)
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Amendments,
Waivers, Etc. This Agreement may not be amended,
changed, supplemented, waived or otherwise modified or terminated, except
upon the execution and delivery of a written agreement executed by the
parties hereto.
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(e)
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Notices. Other
than as provided in Section 11 above, all notices, requests, claims,
demands and other communications hereunder shall be in writing and shall
be given (and shall be deemed to have been duly received if so given) by
hand delivery, telegram, telex or telecopy, or by mail (registered or
certified mail, postage prepaid, return receipt requested) or by any
courier
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service,
such as Federal Express, providing proof of delivery. All
communications hereunder shall be delivered to the respective parties at
the following addresses or the addresses set forth on the signature pages
hereto:
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If
to Aruze:
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Aruze
USA, Inc.
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000
Xxxxx Xxxxx
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Xxx
Xxxxx, Xxxxxx 00000
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Facsimile:
000-000-0000
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Attention: Xxx
Xxxxxx
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With
a copy to:
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Universal
Entertainment Corporation
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Ariake
Frontier Bldg. A, 0-0-00 Xxxxxx, Xxxx, Xx
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Xxxxx,
Xxxxx
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Facsimile: 00-0-0000-0000
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Attention: Xxxxx
Xxxxx
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If
to SAW:
|
Xxxxxxx
X. Xxxx
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c/x
Xxxx Resorts, LLC
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0000
Xxx Xxxxx Xxxxxxxxx Xxxxx
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Xxx
Xxxxx, Xxxxxx 00000
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Facsimile:
000-000-0000
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With
a copy to:
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Wynn
Resorts, Limited
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0000
Xxx Xxxxx Xxxxxxxxx Xxxxx
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Xxx
Xxxxx, XX 00000
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Facsimile: 000-000-0000
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Attention: General
Counsel
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If
to EW:
|
Xxxxxx
X. Xxxx
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Xxx
00000
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Xxx
Xxxxx, XX
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Facsimile: 000-000-0000
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With
copies to:
|
Brentwood
Management Group
|
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00000
Xxx Xxxxxxx Xxxxxxxxx, Xxxxx 000
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Xxx
Xxxxxxx, XX 00000
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Facsimile: 310-820-5354
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Attention: Xxxx
Xxxxxxxx
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Xxxx
Xxxxx
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0000
Xxxxxx Xxxxxx, 0xx
Xxxxx
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Xxxxx
Xxxxxx, XX
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Fascimile: ______________________
|
or to
such other address as the person to whom notice is given may have previously
furnished to the others in writing in the manner set forth above.
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(f)
|
Severability. Whenever
possible, each provision or portion of any provision of this Agreement
shall be interpreted in such manner as to be effective and valid under
applicable law but if any provision or portion of any provision of this
Agreement is held to be invalid, illegal or unenforceable in any respect
under any applicable law or rule in any jurisdiction, such invalidity,
illegality or unenforceability shall not affect any other provision or
portion of any provision in such jurisdiction, and this Agreement shall be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision or portion of any provision had never
been contained herein.
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(g)
|
Specific
Performance. Each of the parties hereto recognizes and
acknowledges that a breach by any party hereto of any covenants or
agreements contained in this Agreement will cause the other parties hereto
to sustain damages for which they would not have an adequate remedy at law
for money damages, and therefore each of the parties hereto agrees that in
the event of any such breach the parties shall be entitled to the remedy
of specific performance of such covenants and agreements and injunctive
and other equitable relief in addition to any other remedy to which he may
be entitled, at law or in
equity.
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(h)
|
Further
Assurances. From time to time, the Stockholders shall
execute and deliver such additional documents as may be necessary or
desirable to consummate and make effective, in the most expeditious manner
practicable, the transactions contemplated by this
Agreement.
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(i)
|
Remedies
Cumulative. All rights, powers and remedies provided
under this Agreement or otherwise available in respect hereof at law or in
equity shall be cumulative and not alternative, and the exercise of any
thereof by any party shall not preclude the simultaneous or later exercise
of any other such right, power or remedy by such
party.
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(j)
|
No
Waiver. The failure of any party hereto to exercise any
right, power or remedy provided under this Agreement or otherwise
available in respect hereof at law or in equity, or to insist upon
compliance by any other party hereto with its obligations hereunder, and
any custom or practice of the parties at variance with the terms hereof,
shall not constitute a waiver by such party of its right to exercise any
such or other right, power or remedy or to demand such
compliance.
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(k)
|
No
Third Party Beneficiaries. This Agreement is not
intended to be for the benefit of, and shall not be enforceable by, any
person or entity who or which is not a party hereto; provided that, the
obligations of the Designated Stockholders hereunder shall inure to their
transferees, successors and
heirs.
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(l)
|
No
Assignment. Except as otherwise explicitly provided
herein, neither this Agreement nor any right, interest or obligation
hereunder may be assigned (by operation of law or otherwise) by any
Stockholder without the prior
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- 15
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written
consent of the parties hereto and any attempt to do so will be void;
provided, however, that the rights under this Agreement may be assigned to
the transferee in connection with a Transfer that does not violate the
terms of the Agreement.
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(m)
|
Governing
Law. This Agreement shall be governed and construed in
accordance with the laws of the State of Nevada, without giving effect to
the principles of conflicts of law
thereof.
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(n)
|
Jurisdiction. Each
party hereby irrevocably submits to the exclusive jurisdiction of the
state courts in the State of Nevada in any action, suit or proceeding
arising in connection with this Agreement, and agrees that any such
action, suit or proceeding shall be brought only in such court (and waives
any objection based on forum non conveniens or any other objection to
venue therein); provided, however, that such consent to jurisdiction is
solely for the purpose referred to in this paragraph and shall not be
deemed to be a general submission to the jurisdiction of the courts of the
State of Nevada other than for such purposes. Each party hereto
hereby waives any right to a trial by jury in connection with any such
action, suit or proceeding.
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(o)
|
Descriptive
Headings. The descriptive headings used herein are
inserted for convenience of reference only and are not intended to be part
of or to affect the meaning or interpretation of this
Agreement.
|
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(p)
|
Counterparts. This
Agreement may be executed in counterparts, each of which shall be deemed
to be an original, but all of which, taken together, shall constitute one
and the same Agreement. This Agreement shall not be effective
as to any party hereto until such time as this Agreement or a counterpart
thereof has been executed and delivered by each party
hereto.
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- 16
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IN
WITNESS WHEREOF, this Agreement has been duly executed and delivered by Wynn and
a duly authorized officer of Aruze and Baron on the day and year first written
above.
|
/s/
Xxxxxxx X. Xxxx
|
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|
Xxxxxxx
X. Xxxx
|
|
/s/
Xxxxxx X. Xxxx
|
|
|
Xxxxxx
X. Xxxx
|
|
ARUZE
USA, INC.
|
||
|
By:
|
/s/
Xxxxx Xxxxx
|
|
|
Name:
|
Xxxxx
Xxxxx
|
|
|
Title:
|
President
|
|
Exhibit
A
IRREVOCABLE
PROXY
By its
execution hereof, and in order to secure obligations under the Amended and
Restated Stockholders Agreement of even date herewith among Xxxxxxx
X. Xxxx, an individual ("SAW"), Xxxxxx X. Xxxx, an individual (“EW”), and
Aruze
USA, Inc., a Nevada corporation (the "Agreement"),
EW, Aruze
USA, Inc. and each Designated Stockholder (as defined in the Agreement)
other than SAW (collectively “Proxy Grantors”), hereby irrevocably constitutes
and appoints SAW, with full power of substitution and resubstitution, from the
date hereof to the termination of the Agreement, as such Proxy
Grantors’ true and lawful attorney and proxy (its "Proxy"), for and in
such Proxy
Grantors' name, place and stead to vote each of the Shares of each such
Proxy
Grantor as such Proxy
Grantor's Proxy at every annual, special or adjourned meeting of
stockholders of Wynn (as defined in the Agreement), and to sign on behalf of
such Proxy
Grantor (as a stockholder of Wynn) any ballot, proxy, consent,
certificate or other document relating to Wynn that law permits or requires, for
the election of directors as more specifically provided and in a manner
consistent with the Agreement. This Proxy is coupled with interest
and each Proxy
Grantor intends this Proxy to be irrevocable to the fullest extent
permitted by law. Each Proxy
Grantor hereby revokes any proxy previously granted by such Proxy
Grantor with respect to such Proxy
Grantor's Shares. Capitalized terms used but not defined
herein shall have the meaning set forth in the Agreement. Each Proxy
Grantor shall perform such further acts and execute such further
documents and instruments as may reasonably be required to vest in SAW or any of
his designees, the power to carry out and give effect to the provisions of this
Proxy. This Irrevocable Proxy shall be in full force and effect until
the Termination Date.
IN
WITNESS WHEREOF, the undersigned has executed this Irrevocable Proxy this ____
day of January 2010.
|
ARUZE
USA, INC.
|
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By:
|
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Name:
|
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Title:
|
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XXXXXX
X. XXXX
|
