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EXHIBIT 10(x)
SHAREHOLDERS' AGREEMENT
THIS SHAREHOLDERS' AGREEMENT (this "Agreement") is entered into as of
December 19, 1995, by and among the persons who are listed as "Shareholders" in
Exhibit A (the "Management Shareholders") (including any Prospective
Transferees, as defined in Section 3 hereof, the "Shareholders"), Fitzgeralds
Gaming Corporation (the "Company") and First Interstate Bank of Nevada, N.A., a
national banking association (the "Warrant Agent"), as warrant agent for the
holders from time to time (the "Warrantholders") of the common stock purchase
warrants (the "Warrants"), each initially to purchase one share of common
stock, par value $.01 per share ("Common Stock"), of the Company issued
pursuant to that certain Warrant Agreement, of even date herewith, (the
"Warrant Agreement"), by and between the Company, and the Warrant Agent.
R E C I T A L S
WHEREAS, pursuant to that certain Underwriting Agreement, dated
December 13, 1995, by and between the Company and ▇▇▇▇▇▇▇▇▇ & Company, Inc.,
the Company will offer (the "Offering") to the public (i) 123,000 Note Units,
each consisting of (A) $1,000 principal amount of 13% Senior Secured Notes due
2002 of the Company and (B) 13.59368 Warrants and (ii) 800,000 Preferred Stock
Warrants, each consisting of (A) one share of Cumulative Redeemable Preferred
Stock of the Company and (B) 1.25402 Warrants;
WHEREAS, each of the Shareholders owns the number of shares of Common
Stock set forth opposite his name on Exhibit A; and
WHEREAS, in connection with the Offering, the Shareholders, the
Company and the Warrant Agent desire to enter into this Agreement in order to
establish certain rights of the Warrantholders, and of the holders of shares of
Common Stock issuable upon exercise thereof ("Warrant Shares"), in the event of
certain sales, transfers, exchanges or other dispositions of the capital stock
of the Company by the Shareholders or their transferees.
A G R E E M E N T
NOW, THEREFORE, in consideration of the foregoing recitals and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
1. Acknowledgment of Warrant Agreement Obligations. Each Shareholder
hereby acknowledges, and on behalf of himself and his assignees, transferees and
successors, agrees to be bound by: (i) the provisions of Section 16(a) of the
Warrant Agreement, which provisions may, among other things, entitle the
Warrantholders or the
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holders of Warrant Shares to require a purchaser of Common Stock from a
Significant Shareholder, as defined in the Warrant Agreement, to purchase
Warrants or Warrant Shares from the Warrantholders or the holders of the Warrant
Shares, and (ii) the provisions of Section 16(b) of the Warrant Agreement, which
provisions may, among other things, entitle the Warrantholders to require an
entity that will acquire more than 50% in value of the outstanding Common Stock
of the Company from the Shareholders (as more specifically defined in the
Warrant Agreement, a "Holding Company") to offer to each Warrantholder the right
to exchange its Warrants for warrants exercisable for the number of shares of
stock or other securities or property of the Holding Company to which a holder
of the Warrant Shares deliverable upon exercise of such Warrants would have been
entitled had such holder exercised its Warrants in full immediately prior to the
Holding Company Transaction (as defined in the Warrant Agreement) and sold,
exchanged or transferred all of such Warrant Shares in the Holding Company
Transaction.
The foregoing is only a summary of the provisions of Section 16 of the
Warrant Agreement, and each of the Shareholders agrees, on behalf of himself and
his assignees, transferees and successors, to be bound by the provisions of
Section 16 of the Warrant Agreement as if set forth herein in full. The Company
and the Warrant Agent agree to notify the holders of Warrants in writing
promptly after obtaining actual knowledge of any transaction to which Section
16(a) or 16(b) of the Warrant Agreement may apply.
2. Stock Certificate Legend.
(a) Endorsement of Stock Certificates. Each certificate
representing shares of Common Stock of the Company now held by or hereinafter
acquired by any Management Shareholder (other than ▇▇▇▇▇▇ ▇. ▇▇▇▇) (the
"Legended Shares") shall be surrendered to the Company's transfer agent and
substitute certificates shall be issued therefor, which certificates shall be
endorsed with the following legend:
"IN ACCORDANCE WITH THE SHAREHOLDERS' AGREEMENT (AS MAY BE
AMENDED FROM TIME TO TIME, THE "SHAREHOLDERS' AGREEMENT"), DATED AS OF
DECEMBER 19, 1995, BY AND AMONG THE SHAREHOLDERS OF FITZGERALDS GAMING
CORPORATION (THE "COMPANY") PARTIES THERETO AND FIRST INTERSTATE BANK OF
NEVADA, N.A., AS WARRANT AGENT (THE "WARRANT AGENT"), THE TRANSFER OF
THE SECURITIES REPRESENTED BY THIS CERTIFICATE IS SUBJECT TO THE
CONDITIONS SPECIFIED IN SECTION 16 OF THE WARRANT AGREEMENT (AS MAY BE
AMENDED FROM TIME TO TIME, THE "WARRANT AGREEMENT"), DATED AS OF
DECEMBER 19, 1995, BY AND BETWEEN THE COMPANY AND THE WARRANT AGENT. A
COPY OF THE SHAREHOLDERS' AGREEMENT AND THE WARRANT AGREEMENT WILL
BE FURNISHED BY THE COMPANY TO THE HOLDER HEREOF UPON WRITTEN REQUEST
AND WITHOUT CHARGE.
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THESE SECURITIES MAY NOT BE RESOLD OR TRANSFERRED UNLESS SUCH CONDITIONS
ARE COMPLIED WITH, IF APPLICABLE.
A TRANSFEREE OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE
(A) WILL BE BOUND BY THE PROVISIONS OF SECTION 16(a) OF THE WARRANT
AGREEMENT (IF SUCH TRANSFEREE IS, AT ANY TIME WHILE HOLDING SUCH SHARES, A
"SIGNIFICANT SHAREHOLDER" AS DEFINED IN THE WARRANT AGREEMENT) AND (B)
WILL BE BOUND BY THE PROVISIONS OF SECTION 16(B), IN EACH CASE UNLESS AND
UNTIL A QUALIFIED PUBLIC OFFERING OR A QUALIFIED PUBLIC COMPANY MERGER
(EACH AS DEFINED IN THE WARRANT AGREEMENT) OCCURS."
▇▇▇▇▇▇ ▇. ▇▇▇▇ agrees that, promptly after becoming a Significant Shareholder,
he will surrender all shares of Common Stock beneficially owned by him to the
Company's transfer agent, and substitute certificates shall be issued therefor
bearing the foregoing legend; and, after the placement of such legend on such
certificates, the shares of Common Stock owned by ▇▇. ▇▇▇▇ shall be "Legended
Shares" for the purposes of this Agreement.
(b) Removal of Legend from Stock Certificates. Upon the
occurrence of a Qualified Public Offering or a Qualified Public Company Merger
(each as defined in the Warrant Agreement), each holder of certificates
representing Legended Shares shall be entitled to surrender such certificates to
the Company for certificates not bearing the legend set forth in Paragraph 2(a).
In addition, in connection with any sale by a Shareholder of Legended Shares
pursuant to Rule 144 promulgated under the Securities Act of 1933, as amended,
the Shareholder selling such shares shall be entitled to surrender the
certificates representing such shares to the Company for certificates not
bearing the legend set forth in Paragraph 2(a).
3. Transferees of Shareholders.
(a) Transferees to Execute Agreement. No person holding
Legended Shares shall sell, exchange, or in any other manner dispose of or
transfer such shares unless, prior to the consummation of any such sale or
exchange, or other disposition or transfer, the person to whom such sale, other
disposition or transfer or with whom such exchange is proposed to be made (for
purposes of this Paragraph 3, a "Prospective Transferee") executes and delivers
to the Company and the Warrant Agent a copy of this Agreement. Upon the
execution and delivery by such Prospective Transferee of this Agreement, such
Prospective Transferee shall be subject to the provisions of this Agreement as
though such Prospective Transferee were a "Shareholder" hereunder, and shall be
deemed to have agreed to the provisions of Section 16(a) (to the extent
applicable to such Prospective Transferee) and Section 16(b) of the Warrant
Agreement with respect to any Legended Shares to be acquired.
(b) Transfers in Violation Void Ab Initio. Any attempt to
sell, exchange, or in any other manner dispose of or transfer shares of Common
Stock not in
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compliance with this Agreement shall be null and void ab initio and neither the
Company nor any transfer agent shall give effect in the Company's stock records
to such attempted sale, exchange or other disposition or transfer.
4. Warrantholders Third-Party Beneficiaries. The Warrantholders and
holders of Warrant Shares from time to time are and shall be deemed to be
intended third-party beneficiaries of this Agreement. It being agreed by the
Shareholders that damages at law would be an insufficient remedy in the event
of a breach of this Agreement by any Shareholder, each Warrantholder and holder
of Warrant Shares shall be entitled to apply for and have injunctive or other
equitable relief in any court of competent jurisdiction to restrain the breach
or threatened breach of, or otherwise specifically to enforce, any of such
Shareholder's covenants set forth in this Agreement.
5. Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the Shareholders, the Warrantholders and holders of
Warrant Shares, and their respective heirs, personal representatives,
successors, transferees and assigns; provided, however, that nothing contained
herein shall be construed either as (i) granting to any Shareholder bound by
the provisions of Section 16(a) or 16(b) of the Warrant Agreement the right to
transfer any shares of Common Stock without complying with Sections 16(a)
and/or 16(b), as applicable, of the Warrant Agreement or (ii) causing any party
hereto to be deemed a "Significant Shareholder" as defined in the Warrant
Agreement who would not otherwise be a Significant Shareholder pursuant to the
provisions of the Warrant Agreement.
6. Amendments and Waivers. No amendment to or waiver of any provision of
this Agreement or to Section 16(a) of the Warrant Agreement that would
materially and adversely affect the Warrantholders and/or the holders of
Warrant Shares from time to time shall be made without the written consent of
the Warrantholders and the holders of the Warrant Shares, voting together as a
class, holding or having the right to acquire a majority of the Warrant Shares.
No amendment to or waiver of any provision of Section 16(b) of the Warrant
Agreement that would materially and adversely affect the Warrantholders from
time to time shall be made without the written consent of Warrantholders having
the right to acquire a majority of the Warrant Shares.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the date first above written.
SHAREHOLDERS
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Trust
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Trustee
▇▇▇▇▇▇ Special Trust
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Trustee
FITZGERALDS GAMING
CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------
Name:
Title:
FIRST INTERSTATE BANK OF
NEVADA, N.A., A NATIONAL BANKING
ASSOCIATION
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇ ▇▇▇▇▇▇▇
Title: Vice-President
PROSPECTIVE TRANSFEREES
[To be executed at time of transfer
pursuant to Section 3]
Date:
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Date:
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PROSPECTIVE TRANSFEREES
[To be executed at time of transfer
pursuant to Section 3]
(Cont'd.)
Date:
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EXHIBIT A
SHAREHOLDERS
Name Address/Telecopy No. of Shares Owned
---- ---------------- -------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇,▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Trust ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇,▇▇▇,▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇ Special Trust ▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇,▇▇▇
▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
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