ARRANGEMENT AGREEMENT
Made September 20, 2017
Among
SCIENTIFIC GAMES CORPORATION,
BALLY GAMING AND SYSTEMS UK LIMITED
and
NYX GAMING GROUP LIMITED
TABLE OF CONTENTS
Article 1 INTERPRETATION |
| | | |
| Section 1.1 | Defined Terms. | 1 |
| Section 1.2 | Certain Rules of Interpretation. | 21 |
| Section 1.3 | Schedules. | 22 |
| |
Article 2 THE SCHEME |
| | | |
| Section 2.1 | Scheme. | 23 |
| Section 2.2 | Order to Call Court Meeting. | 23 |
| Section 2.3 | The Meetings. | 24 |
| Section 2.4 | The Scheme Circular. | 26 |
| Section 2.5 | Scheme Order. | 27 |
| Section 2.6 | Court Proceedings. | 28 |
| Section 2.7 | Scheme Order and Effective Date. | 29 |
| Section 2.8 | Treatment of Certain Company Convertible Securities and ESAP. | 29 |
| Section 2.9 | Payment of Consideration. | 31 |
| Section 2.10 | Withholding Taxes. | 32 |
| Section 2.11 | Announcement and Shareholder Communications. | 32 |
| Section 2.12 | Takeover Offer. | 33 |
| Section 2.13 | Designation of AcquireCo | 34 |
| |
Article 3 REPRESENTATIONS AND WARRANTIES |
| | | |
| Section 3.1 | Representations and Warranties of the Company. | 34 |
| Section 3.2 | Representations and Warranties of Purchaser and AcquireCo. | 35 |
| |
Article 4 COVENANTS |
| | | |
| Section 4.1 | Conduct of Business by the Company Pending the Acquisition. | 36 |
| Section 4.2 | Company Covenants Regarding the Acquisition. | 41 |
| Section 4.3 | Purchaser and AcquireCo Covenants Regarding the Acquisition. | 42 |
| Section 4.4 | Regulatory Approvals and Gaming Approvals. | 43 |
| Section 4.5 | Access to Information; Confidentiality. | 45 |
| Section 4.6 | Notice Provisions. | 46 |
| Section 4.7 | Insurance and Indemnification. | 47 |
| Section 4.8 | Financing. | 49 |
| Section 4.9 | Financing Cooperation. | 51 |
| Section 4.10 | Existing Indebtedness. | 54 |
| Section 4.11 | Employee Benefits Matters. | 55 |
| Section 4.12 | Resignations of Directors and Officers. | 58 |
| Section 4.13 | Delisting. | 58 |
| Section 4.14 | Shareholder Litigation. | 58 |
| Section 4.15 | Articles Amendment. | 58 |
| |
Article 5 ADDITIONAL COVENANTS REGARDING NON-SOLICITATION |
| | | |
| Section 5.1 | Company Non-Solicitation. | 59 |
| Section 5.2 | Notification of Acquisition Proposals. | 60 |
| Section 5.3 | Responding to an Acquisition Proposal. | 61 |
| Section 5.4 | Right to Match. | 61 |
| Section 5.5 | Breach by Representatives. | 64 |
| |
Article 6 CONDITIONS |
| | | |
| Section 6.1 | Mutual Conditions Precedent. | 64 |
| Section 6.2 | Additional Conditions Precedent to the Obligations of Purchaser and AcquireCo. | 65 |
| Section 6.3 | Additional Conditions Precedent to the Obligations of the Company. | 67 |
| Section 6.4 | Satisfaction of Conditions. | 67 |
| Section 6.5 | Frustration of Closing. | 67 |
| |
Article 7 TERM AND TERMINATION |
| | | |
| Section 7.1 | Term. | 68 |
| Section 7.2 | Termination. | 68 |
| Section 7.3 | Effect of Termination/Survival. | 70 |
| |
Article 8 GENERAL PROVISIONS |
| | | |
| Section 8.1 | Amendments. | 70 |
| Section 8.2 | Termination Fees. | 71 |
| Section 8.3 | Expenses and Expense Reimbursement. | 74 |
| Section 8.4 | Notices. | 74 |
| Section 8.5 | Remedies. | 76 |
| Section 8.6 | Third Party Beneficiaries. | 77 |
| Section 8.7 | Waiver. | 78 |
| Section 8.8 | Entire Agreement. | 78 |
| Section 8.9 | Successors and Assigns. | 78 |
| Section 8.10 | Severability. | 78 |
| Section 8.11 | Governing Law; Submission to Jurisdiction. | 79 |
| Section 8.12 | Rules of Construction. | 80 |
| Section 8.13 | Language. | 81 |
| Section 8.14 | Counterparts. | 81 |
| Section 8.15 | WAIVER OF JURY TRIAL. | 81 |
| Section 8.16 | Non-Recourse. | 81 |
SCHEDULES
| Schedule A | SCHEME OF ARRANGEMENT |
| Schedule B-I | SCHEME RESOLUTION |
| Schedule B-II | GENERAL MEETING RESOLUTIONS |
| Schedule C | REPRESENTATIONS AND WARRANTIES OF THE COMPANY |
| Schedule D | REPRESENTATIONS AND WARRANTIES OF PURCHASER AND ACQUIRECO |
| Schedule E | PURCHASER KNOWLEDGE GROUP |
ARRANGEMENT AGREEMENT
This Agreement is made the 20th day of September, 2017, among Scientific Games Corporation, a corporation existing under the laws of Delaware (“Purchaser”), Bally Gaming And Systems UK Limited, a private company limited by shares existing under the laws of the United Kingdom (“AcquireCo”), and NYX Gaming Group Limited, a non-cellular company limited by shares incorporated under the laws of Guernsey with registration number 51637 (the ”Company”).
WHEREAS:
| (a) | Purchaser by means of its wholly owned Subsidiary, AcquireCo, wishes to acquire the entire issued and to be issued share capital of the Company (the “Acquisition”); and |
| (b) | The Parties intend to effect the Acquisition by way of a scheme of arrangement under Part VIII of the Companies Law (as defined below), but Purchaser and AcquireCo reserve the right, as set forth in this Agreement, to elect to effect the Acquisition by way of a takeover offer (which will be an offer for purposes of Part XVIII of the Companies Law). |
THIS AGREEMENT WITNESSES that, in consideration of the covenants and agreements herein contained and other good and valuable consideration (the receipt and sufficiency of which are hereby mutually acknowledged), the Parties hereto do hereby covenant and agree as follows:
| Section 1.1 | Defined Terms. |
As used in this Agreement, the following terms have the following meanings:
“Acceptable Confidentiality Agreement” has the meaning specified in Section 5.3(3).
“AcquireCo” has the meaning specified in the preamble.
“Acquisition” has the meaning specified in the recitals.
“Acquisition Proposal” means, any written or oral inquiry, offer or proposal (other than any transaction involving only the Company and one or more of its wholly owned Subsidiaries and no third party) made by a Person (other than Purchaser or AcquireCo) relating to: (i) any sale or disposition (or any exclusive license, lease, long-term supply agreement or other arrangement having the same economic effect as a sale), direct or indirect, of assets, individually or in the aggregate, that represent
25% or more of the consolidated assets or that contribute 25% or more of the consolidated revenue of the Company or of 25% or more of the voting securities of the Company (or rights or interests in such voting securities); (ii) any take-over bid, exchange offer or other transaction that, if consummated, would result in such Person or group including such Person (or its or their shareholders) beneficially owning 25% or more of the voting securities of the Company or (iii) any scheme of arrangement, merger, amalgamation, consolidation, share exchange, business combination, reorganization, recapitalization, liquidation, dissolution, winding up or similar transaction involving the Company or any of its Subsidiaries whose assets represent, individually or in the aggregate, 25% or more of the consolidated assets of the Company or which contribute, individually or in the aggregate, 25% or more of the consolidated revenue of the Company.
“Affiliate” means, with respect to any Person, any Person controlling, controlled by or under common control with such Person.
“Agreement” means this arrangement agreement, including all schedules annexed hereto, together with the Company Disclosure Letter, as the same may be amended, supplemented or otherwise modified from time to time by mutual agreement of the Parties in accordance with the terms hereof.
“Alternative Financing” has the meaning specified in Section 4.8(3).
“Antitrust Approvals” means any Authorization or waiting period (or any extension thereof) under any Antitrust Law required to have been obtained or terminated in connection with this Agreement, the completion of the Acquisition or any other transactions contemplated by this Agreement.
“Antitrust Laws” means any Law intended to prohibit, restrict or regulate actions or transactions having the purpose or effect of monopolization, restraint of trade, harm to competition or effectuating foreign investment.
“Article 26” means Article 26 (SPECIAL RIGHTS AND RESTRICTIONS OF CLASS A EXCHANGEABLE PREFERRED SHARES) of the Articles of NYX Digital Gaming (Canada) ULC, as amended and restated on January 4, 2016 and as subsequently amended and restated on August 14, 2017.
“Articles Amendment” means the amendment to the Company’s articles of incorporation contemplated by and as set forth in the General Meeting Resolutions.
“Authorization” means, with respect to any Person, any order, permit, approval, consent, covenant, waiver, license or similar authorization, including Gaming Approvals, of any Governmental Entity having jurisdiction over the Person.
“Brand/IP License Agreement” means any Contract pursuant to which the Company or any of its Subsidiaries is granted a license to or right to use or exploit
(including by means of a covenant not to sue) Intellectual Property Rights or proprietary rights owned or controlled by any third party for use in connection with the products and services of the Company or its Subsidiaries or the operation of the business of the Company or its Subsidiaries.
“Business Day” means any day of the year, other than a Saturday, Sunday or any day on which major banks are closed for business in Guernsey, New York City, NY or Toronto, Ontario.
“Callco Support Agreement” means the Support Agreement dated July 31, 2015 between the Company, NYX Digital Gaming (Canada) ULC and 1044200 B.C. Ltd.
“Capitalization Date” has the meaning specified in Section (2)(a) of Schedule C.
“CDS” means Canadian Depository for Securities.
“Change” has the meaning set forth in the definition of “Material Adverse Effect” in this Section 1.1.
“Closing” has the meaning specified in Section 2.7(3).
“COBRA” has the meaning specified in Section (17)(e) of Schedule C.
“Code” means the U.S. Internal Revenue Code of 1986, as amended.
“Companies Law” means The Companies (Guernsey) Law, 2008 (as amended).
“Company” has the meaning specified in the preamble.
“Company 401(k) Plan” has the meaning specified in Section 4.11(3).
“Company Adverse Change Notice” has the meaning specified in Section 5.4(1)(b).
“Company Benefit Plan” means each “employee pension benefit plan” (as defined in Section 3(2) of ERISA), each “employee welfare benefit plan” (as defined in Section 3(1) of ERISA), and each other plan, program, agreement, arrangement or policy relating to stock options, restricted stock units, other equity or equity-based compensation, disability, bonus, profit sharing, insurance, incentive, severance, termination, pension, retirement, employment, employment insurance or supplementary unemployment benefits, change-in-control, retention, consultant, Tax gross-up, vacation, fringe benefits or other employment terms or employee benefits, whether or not subject to ERISA, in each case maintained or contributed to, or required to be maintained or contributed to, by the Company or any of its Subsidiaries or for which the Company or any of its Subsidiaries has any actual or contingent liability, or otherwise providing for payments or benefits for or to any Participant, but excluding any Governmental Plan. For greater certainty, “Company Benefit Plan” includes the ESAP and each Non-U.S. Benefit Plan.
“Company Board” means the Board of Directors of the Company as constituted from time to time.
“Company Board Recommendation” has the meaning specified in Section 2.4(3)(a).
“Company Change in Recommendation” has the meaning specified in Section 7.2(1)(d)(ii).
“Company Convertible Securities” means, collectively, the Convertible Preference Shares, the Exchangeable Preferred Shares, the Company Warrants, the Company Options and the Unsecured Convertible Debenture.
“Company Data Room” means the virtual data room for Project Garden maintained by the Company through Donnelley Financial Solutions to which Purchaser and its Representatives have access.
“Company Disclosure Letter” means the disclosure letter dated the date of this Agreement and delivered by the Company to Purchaser prior to the execution of this Agreement.
“Company Employees” means all employees, as of the Effective Date, of the Company and each of its Subsidiaries.
“Company Equity Documents” means all Contracts and other instruments establishing the terms of, or governing the rights of the holders of, the Ordinary Shares and the Company Convertible Securities.
“Company Filings” means all documents publicly filed under the profile of the Company on the System for Electronic Document Analysis Retrieval (“SEDAR”) since January 1, 2016.
“Company Financial Advisors” has the meaning specified in Section (26) of Schedule C.
“Company Financial Statements” has the meaning specified in Section (11)(a) of Schedule C.
“Company Indemnitees” has the meaning specified in Section 4.9(2).
“Company Lease” means any lease, sublease, sub-sublease, license and other agreement under which the Company or any of its Subsidiaries leases, subleases, licenses, uses or occupies (in each case whether as landlord, tenant, sublandlord, subtenant or by other occupancy arrangement), or has the right to use or occupy, now or in the future, any real property.
“Company Material Contract” has the meaning specified in Section (20)(a) of Schedule C.
“Company Option Plan” means the NYX Stock Option Plan, effective December 24, 2014.
“Company Optionholders” means the holders of Company Options.
“Company Options” means all options to purchase Ordinary Shares issued pursuant to the Company Option Plan or otherwise (other than any rights under the ESAP).
“Company Owned IP” means all Intellectual Property Rights owned or purported to be owned by the Company or any of its Subsidiaries.
“Company Permits” has the meaning set forth in Section (7) of Schedule C.
“Company Registered IP” has the meaning specified in Section (18)(a) of Schedule C.
“Company Related Parties” has the meaning specified in Section 8.2(6).
“Company Securityholders” means, collectively, the Company Shareholders and the holders of Company Convertible Securities.
“Company Shareholders” means the holders of the Ordinary Shares.
“Company Superior Proposal Notice” has the meaning specified in Section 5.4(1)(b).
“Company Termination Fee” has the meaning specified in Section 8.2(1)(a)(i).
“Company Termination Fee Event” has the meaning specified in Section 8.2(1)(b).
“Company Warrantholders” means the holders of Company Warrants.
“Company Warrants” means the outstanding warrants to purchase Ordinary Shares issued by the Company pursuant to the Warrant Indentures.
“Confidentiality Agreement” means that certain confidentiality agreement dated August 4, 2017, between Purchaser and the Company.
“Consideration” has the meaning specified in Section 2.1.
“Constitutional Documents” means the articles of incorporation (or equivalent document), by-laws (or equivalent document) and any other instrument pursuant to which an entity is created, incorporated, amalgamated, organized or otherwise established, as the case may be, or which governs such entity’s affairs, together with any amendments or supplements thereto.
“Contract” means, with respect to any Person, any legally binding agreement, commitment, engagement, contract, franchise, lease, sublease, license, obligation, instrument or undertaking (written or oral) to which such Person is a party or by which it is bound or affected or to which any of its respective properties or assets is subject.
“Control” (including the terms “controlled by” and “under common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by Contract or otherwise.
“Convertible Preference Shares” means the convertible preference shares, par value $1,000 per preference share, issued on May 20, 2016, by NYX Digital Gaming (OB Holdings) Limited, a wholly owned subsidiary of the Company, pursuant to the Shareholders Deed dated as of May 20, 2016, by and among William Hill Steeplechase Limited, Cyan Blue Holdco 4 Limited, the Company, NYX Digital Gaming (OB Holdings) Limited and NYX Digital Gaming (OB SPV) Limited.
“Copyrights” has the meaning set forth in the definition of “Intellectual Property Rights” in this Section 1.1.
“Court” means the Royal Court of Guernsey.
“Court Hearing” means the hearing by the Court to sanction the Scheme (with or without modification) pursuant to Section 110 of the Companies Law and otherwise in accordance with Part VIII of the Companies Law, including any adjournment or postponement thereof in accordance with applicable Law and this Agreement.
“Court Meeting” means the meeting of the Scheme Shareholders to be convened by order of the Court pursuant to Section 107 of the Companies Law to consider and, if thought fit, to approve the Scheme, including any adjournment or postponement thereof in accordance with applicable Law and this Agreement.
“CREST” means the system for the paperless settlement of trades in securities and the holding of uncertificated securities operated by Euroclear in accordance with the U.K. Uncertificated Securities Regulations 2001 (SI 2001/3755) (as amended), which system is recognised pursuant to the Regulations.
“Damages” has the meaning specified in Section 7.3.
“Debt Commitment Letters” has the meaning specified in Section (5)(a) of Schedule D.
“Debt Financing” has the meaning specified in Section (5)(a) of Schedule D.
“Debt Payoffs” has the meaning specified in Section 4.10(2).
“Debt Securities Offering” has the meaning specified in Section 4.8(3).
“Depositary” means TSX Trust Company, or any other depositary or trust company, bank or financial institution agreed to between Purchaser and the Company for the purpose of, among other things, distributing the Consideration in accordance with the terms of the Scheme of Arrangement.
“Disclosed Conditions” has the meaning specified in Section (5)(e) of Schedule D.
“Effective Date” means the date on which the Scheme becomes effective in accordance with the terms of the Scheme of Arrangement.
“Effective Time” has the meaning specified in Section 2.7(4).
“Environmental Claim” means any claim, action, cause of action, suit, proceeding, order, demand or written notice alleging potential liability (including potential liability for investigatory costs, cleanup costs, governmental response costs, property damages, and personal injuries) based on or under Environmental Law or arising out of or resulting from: (i) the Release of any Hazardous Substance at any location or (ii) exposure to any Hazardous Substance.
“Environmental Laws” means all Laws relating to pollution or protection of human health or safety or the environment, including Laws relating to land preservation or natural resource damage, the exposure to, or Release or threatened Release of, toxic or hazardous substances, materials or wastes, or relating to the manufacture, use, treatment, storage, transport or handling of toxic or hazardous substances, materials or wastes and all Laws relating to recordkeeping, notification, disclosure and reporting requirements in respect of toxic or hazardous substances, materials or wastes.
“ERISA” means the U.S. Employee Retirement Income Security Act of 1974, as amended, and the rules and regulations promulgated thereunder, or any successor statute, rules and regulations thereto.
“ERISA Affiliate” means any trade or business, whether or not incorporated, that is under common control with the Company or any of its Subsidiaries within the meaning of Section 4001(b)(1) of ERISA or Section 414(b), (c), (m) or (o) of the Code.
“ESAP” means the NYX Employee Share Acquisition Plan, effective May 15, 2015.
“ESAP Trust” means the trust established under the ESAP, which applies monies from ESAP participant contributions to the purchase of Ordinary Shares, in accordance with the terms of the ESAP.
“Exchangeable Preferred Shares” means the Class A exchangeable preferred shares issued on July 31, 2015, by NYX Digital Gaming (Canada) ULC, a wholly owned
subsidiary of the Company, pursuant to the Share Sale and Transfer Agreement, dated as of April 9, 2015, as amended on July 31, 2015, January 4, 2016, and August 14, 2017, by and among the Company, NYX Digital Gaming (Canada) ULC and Amaya, Inc.
“Excluded Shares” means (i) any Ordinary Shares beneficially owned by Purchaser or any of its Subsidiaries and (ii) any Ordinary Shares held as treasury shares by the Company.
“Fee Letter” means any fee letter entered into in connection with a Debt Commitment Letter.
“FinanceCo” has the meaning specified in Section (5)(a) of Schedule D.
“Financing Agreements” has the meaning specified in Section (5)(b) of Schedule D.
“Financing Source” means the Persons (other than the Company or any of its Subsidiaries or any of their respective Affiliates) that have committed to provide or have otherwise entered into agreements (including any Debt Commitment Letters or Financing Agreements), in each case, in connection with the Debt Financing or any other financing in connection with the transactions contemplated by this Agreement, and any joinder agreements, indentures or credit agreements entered into pursuant to such agreements, including the Lenders, together with their respective former, current or future general or limited partners, direct or indirect shareholders, managers, members, Affiliates, officers, directors, employees, agents, other Representatives and successors and assigns of any of the foregoing; it being understood that Purchaser and AcquireCo shall not be Financing Sources for any purposes hereunder.
“Funding Failure Termination Fee” has the meaning specified in Section 8.2(1)(a)(ii).
“Funding Failure Termination Fee Event” has the meaning specified in Section 8.2(1)(c).
“Gaming Approvals” means the consents, registrations, approvals, findings of suitability, licenses, declarations, notices or filings required to be made, given or obtained under Gaming Laws in connection with this Agreement, the completion of the Acquisition or any other transactions contemplated by this Agreement.
“Gaming Authority” means any Governmental Entity with regulatory control or jurisdiction over the manufacture, sale, distribution or operation of gaming equipment or systems, the design, operation or distribution of internet gaming services or products, the ownership or operations of any casinos or the ownership, operation or conduct of any other gaming activities and operations.
“Gaming Laws” means, with respect to any Person, any Law governing or relating to the manufacture, sale, distribution or operation of gaming equipment or systems, the design, operation or distribution of internet gaming services or products, or online gaming products and services, the ownership or operation of any casinos or the ownership, operation or conduct of any other gaming activities and operations of such Person and such Person’s Affiliates, including the rules and regulations promulgated by any applicable Gaming Authority.
“General Meeting” means the general meeting of Company Shareholders to be convened to consider and, if thought fit, to approve the General Meeting Resolutions, and for any other purpose as may be specified in the Scheme Circular and agreed in writing between the Company and Purchaser, including any adjournment or postponement thereof in accordance with applicable Law and this Agreement.
“General Meeting Resolutions” means the resolutions, substantially in the form of Schedule B-II, and resolutions covering such other matters as may be agreed in writing between the Company and Purchaser as necessary or desirable for the purposes of implementing the Scheme, to be proposed at the General Meeting in connection with the Scheme.
“Governmental Entity” means (i) any international, multinational, national, federal, provincial, state, regional, municipal, local or other government, governmental or public department, central bank, court, tribunal, arbitral body, commission, board, bureau, ministry, agency or instrumentality, domestic or foreign, (ii) any subdivision or authority of any of the above, (iii) any quasi-governmental or private body exercising any regulatory, expropriation or Taxation Authority under or for the account of any of the foregoing or (iv) any stock exchange.
“Governmental Plan” means any governmental or statutory plan, program, agreement, arrangement or policy as to which the Company or any of its Subsidiaries contributes, is required to contribute or otherwise has any actual or contingent liability or is otherwise providing payments or benefits for or to any Participant.
“Guernsey” means the Island of Guernsey.
“Guernsey Registry” means the body authorized by the States of Guernsey to maintain various registers as required under Guernsey legislation and operating under the name Guernsey Registry.
“Hazardous Substances” means materials defined, listed, classified or regulated as “hazardous substances”, “hazardous wastes”, “hazardous materials”, “extremely hazardous wastes”, “restricted hazardous wastes”, “toxic substances”, “toxic pollutants”, “contaminants”, “pollutants”, “radioactive materials”, “petroleum”, “petroleum by-product”, or words of similar import under any Environmental Law.
“IFRS” means International Financial Reporting Standards as issued by the International Accounting Standards Board.
“Indebtedness” means, with respect to any Person, without duplication: (i) any obligations for borrowed money, (ii) any obligations evidenced by bonds, notes, debentures, letters of credit or similar instruments, (iii) any capital lease obligations, (iv) any net obligations in respect of interest rate, currency or commodity swaps, collars, caps, hedges, futures contract, forward contract, option or other derivative instruments or arrangements and (v) any obligations to guarantee any of the foregoing types of obligations on behalf of any Person; provided, however, that, with respect to the Company, “Indebtedness” shall not be deemed to include any intercompany Indebtedness to the extent owing by the Company to any of its wholly owned Subsidiaries, by a wholly owned Subsidiary of the Company to the Company or by one wholly owned Subsidiary of the Company to another wholly owned Subsidiary of the Company.
“Indemnified Persons” has the meaning specified in Section 4.7(2).
“Information Privacy Laws” has the meaning specified in Section (18)(k) of Schedule C.
“Intellectual Property Rights” means all intellectual property and other similar proprietary rights, whether registered or unregistered, domestic or foreign, including (i) patents, patent applications, invention disclosures, and all related continuations, continuations-in-part, divisionals, reissues, re-examinations, substitutions, and extensions thereof, and any counterparts claiming priority therefrom (“Patents”), (ii) trademarks, service marks, logos, trade dress, trade names, corporate names and domain names (“Trademarks”), together with the goodwill symbolized by any of the foregoing, (iii) copyrights, including, to the extent applicable, moral rights, and copyrightable subject matter (“Copyrights”), (iv) rights in computer programs and software (whether in source code, object code or other form), application programming interfaces, algorithms, databases, compilations and data, technology and documentation supporting the foregoing, (v) trade secrets and rights in other confidential information, including rights in ideas, know-how, inventions (whether patentable or unpatentable and whether or not reduced to practice), proprietary processes, formulae, models and methodologies (“Trade Secrets”), (vi) all rights of publicity and other rights to use the names and likeness of individuals, (vii) rights in designs, including industrial designs, and (viii) all applications and registrations for the foregoing.
“Intentional Breach” means, with respect to any representation, warranty, agreement or covenant of a Party in this Agreement, an action or omission taken or omitted to be taken by such Party in material breach of such representation, warranty, agreement or covenant that the breaching Party intentionally takes (or fails to take) and with the actual knowledge that such action or omission would, or
would reasonably be expected to, cause such material breach of such representation, warranty, agreement or covenant.
“Intervening Event” means a material Change that was not known or reasonably foreseeable to the Company prior to or at the time of the execution and delivery of this Agreement (excluding, for the avoidance of doubt, (a) any known or reasonably foreseeable change or proposed change in Law or other legal or regulatory requirements (or the interpretation thereof), including any Gaming Laws or Tax Laws, or (b) any known or reasonably foreseeable entry or potential entry by the Company or any of its Subsidiaries into any Contracts with customers, suppliers, distributors or other business partners (including pursuant to pending RFP proposals)), which material Change becomes known to the Company Board after the execution and delivery of this Agreement and prior to the receipt of the Required Shareholder Approvals, other than any Acquisition Proposal.
“IRS” means the U.S. Internal Revenue Service.
“IT Assets” means computers, software, middleware, servers, workstations, networks, routers, hubs, switches, data communications lines, all other information technology equipment, and all associated documentation, in each case used by the Company or any of its Subsidiaries.
“Law” means, with respect to any Person, any and all applicable law (statutory, common or otherwise), constitution, treaty, convention, ordinance, code, rule, regulation, order, injunction, judgment, decree, ruling, Authorization (as applicable) or other similar requirement, whether domestic or foreign, enacted, adopted, promulgated or applied by a Governmental Entity that is binding upon or applicable to such Person or its business, undertaking, property or securities, and to the extent that they have (or are applied as if they have) the force of law, policies, guidelines, notices and protocols of any Governmental Entity, as amended.
“Leased Real Property” has the meaning specified in Section (21)(b) of Schedule C.
“Lenders” has the meaning specified in Section (5)(a) of Schedule D.
“Licensed IP Rights” means any Intellectual Property Rights of a third party that are licensed to the Company or any of its Subsidiaries or that the Company or any of its Subsidiaries is granted a right to use or exploit (including by means of a covenant not to sue) pursuant to a Brand/IP License Agreement.
“Lien” means any mortgage, charge, pledge, hypothec, security interest, prior claim, encroachment, option, right of first refusal or first offer, occupancy right, covenant, assignment, lien (statutory or otherwise), defect of title, restriction or adverse right or claim or other third-party interest or encumbrance of any kind, in each case, whether contingent or absolute.
“Malicious Code” has the meaning specified in Section (18)(i) of Schedule C.
“Marketing Period” means the first period of 20 consecutive days after the date of this Agreement commencing on November 1, 2017; provided that (x) such 20 consecutive-day period shall (i) end on or prior to December 15, 2017 or (ii) commence on or after January 2, 2018, and (y) November 23, 2017 through November 26, 2017 shall not count as a day for this purpose; provided, further, that notwithstanding anything to the contrary in this Agreement, the Marketing Period shall terminate at the time the Debt Financing is funded in full (or the Debt Securities Offering is consummated).
“Matching Period” has the meaning specified in Section 5.4(1)(d).
“Material Adverse Effect” means any change, event, occurrence, effect, state of facts or circumstance (each, a “Change”) that, either individually or in the aggregate, (i) is or would reasonably be expected to be material and adverse to the business, assets, liabilities (contingent or otherwise), condition (financial or otherwise) or results of operations of the Company and its Subsidiaries, taken as a whole, or (ii) would reasonably be expected to prevent or materially delay the Company and its Subsidiaries from performing their obligations under this Agreement and consummating the transactions contemplated by this Agreement, other than, in the case of clause (i) above, Changes to the extent resulting from, attributable to or arising out of any of the following (by itself or when aggregated or taken together with any and all other such Changes):
| (a) | general political, economic, financial, currency exchange, securities, capital or credit market conditions in Canada, Guernsey, the United States or any other country or region in the world; |
| (b) | any act of terrorism, war (whether or not declared), armed hostilities, riots, insurrection, civil disorder, military conflicts or other armed conflict, in each case whether occurring within or outside of Canada, Guernsey or the United States; |
| (d) | any change or proposed change in Law or other legal or regulatory requirements (or the interpretation thereof), IFRS or accounting rules or the interpretation thereof; |
| (e) | any change affecting the industries or markets in which the Company or its Subsidiaries operate; |
| (f) | the announcement or pendency of the transactions contemplated by this Agreement or the identity of Purchaser, AcquireCo or their respective Affiliates, including (A) the termination or potential termination of (or the |
| | failure or potential failure to renew or enter into) any Contracts with customers, suppliers, distributors or other business partners, (B) any other negative development (or potential negative development) in the Company’s relationships with any of its customers, suppliers, distributors or other business partners or (C) any departure or termination of any officers, directors, employees or independent contractors of the Company or its Subsidiaries, in each of the foregoing cases (A) through (C) arising from or as a direct or indirect result of the announcement or pendency of the transactions contemplated by this Agreement or the identity of Purchaser, AcquireCo or their respective Affiliates; |
| (g) | any actions taken or failure to take action, in each case, by Purchaser or any of its controlled Affiliates; |
| (h) | any actions taken or failure to take action, in each case, to which Purchaser has consented in writing, or which Purchaser has requested or approved in writing or the taking of such action is required by this Agreement, or the failure to take such action prohibited by this Agreement; |
| (i) | any change in the trading price or any change in the trading volume of the Ordinary Shares (it being understood, without limiting the applicability of sub-clauses (a) through (l), that the causes underlying such changes in trading price or trading volume may be taken into account in determining whether a Material Adverse Effect has occurred); |
| (j) | any Proceedings made or brought by any of the current or former shareholders of the Company (on their own behalf or on behalf of the Company and only in their capacities as current or former shareholders of the Company) against the Company arising out of or in connection with the transactions contemplated by this Agreement; |
| (k) | any matter which has been disclosed by the Company in the Company Disclosure Letter to the extent such Change is reasonably foreseeable from such disclosure; and |
| (l) | the failure, in and of itself, of the Company to meet any internal or public projections, forecasts or estimates of revenues or earnings (it being understood, without limiting the applicability of sub-clauses (a) through (k), that the causes underlying such failure may be taken into account in determining whether a Material Adverse Effect has occurred); |
provided, however, that with respect to sub-clauses (a) through (e), such matters do not have a materially disproportionate effect on the Company and its Subsidiaries, taken as a whole, relative to companies operating in the industries or markets in which the Company and its Subsidiaries operate, and provided further, however, that references in certain Sections of this Agreement to dollar amounts are not
intended to be, and shall be deemed not to be, illustrative or interpretative for the purpose of determining whether a “Material Adverse Effect” has occurred.
“Meetings” means the Court Meeting and the General Meeting.
“MI 61-101” means Multilateral Instrument 61-101 Protection of Minority Security Holders in Special Transactions.
“Misrepresentation” means an untrue statement of a material fact or an omission to state a material fact required or necessary to make the statements contained therein not misleading in light of the circumstances in which they are made.
“Moody’s” has the meaning specified in Section 4.9(1)(k).
“Multiemployer Plan” means any “multiemployer plan” within the meaning of Section 3(37) or Section 4001(a)(3) of ERISA.
“New Debt Commitment Letters” has the meaning specified in Section 4.8(3).
“New Plans” has the meaning specified in Section 4.11(2).
“Non-U.S. Benefit Plan” means each Company Benefit Plan that is maintained outside of the United States or provides compensation or benefits in respect of any Participant who is primarily based outside of the United States, including any such plan required to be maintained or contributed to by applicable Law, custom or rule of the relevant jurisdiction.
“Notice Record Date for the Meetings” means a date that is at least (x) thirty (30) days prior to the Proposed Meeting Date or (y) if such Proposed Meeting Date is not confirmed in the Order to Call Court Meeting, then a date that is at least thirty (30) days prior to the date of the Meetings to be convened and conducted in accordance with Section 2.3.
“Offer” means a contractual takeover offer (which will be an offer for the purposes of Part XVIII of the Companies Law), which may be effected in accordance with Section 2.12.
“Offer Election” has the meaning specified in Section 2.12(1).
“Old Plans” has the meaning specified in Section 4.11(2).
“Open Source Material” has the meaning specified in Section (18)(h) of Schedule C.
“Order” means any decree, order, judgment, injunction, temporary restraining order or other order in any suit or Proceeding by, before or with any Governmental Entity.
“Order to Call Court Meeting” has the meaning specified in Section 2.2.
“Ordinary Course” means, with respect to an action taken by a Party, that such action is consistent with the past practices of such Party and is taken in the ordinary course of the normal operations of the business of such Party.
“Ordinary Shares” means the ordinary shares of no par value in the capital of the Company.
“Outside Date” means March 31, 2018; provided, however, the Outside Date shall be automatically extended for a period of thirty (30) days if all conditions set forth in Article 6 other than the condition set forth in Section 6.2(4) were satisfied as of the Outside Date (other than those conditions that by their nature are to be satisfied at the Closing), or as otherwise may be agreed to in writing by the Parties.
“Participant” means any current or former officer, director, employee, consultant, independent contractor, or other individual service provider (or their respective beneficiaries) of the Company or any of its Subsidiaries.
“Parties” means the Company, AcquireCo and Purchaser and “Party” means any one of them.
“Patents” has the meaning set forth in the definition of “Intellectual Property Rights” in this Section 1.1.
“Permitted Liens” means any one or more of the following:
| (a) | Liens for Taxes which are not yet due or delinquent, or the validity or amount of which is being contested in good faith by appropriate proceedings (and for which adequate accruals and reserves have been established in accordance with IFRS); |
| (b) | statutory Liens of contractors, subcontractors, mechanics, workers, suppliers, materialmen, carriers and others arising in the Ordinary Course, with respect to amounts which are not yet due and for a claim which has not been filed or registered pursuant to applicable Laws or of which notice in writing has not been given to the Company; |
| (c) | easements, rights-of-way, covenants, restrictions and other encumbrances with respect to real or immovable properties incurred in the Ordinary Course that, either individually or in the aggregate, are not material in amount and that do not, in any case, materially detract from the value or the use of the property subject thereto; |
| (d) | statutory landlords’ Liens and Liens granted to landlords under any lease; |
| (e) | Liens disclosed in the notes to the Company Financial Statements; |
| (f) | Liens incurred in the Ordinary Course in connection with workers’ compensation, unemployment insurance and other types of social security; |
| (g) | with respect to leased or licensed personal property or Intellectual Property Rights, the terms and conditions of the lease or license applicable thereto; |
| (h) | rights reserved to or vested in any Governmental Entity by any statutory provision; and |
| (i) | Liens listed and described in Section 1.1 of the Company Disclosure Letter under the caption “Permitted Liens”. |
“Person” means any individual, partnership, limited partnership, limited liability partnership, joint venture, association, body corporate, corporation, company, unincorporated association, limited liability company, unlimited liability company, organization, trust, estate, trustee, executor, administrator, legal representative, government (including Governmental Entity), syndicate or other entity, whether or not having legal status.
“Personal Information” has the meaning specified in Section (18)(k) of Schedule C.
“Proceeding” has the meaning specified in Section (15) of Schedule C.
“Proposed Meeting Date” means December 20, 2017.
“Purchaser” has the meaning specified in the preamble.
“Purchaser’s 401(k) Plan” has the meaning specified in Section 4.11(3).
“Purchaser Filings” means all documents publicly filed by Purchaser with the SEC since January 1, 2016.
“Purchaser Material Adverse Effect” means any change, event, occurrence, state of facts or circumstance that, either individually or in the aggregate, is or would reasonably be expected to prevent or materially delay Purchaser and AcquireCo from performing their obligations under this Agreement and consummating the transactions contemplated by this Agreement.
“Purchaser Related Parties” has the meaning specified in Section 8.2(7).
“Regarded U.S. Subsidiaries” means NYX Digital Gaming (Americas) LLC and NextGen Gaming (USA) LLC.
“Regulations” means the Uncertificated Securities (Guernsey) Regulations, 2009 (GSI 2009/48).
“Regulatory Approval” means any consent, waiver, permit, exemption, review, order, decision or approval of, or any registration and filing with, any Governmental Entity, or the expiry, waiver or termination of any waiting period imposed by Law or a Governmental Entity, in each case in connection with the Acquisition.
“Release” means any release, spill, emission, discharge, leaking, pumping, injection, deposit, pouring, emptying, abandonment, dumping, disposal, dispersal, leaching or migration at, on, into or through the environment (including ambient air, surface water, groundwater and surface or subsurface strata) or into or out of any property.
“Representative” when used in reference to any Person, means any officer, director, employee, representative (including any financial or other advisor) or agent of such Person and such Person’s Subsidiaries.
“Required Gaming Approvals” means the Gaming Approvals from the provincial, state and other jurisdictions and tribal authorities specified in Section 1.1 of the Company Disclosure Letter under the caption “Required Gaming Approvals.”
“Required General Meeting Approval” has the meaning specified in Section (5)(b) of Schedule C.
“Required MI 61-101 Approval” means minority approval (within the meaning of MI 61-101) of the Scheme Resolution in accordance with the requirements of MI 61-101.
“Required Payment Amount” has the meaning specified in Section (5)(d) of Schedule D.
“Required Shareholder Approvals” means each of (i) the Required Scheme Approval, (ii) the Required MI 61-101 Approval and (iii) the Required General Meeting Approval.
“Required Scheme Approval” has the meaning specified in Section 2.2(3).
“S&P” has the meaning specified in Section 4.9(1)(k).
“Scheme” means the scheme of arrangement under Part VIII of the Companies Law to be implemented pursuant to this Agreement and the Scheme of Arrangement.
“Scheme Circular” means the document, prepared in accordance with Section 108 of the Companies Law (and all other applicable Laws, including Securities Laws), to be sent by the Company to the Scheme Shareholders and the Company Shareholders containing, among other things, a copy of this Agreement, the Scheme of Arrangement, an explanatory statement in compliance with Part VIII of the Companies Law and the notices of Court Meeting and General Meeting containing the Scheme Resolution and General Meeting Resolutions, respectively.
“Scheme of Arrangement” means the scheme of arrangement between the Company and the Scheme Shareholders, in the form of Schedule A, with or subject to any modification, addition or condition which is agreed to by the Company and Purchaser in writing in accordance with this Agreement and which (in case of any modification, addition or condition made after issue of the Scheme Circular) is approved or imposed by the Court.
“Scheme Order” means the order of the Guernsey Court sanctioning the Scheme.
“Scheme Record Time” means the record time for the Scheme as agreed in writing by the Company and Purchaser and specified in the Scheme Circular.
“Scheme Resolution” means the resolution, substantially in the form of Schedule B‑I, to be proposed at the Court Meeting in connection with the Scheme.
“Scheme Shareholders” means the holders of Scheme Shares.
“Scheme Shares” means all Ordinary Shares which are (i) in issue on the date of the Scheme Circular, (ii) issued after the date of the Scheme Circular but before the Scheme Voting Record Time or (iii) issued at or after the Scheme Voting Record Time but before the Scheme Record Time, in respect of which the original or any subsequent holders thereof are, or shall have agreed in writing to be, bound by the Scheme, in each case other than any Excluded Shares.
“Scheme Voting Record Time” means a time which is no more than forty-eight (48) hours (excluding any days which are not Business Days) before the time of the Court Meeting or, if the Court Meeting is adjourned or postponed, a time which is no more than forty-eight (48) hours (excluding any days which are not Business Days) before the time of such adjourned or postponed meeting (or, in each case to the extent permitted by Law, such other day and time as may be agreed to in writing by the Company and Purchaser).
“SEC” means the U.S. Securities and Exchange Commission.
“Securities Authority” means the Ontario Securities Commission and any other applicable securities commissions or securities regulatory authority of a province or territory of Canada, Guernsey or the United States (including the SEC).
“Securities Laws” means (i) the Securities Act (Ontario) or other applicable legislation in the other provinces and territories of Canada, the rules, regulations and forms made or promulgated thereunder and the applicable published national instruments, multilateral instruments, policies, bulletins and notices of the securities commissions and similar regulatory authorities of each of the provinces and territories of Canada, (ii) the published rules and policies of the TSXV and (iii) and the Protection of Investors (Bailiwick of Guernsey) Law, 1987, the Company
Securities (Insider Dealing) (Bailiwick of Guernsey) Law, 1996, and the rules and regulations made under such laws.
“SEDAR” has the meaning set forth in the definition of “Company Filings” in this Section 1.1.
“Solvent” has the meaning specified in Section (6) of Schedule D.
“Subsidiary” of any Person means any corporation, partnership, joint venture or other legal entity of which such Person (either above or through or together with any other Subsidiary) owns, directly or indirectly, more than fifty percent (50%) of the stock or other equity interests, the holders of which are generally entitled to vote for the election of the board of directors or other governing body of such corporation or other legal entity.
“Superior Proposal” means any unsolicited bona fide written Acquisition Proposal from a Person (other than Purchaser or its Affiliates) made after the date of this Agreement: (a) that the Company Board has determined in good faith is reasonably capable of being completed without undue delay, taking into account all financial, legal, regulatory and other aspects of such Acquisition Proposal and the Person making such Acquisition Proposal and (b) that the Company Board determines, in its good faith judgment, after receiving the advice of its outside legal and financial advisors and after taking into account all the terms and conditions of such Acquisition Proposal and the Person making such Acquisition Proposal, would, if consummated in accordance with its terms, but without assuming away the risk of non-completion, result in a transaction which is more favorable, from a financial point of view, to the Company Shareholders than the Scheme (including any amendments to the terms and conditions of the Scheme that may be proposed by Purchaser pursuant to Section 5.4(2)); provided that, for purposes of this definition of “Superior Proposal,” references in the term “Acquisition Proposal” to “25% or more” shall be deemed to be references to “75%”.
“Support Agreements” means the support agreements (including all amendments, exhibits, schedules and other attachments thereto) between Purchaser and the Supporting Equityholders executed on the date hereof.
“Supporting Equityholders” means each of the Persons specified in Section 1.1 of the Company Disclosure Letter under the caption “Supporting Equityholders”.
“Tax Act” means the Income Tax Act (Canada).
“Tax Returns” means any and all returns, reports, declarations, elections, notices, forms, designations, filings and statements (including estimated tax returns and reports, withholding tax returns and reports, and information returns and reports) filed or required to be filed with a Governmental Entity in respect of Taxes.
“Taxation Authority” means any government, state or municipality or any local, state, provincial, federal or other fiscal, revenue, customs or excise authority, body or official competent to impose, administer, levy, assess or collect Taxes.
“Taxes”, “Tax” and “Taxation” means (i) any and all taxes, duties, fees, excises, premiums, assessments, imposts, levies and other charges or assessments of any kind whatsoever imposed by any Governmental Entity, whether computed on a separate, consolidated, unitary, combined or other basis, including those levied on, or measured by, or described with respect to, income, gross receipts, profits, gains, windfalls, capital, capital stock, production, recapture, transfer, land transfer, license, gift, occupation, wealth, environment, net worth, indebtedness, surplus, sales, goods and services, harmonized sales, use, value-added, excise, special assessment, stamp, withholding, business, franchising, real or personal property, health, employee health, payroll, workers’ compensation, employment or unemployment, severance, social services, social security, education, utility, surtaxes, customs, import or export, and including all license and registration fees and all employment insurance, health insurance and government pension plan premiums or contributions; (ii) all interest, penalties, fines, additions to tax or other additional amounts imposed by any Governmental Entity on or in respect of amounts of the type described in clause (i) above or this clause (ii); (iii) any liability for the payment of any amounts of the type described in clauses (i) or (ii) as a result of being a member of an affiliated, consolidated, combined or unitary group for any period; and (iv) any liability for the payment of any amounts of the type described in clauses (i) or (ii) as a result of any express or implied obligation to indemnify any other Person or as a result of being a transferee or successor in interest to any party.
“Trade Secrets” has the meaning set forth in the definition of “Intellectual Property Rights” in this Section 1.1.
“Trademarks” has the meaning set forth in the definition of “Intellectual Property Rights” in this Section 1.1.
“TSXV” means the TSX Venture Exchange.
“Unsecured Convertible Debenture” means the 10% Unsecured Convertible Debenture due 2020 issued by the Company pursuant to the Subscription Agreement dated June 22, 2016 between the Company and EM Family Investments LLC.
“U.S. Exchange Act” means the United States Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“U.S. Securities Act” means the United States Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“Warrant Indentures” means (i) the Warrant Indenture dated July 16, 2015, between the Company and Equity Financial Trust Company, a trust company existing under the laws of Canada, as warrant agent, (ii) the Warrant Indenture dated April 26, 2016, between the Company and TMX Equity Transfer and Trust Company, a trust company existing under the laws of Canada, as warrant agent, (iii) the Warrant Indenture dated May 20, 2016, between the Company and TMX Equity Transfer and Trust Company, a trust company existing under the laws of Canada, as warrant agent, (iv) the Warrant Indenture dated May 20, 2016, between the Company and TMX Equity Transfer and Trust Company, a trust company existing under the laws of Canada, as warrant agent, and (v) the Warrant Indenture dated June 30, 2016, between the Company and TSX Trust Company, a trust company existing under the laws of Canada, as warrant agent.
| Section 1.2 | Certain Rules of Interpretation. |
In this Agreement, unless otherwise specified:
| (1) | Headings, etc. The provision of a Table of Contents, the division of this Agreement into Articles and Sections and the insertion of headings are for convenient reference only and do not affect the construction or interpretation of this Agreement. |
| (2) | Currency. All references to dollars or to $ are references to Canadian dollars. |
| (3) | Gender and Number. Any reference to gender includes all genders. Words importing the singular number only include the plural and vice versa. |
| (4) | Certain Phrases and References, etc. The words “including”, “includes” and “include” mean “including (or includes or include) without limitation”, and “the aggregate of”, “the total of”, “the sum of”, or a phrase of similar meaning, means “the aggregate (or total or sum), without duplication, of”. The term “or” is not exclusive. The word “extent” in the phrase “to the extent” means the degree to which a subject or other thing extends, and such phrase does not mean simply “if”. The word “will” is construed to have the same meaning and effect as the word “shall”. Unless stated otherwise, “Article”, “Section”, and “Schedule” followed by a number or letter mean and refer to the specified Article or Section of or Schedule to this Agreement. The words “hereof”, “herein” and “hereunder”, or words of similar import, when used in this Agreement refer to this Agreement as a whole and not to any particular provision of this Agreement. |
| (5) | Capitalized Terms. All capitalized terms used in any Schedule, in the Support Agreements or in the Company Disclosure Letter have, unless otherwise defined, the meanings ascribed to them in this Agreement. |
| (6) | Knowledge. (a) Where any representation or warranty is expressly qualified by reference to the knowledge of the Company, it shall be deemed to refer to the actual knowledge of the individuals set forth on Section 1.2(6)(a) of the Company |
| Disclosure Letter, after reasonable inquiry. For the avoidance of doubt, for purposes of Section 5.2, the knowledge of the Company shall include the knowledge of any directors or officers of the Company. |
(b) Where any representation or warranty is expressly qualified by reference to the knowledge of Purchaser, it shall be deemed to refer to the actual knowledge of the individuals set forth on Schedule E, after reasonable inquiry.
| (7) | Accounting Terms. All accounting terms are to be interpreted in accordance with IFRS and all determinations of an accounting nature in respect of the Company shall be made in a manner consistent with IFRS. |
| (8) | Statutes. Any reference to a statute refers to such statute and all rules and regulations made under it, as it or they may have been or may from time to time be amended or re-enacted, unless stated otherwise. |
| (9) | Computation of Time. A period of time is to be computed as beginning on the day following the event that began the period and ending at 9:00 p.m. on the last day of the period, if the last day of the period is a Business Day, or at 9:00 p.m. on the next Business Day if the last day of the period is not a Business Day. |
| (10) | Time References. References to days mean calendar days, unless stated otherwise. References to time are to London time, unless otherwise stated. |
| (11) | Person References. References to a Person also include its permitted successors and assigns. |
| (12) | Made Available, etc. References to “made available to Purchaser”, “provided to Purchaser” or “disclosed to Purchaser”, or derivative phrases thereof, mean, with respect to any information or document, that such information or document was posted to the Company Data Room at the close of business prior to the date hereof. |
| (13) | Subsidiary Actions. Whenever this Agreement requires a Subsidiary of the Company or Purchaser, as applicable, to take any action, such requirement shall be deemed to include an undertaking on the part of the Company or Purchaser, as applicable, to cause the Subsidiary to take such action. |
The schedules attached to this Agreement form an integral part of this Agreement for all purposes of it.
The Company and Purchaser agree that the Scheme will be implemented in accordance with and subject to the terms and conditions of this Agreement and the Scheme of Arrangement. Without limitation to the foregoing, at the Effective Time, the Scheme shall become effective with the result that, among other things, (1) all Scheme Shares will automatically transfer to AcquireCo, in consideration for which the Scheme Shareholders who are on the register of members of the Company at the Scheme Record Time will be entitled to receive CAD $2.40 per share in cash for each Scheme Share held at the Scheme Record Time, without interest (the “Consideration”), (2) the Company will become a wholly owned Subsidiary of AcquireCo and (3) the Scheme will be binding on all Scheme Shareholders, irrespective of whether or not such shareholders attended or voted at the Court Meeting or the General Meeting (and, if they attended and voted at any such meeting, whether or not they voted in favor).
| Section 2.2 | Order to Call Court Meeting. |
As soon as reasonably practicable after the date of this Agreement, the Company, pursuant to the Companies Law and in cooperation with Purchaser, shall prepare and file an application to the Court for an order to call the Court Meeting (the “Order to Call Court Meeting”), which shall include the Scheme Circular, prepared in accordance with Section 2.4, and provide:
| (1) | for the classes of Persons to whom notice is to be provided in respect of the Scheme and the Court Meeting and for the manner in which such notice is to be provided; |
| (2) | for confirmation of the Scheme Voting Record Time, the Notice Record Date for the Meetings and the Proposed Meeting Date; |
| (3) | that the required approvals for the Scheme Resolution shall be (a) a majority in number of the Scheme Shareholders present and voting, either in person or by proxy, representing at least seventy-five percent (75%) in value of the Scheme Shares held by such Scheme Shareholders present and voting, either in person or by proxy (the “Required Scheme Approval”) and (b) to the extent required, the Required MI 61-101 Approval (with a reasonably detailed explanation as to why such Required MI 61-101 Approval is necessary); |
| (4) | that, in all other respects, the terms, restrictions and conditions of the Company’s Constitutional Documents, including quorum requirements and all other matters, shall apply in respect of the Court Meeting (subject to any specific direction to the contrary given by the Court); |
| (5) | that the Court Meeting may be adjourned or postponed from time to time by the |
| Company in accordance with the terms of this Agreement without the need for additional approval of the Court; |
| (6) | other matters that are customary, or that are requested or required by the Court; and |
| (7) | for such other matters as Purchaser or the Company may reasonably require, subject to obtaining the prior consent of the other, such consent not to be unreasonably withheld, conditioned or delayed. |
Subject to the terms of this Agreement and any specific directions of the Court, the Company shall:
| (1) | convene and conduct the Court Meeting in accordance with the Order to Call Court Meeting and applicable Law, using the Scheme Circular prepared in accordance with Section 2.4, on (x) the Proposed Meeting Date or (y) if such Proposed Meeting Date is not confirmed in the Order to Call Court Meeting, then a date as soon as reasonably practicable after the Proposed Meeting Date, after the Order to Call Court Meeting has been obtained, and, in either case, not adjourn, postpone or cancel (or propose the adjournment, postponement or cancellation of) the Court Meeting without the prior written consent of Purchaser, except in the case of an adjournment or postponement as required for quorum purposes pursuant to Section 2.3(12) or as required or permitted under Section 5.4(5) or in the event that the chairman of the General Meeting considers in good faith that it is necessary to adjourn the Court Meeting in order to ensure a proper conduct of the proceedings at that meeting; |
| (2) | convene and conduct the General Meeting in accordance with the Company’s Constitutional Documents and applicable Law, on the same date as the Court Meeting and as soon as practicable after the Court Meeting has concluded, and not adjourn, postpone or cancel (or propose the adjournment, postponement or cancellation of) the General Meeting without the prior written consent of Purchaser, except in the case of an adjournment or postponement as required for quorum purposes pursuant to Section 2.3(12) or as required or permitted under Section 5.4(5) or in the event that the chairman of the General Meeting considers in good faith that it is necessary to adjourn the General Meeting in order to ensure a proper conduct of the proceedings at that meeting; |
| (3) | set the Scheme Voting Record Time as the record time for purposes of determining the Persons who are entitled to attend and vote at each of the Court Meeting and the General Meeting; |
| (4) | subject to the terms of this Agreement, recommend that the Scheme Shareholders vote in favor of the Scheme Resolutions at the Court Meeting and the Company Shareholders vote in favor of the General Meeting Resolutions at the General Meeting and solicit proxies in favor of the approval of the Scheme Resolution and |
| the General Meeting Resolutions, including, if so requested by Purchaser, acting reasonably, using such mutually agreeable proxy solicitation services firms, which services shall be paid one-half by Purchaser and one-half by the Company, and cooperating with any Persons engaged by Purchaser to solicit proxies in favor of the approval of the Scheme Resolution and the General Meeting Resolutions; |
| (5) | provide Purchaser with copies of or access to information regarding each of the Court Meeting and the General Meeting generated by any dealer or proxy solicitation services firm, as requested from time to time by Purchaser; |
| (6) | permit Purchaser, on behalf of the Company Board, directly or through a proxy solicitation services firm, to actively solicit proxies in favor of the Scheme Resolution and the General Meeting Resolutions on behalf of the Company Board in compliance with Law and disclose in the Scheme Circular that Purchaser may make such solicitations; |
| (7) | consult with Purchaser in fixing the date of the Meetings, give notice to Purchaser of the Meetings and allow Purchaser’s Representatives and legal counsel to attend each of the Meetings; |
| (8) | promptly advise Purchaser, at such times as Purchaser may reasonably request and at least on a daily basis on each of the last ten (10) Business Days prior to the date of the Meetings, as to the aggregate tally of the proxies received by the Company in respect of each of the Scheme Resolution and the General Meeting Resolutions; |
| (9) | promptly advise Purchaser of any communication (written or oral) from any Company Shareholder in opposition to the Scheme and the details thereof; |
| (10) | not change any matters in connection with the Court Meeting or the General Meeting, unless in each case in the event required by order of the Court or applicable Law or as approved in writing by Purchaser, acting reasonably; |
| (11) | at the request of Purchaser from time to time, provide Purchaser with a list (in both written and electronic form) of (i) the Company Shareholders, together with their addresses and respective holdings of Ordinary Shares, (ii) the names, addresses and holdings of all Persons having rights issued by the Company to acquire Ordinary Shares (including all Company Securityholders), and (iii) participants and book-based nominee registrants such as CDS and CREST, and beneficial owners of Ordinary Shares, together with their addresses and respective holdings of Ordinary Shares. The Company shall from time to time require that its registrar and transfer agent furnish Purchaser with such additional information, including updated or additional lists of Company Shareholders, and lists of securities positions and other assistance as Purchaser may reasonably request in order to be able to communicate with respect to the Scheme with the Company Shareholders and with such other Persons as are entitled to vote on the Scheme Resolution or the General Meeting Resolutions; and |
| (12) | if the Company is unable to obtain a quorum of the Scheme Shareholders or the Company Shareholders, as applicable, with respect to the Court Meeting or the General Meeting, postpone or adjourn the date of each of the Meetings to the extent (and only to the extent) necessary in order to obtain such a quorum and the Company shall use its reasonable best efforts to obtain such a quorum as promptly as practicable (in accordance with the Order to Call Court Meeting (in the case of the Court Meeting) or that Company’s Constitutional Documents (in the case of the General Meeting) and applicable Law (in each case)), in which case the other provisions of this Section 2.3 shall apply with respect to any such postponed or adjourned Meetings. |
| Section 2.4 | The Scheme Circular. |
| (1) | The Company shall as soon as reasonably practicable after the date of this Agreement, prepare and complete, in consultation with Purchaser, the Scheme Circular, together with any other documents required by the Company’s Constitutional Documents and applicable Law in connection with the Meetings and the Scheme, and the Company shall, promptly after obtaining the Order to Call Court Meeting (and, in any event, no earlier than the Notice Record Date for the Meetings and no later than three (3) Business Days after the Notice Record Date for the Meetings), cause the Scheme Circular and such other documents to be filed under Securities Laws and sent to each Company Shareholder and other Person as required by the Order to Call Court Meeting, the Company’s Constitutional Documents and applicable Law, in each case so as to permit the Meetings to be held by the date determined pursuant to Section 2.3(1) and Section 2.3(2). |
| (2) | The Company shall ensure that the Scheme Circular complies in all material respects with applicable Law, does not contain any Misrepresentation (except that the Company shall not be responsible for any information relating to Purchaser and its Subsidiaries) and provides the Company Shareholders with sufficient information to permit each of them to form a reasoned judgement concerning the matters to be placed before the Meetings. |
| (3) | Without limiting the generality of the foregoing, the Scheme Circular must include (a) a statement that the Company Board has unanimously, after receiving legal and financial advice, determined that the terms of the Scheme are fair and reasonable and unanimously recommends that the Scheme Shareholders vote in favor of the Scheme Resolution at the Court Meeting and the Company Shareholders vote in favor of the General Meeting Resolutions at the General Meeting (collectively, the “Company Board Recommendation”) and (b) a statement that the Supporting Equityholders have entered into the Support Agreements and, pursuant thereto, have agreed to vote all their Ordinary Shares in favor of the Scheme Resolution at the Court Meeting and in favor of the General Meeting Resolutions at the General Meeting. |
| (4) | The Company shall give Purchaser and its legal counsel a reasonable opportunity to review and comment on drafts of the Scheme Circular, the application for the Order to Call Court Meeting, the application for Scheme Order and other related documents, and shall give reasonable consideration to any comments made by Purchaser and its counsel, and agrees that all information to the extent relating to Purchaser and its Subsidiaries included in the foregoing must be in a form and content satisfactory to Purchaser. |
| (5) | Purchaser shall provide all necessary information concerning Purchaser and its Subsidiaries that is required by Law to be included by the Company in the Scheme Circular or other related documents to the Company in writing, use commercially reasonable efforts to obtain any necessary consents from any of its advisors to the use of any financial, technical or other expert information required to be included in the Scheme Circular and to the identification in the Scheme Circular of each such advisor and shall use commercially reasonable efforts to ensure that such information does not contain any Misrepresentation concerning Purchaser or its Subsidiaries. |
| (6) | Purchaser will reasonably cooperate with and assist the Company in seeking the Order to Call Court Meeting and the Scheme Order, including by providing the Company on a timely basis any information reasonably required to be supplied by Purchaser in connection therewith and by causing AcquireCo to appear by counsel before the Court at the Court Hearing in order to undertake to be bound by and to comply with the provisions of the Scheme of Arrangement. |
| (7) | Each Party shall promptly notify the other Party if it becomes aware that the Scheme Circular contains a Misrepresentation, or otherwise requires an amendment or supplement or if the Court or a Securities Authority has requested further explanation or comment. The Parties shall cooperate in the preparation of any such amendment or supplement or explanation or commentary as required or appropriate, and the Company shall promptly mail, file or otherwise publicly disseminate any such amendment or supplement to the Company Shareholders and, if required by the Court or by applicable Law, file the same with the Securities Authorities or any other Governmental Entity as required. |
| (8) | No filing or public dissemination of, or amendment or supplement to, the Scheme Circular will be made by the Company without providing Purchaser a reasonable opportunity to review and comment thereon and without Purchaser’s prior written consent, not to be unreasonably withheld, conditioned or delayed. |
| (1) | If the Required Shareholder Approvals are obtained, as soon as reasonably practicable after the Meetings and in any event within ten (10) Business Days thereafter unless otherwise agreed to in writing by the Company and Purchaser each acting reasonably, the Company shall, pursuant to the Companies Law and in |
| cooperation with Purchaser, prepare and file an application to the Court to hold the Court Hearing and (subject to the satisfaction or waiver of each of the conditions precedent set forth in Section 6.1 (excluding Section 6.1(4)), Section 6.2 and Section 6.3) issue the Scheme Order. |
| (2) | As soon as reasonably practicable after the satisfaction or waiver of all of the conditions precedent set forth in Sections 6.1(1), 6.2(4) and 6.2(5) and in any event within ten (10) Business Days thereafter unless otherwise agreed to in writing by the Company and Purchaser each acting reasonably, the Company shall in cooperation with the Purchaser (and subject to the Company and the Purchaser each confirming to the other, in their entire discretion, that all of the remaining conditions precedent (excluding Section 6.1(4)) have been satisfied or waived) confirm to the Court (either in person or by correspondence, as the Court may direct) that all of the conditions precedent set forth in Section 6.1 (excluding Section 6.1(4)), Section 6.2 and Section 6.3 have been satisfied or waived and request the Court to issue the Scheme Order. |
| Section 2.6 | Court Proceedings. |
In connection with all Court proceedings relating to obtaining the Order to Call Court Meeting and the Scheme Order, the Company shall:
| (1) | diligently pursue, and cooperate with Purchaser in diligently pursuing, the Order to Call Court Meeting and the Scheme Order; |
| (2) | provide legal counsel to Purchaser with a reasonable opportunity to review and comment upon drafts of all material to be filed with the Court (including any affidavits) in connection with the Scheme, and give reasonable consideration to all such comments; |
| (3) | provide copies of any notice of appearance, evidence or other documents served on the Company or its legal counsel in respect of the application for the Order to Call Court Meeting or the Scheme Order or any appeal from them, and any notice, written or oral, indicating the intention of any Person to appeal, or oppose the granting of, the Order to Call Court Meeting or the Scheme Order; |
| (4) | ensure that all material filed with the Court in connection with the Scheme is consistent with this Agreement and the Scheme of Arrangement (subject to any amendments required by the Court and as agreed between the Purchaser and the Company); |
| (5) | not file any material with the Court in connection with the Scheme or serve any such material, or agree to modify or amend any material so filed or served, except as contemplated by this Agreement or with Purchaser’s prior written consent, such consent not to be unreasonably withheld, conditioned or delayed; provided that Purchaser is not required to agree or consent to any increase in or variation in the form of the Consideration or other modification or amendment to such filed or |
| served materials that expands or increases Purchaser’s obligations, or diminishes or limits Purchaser’s rights, set forth in any such filed or served materials or under this Agreement; |
| (6) | oppose any proposal from any Person that the Scheme Order contain any provision inconsistent with this Agreement, and if required by the terms of the Scheme Order or by Law to return to Court with respect to the Scheme Order do so only after notice to, and in consultation and cooperation with, Purchaser; and |
| (7) | not object to legal counsel to Purchaser making such submissions on the hearing of the motion for the Order to Call Court Meeting and the application for the Scheme Order as such counsel considers appropriate for the purposes of obtaining the Order to Call Court Meeting or the Scheme Order. |
| Section 2.7 | Scheme Order and Effective Date. |
| (1) | The Company shall, to the extent permitted by applicable Law, amend the Scheme of Arrangement from time to time at the reasonable request of Purchaser in accordance with the terms of this Agreement; provided that no such amendment is inconsistent with the Order to Call Court Meeting or the Scheme Order or is prejudicial to the Company or the Company Securityholders. |
| (2) | The Company shall file a copy of the Scheme Order with the Guernsey Registry as soon as practicable, but in any event within seven (7) days, after its making. |
| (3) | The closing of the Scheme (the “Closing”) will take place at 9:00 a.m., New York City time, at the offices of Cravath, Swaine & Moore LLP, 825 Eighth Avenue, New York, New York 10019, (a) on such date after the satisfaction or (to the extent permitted by Law) waiver of the conditions set forth in Article 6 (other than those conditions that by their terms are to be satisfied at the Closing, but subject to the satisfaction or (to the extent permitted by Law) waiver of those conditions at the Closing) as the applicable Parties are set to appear before the Court and request, pursuant to Section 2.5(2), the Court to issue the Scheme Order, or (b) at such other time, date and location as may be agreed to in writing by the Parties. |
| (4) | The Scheme will become effective upon the filing with the Guernsey Registry of the Scheme Order sanctioning the Scheme under Part VIII of the Companies Law. The date and time at which the Scheme becomes effective is referred to in this Agreement as the “Effective Time”. |
| Section 2.8 | Treatment of Certain Company Convertible Securities and ESAP. |
| (1) | Company Options. If a Company Optionholder exercises his or her Company Options following the date of this Agreement and holds Scheme Shares at the Scheme Record Time, such Company Optionholder shall be treated as a Scheme Shareholder and shall receive the Consideration under the Scheme of Arrangement. |
| The right to vote in respect of the Scheme Resolution and the General Meeting Resolutions shall extend to any Ordinary Shares which are issued prior to the Scheme Voting Record Time as a result of the valid exercise of any Company Options. Each Company Option which is outstanding and which has not been exercised prior to the Effective Date (and whether vested or unvested): (i) that has a per share exercise price less than the Consideration shall be canceled and terminated at the Effective Time and the holder of such Company Option shall automatically be entitled to be paid by the Company, in full satisfaction of the rights of such holder with respect thereto, an amount equal to (a) the excess of the Consideration over the per share exercise price of such Company Option, multiplied by (b) the total number of Ordinary Shares subject to such Company Option (which, in the case of a Company Option that vests in whole or in part on the basis of achievement of performance goals, shall be determined as if performance were achieved at 100% of targeted performance) (it being understood and agreed that such exercise price shall not actually be paid to the Company by the Company Optionholder); and (ii) that has a per share exercise price equal to or greater than the Consideration shall be canceled and terminated at the Effective Time, without any payment in respect thereof (or, if expressly required by the Company Option Plan or applicable Law, for payment of $0.01 in respect of each Ordinary Share covered by the Company Option), in full satisfaction of the rights of such holder with respect thereto. At the Effective Time, each Company Optionholder shall cease to be a holder of Company Options, such holder’s name shall be removed from the applicable register, the Company Option Plan and all agreements and other arrangements relating to the Company Options shall be terminated and be of no further force and effect. Promptly after the Effective Time (but in any event not later than the next payroll date following the Effective Time; provided that, if the Effective Time occurs within five (5) Business Days prior to such payroll date, such payment may instead be made on the immediately following payroll date), the Company shall pay to Company Optionholders any amounts due pursuant to this Section 2.8(1), subject to Section 2.10; such payment shall be made through its payroll systems with respect to Company Optionholders to the extent required by applicable Law or to the extent consistent with the Company’s customary payroll processes. |
| (2) | ESAP. Prior to the Effective Time, the Company shall take all actions necessary to (i) terminate the ESAP effective as of, and contingent upon, the Effective Time and (ii) suspend any new contribution periods following the date hereof and through such termination. Any outstanding Ordinary Shares held in the ESAP Trust shall be treated as Scheme Shares for purposes of this Agreement, and the Consideration received by the ESAP Trust therefor shall be appropriately applied to the accounts of the ESAP participants and distributed to such ESAP participants within ninety (90) days following the Effective Time, in accordance with the terms of the ESAP. |
| (3) | Company Warrants. If a Company Warrantholder exercises its Company Warrants following the date of this Agreement and holds Scheme Shares at the Scheme Record Time, such Company Warrantholder shall be treated as a Scheme Shareholder and |
| shall receive the Consideration under the Scheme of Arrangement. The right to vote in respect of the Scheme Resolution and the General Meeting Resolutions will extend to any Ordinary Shares which are issued prior to the Scheme Voting Record Time as a result of the valid exercise of any Company Warrants. Each Company Warrant that is outstanding and that has not been exercised prior to the Effective Date shall remain outstanding in accordance with its terms and shall, from and after the Effective Time, represent only the right to be paid by the Company, in full satisfaction of the rights of such holder with respect thereto, an amount in cash equal to the Consideration multiplied by the total number of Ordinary Shares subject to such Company Warrant (less applicable withholdings and other source deductions), subject to payment to the Company by such holder of the per share exercise price of such Company Warrant multiplied by the total number of Ordinary Shares subject to such Company Warrant. |
| (4) | Exchangeable Preferred Shares. The Company shall cause the board of directors of NYX Digital Gaming (Canada) ULC to, in accordance with Article 26, establish a “Redemption Date” (as such term is defined in Article 26) for the redemption of each outstanding Exchangeable Preferred Share pursuant to and in accordance with Article 26 in exchange for a number of Ordinary Shares equal to the Effective Exchange Ratio (as such term is defined in Article 26) in effect on the “Redemption Date”. In accordance with Article 26, such “Redemption Date” shall be the Effective Date. The Company shall cause the board of directors of 1044200 B.C. Ltd. to exercise its overriding Redemption Call Right (as such term is defined in the Callco Support Agreement) in accordance with Article 26 and the Callco Support Agreement, such that on the Effective Date, each Exchangeable Preferred Share will be purchased by 1044200 B.C. Ltd. for a number of Ordinary Shares equal to the Effective Exchange Ratio (as such term is defined in Article 26) in effect on the Effective Date |
| (5) | Corporate Actions. At or prior to the Effective Time, the Company, the Company Board and the compensation committee thereof, as applicable, shall adopt any resolutions and take any actions that are necessary or advisable to effectuate the provisions of this Section 2.8. |
| Section 2.9 | Payment of Consideration. |
| (1) | Purchaser shall, by no later than the Closing, provide or cause to be provided to the Depositary sufficient funds to be held in escrow (the terms and conditions of such escrow to be satisfactory to the Company and Purchaser, each acting reasonably) to pay the aggregate Consideration due to the Scheme Shareholders pursuant to the Scheme of Arrangement (including, for the avoidance of doubt, the aggregate Consideration due to ESAP participants whose accounts hold Ordinary Shares that shall be treated as Scheme Shares). Purchaser shall, or shall cause AcquireCo or the Company, as applicable, to, make the payments required under Section 2.8 to the applicable holders of the Company Convertible Securities pursuant to the terms of Section 2.8. |
| Section 2.10 | Withholding Taxes. |
| (1) | Purchaser, AcquireCo, the Company and the Depositary, as applicable, shall be entitled to deduct and withhold from any consideration otherwise payable or otherwise deliverable to any Company Securityholder, including the Company Optionholders, under this Agreement or the Scheme of Arrangement (including with respect to proceeds from the termination of the ESAP) such amounts as Purchaser, AcquireCo, the Company or the Depositary, as applicable, are required to deduct and withhold from such consideration under any provision of any Laws in respect of Taxes; provided that in the event Purchaser, AcquireCo or the Depositary becomes aware of any withholding requirements (other than in respect of employment or payroll Taxes or U.S. federal backup withholding) that may be applicable to any payments to be made pursuant to this Agreement or the Scheme of Arrangement, Purchaser or the Depositary shall inform the Company as soon as reasonably practicable (but in any event no later than the 10th day before the Closing, or if such awareness first occurs after such 10th day before the Closing, then promptly after such awareness occurs) of the amount to be withheld and the basis for such withholding and shall reasonably cooperate with the Company to obtain any available exemptions from or reductions of such withholding. Any such amounts will be deducted, withheld and remitted from the consideration payable pursuant to this Agreement or the Scheme of Arrangement and shall be treated for all purposes under this Agreement or the Scheme of Arrangement, as applicable, as having been paid to the Company Securityholder in respect of which such deduction, withholding and remittance was made; provided that such deducted and withheld amounts are actually remitted to the appropriate Governmental Entity. |
| (2) | Pursuant to U.S. Treasury Regulation Sections 1.1445-2(c)(3) and 1.897-2(h), the Company shall deliver (or cause to be delivered) to AcquireCo prior to the Closing a statement (in a form reasonably acceptable to Purchaser) of each of the Regarded U.S. Subsidiaries and any other Subsidiary of the Company that is a “United States person” (within the meaning of Section 7701(a)(30) of the Code) certifying that the equity interests of such Subsidiary do not constitute “United States real property interests” (within the meaning of Section 897(c)(1) of the Code). |
| Section 2.11 | Announcement and Shareholder Communications. |
Purchaser and the Company shall each publicly announce the transactions contemplated hereby promptly following the execution of this Agreement, the text and timing of each Party’s announcement to be approved by the other Party in advance, each acting reasonably. Purchaser and the Company agree to cooperate in the preparation of presentations, if any, to the Company Shareholders regarding the transactions contemplated by this Agreement and no Party shall:
| (1) | issue any news release or otherwise make public announcements with respect to this Agreement or the transactions contemplated hereby without the consent of the other Party (which consent shall not be unreasonably withheld, conditioned or delayed); |
| (2) | make any filing with any Governmental Entity with respect thereto without prior consultation with the other Party; |
provided, however, that the foregoing shall be subject to each Party’s overriding obligation to make any disclosure or filing under Law or stock exchange rules, and the Party making such disclosure or filing shall use commercially reasonable efforts to give prior written notice to the other Party and reasonable opportunity to review and comment on the disclosure or filing, and if such prior notice is not possible, to give such notice immediately following the making of such disclosure or filing. Notwithstanding the foregoing, nothing in this Section 2.11 shall limit the ability of any Party to make disclosures that are consistent in all material respects with the prior public disclosures by the Parties regarding this Agreement or the transactions contemplated hereby, provided that such prior public disclosures were made in compliance with this Section 2.11.
| Section 2.12 | Takeover Offer. |
| (1) | At any time prior to the Effective Time, and subject to giving the Company no less than 5 Business Days’ notice of its intention to do so, Purchaser and AcquireCo shall be entitled to effect the Acquisition by way of the Offer rather than the Scheme (such election being an “Offer Election”), if Purchaser reasonably determines, in good faith, that effecting the Acquisition by way of the Offer would reasonably be expected to increase the likelihood that the Acquisition will be consummated. |
| (2) | In the event of an Offer Election, the Parties agree (i) to cooperate fully and in good faith to make appropriate amendments to the provisions of this Article 2 and to provide for such other modifications to this Agreement, in each case, to the extent such amendment or modification is necessitated by effecting the Acquisition by way of the Offer rather than the Scheme; provided, however, that no such amendment or modification shall (a) alter or change in any way (including as to the amount or kind) the Consideration, (b) adversely affect in any material respect the Tax treatment of Company Securityholders as a result of the Acquisition or (c) adversely and materially affect any Party’s ability to satisfy any of the conditions set forth in Article 6; provided, further, that all other provisions of this Agreement that are not required to be amended or modified in order to give effect to the Offer Election shall apply to the Offer and the subsequent consummation of the Acquisition; (ii) that Purchaser shall prepare the definitive agreement providing for all such amendments and modifications to this Agreement for execution by the Parties and that the Parties shall use their respective reasonable best efforts to execute such definitive agreement as promptly as practicable and (iii) that each Party shall use its reasonable best efforts to cause the transactions contemplated by this Agreement, as so amended and modified, to be consummated as soon as practicable thereafter and in accordance with the terms of this Agreement, as so amended and modified. |
| Section 2.13 | Designation of AcquireCo. |
Prior to the Closing and subject to obtaining the consent of the Court (to the extent required), Purchaser may designate any of its wholly owned Subsidiaries (including, for the avoidance of doubt, a newly-formed wholly owned Subsidiary) to act in place of, or jointly with, AcquireCo, and to perform all or any part of the obligations of AcquireCo under this Agreement, in which event all references herein to AcquireCo will be deemed to refer to such Subsidiary, or jointly to AcquireCo and such Subsidiary, as appropriate; provided, however, that no such designation will in any event limit or affect the obligations of Purchaser or AcquireCo under this Agreement to the extent not performed by such Subsidiary; provided, further, that Purchaser shall not be permitted to designate any such Subsidiary if such designation would reasonably be expected to (a) adversely affect in any material respect the Tax treatment of Company Securityholders as a result of the Acquisition or (b) adversely and materially affect any Party’s ability to satisfy any of the conditions set forth in Article 6.
Article 3
REPRESENTATIONS AND WARRANTIES
| Section 3.1 | Representations and Warranties of the Company. |
| (1) | Except as set forth in the correspondingly numbered Section of the Company Disclosure Letter (or in any other Section of the Company Disclosure Letter to the extent that it is reasonably apparent based on the content and context of such disclosure that such disclosure is applicable to the representations and warranties contained in such other Section), or as disclosed in the Company Filings publicly filed prior to the date of this Agreement (excluding all disclosures (other than statements of historical fact) in any “Risk Factors” or similar section, however captioned, and any disclosures included in any such Company Filings that are cautionary, predictive or forward looking in nature), the Company represents and warrants to Purchaser and AcquireCo, as of the date of this Agreement, as set forth in Schedule C, and acknowledges and agrees that Purchaser and AcquireCo are relying upon such representations and warranties in connection with the entering into of this Agreement and the completion of the Acquisition. |
| (2) | The representations and warranties of the Company contained in this Agreement shall not survive the completion of the Acquisition and shall expire and be terminated at the Effective Time. |
| (3) | Notwithstanding any other provision of this Agreement, except in the event of fraud, each of Purchaser and AcquireCo acknowledges and agrees that neither the Company nor any other Person on behalf of the Company, has made, or is making any representation or warranty whatsoever, express or implied (and, except in the event of fraud), neither Purchaser nor AcquireCo has relied on any representation, warranty or statement of any kind by the Company or any of its Affiliates or any of their respective agents or Representatives, including any representation, warranty or |
| statement as to the accuracy or completeness of information), beyond those expressly given in this Section 3.1, including any implied warranty or representation as to condition, merchantability, suitability or fitness for a particular purpose or trade as to any of the assets of the Company or any of its Subsidiaries. Without limiting the generality of the foregoing, except in the event of fraud, it is understood that any information, documents or other materials (including any such materials contained in any “data room” or reviewed by Purchaser, AcquireCo or any of its respective Affiliates or Representatives pursuant to the Confidentiality Agreement (including, for the avoidance of doubt, any cost estimates, financial or other projections or other predictions that may be contained or referred to such information, documents or other materials) or management presentations that have been or shall hereafter be provided to Purchaser or AcquireCo or any of their respective Affiliates or Representatives are not and will not be deemed to be representations or warranties of the Company, and no representation or warranty is made with respect thereto or the accuracy or completeness thereof except as may be expressly set forth in this Agreement. |
| Section 3.2 | Representations and Warranties of Purchaser and AcquireCo. |
| (1) | Except as disclosed in the Purchaser Filings publicly filed prior to the date of this Agreement (excluding all disclosures (other than statements of historical fact) in any “Risk Factors” or similar section, however captioned, and any disclosures included in any such Purchaser Filings that are cautionary, predictive or forward looking in nature), Purchaser and AcquireCo, as applicable, represent and warrant to the Company, as of the date of this Agreement, as set forth in Schedule D, and acknowledges and agrees that the Company is relying upon such representations and warranties in connection with the entering into of this Agreement and the completion of the Acquisition. |
| (2) | The representations and warranties of Purchaser contained in this Agreement shall not survive the completion of the Acquisition and shall expire and be terminated at the Effective Time. |
| (3) | Notwithstanding any other provision of this Agreement, except in the event of fraud, the Company acknowledges and agrees that none of Purchaser, AcquireCo, nor any other Person on behalf of Purchaser or AcquireCo, has made, or is making any representation or warranty whatsoever, express or implied (and, except in the event of fraud, the Company has not relied on any representation, warranty or statement of any kind by Purchaser, AcquireCo or any of their respective Affiliates or any of their respective agents or Representatives, including any representation, warranty or statement as to the accuracy or completeness of information), beyond those expressly given in this Section 3.2, including any implied warranty or representation as to condition, merchantability, suitability or fitness for a particular purpose or trade as to any of the assets of Purchaser, AcquireCo or any of their respective Subsidiaries. Without limiting the generality of the foregoing, except in the event of fraud, it is understood that any information, documents or other materials (including any such |
| materials reviewed by the Company or any of its respective Affiliates or Representatives pursuant to the Confidentiality Agreement (including, for the avoidance of doubt, any cost estimates, financial or other projections or other predictions that may be contained or referred to such information, documents or other materials) or management presentations that have been or shall hereafter be provided to the Company or any of their respective Affiliates or Representatives are not and will not be deemed to be representations or warranties of Purchaser and AcquireCo, and no representation or warranty is made with respect thereto or the accuracy or completeness thereof except as may be expressly set forth in this Agreement |
| Section 4.1 | Conduct of Business by the Company Pending the Acquisition. |
Between the date of this Agreement and the earliest to occur of the Effective Time and the date, if any, on which this Agreement is terminated pursuant to Article 7, except (i) as may be required by Law, (ii) as may be agreed in writing by Purchaser (which consent shall not be unreasonably withheld, delayed or conditioned), (iii) as required pursuant to this Agreement, or (iv) as set forth in Section 4.1 of the Company Disclosure Letter, (x) the Company shall, and shall cause each of its Subsidiaries to, use commercially reasonable efforts to carry on its business in the Ordinary Course and use commercially reasonable efforts to preserve substantially intact its current business organizations, to keep available the services of its then-current officers and employees and to preserve its relationships with Governmental Entities (including applicable Gaming Authorities), customers, suppliers, licensors, licensees, distributors, wholesalers, lessors and others having significant business dealings with it, and to preserve the goodwill of the Company or any of its Subsidiaries, provided, however, that no action by the Company or its Subsidiaries with respect to matters addressed by any provision of sub-clause (y) of this Section 4.1 shall be deemed a breach of the covenants contained in this Section 4.1 unless such action would constitute a breach of one or more specific provisions of sub-clause (y) of this Section 4.1, and (y) the Company shall not and shall not permit any of its Subsidiaries to:
| (1) | amend or otherwise change its Constitutional Documents; |
| (2) | except for transactions among the Company and its wholly owned Subsidiaries or among the Company’s wholly owned Subsidiaries, issue, sell, pledge, dispose, encumber or grant any shares of capital stock (or other equity interests) of the Company or any of its Subsidiaries, or any options, warrants, convertible securities or other rights of any kind to acquire any such shares of capital stock (or other equity interests) or rights settled in cash or other property based in whole or in part on the value of such shares of capital stock (or other equity interests); provided, however, that the Company may issue Ordinary Shares upon the exercise, settlement, conversion or exchange, as applicable, of any outstanding Company Convertible Security, in each case, issued prior to the date hereof; |
| (3) | (i) declare, authorize, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to the Company’s or any of its Subsidiaries’ capital stock (or other equity interests), other than dividends paid by any wholly owned Subsidiary of the Company to the Company or any other wholly owned Subsidiary of the Company; (ii) split, combine, reclassify or amend the terms of any shares of capital stock or other equity interests of the Company or any of its Subsidiaries; (iii) redeem, purchase or otherwise acquire any shares of the Company’s capital stock or other equity interests or securities; or (iv) amend, modify or supplement any Company Equity Documents or the terms of any Company Convertible Securities; |
| (4) | (i) increase the wages, salaries, bonuses, severance, change in control, retention, termination pay or other compensation or benefits to any Participant except for increases in compensation or benefits (other than change in control or retention compensation or benefits) made in the Ordinary Course payable to any non-executive employee of the Company and its Affiliates who receives, as of the date hereof, an annual base salary of $150,000 or less; (ii) enter into, adopt, terminate or amend (A) any collective bargaining agreement or other agreement with a labor union or other labor organization, (B) any severance or change-in-control arrangement or other Company Benefit Plan or (C) any plan, program, agreement, arrangement or policy that would be a Company Benefit Plan if in effect on the date hereof (except as otherwise permitted by sub-clause (iii) of this Section 4.1(y)(4)); (iii) enter into any employment agreement or offer letter other than (A) customary employment agreements and offer letters for new hires located outside of the United States (w) in the Ordinary Course, (x) as customary in the applicable jurisdiction, (y) as required by applicable Law or (z) that are terminable on less than ninety (90) days’ notice without penalty and without severance pay exceeding the amount required under applicable Law, (B) employment agreements and offer letters with new hires located in the United States who receive an annual base salary of $150,000 or less, to the extent necessary (I) to replace a departing employee and providing for compensation and benefits substantially similar to those provided to the departing employee or (II) to fill a newly created position that is required for legitimate business purposes and providing compensation and benefits consistent with those generally provided to similarly situated employees of the Company, and (C) extension of employment agreements with individuals located in or outside of the United States who receive an annual base salary of $150,000 or less, in the Ordinary Course (it being understood that such Ordinary Course extensions arise only to the extent the term of such employment agreement is subject to expiration or renewal on or after the date hereof and prior to the Effective Time) and without an increase in compensation or benefits exceeding 10% of the value of such compensation and benefits immediately preceding such increase; (iv) plan, announce, implement or effect any reduction in force or layoff with respect to any group of two (2) or more employees of the Company or any Subsidiary thereof; or (v) transfer or relocate (x) any individual employee with an annual base salary of $150,000 or more or (y) any |
| group of five (5) or more employees, in each case, other than to fill an open position with the Company; |
| (5) | grant, confer or award, or accelerate the vesting or settlement of, options, convertible securities, restricted stock, restricted stock units or other rights to acquire any capital stock of the Company or any of its Subsidiaries or any equity-based award based in whole or in part on the capital stock of the Company or any of its Subsidiaries, whether settled in cash, securities or other property, or take any action not otherwise contemplated by this Agreement to cause to be exercisable any otherwise unexercisable Company Option; |
| (6) | acquire (including by merger, consolidation, or acquisition of stock or assets) any ownership interests in any corporation, partnership, limited liability company, other business organization or any division or material amount of assets thereof, or make any investment or capital contribution in or to any Person, except with respect to any acquisition of any ownership interests in any corporation, partnership, limited liability company, other business organization or any division or material amount of assets with a purchase price (assuming payment of all contingent consideration, deferred payments, retention payments and other similar payments) not exceeding $3,000,000 in the aggregate with all other such acquisitions (including, for the avoidance of doubt, any acquisitions pursuant to Company Material Contracts of the type described in Section (20)(a)(iii) of Schedule C); provided, however, that in no event shall the Company or any of its Subsidiaries acquire any such interest if (x) after giving pro forma effect to such acquisition, the Company’s consolidated net income (loss) would reasonably be expected to increase or decrease by more than $500,000 or (y) such acquisition or investment would require any Person to make, give or obtain any additional consent, registration, approval, finding of suitability, license, declaration, notice or filing under any Gaming Law or would reasonably be expected to jeopardize any regulatory consent, registration, approval, authorization, license, application or finding of suitability of Purchaser or the Company or any of their respective Subsidiaries; |
| (7) | sell, dispose of, transfer, lease, license, mortgage, pledge or encumber any material, individually or in the aggregate, assets of the Company and its Subsidiaries (excluding Company Owned IP or Licensed IP Rights, which are addressed in Section 4.1(y)(8) below), taken as a whole, other than in the Ordinary Course; |
| (8) | sell, dispose of, transfer, lease, mortgage, pledge or encumber any (i) Company Registered IP, (ii) other Company Owned IP or (iii) Licensed IP Rights; |
| (9) | license or grant any covenants not to sue with respect to any (i) Company Registered IP, (ii) other material Company Owned IP or (iii) material Licensed IP Rights, in each case other than (A) grants of non-exclusive licenses or covenants not to sue in the Ordinary Course (excluding grants, directly or indirectly, of material, individually or in the aggregate, licenses to or covenants not to sue competitors) and (B) exclusive licenses that may be terminated on ninety (90) days’ or less notice; |
| (10) | (i) include any Company Owned IP in any patent pool or subject any Company Owned IP to a license or covenant not to sue, or an obligation to grant a license or covenant not to sue as part of a patent pool, or (ii) include any Company Owned IP in any arrangement with a competitor of the Company or any of its Subsidiaries under which Company Owned IP may be licensed or made subject to a covenant not to sue to any third parties together with any Intellectual Property Rights owned by such competitor; |
| (11) | abandon, cancel, allow to lapse or fail to maintain any Company Registered IP; provided, however, that the Company and its Subsidiaries may allow Trademarks included in the Company Registered IP that the Company and its Subsidiaries are no longer using or intend to discontinue using to lapse by not filing statements of use or declarations of continued use, as applicable, by the applicable final deadline for such filing; |
| (12) | enter into any exclusive supply arrangement other than in the Ordinary Course; provided, however, that the Company and its Subsidiaries may enter into any exclusive supply arrangements with respect to content with a term not exceeding six (6) months; |
| (13) | incur any Indebtedness or guarantee any Indebtedness of any Person (other than guarantees of Indebtedness of the Company or any of its wholly owned Subsidiaries), except for Indebtedness incurred under existing working capital facilities in the Ordinary Course, in each case, so long as following such incurrence the Company’s consolidated net Indebtedness (measured as Indebtedness for borrowed money less unrestricted cash and cash equivalents (excluding any cash and cash equivalents obtained through such incurrence), it being understood that the outstanding face amount of any letters of credit issued after the date of this Agreement shall be counted as Indebtedness for borrowed money for purposes of this calculation) does not exceed $320,000,000 (based on currency exchange rates as of the date of this Agreement); |
| (14) | (i) make any loan or advance to any Person other than a wholly owned Subsidiary of the Company, (ii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person (other than support arrangements for wholly owned Subsidiaries of the Company consistent with past practice), (iii) make or agree to make any capital expenditures except for (A) those contemplated by the capital expenditure budget for the relevant fiscal year, which capital expenditure budget has been made available to Purchaser prior to the date of this Agreement, or (B) any unbudgeted capital expenditures that do not exceed $350,000 in the aggregate or (iv) enter into any material new line of business outside of its existing business or engage in the conduct of business that would require the receipt of any additional Authorizations (including Gaming Approvals) of a Governmental Entity (including a Gaming Authority) in connection with the consummation of the Acquisition and the transactions contemplated hereby; |
| (15) | (i) materially modify, amend, cancel or terminate or waive, release or assign any material rights or claims with respect to, any Company Material Contract or enter into any Contract which, if entered into prior to the date hereof, would be a Company Material Contract, except in the Ordinary Course, in each case, other than Company Material Contracts of the type described in Section (20)(a)(xi) of Schedule C (for the avoidance of doubt, for which the Ordinary Course exception shall not apply), (ii) enter into any Contract that following consummation of the Acquisition could reasonably be expected to restrict or otherwise bind Purchaser or any of its Affiliates (other than the Company and its Subsidiaries) and that, in the case of this clause (ii), (x) contains “most favored nation”, “exclusivity” or similar provisions for the benefit of any third party, (y) contains discount, incentive or other similar arrangements that following consummation of the Acquisition would (or under certain circumstances could) obligate Purchaser or any of its Affiliates (other than the Company and its Subsidiaries) to provide its products or services to a third party at a cost below Purchaser’s or such Affiliate’s ordinary retail pricing for such product or service or (z) obligates or purports to obligate any existing or future non-controlled Affiliate of the Company (including any parent entity) to grant licenses to any Intellectual Property Rights or (iii) enter into any material Contract containing any “change of control”, “anti-assignment” or similar provisions that would be implicated by the transactions contemplated by this Agreement or containing termination or penalty provisions that would be triggered by the consummation of the transactions contemplated by this Agreement; |
| (16) | materially modify, amend, cancel or terminate any material Brand/IP License Agreement (other than with respect to licenses for commercially available software or hardware) or enter into any new Brand/IP License Agreement (A) with a term of more than seven (7) years, (B) providing for a guarantee or advance (or similar payment) of more than $500,000, with respect to an individual license agreement, or $2,000,000, with respect to all license agreements in the aggregate, (C) which contains restrictions on the ability of the Company or any of its Affiliates (including, from and after the Effective Time, Purchaser) to enter into or maintain any Contract of the type described in the definition of Brand/IP License Agreement or (D) with any counterparty set forth on Section 4.1(16) of the Company Disclosure Letter; |
| (17) | make any material change in accounting, except (i) as required by IFRS (or any interpretation or enforcement thereof), a Governmental Entity (including the International Accounting Standards Board or any similar organization), or (ii) as required by a change in applicable Law (or any interpretation or enforcement thereof); |
| (18) | waive, release, assign, settle or compromise any (X) governmental complaint or Proceeding (other than Proceedings related to Taxes, which are subject to Section 4.1(y)(20)) or (Y) claims, liabilities or obligations arising out of, related to or in connection with litigation (other than litigation concerning this Agreement) or other Proceedings, other than, in each case, settlements, waivers or releases of, or |
| compromises for, any such litigation or other Proceedings in which the amounts paid or to be paid (A) do not exceed established reserves (excluding accrued legal fees and expenses) for such Proceedings as of December 31, 2016, as made available to Purchaser or are contained in the Company Financial Statements, or (B) are funded, subject to payment of a deductible, by insurance coverage maintained by the Company and its Subsidiaries without any actual or reasonably expected material increase in the premiums due under such policies or are for less than $50,000 individually or $200,000 in the aggregate, and, in each case, such settlement or compromise does not include any material non-monetary remedies; |
| (19) | enter into any lease or sublease of real property (whether as a lessor, sublessor, lessee or sublessee), or modify or amend in any material respect, or exercise any right to renew, any Company Lease or acquire any interest in real property, other than renewals of Company Leases in the Ordinary Course; provided that no such renewals shall be for a term of longer than one (1) year and no such renewal shall entail a material increase in rent; |
| (20) | except as required by applicable Law or the published interpretation or enforcement thereof, make or rescind any material Tax election, change any material Tax method, consent to any extension or waiver of the statute of limitations period in respect of Taxes, file any amended Tax Return that is material or settle or compromise any material federal, state, provincial, local or foreign income Tax liability, other than in the Ordinary Course; |
| (21) | fail to maintain insurance consistent in all material respects with past practice for the business of the Company and its Subsidiaries, taken as a whole; |
| (22) | adopt or enter into a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization of the Company; or |
| (23) | enter into any written agreement to do any of the foregoing. |
| Section 4.2 | Company Covenants Regarding the Acquisition. |
| (1) | The Company shall use reasonable best efforts to take or cause to be taken all actions and to do or cause to be done all things necessary, proper or advisable under Law to consummate the Acquisition as soon as practicable, including: |
| (a) | using reasonable best efforts to obtain and maintain all third-party Authorizations that are (A) required by any Governmental Entity to consummate the Acquisition or (B) required in order to maintain the Company Material Contracts in full force and effect following completion of the Acquisition, in each case, on terms that are reasonably satisfactory to Purchaser; |
| (b) | subject to Section 4.4(4) and Section 4.14, using reasonable best efforts to, with the prior approval of Purchaser, oppose, lift or rescind any Order, decree or ruling seeking to restrain, enjoin or otherwise prohibit or restrict or adversely affect the consummation of the Acquisition and defend, or cause to be defended, any Proceedings, to which it is a party, challenging the Acquisition or this Agreement; and |
| (c) | carrying out in accordance with and subject to the terms of this Agreement, the Order to Call Court Meeting and the Scheme Order applicable to it and complying promptly with all requirements imposed by Law on it with respect to this Agreement or the Acquisition. |
| (2) | The Company shall promptly notify Purchaser of: |
| (a) | any Material Adverse Effect or any change, event, occurrence, effect, state of facts or circumstance that, either individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect; |
| (b) | any material notice or other communication from any Person alleging that the consent (or other Authorization) of such Person is required in connection with this Agreement or the Scheme; |
| (c) | any material notice or communication from any Governmental Entity in connection with this Agreement or the Scheme (and the Company shall contemporaneously provide a copy of any such written notice or communication to Purchaser); or |
| (d) | any Proceedings commenced or, to its knowledge, threatened against, relating to or involving or otherwise affecting the Company or its Subsidiaries that relate to this Agreement or the Scheme. |
| Section 4.3 | Purchaser and AcquireCo Covenants Regarding the Acquisition. |
| (1) | Subject to Section 4.4, each of Purchaser and AcquireCo shall use reasonable best efforts to take or cause to be taken all actions and to do or cause to be done all things necessary, proper or advisable under Law to consummate the Acquisition as soon as practicable, including: |
| (a) | provide such assistance as may be reasonably requested by the Company for the purposes of completing the Meetings; |
| (b) | subject to the terms and conditions of this Agreement and of the Scheme of Arrangement and applicable Laws, pay or cause to be paid the aggregate Consideration to be paid pursuant to the Scheme; and |
| (c) | promptly notify the Company of: (i) any material notice or other communication from any Person alleging that the consent (or other Authorization) of such Person is required in connection with this Agreement or the Scheme; (ii) any material notice or communication from any Governmental Entity in connection with this Agreement or the Scheme (and Purchaser shall contemporaneously provide a copy of any such written notice or communication to the Company); and (iii) any Proceedings commenced or, to its knowledge, threatened against, relating to or involving or otherwise affecting Purchaser or its Subsidiaries that relate to this Agreement or the Scheme. |
| Section 4.4 | Regulatory Approvals and Gaming Approvals. |
| (1) | Each of the Parties agree to use its reasonable best efforts to (i) cause the conditions to the Acquisition set forth in Article 6 to be satisfied as promptly as practicable and (ii) obtain all necessary Regulatory Approvals and Gaming Approvals necessary in connection with the consummation of the transactions contemplated by this Agreement, including the Acquisition, and make all necessary registrations, declarations and filings with, and notices to, any Governmental Entities (including pursuant to any applicable Antitrust Law necessary to start any applicable waiting period and including under Gaming Laws) and take all reasonable steps as may be necessary to obtain an approval from, any Governmental Entity necessary in connection with the consummation of the transactions contemplated by this Agreement, including the Acquisition. In no event shall the Company (A) be required to agree to take or enter into any action which is not conditioned upon the consummation of the Acquisition or (B) agree to any obligation or concession or other action relating to the Regulatory Approvals or the Gaming Approvals without the prior written consent of Purchaser. |
| (2) | Each of the Company, Purchaser and AcquireCo agrees to (i) file all notifications required under any Antitrust Law or any Gaming Law with respect to this Agreement and the transactions contemplated hereby, including the Acquisition (including all required initial applications and documents in respect of officers and directors and Affiliates in connection with obtaining the Gaming Approvals (and where appropriate indications of further information to come by supplementary filing)) as soon as reasonably practicable (and, in any event, within ten (10) Business Days following the date hereof, other than with respect to Gaming Approvals, which shall be within thirty (30) days following the date hereof), (ii) supply, as promptly as reasonably practicable, any additional information and documentary material in its possession that may be requested pursuant to any Antitrust Law or any Gaming Law, and (iii) use reasonable best efforts to take or cause to be taken all actions necessary, proper or advisable consistent with, and subject to, the other provisions of this Section 4.4 to (A) cause the expiration or termination of the applicable waiting periods under any applicable Antitrust Law as promptly as reasonably practicable, including, if possible under applicable Law, by requesting early termination thereof, |
| and (B) obtain all Gaming Approvals required to permit the Parties to consummate the transactions contemplated by this Agreement or necessary to permit Purchaser to acquire, own and operate the Company. Each of Purchaser and AcquireCo, on the one hand, and the Company, on the other hand, shall, in connection with the efforts referred to in this Section 4.4 to obtain all requisite approvals and authorizations for the transactions contemplated by this Agreement under any Antitrust Law or any Gaming Law, use reasonable best efforts to (x) cooperate in all respects with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any Proceeding initiated by a private party; (y) keep the other party reasonably informed of any substantive communication received by such party from, or given by such party to, any Governmental Entity and of any substantive communication received or given in connection with any Proceeding by a private party, in each case regarding any of the transactions contemplated hereby (other than to the extent relating to private or personal information pertaining to any individual which may remain confidential); and (z) reasonably permit the other party to review any material communication given by it to, and consult with each other in advance of any meeting or conference, where reasonably practicable to do so, with, any Governmental Entity or, in connection with any Proceeding by a private party, with any other Person, and to the extent permitted by such applicable Governmental Entity or other Person, give the other party the opportunity to attend and participate in such meetings and conferences (telephonic or in person), where reasonably practicable to do so and in good faith take the other party’s views into account regarding the overall strategic direction of obtaining such clearances; provided that Purchaser, after prior good faith consultation with the Company and after considering, in good faith, the Company’s views and comments, shall have the principal responsibility for devising and implementing the strategy for obtaining any of the Antitrust Approvals or Gaming Approvals and shall take the lead in all meetings and communications with, or Proceeding involving, any Governmental Entity in connection with obtaining the Antitrust Approvals and the Gaming Approvals; provided, however, that the consent of each Party shall be required prior to the taking of any action (including the failure to take any such action) in connection with obtaining the Antitrust Approvals or any Gaming Approvals if such action (or failure to act) would be reasonably likely to materially delay, or materially impair the likelihood of obtaining, any such approvals. |
| (3) | In furtherance and not in limitation of the covenants of the Parties contained in Section 4.4(1) and Section 4.4(2), if any objections are asserted with respect to the transactions contemplated hereby under any Antitrust Law or Gaming Law or if any Proceeding, whether judicial or administrative, is instituted (or threatened in writing to be instituted) by any Governmental Entity or any other private party challenging any of the transactions contemplated hereby as violative of any Antitrust Law or Gaming Law or which would otherwise prevent or materially impede, interfere with, hinder or delay the consummation of the Acquisition and the other transactions contemplated by this Agreement, each of Purchaser and the Company |
| shall, subject to the other provisions of this Section 4.4, use reasonable best efforts to resolve any such objections or suits so as to permit consummation of the transactions contemplated by this Agreement, including seeking to have any stay or temporary restraining order entered by any court or other Governmental Entity vacated or reversed. Purchaser shall not authorize or announce an intention to authorize, or enter into agreements providing for, any acquisitions of a substantial equity interest in or a substantial portion of the assets of any Person or any business or division thereof that has not already been publicly announced as of the day before the date of this Agreement, in each case whether by merger, consolidation, combination, acquisition of stock or assets or formation of a joint venture or otherwise, that, in each case, would reasonably be expected to prevent, materially delay, make more difficult in any material respect or materially impede the Acquisition or the consummation of any other transactions contemplated hereby. |
| (4) | Notwithstanding the foregoing or any other provision of this Agreement to the contrary, in no event shall Purchaser or any of its Subsidiaries be obligated to, and the Parties’ “reasonable best efforts” in this Section 4.4 or elsewhere in this Agreement shall not be construed to, require Purchaser or any of its Subsidiaries to, (i) agree to, or proffer to, divest or hold separate, or enter into any licensing or similar arrangement with respect to, any business or assets (whether tangible or intangible) of Purchaser, the Company or any of their respective Subsidiaries or (ii) agree to any regulatory undertakings or remedies, other than, in the case of clauses (i) or (ii), divestitures, licensing arrangements, undertakings or remedies that, if applied to the Company and its Subsidiaries, would not have and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect (without giving effect to any of the exclusions set forth in clauses (a) through (l) in the definition of such term). |
| Section 4.5 | Access to Information; Confidentiality. |
| (1) | From the date hereof until the earlier of the Effective Time and the termination of this Agreement, subject to compliance with applicable Laws upon reasonable notice, the Company shall and shall cause its Representatives to afford to Purchaser and to Representatives of Purchaser, such access as Purchaser may reasonably require at all reasonable times during normal business hours, including for the purpose of facilitating integration business planning, to the Company’s and its Subsidiaries’ officers, employees, agents, properties, books, records and Contracts, and shall furnish Purchaser with all data and information as Purchaser may reasonably request. Notwithstanding the foregoing, the Company shall not be required to provide access to, or cause its Subsidiaries to provide access to, or disclose any information or documents to the extent that (i) any applicable Law requires the Company to restrict or otherwise prohibit access to such documents or information or (ii) access to such documents or information would, in the reasonable judgment of the Company, give rise to a risk of waiving any attorney-client privilege, work product doctrine or other applicable privilege applicable to such documents or |
| information. In the event that the Company does not provide access or information in reliance on the preceding sentence, it shall use its reasonable best efforts to communicate the applicable information to Purchaser in a way that would not violate the applicable Law or waive such a privilege. In the event that the disclosure of any information or documents would result in the violation of any applicable Laws, the Company shall use its reasonable best efforts to implement customary “clean-room” or other similar arrangements if the Company reasonably determines, upon advice of outside counsel, that such arrangements are necessary to comply with applicable Law. |
| (2) | Any investigation conducted pursuant to the access contemplated by this Section 4.5 shall be conducted in a manner that does not unreasonably interfere with the conduct of the business of the Company or its Subsidiaries or create a risk of damage or destruction to any property or assets of the Company or any of its Subsidiaries. Any access to the properties of the Company or any of its Subsidiaries shall be subject to the Company’s reasonable security measures and insurance requirements and shall not include the right to perform invasive testing of any environmental media without the Company’s prior written consent, in its sole discretion. |
| (3) | Investigations made by or on behalf of Purchaser, whether under this Section 4.5 or otherwise, will not waive, diminish the scope of, or otherwise affect any representation or warranty made by the Company in this Agreement. |
| (4) | Each of the Parties acknowledges that the Confidentiality Agreement continues to apply and that any information provided under this Section 4.5 shall be subject to the terms of the Confidentiality Agreement. If this Agreement is terminated in accordance with its terms, the obligations under the Confidentiality Agreement shall survive the termination of this Agreement. |
| Section 4.6 | Notice Provisions. |
| (1) | Each Party shall promptly notify the other Party of the occurrence, or failure to occur, of any event or state of facts which occurrence or failure would, or would reasonably be expected to: |
| (a) | cause any of the representations or warranties of such Party contained in this Agreement to be untrue or inaccurate in any material respect at any time from the date of this Agreement to the Effective Time; or |
| (b) | result in the failure, in any material respect, to comply with or satisfy any covenant, condition or agreement to be complied with or satisfied by such Party under this Agreement. |
| (2) | Notification provided under this Section 4.6 will not affect or modify the representations, warranties, covenants, agreements or obligations of the Parties (or remedies with respect thereto) or the conditions to the obligations of the Parties |
| under this Agreement. The failure to give notice in accordance with the foregoing shall not in and of itself be deemed to constitute the failure of any condition set forth in Section 6.2(2) or Section 6.3(2) to be satisfied. The terms and conditions of the Confidentiality Agreement shall apply to any information provided pursuant to this Agreement, including this Section 4.6. |
| Section 4.7 | Insurance and Indemnification. |
| (1) | Prior to the Effective Date, the Company shall purchase customary “tail” or “run-off” policies of directors’ and officers’ liability insurance providing protection no less favorable in the aggregate to the protection provided by the policies maintained by the Company which are in effect immediately prior to the Effective Date and providing protection in respect of claims arising from facts or events which occurred on or prior to the Effective Date for each person covered by the Company’s directors’ and officers’ liability insurance as in effect as of the date hereof, and Purchaser shall or shall cause the Company to maintain such tail policies in effect without any reduction in scope or coverage for six (6) years from the Effective Date; provided that Purchaser shall not be responsible for paying any premiums in respect of such coverage prior to the Effective Time. |
| (2) | Purchaser shall and shall cause the Company (and any successors) to honor all rights to indemnification, expense advancement and exculpation now existing in favor of present and former directors and officers of the Company or any of its Subsidiaries and that come to exist in favor of any person who becomes a director or officer of the Company or any of its Subsidiaries prior to the Effective Time (collectively, the “Indemnified Persons”), and Purchaser shall cause the Company to ensure that the Constitutional Documents of the Company and its Subsidiaries (or any successor thereto) contain substantially the same provisions with respect to indemnification, expense advancement and exculpation set forth in the Constitutional Documents of the Company and its Subsidiaries in effect immediately prior to the Effective Date, which provisions shall not, except to the extent required by Law, be amended, repealed or otherwise modified for a period of six (6) years from the Effective Date in any manner that would adversely affect the rights thereunder of individuals who at any time on or before the Effective Date, were directors or officers of the Company. |
| (3) | Without limiting the generality of the provisions of 4.7(2), during the period commencing at the Effective Time and ending on the sixth (6th) anniversary of the Effective Time, the Company and its Subsidiaries as of the Effective Time shall (and Purchaser shall cause the Company and its Subsidiaries as of the Effective Time to), to the extent permitted by applicable Law, indemnify and hold harmless each Indemnified Person from and against any costs, fees and expenses (including reasonable attorneys’ fees and investigation expenses), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any claim, proceeding, investigation or inquiry, whether civil, criminal, administrative or investigative, to the extent such claim, proceeding, investigation or inquiry arises directly or indirectly out of or pertains directly or indirectly to (i) any action or |
| omission or alleged action or omission in such Indemnified Person’s capacity as a director, officer, employee or agent of the Company or any of its Subsidiaries or other Affiliates which occurred prior to or at the Effective Time or (ii) any of the transactions contemplated by this Agreement. In addition, during the period commencing at the Effective Time and ending on the sixth (6th) anniversary of the Effective Time, the Company and its Subsidiaries as of the Effective Time shall (and Purchaser shall cause the Company and its Subsidiaries as of the Effective Time to), to the extent permitted by applicable Law, advance, prior to the final disposition of any claim, proceeding, investigation or inquiry for which indemnification may be sought under this Agreement, promptly following request by an Indemnified Person therefor, all costs, fees and expenses (including reasonable attorneys’ fees and investigation expenses) incurred by such Indemnified Person in connection with any such claim, proceeding, investigation or inquiry upon receipt of an undertaking by such Indemnified Person to repay such advances if it is ultimately decided in a final, non-appealable judgment by a court of competent jurisdiction that such Indemnified Person is not entitled to indemnification hereunder. If, at any time prior to the sixth (6th) anniversary of the Effective Time, any Indemnified Person delivers to Purchaser a written notice asserting in good faith a claim for indemnification or advancement of expenses under this Section 4.7(3), then the claim asserted in such notice shall survive the sixth (6th) anniversary of the Effective Time until such time as such claim is fully and finally resolved. Notwithstanding anything to the contrary set forth in this Section 4.7(3) or elsewhere in this Agreement, neither the Company nor any of its Affiliates (including, following the Effective Time, Purchaser) shall settle or otherwise compromise or consent to the entry of any judgment or otherwise seek termination with respect to any claim, proceeding, investigation or inquiry for which indemnification may be sought by an Indemnified Person under this Agreement unless such settlement, compromise, consent or termination includes an unconditional release of all Indemnified Persons from all liability arising out of such claim, proceeding, investigation or inquiry. |
| (4) | The provisions of this Section 4.7 are intended for the benefit of, and shall be enforceable by each insured or indemnified person, his or her heirs, executors, administrators and other legal representatives. Purchaser acknowledges to such insured or indemnified persons their direct rights against it under this Section 4.7, which is intended for the benefit of, and shall be enforceable by, each such person, his or her heirs, executors, administrators and other legal representatives, and the Company agrees to enforce such provisions on their behalf. |
| (5) | If Purchaser, the Company or any of its Subsidiaries or any of their respective successors or assigns (i) consolidates with or merges into any other person and is not the continuing or surviving corporation or entity of such consolidation or merger, or (ii) transfers all of substantially all of its properties and assets to any Person, the Company and Purchaser shall ensure that any such successors or assigns (including, as applicable, any acquirer of substantially all of the properties and assets of the |
| Company or its Subsidiaries) shall assume all of the obligations set forth in this Section 4.7. |
| (6) | Purchaser will, and will cause the Company to, honor and abide by and perform the terms of all indemnification agreements of the Company and its Subsidiaries with their respective directors, officers and employees in effect on the Effective Date. |
| (7) | The provisions of this Section 4.7 shall survive completion of the Acquisition and continue in full force and effect for a period not less than six (6) years following the Effective Date. |
| (1) | Purchaser shall, and shall cause FinanceCo to, use its respective reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to arrange and obtain the proceeds of the Debt Financing on the terms and conditions, taken as a whole (including the flex provisions), described in the Debt Commitment Letters, including executing and delivering all such documents and instruments as may be reasonably required thereunder, and using its respective reasonable best efforts to: |
| (a) | comply with and maintain in effect the Debt Commitment Letters, negotiate and enter into Financing Agreements with respect thereto (and maintain in effect and comply with the terms thereof) on the terms and conditions contained in the Debt Commitment Letters (as such terms may be modified or adjusted in accordance with the terms of any “flex” provisions set forth in the Debt Commitment Letters (including as specified in any Fee Letter)) or on other terms no less favorable, taken as a whole, to Purchaser and FinanceCo than those contained in the Debt Commitment Letters; provided, however, that, without limiting the foregoing, in no event shall any of the Financing Agreements, except in accordance with the terms of the Debt Commitment Letters: (i) reduce the aggregate amount of the Debt Financing provided for in the Debt Commitment Letter in a manner that would adversely impact in any material respect the ability of Purchaser and AcquireCo to consummate the Acquisition; (ii) expand, amend or modify the conditions to the receipt or funding of the Debt Financing beyond those expressly set forth in the Debt Commitment Letters in a manner that would adversely impact in any material respect the ability of Purchaser and FinanceCo to obtain the Debt Financing or impose any new or additional conditions to the receipt or funding of the Debt Financing in a manner that would adversely impact in any material respect the ability of Purchaser and FinanceCo to obtain the Debt Financing; (iii) contain terms (other than those terms expressly set forth in the Debt Commitment Letters) that would reasonably be expected to (A) prevent or delay in any material respect the consummation of the transactions contemplated hereby or the date on which the Debt Financing would be obtained or (B) make the funding of the Debt Financing less likely |
| | to occur; or (iv) adversely impact the ability of Purchaser or FinanceCo to enforce its rights against the Financing Sources; provided that, notwithstanding any of the foregoing, in each case, Purchaser and FinanceCo may modify, supplement or amend the Debt Commitment Letters to add lenders, lead arrangers, bookrunners, syndication agents or similar entities that have not executed the Debt Commitment Letters as of the date hereof. |
The Company shall cause each director of the Company and its Subsidiaries, and those officers of the Company and its Subsidiaries which are identified by Purchaser prior to the Effective Date, to provide their written resignation as a director or officer (or both) of the Company and its Subsidiaries immediately prior to the Effective Time.
The Company shall, promptly following the execution of this Agreement, file such applications with the TSXV and use its reasonable best efforts to obtain the approval of the TSXV to the Acquisition and to cause the Ordinary Shares and any other security issued by the Company or one of its Subsidiaries and listed on the TSXV to be delisted from the TSXV as soon as possible following the Effective Time.
The Company shall promptly advise Purchaser of any litigation commenced after the date hereof against the Company or any of its directors or executive officers (in their capacity as such) by any securityholders of the Company (on their own behalf or on behalf of the Company) relating to this Agreement or the transactions contemplated hereby, and shall keep Purchaser reasonably informed regarding any such litigation. The Company shall give Purchaser the opportunity to consult with the Company regarding (and if Purchaser, AcquireCo or any of their respective Affiliates are named as defendants in any such litigation, participate in) the defense or settlement of any such litigation, and no compromise or settlement of any such litigation shall be agreed to without the prior written consent of Purchaser (such consent not to be unreasonably withheld, conditioned or delayed).
At the General Meeting, and in any event before the Scheme Record Time, the Company and the Company Board shall take any actions that are necessary or advisable to adopt and effectuate the Articles Amendment and, following the adoption thereof, the Company and the Company Board shall not take any action to amend, rescind or supersede the Articles Amendment without Purchaser’s prior written consent.
If the Company or, to the knowledge of the Company, any of its Representatives receives or otherwise becomes aware of any inquiry, proposal or offer that constitutes, or could reasonably be expected to lead to, an Acquisition Proposal, or any request for copies of, access to, or disclosure of, confidential information relating to the Company or any of its Subsidiaries, including information, access or disclosure relating to the properties, facilities, books or records of the Company or its Subsidiaries, the Company shall immediately notify Purchaser, at first orally, and then promptly and in any event within two (2) Business Days in writing, of:
Notwithstanding Section 5.1, if at any time prior to obtaining the Required Shareholder Approvals, the Company receives a written Acquisition Proposal from a Person, the Company may engage in or participate in discussions or negotiations with, and furnish access to, and make disclosure of, confidential information relating to the Company and its Subsidiaries to, such Person regarding such Acquisition Proposal if and only if:
Without limiting the generality of the foregoing, the Company shall advise its Subsidiaries and its and their respective Representatives of the prohibitions set out in this Article 5 and any violation of the restrictions set forth in this Article 5 by the Company, its Subsidiaries or its or their respective Representatives (with respect to the obligations of the Company set forth in this Article 5) is deemed to be a breach of this Article 5 by the Company.
The implementation of the Acquisition is conditional upon each of the following conditions being satisfied on or prior to the Effective Time, which conditions may only be waived, in whole or in part, to the extent permitted by applicable Law, by the mutual consent of each of the Parties:
Purchaser and AcquireCo are not required to complete the Acquisition unless each of the following conditions is satisfied, on or before the Effective Time, which conditions are for the exclusive benefit of Purchaser and AcquireCo and may only be waived, in whole or in part, to the extent permitted by applicable Law, by Purchaser and AcquireCo in their sole discretion without prejudice to the rights of Purchaser and AcquireCo to rely on any other condition:
The Company is not required to complete the Acquisition unless each of the following conditions is satisfied on or before the Effective Time, which conditions are for the exclusive benefit of the Company and may only be waived, in whole or in part, to the extent permitted by applicable Law, by the Company in its sole discretion, without prejudice to the rights of the Company to rely on any other condition:
The conditions precedent set forth in Section 6.1, Section 6.2 and Section 6.3 will be conclusively deemed to have been satisfied, waived or released at the Effective Time.
Neither Purchaser nor AcquireCo may rely on the failure of any conditions set forth in Section 6.1 or Section 6.2 to be satisfied if such failure was caused by the failure of Purchaser or AcquireCo to perform any of its obligations under this Agreement. The Company may not rely on the failure of any conditions set forth in Section 6.1 or Section 6.3 to be satisfied if such failure was caused by the failure of the Company to perform any of its obligations under this Agreement.
This Agreement shall be effective from the date hereof until the earlier of the Effective Date and the termination of this Agreement in accordance with this Article 7 (except if and to the extent any provisions are specifically noted herein as surviving the termination of this Agreement).
If this Agreement is terminated pursuant to Section 7.2, this Agreement shall become void and of no further force or effect without liability of any Party (or any shareholder or Representative of such Party) to any other Party to this Agreement; provided that in the event of termination under the provisions of Section 7.2(1) (other than Section 7.2(1)(a)), this Section 7.3, Section 4.9(2), Section 4.10(5) and Section 8.2 through to and including Section 8.16, and all related definitions set forth in Section 1.1 and the provisions of the Confidentiality Agreement shall survive any such termination of this Agreement; provided, further, that if (x) such termination resulted, directly or indirectly, from the Intentional Breach of any representation, warranty, covenant or agreement contained herein or (y) the Intentional Breach of any representation, warranty, covenant or other agreement contained herein shall cause the Closing not to occur, then, notwithstanding such termination, such breaching party shall be fully liable for any and all damages, costs, expenses, liabilities or other losses of any kind, in each case, incurred or suffered by the other Party (collectively, “Damages”) as a result of such failure or breach.
This Agreement and the Scheme of Arrangement may, at any time and from time to time (and with the consent of the Court, if required), be amended by mutual written agreement of Purchaser and the Company, without further notice to or authorization on the part of any Company Shareholders and any such amendment may, without limitation:
The parties hereto acknowledge and hereby agree that, notwithstanding any other provision of this Agreement, in no event shall the Company be required to pay the Company Termination Fee on more than one (1) occasion, whether or not the Company Termination Fee may be payable under more than one provision of this Agreement at the same or at different times and the occurrence of different events.
Subject to Section 2.3(4), Section 4.9(2), Section 4.10(5) and Section 8.2, all out-of-pocket third-party transaction expenses incurred in connection with this Agreement and the Acquisition, including all costs, expenses and fees incurred prior to or after the Effective Date in connection with, or incidental to, the Acquisition, shall be paid by the Party incurring such expenses, whether or not the Acquisition is consummated.
Any notice, request, permission, waiver or other communication given regarding the matters contemplated by this Agreement must be in writing, sent by personal delivery, courier or electronic mail and addressed:
Except as provided in Section 4.7, Section 4.9(2) and Section 4.10(5) and, with respect to the Financing Sources, the provisions of Section 8.1, Section 8.2(7), this Section 8.6, Section
8.11(2), Section 8.11(5), Section 8.15 and Section 8.16 to the extent applicable to the Financing Sources, which, without limiting their respective terms, are intended as stipulations for the benefit of the third parties mentioned in such provisions, the Parties intend that this Agreement will not benefit or create any right or cause of action in favor of any Person, other than the Parties and that no Person, other than the Parties, shall be entitled to rely on the provisions of this Agreement in any Proceeding or other forum.
No waiver of any of the provisions of this Agreement will constitute a waiver of any other provision (whether or not similar). No waiver will be binding unless executed in writing by the Party to be bound by the waiver. A Party’s failure or delay in exercising any right under this Agreement will not operate as a waiver of that right. A single or partial exercise of any right will not preclude a Party from any other or further exercise of that right or the exercise of any other right.
This Agreement, together with the Confidentiality Agreement, constitutes the entire agreement between the Parties with respect to the transactions contemplated by this Agreement and supersedes all prior agreements, understandings, negotiations and discussions, whether oral or written, of the Parties.
If any provision of this Agreement is determined to be illegal, invalid or unenforceable by an arbitrator or any court of competent jurisdiction, that provision will be severed from this Agreement and the remaining provisions shall remain in full force and effect and the application of such provision to other persons or circumstances will be interpreted so as reasonably to effect the intent of the parties hereto. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the Parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in an acceptable manner to the end that the transactions contemplated hereby are fulfilled to the fullest extent possible.
The Parties to this Agreement waive the application of any Law or rule of construction providing that ambiguities in any agreement or other document shall be construed against the party drafting such agreement or other document.
The Parties expressly acknowledge that they have requested that this Agreement and all ancillary and related documents thereto be drafted in the English language only.
This Agreement may be executed by the Parties in any number of counterparts (including counterparts by facsimile or electronic mail) and all such counterparts taken together shall be deemed to constitute one and the same instrument. The Parties shall be entitled to rely upon delivery of an executed facsimile or similar executed electronic copy of this Agreement, and such facsimile or similar executed electronic copy shall be legally effective to create a valid and binding agreement between the Parties.
EACH PARTY HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE SCHEME OR THE ACTIONS OF THE PARTIES IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE AND ENFORCEMENT OF THIS AGREEMENT (INCLUDING ANY ACTION OR PROCEEDING ARISING, DIRECTLY OR INDIRECTLY, UNDER THE DEBT FINANCING, THE DEBT COMMITMENT LETTERS, ANY NEW DEBT COMMITMENT LETTERS OR THE PERFORMANCE OF ANY OF THE FOREGOING). EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE EITHER OF SUCH WAIVERS, (B) IT UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF SUCH WAIVERS, (C) IT MAKES SUCH WAIVERS VOLUNTARILY, AND (D) IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 8.15.
The Company covenants and agrees that it shall not institute, and shall cause its Affiliates, security holders, shareholders, managers, members and other Representatives not to institute, a legal proceeding (whether based in contract, tort, fraud, strict liability, other Laws or otherwise) arising under or in connection with, this Agreement, the Debt Commitment Letters, the Debt Financing or the transactions contemplated hereby against any of the Financing Sources or any of their respective successors, heirs or Representatives thereto and that none of the Financing Sources shall have any liability or obligations (whether based in contract, tort, fraud, strict liability, other Laws or otherwise) to the Company, any of its Affiliates, security holders, shareholders, managers, members and other Representatives or any of their respective successors, heirs or representatives thereof
arising out of or relating to this Agreement, the Debt Commitment Letters, the Debt Financing or the transactions contemplated hereby or thereby.
In this Scheme, unless inconsistent with the subject or context, the following expressions bear the following meanings:
In consideration for the transfer of the Scheme Shares to AcquireCo as provided in clause 1 of this Scheme, AcquireCo shall, subject as hereinafter provided, pay or procure that there shall be paid to or for the account or benefit of each Scheme Shareholder whose name appears in the register of members of Company at the Scheme Record Time:
Each mandate relating to the payment of dividends on any Scheme Shares and other instructions given to the Company by Scheme Shareholders in force at the Scheme Record Time shall, as from the Effective Date, cease to be valid.
The Purchaser, AcquireCo and the Company may jointly consent on behalf of all persons concerned to any modification of, or addition to, or any condition to, the Scheme which the Court may approve or impose (including designating any member of the AcquireCo Group to act in place of, or jointly with, AcquireCo for the purposes of the Scheme).
This Scheme is governed by the laws of Guernsey and is subject to the jurisdiction of the courts of Guernsey.
Purchaser, AcquireCo, the Company and the Depositary, as applicable, shall be entitled to deduct and withhold from any consideration otherwise payable or otherwise deliverable to any Scheme Shareholder pursuant to clause 2 such amounts as Purchaser, AcquireCo, the Company or the Depositary, as applicable, are required to deduct and withhold from such consideration under any provision of any laws in respect of taxes. Any such amounts will be deducted, withheld and remitted from the consideration payable pursuant to clause 2 and shall be treated for all purposes under this Scheme as having been paid to the Scheme Shareholder in respect of which such deduction, withholding and remittance was made; provided that such deducted and withheld amounts are actually remitted to the appropriate governmental entity.
“That the Scheme between the Company and the Scheme Shareholders, a print of which has been produced to this meeting and for the purposes of identification signed by the chairman hereof in its original form or as amended in accordance with its terms or with or subject to any modification, addition or condition approved or imposed by the Court and agreed by the Company, Purchaser and AcquireCo, be approved.”
Gaming Law, that would prevent or materially delay receipt of any Required Gaming Approvals.
