him by Johan P. Finley that is
exchangeable into equity interests in Parent owned by Mr. Finley upon the
satisfaction of certain conditions, including, without limitation, the obtaining
by Mr. Ravich of all required approvals from applicable gaming regulatory
authorities).
Prior to the Closing, Johan P. Finley and Lona M. B. Finley shall
have transferred to Parent all of the issued and outstanding shares of Company
Common Stock beneficially owned or held of record by them on the date of this
Agreement, other than 60,200 shares of Company Common Stock held of record by
them in the capacity of custodian or trustee for their minor children.
Section 4.10
No Prior Activities of Merger Sub.
Except for obligations incurred in connection with its formation, organization
and financing or the negotiation and documentation of this Agreement and the
documents referenced herein and the consummation of the transactions
contemplated hereby, Merger Sub has neither incurred any obligation or liability
nor engaged in any business or activity of any type or kind whatsoever or
entered into any agreement or arrangement with any other person.
ARTICLE 5
COVENANTS
Section 5.1
Conduct of Business.
(A)
CONDUCT OF BUSINESS BY THE COMPANY.
EXCEPT
AS EXPRESSLY SET FORTH IN THIS AGREEMENT OR AS CONSENTED TO IN WRITING BY
PARENT, DURING THE PERIOD FROM THE DATE OF THIS AGREEMENT TO THE EFFECTIVE TIME,
OR UNTIL THE EARLIER TERMINATION OF THIS AGREEMENT PURSUANT TO THE TERMS OF
ARTICLE 7 HEREOF, THE COMPANY SHALL USE, AND SHALL CAUSE ITS SUBSIDIARIES TO
USE, REASONABLE COMMERCIAL EFFORTS TO CARRY ON THEIR RESPECTIVE BUSINESSES IN
THE USUAL, REGULAR AND ORDINARY COURSE, CONSISTENT WITH PAST PRACTICE AND IN
COMPLIANCE IN ALL MATERIAL RESPECTS WITH ALL APPLICABLE LAWS AND REGULATIONS,
AND TO PRESERVE THEIR CURRENT RELATIONSHIPS WITH CUSTOMERS, VENDORS AND LENDERS.
(B)
NEGATIVE COVENANTS.
WITHOUT LIMITING THE
GENERALITY OF THE FOREGOING, AND EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT
OR AS CONSENTED TO IN WRITING BY PARENT (WHICH CONSENT SHALL NOT BE UNREASONABLY
WITHHELD OR DELAYED), BETWEEN THE DATE OF THIS AGREEMENT AND THE EFFECTIVE TIME,
OR UNTIL THE EARLIER
18
TERMINATION OF THIS AGREEMENT PURSUANT TO THE TERMS OF ARTICLE 7 HEREOF, THE
COMPANY SHALL NOT, AND SHALL NOT PERMIT ANY OF ITS SUBSIDIARIES TO:
(I)
AMEND ITS ARTICLES OF INCORPORATION OR
BYLAWS (OR OTHER SIMILAR GOVERNING INSTRUMENTS);
(II)
AUTHORIZE FOR ISSUANCE, ISSUE, SELL,
DELIVER OR AGREE OR COMMIT TO ISSUE, SELL OR DELIVER (WHETHER THROUGH THE
ISSUANCE OR GRANTING OF OPTIONS, WARRANTS, COMMITMENTS, SUBSCRIPTIONS, RIGHTS TO
PURCHASE OR OTHERWISE) ANY STOCK OF ANY CLASS OR ANY OTHER SECURITIES OR EQUITY
EQUIVALENTS (INCLUDING, WITHOUT LIMITATION, ANY STOCK OPTIONS OR STOCK
APPRECIATION RIGHTS), EXCEPT FOR THE ISSUANCE AND SALE OF SHARES OF COMPANY
COMMON STOCK PURSUANT TO OPTIONS PREVIOUSLY GRANTED;
(III)
SPLIT, COMBINE OR RECLASSIFY ANY SHARES OF
ITS CAPITAL STOCK, DECLARE, SET ASIDE OR PAY ANY DIVIDEND OR OTHER DISTRIBUTION
(WHETHER IN CASH, STOCK OR PROPERTY OR ANY COMBINATION THEREOF) IN RESPECT OF
ITS CAPITAL STOCK, MAKE ANY OTHER ACTUAL, CONSTRUCTIVE OR DEEMED