Exhibit
10.1


 


STOCKHOLDERS’
AGREEMENT


 


THIS STOCKHOLDERS’
AGREEMENT (“Agreement”) is entered into as of July 1, 2009, by and among
Tropicana Las Vegas Hotel and Casino, Inc., a Delaware corporation (the “Company”),
and the persons and entities listed on Schedule A hereto, which
constitute all of the stockholders of the Company as of the date hereof, any
other stockholder or option holder who from time to time becomes party to this
Agreement by execution of a Joinder Agreement in substantially the form attached
hereto as Exhibit A (each, a “Joinder Agreement”) and each
Affiliated Transferee.


 


R E C I T
A L S:


 


WHEREAS, this Agreement is being entered into on
the Effective Date of the First Amended Joint Plan of Reorganization of
Tropicana Las Vegas Holdings, LLC and Certain of its Debtor Affiliates pursuant
to Title 11 of the United States Code, 11 U.S.C. Section 101 et seq. (as
modified and confirmed by the Bankruptcy Court, the “Plan”);


 


WHEREAS, the Company has issued its Class A
common stock, $0.01 par value per share (“Class A Common Stock”),
and its Class B common stock, $0.01 par value per share (“Class B
Common Stock,” and together with the Class A Common Stock, “Common
Stock”), to the persons and entities listed on Schedule A hereto in
accordance with the terms of the Plan;


 


WHEREAS, the Company intends to issue one or more
series Class A convertible preferred stock, $0.01 par value per share (the
“Class A Preferred Stock”), as contemplated by the Plan (the “Rights
Offering”); and


 


WHEREAS, the parties desire, for their mutual
benefit and protection, to enter into this Agreement to set forth certain of
their respective rights and obligations with respect to the Shares;


 


NOW,
THEREFORE, in
consideration of the foregoing recitals and the mutual promises and covenants
hereinafter set forth and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:


 


1.                                       Definitions.


 


1.1                                 Construction of Terms. As used herein, the masculine, feminine
or neuter gender, and the singular or plural number, shall be deemed to be or
to include the other genders or number, as the case may be, whenever the
context so indicates or requires. Any reference to “day” shall mean a calendar day unless
indicated otherwise.


 


1.2                                 Number of Shares of Stock. Whenever any provision of this
Agreement calls for any calculation based on a number of shares of capital
stock issued and outstanding or held by a Holder, the number of shares deemed
to be issued and outstanding or held by that Holder, unless specifically stated
otherwise, as applicable, shall be the total number of shares of Common Stock
then issued and outstanding or owned by the Holder, as applicable, plus,
without duplication, the total number of shares of Common Stock issuable upon
the conversion of any Preferred Stock then issued and outstanding or owned by
such Holder, as applicable.


 


1.3                                 Defined Terms. For purposes of this Agreement, the
following terms have the following meanings, and the terms defined in the Section 7.1 have the meanings
ascribed therein:


 

















 


(a)                                  “Affiliate”: As defined in
Rule 12b-2 promulgated under the Exchange Act; provided that Onex
Corporation and its affiliates shall be deemed to be “Affiliates” of the Onex
Stockholders for purposes of this Agreement.


 


(b)                                 “Affiliated Transferee”: As
defined in Section 2.2.


 


(c)                                  “Agreement”: As defined in the
introductory paragraph.


 


(d)                                 “Bankruptcy Court”: The United
States Bankruptcy Court for the District of Delaware.


 


(e)                                  “Board”: As defined in Section 4.1.


 


(f)                                    “Business Day”: Any day other than
a Saturday, Sunday or a day on which banks are required or permitted to be
closed in New York, New York.


 


(g)                                 “By-Laws”: The by-laws of the
Company in effect as of the date hereof, as the same may be amended or modified
from time to time in accordance with the terms thereof and the terms of this
Agreement.


 


(h)                                 “Class A Common Stock”: As
defined in the Recitals.


 


(i)                                     “Class A Preferred Stock”: As
defined in the Recitals. 


 


(j)                                     “Class B Common Stock”: As
defined in the Recitals.


 


(k)                                  “Certificate of Designations”: the
Certificate of Designations of the Class A Convertible Participating Preferred
Stock of the Company, as the same may be amended or modified from time to time
in accordance with the terms thereof and the terms of this Agreement.


 


(l)                                     “Certificate of Incorporation”:
the Certificate of Incorporation of the Company on file with the Delaware
Secretary of State as of the date hereof, as the same may be amended or
modified from time to time in accordance with the terms thereof and the terms
of this Agreement.


 


(m)                               “Common Stock”: As defined in the
Recitals and any other common stock issued by the Company.


 


(n)                                 “Company”: As defined in the
introductory paragraph and any successors thereto.


 


(o)                                 “DGCL”: Delaware General
Corporation Law.


 


(p)                                 “Distress”: As defined in Section 5.2(b)(2).


 


(q)                                 “Drag Along Right”: As defined in Section 3.2(a).


 


(r)                                    “Drag Along Transaction”: A bona
fide negotiated transaction or series of related transactions with a Third-Party
Buyer, in which (x) on or before the Initial Drag Date, a Super Majority
Interest or (y) at any time following the Initial Drag Date, a Majority
Interest, has determined (i) to sell or otherwise dispose of all or
substantially all of the assets of the Company, or (ii) to sell fifty
percent (50%) or more of the then


 


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outstanding shares of
Common Stock, or (iii) to cause the Company to merge with or into or
consolidate with any Third Party Buyer.


 


(s)                                  “Dragging Holders”: As defined in Section 3.2(a).


 


(t)                                    “Effective Date”: July 1,
2009.


 


(u)                                 “Equity Issuance”: As defined in Section 5.2(a)(2).


 


(v)                                 “Equity Incentive Plan”: Any
equity incentive plan of the Company adopted by the Board, as amended from time
to time.


 


(w)                               “Exchange Act”: The Securities
Exchange Act of 1934, as amended.


 


(x)                                   “Gaming Laws”: All legal
requirements pursuant to which the Nevada Gaming Control Board, the Nevada
Gaming Commission and the Clark County Liquor and Gaming Licensing Board
(collectively the “Gaming Authorities”), possess regulatory, licensing,
permit, approval or suitability authority with respect to gambling, gaming or
casino activities conducted within Clark County, Nevada, including,
specifically, the Nevada Gaming Control Act, as codified in Chapter 463 of the
Nevada Revised Statutes, the regulations of the Nevada Gaming Commission
promulgated thereunder and the Clark County Code, all as amended from time to
time.


 


(y)                                 “Holder”: Each person who holds
Shares from time to time.


 


(z)                                   “Independent Director”: An
individual who qualifies as an “independent director” under the
rules promulgated under any national securities exchange on which the
Shares are then listed or, if the Shares are not then listed, by the
rules promulgated by the New York Stock Exchange, each as in effect from
time to time.


 


(aa)                            “Initial Drag Date”: As defined in
Section 3.2(a).


 


(bb)                          “Issuance”: As defined in Section 5.3(g).


 


(cc)                            “Joinder Agreement”: As defined in
the introductory paragraph.


 


(dd)                          “Licensing Action”: As defined in Section 5.2(a)(3).


 


(ee)                            “Majority Interest”: The Holders
holding not less than a majority of the outstanding Shares held by all of the
Holders, calculated in accordance with Section 1.2  hereof.


 


(ff)                                “Necessary Action”: With respect
to a specified result, all actions (to the extent not prohibited by law)
necessary to cause such result, including (i) voting or providing a
written consent or proxy with respect to Shares, (ii) causing the adoption
of stockholders’ resolutions and amendments to the organizational documents of
the Company, (iii) refraining from objecting and waiving any available
statutory appraisal or similar rights, (iv) executing agreements and
instruments, (v) making, or causing to be made, with governmental,
administrative or regulatory authorities, all filings, registrations or similar
actions that are required to achieve such result, (vi) nominating or
electing any members of the Board; (vii) removing any members of the Board
whom the person obliged to take the Necessary Action has the right to remove;
and (vii) calling or causing to be called a special meeting of the Board
or stockholders of the Company.


 


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(gg)                          “Non-Onex Holder”: As defined in Section 4.5(b).


 


(hh)                          “Onex Stockholders”: Collectively,
any Person that is both a Holder and an Affiliate of OCP I LP or of Onex
Corporation.


 


(ii)                                  “Person”: Any individual,
corporation, general or limited partnership, limited liability company, joint
venture, trust, an estate, an unincorporated organization or other entity or
association, governmental or otherwise.


 


(jj)                                  “Plan”: As defined in the
Recitals.


 


(kk)                            “Preemptive Holder”: As defined in
Section 5.3(a).


 


(ll)                                  “Preemptive Offer Notice”: As
defined in Section 5.3(a).


 


(mm)                      “Preemptive Offer Period”: As
defined in Section 5.3(a).


 


(nn)                          “Preemptive Securities”: As
defined in Section 5.3(a).


 


(oo)                          “Preferred Stock”: The
Class A Preferred Stock.


 


(pp)                          “Proposed Transferee”: As defined
in Section 3.1.


 


(qq)                          “Proposed Sale Transaction”: As
defined in Section 3.1.


 


(rr)                                “Pro Rata Share”: As defined in Section 5.3(e).


 


(ss)                            “Purchasing Holder”: As defined in
Section 5.3(g).


 


(tt)                                “Qualified Public Offering”: The
distribution and sale to the public, pursuant to one or more effective
registration statements under the Securities Act of equity securities of the
Company for aggregate gross proceeds of not less than $100 million (other than
pursuant to a registration statement (i) on Form S-4 or S-8 or
otherwise relating to equity securities issuable in connection with a business
combination or under any employee benefit plan and (ii) covering the
resale of equity securities of the Company on a continuing basis under and in
accordance with Rule 415 of the Securities Act).


 


(uu)                          “Rights Offering”: As defined in
the Recitals.


 


(vv)                          “Recapitalization”: An issuance of
securities paid, issued or distributed on account of, in exchange for or in
replacement of shares of Common Stock by way of or in connection with a stock
split, reverse stock split, recapitalization, exchange, conversion, merger or
consolidation affecting all shares of Common Stock proportionately.


 


(ww)                      “Related Party Transaction”: As
defined in Section 5.2(a)(1).


 


(xx)                              “Remaining Holders”: As defined in
Section 3.1(a).


 


(yy)                          “Securities Act”: The Securities
Act of 1933, as amended.


 


(zz)                              “Selling Holder”: As defined in Section 3.1.


 


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(aaa)                      “Shares”: At any point in time,
shares of (i) Common Stock and (ii) Preferred Stock. At all times,
the number of Shares deemed issued and outstanding or held or to be voted by
any Holder shall be calculated in accordance with Section 1.2.


 


(bbb)                   “Special Approval Requirement”: As
defined in Section 5.1.


 


(ccc)                      “Subsidiary” shall mean, with
respect to any Person, any other Person of which such Person owns (either
directly or through or together with another Subsidiary of such Person) either
(i) a general partner, managing member or other similar interest or
(ii) (A) fifty percent (50%) or more of the voting power of the
voting capital equity interests of such other Person, or (B) fifty percent
(50%) or more of the outstanding voting capital stock or other voting equity
interests of such other Person.


 


(ddd)                   “Super Majority Interest”: The Holders
holding not less than two-thirds of the outstanding Shares held by all of the
Holders, calculated in accordance with Section 1.2
hereof.


 


(eee)                      “Tag Along Acceptance Notice”: As
defined in Section 3.1(b).


 


(fff)                            “Tag Along Election Period”: As
defined in Section 3.1(b).


 


(ggg)                   “Tag Along Notice”: As defined in Section 3.1(a).


 


(hhh)                   “Tag Along Right”: As defined in Section 3.1(a).


 


(iii)                               “Third Party Buyer”: Any Person
who, immediately prior to the contemplated transaction, (i) is not a
Dragging Holder or Affiliate of any Dragging Holder, (ii) is not the
spouse or descendant (by birth or adoption) of any Dragging Holder or a trust
solely for the benefit of any Dragging Holder, his spouse, or his descendant
(by birth or adoption), and (iii) is neither a portfolio company of any
such Dragging Holder nor a direct or indirect Subsidiary of any portfolio
company of any Dragging Holder.


 


(jjj)                               “Transfer”: Any direct or indirect
sale, assignment, encumbrance, hypothecation, pledge, conveyance in trust,
gift, transfer pursuant to the laws of descent and distribution, donation,
grant of security interest in or any other transfer or disposition of any kind,
including, but not limited to, transfers to receivers, levying creditors,
trustees or receivers in bankruptcy proceedings or general assignees for the
benefit of creditors, whether voluntary or by operation of law, of all or any
portion of a security (or any direct or indirect economic or beneficial
interest therein or control or direction thereof), any interest or rights in a
security, or any rights under this Agreement.


 


(kkk)                      “Transferee”: the recipient of a
Transfer.


 


1.4                                 Certain Interpretative Matters. Unless the context otherwise requires,
(a) all references to Sections are to Sections of this Agreement; (b) each
term defined in this Agreement has the meaning assigned to it; (c) all
uses of “herein,” “hereto,” “hereof” and words similar thereto in this
Agreement refer to this Agreement in its entirety, and not solely to the
Section or provision in which it appears; (d) “or” is disjunctive but
not necessarily exclusive, and (e) words in the singular include the
plural and vice versa.


 


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2.                                       Transfers.


 


2.1                                 Transfers. A Holder may Transfer all or any portion of the
Shares now owned or hereafter acquired by such Holder provided that
(a) unless such Transfer is made in the Initial Public Offering or after
the Initial Public Offering (i) in a public offering or (ii) pursuant
to Rule 144, the proposed Transferee contemporaneously with such Transfer
shall have entered into a Joinder Agreement thereby agreeing to be bound by all
the terms and conditions of this Agreement, subject to the same restrictions
and obligations as a Holder who is an original signatory hereto and
(b) such Transfer is made in compliance with Section 3,
if applicable. Any Transfer or attempted Transfer (a) in violation of this
Agreement, (b) in violation of applicable law or (c) which causes the
Company to be required to register the Shares pursuant to
Section 12(g)(1) of the Exchange Act as a result of the Shares being
held of record by five hundred (500) or more Persons, shall not be recognized
by the Company or its transfer agent, if any, and shall be void ab initio and of no force or effect whatsoever.
The Company and the other parties hereto shall have, in addition to any other
legal or equitable remedies which they may have, the right to enforce the
provisions of this Agreement by actions for specific performance (to the extent
permitted by law) and the Company shall have the right to refuse to recognize
any Transferee of any Holder for any purpose.


 


2.2                                 Affiliate Transfers. Notwithstanding anything herein to the
contrary, the provisions of Section 3
shall not apply to a Transfer by any Holder (a) to an Affiliate of such
Holder, (b) to the spouse or descendant (by birth or adoption) of such
Holder, or (c) to a trust solely for the benefit of such Holder, his
spouse, or his descendant (by birth or adoption), provided that, unless
such Transfer is made in the Initial Public Offering or after the Initial
Public Offering (i) in a public offering or (ii) pursuant to
Rule 144, such proposed Transferee contemporaneously with such Transfer
shall have entered into a Joinder Agreement thereby agreeing to be bound by all
the terms and conditions of this Agreement, subject to the same restrictions
and obligations as a Holder who is an original signatory hereto. “Affiliated
Transferee” means any Person that received Shares in compliance with this Section 2.2. Notwithstanding anything to the contrary in this Agreement or
any failure by an Affiliated Transferee under this Section 2.2 to execute a Joinder
Agreement, such Affiliated Transferee shall take any Shares so Transferred
subject to all provisions of this Agreement applicable to Holders, whether or
not they so agree in writing, and such Transfer shall not be void or voidable
solely by reason of a failure to execute a Joinder Agreement.


 


2.3                                 Compliance with Securities Laws and Other
Applicable Laws.
Notwithstanding anything herein to the contrary, no Holder shall Transfer any
Common Stock or Preferred Stock unless (a) such Transfer is pursuant to an
effective registration statement under the Securities Act and in compliance
with any other applicable federal securities laws and state securities or “blue
sky” laws and any other applicable laws or (b) such Holder shall have
furnished the Company with (i) an opinion of counsel, if reasonably
requested by the Company, which opinion and counsel shall be reasonably satisfactory
to the Company, to the effect that no such registration is required because of
the availability of an exemption from registration under the Securities Act and
under any applicable state securities or “blue sky” laws and that the Transfer
otherwise complies with this Agreement and any other applicable federal
securities laws and state securities or “blue sky” laws and (ii) such
representation and covenants of such Holder as are reasonably requested by the
Company to ensure compliance with any applicable federal securities laws and
state securities or “blue sky” laws and any other applicable laws.


 


3.                                       Tag Along Rights and
Drag Along Rights.


 


3.1                                 Tag Along Rights. If at any time any Holder or any
“beneficial owner” within the meaning of Section 13(d) of the
Exchange Act of Shares (a “Selling Holder”) desires to Transfer Shares
which represent thirty percent (30%) or more of the Shares held by all Holders
through a bona fide single private transaction or a series of related
transactions (the “Proposed Sale


 


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Transaction”) to any Person (a “Proposed
Transferee”), such Selling Holder may, subject to the provisions of Section 3.1 hereof, Transfer such
Shares pursuant to and in accordance with the following provisions of this Section 3.1:


 


(a)                                  No later than twenty (20) Business Days
prior to the consummation of the Proposed Sale Transaction, the Selling Holder
shall provide to each other Holder (the “Remaining Holders”) notice of
the Proposed Sale Transaction (the “Tag Along Notice”) and of such
Remaining Holders’ right to participate in the Proposed Sale Transaction on a
pro rata basis with the Selling Holder as calculated pursuant to Section 3.1(c) below; provided
that no Remaining Holder shall be entitled to sell more than the number of
Shares described in Section 3.1(c) (the
“Tag Along Right”). The Tag Along Notice shall identify the Proposed
Transferee and all relevant information in connection with the Proposed Sale
Transaction, including a copy of any term sheet or other agreement regarding
the Proposed Sale Transaction executed by the Proposed Transferee to the extent
there is one.


 


(b)                                 Each of the Remaining Holders shall have
the right to exercise its Tag Along Right by giving written notice of such
intent to participate (the “Tag Along Acceptance Notice”) to the Selling
Holder within ten (10) Business Days after receipt by such Remaining
Holder of the Tag Along Notice (the “Tag Along Election Period”). Each
Tag Along Acceptance Notice shall indicate the maximum number of Shares the
Remaining Holder wishes to sell, including the number of Shares it would sell
if one or more other Remaining Holders do not elect to participate in the sale
on the terms and conditions stated in the Tag Along Notice. The delivery of the
Tag Along Acceptance Notice shall constitute an irrevocable offer by the
Remaining Holder to sell the Shares indicated therein for the price and on the
terms and conditions described in the Tag Along Notice and such other terms and
conditions applicable to the Selling Holder and otherwise in accordance with
this Section 3.1; provided
that no Remaining Holder shall be entitled to sell more than the number of
Shares described in Section 3.1(c).
Any Remaining Holder holding Preferred Stock shall be permitted to sell to the
relevant Proposed Transferee in connection with any exercise of the Tag Along
Right, at its option, (i) shares of Common Stock acquired upon conversion
of such Preferred Stock, or (ii) shares of Preferred Stock as provided in Section 3.1(g).


 


(c)                                  Each Remaining Holder shall have the
right to sell in the Proposed Sale Transaction a portion of its Shares which is
equal to or less than the product obtained by multiplying the total number of
Shares proposed to be sold to the Proposed Transferee in the Proposed Sale
Transaction by a fraction, the numerator of
which is the total number of Shares owned by such Remaining Holder and the denominator of which is the total number of Shares held by
all Holders and all other holders of Shares, including for this purpose Shares
issuable upon the exercise of vested options, in each case as of the date of
the Tag Along Notice, subject to increase as hereinafter provided. In the event
any Remaining Holder does not elect to sell the full amount of the Shares such
Remaining Holder is entitled to sell pursuant to this Section 3.1
(such Remaining Holder, an “Undersubscribing Remaining Holder”), then
the Selling Holder and any Remaining Holders who have elected to sell the full
amount of the Shares they are entitled to sell pursuant to the first sentence
of Section 3.1(c) shall have
the right to sell their pro rata share of any Shares any Undersubscribing
Remaining Holder is entitled, but does not elect, to sell; provided that
no Remaining Holder shall be entitled to sell more than the maximum number of
Shares set forth in such Remaining Holder’s Tag Along Acceptance Notice.


 


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(d)                                 Within ten (10) calendar days after
the end of the Tag Along Election Period, the Selling Holder shall promptly
notify each participating Remaining Holder of the number of Shares held by such
Remaining Holder that will be included in the sale and the date on which the
Proposed Sale Transaction will be consummated, which shall be no later than the
later of (i) thirty (30) calendar days after the end of the Tag Along
Election Period and (ii) the satisfaction of any governmental approval or
filing requirements, if any. Each participating Remaining Holder may effect its
participation in any Proposed Sale Transaction hereunder by (i) execution
and delivery to the Proposed Transferee, or to the Selling Holder for delivery
to the Proposed Transferee, of one or more instruments of conveyance and
transfer or certificates, properly endorsed for transfer, representing the
Shares to be sold by it and (ii) executing any purchase agreements,
indemnity agreements, escrow agreements or related documents that the Selling
Holder is executing. At the time of consummation of the Proposed Sale
Transaction, the Proposed Transferee shall remit directly to each participating
Remaining Holder that portion of the sale proceeds to which the participating
Remaining Holder is entitled by reason of its participation with respect
thereto (less such participating Remaining Holder’s pro rata share (based on
its Shares being sold) of any sale proceeds to be escrowed or held back). No
Shares may be purchased by the Proposed Transferee from the Selling Holder
unless the Proposed Transferee simultaneously purchases from the participating
Remaining Holders all of the Shares that they have elected and are entitled to
sell pursuant to this Section 3.1.


 


(e)                                  Any Shares held by a Selling Holder that
are the subject of the Proposed Sale Transaction and that the Selling Holder
desires to Transfer following compliance with this Section 3.1,
may be sold to the Proposed Transferee only during the period specified in Section 3.1(d) and only
on terms no more favorable in the aggregate to the Selling Holder than those
contained in the Tag Along Notice. Prior to the effectiveness of any Transfer
to a Proposed Transferee hereunder, such Proposed Transferee shall have entered
into a Joinder Agreement, and such Proposed Transferee shall have all the
rights and obligations hereunder and such Proposed Transferee shall become a
Holder for all purposes hereunder. In the event that the Proposed Sale
Transaction is not consummated within the period required by this Section 3.1 or the Proposed
Transferee fails timely to remit to each participating Remaining Holder its
respective portion of the sale proceeds, the Proposed Sale Transaction shall be
deemed to lapse, and any Transfer of Shares pursuant to such Proposed Sale
Transaction shall be in violation of the provisions of this Agreement unless
the Selling Holder sends a new Offer Notice and once again complies with the
provisions of Section 3.1 with respect
to such Proposed Sale Transaction.


 


(f)                                    If two or more Holders propose concurrent
Transfers that are subject to this Section 3.1,
then the relevant provisions of this Section 3.1
shall apply separately to each such proposed Transfer.


 


(g)                                 For the avoidance of doubt,
notwithstanding any other provision of this Section 3.1,
in the event that the Proposed Sale Transaction involves the sale of both
shares of Common Stock and shares of Preferred Stock, the economic terms of the
Proposed Sale Transaction shall be the same on a per Share basis, based upon
the number of shares of Common Stock issuable upon the conversion of such
Preferred Stock at the then-existing Conversion Price (as defined in the
Certificate of Designations of the Preferred Stock) of the Preferred Stock.


 


(h)                                 Notwithstanding anything to the contrary
in this Section 3, in connection with a Proposed Sale Transaction, no
Holder shall be required to provide any indemnification other than
indemnification that is (i) several and not joint and (ii)


 


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expressly capped such
that the liability of the applicable Holder will not exceed the dollar amount
of net proceeds received by such Holder in the Proposed Sale Transaction.


 


3.2                                 Drag Along Rights.


 


(a)                                  In the event that (i) on or before
July 1, 2014 (the “Initial Drag Date”), a Super Majority Interest,
or (ii) at any time following the Initial Drag Date, a Majority Interest,
desires to effect a Drag Along Transaction, then all Holders shall be obligated
to and shall upon the written request of a Super Majority Interest or a
Majority Interest, as applicable (the “Dragging Holders”), (i) if
the Drag Along Transaction involves the sale of Shares, sell, transfer and
deliver, or cause to be sold, transferred and delivered, to the Third-Party
Buyer a pro rata portion of the Shares to be sold, based on the total number of
outstanding Shares held by such Holder, on substantially the same terms and
conditions applicable to the Dragging Holders; and (ii) execute and
deliver such instruments of conveyance and transfer and take all Necessary
Action, including voting such Shares in favor of any Drag Along Transaction
proposed by a Dragging Holder and executing any purchase agreements, merger
agreements, voting agreements, support agreements, indemnity agreements, escrow
agreements or related documents, that such Dragging Holder or the Third-Party
Buyer may reasonably require in order to carry out the terms and provisions of
this Section 3.2 (the “Drag
Along Right”). In furtherance of the foregoing, each Non-Onex Holder that
is not a Major Non-Onex Holder (each a “Minor Non-Onex Holder”) hereby
constitutes and appoints the President and Treasurer of the Company, and each
of them, with full power of substitution, (i) as the proxies of such Minor
Non-Onex Holder with respect to the matters set forth in this Section 3.2(a), and hereby
authorizes each of them to vote all of such Minor Non-Onex Holder’s Shares in a
manner which is consistent with the terms and provisions of this Section 3.2(a) and
(ii) as its true and lawful attorney, in its name, place and seal, to
execute any agreements or documents required to be executed by such Minor
Non-Onex Holder pursuant to this Section 3.2(a).
The proxy and grant of power of attorney granted pursuant to the immediately
preceding sentence are given in consideration of the agreements and covenants
of the Company and the Holders in connection with the transactions contemplated
by this Agreement and, as such, are coupled with an interest and shall be
irrevocable unless and until this Agreement terminates or expires in accordance
with its terms. Each Minor Non-Onex Holder hereby revokes any and all previous
proxies or powers of attorney with respect to the Shares.


 


(b)                                 Not less than thirty (30) days prior to
the date proposed for the closing of any Drag Along Transaction, the Dragging
Holders shall give notice to each Holder, setting forth in reasonable detail
the name or names of the Third-Party Buyer, the terms and conditions of the
Drag Along Transaction, including the transaction price, and the proposed
closing date.


 


(c)                                  For the avoidance of doubt,
notwithstanding any other provision of this Section 3.2,
in the event that a Drag Along Transaction involves both shares of Common Stock
and shares of Preferred Stock, the economic terms of the Drag Along Transaction
shall be the same on a per Share basis, based upon the number of shares of
Common Stock issuable upon the conversion of such Preferred Stock at the
then-existing Conversion Price (as defined in the Certificate of Designations
of the Class A Preferred Stock) of the Class A Preferred Stock.


 


3.3                                 Procedural Matters. Notwithstanding anything to the
contrary in this Section 3,
in connection with a Drag Along Transaction, no Holder shall be required to:
(a) make any representations or warranties other than representations and
warranties as to (i) their ownership


 


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of their Shares to be
sold free and clear of all liens, claims and encumbrances; (ii) their
power and authority to effect such sale; and (iii) such matters pertaining
to compliance with securities laws as the Third Party Buyer, as applicable, may
reasonably require; provided that the foregoing shall not limit any of
the obligations of a Holder pursuant to this Section 3 to share pro rata in any indemnification or
post-closing liabilities, subject to the following clause (b); or
(b) provide any indemnification other than indemnification that is
(i) several and not joint and (ii) expressly capped such that the
liability of the applicable Holder will not exceed the dollar amount of net
proceeds received by such Holder in the Drag Along Transaction.


 


4.                                       Board of Directors.


 


4.1                                 Size of the Board. Each Holder agrees to vote, or cause to
be voted, all Shares owned by such Holder that are entitled to so vote in the
election of directors, or over which such Holder has voting control, from time
to time and at all times, in whatever manner as shall be necessary, and take,
or cause to be taken, all other Necessary Action, to ensure that the number of
directors constituting the Board of Directors of the Company (the “Board”)
shall be set and remain at five (5) directors.


 


4.2                                 Board Composition. The Board or designated committee
thereof shall nominate or cause to be nominated individuals to serve as
directors in accordance with the designations in this Section 4.2. In addition, each Holder agrees to vote, or cause to be voted,
or execute one or more written consents representing, all Shares owned of
record or beneficially by such Holder, or otherwise over which such Holder has
voting authority, and take, or cause to be taken, all other Necessary Action, to
ensure that at each annual or special meeting of stockholders at which an
election of directors is held or pursuant to any written consent of the
stockholders, in each case that includes as a matter to be acted upon by the
stockholders the election of directors (including, without limitation, the
filling of a vacancy existing on the Board), or following the designation of
any individual to serve as the Non-Onex Designee in accordance with Section 4.5, the following persons shall be elected to the Board:


 


(a)                                  For so long as the Onex Stockholders
continue to own beneficially at least ten percent (10%) of the then outstanding
Shares, one (1) individual designated by the Onex Stockholders (the “Non-Independent
Onex Designee”), who need not be an Independent Director, which individual
shall initially be Tim Duncanson;


 


(b)                                 For so long as the Onex Stockholders
continue to own beneficially at least twenty percent (20%) of the then
outstanding Shares, one (1) additional
individual designated by the Onex Stockholders (the “First Independent Onex
Designee”), who shall be an Independent Director, which individual shall
initially be Bruce Bennett; provided that to the extent Alex Yemenidjian
shall no longer be the CEO Director, the First Independent Onex Designee need not
qualify as an Independent Director as defined herein;


 


(c)                                  For so long as the Onex Stockholders
continue to own beneficially at least thirty percent (30%) of the then
outstanding Shares, one (1) additional individual designated by the Onex
Stockholders (the “Second Independent Onex Designee” and together with
the First Independent Onex Designee, the “Onex Independent Designees”),
who shall be an Independent Director, which individual shall initially be Joel
Greenberg;


 


(d)                                 For so long as the Onex Stockholders
continue to own beneficially at least twenty percent (20%) of the then
outstanding Shares, one (1) individual designated by the Non-Onex Holders
in accordance with Section 4.5
(the “Non-Onex Designee”), who shall be an Independent Director, which
individual shall initially be Judy Mencher; and


 


10

















 


(e)                                  The Company’s then serving Chief
Executive Officer, who shall initially be Alex Yemenidjian (the “CEO
Director”), provided that if for any reason the CEO Director shall
cease to serve as the Chief Executive Officer of the Company, the Company shall
seek to obtain the immediate resignation of the CEO Director as a director of
the Company contemporaneously with such CEO Director’s termination of service
to the Company as its Chief Executive Officer. In the event such resignation is
not effective within ten (10) days of such termination of service, the
Company shall call a special meeting of stockholders or seek the written
consents of stockholders, in each case to approve or consent to the removal of
the CEO Director with or without cause. In connection with any such meeting or
written consent, each of the Holders shall vote their respective Shares
(i) to remove the former Chief Executive Officer from the Board if such
person has not previously resigned as a director and (ii) to elect such
person’s replacement as Chief Executive Officer of the Company as the new CEO
Director. Any employment agreement between the Company and the Chief Executive
Officer of the Company shall contain a requirement that the Chief Executive
Officer of the Company resign as the CEO Director contemporaneous with
termination of his service as the Chief Executive Officer of the Company.
Notwithstanding anything to the contrary in the foregoing, an individual who
formerly served as the CEO Director and/or Chief Executive Office of the
Company may be nominated, designated, and/or elected as a director of the
Company (other than the CEO Director) in accordance with this Section 4.2.


 


To the extent that a
Person or group ceases to have the right to designate a director pursuant to
any of (a) through (d) above, the member of the Board who would
otherwise have been designated in accordance with the terms thereof shall
instead be voted upon by all the stockholders of the Company entitled to vote
thereon in accordance with, and pursuant to, the Certificate of Incorporation.


 


4.3                                 Failure to Designate a
Board Member. In the absence of any designation from the Persons or groups then
entitled to designate a director as specified in Section 4.2,
the director previously designated by such Persons or groups and then serving
shall be the designee thereof if such director shall be then eligible to serve
in accordance with Section 4.2.


 


4.4                                 Removal of Board Members;
Vacancies.


 


(a)                                  No director elected pursuant to Section 4.2 of this Agreement may
be removed from office unless (i) (A) in the case of a director
designated pursuant to Sections 4.2(a) through
(c), such removal is directed or
approved by the Onex Stockholders, and (B) in the case of the Non-Onex
Designee, and provided that Non-Onex Holders are then entitled to designate a
director pursuant to Section 4.2(d),
such removal is directed or approved by (x) the joint written agreement of
the Major Non-Onex Stockholders or (y) the Holders of fifty percent (50%)
of the Shares held by the Non-Onex Holders, or (ii) the
Person(s) originally entitled to designate or approve such director or
occupy such Board seat pursuant to Section 4.2
is no longer so entitled to designate or approve such director or occupy such
Board seat, in which case the holders of a majority of the Shares outstanding
and entitled to vote may remove such director.


 


(b)                                 (i) Upon the request, and only upon
the request, of any Onex Stockholder to remove a director designated pursuant
to any of Sections 4.2(a) through (c), such director shall be
removed; (ii) provided that the Non-Onex Holders are then entitled to
designate a director pursuant to Section 4.2(d),
then upon the request, and only upon the request of (x) the Major Non-Onex
Stockholders, by joint written agreement, or (y) the Holders of more than
fifty percent (50%) of the Shares held by Non-Onex Holders to remove the
Non-Onex Designee, such director shall be removed, and (iii) except as


 


11

















 


provided above, any
director shall be removed upon the request of the holders of a majority of the
Shares outstanding and entitled to vote.


 


(c)                                  Any vacancies created by the resignation,
removal or death of a director shall be filled pursuant to the provisions of Section 4.2.


 


(d)                                 At any meeting of the stockholders at
which removal of a director is to be considered or in connection with any
written consent of stockholders to effect removal of a director, each Holder
also agrees to vote, or cause to be voted, or execute one or more written
consents representing, all Shares owned of record or beneficially by such
Holder, or otherwise over which such Holder has voting authority, and take, or
cause to be taken, all other Necessary Action, to ensure compliance with this Section 4.4.


 


4.5                                 Designation of the
Non-Onex Designee. For such time as the Non-Onex Holders are then
entitled to designate a Non-Onex Designee pursuant to Section 4.2(d), such individual shall be designated
in accordance with the provisions of this Section 4.5:


 


(a)                                  Designation by Joint Agreement. Subject to the other provisions of this
Section 4.5, the Non-Onex Designee shall be
designated annually by joint written agreement among each Holder that
(i) is a Non-Onex Holder, and (ii) owns beneficially more than 5% of
the then outstanding Shares (each Holder who satisfies the conditions set forth
in (i) and (ii), a “Major Non-Onex Stockholder”), at any time prior
to the date that is one hundred twenty (120) days before the anniversary of the
annual meeting of the Company’ stockholders held during the prior year (such
date, the “Major Non-Onex Stockholder Nomination Deadline”). The Major
Non-Onex Stockholders shall provide the Company with notice of any joint
designation of the Non-Onex Designee pursuant to this Section 4.5(a).


 


(b)                                 Nominations Prior to Annual Meeting. If, but only if, the Major Non-Onex
Stockholders are unable to reach a joint written agreement as to the Non-Onex
Designee pursuant to Section 4.5(a), each Major Non-Onex Stockholder may
nominate an individual to serve as the Non-Onex Designee by submitting written
notice to the Company, which shall identify its nominee, at any time prior to
the Major Non-Onex Stockholder Nomination Deadline. If, but only if, as of the
Major Non-Onex Stockholder Nomination Deadline, the Company has not received
written notice from any Major Non-Onex Stockholder nominating an individual to
serve as the Non-Onex Designee, then the Company shall give notice to each
Holder that is not an Onex Stockholder (each such Holder, a “Non-Onex Holder”),
at the address for such Non-Onex Holder set forth on the signature
pages hereto, of the opportunity for Non-Onex Holders who collectively own
beneficially more than five percent (5%) of the then outstanding Shares (such
group of Holders, a “Non-Onex Holder Group”) to jointly nominate an
individual to serve as the Non-Onex Designee. In such event, a Non-Onex Holder
Group may jointly nominate an individual to serve as the Non-Onex Designee by
submitting written notice to the Company, which shall identify its nominee, at
any time prior to the date that is ninety (90) days before the anniversary of
the annual meeting of the Company’ stockholders held during the prior year (such
date, the “Final Deadline”). The Company shall take, or cause to be
taken, such actions as are necessary to submit the names of the nominees
provided by the Major Non-Onex Stockholders or Non-Onex Holder Group, as
applicable, or the name of the nominee pursuant to Section 4.5(d), if applicable, to a vote of the
Non-Onex Holders at the annual meeting of stockholders. The nominee receiving a
plurality of votes of the Non-Onex Holders at the annual meeting of
stockholders shall be the Non-Onex Designee until such time as another
individual is designated as the Non-Onex Designee in accordance with the terms
hereof.


 


12














 


(c)                                  Vacancy Created by Failure to Nominate. In the event that no Major Non-Onex
Stockholders or any Non-Onex Holder Group nominates any individual to serve as
the Non-Onex Designee on or prior to the Final Deadline pursuant to this Section 4.5, and there is no Non-Onex Designee pursuant to Section 4.4(d), then the Non-Onex Designee shall be
designated by mutual agreement of the Onex Independent Designees, and shall be
an Independent Director.


 


(d)                                 Notwithstanding anything herein to the
contrary, in the event the Onex Stockholders continue to own beneficially at
least twenty percent (20%) of the then outstanding Shares at the time of the
2010 annual meeting of the Company’s stockholders, the Non-Onex Designee then
serving shall be, without any action required on the part of any Holder,
nominated to serve as the Non-Onex Designee.


 


4.6                                 No Liability for
Election of Recommended Directors. No Holder, nor any Affiliate of any Holder, shall
have any liability as a result of designating a person for election as a director
for any act or omission by such designated person in his or her capacity as a
director of the Company, nor shall any Holder have any liability as a result of
voting for any such designee in accordance with the provisions of this
Agreement.


 


5.                                       Company Restrictions.


 


5.1                                 Certain Actions
Requiring Approval of Holders. The Company shall not take any of the following
actions unless authorized by (i) more than two-thirds (2/3) of the votes
cast by Holders of Shares entitled to vote and actually voting in respect of
the matter at issue (the “Special Approval Requirement”) and
(ii) if applicable, such minimum number or percentage of stockholders as
is otherwise required by law:


 


(a)                                  Amend, repeal, modify or waive
application of any provision in the Certificate of Incorporation or the By-Laws
except (i) through a Licensing Action which Licensing Action shall be
governed in all respects by Section 5.2(a)(3) of
this Agreement; (ii) pursuant to the second to last sentence of Section 11.3; (iii) to implement an Equity
Issuance duly-approved in accordance with Section 5.2(a)(2), if applicable, the Certificate of
Incorporation and the By-Laws; and (iv) such amendments, repeals,
modifications and waivers that are purely ministerial in nature; provided,
however, that any such amendment, repeal, modification or waiver that
would be inconsistent with the express provisions of Section 4 or Section 5.2 of this Agreement may
only be made in connection with or substantially contemporaneously with the
closing of a Qualified Public Offering or the listing of any class of Common
Stock on a national securities exchange; or


 


(b)                                 Unless otherwise permitted pursuant to  Section 3.2(a),
sell, transfer or otherwise dispose of all or substantially all of the assets
of the Company (determined on a consolidated basis), or merge or consolidate
the Company into or with another person or entity (other than a wholly-owned
Subsidiary thereof).


 


(c)                                  Liquidate, dissolve or wind up.


 


Provided, that:


 


(i)                                     notwithstanding the Certificate of
Incorporation, the shares of Class B Common Stock shall be entitled to one
vote per share in respect of the matters specified in clauses (a), (b) and
(c) above and shall vote as a single class together with the holders of
shares of Class A Common Stock for purposes of the Special Approval
Requirement;


 


13

















 


(ii)                                  if and to the extent that a stockholder
vote other than as set forth above is required by law, then the Holders of
Class A Common Stock, Class B Common Stock and, if applicable, any
other Shares in the capital stock of the Company not otherwise carrying the
right to vote in respect of such matter but granted voting rights in respect
thereof by law, hereby expressly waive any right they may have to vote separately
as a class or series (including, without limitation, any such right pursuant to
Section 242(b)(2) of the DGCL), and instead shall vote together as a
single class in respect of such further approval (without, for greater
certainty, limiting any other rights of the holders of Class A Common
Stock as a separate class). If necessary in order to give effect to the
foregoing, in the event that the Holders of Class A Common Stock and
Class B Common Stock, voting together as a single class as required by
this clause (ii), approve any matter specified in clauses (a)-(c) above in
circumstances where a separate class vote of either or both of the Class A
Common Stock or Class B Common Stock is required by law, then the Holders
of Class A Common Stock or Class B Common Stock, as applicable,
voting as a separate class, shall vote, or cause to be voted, or execute one or
more written consents representing, sufficient Shares owned of record or
beneficially by such Holders, or otherwise over which such Holders have voting
authority, and take, or cause to be taken, all other Necessary Action, to
ensure that such Holders’ approval is obtained for purposes of said separate
class vote or votes.


 


5.2                                 Matters Requiring the
Unanimous Approval of the Entire Board.


 


(a)                                  Except with the unanimous approval of the
Board (excluding any vacancies and, in the case of clause (1) below, any
director with a direct or indirect interest in a Related Party Transaction (as
defined below)):


 


(1)                                  the Company shall not, and shall cause
each of its Subsidiaries not to, enter into any contract, lease, license,
agreement or arrangement with, or materially amend, repeal, materially modify
or waive application of any material provision of any contract, lease, license,
agreement or arrangement with, any director, officer or key employee of the
Company or any of its Subsidiaries or any direct or indirect owner of one
percent (1%) or more of the capital stock of the Company (including, for
greater certainty, a management agreement with Trilliant Management, L.P., for
so long as the Onex Stockholders own shares of Common Stock), or any Affiliate
of any such Person (any of the foregoing, a “Related Party Transaction”);
provided that amendments to this Agreement shall be governed by Section 11.3 hereof;


 


(2)                                  on or before May 5, 2012,(1) the
Company shall not sell or issue, or agree or commit to sell or issue, any
shares of capital stock, or any instrument or security convertible into shares
of capital stock, or any options, warrants or other rights to purchase or
acquire shares of capital stock (an “Equity Issuance”), except with
respect to:


 


i.                                          the issuance of securities in any
Recapitalization;


 


ii.                                       the issuance or sale of shares of Common
Stock or options therefor to officers, directors or employees of the Company or
any of its Subsidiaries under any Equity Incentive Plan or upon exercise of
options or other awards granted under any such Equity Incentive Plan;


 






(1) This date is to be
the third anniversary of the Plan confirmation date.


 


14

















 


iii.                                    the issuance of up to $125 million in
gross proceeds to the Company in Preferred Stock, including any shares of
Preferred Stock issued in connection with the Rights Offering;


 


iv.                                   the issuance of shares of Common Stock upon
conversion of the Preferred Stock;


 


v.                                      the issuance of shares of Class B
Common Stock upon conversion of the Class A Common Stock;


 


vi.                                   the issuance of shares of Class A
Common Stock upon conversion of the Class B Common Stock;


 


vii.                                the issuance of any securities of the
Company to the public pursuant to a registered public offering made in
accordance with the provisions of this Agreement and applicable law;


 


viii.                             the issuance of any securities of the Company as
consideration in a duly-approved business acquisition, merger or other business
combination transaction to be entered into with any Person or group (within the
meaning of the Exchange Act), other than any Affiliate of the Company;


 


ix.                                     the issuance of any securities of the
Company to any debt holders of the Company or any of its Subsidiaries in
connection with non-equity financing transactions to be entered into with any
Person or group (within the meaning of the Exchange Act) other than any
Affiliate of the Company; or


 


x.                                        the issuance of stock dividends paid to
all holders of the relevant class(es) of Shares (including, for purposes
hereof, a dividend or distribution on Preferred Stock in satisfaction of
(i) any pay-in-kind dividend entitlements, or (ii) any entitlement to
participate in distributions together with the shares of Common Stock).


 


(3)                                  the Company shall not, and the Board
shall not cause the Company to, amend, repeal, modify or waive application of
any provision in the Certificate of Incorporation or the By-Laws in a manner
that would result in, or take any other action that would result in, any Holder
of Shares that is not then required to be licensed or found suitable by the
Gaming Authorities to be required to be so licensed or found suitable (a “Licensing
Action”), unless such Licensing Action is required as a result of a change
in applicable law, regulation or rule of the Gaming Authorities, in which
case the affirmative vote of only a simple majority of the members of the Board
(excluding vacancies) shall be required for such Licensing Action; provided,
that in the event that such Licensing Action is approved by the Board as
required by this Section 5.2(a)(3) and
the provisions of the DGCL also expressly require stockholder approval of such
Licensing Action in addition to approval of the Board, then (x) such
Licensing Action also shall require the approval of the holders of the
Class A Common Stock and of such other class(es) and/or series of shares
of the Company’s capital stock as are expressly required by such provisions and
of no other class or series of shares of the Company’s capital stock;
(y) such approval need only be given by the affirmative vote of the
minimum number or percentage of such shares as is required by the relevant


 


15

















 


provision of the DGCL;
and (z) the holders of such shares shall vote together as a single class
to the maximum extent permitted by the DGCL; or


 


(4)                                  Voluntarily suspend or fail to make any
filings required for the Company to maintain its qualification as a
“publicly-traded corporation” within the meaning of Nevada Revised Statutes
section 463.487.


 


(b)                                 Notwithstanding Section 5.2(a) of this
Agreement:


 


(1)                                  from and after July 1, 2011, the
Company may complete a transaction or take an action otherwise prohibited by Section 5.2(a)(2) of this
Agreement in the event that a majority of the entire Board, excluding
vacancies, votes to approve such transaction and the transaction is authorized
by more than two-thirds (2/3) of the votes cast by holders of Shares entitled
to vote and actually voting in respect of the matter at issue (it being
acknowledged that (x) the holders of shares of Class B Common Stock
shall be entitled to vote in respect of such matter, that such shares shall
carry one vote per share and that the holders of Class A Common Stock and
the holders of Class B Common Stock shall vote together as a single class
in respect of such matter, and (y) in the event that the provisions of the
DGCL require that the issued and outstanding shares of any other class of
capital stock of the Company not carrying voting rights generally are
nonetheless entitled to vote on such matter, they hereby expressly waive any
right they may have to vote separately as a class or series (including, without
limitation, any such right pursuant to Section 242(b)(2) of the
General Corporation Law of the State of Delaware), and instead shall vote
together with the holders of Class A Common Stock and the holders of
Class B Common Stock as a single class; and


 


(2)                                  in the event of Distress (as defined
below), a majority of the Board, excluding vacancies, or, to the extent
permitted by applicable law, the Holders of a majority of the Shares entitled
to vote thereon shall have the right to require the Company to complete any
transaction otherwise prohibited by Sections 5.2.(a)(1) 
or 5.2(a)(2) of this Agreement as
necessary to cure, avoid or mitigate the effects of such Distress. In the event
the Board or the requisite percentage of the Holders of Shares cause the
completion of any such transaction as contemplated by the preceding sentence,
(x) any Equity Issuance will be subject to proportionate preemptive rights
in favor of all Holders of Shares on the terms and conditions set forth in Section 5.3 this Agreement; and
(y) any Affiliate Transaction must be on terms that are no less favorable
to the Company than those that would have been available in a comparable
transaction with an unrelated third party. “Distress” means any
event(s) or circumstance(s) that will or are reasonably anticipated
to cause or result in (i) an imminent default under any indebtedness of
the Company or any of its Subsidiaries, which default is reasonably likely to
result in the acceleration of such indebtedness either automatically or with
the giving of notice, the passage of time or both, provided that, without limiting the generality of the foregoing, a
default that is measured on a specified date or dates shall be deemed to be
imminent if the relevant covenant, restriction or limitation will or is
reasonably expected to be violated on any such measurement date arising in the
subsequent 12 months; or (ii) the loss of, or the imposition of a material
condition or restriction on, any license, permit or approval required to own
the assets or conduct the business of the Company or any of its Subsidiaries or
the violation of any law, regulation or rule governing the same, which
violation could have a material adverse effect on the Company, any of its
Subsidiaries or the business of the Company or any of its Subsidiaries.


 


16

















 


5.3                                 Preemptive Rights.


 


(a)                                  The Company shall not issue, or agree to
issue, any additional shares of capital stock or evidences of other securities
convertible into or exercisable or exchangeable for shares of capital stock, or
rights, options or warrants to subscribe for, purchase or otherwise acquire any
of the foregoing (“Preemptive Securities”), unless the Company first
submits a written notice to each Holder owning Shares at the time of such notice
(a “Preemptive Holder”) identifying the terms of the proposed sale
(including price, number or aggregate principal amount of securities and all
other material terms), and offers to each Holder the opportunity to purchase
its Pro Rata Share (as hereinafter defined) of the securities (subject to
increase for over-allotment if some Holders do not fully exercise their rights)
on terms and conditions, including price, not less favorable than those on
which the Company proposes to sell such securities to a third party or parties
(the “Preemptive Offer Notice”). The Company’s offer pursuant to this Section 5.3 shall be on terms
substantially identical to the terms of the Company’s proposed issuance of
Preemptive Securities and shall remain open for a period of twenty (20)
Business Days from the date the Preemptive Offer Notice is delivered by the
Company to the Preemptive Holder (the “Preemptive Offer Period”).
Notwithstanding the foregoing, for the avoidance of doubt, nothing shall
prevent the Company from withdrawing such offer at any time, subject to
compliance with the terms of this Section 5.3.
The preemptive right provided by this Section 5.3
shall apply to the issuance of rights, options or warrants to purchase shares
and securities convertible into shares of capital stock of the Company and not
to the issuance of shares of capital stock of the Company upon exercise or
conversion of such rights, options, warrants or convertible securities.


 


(b)                                 Each Preemptive Holder may elect to
purchase the securities so offered by giving written notice thereof to the
Company within such Preemptive Offer Period, including in such written notice
the maximum number of Preemptive Securities that the Preemptive Holder wishes
to purchase, including the number of such Preemptive Securities it would
purchase if one or more other Preemptive Holders do not elect to purchase their
respective Pro Rata Share.


 


(c)                                  Notwithstanding the foregoing, the right
to purchase Preemptive Securities granted under this Section 5.3 shall be inapplicable with
respect to:


 


(1)                                  any Recapitalization;


 


(2)                                  the issuance or sale of shares of Common
Stock or options therefor issued to officers, directors or employees of the
Company or any of its Subsidiaries under any Equity Incentive Plan or upon
exercise of options or other awards granted under any such Equity Incentive
Plan;


 


(3)                                  the issuance of up to $125 million in
gross proceeds to the Company in Preferred Stock, including any shares of
Preferred Stock issued in connection with the Rights Offering;


 


(4)                                  the issuance of shares of Common Stock
upon conversion of the Preferred Stock;


 


(5)                                  the issuance of shares of Class B Common Stock upon conversion of the
Class A Common Stock;


 


17

















 


(6)                                  the issuance of shares of Class A
Common Stock upon conversion of the Class B Common Stock;


 


(7)                                  the issuance of any securities of the
Company to the public pursuant to a registered public offering made in
accordance with the provisions of this Agreement and applicable law;


 


(8)                                  the issuance of any securities of the
Company as consideration in a duly-approved business acquisition, merger or
other business combination transaction to be entered into with any Person or
group (within the meaning of the Exchange Act), other than any Holder as of the
date hereof or any Affiliate of the Company;


 


(9)                                  the issuance of any securities of the
Company to any debt holders of the Company or any of its Subsidiaries in
connection with non-equity financing transactions to be entered into with any
Person or group (within the meaning of the Exchange Act), other than any Holder
as of the date hereof or any Affiliate of the Company; or


 


(10)                            the issuance of stock dividends paid to
all holders of the relevant class(es) of Shares (including, for purposes hereof,
a dividend or distribution on Preferred Stock in satisfaction of (i) any
pay-in-kind dividend entitlements, or (ii) any entitlement to participate
in distributions together with the shares of Common Stock).


 


(d)                                 Each Preemptive Holder may elect to purchase
all or any portion of such Preemptive Holder’s Pro Rata Share of the Preemptive
Securities as specified in the Preemptive Offer at the price and on the terms
specified therein by delivering written notice of such election to the Company
prior to the expiration of the Preemptive Offer Period. If one or more
Preemptive Holders do not elect to purchase their respective Pro Rata Share,
each of the electing Preemptive Holders may purchase such shares of such
Preemptive Holders’ allotments taking into account the maximum amount each is
wishing to purchase on a pro rata basis, based upon the relative holdings of
Shares of each of the electing Preemptive Holders in the case of
over-subscription.


 


(e)                                  The term “Pro Rata Share” shall
mean, with respect to any Preemptive Holder, a portion of the Preemptive
Securities equal to the product of (i) the total number or amount of
Preemptive Securities and (ii) a fraction, (A) the numerator of which
is the total number of Shares then owned by such Preemptive Holder and
(B) the denominator of which is the total number of Shares then
outstanding, including for this purpose Shares issuable upon the exercise of
vested options.


 


(f)                               Any Preemptive Securities so offered that
are not purchased by the Preemptive Holders pursuant to the Preemptive Offer
Notice, may be sold by the Company, but only on terms and conditions not more
favorable in the aggregate to the purchaser than those set forth in the
Preemptive Offer Notice, at any time after three (3) Business Days but
within thirty (30) Business Days following the termination of the Preemptive
Offer Period, but may not be sold to any other Person or on terms and
conditions, including price, that are more favorable in the aggregate to the
purchaser than those set forth in such Preemptive Offer Notice or after such
thirty (30) Business Day period without renewed compliance with this Section 5.3.


 


18

















 


(g)                                 Notwithstanding the foregoing, nothing in
Section 5.3(a)-(f) shall
be deemed to prevent the Company from issuing any Preemptive Securities (the “Issuance”),
to any Person (the “Purchasing Holder”), without first complying with
the provisions of Section 5.3(a)-(f);  provided that in connection
with such Issuance to the Purchasing Holder, (i) the Board has determined
in good faith that the delay caused by compliance with the provisions of Section 5.3(a)-(f), in connection with such Issuance
would be reasonably likely to adversely affect the Company or any of its
Subsidiaries; (ii) the Company gives prompt notice of such Issuance to the
each Holder as soon as reasonably practicable after the date of such Issuance;
and (iii) the Company takes all steps reasonably necessary to enable the
Preemptive Holders to effectively exercise their respective rights under Section 5.3(a)-(f), with
respect to such Issuance by having the right to purchase their pro rata share,
based on the percentage of outstanding Shares held by the Preemptive Holders,
of the Preemptive Securities issued to the Purchasing Holder from the
Purchasing Holder following the Issuance on the terms specified in Section 5.3(a)-(f).


 


(h)                                 Notwithstanding the foregoing, the
Company shall not be required to issue any Preemptive Securities to any
Preemptive Holder that has not received all licenses and approvals, if any,
required by applicable Gaming Laws in connection with such issuance by the end
of the applicable Preemptive Offer Period.


 


6.                                       Committees. The Board, by resolution adopted by a
majority of the entire Board shall form and maintain the following committees
of directors, which shall serve at the Board’s pleasure and have such powers
and duties as the Board determines:


 


(a)                                  The Audit Committee of the Company, which
shall consist of three (3) directors, provided, however,
that (i) for so long as the Onex Stockholders hold, in aggregate, at least
twenty percent (20%) of the Shares, (A) the Onex Stockholders collectively
shall have the right to designate two (2) members of the Audit Committee
and (B) (x) in the event the Non-Onex Holders are then entitled to
designate a director pursuant to Section 4.2(d),
the Non-Onex Designee shall be a member of the Audit Committee or (y) in
the event the Non-Onex Holders are no longer entitled to designate a director
pursuant to Section 4.2(d), a director
who is neither the CEO Director nor an Onex Designee shall be a member of the
Audit Committee; and (ii) for so long as the Onex Stockholders hold, in
aggregate, at least ten percent (10%) but less than less than twenty percent
(20%) of the Shares, the Onex Stockholders collectively shall have the right to
designate one (1) member of the Audit Committee;


 


(b)                                 The Nominating/Governance Committee of
the Company, which shall consist of three (3) directors, provided, however,
that (i) for so long as the Onex Stockholders hold, in aggregate, at least
twenty percent (20%) of the Shares, (A) the Onex Stockholders collectively
shall have the right to designate two (2) members of the
Nominating/Governance Committee and (B) (x) in the event the Non-Onex
Holders are then entitled to designate a director pursuant to Section 4.2(d), the Non-Onex
Designee shall be a member of the Nominating/Governance Committee or
(y) in the event the Non-Onex Holders are no longer entitled to designate
a director pursuant to Section 4.2(d), a director who is neither the CEO
Director nor an Onex Designee shall be a member of the Nominating/Governance
Committee; and (ii) for so long as the Onex Stockholders hold, in
aggregate, at least ten percent (10%) but less than less than twenty percent
(20%) of the Shares, the Onex Stockholders collectively shall have the right to
designate one (1) member of the Nominating/Governance Committee; and


 


19

















 


(c)                                  The Compensation Committee of the
Company, which shall consist of three (3) directors, provided,
however, that (i) for so long as the Onex Stockholders hold, in
aggregate, at least twenty percent (20%) of the Shares, (A) the Onex
Stockholders collectively shall have the right to designate two (2) members
of the Compensation Committee and (B) (x) in the event the Non-Onex
Holders are then entitled to designate a director pursuant to Section 4.2(d), the Non-Onex Designee shall be a
member of the Compensation Committee or (y) in the event the Non-Onex
Holders are no longer entitled to designate a director pursuant to Section 4.2(d), a director who is neither the CEO Director nor an Onex Designee
shall be a member of the Compensation Committee; and (ii) for so long as
the Onex Stockholders hold, in aggregate, at least ten percent (10%) of the
Shares, the Onex Stockholders collectively shall have the right to designate
one (1) member of the Compensation Committee.


 


It is acknowledged and
agreed that the Nominating/Governance Committee and the Compensation Committee
may be a single committee.


 


7.                                       Registration Rights.


 


7.1                                 Definitions. For purposes of this Section 7, the following terms have the following meanings:


 


(a)                                  “Demand Registration”: As defined
in Section 7.2.4(b).


 


(b)                                 “Indemnified Party”: As defined in Section 7.6.3.


 


(c)                                  “Indemnifying Party”: As defined
in Section 7.6.3.


 


(d)                                 “Initial Public Offering”: As
defined in Section 7.2.4(a).


 


(e)                                  “Initial Shelf Registration Statement”:
As defined in Section 7.2.1(a).


 


(f)                                    “Losses”: As defined in Section 7.6.1.


 


(g)                                 “Other Holders”: As defined in Section 7.4.2.


 


(h)                                 “Piggyback Notice”: As defined in Section 7.3.1.


 


(i)                                     “Piggyback Registration”: As
defined in Section 7.3.1.


 


(j)                                     “Primary Shelf Blackout Period”:
As defined in Section 7.2.3(a).


 


(k)                                  “Prospectus”: The prospectus
included in the applicable Registration Statement, as supplemented by any and
all prospectus supplements and as amended by any and all amendments (including
without limitation post-effective amendments) and including without limitation
all material incorporated by reference or deemed to be incorporated by
reference in such prospectus.


 


(l)                                     “Qualifying Holders”: Any Holder
who, together with its Affiliates, holds five percent (5%) or more of the
issued and outstanding shares of Common Stock on the date of determination for
so long as such Person holds Registrable Securities.


 


(m)                               “Registrable Securities”:
Collectively, (i) the shares of Common Stock held by any Qualifying
Holders or issuable upon conversion of any securities owned by


 


20

















 


any Qualified Holder at
any time and (ii) any other securities paid, issued or distributed on
account of any such shares described in clause (i) by way of stock
dividend, stock split or distribution, or in exchange for or in replacement of
any such shares in connection with a combination of shares, recapitalization,
reorganization, merger or consolidation, or otherwise; provided, however,
that as to any Registrable Securities, such securities will irrevocably cease
to constitute “Registrable Securities” upon the earliest to occur of: (A) the
date on which the securities are disposed of pursuant to an effective
registration statement under the Securities Act; (B) the date on which the
securities are distributed to the public under and in accordance with
Rule 144 (or any successor provision) under the Securities Act;
(C) the date on which the securities may be freely sold publicly without
either registration under the Securities Act or compliance with any restrictions,
including without limitation restrictions as to volume or manner of sales,
under Rule 144 (or any successor provision); (D) the date on which the securities have been transferred to
any Person that is not a Qualifying Holder; or (E) the date on which the
securities cease to be outstanding.


 


(n)                                 “Registration Expenses”: As
defined in Section 7.5.4(a).


 


(o)                                 “Registration Statement”: Any
registration statement of the Company under the Securities Act that covers any
of the Registrable Securities pursuant to the provisions of this Agreement,
including without limitation the related Prospectus, all amendments and
supplements to such registration statement (including without limitation
post-effective amendments), and all schedules, all exhibits and all materials
incorporated by reference or deemed to be incorporated by reference in such
registration statement.


 


(p)                                 “Rule 144”: Rule 144
under the Securities Act, as such Rule may be amended from time to time,
or any similar rule or regulation hereafter adopted by the SEC.


 


(q)                                 “SEC”: The Securities and Exchange
Commission.


 


(r)                                    “Secondary Shelf Blackout Period”: As defined in Section 7.2.3(b).


 


(s)                                  “Shelf Blackout Period”: Either a
Primary Shelf Blackout Period or a Secondary Demand Blackout Period.


 


(t)                                    “Shelf Registration Statement”:
The Initial Shelf Registration Statement or a Substitute Shelf Registration
Statement, as the case may be.


 


(u)                                 “Substitute Shelf Registration Statement”: As defined in Section 7.2.1(b).


 


(v)                                 “Substitution Date”: As defined in Section 7.2.1(b).


 


(w)                               “Termination Date”: As defined in Section 7.2.1(a).


 


(x)                                   “Underwritten Offering”: An
offering in which securities of the Company are sold to one or more
underwriters for reoffering to the public.


 


7.2                                 Registration. Notwithstanding anything in this
Agreement to the contrary, the Company’s obligations pursuant to this Section 7 shall be contingent upon
prior receipt of all necessary licenses and approvals under the applicable
Gaming Laws by the Company or a Subsidiary of the Company, as applicable, and
the Company shall not be required to file any registration statement in the
absence of such necessary or advisable licenses and approvals.


 


21














 


Notwithstanding any other
provision of this Section 7, the only shares of capital stock of
the Company that may be sold pursuant to a registration statement filed under
this Section 7 on or
after the date of the Initial Public Offering shall be shares of the same class
that are then listed on a national stock exchange or quotation system.


 


7.2.1                        Filing of a Shelf Registration Statement.


 


(a)                                  At any time following the date that the
Company (i) is permitted by law to file an S-3 Shelf Registration
Statement and (ii) has available audited consolidated financial statements
for the required fiscal years prepared to comply with the rules of the SEC
set forth in Regulation S-X, a Qualifying Holder or Qualifying Holders then
holding not less than ten percent (10%) of the issued and outstanding shares of
Common Stock, excluding the Onex Stockholders, may, on not more than two
(2) occasions in aggregate, request in writing that the Company file a
Registration Statement on Form S-3 covering the resale of all Registrable
Securities held by the Qualifying Holders on a continuous basis under and in
accordance with Rule 415 under the Securities Act (the “Initial Shelf
Registration Statement”). In addition, at any time following the date that
the Company has available audited consolidated financial statements for the
required fiscal years prepared to comply with the rules of the SEC set
forth in Regulation S-X, a Qualifying Holder or Qualifying Holders then holding
not less than ten percent (10%) of the issued and outstanding shares of Common
Stock may request in writing that the Company file an Initial Shelf
Registration Statement on Form S-1 covering the resale of all Registrable
Securities held by the Qualifying Holders on a continuous basis under and in
accordance with Rule 415 under the Securities Act; provided that
the Company shall consider such request in good faith but shall not be required
to file or keep effective such Initial Shelf Registration Statement on
Form S-1 or any Substitute Shelf Registration Statement in connection
therewith and the Qualifying Holders acknowledge and agree that the Company
shall have no liability for not filing or keeping effective such Initial Shelf
Registration Statement on Form S-1 or any Substitute Shelf Registration
Statement in connection therewith. The Company will (i) prepare and file
the Initial applicable Shelf Registration Statement as promptly as reasonably
practicable (and in any event within, if the Initial Shelf Registration
Statement is on Form S-3 (or any applicable successor form), sixty (60)
days or, if the Initial Shelf Registration Statement is on any other form,
ninety (90) days) following receipt of such request); (ii) use
commercially reasonable efforts to cause the Initial Shelf Registration
Statement to be declared effective under the Securities Act as promptly as
reasonably practicable after such filing; and (iii) use commercially
reasonable efforts to cause the Initial Shelf Registration Statement, once
effective, to remain continuously effective until the first day on which there
ceases to be any Registrable Securities held by the Qualifying Holders (the “Termination
Date”), all subject to and in accordance with this Section 7.


 


(b)                                 If the Initial Shelf Registration or any
Substitute Shelf Registration Statement ceases to be effective for any reason
at any time prior to the Termination Date, in accordance with Section 7.5.1 the Company will use
commercially reasonable efforts to obtain the prompt withdrawal of any order
suspending the effectiveness thereof. In the event that any such order is not
withdrawn on or prior to the date that is forty-five (45) days after the date
of such order (the “Substitution Date”), the Company will either:


 


(i)                                     (A) prepare and file a
post-effective amendment to such Shelf Registration Statement as promptly as
reasonably practicable following the Substitution Date, (B) use
commercially reasonable efforts to cause such Shelf Registration Statement, as
so amended, to again be declared effective under the Securities Act as promptly
as reasonably practicable after such amendment is


 


22

















 


filed with the SEC, and
(C) use commercially reasonable efforts to cause such Shelf Registration
Statement as so amended, once effective, to remain continuously effective until
the Termination Date; or


 


(ii)                                  (A) file a separate Registration
Statement covering the resale of the Registrable Securities on a continuous
basis under and in accordance with Rule 415 under the Securities Act (any
such registration statement, a “Substitute Shelf Registration Statement”)
as promptly as reasonably practicable (and in any event within, if the
Substitute Shelf Registration Statement is on Form S-3 (or any applicable
successor form), sixty (60) days or, if the Substitute Shelf Registration
Statement is on any other form, ninety (90) days) following the Substitution
Date), (B) use commercially reasonable efforts to cause such Substitute
Shelf Registration Statement to be declared effective under the Securities Act
as promptly as reasonably practicable after such Substitute Shelf Registration
Statement is filed with the SEC, and (C) use commercially reasonable
efforts to cause such Substitute Shelf Registration Statement, once effective,
to remain continuously effective until the Termination Date;


 


all subject to and in
accordance with this Section 7.


 


(c)                                  If, at any time while there is a Shelf
Registration Statement on a form other than Form S-3 (or any applicable
successor form), the Company becomes eligible to use Form S-3 (or any
applicable successor form), the Company will take any action as may be
reasonably necessary to convert such Shelf Registration Statement to a Shelf
Registration Statement on Form S-3 (or any applicable successor form) as
promptly as reasonably practicable. Similarly, if, at any time while there is a
Shelf Registration Statement on Form S-3 (or any applicable successor
form), the Company becomes ineligible to use Form S-3 (or any applicable
successor form), the Company will take any action as may be necessary to
convert such Shelf Registration Statement to a Registration Statement on such
other form that the Company is then eligible to use as promptly as reasonably
practicable.


 


7.2.2                        Manner of Distribution pursuant to a
Shelf Registration Statement. Any Shelf Registration Statement will permit the
disposition of the Registrable Securities: (a) in one or more Underwritten
Offerings, subject to Section 7.2.4; (b) through block trades;
(c) through broker transactions; (d) through at-market transactions;
and (e) in any other manner as may be reasonably requested by any of the
Qualifying Holders.


 


7.2.3                        Blackout Period with respect to Shelf
Registration.


 


(a)                                  Notwithstanding anything contained in Section 7.2 to the contrary, if
(i) at any time during which (A) Qualifying Holders may request a
registration pursuant to Section 7.2.1(a) or
(B) the Company is obligated to file a post-effective amendment to a Shelf
Registration Statement or a Substitute Shelf Registration Statement pursuant to
Section 7.2.1(b), the Company files or proposes to
file a registration statement under the Securities Act with respect to an
offering of equity securities of the Company for its own account and
(ii) (A) in the case of an offering that is not an Underwritten
Offering, the Company gives the Qualifying Holders reasonable notice in writing
that the Board has determined, in the good faith exercise of its reasonable
business judgment, that a sale or distribution of Registrable Securities would
adversely affect such offering or (B) in the case of an Underwritten
Offering, the managing underwriter or underwriters advise the Company in
writing that a sale or distribution of Registrable Securities would adversely affect
such offering (in which case the Company will give the Qualifying Holders
reasonable notice in writing of such advice), then the Company will not be
obligated to


 


23

















 


effect the filing of the
Initial Shelf Registration Statement pursuant to Section 7.2.1(a) or the filing of a post-effective
amendment to a Shelf Registration Statement or a Substitute Shelf Registration
Statement pursuant to Section 7.2.1(b) during
the period (a “Primary Shelf Blackout Period”) that is thirty (30) days
prior to the date the Company estimates in good faith will be the date of the
filing of, and ending on the date which is sixty (60) days following the
effective date of, the registration statement the Company so proposes to file.


 


(b)                                 Notwithstanding anything contained in Section 7.2 to the contrary, if
the Board determines, in the good faith exercise of its reasonable business
judgment, that the registration and distribution of Registrable Securities
(i) would materially impede, delay or interfere with any financing,
acquisition, corporate reorganization or other significant transaction, or any
negotiations, discussions or pending proposals with respect thereto, involving
the Company or any of its Subsidiaries or otherwise be detrimental to the
Company and its stockholders; or (ii) would require disclosure of material
nonpublic information, the disclosure of which would not be in the best
interests of the Company, the Company will promptly give the Qualifying Holders
requesting a filing pursuant to Section 7.2.1
written notice of such determination and the Company will be entitled to
postpone the preparation, filing or effectiveness of the Initial Shelf
Registration Statement contemplated by Section 7.2.1(a) or
any post-effective amendment to a Shelf Registration Statement or a Substitute
Shelf Registration Statement pursuant to Section 7.2.1(b) for
a reasonable period of time (a “Secondary Shelf Blackout Period”) not to
exceed one hundred eighty (180) days.


 


(c)                                  In addition, notwithstanding anything
contained in Section 7.2.1
to the contrary, the Company may prohibit offers and sales of Registrable
Securities pursuant to a Shelf Registration Statement at any time if
(A)(i) it is in possession of material nonpublic information,
(ii) the Board determines that such prohibition is necessary in order to
avoid a requirement to disclose such material nonpublic information, and
(iii) the Board determines in good faith that disclosure of such material
non-public information would not be in the best interests of the Company or
(B) the Company is in negotiations or discussion with respect to or has
made a public announcement relating to a financing, acquisition, corporate
reorganization or other significant transaction that is material to the Company
and the Board determines in good faith that offers and sales of any such
Registrable Securities prior to the consummation of such transaction (or such
earlier date as the Board shall determine) is not in the best interests of the
Company (the period during which any such prohibition of offers and sales
pursuant to this paragraph (c), a “Suspension Period”). A Suspension
Period shall commence on and include the date on which the Company provides
written notice to the Qualifying Holders whose Registrable Securities are
qualified by such Shelf Registration Statement that offers and sales of
Registrable Securities cannot be made thereunder and shall end on the date on
which such Qualifying Holders are advised in writing by the Company that offers
and sales pursuant to the Shelf Registration Statement and use of the
prospectus constituting a part of the Shelf Registration Statement may be
resumed; provided, however, that the aggregate number of days in
all Suspension Periods during any calendar year shall not exceed one hundred
eighty (180).


 


7.2.4                        Underwritten Offerings.


 


(a)                                  If, at any time following the date that
the Company has available audited consolidated financial statements for the
required fiscal years prepared to comply with the rules of the SEC set
forth in Regulation S-X, (i) a majority of the members of the Board direct;
or (ii) the Holders which collectively represent (x) on or before
July 1,


 


24

















 


2014, a Super Majority
Interest; or (y) following July 1, 2014, a Majority Interest so
request in writing, the Company will initiate and use all commercially
reasonable efforts to cause the completion of an initial public offering of
equity securities of the Company on a national stock exchange (an “Initial
Public Offering”); provided, however, that the Company will
not be required to take any action in response to any such direction or
request, as the case may be, if, on the date such request is made under this Section 7.2.4(a), the Qualifying Holders are unable to
represent to the Company that they, in good faith, believe that the offering
will be a Qualified Public Offering. Upon receipt of a valid direction or
written request, as the case may be, pursuant to this Section 7.2.4(a), the Company will promptly deliver
written notice of the proposed Initial Public Offering to each Qualifying
Holder holding Registrable Securities. Subject to Section 7.4.2,
the Company will include in such Initial Public Offering all Registrable
Securities with respect to which the Company has received written requests for
such inclusion within ten (10) days after delivery of such notice.


 


(b)                                 At any time following the date that the
Company has available audited consolidated financial statements for the
required fiscal years prepared to comply with the rules of the SEC set
forth in Regulation S-X, so long as the Onex Stockholder(s) hold Shares
representing at least ten percent (10%) of the issued and outstanding Shares,
any Onex Stockholder(s) may request (a “Demand Registration”) by
written notice to the Company that the Company effect a registration under the
Securities Act of Registrable Securities held by the Onex Stockholders. The
Company shall, as expeditiously as is possible, use its commercially reasonable
efforts to effect the registration under the Securities Act of all shares of
Registrable Securities which the Onex Stockholders have so requested to
register for sale; provided, however, the Company shall not be
required to effect a registration, other than a shelf registration, pursuant to
a request under this Section 7.2.4 more than five (5) times at the
request of any Onex Stockholder(s). Upon receipt of a written request pursuant
to this Section 7.2.4(b), the Company will promptly deliver
written notice of the proposed offering to each Qualifying Holder holding
Registrable Securities. Subject to Section 7.4.2, there will be included in the
offering all Registrable Securities with respect to which the Company has
received written requests for such inclusion within twenty (20) days (or, in
the case of a “bought deal”, 24 hours) after delivery of such notice. For
greater certainty, a Demand Registration made at any time following the date
that the Company is first permitted by law to file an Initial Shelf
Registration Statement may be in respect of a shelf registration, in which case
the provisions of Sections 7.2.1, 7.2.2
and 7.2.3  shall
apply mutatis mutandis.


 


(c)                                  The managing underwriter or underwriters
will be selected by, in the case of an Initial Public Offering, the Company and
in the case of a Demand Registration, the Onex Stockholders.


 


7.3                                 Priority with Respect to Demand
Registrations. If
the Piggyback Registration is an offering pursuant to a Demand Registration
that is not an Underwritten Offering, the Onex Stockholders, acting in good
faith and based on reasonable business judgment, shall be entitled to make the
determinations that would have been made by the managing underwriters or
underwriters of an Underwritten Offering pursuant to Section 7.4.2 above, and such Section 7.4.2 shall apply mutatis mutandis.


 


7.4                                 Piggyback Registration.


 


7.4.1                        Right to Piggyback. If at any time the Company proposes to file a registration
statement under the Securities Act with respect to an offering of any class of equity
securities, whether or not for its own account, including a Shelf Registration


 


25

















 


Statement (other than a
registration statement on Form S-4, Form S-8 or any applicable
successor forms thereto or filed solely in connection with an offering made
solely to then-existing stockholders or employees of the Company or a
transaction to which Rule 145 of the Securities Act is applicable or any
registration statements related to the issuance or resale of securities issued
in such a transaction or a registration in which the only Common Stock being registered
is Common Stock issuable upon conversion of debt securities which are also
being registered) or pursuant to a Demand Registration, then the Company will
give written notice (the “Piggyback Notice”) of such proposed filing to
each Qualifying Holder at least fifteen (15) days (or, in the case of a “bought
deal”, 24 hours) before the anticipated filing date of such registration
statement. Notwithstanding any other provision of this Agreement, a Piggyback
Notice may be sent by email or fax and will be deemed to have been received at
the time of transmission. Such notice will offer each Qualifying Holder the
opportunity to register such amount of Registrable Securities as such
Qualifying Holder may request (a “Piggyback Registration”). Subject to Section 7.4.2, the Company shall
use its reasonable best efforts to include in the Piggyback Registration all
such securities with respect to which the Company has received written requests
for such inclusion within twenty (20) days (or, in the case of a “bought deal”,
24 hours) after delivery of the Piggyback Notice.


 


7.4.2                        Priority on Underwritten Piggyback
Registrations. If
the Piggyback Registration is an Underwritten Offering, including an
Underwritten Offering pursuant to Section 7.2.4, the Company or applicable Qualifying
Holders, will use its reasonable best efforts to cause the managing underwriter
or underwriters of that proposed Underwritten Offering (if applicable) to
permit each Qualifying Holder, if it has requested Registrable Securities to be
included in the Piggyback Registration, to include all such securities on the
same terms and conditions as any similar securities, if any, of the Company.
Notwithstanding the foregoing, if the managing underwriter or underwriters of
such Underwritten Offering advise the Company and the Qualifying Holders that,
in its or their good faith judgment, the total amount of securities that the
Company, such Qualifying Holders and all other persons having rights to
participate in such Piggyback Registration (collectively, “Other Holders”)
propose to include in such offering exceeds the amount of securities that can
be sold in that offering without being materially detrimental to the success of
such Underwritten Offering, then:


 


(a)                                  if such Piggyback Registration is a primary
registration by the Company for its own account (other than a Demand
Registration), the Company will include in such Piggyback Registration:
(i) first, all securities to be offered by the Company; and
(ii) second, up to the full amount of securities requested to be included
in such Piggyback Registration by such Holders and Other Holders (allocated on
a pro rata basis among such
Holders and Other Holders, based on the relationship of the amount of
securities requested to be included in such registration by such Holder or
Other Holder to the total amount of securities requested to be included in such
registration by such Holders and Other Holders, subject to any other agreement
among them) so that the total amount of securities to be included in such Underwritten
Offering is the full amount that, in the opinion of such managing underwriter
or underwriters, can be sold without being materially detrimental to the
success of such Underwritten Offering;


 


(b)                                 if such Piggyback Registration is an
underwritten secondary registration for the account of holders of securities of
the Company (other than a Demand Registration) and is not also a primary
registration, the Company will include in such Piggyback Registration
(i) first, all securities to be offered by the Qualifying Holders
requesting such registration; and (ii) second, up to the full amount of
securities requested to be included in such Piggyback Registration by such
other Holders and Other Holders


 


26

















 


(allocated on a pro rata basis among such other Holders
and Other Holders, based on the relationship of the amount of securities
requested to be included in such registration by such other Holder or Other
Holder to the total amount of securities requested to be included in such
registration by such other Holder and Other Holders, subject to any other
agreement among them) so that the total amount of securities to be included in
such Underwritten Offering is the full amount that, in the written opinion of
such managing underwriter or underwriters, can be sold without being materially
detrimental to the success of such Underwritten Offering; and


 


(c)                                  if such Piggyback Registration is a
Demand Registration, the Company will include in such registration
(i) first, all securities to be offered by the Onex Stockholders; and
(ii) second, up to the full amount of securities requested to be included
in such Piggyback Registration by such other Holders and Other Holders
(allocated on a pro rata basis
among such other Holders and Other Holders, based on the relationship of the
amount of securities requested to be included in such registration by such
other Holder or Other Holder to the total amount of securities requested to be
included in such registration by such other Holder and Other Holders, subject
to any other agreement among them) so that the total amount of securities to be
included in such Underwritten Offering is the full amount that, in the written
opinion of such managing underwriter or underwriters, can be sold without being
materially detrimental to the success of such Underwritten Offering.


 


7.4.3                        Withdrawal of Piggyback Registration.


 


(a)                                  If at any time after giving the Piggyback
Notice and prior to the effective date of the Registration Statement filed in
connection with the Piggyback Registration, the Company determines for any
reason not to register or to delay the Piggyback Registration, the Company may,
at its election, give written notice of its determination to the participating
Holders and (i) in the case of a determination not to register, will be
relieved of its obligation to register any securities in connection with the
abandoned Piggyback Registration, without prejudice; and (ii) in the case
of a determination to delay the Piggyback Registration, will be permitted to
delay the registration for a period not exceeding one hundred eighty (180)
days.


 


(b)                                 Any Holder may withdraw any of its
securities to be included in a Piggyback Registration from such Piggyback
Registration by providing a written notice to the Company; provided, however,
that (i) such Holder’s request must be made prior to the printing of the
preliminary prospectus to be used for marketing purposes with respect to an
Underwritten Offering or, if the Piggyback Registration does not involve an
Underwritten Offering, at least three (3) Business Days prior to the
filing of the Registration Statement covering the Piggyback Registration; and
(ii) the withdrawal will be irrevocable and, after making such withdrawal,
the Holder will no longer have any right to include the securities so withdrawn
in that Piggyback Registration.


 


7.5                                 Participation in Underwritten Offerings. With respect to any Underwritten Offering,
the inclusion of a Holder’s securities therein will be conditioned upon such
Holder’s participation in such Underwritten Offering, including without
limitation the execution and delivery by such Holder of an underwriting
agreement in form, scope and substance as is customary in Underwritten
Offerings and the completion, execution and delivery by such Holder of all
questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents reasonably required under the terms of such underwriting
agreement.


 


27

















 


7.6                                 Procedures and Expenses.


 


7.6.1                        Registration Procedures. In connection with the Company’s
registration obligations pursuant to this Section 7, the Company will:


 


(a)                                  before filing any Registration Statement,
any Prospectus or any amendment or supplements thereto, furnish to each
participating Holder and its counsel copies thereof as proposed to be filed,
sufficiently in advance of filing to provide them with a reasonable opportunity
to review such documents and comment thereon;


 


(b)                                 use commercially reasonable efforts to
cause the sale or disposition of the Registrable Securities covered by the
applicable Registration Statement to be registered or approved in accordance
with applicable Gaming Laws as may be necessary to enable the seller thereof to
consummate the sale or disposition of such Registrable Securities;


 


(c)                                  prepare and file with the SEC any
amendments (including without limitation any post-effective amendments) to the
Registration Statement and any supplements to the Prospectus as may be
necessary to keep the Registration Statement effective until all securities
covered by the Registration Statement are sold in accordance with the intended
plan of distribution set forth in the Registration Statement as so amended or
in such Prospectus as so supplemented;


 


(d)                                 promptly following its actual knowledge
thereof, notify each participating Holder and the managing underwriter or
underwriters, if any:


 


(i)                                     when a Prospectus or any Prospectus
supplement or amendment has been filed and, with respect to a Registration
Statement or any post-effective amendment, when such Registration Statement or
post-effective amendment has become effective;


 


(ii)                                  of any request by the SEC or any other
governmental authority for amendments or supplements to a Registration
Statement or related Prospectus or for additional information or any comments
by the SEC or any other governmental authority relating to any document
referred to in Section 7.5.1(c)(i);


 


(iii)                               of the issuance by the SEC or any other
governmental authority of any stop order suspending the effectiveness of a
Registration Statement or the initiation of any proceedings for that purpose;


 


(iv)                              of the receipt by the Company of any
written notification with respect to the suspension of the qualification or
exemption from qualification of any of the securities for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose;


 


(v)                                 that a statement made in a Registration
Statement or Prospectus is or has become untrue in any material respect or that
a change in a Registration Statement or Prospectus or other document must be
made so that (A) in the case of a Registration Statement, it will not
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein
not misleading; and (B) in
the case of a Prospectus, it will not contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary to make the statements


 


28

















 


therein not misleading in
light of the circumstances under which they were made; and


 


(vi)                              of the Company’s reasonable determination
that a post-effective amendment to a Registration Statement is necessary;


 


(e)                                  use its commercially reasonable efforts
to obtain the withdrawal of any order suspending the effectiveness of a
Registration Statement or the lifting of any suspension of the qualification or
exemption from qualification of any of the securities for sale in any
jurisdiction, at the earliest practicable date;


 


(f)                                    furnish to each participating Holder and
the managing underwriter or underwriters, if any, at least one conformed copy
of any Registration Statement and any post-effective amendment thereto,
including without limitation financial statements (but excluding all schedules,
all exhibits and all materials incorporated or deemed incorporated therein by
reference), and copies of any Prospectus, including without limitation all
supplements thereto, in such quantities as such Holders may reasonably request;


 


(g)                                 prior to any public offering of
securities as contemplated hereby, register or qualify or cooperate with each
Holder, the managing underwriter or underwriters, if any, and their respective
counsel in connection with the registration or qualification (or exemption from
such registration or qualification) of such securities for offer and sale under
the securities or blue sky laws of such jurisdictions within the United States
as the participating Holder or any managing underwriter or underwriters
reasonably request in writing and maintain each registration or qualification
(or exemption therefrom) effective during the period such Registration
Statement is required to be kept effective; provided, however,
the Company will not be required to qualify generally to do business in any
jurisdiction in which it is not then so qualified or take any action which
would subject it to general service of process or taxation in any jurisdiction
in which it is not then so subject;


 


(h)                                 as promptly as practicable upon the
occurrence of any event contemplated by Section 7.5.1(c)(v) or
7.5.1(c)(vi), prepare and file a
post-effective amendment to the applicable Registration Statement or a
supplement to the related Prospectus, or file any other required document, so
that, as thereafter delivered to the purchasers of the securities being sold
thereunder, such Prospectus will not contain an untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading;


 


(i)                                     enter into customary and reasonable
agreements (including without limitation an underwriting agreement) and take
all other actions reasonably necessary or desirable to expedite or facilitate
the disposition of the securities and, in connection therewith, whether or not
an underwriting agreement is entered into and whether or not the registration
is an Underwritten Offering:


 


(i)                                     use its commercially reasonable efforts
to obtain opinions of counsel to the Company and updates thereof (which counsel
and opinions (in form, scope and substance) are reasonably satisfactory to the
managing underwriter or underwriters, if any), addressed to the managing
underwriter or underwriters, if any, covering the matters customarily covered
in opinions requested in Underwritten Offerings and such other matters as may
be reasonably requested by any underwriter, and


 


29

















 


(ii)                                  use its commercially reasonable efforts
to obtain “comfort” letters and updates thereof from the independent certified
public accountants of the Company addressed to the managing underwriter or
underwriters, if any, covering the matters customarily covered in “comfort”
letters in connection with Underwritten Offerings;


 


(j)                                     upon reasonable notice and at reasonable
times during normal business hours, make available for inspection by a
representative of each participating Holder and any underwriter participating
in any disposition of securities and their respective counsel or accountants,
all financial and other records, pertinent corporate documents and properties
of the Company, and cause the officers, directors and employees of the Company
to supply all information reasonably requested by any such representative,
underwriter, counsel or accountant in connection with the applicable
Registration Statement;


 


(k)                                  cause all securities being registered to
be listed or accepted for quotation on each national securities exchange,
national securities association or automated quotation system on which similar
securities issued by the Company are then listed or quoted, but only to the
extent similar securities of the Company are so listed; and


 


(l)                                     use its commercially reasonable efforts
to comply with all applicable rules and regulations of the SEC relating to such
registration and make generally available to its security holders earning
statements satisfying the provisions of Section 11(a) of the
Securities Act, provided that the Company will be deemed to have
complied with this Section 7.5.1(k) if
it has satisfied the provisions of Rule 158 under the Securities Act (or
any similar rule promulgated under the Securities Act).


 


7.6.2                        Information from the Holders.


 


(a)                                  Each Holder whose securities are included
in any Registration Statement pursuant to this Agreement shall furnish to the
Company such information regarding such Holder and its plan and method of
distribution of such securities as the Company may reasonably request in
writing and as shall be required in connection with such registration or the
registration or qualification of such securities under any applicable state
securities or blue sky law. The Company may refuse to proceed with the
registration of such Holder’s securities if such Holder unreasonably fails to
furnish such information within a reasonable time after receiving such request.


 


(b)                                 Each participating Holder will as
expeditiously as possible (i) notify the Company that a statement made in
a Registration Statement or Prospectus regarding such participating Holder
based on information furnished to the Company pursuant to Section 7.5.2(a) is or has
become untrue in any material respect or that a change to a statement made in a
Registration Statement or Prospectus based on information furnished to the
Company pursuant to Section 7.5.2(a) must
be made so that (A) in the case of a Registration Statement, it will not
contain any untrue statement of a material fact or omit any material fact
required to be stated therein or necessary to make the statements not
misleading; and (B) in the case of a Prospectus, it will not contain any
untrue statement of a material fact or omit any material fact required to be
stated therein or necessary to make the statements not misleading in light of
the circumstances under which they were made; and (ii) provide the Company
with such information as may be required to enable the Company to prepare a
post-effective amendment to any such Registration Statement or a supplement to
such Prospectus.


 


30














 


7.6.3                       Suspension of Disposition.


 


(a)                                  Each participating Holder will be deemed
to have agreed that, upon receipt of any notice from the Company of the
occurrence of any event of the kind described in Section 7.5.1(c)(ii),
7.5.1(c)(iii), 7.5.1(c)(iv),
7.5.1(c)(v) or 7.5.1(c)(vi), such Holder will
discontinue disposition of securities covered by a Registration Statement or
Prospectus until receipt by such Holder of the copies of the supplemented or
amended Prospectus contemplated by Section 7.5.1(g)
or until such Holder has been advised in writing by the Company that the use of
the applicable Prospectus may be resumed and has received copies of any
additional or supplemental filings that are incorporated or deemed to be
incorporated by reference in such Prospectus.


 


(b)                                 Each participating Holder will be deemed
to have agreed that, upon receipt of any notice from the Company that the
Company or any of its Subsidiaries is involved in any financing, acquisition,
corporate reorganization or other significant transaction, or any negotiations,
discussions or pending proposals with respect thereto, disclosure of which
would be required in the Registration Statement and the Board has determined in
the good faith exercise of its reasonable business judgment that disclosure
would adversely affect the financing, acquisition, corporate reorganization or
other significant transaction, each participating Holder will discontinue
disposition of securities covered by a Registration Statement or Prospectus
until the earlier to occur of (i) the receipt by such Holder of copies of
a supplemented or amended Prospectus describing the financing, acquisition,
corporate reorganization or other significant transaction or (ii) the
termination of the transaction; provided, however, that the
period during which the offer and sale of securities is discontinued will not
exceed ninety (90) days during any twelve (12)-month period.


 


7.6.4                       Registration Expenses.


 


(a)                                  Subject to Section 7.5.4(c),
all fees and expenses incurred by the Company in complying with this Section 7 (collectively, “Registration
Expenses”) will be borne by the Company for the account of the
participating Holders. These fees and expenses will include without limitation
(i) all registration and filing fees (including without limitation fees
and expenses incurred (A) with respect to filings required to be made with
the Financial Industry Regulatory Authority; and (B) in complying with
securities or blue sky laws (including without limitation reasonable fees and
disbursements of counsel for any underwriters and each participating Holder in
connection with blue sky qualifications of the securities and determination of
the eligibility of the securities for investment under the laws of such
jurisdictions as the managing underwriter or underwriters, if any, or the
participating Holders may designate)); (ii) printing expenses (including
without limitation the expenses of printing certificates for securities in a
form eligible for deposit with The Depository Trust Company and of printing Prospectuses
if the printing of Prospectuses is requested by the participating Holders);
(iii) fees and disbursements of counsel for the Company, (iv) reasonable
fees and disbursements of one counsel for participating Holders collectively
(which counsel will be selected by participating Holders holding a majority of
securities then outstanding being offered) not to exceed $30,000 in the
aggregate; (v) fees and disbursements of all independent certified public
accountants referred to in Section 7.5.1(h)(ii) (including
without limitation the expenses of any special audit and “comfort” letters required by or incident
to such performance); (vi) reasonable fees and expenses of any “qualified
independent underwriter” or other independent appraiser participating in an
offering pursuant to Section 2720(c) of the Conduct Rules of the
National Association of Securities Dealers, Inc.; and (vii) fees and
expenses of all other


 


31

















 


Persons retained by the
Company. In addition, the Company will pay its internal expenses (including
without limitation all salaries and expenses of its officers and employees
performing legal or accounting duties), the expense of any annual audit and the
fees and expenses incurred in connection with the listing of the securities to
be registered on each national securities exchange, if any, on which similar
securities issued by the Company are then listed or the quotation of such
securities on each association or quotation system, if any, on which similar
securities issued by the Company are then quoted.


 


(b)                                 Except as specifically set forth in Section 7.5.4(a),
notwithstanding anything contained herein to the contrary (i) all costs
and fees of counsel and experts retained by a participating Holder and
(ii) all underwriting fees, discounts, selling commissions and stock
transfer taxes applicable to the sale of securities will be borne by the
applicable Holder.


 


(c)                                  Notwithstanding anything contained herein
to the contrary, each participating Holder may have its own separate counsel in
connection with the registration of any of its securities, which counsel may
participate therein to the full extent provided herein; provided, however,
that all fees and expenses of such separate counsel will be paid for by such
participating Holder.


 


7.7                                 Indemnification.


 


7.7.1                        Indemnification by the Company. The Company will indemnify and hold
harmless, to the fullest extent permitted by law, each Holder holding
securities registered pursuant to this Agreement, each underwriter (as defined
in the Exchange Act), and their respective officers, directors, trustees,
agents and employees, each Person who controls (within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act)
such Holder and the officers, directors, trustees, agents and employees of any
such controlling Person, from and against all losses, claims, damages,
liabilities (or actions in respect thereof), costs and expenses (including
without limitation any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage,
liability or action) (collectively, “Losses”) arising out of or based
upon (i) any violation or alleged violation by the Company of the
Securities Act, the Exchange Act, any applicable state securities or blue sky
law or any rule or regulation promulgated under the Securities Act, the
Exchange Act or any applicable state securities or blue sky law in connection
with the offer or sale of securities; (ii) any untrue or alleged untrue
statement of a material fact contained or incorporated by reference in any
Registration Statement, Prospectus, preliminary prospectus or any document
filed under any state securities or blue sky law in connection with the offer
or sale of the securities; or (iii) any omission or alleged omission to
state in any such Registration Statement, Prospectus, preliminary prospectus or
filed document a material fact required to be stated therein or necessary to
make the statements therein not misleading, except insofar as such Losses are
based solely upon information furnished in writing to the Company by or on
behalf of such Holder expressly for use therein; provided, however,
that the Company will not be liable to any Holder to the extent that any Losses
arise out of or are based upon an untrue statement or alleged untrue statement
or omission or alleged omission made in any preliminary prospectus if either
(i) (A) such Holder failed to send or deliver a copy of the
Prospectus with or prior to the delivery of written confirmation of the sale by
such Holder of a security to the Person asserting the claim from which such
Losses arise; and (B) the Prospectus would have completely corrected such
untrue statement or alleged untrue statement or such omission or alleged
omission; or (ii) (A) the untrue statement or alleged untrue
statement or omission or alleged omission is completely


 


32

















 


corrected in an amendment
or supplement to the Prospectus previously furnished by or on behalf of the
Company; (B) such Holder was furnished with copies of the Prospectus as so
amended or supplemented; and (C) such Holder thereafter failed to deliver
such Prospectus as so amended or supplemented prior to or concurrently with the
sale of a security to the person asserting the claim from which such Losses
arise.


 


7.7.2                        Indemnification by Holders. Each participating Holder (severally
and not jointly) will indemnify and hold harmless, to the fullest extent
permitted by law, the Company, each underwriter, and officers, directors,
agents and employees of each of them, each Person who controls (within the
meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act) the Company and the directors, officers, agents and employees of
any such controlling Person, from and against all Losses, as incurred, arising
out of or based upon (i) any untrue or alleged untrue statement of a
material fact contained or incorporated by reference in any Registration
Statement, Prospectus, preliminary prospectus, or any document filed under any
state securities or blue sky law in connection with the offer or sale of the
securities; or (ii) any omission or alleged omission of a material fact
required to be stated in any such Registration Statement, Prospectus,
preliminary prospectus or filed document or necessary to make the statements
therein not misleading, to the extent, but only to the extent, that such Losses
arise from or are based upon an untrue statement or alleged untrue statement or
omission or alleged omission made in reliance upon and in conformity with
information so furnished in writing by or on behalf of such Holder to the
Company expressly for use in such Registration Statement, Prospectus,
preliminary prospectus or filed document. In no event will the liability of a
Holder hereunder be greater in amount than the dollar amount of the net
proceeds received by such Holder upon the sale of the securities giving rise to
such indemnification obligation.


 


7.7.3                        Conduct of Indemnification Proceedings. If any person becomes entitled to
indemnity hereunder (an “Indemnified Party”), such Indemnified Party
will give prompt notice to the party from which indemnity is sought (the “Indemnifying
Party”) of any claim or of the commencement of any action or proceeding
with respect to which the Indemnified Party seeks indemnification or
contribution pursuant hereto; provided, however, that the failure
to so notify the Indemnifying Party will not relieve the Indemnifying Party
from any obligation or liability except to the extent that the Indemnifying
Party has been prejudiced materially by such failure. If such an action or
proceeding is brought against the Indemnified Party, the Indemnifying Party
will be entitled to participate therein and, to the extent it may elect by
written notice delivered to the Indemnified Party promptly after receiving the
notice referred to in the immediately preceding sentence, to assume the defense
thereof with counsel reasonably satisfactory to the Indemnified Party.
Notwithstanding the foregoing, the Indemnified Party will have the right to
employ its own counsel in any such case, but the fees and expenses of that
counsel will be at the expense of the Indemnified Party unless (i) the
employment of the counsel has been authorized in writing by the Indemnifying
Party; (ii) the Indemnifying Party has not employed counsel (reasonably
satisfactory to the Indemnified Party) to take charge of such action or
proceeding within a reasonable time after notice of commencement thereof; or
(iii) the Indemnified Party reasonably concludes, based upon the opinion
of counsel, that there may be defenses or actions available to it which are
different from or in addition to those available to the Indemnifying Party
which, if the Indemnifying Party and the Indemnified Party were to be
represented by the same counsel, could result in a conflict of interest for
such counsel or materially prejudice the prosecution of defenses or actions
available to the Indemnified Party. If any of the events specified in clause
(i), (ii) or (iii) of the immediately preceding sentence are
applicable, then the reasonable fees and expenses of separate counsel for the
Indemnified Party will


 


33

















 


be borne by the Indemnifying
Party; provided, however, that in no event will the Indemnifying
Party be liable for the fees and expenses of more than one separate firm
(together with appropriate local counsel) for all Indemnified Parties. If, in
any case, the Indemnified Party employs separate counsel, the Indemnifying
Party will not have the right to direct the defense of the action or proceeding
on behalf of the Indemnified Party. All fees and expenses required to be paid
to the Indemnified Party pursuant to this Section 7.6
will be paid periodically during the course of the investigation or defense,
promptly upon delivery to the Indemnified Party of a reasonably itemized bill
therefor in respect of any particular Loss that is incurred. Notwithstanding
anything contained in this Section 7.6.3
to the contrary, an Indemnifying Party will not be liable for the settlement of
any action or proceeding effected without its prior written consent. An
Indemnifying Party will not, without the consent of the Indemnified Party
(which consent will not be unreasonably withheld), consent to entry of any
judgment or enter into any settlement or otherwise seek to terminate any action
or proceeding in which any Indemnified Party is or could be a party and as to
which indemnification or contribution could be sought by such Indemnified Party
under this Section 7.6,
unless such judgment, settlement or other termination provides solely for the
payment of money and includes as an unconditional term thereof the giving by
the claimant or plaintiff to such Indemnified Party of a release, in form and
substance reasonably satisfactory to the Indemnified Party, from all liability
in respect of such claim or litigation for which such Indemnified Party would
be entitled to indemnification hereunder.


 


7.7.4                      Contribution.


 


(a)                                  If the indemnification provided for in
this Section 7.6 is
held by a court of competent jurisdiction to be unavailable to an Indemnified
Party under Sections 7.1 or
7.2 in respect of any Losses or is insufficient to hold the
Indemnified Party harmless, then each applicable Indemnifying Party (severally
and not jointly), in lieu of indemnifying the Indemnified Party, will
contribute to the amount paid or payable by the Indemnified Party as a result
of such Losses, in such proportion as is appropriate to reflect the relative
fault of the Indemnifying Party or Indemnifying Parties, on the one hand, and
the Indemnified Party, on the other hand, in connection with the actions,
statements or omissions that resulted in such Losses as well as any other
relevant equitable considerations. The relative fault of the Indemnifying Party
or Indemnifying Parties, on the one hand, and the Indemnified Party, on the
other hand, will be determined by reference to, among other things, whether any
action in question, including without limitation any untrue or alleged untrue
statement of a material fact or omission or alleged omission of a material
fact, has been taken or made by, or related to information supplied by, the
Indemnifying Party or Indemnifying Parties or the Indemnified Party, and the
parties’ relative intent, knowledge, access to information and opportunity to
correct or prevent such action, statement or omission.


 


(b)                                 The parties hereto agree that it would
not be just and equitable if contribution pursuant to this Section 7.6.4 were determined by pro rata allocation or by any other method
of allocation that does not take into account the equitable considerations
referred to in the immediately preceding paragraph. Notwithstanding anything
contained in this Section 7.6.4
to the contrary, an Indemnifying Party that is a participating Holder will not
be required to contribute any amount in excess of the amount by which the total
price at which the securities were sold by such participating Holder to the
public exceeds the amount of any damages which such participating Holder has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation


 


34

















 


(within the meaning of
Section 11(f) of the Securities Act) will be entitled to contribution
from any person who was not guilty of such fraudulent misrepresentation.


 


7.7.5                        Survival of Indemnification. The obligations of the Company and the
Holders under this Section 7.6
will survive the completion of any offering of securities pursuant to any Shelf
Registration Statement under this Agreement.


 


7.8                                 Rule 144. The Company will file in a timely
manner (taking into account any extension available under Rule 12b-25 of
the Exchange Act) all reports required to be filed by it under the Exchange Act
and, to the extent required from time to time to enable each Holder to sell its
securities without registration under the Securities Act within the limitations
of the exemptions provided by Rule 144, will cooperate with each Holder.
Upon the request of a Holder, the Company will promptly deliver to such Holder
a written statement as to whether it has complied with such filing requirements.
Notwithstanding the foregoing, nothing in this Section 7.7 will require the Company to register any
securities, or file any reports, under the Exchange Act if such registration or
filing is not required under the Exchange Act.


 


7.9                                 Certain Other Agreements. Except as set forth herein, no
agreement granting any registration rights to any person with respect to any of
the Company’s securities is in force and effect as of the date hereof. The
Company will not hereafter enter into any agreement with respect to its
securities that is inconsistent with, or attempts to derogate from, the rights
granted to the Holders in this Agreement, unless such inconsistency or
derogation is first waived in writing by the Holders.


 


7.10                           Confidentiality. Each Holder will, and will cause their
respective officers, directors, employees, legal counsel, accountants,
financial advisors and other representatives to, hold in confidence any
material nonpublic information received by them pursuant to this Agreement,
including without limitation any material nonpublic information included in any
Registration Statement or Prospectus proposed to be filed with the SEC provided
pursuant to Section 7.5.1(a) and
any material nonpublic information provided or made available pursuant to Section 7.5.1(i). This Section 7.9 will not apply to any information which
(a) is or becomes generally available to the public (other than by reason
of a breach of this Agreement); (b) was already in the possession of such
Holder from a non-confidential source prior to its disclosure by the Company;
and (c) is or becomes available to the Holder on a non-confidential basis
from a source other than the Company; provided, however, that
such source is not known by the Holder to be bound by confidentiality
obligations.


 


7.11                           Market Stand-Off.


 


(a)                                 Each Qualifying Holder agrees, if so
requested by the Company and an underwriter of Registrable Securities of the
Company in connection with any public offering of the Company, not to directly
or indirectly offer, sell, contract to sell, sell any option or contract to
purchase, purchase any option or contract to sell, grant any option, right or
warrant for the sale of or otherwise dispose of or transfer any Shares held by
it for such period, not to exceed (i) one hundred eighty (180) days
following the effective date of the relevant registration statement filed under
the Securities Act in connection with the Company’s initial public offering of
Common Stock, or (ii) ninety (90) days following the effective date of the
relevant registration statement in connection with any other public offering of
Common Stock, as such underwriter shall specify reasonably and in good faith, provided,
however, that all directors, senior executive officers of the Company
and all Holders of Shares representing five percent (5%) or greater of all
Shares issued and outstanding enter into similar agreements.


 


35

















 


(b)                                 Notwithstanding Section 7.11(a), in the case of
any Demand Registration where all Registrable Securities of Qualifying Holders
have been excluded by any underwriter as a result of the provisions of Section 7.4.2, the provisions of Section 7.11(a)(ii) shall not
apply to such Qualifying Holders; provided, however that,
notwithstanding the foregoing, to the extent that an underwriter requires the
provisions of Section 7.11(a)(ii) to
apply in connection with any registration referred to in this Section 7.11(b), Section 7.11(a)(ii) shall
apply and the securities to be included in such registration shall be allocated
on a pro rata basis among all
Holders and Other Holders participating in such registration, based on the
relationship of the amount of securities requested to be included in such
registration by such Holder or Other Holder to the total amount of securities
requested to be included in such registration by such Holder and Other Holders,
subject to any other agreement among them.


 


8.                                  Necessary Action; Proxy.


 


8.1                                 Each Holder shall take, or cause to be
taken, all Necessary Action to give effect to Sections 4 and 5.2 of this Agreement.


 


8.2                                 Without limiting the generality of the
foregoing, where this Agreement provides that an action may be taken by the
Company or any Subsidiary if authorized by a specified number or percentage of
the members of the Board or of the Holders and such action is authorized in
accordance therewith, each Holder shall take all Necessary Action to give
effect thereto.


 


9.                                       Legend. Each certificate representing Shares now
owned or hereafter acquired by a Holder or issued to any person in connection
with a transfer pursuant to Section 2
shall be endorsed with the following legend:


 


THE SHARES REPRESENTED BY
THIS CERTIFICATE ARE SUBJECT TO THE TERMS AND CONDITIONS OF A STOCKHOLDER
AGREEMENT BY AND AMONG THE COMPANY AND CERTAIN STOCKHOLDERS OF THE COMPANY
WHICH PLACES CERTAIN RESTRICTIONS ON THE TRANSFER AND VOTING OF THE SHARES. ANY
PERSON TO WHOM SHARES REPRESENTED BY THIS CERTIFICATE, OR ANY INTEREST THEREIN,
ARE TRANSFERRED SHALL BE DEEMED TO AGREE TO AND SHALL BECOME BOUND BY SUCH
AGREEMENT. COPIES OF SUCH AGREEMENT MAY BE OBTAINED UPON WRITTEN REQUEST
TO THE SECRETARY OF THE COMPANY.


 


The Holders agree that
the Company may instruct its transfer agent to impose transfer restrictions on
the Shares represented by certificates bearing the legend referred to above to
enforce the provisions of this Agreement, and the Company agrees to promptly do
so. The legend shall be removed upon termination of this Agreement.


 


10.                                 Termination. This Agreement shall terminate
immediately prior to the closing of the earlier of (i) a Qualified Public
Offering and (ii) a transaction or series of related transactions,
pursuant to which any Person or group (within the meaning of the Exchange Act),
other than any Holder as of the date hereof or any Affiliate of any such
Holder, acquires (A) directly or indirectly fifty percent (50%) or more of
the then outstanding Shares (whether such transaction is effected by merger,
consolidation, recapitalization, sale or transfer of the Company’s equity or
otherwise) or (B) directly or indirectly all or substantially all of the
assets of the Company; provided, however, that, notwithstanding
any termination of this Agreement, Section 7
shall survive such termination and remain in effect until there are no more
Registrable Securities.


 


36

















 


11.                                 Miscellaneous.


 


11.1                           Recapitalization, Exchange, Etc.
Affecting the Shares.
The provisions of this Agreement shall apply, to the full extent set forth
herein, with respect to any and all shares of Common Stock and all of the
shares of capital stock of the Company or any successor or assign of the
Company (whether by merger, consolidation, sale of assets, or otherwise) that
may be issued in respect of, in exchange for, or in substitution of such Common
Stock and shall be appropriately adjusted for any stock dividends, splits,
reverse splits, combinations, recapitalizations, and the like occurring after
the date hereof.


 


11.2                           Governing Law. This Agreement shall be governed,
construed and interpreted in accordance with the laws of the State of Delaware,
without giving effect to principles of conflicts of law and choice of law that
would cause the laws of any other jurisdiction to apply.


 


11.3                           Amendment and Waiver. Subject to Section 11.13, any
provision of this Agreement may be amended and the observance thereof may be
waived (either generally or in a particular instance and either retroactively
or prospectively), by the written consent of Holders holding a Super Majority
Interest; provided, however, no such amendment or waiver may
materially adversely affect the rights of or materially alter the obligations
of a class of capital stock of the Company disproportionately generally vis a vis other classes of capital stock of the Company
without the written consent of two-thirds (2/3) of the shares of such class,
except as otherwise required by applicable law and except for amendments
consistent with the manner in which such classes are currently treated
differently hereunder; provided, further, no such amendment or
waiver may materially adversely affect the rights of or materially alter the
obligations of a Holder with respect to Shares of a certain class of capital
stock of the Company disproportionately generally vis a vis
other Holders of shares of such class without such Holder’s written consent;
and provided, further, to the extent any provision of this
Agreement specifically vests rights in Onex Stockholders, Major Non-Onex
Stockholders or Non-Onex Holders, such provision shall not be amended or waived
without the written consent of two-thirds (2/3) of the shares held by such Onex
Stockholders, Major Non-Onex Stockholders or Non-Onex Holders, as applicable.
Notwithstanding anything to the contrary contained herein or in the Certificate
of Incorporation, the Company shall have the right, at any time and from time
to time, to amend this Agreement and the Certificate of Incorporation to move
any provision (or move the substantive terms and conditions contained in any
provision) from this Agreement to the Certificate of Incorporation and to make
other ancillary changes so long as such amendments do not modify in any
material respect the aggregate rights of any Holder under this Agreement and
the Certificate of Incorporation taken together and, without limiting the
foregoing, shall do so upon the request of an Onex Stockholder, in each case,
without requiring any further vote, consent or other action by or from any
Holder. Any amendment or waiver effected in accordance this Section 11.3 shall be binding
upon the Company, each Holder, and their respective successors and assigns.


 


11.4                           Action by Consent Without a Meeting. Any action required or permitted to be
taken by Holders may be taken without a meeting, without prior notice and
without a vote, if a consent in writing, setting forth the action so taken,
shall be signed by the Holders having not less than the minimum number of votes
that would be necessary to authorize or take such action at a meeting at which
all Shares entitled to vote thereon were present and voting. Prompt notice of
the taking of any such action shall be given to those Holders who did not
consent in writing.


 


11.5                           Entire Agreement. This Agreement constitutes the entire
agreement between the parties relative to the specific subject matter hereof.
Any previous agreement among the parties relative to the specific subject
matter hereof is superseded by this Agreement.


 


37














 


11.6         Notices. All notices required or
permitted hereunder shall be in writing and shall be deemed effectively given: (a) upon
personal delivery to the party to be notified; (b) when sent by confirmed
telex or facsimile if sent during normal business hours of the recipient; if
not, then on the next business day; (c) five (5) days after having
been sent by registered or certified mail, return receipt requested, postage
prepaid; or (d) the next Business Day after deposit with a nationally
recognized overnight courier, specifying next day delivery, with written
verification of receipt. All communications shall be sent to the Company at the
address or facsimile number set forth on the signature page hereof, to
each Holder at the address or facsimile number set forth on Schedule A hereto,
or at such other address as the Company or each Holder may designate by ten (10) days
advance written notice to the other parties hereto.


 


11.7         Severability. In the event one
or more of the provisions of this Agreement should, for any reason, be held to
be invalid, illegal or unenforceable in any respect, such invalidity,
illegality, or unenforceability shall not affect any other provisions of this
Agreement, and this Agreement shall be construed as if such invalid, illegal or
unenforceable provision had never been contained herein.


 


11.8           Additional Holders; Additional
Securities. Pursuant to the Plan, this Agreement shall be binding on all
Persons receiving Shares pursuant to the Plan (including, without limitation,
those receiving Shares in connection with the Rights Offering), regardless of
whether such Persons have executed this Agreement. No additional Shares shall
be issued by the Company (including, without limitation, pursuant to any Equity
Incentive Plan), other than in a public offering, unless the Person to whom
such shares are issued is an existing party to this Agreement or executes a
Joinder Agreement which provides that such holder of capital stock shall be
subject to this Agreement. This Agreement shall apply to all Shares owned by a
party to this Agreement, no matter when acquired, unless such Shares were
acquired after the Initial Public Offering pursuant to Rule 144 or in a
subsequent public offering. Upon acquiring Shares and agreeing in writing to be
bound by this Agreement, all such Persons shall be “Holders” for all purposes
hereunder. The addition of any such party shall not be deemed an amendment to
this Agreement and shall not require the consent of any party hereto.


 


11.9         Counterparts. This Agreement may
be executed in two or more counterparts and copies and/or facsimile transmittal
signature pages may be used instead of originals, each of which shall be
deemed an original, but all of which together shall constitute one and the same
instrument.


 


11.10       Successors and Assigns. The
provisions hereof shall inure to the benefit of, and be binding upon, the
successors and assigns of the parties hereto.


 


11.11       Specific Performance. The parties
hereto hereby declare that it is impossible to measure in money the damages
that will accrue to a party hereto, or to their heirs, personal
representatives, successors or assigns, by reason of a failure to perform any
of the obligations under this Agreement and agree that the terms of this
Agreement shall be specifically enforceable. If any party hereto, or his heirs,
personal representatives, or successors or assigns, institutes any action or
proceeding to specifically enforce the provisions hereof, any person against
whom such action or proceeding is brought hereby waives the claim or defense
therein that such party or such personal representative has an adequate remedy
at law, and such person shall not offer in any such action or proceeding the
claim or defense that such remedy at law exists.


 


11.12       Titles and Subtitles. The titles
of the sections and subsections of this Agreement are for convenience of
reference only and are not to be considered in construing this Agreement


 


38

















 


11.13       Gaming Laws. Notwithstanding
anything to the contrary contained in this Agreement, the Certificate of
Incorporation, the Bylaws or the Certificate of Designations (collectively, the
“Relevant Documents”), to the extent that any provision contained or not
contained in any such Relevant Document (including without limitation any
provision granting a right to any Holder) would (i) cause the Company or
any of its Subsidiaries to violate, or would otherwise result in a violation or
breach of, or would otherwise prevent or delay the Company or any of its
Subsidiaries, as applicable, from becoming licensed under, applicable Gaming
Laws, and/or (ii) require any Non-Onex Holder to be licensed or found
suitable under applicable Gaming Laws, each party hereto hereby agrees to take
all Necessary Action, including without limitation agreeing to amend the
Relevant Document to modify or delete such provision, so that such provision
shall no longer (i) cause or result in such violation or breach or prevent
or delay the Company or any of its Subsidiaries, as applicable, from becoming
so licensed and/or (ii) require such Non-Onex holder to be so licensed or
found suitable, as the case may be. Further, each party hereto agrees to take
all Necessary Action to consummate and make effective the transactions
contemplated by the Relevant Documents, including filing all reports and
obtaining all licenses, findings of suitability and/or approvals required by
the Gaming Authorities, and to respond as promptly as practicable under the
circumstances to any inquiries received from the Gaming Authorities for
additional information or documentation and to all inquiries and requests
received from such Gaming Authorities. In furtherance of the provisions of this
Section 11.13, each
party hereto hereby constitutes and appoints the President and Treasurer of the
Company, and each of them, with full power of substitution, (i) as the
proxies of such party with respect to the matters set forth in this Section 11.13, and hereby authorizes each of them
to vote all of such party’s Shares in a manner which is consistent with the
terms and provisions of this Section 11.13
and (ii) as its true and lawful attorney, in its name, place and seal, to
execute any agreements or documents required to be executed by such party
pursuant to this Section 11.13. The proxy and grant of power of
attorney granted pursuant to the immediately preceding sentence are given in
consideration of the agreements and covenants of the Company and the Holders in
connection with the transactions contemplated by this Agreement and, as such,
are coupled with an interest and shall be irrevocable unless and until this
Agreement terminates or expires in accordance with its terms.


 


[REMAINDER OF PAGE
INTENTIONALLY LEFT BLANK]


 


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IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date
set forth in the first paragraph hereof.


 


	
   

  	
  TROPICANA LAS VEGAS
  HOTEL AND

  
	
   

  	
  CASINO, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Alejandro Yemenidjian

  
	
   

  	
  Name:

  	
  Alejandro Yemenidjian

  
	
   

  	
  Title: 

  	
  President, Chief
  Executive Officer

  



 


[Holder signature
pages follow]


 


[Stockholders’ Agreement]


 

















 


	
   

  	
  HEWARD CAPITAL PARTNERS
  LP

  
	
   

  	
   

  
	
   

  	
  By: Heward Capital
  Partners GP LLC, its general 

  partner

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Donald F. West

  
	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Donald F. West

  
	
   

  	
  Title:

  	
  Director

  



 


[SIGNATURE PAGE TO
STOCKHOLDERS’ AGREEMENT]


 

















 


	
  SCHEDULE
  A

  	
   

  
	
  SCHEDULE
  OF HOLDERS

  	
   

  
	
   

  	
   

  
	
  CLASS A
  COMMON STOCK

  	
   

  
	
   

  	
   

  



 


	
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CLASS B COMMON STOCK


 


	
  NAME

  	
   

  	
  ADDRESS/FACSIMILE

  	
   

  	
  SHARES

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
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A-2