(INCLUDING ACCOUNTING AND TAX
PURPOSES) IN CONFORMITY WITH THE PRECEDING SENTENCE.
17
Section 3.3
Drag-Along Obligations.
(A)
IF THE REQUIRED INVESTORS (AS DEFINED IN SECTION 3.3(E) BELOW)
(THE "SELLING SECURITYHOLDERS") DETERMINE TO SELL OR OTHERWISE DISPOSE OF ALL OR
SUBSTANTIALLY ALL OF THE ASSETS OF THE COMPANY OR ALL OR SUBSTANTIALLY ALL OF
THE EQUITY INTERESTS OF THE COMPANY TO ANY PERSON NOT AFFILIATED WITH EITHER OF
THE COMPANY OR ANY OF THE SECURITYHOLDERS (THE "BUYER"), OR TO CAUSE THE COMPANY
TO MERGE WITH OR INTO OR CONSOLIDATE WITH ANY BUYER, IN A BONA FIDE ARM'S LENGTH
TRANSACTION (AN "APPROVED SALE"), EACH SECURITYHOLDER, SUBJECT TO THE PROVISIONS
OF THIS SECTION 3.3, SHALL BE OBLIGATED TO AND SHALL UPON THE WRITTEN REQUEST OF
THE SELLING SECURITYHOLDERS (AND SUBJECT TO THE RECEIPT OF ALL REQUIRED GAMING
APPROVALS:
(I) SELL, TRANSFER AND DELIVER, OR CAUSE TO BE SOLD, TRANSFERRED AND
DELIVERED, TO THE BUYER, HIS, HER OR ITS PRO RATA PORTION OF SECURITIES ON
SUBSTANTIALLY THE SAME TERMS APPLICABLE TO THE SELLING SECURITYHOLDERS (WITH
APPROPRIATE ADJUSTMENTS TO REFLECT THE CONVERSION OF CONVERTIBLE SECURITIES, THE
REDEMPTION OF REDEEMABLE SECURITIES AND THE EXERCISE OF EXERCISABLE SECURITIES);
AND (II) EXECUTE AND DELIVER SUCH INSTRUMENTS OF CONVEYANCE AND TRANSFER AND
TAKE SUCH OTHER ACTION, INCLUDING EXERCISING ANY VOTING RIGHTS IN FAVOR OF ANY
APPROVED SALE PROPOSED BY THE SELLING SECURITYHOLDERS (INCLUDING BY DELIVERING
ANY IRREVOCABLE WRITTEN PROXY AUTHORIZING THE SELLING SECURITYHOLDERS OR THEIR
AUTHORIZED REPRESENTATIVES TO VOTE IN FAVOR OR SUCH APPROVED SALE) AND EXECUTING
ANY PURCHASE AGREEMENTS, MERGER AGREEMENTS, ESCROW AGREEMENTS OR RELATED
DOCUMENTS, AS THE SELLING SECURITYHOLDERS MAY REASONABLY REQUIRE IN ORDER TO
CARRY OUT THE TERMS AND PROVISIONS OF THIS SECTION 3.3; PROVIDED FURTHER THAT
EACH MEZZANINE INVESTOR SHALL BE REQUIRED TO MAKE ANY REPRESENTATIONS OR
WARRANTIES AND TO PROVIDE ANY CUSTOMARY INDEMNITIES IN CONNECTION THEREWITH
SEVERALLY, BUT NOT JOINTLY, WITH THE SELLING SECURITYHOLDERS.
THE SELLING
SECURITYHOLDERS SHALL PAY ALL REASONABLE OUT-OF-POCKET COSTS AND EXPENSES
INCURRED BY THE MEZZANINE INVESTORS IN CONNECTION WITH THE PROVISIONS OF THIS
SECTION 3.3 (INCLUDING THE REASONABLE FEES AND EXPENSES OF ONE INDEPENDENT
COUNSEL FOR THE MEZZANINE INVESTORS AS A GROUP, SELECTED BY THE MAJORITY
HOLDERS).
THE MEZZANINE INVESTORS SHALL BEAR ON THEIR PRO RATA SHARE
(CALCULATED IN ACCORDANCE WITH SECTION 3.2(B)) OF ANY EXPENSES INCURRED BY THE
SELLING SECURITYHOLDERS FOR THE BENEFIT OF ALL SELLING SECURITYHOLDERS.
(B)
NOT LESS THAN THIRTY (30) DAYS PRIOR TO THE DATE PROPOSED FOR THE
CLOSING OF ANY APPROVED SALE, THE SELLING SECURITYHOLDERS SHALL GIVE WRITTEN
NOTICE TO EACH OTHER SECURITYHOLDER, SETTING FORTH IN REASONABLE DETAIL THE NAME
OR NAMES OF THE BUYER, THE TERMS AND CONDITIONS OF THE APPROVED SALE, INCLUDING
THE PURCHASE PRICE, AND THE PROPOSED CLOSING DATE.
(C)
THE OBLIGATIONS OF EACH SECURITYHOLDER SET FORTH IN THIS SECTION
3.3 ARE SUBJECT TO CONDITION THAT, UPON CONSUMMATION OF THE APPROVED SALE, EACH
SECURITYHOLDER RECEIVES THE SAME FORM AND PER UNIT AMOUNT OF CONSIDERATION, OR
IF ANY SECURITYHOLDER IS GIVEN AN OPTION AS TO THE FORM AND PER UNIT AMOUNT OF