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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO.1)*
BLACK HAWK GAMING & DEVELOPMENT COMPANY, INC.
- --------------------------------------------------------------------------------
(Name of Issuer)
COMMON STOCK
- --------------------------------------------------------------------------------
(Title of Class of Securities)
092067 10 7
- --------------------------------------------------------------------------------
(CUSIP Number)
Robert D. Greenlee 303-444-0206
2060 BROADWAY, #400 BOULDER, CO 80302
- --------------------------------------------------------------------------------
(Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications)
12-31-97
- --------------------------------------------------------------------------------
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box / /.
Check the following box if a fee is being paid with the statement / /. (A fee
is not required only if the reporting person: (1) has a previous statement on
file reporting beneficial ownership of more than five percent of the class of
securities described in Item 1; and (2) has filed no amendment subsequent
thereto reporting beneficial ownership of five percent or less of such class.)
(See Rule 13d-7.)
Note: Six copies of this statement, including all exhibits, should be filed with
the Commission. See Rule 13d-1(a) for other parties to whom copies are to be
sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities,
and for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be
deemed to be "filed" for the purpose of Section 18 of the Securities Exchange
Act of 1934 ("Act") or otherwise subject to the liabilities of that section of
the Act but shall be subject to all other provisions of the Act (however, see
the Notes).
<PAGE> 2
SCHEDULE 13D
CUSIP NO. 092067 10 7 PAGE 2 OF 34 PAGES
- --------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
ROBERT DALTON GREENLEE ###-##-####
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) / /
(b) /X/
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
PF
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) OR 2(e) / /
N/A
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
USA
- --------------------------------------------------------------------------------
7 SOLE VOTING POWER
NUMBER OF
SHARES 462,276 11.7%
BENEFICIALLY -----------------------------------------------------------------
OWNED BY 8 SHARED VOTING POWER
EACH
REPORTING 462,276 11.7%
PERSON -----------------------------------------------------------------
WITH 9 SOLE DISPOSITIVE POWER
462,276 11.7%
-----------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
462,276 11.7%
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
462,276 11.7%
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* / /
N/A
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
11.7%
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
IN
- --------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
<PAGE> 3
SCHEDULE 13D
FOR ROBERT DALTON GREENLEE
RESPONSES TO ITEMS 1 THROUGH 7
ITEM 1.
Black Hawk Gaming & Development Company, Inc.
Common Stock
Black Hawk Gaming & Development Company, Inc.
17301 West Colfax Ave., Suite 170
Golden, Colorado 80401
ITEM 2.
(a) Robert Dalton Greenlee
(b) 2060 Broadway, Suite 400, Boulder, Colorado, 80302
(c) President, Centennial Investments, 2060 Broadway, Suite 400, Boulder,
Colorado 80302
(d) None
(e) None
(f) USA
ITEM 3.
The securities were acquired through the conversion of a convertible note held
by Mr. Greenlee. The convertible note was issued to Mr. Greenlee on August 25,
1997 and converted on December 31, 1997. The original convertible note was
purchased with personal funds.
ITEM 4.
(a) The purpose of the transaction is the acquisition of additional shares of
the Company by Mr. Greenlee. Subparagraphs (b) through (i) are not
applicable.
ITEM 5.
(a) This transaction results in Mr. Greenlee acquiring an additional 57,143
shares of the issuers common stock. The total shares owned by Mr. Greenlee
after this transaction is 462,672.
(b) 462,672
(c) On December 30,1997, Mr. Greenlee was granted an additional 396 shares of
the issuer's common stock as compensation for his serving as a director of
the Company. The average price of the shares granted was $7.07 per share.
ITEM 6.
This transaction is subject to that certain Shareholders Agreement dated
November 12, 1996 which contains a first right of refusal on all shares among
certain parties to the Agreement as is set forth in ITEM 7.
ITEM 7.
Filed herewith is that certain Shareholders Agreement dated November 12, 1996
among Black Hawk Gaming & Development Company, Inc., Diversified Opportunities
Group, Ltd, Robert D. Greenlee and Frank B. Day.
<PAGE> 4
INSTRUCTIONS FOR COVER PAGE
(1) Names and Social Security Numbers of Reporting Persons-Furnish the full
legal name of each person for whom the report is filed-i.e., each person
required to sign the schedule itself-including each member of a group. Do
not include the name of a person required to be identified in the report but
who is not a reporting person. Reporting persons are also requested to
furnish their Social Security or I.R.S. identification numbers, although
disclosure of such numbers is voluntary, not mandatory (see "Special
Instructions for Complying with Schedule 13D" below).
(2) If any of the shares beneficially owned by a reporting person are held as a
member of a group and such membership is expressly affirmed, please check
row 2(a). If the membership in a group is disclaimed or the reporting
person describes a relationship with other persons but not affirm the
existence of a group, please check row 2(b)[unless a joint filing pursuant
to Rule 13d-1(f)(1) in which case it may not be necessary to check row
2(b)].
(3) The 3rd row is for SEC internal use; please leave blank.
(4) Classify the source of funds or other consideration used or to be used in
making purchases as required to be disclosed pursuant to Item 3 of Schedule
13D and insert the appropriate symbol (or symbols if more than one is
necessary in row (4):
<TABLE>
<CAPTION>
CATEGORY OF SOURCE SYMBOL
<S> <C>
Subject Company(Company whose securities are being acquired)..................................... SC
Bank............................................................................................. BK
Affiliate(of reporting person)................................................................... AF
Working Capital (of reporting person)............................................................ WC
Personal Funds (of reporting person)............................................................. PF
Other............................................................................................ OO
</TABLE>
(5) If disclosure of legal proceedings or actions is required pursuant to
either Items 2(d) or 2(e) of Schedule 13D, row 5 should be checked.
(6) Citizenship or Place of Organization-Furnish citizenship if the named
reporting person is a natural person. Otherwise, furnish place of
organization. (See Item 2 of Schedule 13D)
(7)-(11),(13) Aggregate Amount Beneficially Owned by Each Reporting Person,etc.-
Rows(7) through (11) inclusive, and (13) are to be completed in accordance
with the provisions of Item 5 of Schedule 13D. All percentages are to be
rounded off to nearest tenth (one place after decimal point).
(12)Check if the aggregate amount reported as beneficially owned in row (11)
does not include shares which the reporting person discloses in the report
but as to which beneficial ownership is disclaimed pursuant to Rule
13d-4[17 CFR 240.13d-4] under the Securities Exchange Act of 1934.
(14)Type of Reporting Person-Please classify each "reporting person" according
to the following breakdown and place the appropriate symbol(or
symbols,i.e., if more than one is applicable, insert all applicable
symbols) on the form:
<TABLE>
<CAPTION>
CATEGORY SYMBOL
<S> <C>
Broker-Dealer.................................................................................... BD
Bank............................................................................................. BK
Insurance Company................................................................................ IC
Investment Company............................................................................... IV
Investment Adviser............................................................................... IA
Employee Benefit Plan, Pension Fund, or Endowment Fund........................................... EP
Parent Holding Company........................................................................... HC
Corporation...................................................................................... CO
Partnership...................................................................................... PN
Individual....................................................................................... IN
Other............................................................................................. OO
</TABLE>
Notes:
Attach as many copies of the second part of the cover page as are needed, one
reporting person per page.
3
<PAGE> 5
Filing persons may, in order to avoid unnecessary duplication, answer items on
the schedules (Schedule 13D, 13G or 14D-1) by appropriate cross references to
an item or items on the cover page(s). This approach may only be used where the
cover page item or items provide all the disclosure required by the schedule
item. Moreover, such a use of a cover page item will result in the item
becoming a part of the schedule and accordingly being considered as "filed" for
purposes of Section 18 of the Securities Exchange Act or otherwise subject to
the liabilities of that section of the Act.
Reporting persons may comply with their cover page filing requirements by
filing either completed copies of the blank forms available from the
Commission, printed or typed facsimiles, or computer printed facsimiles,
provided the documents filed have identical formats to the forms prescribed in
the Commission's regulations and meet existing Securities Exchange Act rules as
to such matters as clarity and size (Securities Exchange Act Rule 12b-12).
SPECIAL INSTRUCTIONS FOR COMPLYING WITH SCHEDULE 13D
Under Sections 13(d) and 23 of the Securities Exchange Act of 1934 and the
rules and regulations thereunder, the Commission is authorized to solicit the
information required to be supplied by this schedule by certain security
holders of certain issuers.
Disclosure of the information specified in this schedule is mandatory, except
for Social Security or I.R.S. identification numbers, disclosure of which is
voluntary. The information will be used for the primary purpose of determining
and disclosing the holdings of certain beneficial owners of certain equity
securities. This statement will be made a matter of public record. Therefore,
any information given will be available for inspection by any member of the
public.
Because of the public nature of the information, the Commission can utilize it
for a variety of purposes, including referral to other governmental authorities
or securities self-regulatory organizations for investigatory purposes or in
connection with litigation involving the federal securities laws or other
civil, criminal or regulatory statements or provisions. Social Security or
I.R.S. identification numbers, if furnished, will assist the Commission in
identifying security holders and, therefore in promptly processing statements
of beneficial ownership of securities.
Failure to disclose the information requested by this schedule, except for
Social Security or I.R.S. identification numbers may result in civil or
criminal action against the persons involved for violation of the federal
securities laws and rules promulgated thereunder.
GENERAL INSTRUCTIONS
A. The item numbers and captions of the items shall be included but the text
of the items is to be omitted. The answers to the items shall be so
prepared as to indicate clearly the coverage of the items without referring
to the text of the items. ANSWER EVERY ITEM. If an item is inapplicable or
the answer is negative, so state.
B. Information contained in exhibits to the statements may be incorporated by
reference in answer or partial answer to any item or sub-item of the
statement unless it would render such answer misleading, incomplete,
unclear, or confusing. Matter incorporated by reference shall be clearly
identified in the reference by page, paragraph, caption or otherwise. An
express statement that the specified matter is incorporated by reference
shall be made at the particular place in the statement where the
information is required. A copy of any information or a copy of the
pertinent pages of a document containing such information which is
incorporated by reference shall be submitted with this statement as an
exhibit and shall be deemed to be filed with the Commission for all
purposes of the Act.
C. If the statement is filed by a general or limited partnership, syndicate,
or other group, the information called for by Items 2-6, inclusive, shall
be given with respect to (i) each partner of such general partnership; (ii)
each partner who is denominated as a general partner or who functions as a
general partner of such limited partnership; (iii) each member of such
syndicate or group; and (iv) each person controlling such partner or
member. If the statement is filed by a corporation or if a person referred
to in (i), (ii), (iii) or (iv) of this Instruction is a corporation, the
information called for by the above mentioned items shall be given with
respect to (a) each executive officer and director of such corporation; (b)
each person controlling such corporation; and (c) each executive officer
and director of any corporation or other person ultimately in control of
any such corporation.
ITEM 1. SECURITY AND ISSUER
State the title of the class of equity securities to which this statement
relates and the name and address of the principal executive offices of the
issuer of such securities.
4
<PAGE> 6
ITEM 2. IDENTITY AND BACKGROUND
If the person filing this statement or any person enumerated in
Instruction C of this statement is a corporation, general partnership, limited
partnership, syndicate or other group of persons, state its name, the state or
other place of its organization, its principal business, the address of its
principal business, the address of its principal office and the information
required by (d) and (e) of this Item. If the person filing this statement or
any person enumerated in Instruction C is a natural person, provide the
information specified in (a) through (f) of this Item with respect to such
person(s).
(a) Name;
(b) Residence or business address;
(c) Present principal occupation or employment and the name, principal
business and address of any corporation or other organization in which
such employment is conducted;
(d) Whether or not, during the last five years, such person has been
convicted in a criminal proceeding (excluding traffic violations or
similar misdemeanors) and, if so, give the dates, nature of conviction,
name and location of court, and penalty imposed, or other disposition
of the case;
(e) Whether or not, during the last five years, such person was a party to
a civil proceeding of a judicial or administrative body of competent
jurisdiction and as a result of such proceeding was or is subject to a
judgment, decree or final order enjoining future violations, of, or
prohibiting or mandating activities subject to, federal or state
securities laws or finding any violation with respect to such laws;
and, if so, identify and describe such proceedings and summarize the
terms of such judgment, decree or final order; and
(f) Citizenship.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION
State the source and the amount of funds or other consideration used or
to be used in making the purchases, and if any part of the purchase price is or
will be represented by funds or other consideration borrowed or otherwise
obtained for the purpose of acquiring, holding, trading or voting the
securities, a description of the transaction and the names of the parties
thereto. Where material, such information should also be provided with respect
to prior acquisitions not previously reported pursuant to this regulation. If
the source of all or any part of the funds is a loan made in the ordinary
course of business by a bank, as defined in Section 3(a)(6) of the Act, the
name of the bank shall not be made available to the public if the person at
the time of filing the statement so requests in writing and files such request,
naming such bank, with the Secretary of the Commission. If the securities were
acquired other than by purchase, describe the method of acquisition.
ITEM 4. PURPOSE OF TRANSACTION
State the purpose or purposes of the acquisition of securities of the
issuer, Describe any plans or proposals which the reporting persons may have
which relate to or would result in:
(a) The acquisition by any person of additional securities of the issuer,
or the disposition of securities of the issuer;
(b) An extraordinary corporate transaction, such as a merger,
reorganization or liquidation, involving the issuer or any of its
subsidiaries;
(c) A sale or transfer of a material amount of assets of the issuer or any
of its subsidiaries;
(d) Any change into the present board of directors or management of the
issuer, including any plans or proposals to change the number of term
of directors or to fill any existing vacancies on the board;
(e) Any material change in the present capitalization or dividend policy
of the issuer;
(f) Any other material change in the issuer's business or corporate
structure including but not limited to, if the issuer is a registered
closed-end investment company, any plans or proposals to make any
changes in its investment policy for which a vote is required by
section 13 of the Investment Company Act of 1940;
(g) Changes in the issuer's charter, bylaws or instruments corresponding
thereto or other actions which may impede the acquisition of control of
the issuer by any person;
(h) Causing a class of securities of the issuer to be delisted from a
national securities exchange or to cease to be authorized to be quoted
in an inter-dealer quotation system of a registered national securities
association;
(i) A class of equity securities of the issuer becoming eligible for
termination of registration pursuant to Section 12(g)(4) of the Act; or
(j) Any action similar to any of those enumerated above.
5
<PAGE> 7
ITEM 5. INTEREST OF THE ISSUER
(a) State the aggregate number and percentage of the class of securities
identified pursuant to Item 1 (which may be based on the number of
securities outstanding as contained in the most recently available filing
with the Commission by the issuer unless the filing person has reason to
believe such information is not current)beneficially owned (identifying
those shares which there is a right to acquire) by each person named in
Item 2. The above mentioned information should also be furnished with
respect to persons who, together with any of the persons named in Item 2,
comprise a group within the meaning of Section 13(d)(3) of the Act;
(b) For each person named in response to paragraph (a), indicate the number of
shares as to which there is sole power to vote or to direct the vote,
shared power to vote or to direct the vote, sole power to dispose or to
direct the disposition, or shared power to dispose or to direct the
disposition. Provide the applicable information required by Item 2 with
respect to each person with whom the power to vote or to direct the vote or
to dispose or direct the disposition is shared;
(c) Describe any transactions in the class of securities reported on that were
effected during the past sixty days or since the most recent filing on
Schedule 13D (Section 240.13d-191), whichever is less, by the persons named
in response to paragraph (a).
Instruction. The description of a transaction required by Item 5(c) shall
include, but not necessarily be limited to:(1) the identity of the person
covered by Item 5(c) who effected the transaction;(2) the date of the
transaction; (3) the amount of securities involved; (4) the price per
share or unit; and (5) where and how the transaction was effected.
(d) If any other person is known to have the right to receive or the power to
direct the receipt of dividends from, or the proceeds from the sale of,
such securities, a statement to that effect should be included in response
to this item and, if such interest relates to more than five percent of the
class, such person should be identified. A listing of the shareholders of
an investment company registered under the Investment Company Act of 1940
or the beneficiaries of an employee benefit plan, pension fund or endowment
fund is not required.
(e) If applicable, state the date on which the reporting person ceased to be
the beneficial owner of more than five percent of the class of securities.
Instruction. For computations regarding securities which represent a right
to acquire an underlying security, see Rule 13d-3(d)(1) and the note
thereto.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT
TO SECURITIES OF THE ISSUER.
Describe any contracts, arrangements, understandings or relationships (legal
or otherwise) among the persons named in Item 2 and between such persons and
any person with respect to any securities of the issuer, including but not
limited to transfer or voting of any of the securities, finder's fees,
joint ventures, loan or option arrangements, put or calls, guarantees of
profits, division of profits or loss, or the giving or withholding of
proxies, naming the persons with whom such contracts, arrangements,
understandings or relationships have been entered into. Include such
information for any of the securities that are pledged or otherwise
subject to a contingency the occurrence of which would give another person
voting power or investment power over such securities except that
disclosure of standard default and similar provisions contained in loan
agreements need not be included.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS
The following shall be filed as exhibits; copies of written agreements
relating to the filing of joint acquisition statements as required by Rule
13d-1(f)(Section 240.13d-1(f) and copies of all written agreements,
contracts, arrangements, understandings, plans or proposals relating to (1)
the borrowing of funds to finance the acquisition as disclosed in Item 3;
(2) the acquisition of issuer control, liquidation, sale of assets, merger,
or change in business or corporate structure or any other matter as
disclosed in Item 4; and (3) the transfer or voting of the securities,
finder's fees, joint ventures, options, puts, calls, guarantees of loans,
guarantees against loss or of profit, or the giving or withholding of any
proxy as disclosed in Item 6.
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete
and correct.
1-21-98 /s/ Robert D. Greenlee
- ---------------- ------------------------
Signature
------------------------
Name/Title
6
<PAGE> 8
The original statement shall be signed by each person on whose behalf the
statement is filed or his authorized representative. If the statement is signed
on behalf of a person by his authorized representative (other than an executive
officer or general partner of this filing person), evidence of the
representative's authority to sign on behalf of such person shall be filed with
the statement, provided, however, that a power of attorney for this purpose
which is already on file with the Commission may be incorporated by reference.
The name and any title of each person who signs the statement shall be typed or
printed beneath his signature.
ATTENTION: INTENTIONAL MISSTATEMENTS OR OMISSIONS OF FACT CONSTITUTE FEDERAL
CRIMINAL VIOLATIONS (SEE 18 U.S.C. 1001)
7
<PAGE> 1
EXHIBIT 10.3
BLACK HAWK GAMING & DEVELOPMENT COMPANY, INC.
SHAREHOLDERS AGREEMENT
THIS AGREEMENT is made as of November 12, 1996, by and among BLACK HAWK
GAMING & DEVELOPMENT COMPANY, INC., a Colorado corporation (the "Company"),
DIVERSIFIED OPPORTUNITIES GROUP LTD., an Ohio limited liability company or its
nominee as described in Section 12 (the "Investor"), and ROBERT D. GREENLEE
("Greenlee") and FRANK B. DAY ("Day"). The Investor, Greenlee and Day are
sometimes collectively referred to as the "Shareholders" and individually as a
"Shareholder."
RECITALS
A. Pursuant to a certain Amended and Restated Purchase Agreement
dated as of even date herewith, by and between Investor and the Company (the
"Purchase Agreement"), Investor is acquiring certain Shares and a Note which is
convertible into certain Shares (each as defined in the Purchase Agreement) of
the Company.
B. It is a condition to closing the transactions contemplated by the
Purchase Agreement that the parties enter into this Agreement for the purposes,
among others, of (i) establishing the composition of the Company's Board of
Directors (the "Board"), (ii) assuring continuity in the management and
ownership of the Company, and (iii) limiting the manner and terms by which the
Shareholders' Shares may be transferred.
C. Capitalized terms used herein are defined in Paragraph 7 hereof.
AGREEMENTS
NOW, THEREFORE, in consideration of the mutual covenants contained
herein and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties to this Agreement hereby agree as
follows:
1. Covenants With Respect To Voting.
(a) From and after the Closing (as defined in the Purchase
Agreement) and until the occurrence of both of the conditions described in
Sections 1(a)(i) and 1(a)(ii) below, each of Greenlee and Day shall vote all of
his Shareholder Shares (as defined in paragraph 7 hereof) and any other voting
securities of the Company over which such Shareholder has voting control and
shall take all other necessary or desirable actions within his control (whether
in his capacity as a stockholder, director, member of a board committee or
officer of the Company or otherwise, and including, without limitation,
attendance at meetings in person or by proxy for purposes of obtaining a quorum
and execution of written consents in lieu of meetings), and the Company shall
take all reasonable, necessary or desirable actions within its control
(including, without limitation,
<PAGE> 2
calling special board and shareholder meetings), to ensure that the size of the
Board remains at seven (three members being nominees of the Investor) and
voting for the election of Jeffrey P. Jacobs as Chief Executive Officer and Co-
Chairman of the Board of Seller and to duly call or cause the Company to call a
special meeting of shareholders of the Company to occur on or before January
31, 1997 (the "Special Meeting") to approve Investor's acquisition of the
Shares which may be acquired upon conversion of the Note and to vote or
continue to vote at the Special Meeting or otherwise, as the case may be, their
Shares in favor of the following proposals, which will become effective at such
time as Purchaser owns 820,000 or more Shares:
(i) expanding the number of directors of the
Company to nine and electing (or, if already
appointed by the Board, ratifying the
appointment of five directors designated by
the Investor (the "Investor Directors"));
and
(ii) adopting staggered terms for the Company's
Board in accordance with Section 7-108-106
of the Colorado Business Corporation Act
and, no later than the next annual meeting
of Shareholders following such time as the
Investor owns 820,000 or more Shares,
nominating directors to the three classes as
follows: Class I shall have three directors
(one nominee of the Company and two nominees
of the Investor, Class II shall have three
nominees (two nominees of the Company and
one of the Investor) and Class III shall
have three nominees (two nominees of the
Investor and one of the Company);
(iii) electing or ratifying the election of
Jeffrey P. Jacobs as Chief Executive Officer
and as Chairman of the Board of the Company;
(iv) at the request of the Investor, electing at
least one of the Investor Directors to the
board of directors of any of the Company's
Subsidiaries (a "Sub Board"); or
(v) at the request of the Investor, at least one
of the Investor Directors shall be a member
of the Compensation Committee and, at the
request of the Investor, at least one of the
Investor Directors shall be a member of any
other committee of the board or a Sub Board,
and any other committees of the Board or a
Sub Board shall be created only upon the
approval of six members of the Board.
-2-
<PAGE> 3
(b) The removal from the Board or a Sub Board (with or without
cause) of any representative designated pursuant to this Paragraph 1 by the
Investor shall be at the Investor's written request, but only upon such written
request and under no other circumstances.
(c) In the event that any representative designated hereunder
by the Investor hereunder ceases to serve as a member of the Board or a Sub
Board during his term of office, the resulting vacancy on the Board or the Sub
Board shall be filled by a representative designated by the Investor as
provided hereunder.
(d) The Company shall pay the reasonable out-of-pocket
expenses incurred by each director in connection with attending the meetings of
the Board, any Sub Board and any committee thereof.
(e) If any party fails to designate a representative to fill a
directorship pursuant to the terms of this Paragraph 1, the election of an
individual to such directorship shall be accomplished in accordance with the
Company's bylaws and applicable law.
(f) Greenlee's and Day's obligation to vote their Shares as
described in this Paragraph 1 constitutes a voting agreement created under
Section 7-107-302 of the Colorado Business Corporation Act.
2. IRREVOCABLE PROXY. IN ORDER TO SECURE EACH OF GREENLEE'S AND
DAY'S OBLIGATION TO VOTE HIS SHAREHOLDER SHARES AND OTHER VOTING SECURITIES OF
THE COMPANY IN ACCORDANCE WITH THE PROVISIONS OF PARAGRAPH 1 HEREOF, EACH OF
GREENLEE AND DAY HEREBY APPOINTS THE INVESTOR AS HIS TRUE AND LAWFUL PROXY AND
ATTORNEY-IN-FACT, WITH FULL POWER OF SUBSTITUTION, TO VOTE ALL OF HIS
SHAREHOLDER SHARES AND OTHER VOTING SECURITIES OF THE COMPANY FOR THE ELECTION
AND/OR REMOVAL OF DIRECTORS AND ALL SUCH OTHER MATTERS AS EXPRESSLY PROVIDED
FOR IN PARAGRAPH 1. THE INVESTOR MAY EXERCISE THE IRREVOCABLE PROXY GRANTED TO
HIM/IT HEREUNDER AT ANY TIME GREENLEE OR DAY FAILS TO COMPLY WITH THE
PROVISIONS OF THIS AGREEMENT. THE PROXIES AND POWERS GRANTED BY GREENLEE AND
DAY PURSUANT TO THIS PARAGRAPH 2 ARE COUPLED WITH AN INTEREST AND ARE GIVEN TO
SECURE THE PERFORMANCE OF THEIR RESPECTIVE OBLIGATIONS TO THE INVESTOR UNDER
THIS AGREEMENT. SUCH PROXIES AND POWERS SHALL BE IRREVOCABLE-FOR THE TERM SET
FORTH IN PARAGRAPH 1 OF THIS AGREEMENT AND SHALL SURVIVE THE DEATH,
INCOMPETENCY, DISABILITY OR BANKRUPTCY OF GREENLEE OR DAY AND THE SUBSEQUENT
HOLDERS OF THEIR SHAREHOLDER SHARES.
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3. Representations and Warranties of Greenlee and Day
Each of Greenlee and Day represents and warrants that (i) each is
the record owner of the number of Shareholder Shares set forth opposite his
name on Schedule A attached hereto, and (ii) such Shareholder has not granted
and is not a party to any proxy, voting trust or other agreement which is
inconsistent with, conflicts with or violates any provision of this Agreement.
No holder of Shareholder Shares shall grant any proxy or become party to any
voting trust or other agreement which is inconsistent with, conflicts with or
violates any provision of this Agreement.
4. Restrictions on Transfer of Shareholder Shares.
(a) Transfer of Shareholder Shares. No Shareholder shall
sell, transfer, assign, pledge or otherwise dispose of (whether with or without
consideration and whether voluntarily or involuntarily or by operation of law)
any interest in any Shareholder Shares (a "Transfer"), except pursuant to the
provisions of this Paragraph 4; provided however that any Shareholder may,
without restriction and without notice to any other Shareholder, transfer
Shareholder Shares by inter vivos gift or testamentary disposition to a
transferring Shareholder's spouse or lineal descendants or to a trust for the
benefit of such persons, to a family partnership consisting of the Shareholder
and/or such persons if the designated transferee, heir, trust or partnership,
upon transfer of record ownership of such Shares, agrees to be bound by the
terms and provisions of this Agreement.
(b) First Offer Right. Subject to Paragraph 4(c), below, at
least 30 days prior to making any Transfer of any Shareholder Shares (the
"Election Period"), the transferring Shareholder (the "Transferring
Shareholder") shall deliver a written notice (an "Offer Notice") to the Company
and the other Shareholders (the "Other Shareholders"). The Offer Notice shall
disclose in reasonable detail the proposed number of Shareholder Shares to be
transferred, the proposed terms and conditions of the Transfer and the identity
of the prospective transferee(s) (if known). Each Other Shareholder may elect
to purchase all (but not less than all) of his Pro Rata Share (as defined
below) of the Shareholder Shares specified in the Offer Notice at the price and
on the terms specified therein by delivering written notice of such election to
the Transferring Shareholder as soon as practical but in any event within 20
days after delivery of the Offer Notice. Any Shareholder Shares not elected to
be purchased by the end of such 20-day period shall be reoffered for the
ten-day period prior to the expiration of the Election Period by the
Transferring Shareholder on a pro rata basis to the Other Shareholders who have
elected to purchase their Pro Rata Share and, if there are any such Shareholder
Shares remaining after such allocation, the Company shall have the right to
purchase such remaining Shareholder Shares. If the Other Shareholders and/or
the Company have elected to purchase Shareholder Shares from the Transferring
Shareholder, the transfer of such shares shall be consummated as soon as
practical after the delivery of the election notice(s) to the Transferring
Shareholder, but in any event within 15 days after the expiration of the
Election Period. To the extent that the Company and the Other Shareholders
have not elected to purchase all of the Shareholder Shares being offered, the
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Transferring Shareholder may, within 90 days after the expiration of the
Election Period, transfer such Shareholder Shares to one or more third parties
at a price no less than the price per share specified in the Offer Notice and
on other terms no more favorable to the transferees thereof than offered to the
Company and the Other Shareholders in the Offer Notice. Any Shareholder Shares
not transferred within such 90-day period shall be reoffered to the Other
Shareholders under this Paragraph 4 prior to any subsequent Transfer. The
purchase price specified in any Offer Notice shall be payable solely in cash at
the closing of the transaction or in installments over time, and no Shareholder
Shares may be pledged except on terms and conditions satisfactory to the
Investor. Each Shareholder's "Pro Rata Share" shall be based upon such
Shareholder's proportionate ownership of all Shareholder Shares owned by
Shareholders other than the Transferring Shareholder.
(c) Exception for Market Transactions. Should a Transferring
Shareholder wish to sell Shareholder Shares in a bona-fide open market
transaction, pursuant to Rule 144 adopted under the Securities Act of 1933 or
otherwise, such Shareholder, at least 48 hours prior to entering a sell or
limit order with respect to such shares, shall so advise the Company and the
Other Shareholders who shall have a period of 48 hours to elect to purchase
their Pro Rata Share of such shares at the price which could have been obtained
upon execution of the order on the open market during such 48 hour period. If
the Other Shareholders and/or the Company have elected to purchase Shareholder
Shares from the Transferring Shareholder, the transfer of such Shares shall be
consummated with three days after the Company and/or any Shareholder elects to
purchase Shareholder Shares under this Paragraph 4(c). To the extent that the
Company and the Other Shareholders have not elected to purchase all of the
Shareholder Shares being offered pursuant to this Paragraph 4(c), the
Transferring Shareholder may transfer such Shares in such open market
transaction or as otherwise described above. Any Shareholder Shares not so
transferred shall be reoffered to the Other Shareholders under this Paragraph 4
prior to any subsequent Transfer.
5. Legend.
(a) Each certificate evidencing Shareholder Shares and each
certificate issued in exchange for or upon the transfer of any Shareholder
Shares covered hereby shall be stamped or otherwise imprinted with a legend in
substantially the following form:
The transfer of the securities represented by this certificate is
subject to the conditions specified in the Shareholders
Agreement, dated as of November 12, 1996 and as amended and
modified from time to time, between the issuer (the "Company")
and certain stockholders, and the Company reserves the right to
refuse the transfer of such securities until such conditions have
been fulfilled with respect to such transfer.
The Company shall imprint such legend on certificates evidencing Shareholder
Shares outstanding as of the date hereof.
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6. Transfer. Prior to transferring any Shareholder Shares to any
Person, the Transferring Shareholder shall cause the prospective transferee to
be bound by this Agreement and to execute and deliver to the Company and the
Other Shareholders a counterpart of this Agreement.
7. Definitions.
"Affiliate" of a Person means any other Person controlling, controlled
by or under common control with such first Person.
"Board" has the meaning set forth in the preamble.
"Closing" has the meaning set forth in the Purchase Agreement.
"Common Stock" means the Company's common shares, $.001 par value.
"Company" has the meaning set forth in the preamble.
"Investor" has the meaning set forth in the preamble.
"Investor Directors" has the meaning set forth in Paragraph 1(a).
"Note has the meaning set forth in the Purchase Agreement.
"Person" means an individual, a partnership, a corporation, a limited
liability company, an association, a joint stock company, a trust, a joint
venture, an unincorporated organization and a governmental entity or any
department, agency or political subdivision thereof.
"Purchase Agreement" has the meaning set forth in the preamble.
"Shareholder Shares" means (i) any Common Stock purchased or otherwise
acquired by any Shareholder, and (ii) any Common Stock issued or issuable with
respect to the securities referred to in clause (i) above by way of stock
dividend or stock split or in connection with a combination of shares,
recapitalization, merger, consolidation or other reorganization.
"Shareholders" has the meaning set forth in the preamble.
"Sub Board" has the meaning set forth in Paragraph l(a)(v).
"Subsidiary" means, with respect to any Person, any corporation limited
liability company, partnership, association or other business entity of which
(i) if a corporation, a majority of the total voting power of shares of stock
entitled (without regard to the occurrence of any contingency) to vote in the
election of directors, managers or trustees thereof is at the time owned or
controlled,
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directly or indirectly, by that Person or one or more of the other Subsidiaries
of that Person or a combination thereof, or (ii) if a limited liability
company, partnership, association or other business entity, a majority of the
limited liability company, partnership or other similar ownership interest
thereof is at the time owned or controlled, directly or indirectly, by any
Person or one or more Subsidiaries of that Person or a combination thereof.
For purposes hereof, a Person or Persons shall be deemed to have a majority
ownership interest in a limited liability company, partnership, association or
other business entity if such Person or Persons shall be allocated a majority
of limited liability company, partnership, association or other business entity
gains or losses or shall be or control the managing director or general partner
of such limited liability company, partnership, association or other business
entity.
"Transfer" has the meaning set forth in Paragraph 4.
8. Transfers in Violation of Agreement. Any Transfer or attempted
Transfer of any Shareholder Shares in violation of any provision of this
Agreement shall be void, and the Company shall not record such Transfer on its
books or treat any purported transferee of such Shareholder Shares as the owner
of such shares for any purpose.
9. Amendment and Waiver. Except as otherwise provided herein, no
modification, amendment or waiver of any provision of this Agreement shall be
effective against the Company or the Shareholders unless such modification,
amendment or waiver is approved in writing by the parties hereto. The failure
of any party to enforce any of the provisions of this Agreement shall in no way
be construed as a waiver of such provisions and shall not affect the right of
such party thereafter to enforce each and every provision of this Agreement in
accordance with its terms.
10. Severability. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this Agreement is held to be
invalid, illegal or unenforceable in any respect under any applicable law or
rule in any jurisdiction, such invalidity, illegality or unenforceability shall
not affect the validity, legality or enforceability of any other provision of
this Agreement in such jurisdiction or affect the validity, legality or
enforceability of any provision in any other jurisdiction, but this Agreement
shall be reformed, construed and enforced in such jurisdiction as if such
invalid, illegal or unenforceable provision had never been contained herein.
11. Entire Agreement. Except as otherwise expressly set forth
herein, this Agreement embodies the complete agreement and understanding among
the parties hereto with respect to the subject matter hereof and supersedes and
preempts any prior understandings, agreements or representations by or among
the parties, written or oral, which may have related to the subject matter
hereof in any way.
12. Successors and Assigns. Except as otherwise provided herein,
this Agreement shall bind and inure to the benefit of and be enforceable by the
parties hereto and may not be assigned; provided, however, subject to any
required approval of the Division, the Commission (both as
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defined in the Purchase Agreement) and the state and local liquor licensing
authorities, the Investor may assign its rights and obligations hereunder, in
whole or in part, to one or more corporations, limited liability companies,
partnerships, trusts or other entities which are under common control with, or
controlled through equity and/or voting control by the Investor or Jeffrey P.
Jacobs; it being acknowledged that (i) any entity managed by Jacobs
Entertainment Ltd. and/or Jeffrey P. Jacobs, (ii) any entity in which either
Jacobs Entertainment Ltd. or Jeffrey P. Jacobs is one of the trustees and/or
one of the beneficiaries or (iii) any entity in which either Jacobs
Entertainment Ltd. or Jeffrey P. Jacobs beneficially owns 15% or more of the
outstanding equity securities constitutes common control.
13. Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be an original and all of which taken
together shall constitute one and the same agreement.
14. Remedies. The Company and the Shareholders shall be entitled to
enforce their rights under this Agreement specifically, to recover damages by
reason of any breach of any provision of this Agreement and to exercise all
other rights existing in their favor. The parties hereto agree and acknowledge
that money damages would not be an adequate remedy for any breach of the
provisions of this Agreement and the Shareholders may in their discretion apply
to any court of law or equity of competent jurisdiction for specific
performance and/or injunctive relief (without posting a bond or other security)
in order to enforce or prevent any violation of the provisions of this
Agreement.
15. Notices. Except for notices given in accordance with Section
4(c), which shall be deemed given only upon receipt by the Company and the
Other Shareholders, all notices, demands or other communications to be given or
delivered under or by reason of the provisions of this Agreement shall be in
writing and shall be deemed to have been given when delivered personally to the
recipient, sent to the recipient by reputable overnight courier service
(charges prepaid) or mailed to the recipient by certified or registered mail,
return receipt requested and postage prepaid or sent by telecopier. Such
notices, demands and other communications shall be sent to the Company, the
Investor, Greenlee and Day at the addresses indicated below:
Notices to the Investor:
Diversified Opportunities Group Ltd.
c/o Jacobs Entertainment Ltd.
425 Lakeside Avenue
Cleveland, OH 44114
Attention: Jeffrey P. Jacobs
Fax No.: (216) 861-6315
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<PAGE> 9
with a copy (which shall not constitute notice) to:
Hahn Loeser Parks
3300 BP America Building
200 Public Square
Cleveland, OH 44114-2301
Attention: Stephen P. Owendoff, Esq.
Fax No.: (216) 241-2824
Notices to the Company:
Black Hawk Gaming & Development Company, Inc. 2060
Broadway, Suite 400 Boulder, Colorado 80302 Attention:
Stephen R. Roark, President Fax No.: (303) 444-7968
with a copy (shall not constitute notice) to:
Jones & Keller P.C.
1625 Broadway, Suite 1600
Denver, Colorado 80202
Attention: Samuel E. Wing, Esq.
Fax No.: (303) 893-6506
Notices to Greenlee:
Robert D. Greenlee
c/o Black Hawk Gaming & Development Company, Inc. 2060
Broadway, Suite 400 Boulder, Colorado 80302 Fax No.: (303)
444-7968
Notices to Day:
Frank B. Day
c/o Rock Bottom Restaurants, Inc.
1050 Walnut Street, Suite 402
Boulder, Colorado 80302
Fax No.: (303) 417-4199
16. GOVERNING LAW. ALL ISSUES AND QUESTIONS CONCERNING THE
CONSTRUCTION, VALIDITY, INTERPRETATION AND ENFORCEABILITY OF THIS AGREEMENT AND
THE EXHIBITS AND SCHEDULES HERETO
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SHALL BE GOVERNED BY THE LAWS OF THE STATE OF COLORADO, WITHOUT GIVING EFFECT
TO ANY CHOICE OF LAW OR CONFLICT OF LAW RULES OR PROVISIONS (WHETHER OF THE
STATE OF COLORADO OR ANY OTHER JURISDICTION) THAT WOULD CAUSE THE APPLICATION
OF THE LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF COLORADO.
17. Business Days. If any time period for giving notice or taking
action hereunder expires on a day which is a Saturday, Sunday or legal holiday
in the State of Colorado, the time period shall automatically be extended to
the business day immediately following such Saturday, Sunday or legal holiday.
18. Descriptive Headings. The descriptive headings of this Agreement
are inserted for convenience only and do not constitute a part of this
Agreement.
[REMAINDER OF PAGE LEFT INTENTIONALLY BLANK.]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the day and year first above written.
DIVERSIFIED OPPORTUNITIES GROUP LTD.
By: JACOBS ENTERTAINMENT LTD., its manager
By /s/ David C. Grunenwald
---------------------------------------
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Its Vice President
--------------------------------------
BLACK HAWK GAMING &
DEVELOPMENT COMPANY, INC.
By /s/ Robert D. Greenlee
---------------------------------------
Its Chief Executive Officer
--------------------------------------
/s/ Robert D. Greenlee
------------------------------------------
ROBERT D. GREENLEE
/s/ Frank B. Day
------------------------------------------
FRANK B. DAY
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